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https://www.courtlistener.com/api/rest/v3/opinions/4141935/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
gonorable a. F8t Bdlial-d8
Civil Diatrlct Attorner
xalles, Texao
“Ho oocoupatian CPT o&r than hfmela Smpcaed
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this 8ubdlvi8ion.
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ailable. Fry r. Jaokaoa, 264 8.U. 612~ ~roaa v. Dwrouaett In-
de AdeAt School Mstrlot, 277 8.U. 7511 uhItteaborg v. ~AfbP,
2&&M. 152, Cop. lippa.; 39 Tex. Jur., pp. 139-145
EemeC ang person fa;Sling vIthIA the deflnitlon OS
‘gumral tA@At, a8 cOAtsinn IA Section 10(b) of Artlale 7047
18 rubjeet to the o*CIljMtiOA teX therein ;lOv;ted, and to 8 eO&
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P
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thbt 0. - N &CUWy tan8 rithbt SUOhdefiR Itio R .
YOU’S vertr
y uly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4141940/ | OFFICE OF THE ATI’ORNEY GENERAL OF TEXAS
AUSTIN
Eoa. asor E. 8hrpp8rd
“9eoh . person,
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new oora8tio8, rball meka quarterly on th8
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0885 &28865t4&
- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125881/ | FILED
FEBRUARY 14, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
Judith Margarita Reyes, on her own behalf )
and on behalf of the Estate of Jose Luis ) No. 33697-2-111
Reyes, Deceased, and on behalf of her )
minor children, E.R. and L.M.R., )
)
Appellants, )
) UNPUBLISHED OPINION
v. )
)
Yakima Health District, a public entity in )
the State of Washington; Christopher )
Spitters, M.D.; John Does Nos. 1-20, )
)
Respondents. )
FEARING, C.J. -We face again the question of whether a patient or patient's
survivor presented essential expert testimony to defeat her physician's summary
judgment motion in a medical malpractice case. Plaintiff Judith Reyes, who sues for the
death of her husband, also asserts the tort of outrage. We affirm the trial court's
summary judgment dismissal of both causes of action.
No. 33697-2-111
Reyes v Yakima Health Dist.
FACTS
We present the facts in a gloss favorable to Judith Reyes, since the trial court
dismissed her claims on summary judgment.
Defendant Dr. Christopher Spitters is a physician who specializes, in part, in the
prevention and treatment of tuberculosis. He acts as a consultant and contracts with
defendant Yakima Health District.
Dr. Rizwana Khan, a physician independent of the Yakima Health District, treated
Jose Reyes for chest pains in April 2010. According to the health district, Dr. Khan
ordered testing and imaging reports, and laboratory results showed positive tuberculosis
cultures from Reyes' sputum sample. Additional sputum samples, analyzed by the
Washington State Department of Health's Public Health Laboratory, tested positive for
tuberculosis. A Yakima Health District physician then prescribed for Jose Reyes
medications for the treatment of tuberculosis, including Isoniazid, also known as
isonicotinylhydrazide (INH).
According to Judith Reyes and her expert, Jose Reyes did not suffer from
tuberculosis. Reyes took the drugs nonetheless.
According to the Yakima Health District, the district sought to monitor Jose
Reyes' liver function. Reyes failed to show for testing. After ingesting the prescribed
drugs, Jose Reyes suffered from nausea, vomiting, dizziness, lack of energy, and a loss of
appetite. Reyes' skin also changed to a reddish-yellow shade.
2
No. 33697-2-III
Reyes v Yakima Health Dist.
In June 2010, Jose Reyes expressed a desire to discontinue taking the tuberculosis
medications because of severe discomfort. One of the Yakima Health District
practitioners insisted, however, that he continue taking the medications. The health
district threatened to incarcerate Reyes if he failed to ingest the medications.
Dr. Christopher Spitters, on behalf of the Yakima Health District, provided
medical care to Jose Reyes for the treatment of his tuberculosis in July and August 2010.
In July 2010, Reyes' condition worsened. He became unable to walk, drive, or eat. He
experienced body shakes, hand tremors, and confusion. His abdomen swelled. He
complained to Yakima Health District care providers of his symptoms. Health district
providers then discovered serious deviations in his laboratory results. On August 6,
2010, Jose Reyes died of liver failure.
According to Judith Reyes, after Jose Reyes' death, Dr. Christopher Spitters met
with her and told her that the health district should have stopped prescribing the anti-
tuberculosis drugs in May 2010. Dr. Spitters added that the clinic should have tested her
husband's liver periodically. Spitters also told Judith Reyes that the Yakima Health
District accepted responsibility. Dr. Spitters declared: "' unfortunately I don't have a
magic button to push it and tum back time and rectify things. I do accept that the
prescribed medication damaged his [Mr. Reyes'] liver and kidneys.'" Clerk's Papers
(CP) at 10 (alteration in original).
3
No. 33697-2-111
Reyes v Yakima Health Dist.
PROCEDURE
Judith Reyes filed suit against the Yakima Health District and Dr. Christopher
Spitters. Her complaint asserted causes of action for medical malpractice, the tort of
outrage, and wrongful death against the health district and Dr. Spitters. The complaint
also asserted, against the health district, the claim of negligent hiring, training and
superv1s10n.
Christopher Spitters and the Yakima Health District brought motions for summary
judgment on the grounds that the statute of limitations bars Judith Reyes' claims, Reyes
lacked standing to sue, and Reyes lacked expert medical testimony to support her claim
of medical malpractice. In response to the summary judgment motions, Judith Reyes
filed a declaration by expert witness Rosa Martinez, M.D. Dr. Martinez is a licensed
physician in the State of Washington who owns an internal medical clinic in Yakima.
She specializes in the areas of complex medical patients with chronic pain symptoms,
geriatric patients, and internal medicine patients. Martinez declared:
I am well-qualified to identify liver disease problems, diagnosis of
tuberculosis, and the proper care and treatment of these diseases, including
the proper pharmaceutical protocol to avoid adverse side effects (such as
occurred in the case of Jose Reyes, deceased).
CP at 109.
In her declaration, Dr. Rosa Martinez averred that she reviewed medical records
concerning the care and treatment of Jose Reyes. Based on a review of Reyes' death
4
No. 33697-2-111
Reyes v Yakima Health Dist.
certificate, Martinez opined that Jose Reyes never suffered from tuberculosis, but he died
from complications due to chronic liver disease. The declaration further stated, based on
reasonable medical certainty:
(b) Jose Reyes did suffer from chronic liver disease, and was at risk
for catastrophic liver failure if he were treated with medicines
contraindicated for liver disease ....
(c) Jose Reyes presented to Yakima Health District and Dr. Spitters
with clinical symptoms of liver failure that should have been easily
diagnosed by observation of the patient. ...
(d) The failure of Yakima Health District and Dr. Spitters to
accurately diagnose Jose Reyes' liver disease and liver deterioration due to
prescribed medications to treat tuberculosis that were contraindicated for
Jose Reyes were direct and proximate causes of Mr. Reyes' liver failure and
death ....
(e) The actions of Yakima Health District and Dr. Spitters constitute
medical negligence in the care and treatment of Jose Reyes. The Yakima
Health District and Dr. Spitters have breached the standard of care for a
health care facility and physician acting in the same or similar
circumstances in the State of Washington ....
(f) In April, 2010 Mr. Reyes started taking the medicine prescribed
by the Yakima Health District, and this medicine was for the treatment of
tuberculosis. Mr. Reyes did not have tuberculosis. He was never found to
be suffering from tuberculosis. The medicine which was negligently
prescribed was INH, RIFAMPIN, PZA, EMB and vitamin B-6 (there is no
objection to the prescription for vitamin B-6). However, the most seriously
contraindicated prescription was INH, as it clearly should not be
administered to a patient with liver problems.
(g) Mr. Reyes had liver disease. A month after he started the anti-
tuberculosis drug regimen he suffered from the side effects, exacerbated by
his liver problems. Those side effects included nausea, vomiting, dizziness,
lack of energy and loss of appetite. His skin color changed to a reddish-
yellow tinge, and it was a significant change of skin tone.
(h) In June, 2010 Mr. Reyes was experiencing strong discomfort due
to the anti-tuberculosis drug regimen, and he expressed a desire to
discontinue the medication. However, officials at the Yakima Health
District insisted Mr. Reyes sign a contract to continue the anti-tuberculosis
5
No. 33697-2-III
Reyes v Yakima Health Dist.
drug regimen, including the very dangerous drugs that could kill Mr. Reyes
because of his liver problems.
(k) Towards mid-July, 2010 Mr. Reyes could no longer bear the pain
and severe symptoms he suffered from these dangerous anti-tuberculosis
drugs that he had been forced to ingest by the defendants. Mr. Reyes
presented himself at Yakima Health District facilities, and at about the
same time YHD discovered the errors the health care providers had
committed in this case. It took serious laboratory deviations to get the
physicians' attention, however. This, despite the clinical presentation that
clearly called for a correct diagnosis.
(1) See the following matrix, which profoundly points to severe liver
deterioration, and no indication of secondary symptoms associated with
tuberculosis. Merely observing the patient, without any laboratory
confirmation, would clearly have proved severe liver toxicity.
[Matrix omitted.]
5. Jose Reyes expired due to the failures of Dr. Spitters and Yakima
Health District to observe the standard of care for health care institutions
and physicians acting in the same or similar circumstances in the State of
Washington. He lost his opportunity to live an extended life due to the
negligence of these defendants.
CP at 109-13.
The trial court granted the Yakima Health District's and Dr. Christopher Spitters'
summary judgment motions to dismiss the medical malpractice claim because Judith
Reyes failed to provide competent expert testimony on the issues of standard of care,
causation, and damages. During the summary judgment hearing, the trial court
questioned the sufficiency of the testimony regarding the standard of care in Dr. Rosa
Martinez's declaration. The trial court commented:
In other words, what did Dr. Spitters do that violated the standard of
care? She doesn't say that. There was a horrible result. There's sort of an
6
No. 33697-2-III
Reyes v Yakima Health Dist.
ambiguous, and I want to say ambiguous as to whom. You know, they
misdiagnosed. They gave him this toxic treatment for tuberculosis which,
in her opinion, kills him because he doesn't have to be. He has a liver
disease, but who does that? It's not in here.
Report of Proceedings (May 5, 2015) at 30-31.
The Yakima Health District later moved for summary judgment on Judith Reyes'
claims for wrongful death, the tort of outrage, and negligent hiring, retention and
supervision. Dr. Christopher Spitters moved for summary dismissal of the wrongful
death and tort of outrage claims. The two argued, among other contentions, that the
statute of limitations barred the wrongful death claim. The trial court granted summary
dismissal of Reyes' claims against Dr. Spitters for the tort of outrage and wrongful death,
and negligent hiring, retention, and supervision. Judith Reyes does not appeal the
dismissal of the negligent hiring, retention and supervision claims.
LAW AND ANALYSIS
Issue 1: Whether the declaration ofRosa Martinez sufficed to raise an issue offact
with regard to negligence, causation, and damages for purposes ofJudith Reyes' claim of
medical malpractice?
Answer 1: No.
Judith Reyes appeals from a summary judgment dismissal of her suit. We review
a trial court's order granting summary judgment de novo. Briggs v. Nova Services, 166
Wash. 2d 794, 801, 213 P.3d 910 (2009). Summary judgment is appropriate if the
7
No. 33697-2-111
Reyes v Yakima Health Dist.
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 oflaw. CR 56(c). A material fact
is one on which the outcome of the litigation depends in whole or in part. Ranger
Insurance Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886 (2008); Morris v.
McNicol, 83 Wn.2d 491,494,519 P.2d 7 (1974). A complete failure of proof concerning
an essential element of the nonmoving party's case necessarily renders all other facts
immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986); Guile v. Ballard Community Hospital, 70 Wash. App. 18, 23, 851 P.2d 689
(1993). We conclude that Judith Reyes failed to provide any proof regarding one element
of medical malpractice.
In her appeals brief, Judith Reyes contends that the trial court erred when striking
the declaration of Dr. Rosa Martinez. We find nothing in the record confirming that the
trial court struck the declaration of Dr. Martinez. The trial court probably concluded that
Dr. Martinez held the qualifications to deliver opinions concerning the care for Jose
Reyes. The trial court reviewed the declaration, but determined the declaration to be
wanting in creating an issue of fact as to medical negligence, causation, and damages.
Judith Reyes does not contend that any concession of Dr. Christopher Spitters in a
conversation with her creates a question of fact. We also hold that Rosa Martinez'
declaration fails to create issues of fact.
8
No. 33697-2-111
Reyes v Yakima Health Dist.
Dr. Christopher Spitters argues that Dr. Rosa Martinez's declaration failed to show
she was qualified to testify on the standard of care regarding tuberculosis and liver
disease, failed to reference specific facts, failed to articulate the standard of care as it
applies to Spitters, and failed to establish a causal link between Spitters' conduct and Jose
Reyes' injuries and death. The Yakima Health District argues Dr. Martinez's declaration
was insufficient because she failed to establish she was familiar with the standard of care,
identify the applicable standard of care, explain the basis of her opinions, or support her
conclusions with facts. We conclude that Dr. Martinez's declaration was insufficient
because it failed to specify the standard of care in the state of Washington that Dr.
Christopher Spitters and the Yakima Health District purportedly violated and the manner
in which the defendants ostensibly violated the standard. Therefore, we do not address
the defense's other arguments.
In a medical malpractice suit, a plaintiff must prove the relevant standard of care
through the presentation of expert testimony, unless a limited exception applies. Grove v.
PeaceHealth St. Joseph Hospital, 182 Wn.2d 136,144,341 P.3d 261 (2014); Douglas v.
Bussabarger, 73 Wash. 2d 476, 478-79, 438 P.2d 829 (1968). The standard of care is the
degree of care, skill, and learning expected of a reasonably prudent health care provider
at that time in the profession or class to which he belongs, in the state of Washington.
Hill v. Sacred Heart Medical Center, 143 Wash. App. 438, 446, 177 P.3d 1152 (2008).
9
No. 33697-2-III
Reyes v Yakima Health Dist.
A defendant moving for summary judgment can meet its initial burden by showing
that the plaintiff lacks competent expert testimony. Young v. Key Pharmaceuticals, Inc.,
112 Wash. 2d 216, 226-27, 770 P.2d 182 (1989). The burden then shifts to the plaintiff to
produce an affidavit from a qualified expert witness that alleges specific facts
establishing a cause of action. Guile v. Ballard Community Hospital, 70 Wash. App. at 25
(1993). An expert must link conclusions to a factual basis; bare opinions are not
sufficient to survive summary judgment. Keck v. Collins, 184 Wash. 2d 358, 373, 357 P.3d
1080 (2015); Guile v. Ballard Community Hospital, 70 Wash. App. at 25. Affidavits
containing conclusory statements without adequate factual support are insufficient to
defeat a summary judgment motion. Guile v. Ballard Community Hospital, 70 Wash. App.
at 25.
In her declaration, Dr. Rosa Martinez opined that the conduct of Dr. Christopher
Spitters and the Yakima Health District constituted medical negligence and breached the
standard of care. Nevertheless, Dr. Martinez failed to identify the discrete conduct of Dr.
Spitters or the health district that violated the standard of care. She also failed to declare
the applicable standard. We might be able to guess that she considered the defendants to
breach the standard by failing to quickly diagnose liver disease and by prescribing
tuberculosis medications. But we should not be left to guess. A conclusory affidavit
does not defeat a summary judgment motion.
10
No. 33697-2-III
Reyes v Yakima Health Dist.
Several Washington decisions support our holding. In Vant Leven v. Kretz/er, 56
Wash. App. 349, 356, 783 P.2d 611 (1989), the plaintiffs expert witness submitted an
affidavit stating that the defendant physician's conduct more probably than not fell below
the applicable standard of care. Nevertheless, the affidavit failed to identify what facts
supported the conclusion. This court affirmed a summary judgment dismissal on behalf
of the physician.
In Guile v. Ballard Community Hospital, this court affirmed a summary judgment
dismissal. The patient's evidence failed to identify specific facts that established a basis
for negligence and merely consisted of unsupported conclusions that the patient's
postsurgical complications were caused by the surgeon's "faulty technique." 70 Wn.
App. at 26.
Issue 2: Whether the trial court erred in dismissing Judith Reyes' tort of outrage
claim?
Answer 2: No.
Judith Reyes contends the trial court erred in dismissing her tort of outrage claim
because the claim is a derivative of the extreme misconduct in providing medical
treatment. Dr. Christopher Spitters responds that the tort of outrage claim is statutorily
barred because chapter 7.70 RCW provides the exclusive remedies for medical
negligence. Dr. Spitters further argues that, even if Reyes could bring the claim, the
claim fails because Washington law specifically permits the allegedly outrageous
11
No. 33697-2-111
Reyes v Yakima Health Dist.
conduct. The Yakima Health District presents similar arguments as forwarded by Dr.
Spitters. We affirm the trial court's summary dismissal of Reyes' claim for outrage
because the conduct of the health district and Dr. Spitters, as a matter oflaw, is not
outrageous. We thus do not address whether a patient may recover for outrage despite
the provisions of chapter 7.70 RCW.
The tort of outrage is synonymous with a cause of action for intentional infliction
of emotional distress. Kloepfelv. Bokor, 149 Wash. 2d 192, 194, 66 P.3d 630 (2003);
Snyder v. Medical Services Corp., 145 Wn.2d 233,250, 35 P.3d 1158 (2001). In order to
make a prima facie case of intentional infliction of emotional distress, a plaintiff seeking
to survive summary judgment must produce evidence showing three elements: ( 1)
extreme and outrageous conduct, (2) intentional or reckless infliction of emotional
distress, and (3) actual result to the plaintiff of severe emotional distress. Kloepfel v.
Bokor, 149 Wash. 2d at 195; Grimsby v. Samson, 85 Wash. 2d 52, 59, 530 P.2d 291 (1975).
This appeal focuses on element one of the tort.
Extreme and outrageous conduct must be conduct that the recitation of the facts to
an average member of the community would arouse his resentment against the actor and
lead him to exclaim "Outrageous!" Kloepfel v. Bokor, 149 Wash. 2d at 196; Reid v. Pierce
County, 136 Wash. 2d 195, 201-02, 961 P.2d 333 (1998). Liability exists only when the
conduct has been so outrageous in character and extreme in degree as to go beyond all
possible bounds of decency and to be regarded as atrocious and utterly intolerable in a
12
No. 33697-2-III
Reyes v Yakima Health Dist.
civilized community. Grimsby v. Samson, 85 Wash. 2d at 59 (quoting RESTATEMENT
(SECOND) OF TORTS§ 46 cmt. d (AM. LAW INST. 1965)).
Generally, the elements of a claim for intentional infliction of emotional distress
are questions of fact. Strong v. Terrell, 147 Wash. App. 376, 385, 195 P.3d 977 (2008).
On summary judgment, however, a trial court must make an initial determination as to
whether the conduct may reasonably be regarded as so extreme and outrageous as to
warrant a factual determination by the jury. Sutton v. Tacoma School District No. JO,
180 Wash. App. 859, 869, 324 P.3d 763 (2014); Strong v. Terrell, 147 Wash. App. at 385.
No case suggests that the standard to defeat a summary judgment motion is harsher for
plaintiffs asserting outrage claims than plaintiffs in other tort suits. Christian v. Tohmeh,
191 Wash. App. 709, 736, 366 P.3d 16 (2015), review denied, 185 Wash. 2d 1035, 377 P.3d
744 (2016). Nevertheless, Washington courts, like other courts, have considered
themselves gatekeepers for purposes of allowing a jury to decide claims of intentional
infliction of emotional distress. Christian v. Tohmeh, 191 Wash. App. at 736. The trial
court and, in tum, the appeals court, renders an initial screening to determine whether the
defendant's conduct and mental state, together with the plaintiff's mental distress, rise to
the level necessary to make out a prima facie case. Benoy v. Simons, 66 Wash. App. 56, 63,
831 P.2d 167 (1992); Orwick v. Fox, 65 Wash. App. 71, 87-88, 828 P.2d 12 (1992). The
requirement of outrageousness is not an easy one to meet. Ortberg v. Goldman Sachs
13
No. 33697-2-111
Reyes v Yakima Health Dist.
Grp., 64 A.3d 158, 163 (D.C. 2013). The level of outrageousness required is extremely
high. Reigel v. SavaSeniorCare LLC, 292 P.3d 977, 990 (Colo. App. 2011).
We analyze Judith Reyes' claim for outrage in the context of tuberculosis law.
Washington, like most states, considers tuberculosis a serious public health threat and
thus the disease's diagnosis and treatment are regulated. RCW 70.28.005; WAC 246-
170. Each health district holds responsibility for controlling tuberculosis within its
jurisdiction. WAC 246-170-021. A health district must maintain a tuberculosis
prevention program and provide services for the treatment and control of any tuberculosis
cases. WAC 246-170-031. Treatment generally includes a long-term regimen of
multiple drugs. WAC 246-170-002( d).
When a local health district suspects that a patient has tuberculosis, the health
district must "isolate and treat or isolate, treat, and quarantine" whenever needed to
protect the public health. RCW 70.28.03 l(a). The local health officer holds the authority
to order a tuberculosis patient to submit to treatment, including quarantine. RCW
70.28.031(d)-(f), .032, .033, .035. Violation ofthe health officer's order constitutes a
misdemeanor. RCW 70.28.033.
Judith Reyes denies that Jose Reyes suffered from tuberculosis. Nevertheless,
some medical records support a diagnosis of tuberculosis. The undisputed facts show
that Dr. Christopher Spitters and other Yakima Health District practitioners believed Jose
Reyes to suffer from tuberculosis. In this light, the defendants held an obligation to treat
14
No. 33697-2-III
Reyes v Yakima Health Dist.
Reyes for tuberculosis and to prevent the disease's spread to others. The defendants had
authority to threaten quarantine and arrest Reyes if he did not cooperate.
In Christian v. Tohmeh, 191 Wash. App. 709 (2015), this court dismissed, on
summary judgment, a tort of outrage claim against a physician. In so doing, we analyzed
a number of foreign decisions, in which the courts also dismissed outrage claims against
physicians. The conduct alleged against Dr. Christopher Spitters and other health district
providers is no more egregious than the conduct alleged against the physicians in
Christian v. Tomeh and the foreign decisions. Therefore, we conclude that Judith Reyes
fails to establish an issue of fact as to her claims against Dr. Spitters and the Yakima
Health District.
Issue 3: Whether the trial court erred in dismissing Judith Reyes' wrongful death
claim?
Answer 3: No.
The trial court dismissed Judith Reyes' wrongful death action based on the statute
of limitations. In so ruling, the trial court relied on this court's decision in Fast v.
Kennewick Public Hospital District, 188 Wash. App. 43, 354 P.3d 858 (2015). The
Supreme Court reversed this court's decision at 187 Wash. 2d 27, 384 P.3d 232 (2016). The
defendants now concede that, at least for purposes of this appeal, the statute of limitations
does not bar Reyes' wrongful death action.
A reviewing court may affirm the trial court on any grounds established by the
15
No. 33697-2-111
Reyes v Yakima Health Dist.
pleadings and supported by the record. In re Marriage ofRideout, 150 Wn.2d 337,358,
77 PJd 1174 (2003); Truck Insurance Exchange v. VanPort Homes, Inc., 147 Wash. 2d
751, 766, 58 PJd 276 (2002). We affirm the trial court's dismissal of the wrongful death
action on other grounds. Judith Reyes fails to raise an issue of fact as to any wrongful
conduct of the Yakima Health District or Dr. Christopher Spitters.
Washington's wrongful death statute, RCW 4.20.010, declares:
When the death of a person is caused by the wrongful act, neglect, or
default of another his or her personal representative may maintain an action
for damages against the person causing the death; and although the death
shall have been caused under such circumstances as amount, in law, to a
felony.
A plaintiff has no cause of action against a defendant, under the wrongful death statute, in
the abstract. Instead, the plaintiff must also establish an underlying claim. The plaintiff
must show that the defendant breached a duty to the decedent. In re Estate ofLee v. City
ofSpokane, 101 Wash. App. 158, 174, 2 P.3d 979 (2000). In other words, the plaintiff
must prove the death was wrongful. In re Estate of Lee v. City of Spokane, 101 Wash. App.
at 174.
Judith Reyes fails to create an issue of fact as to any negligence on the part of the
Yakima Health District or Christopher Spitters. Therefore, she has created no issue of
fact as to any wrongful act or neglect leading to Jose Reyes' death.
16
No. 33697-2-111
Reyes v Yakima Health Dist.
I
CONCLUSION
We affirm the dismissal of all claims against the defendants on summary
judgment.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, C.J. (}-
WE CONCUR:
17 | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125912/ | Case: 15-50930 Document: 00513874779 Page: 1 Date Filed: 02/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50930 FILED
Summary Calendar February 14, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEREMY LEE MARTINEZ, also known as Jeremy Martinez,
Defendant-Appellant
c/w No. 15-50931
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEREMY LEE MARTINEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-34-1
USDC No. 7:08-CR-140-2
Case: 15-50930 Document: 00513874779 Page: 2 Date Filed: 02/14/2017
No. 15-50930
c/w No. 15-50931
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Jeremy Lee Martinez appeals the consecutive 10-month and 14-month
sentences he received upon revocation of his terms of supervised release. For
the first time on appeal, he contends that his sentences are procedurally and
substantively unreasonable. We review these newly raised arguments for
plain error only. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009). To establish plain error, Martinez must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. at 135.
Martinez raises two issues that he acknowledges are foreclosed by our
precedent, but presents them in order to preserve them for possible further
review. First, he challenges the requirement that a post-sentencing objection
is necessary to preserve an error for appellate review. That argument is
foreclosed by our decision in Whitelaw, 580 F.3d at 260. Second, he argues that
a presumption of reasonableness should not be afforded to a consecutive,
within-guidelines revocation sentence because the policy statements in
U.S.S.G. § 7B1.1 lack an empirical basis, but concedes that the issue is
foreclosed by our decision in United States v. Mondragon-Santiago, 564 F.3d
357, 366 (5th Cir. 2009).
Martinez also argues that the district court offered only a cursory
explanation for its sentences and argues that the district court failed to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
2
Case: 15-50930 Document: 00513874779 Page: 3 Date Filed: 02/14/2017
No. 15-50930
c/w No. 15-50931
consider the 18 U.S.C. § 3553(a) factors when imposing his sentences. He fails
to show any reversible plain error. See Puckett, 556 U.S. at 135.
Because the revocation sentences fall within the advisory guidelines
range, little additional explanation was required. See United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). The district court implicitly considered the
permissible § 3553(a) factors when it listened to Martinez’s arguments in
mitigation and the Government’s reminder that previous revocations of his
supervised release were based on the same reporting violations. See Whitelaw,
580 F.3d at 262-65. Moreover, Martinez cannot show that his substantial
rights were affected or that any error seriously affected the public reputation
of the proceedings as nothing in the record suggests that a more thorough
explanation would have resulted in lesser sentences. See id. at 264-65.
Additionally, Martinez fails to show that the combined 24-month
sentence is substantively unreasonable. The district court had the discretion
to run his sentences consecutively. See id. at 260-61. Because each revocation
sentence falls within the advisory range and is consistent with the Guidelines’
policy regarding consecutive sentences, it is entitled to a presumption of
reasonableness. See U.S.S.G. § 7B1.4(a), (b)(1); U.S.S.G. § 7B1.3(f); see also
United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Martinez’s
argument that the total sentence is excessive and greater than necessary to
achieve the sentencing goals of § 3553(a) fails to rebut the presumption of
reasonableness attached to his sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009).
AFFIRMED.
3 | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4156671/ | #27691-a-LSW
2017 S.D. 10
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DANIEL NEIL CHARLES a/k/a
DANIEL HEINZELMAN a/k/a
DANIEL INGALLS, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
****
THE HONORABLE JEROME A. ECKRICH, III
Judge
****
MARTY J. JACKLEY
Attorney General
ANN C. MEYER
Assistant Attorney General
ROBERT MAYER
Deputy Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ALICIA A. D’ADDARIO
BRYAN A. STEVENSON
JOHN W. DALTON of
Equal Justice Initiative
Montgomery, Alabama
and
BRAD SCHRIEBER of
Schreiber Law Office
Pierre, South Dakota
and
ROBERT VAN NORMAN
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
ARGUED ON
JANUARY 10, 2017
OPINION FILED 03/29/17
#27691
WILBUR, Justice
[¶1.] In 2000, Daniel Charles received a mandatory sentence of life in prison
for first-degree murder. Charles was 14 years old when he committed the offense.
In 2012, the United States Supreme Court issued Miller v. Alabama, which barred
mandatory life sentences against juvenile homicide offenders. 567 U.S. 460, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012). Charles filed a motion to have his sentence
corrected, and the court held a hearing. In 2015, the sentencing court resentenced
Charles to 92 years in prison. Charles appeals. We affirm.
Background
[¶2.] On April 17, 2000, a jury found Charles guilty of the 1999 murder of
Duane Ingalls, Charles’s stepfather. Charles was 14 years old when he shot and
murdered Ingalls. The sentencing court sentenced Charles to a mandatory sentence
of life in prison. This Court affirmed Charles’s conviction in State v. Charles, 2001
S.D. 67, 628 N.W.2d 734. In May 2011, Charles filed a motion in circuit court to
correct an illegal sentence. He alleged that his sentence violated the Eighth
Amendment prohibition against cruel and unusual punishment. In January 2015,
the circuit court granted Charles’s motion because the United States Supreme
Court declared unconstitutional mandatory life-without-parole sentences for
juvenile homicide offenders. See Miller, 567 U.S. at ___, 132 S. Ct. at 2469.
[¶3.] The sentencing court held a resentencing hearing on October 21-23,
2015. The same judge who had presided over Charles’s 2000 trial also presided over
Charles’s resentencing. At the hearing, both the State and Charles presented
evidence concerning Charles’s childhood and the impact of that childhood on the
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nature of the crime. The State and Charles presented expert testimony related to
Charles’s emotional, social, psychological, and intellectual attributes as a juvenile
offender and to his changed, matured character as an adult. Charles presented
expert testimony that his behavior in prison for the past 16 years showed that
Charles could live a meaningful and productive life outside prison. At the
conclusion of the resentencing hearing, the court allowed oral victim-impact
statements. The court recognized that one person making a statement—Ingalls’s
cousin—did not fit within the statutory definition of “victim” under SDCL 23A-27-
1.1. The court allowed the cousin’s oral statement over Charles’s objection.
[¶4.] On October 30, 2015, the court orally sentenced Charles to 92 years in
prison. The court recognized that:
Miller vs. Alabama refines the [c]ourt’s responsibility
when determining an appropriate sentence for a juvenile killer.
As [Charles’s] prehearing sentencing memorandum notes,
relevant, mitigating factors of youth include: Lack of maturity,
an underdeveloped sense of responsibility, which implies the
tendency to engage in behavior that is reckless, impulsive, or
risky.
The Miller Court identified vulnerability to negative
influences, outside pressures coupled with limited control over
environment, and an inability to extricate oneself from horrific,
crime-producing circumstances.
Miller observed that a child’s character is not as well-
formed as an adult’s. Consequently, a juvenile’s actions are less-
likely to evidence irretrievable depravity. These characteristics
diminish the penological justifications of a sentence:
Retribution, deterrence, and incapacitation.
Finally, Miller says, “Life without parole foreswears the
rehabilitative ideal and requires that an offender” - - “requires a
finding that an offender is incorrigible which is at odds with the
child’s capacity for change.”
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#27691
[¶5.] The court remarked that it accepted the principles of Miller “in general
to youth.” The court, however, did not find the characteristics of youth “universally
applicable to each and every juvenile, whether that juvenile is a murderer or a
prodigy.” The court concluded that the general characteristics of youth did not
cause Charles to pull the trigger. The court also did not believe that Charles’s
murder of Ingalls was “inexorably determined by youthful brain or undeveloped
character.” The court said, “To find otherwise, denies the existence of will.” In the
court’s view, Charles was not a “child of tender years when he murdered his
father[.]” The court identified that “an objective observer, giving Daniel Charles all
the characteristics of youth, and even giving Daniel Charles - - giving credence to
Daniel Charles’ latest version of the events can yet conclude this was a cold-blooded
murder, driven less by impulsivity than by a specific, long-formed intent to murder
either Duane or his mother or others.”
[¶6.] The court recalled evidence from Charles’s juvenile transfer hearing.
At the hearing, Dr. Steven Manlove, who had completed a psychiatric examination
of Charles, opined that Charles’s murder of Ingalls was not an impulsive event.
Rather, Charles exhibited chronic problems with manipulation, explosive anger,
conduct disorder, and antisocial traits. The sentencing court noted that “after
hearing all of the psychological experts, [it] cannot ignore the chronicity of those
problems identified over 16 years ago.” The court found that, in regard to Charles,
“those traits observed in his childhood continue into adulthood.”
[¶7.] The court stated the goals of sentencing in general and noted that even
if it assumed Miller stood for the proposition that the “rehabilitation ideal for a
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juvenile offender is preeminent over all the other goals of sentencing,” the court
“must consider all the pertinent goals of sentencing.” The gravity of the offense,
according to the court, “is great, notwithstanding any lessened moral culpability
associated with mitigating qualities of youth.” Based on the evidence, the court
concluded that “[s]ociety’s not yet safe for Mr. Charles.” The court highlighted that
by Charles’s “own admission, he has demonstrated the capacity for past and
continuing violence in and out of prison.” The court found incapacitation “a
continuing factor of import.” The court sentenced Charles to 92 years,
“notwithstanding Daniel Charles’ chronological age at the time” because “[s]ociety
requires that a crime of this gravity under the circumstances presented . . .
demands substantial retribution.” The court granted Charles credit for the 16 years
he had already served.
[¶8.] Charles appeals, and we reorder the issues as follows:
1. Whether a 92-year sentence is categorically unconstitutional
for a 14-year-old child?
2. Whether a sentence of 92 years is the legal equivalent of a
sentence of life without parole?
3. Whether the sentencing court erred because it disregarded
the mitigating qualities of youth set forth in Miller v.
Alabama and other factors?
4. Whether a 92-year sentence is grossly disproportionate to the
gravity of the offense?
5. Whether the sentencing court erred when it permitted an
oral victim-impact statement by an individual outside the
statutory definition of a victim?
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#27691
Analysis
1. Whether a 92-year sentence is categorically unconstitutional
for a 14-year-old child?
[¶9.] Charles begins this issue by stating, “The constitution categorically
prohibits sentencing a 14-year-old child to die in prison.” We disagree. The United
States Supreme Court categorically barred the death penalty for juvenile offenders.
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). But the
Supreme Court has not held that the Eighth Amendment prohibits a sentence of life
in prison without the possibility of parole for a juvenile homicide offender. See
Miller, 567 U.S. at ___, 132 S. Ct. at 2469. Nor has the Supreme Court barred
discretionary sentences to a lengthy term of years. Therefore, we do not find
Charles’s 92-year sentence categorically unconstitutional.
[¶10.] Nonetheless, Charles also contends that his 92-year sentence is
categorically unconstitutional because early adolescents are developmentally
distinct from older adolescents. He argues that “14-year-olds universally fall into
the category of ‘juvenile offenders whose crimes reflect the transient immaturity of
youth,’ and for whom a death-in-prison sentence would be unconstitutional.”
Charles was not sentenced to death. And Charles cites no case in which the United
States Supreme Court or this Court has held that a defendant sentenced to a
discretionary term of years with a possibility of parole at 60 years old is per se
unconstitutional just because the offender was 14 years old at the time of the
offense. We decline to hold that a discretionary, 92-year sentence standing alone is
categorically unconstitutional against a 14-year-old offender. See United States v.
Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016) (declining to hold that a 600-month
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#27691
sentence falls within Miller’s categorical ban on mandatory life sentences), petition
for cert. docketed, No. 16-6725 (U.S. Nov. 4, 2016).
2. Whether a sentence of 92 years is the legal equivalent of a
sentence of life without parole?
[¶11.] Charles argues that his 92-year sentence is equivalent to a sentence of
life without parole because he will be 106 years old before he completes his entire
sentence. Charles acknowledges that he is eligible for parole at age 60. But he
claims that release at age 60 is a geriatric release and the functional equivalent of
life without parole in violation of the Eighth Amendment. He also argues that such
release violates the principles in Graham, Miller, and Montgomery because release
at age 60 provides only grim prospects for any meaningful future outside prison.
[¶12.] Even if Charles’s 92-year sentence is equivalent to a sentence of life
without parole, that alone does not mean his sentence is unconstitutional under
Eighth Amendment precedent. The United States Supreme Court bars mandatory
life sentences without parole against juvenile homicide offenders, not discretionary
sentences of life without parole. See Miller, 567 U.S. at ___, 132 S. Ct. at 2469;
State v. Springer, 2014 S.D. 80, ¶ 15, 856 N.W.2d 460, 466 (recognizing that
“[n]either Graham nor Miller explicitly . . . apply to the functional equivalent of life
without parole (i.e. ‘de facto’ life sentences)”).
[¶13.] In response, Charles asks this Court to subscribe to the view adopted
by other courts and hold that “lengthy term-of-year sentences violate the Eighth
Amendment when imposed on a juvenile.” We recently examined a similar
argument in Springer. 2014 S.D. 80, ¶¶ 20-22, 856 N.W.2d at 468-69. Springer
received a 216-year sentence with parole eligibility at age 49. Springer argued that
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#27691
he received a sentence equivalent to a sentence of life without parole in violation of
Miller and Graham. He directed this Court to cases from other jurisdictions,
namely People v. Caballero, 282 P.3d 291 (Cal. 2012), and State v. Ragland, 836
N.W.2d 107 (Iowa 2013). After recognizing a split of authority on whether Miller
extends to de facto life sentences and discretionary life sentences without the
possibility of parole, we “decline[d] the invitation to join jurisdictions holding Roper,
Graham, and Miller applicable or inapplicable to de facto life sentences.” Springer,
2014 S.D. 80, ¶ 25, 856 N.W.2d at 470. We said, “Springer’s parole eligibility at age
49 prevents us from concluding that he received a de facto life sentence.” Id. ¶ 25
n.8. Similarly, here, we decline to hold that Charles’s 92-year sentence with a
possibility of parole at age 60 is a de facto life sentence.
[¶14.] Yet Charles also claims that his 92-year sentence with a possibility of
parole at age 60 fails to provide a meaningful opportunity for release. He argues
that under the Eighth Amendment, a meaningful opportunity for release requires
that a juvenile defendant have an “opportunity to truly reenter society” and have a
“meaningful life outside of prison.” See Casiano v. Comm’r of Correction, 115 A.3d
1031, 1047 (Conn. 2015). Charles also highlights that the United States Sentencing
Commission equates a 470-month sentence (39.17 years) to a life sentence, which, to
Charles, supports that a sentence to a lengthy term of years fails to provide a
meaningful opportunity for release.
[¶15.] In Springer, we examined the effect of the phrase “meaningful
opportunity for release[.]” 2014 S.D. 80, ¶ 23, 856 N.W.2d at 469. Springer had
argued that parole at age 49 does not comport with the requirement in Graham that
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#27691
a juvenile offender have a meaningful opportunity to obtain release. Id. (citing
Graham, 560 U.S. at 75, 130 S. Ct. at 2030). We noted that under Graham, the
United States Supreme Court said that juvenile offenders must have a “meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.”
Id. (quoting 560 U.S. at 75, 130 S. Ct. at 2030) (emphasis added)). We interpreted
this phrase to mean that the offender have a “realistic” opportunity. Id. “A State
need not guarantee the offender eventual release, but if it imposes a sentence of life
it must provide him or her with some realistic opportunity to obtain release before
the end of that term.” Id. (quoting Graham, 560 U.S. at 82, 130 S. Ct. at 2034)
(emphasis added). We concluded that Springer had a meaningful opportunity for
release because he had the opportunity for parole at age 49 and presented no
evidence that his opportunity for release was unrealistic. Id. ¶ 24. More recently,
we concluded that an 80-year sentence for a juvenile homicide offender with an
opportunity for release at age 55 did not constitute a de facto life sentence. State v.
Diaz, 2016 S.D. 78, ¶ 58, 887 N.W.2d 751, 768.
[¶16.] “A life sentence is commonly understood to mean spending the rest of
one’s life in prison.” Boneshirt v. United States, No. CIV 13-3008-RAL, 2014 W.L.
6605613, at *8 (D.S.D. Nov. 19, 2014) (citing Black’s Law Dictionary 1485 (9th ed.
2009)). This is not to say that a sentence to a term of years for a juvenile homicide
offender will always pass constitutional muster. For example, “term sentences
virtually guaranteeing an offender will die in prison without meaningful
opportunity for release could be considered a life sentence for the purpose of
applying Graham or Miller.” Id. at *8-9 (opportunity for release at age 65 is not a
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de facto life sentence). Because Charles has the opportunity for release at age 60,
his sentence does not “guarantee[] he will die in prison without any meaningful
opportunity to obtain release.” See Graham, 560 U.S. at 79, 130 S. Ct. at 2033;
accord Springer, 2014 S.D. 80, ¶ 25, 856 N.W.2d at 70.
3. Whether the sentencing court erred because it disregarded
the mitigating qualities of youth set forth in Miller v.
Alabama and other factors?
[¶17.] Charles argues that the sentencing court failed to consider the
mitigating qualities of youth because the court “briefly listed the Miller factors” and
recognized the factors only “in general to youth.” Charles contends that the
sentencing court had no discretion to conclude that the mitigating factors of youth
did not apply to Charles because the evidence diminished the penological
justifications for Charles’s harsh sentence. According to Charles, the court
inappropriately focused on the incapacitation goal of sentencing and clearly erred
when it concluded that Charles demonstrated “continuing violence in and out of
prison.” Charles emphasizes that his rehabilitation is “actively ongoing.” He “has
matured significantly and engaged in programming to further himself while in
prison” and has spent over half of his life in prison with a record devoid of violence.
[¶18.] A sentencing court has broad discretion when fashioning an
appropriate sentence. The court must “acquire a thorough acquaintance with the
character and history of the [person] before it.” State v. Lemley, 1996 S.D. 91, ¶ 12,
552 N.W.2d 409, 412 (quoting State v. Chase in Winter, 534 N.W.2d 350, 354 (S.D.
1995)). “This includes the circumstances of the offense ‘together with the character
and propensities of the offender.’” State v. Anderson, 1996 S.D. 46, ¶ 32, 546
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#27691
N.W.2d 395, 403 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 2932,
49 L. Ed. 2d 859 (1976)).
[¶19.] Although Miller did not categorically bar discretionary life sentences or
de facto life sentences against juvenile offenders, Miller made clear “that imposition
of a State’s most severe penalties on juvenile offenders cannot proceed as though
they were not children.” 567 U.S. at ___, 132 S. Ct. at 2466. “Sentencing courts
must consider what the United States Supreme Court termed the ‘mitigating
qualities of youth.’” Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465 (quoting
Miller, 567 U.S. at ____, 132 S. Ct. at 2467); accord Jefferson, 816 F.3d at 1019-20.
Those qualities include:
(1) the chronological age of the juvenile, (2) the juvenile’s
immaturity, impetuosity, irresponsibility, and recklessness, (3)
family and home environment, (4) incompetency in dealing with
law enforcement and the adult criminal justice system, (5) the
circumstances of the crime, and, most importantly, (6) the
possibility for rehabilitation.
Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465-66 (citing Miller, 567 U.S. at ____,
132 S. Ct. at 2467-69).
[¶20.] From our review, the record does not support Charles’s claim that the
sentencing court ignored “the distinctive attributes of youth” when sentencing
Charles. The two-day resentencing hearing focused largely on the applicability of
the Miller factors in Charles’s case, and the court’s oral sentence reflects the court’s
understanding and evaluation of those factors. The court listened to multiple
expert witnesses describe Charles’s youth-related characteristics in connection with
the commission of the crime and Charles’s prospects for rehabilitation. These
experts based their opinions on, among other things, hours of interview time with
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Charles and on their review of the extensive evidence from the 2000 trial. The court
also weighed Charles’s status as a juvenile offender in reference to the court’s
memory and knowledge of Charles’s character from the proceedings surrounding
the 2000 trial and the evidence submitted at that trial.
[¶21.] Nonetheless, Charles argues that the sentencing court violated the
requirements of Miller because the court’s reasoning is clearly erroneous. Charles
argues that both the State and defense experts agreed that at the time of the
offense, Charles was more vulnerable and immature than the average 14 year old.
He also claims that the uncontroverted evidence established that Charles would not
be a danger to society. He claims that both the State and defense witnesses agreed
that Charles’s home environment in South Dakota was dysfunctional and included
domestic violence and abuse. In Charles’s view, therefore, a 35-year sentence or a
sentence that would have provided an opportunity for release after 20 or 30 years
would comport with the requirements of Miller. A sentence of 35 years would mean
Charles would be released on probation after serving 17.5 years. When the
sentencing court issued its second amended judgment of conviction resentencing
Charles, Charles had served 16 years and three months.
[¶22.] From our review of the evidence and the court’s oral ruling, the court
applied the law in Miller to Charles in particular before it imposed a harsh penalty.
The court specifically acknowledged “the lessened moral culpability associated with
the mitigating qualities of youth,” but gave more weight to its finding that Charles
“still presents a condition of moral atrophy[.]” The court identified, and the
evidence supports, that Charles acknowledged that “he continues to manipulate,”
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“explodes in anger if his buttons are pushed,” and has “only recently stopped lying.”
The court also gave weight to the gravity of the offense, finding it to be a
“premeditated, deliberate, intentional, sniper killing.”
[¶23.] The circuit court believed that “rehabilitation is, if anything, only in its
nascence.” Charles’s “lifelong history of lying” concerned the court such that the
court found it “impossible to engage the sincerity of Daniel Charles’ remorse or
expressions of changed behavior.” We note again that the sentencing judge is the
same judge who presided over Charles’s murder trial. The court also “seriously”
questioned Charles’s “rendition of the relationship between he and [the victim].”
The court did “not accept wholesale Daniel Charles’ description of the pervasive,
knock-down, drag-out, physical combat he describes between father and son.”
These are credibility determinations for the court. The court indicated, however,
that even if it accepted the abuse as described, “by no stretch of the imagination can
a relationship between the father and son be described as a horrific, crime-
producing setting.”
[¶24.] Because the court’s oral sentence reflects the court’s understanding
and evaluation of the Miller factors and because the court sentenced Charles after
acquiring a thorough acquaintance with Charles’s history and character, we
conclude that the court did not abuse its discretion or violate the requirements of
Miller.
4. Whether a 92-year sentence is grossly disproportionate to the
gravity of the offense?
[¶25.] Charles argues that his sentence is grossly disproportionate in
violation of the Eighth Amendment because the evidence presented at the
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resentencing hearing established that Charles’s “crime reflects transient
immaturity.” Charles emphasizes the mitigating evidence presented at the
resentencing hearing and the vulnerabilities associated with being a 14-year-old
offender. He also directs this Court to other cases in South Dakota in which
juvenile offenders were sentenced less severely, “further illustrating that the
sentence is disproportionate.”
[¶26.] Charles acknowledges that this Court determines whether a sentence
is grossly disproportionate in violation of the Eighth Amendment by comparing the
gravity of the offense against the harshness of the penalty as most recently
explained in State v. Chipps, 2016 S.D. 8, 874 N.W.2d 475, and State v. Rice, 2016
S.D. 18, ¶ 17, 877 N.W.2d 75, 81. But, according to Charles, Chipps and Rice do not
apply when reviewing the proportionality of a juvenile sentence under the Eighth
Amendment; Roper, Graham, Miller, and Montgomery control.
[¶27.] In Roper, Graham, and Miller, the United States Supreme Court held
that the Eighth Amendment prohibits certain sentences for juvenile offenders
regardless of the juvenile’s character or the circumstances of the crime. Roper, 543
U.S. 551, 125 S. Ct. 1183 (barring the imposition of the death penalty); Graham,
560 U.S. 48, 130 S. Ct. 2011 (banning life sentences without parole against
nonhomicide juvenile offenders); Miller, 567 U.S. at ___, 132 S. Ct. 2455 (banning
sentencing schemes that impose mandatory life sentences against juvenile homicide
offenders). Montgomery declared that Miller applies retroactively. Montgomery v.
Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). In no case,
however, has the United States Supreme Court identified a different proportionality
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standard under the Eighth Amendment when a juvenile defendant asserts a
disproportionality claim based on the character of the juvenile and the
circumstances of the crime. So to address Charles’s disproportionality claim, we
apply this Court’s and the United States Supreme Court’s Eighth Amendment
precedent.
[¶28.] Under the Eighth Amendment to the United States Constitution, “a
criminal sentence must be proportionate to the crime for which the defendant has
been convicted.” Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed.
2d 637 (1983). This does not mean “strict proportionality between crime and
sentence.” Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L.
Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment).
The Eighth Amendment “forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Id. If an appearance of gross disproportionality
results after the initial comparison, only then will we compare a defendant’s
sentence to those imposed on other criminals in the jurisdiction. Chipps, 2016 S.D.
8, ¶¶ 34, 38, 874 N.W.2d at 487, 489. “In conducting the threshold comparison
between the crime and the sentence, we also consider other conduct relevant to the
crime.” State v. Garreau, 2015 S.D. 36, ¶ 12, 864 N.W.2d 771, 776. We, however,
do not consider a disparity between Charles’s sentence and other criminals unless
Charles’s sentence appears grossly disproportionate. See Rice, 2016 S.D. 18, ¶ 17,
877 N.W.2d at 81. Similarly, we do not review the weight the sentencing court gave
to mitigating factors or to the history and characteristics of Charles in particular.
See id. ¶ 18.
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[¶29.] “[T]he gravity of the offense refers to the offense’s relative position on
the spectrum of all criminality.” Chipps, 2016 S.D. 8, ¶ 35, 874 N.W.2d at 487. The
harshness of the penalty looks “to the penalty’s relative position on the spectrum of
all permitted punishments.” Id. ¶ 37. Because “neither a sentence of death nor a
sentence of mandatory life is a permitted punishment against a juvenile, . . . the
spectrum of permitted punishments does not include or end at death as it would in
our review of an adult sentence under the Eighth Amendment.” Diaz, 2016 S.D. 78,
¶ 54, 887 N.W.2d at 767. The harshest penalty a juvenile offender could receive for
this State’s most severe crime is “a term of years in the state penitentiary, and a
fine of fifty thousand dollars[.]” SDCL 22-6-1. When a defendant receives a
sentence to a term of years, the comparison for purposes of proportionality is “one of
line-drawing.” Helm, 463 U.S. at 294, 103 S. Ct. at 3012. “[T]he question is one of
degree—e.g., ‘it is clear that a 25-year sentence generally is more severe than a 15-
year sentence[.]’” Chipps, 2016 S.D. 8, ¶ 37, 874 N.W.2d at 488 (quoting Helm, 463
U.S. at 294, 103 S. Ct. at 3012). In judging the harshness of the penalty, we also
consider the possibility of parole. Id.
[¶30.] A jury convicted Charles of first-degree murder. Murder is “‘the
highest crime against the law of nature, that man is capable of committing.’” Rice,
2016 S.D. 18, ¶ 14, 877 N.W.2d at 80 (quoting 4 William Blackstone, Commentaries
*177-78). The murder in this case involved, as the court noted, a “premeditated,
deliberate, intentional, sniper killing.” On the relative spectrum of criminality,
Charles’s crime is on the high end. The court sentenced Charles to 92 years in
prison. He will be eligible for parole when he is 60 years old. The penalty sits on
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the harsher end of the spectrum. But our comparison of the gravity of the offense
against the harshness of the penalty does not lead to an inference of gross
disproportionality; therefore, our review ends. See Chipps, 2016 S.D. 8, ¶ 38,
874 N.W.2d at 489.
5. Whether the sentencing court erred when it permitted an
oral victim-impact statement by an individual outside the
statutory definition of a victim?
[¶31.] Although we review a court’s evidentiary rulings for an abuse of
discretion, the question whether a court misapplied a rule of evidence is reviewed de
novo. See State v. Packed, 2007 S.D. 75, ¶ 24, 736 N.W.2d 851, 859. Under SDCL
19-19-402, -403, evidence is generally admissible so long as it is relevant and not
unfairly prejudicial. SDCL 23A-27-1.1 provides that “the victim has the right to
orally address the court concerning the emotional, physical, and monetary impact of
the defendant’s crime upon the victim and the victim’s family, and may comment
upon the sentence which may be imposed upon the defendant.” A victim is defined
as “the actual victim or the parent, spouse, next of kin, legal or physical custodian,
guardian, foster parent, case worker, victim advocate, or mental health counselor of
any actual victim who is incompetent by reason of age or physical condition, who is
deceased, or whom the court finds otherwise unable to comment.” Id.
[¶32.] During Charles’s hearing, the sentencing court allowed Kari Jensen
Thomas to make an oral victim-impact statement. The court identified that
Thomas was Ingalls’s cousin and, therefore, not within the definition of a “victim”
under SDCL 23A-27-1.1. The court overruled Charles’s objection to her statement,
ruling that it would grant the State’s request. Charles argues that by ignoring the
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dictates of SDCL 23A-27-1.1, the court violated his constitutional right to a fair
trial. He claims he was prejudiced by Thomas’s oral statement because it was
“highly inflammatory.” Thomas stated she was speaking on behalf of “close to 100
Ingalls and Jensen family members” and recounted the continued fear the family
members experience about Charles being released. In response, the State claims
that the sentencing court’s departure from the statute was justified as a “practical
solution” to reduce the disappointment for those family members unable to speak in
court. The State also contends that the court did not violate the spirit and intent of
SDCL 23A-27-1.1.
[¶33.] Victim-impact evidence related to the defendant’s personal
characteristics was, until 1991, per se inadmissible during the penalty phase of a
capital trial. Payne v. Tennesee, 501 U.S. 808, 818, 111 S. Ct. 2597, 2604, 115 L.
Ed. 2d 720 (1991). In Payne, however, the United States Supreme Court rejected
this prohibition, concluding that “the assessment of harm caused by the defendant
as a result of the crime charged has understandably been an important concern of
the criminal law . . . in determining the appropriate punishment.” Id. at 819, 111 S.
Ct. at 2605. The Court also considered that “the sentencing authority has always
been free to consider a wide range of relevant material.” Id. at 820-21, 111 S. Ct. at
2606. Therefore, the Supreme Court left the issue to the states—“if the State
chooses to permit the admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per se bar.” Id. at 827,
111 S. Ct. at 2609.
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[¶34.] Charles is correct that the definition of a victim in SDCL 23A-27-1.1
does not include a cousin of the actual victim. But nothing in SDCL 23A-27-1.1
limits a sentencing court’s “wide discretion with respect to the type of information
used as well as its source.” See State v. McCrary, 2004 S.D. 18, ¶ 29, 676 N.W.2d
116, 125 (quoting State v. Arabie, 2003 S.D. 57, ¶ 21, 663 N.W.2d 250, 257).
Moreover, even if the court improperly admitted Ingalls’s cousin’s statement, an
improperly-admitted victim impact statement will not “rise to the level of a
constitutional deprivation” unless the statement is “so unduly prejudicial that it
renders the trial fundamentally unfair.” State v. Berget, 2013 S.D. 1, ¶ 83, 826
N.W.2d 1, 26 (quoting Payne, 501 U.S. at 825, 111 S. Ct. at 2608); People v. Willis,
569 N.E.2d 113, 117 (Ill. App. Ct. 1991) (“Any error in the presentation of this
statement, however, was harmless, particularly since the statement was presented
to a judge, rather than to a jury.”).
[¶35.] In addition to Thomas’s oral statement, Ingalls’s sister spoke. She,
like Thomas, shared concerns on behalf of the entire Ingalls and Jensen families.
She, like Thomas, recounted the gruesome details of the crime. Ingalls’s sister
explained how Charles’s crime impacted particular family members and
emphasized the fear that every family member continues to experience with the
thought of Charles being released. The record also contains many written letters
stating the same sentiments. Because of Ingalls’s sister’s oral statement and the
letters, the admission of Thomas’s oral statement was not so prejudicial that it
deprived Charles of a constitutional right.
[¶36.] Affirmed.
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[¶37.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
-19- | 01-03-2023 | 03-30-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125982/ | J-S95041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT CANTAFIO, :
:
Appellant : No. 218 EDA 2016
Appeal from the Judgment of Sentence October 16, 2015
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0001544-2015
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 14, 2017
Robert Cantafio (“Cantafio”) appeals from the judgment of sentence
imposed following his conviction of two counts of possession of a controlled
substance with intent to deliver.1 We affirm in part, and vacate in part.
On August 5, 2015, following a jury trial, Cantafio was convicted of
two counts of possession with intent to deliver. The trial court imposed an
aggregate prison sentence of three to six years, followed by three years of
probation, and ordered Cantafio to pay (1) $226 to the Pennsylvania State
Police for “lab fees;” and (2) $44 to the Delaware County Criminal
Investigation Division (for the cash paid to Cantafio by an undercover officer
during a controlled drug buy which led to his arrest). See Sentencing Order,
10/16/15. Cantafio filed a timely Motion for reconsideration, which the trial
court denied on December 8, 2015. Cantafio thereafter filed a timely Notice
1
See 35 P.S. § 780-113(a)(30).
J-S95041-16
of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.2
On appeal, Cantafio raises the following issues for our review:
1. Whether the restitution [O]rder is illegal because the County
of Delaware, the putative beneficiary of $270.00 [in]
restitution[,] is not a [“]victim[”] pursuant to the Crime
Victims Act[,] 18 Pa.C.S.A. [§] 11.101[?]
2. Whether the [t]rial [c]ourt erred when it failed to apply the []
Recidivism Risk Reduction Incentive [(“RRRI”)] because []
Cantafio had a second degree felony conviction for
aggravated assault on his record from the year 2000? []
Brief for Appellant at 5.
In his first issue, Cantafio contends that the portion of the Sentencing
Order imposing restitution is invalid because the Commonwealth is not a
“victim” under the Crime Victims Acts. Id. at 8. Cantafio asserts that the
restitution Order is a nullity, and should be excised from the judgment of
sentence. Id. at 9. Cantafio claims that, because the restitution Order is
2
In his Concise Statement, Cantafio raised only a single issue, challenging
the sufficiency of the evidence. Cantafio did not raise any of the issues he
now presents for our review. However, as each of the issues he now raises
presents a challenge to the legality of his sentence, we may review them.
See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)
(holding that a challenge to the legality of a sentence is never waived so
long as a court has jurisdiction to address the claim); see also
Commonwealth v. Dietrich, 970 A.2d 1131, 1133 (Pa. 2009) (holding that
a claim that restitution was entered without jurisdiction implicates the
legality of sentence); Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.
Super. 2014) (holding that a claim that the sentencing court failed to impose
a RRRI minimum implicates the legality of sentence); Commonwealth v.
Garzone, 993 A.2d 1245, 1255 (Pa. Super. 2010) (holding that a claim that
the trial court lacked authority to impose lab fees presents a challenge to the
legality of the sentence).
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J-S95041-16
integral to the sentence imposed, its removal will disrupt the trial court’s
overall sentencing scheme. Id. at 10. On this basis, Cantafio argues that
the judgment of sentence should be vacated, and the case remanded for
resentencing. Id.
“The determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Nuse, 976 A.2d 1191,
1193 (Pa. Super. 2009) (quoting Commonwealth v. Love, 957 A.2d 765,
767 (Pa. Super. 2008)).
Initially, we disagree with Cantafio’s characterization of the lab fees as
“restitution.” An order of restitution is intended “to provide the victim with
the fullest compensation for the loss.” 18 Pa.C.S.A.
§ 1106(c)(1)(i). However, lab fees are a “cost” related to the prosecution of
a criminal case. See 42 Pa.C.S.A. § 1725.3.3 “Costs are ‘penal sanctions’
arising from a criminal conviction and, therefore, the imposition of costs [is]
part of the judgment of sentence.” Garzone, 993 A.2d at 1255 (citation
omitted). Because the imposition of lab fees is mandatory, we conclude that
this aspect of Cantafio’s judgment of sentence is not illegal, and he is not
entitled to relief on this claim. See 42 Pa.C.S.A. § 1725.3.
3
Pursuant to the version of section 1725.3 that was in effect at the time of
Cantafio’s sentencing, a person who is convicted of “a violation of The
Controlled Substance, Drug, Device and Cosmetic Act shall, in addition to
any fines, penalties or costs, in every case where laboratory services were
required to prosecute the crime or violation, be sentenced to pay a criminal
laboratory user fee ….” 42 Pa.C.S.A. § 1725.3.
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J-S95041-16
With regard to Cantafio’s claim regarding the requirement that he pay
$44 to the Delaware County Criminal Investigation Division, we must
determine whether that entity was eligible to receive restitution under the
circumstances of this case. See Commonwealth v. Veon, 2016 Pa. LEXIS
2613, at *32 (Pa. 2016). The payment of restitution is governed by 18
Pa.C.S.A. § 1106, which provides, in relevant part, as follows:
(a) General rule.—Upon conviction for any crime wherein
property has been stolen, converted or otherwise unlawfully
obtained, or its value substantially decreased as a direct result of
the crime, or wherein the victim suffered personal injury directly
resulting from the crime, the offender shall be sentenced to
make restitution in addition to the punishment prescribed
therefor.
****
(c) Mandatory restitution.—
(1) The court shall order full restitution:
(i) . . . so as to provide the victim with the fullest compensation
for the loss. The court shall not reduce a restitution award by
any amount that the victim has received from the Crime Victim’s
Compensation Board or other governmental agency but shall
order the defendant to pay any restitution ordered for loss
previously compensated by the board to the Crime Victim’s
Compensation Fund or other designated account when the claim
involves a government agency in addition to or in place of the
board. . . .
(ii) If restitution to more than one person is set at the same
time, the court shall set priorities of payment. However, when
establishing priorities, the court shall order payment in the
following order:
(A) The victim.
(B) The Crime Victim’s Compensation Board.
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J-S95041-16
(C) Any other government agency which has provided
reimbursement to the victim as a result of the defendant’s
criminal conduct.
(D) Any insurance company which has provided reimbursement
to the victim as a result of the defendant’s criminal conduct.
****
(h) Definitions.—As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
****
“Victim.” As defined in section 479.1 of the act of April 9, 1929
(P.L. 177, No. 175), known as The Administrative Code of 1929.
The term includes the Crime Victim Compensation Fund if
compensation has been paid by the Crime Victim’s Compensation
Fund to the victim and any insurance company that has
compensated the victim for loss under an insurance contract.
18 Pa.C.S.A. § 1106 (footnote omitted).4
The Crime Victims Act defines “victim” as follows:
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim,
except when the parent or legal guardian of the child is the
alleged offender.
(3) A minor child who is a material witness to any of the
following crimes and offenses under 18 Pa.C.S.[A.] (relating to
crimes and offenses) committed or attempted against a member
of the child’s family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
4
Section 479.1, formerly codified at 71 P.S. § 180-9.1, has since been
recodified in the Crime Victims Act, 18 P.S. §§ 11.101, et seq.
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J-S95041-16
Section 3121 (relating to rape).
(4) A family member of a homicide victim, including stepbrothers
or stepsisters, stepchildren, stepparents or a fiancé, one of
whom is to be identified to receive communication as provided
for in this act, except where the family member is the alleged
offender.
18 P.S. § 11.103. A “[d]irect victim” is defined by the same section as “[a]n
individual against whom a crime has been committed or attempted and who
as a direct result of the criminal act or attempt suffers physical or mental
injury, death or the loss of earnings under this act.” Id. (emphasis added).
In construing these provisions, our Supreme Court recently ruled that
the term “victim,” as contemplated by section 11.103, “describes a human
being, not a government agency.” Veon, 2016 Pa. LEXIS 2613, at *47.
Thus, the Delaware County Criminal Investigation Division is not entitled to
receive restitution as a “victim.” Id.
The Court further determined that,
[a]lthough subsection 1106(c)(1)(i)’s provisions regarding
“victims” and “other government agenc[ies]” reveals that the
General Assembly intended that restitution reach certain
Commonwealth agencies in a manner that did not depend upon
identifying such agencies as “victims,” it nonetheless required
first that the agency in question have provided compensation to
a victim so defined.
Id.
Here, there is no evidence of record that the Delaware County Criminal
Investigation Division provided compensation to a “victim,” as that term has
been defined by the General Assembly. Therefore, the Delaware County
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J-S95041-16
Criminal Investigation Division was not entitled to restitution under section
1106, and the trial court erred by ruling otherwise. Accordingly, we vacate
the portion of Cantafio’s judgment of sentence ordering him to pay $44 in
restitution to the Delaware County Criminal Investigation Division.
In his second issue, Cantafio contends that the trial court erred in
denying him RRRI based on the prosecutor’s assertion that Cantafio had
been convicted of aggravated assault in 2000. Brief for Appellant at 13.
Cantafio asserts that “[t]he record does not reflect more than a single count,
makes no mention of and does not identify a victim, [and] the judicial
district is not identified.” Id. Cantafio claims that the trial court erred by
“presuming the very existence of such a conviction made [him] ineligible [for
RRRI,]” rather than “delv[ing] into the contested 2000 conviction.” Id.
Notably, Cantafio does not deny his 2000 conviction for aggravated
assault. Nor does he deny that such conviction rendered him ineligible for
RRRI. Rather, Cantafio essentially argues that the trial court lacked
sufficient evidence of his 2000 conviction. However, our review discloses
that, prior to sentencing, the trial court ordered a presentence investigation
report, which indicated that Cantafio pleaded guilty to aggravated assault on
September 20, 2000, and that he was sentenced to nine to 23 months in
prison, followed by two years of probation.5 Where a sentencing court is
5
The presentence investigation report further indicated that Cantafio had
been granted probation on three prior occasions, had his probation revoked
on three occasions, had been granted parole on three occasions, had his
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J-S95041-16
informed by a PSI, it is presumed that the court is aware of all appropriate
sentencing factors and considerations. See Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa. Super. 2009). Accordingly, because the trial court
was informed by a presentence investigation report, it was aware of
Cantafio’s 2000 conviction for aggravated assault and, necessarily, his
ineligibility for RRRI. Thus, Cantafio is not entitled to relief on this claim.
Judgment of sentence affirmed in part, and vacated as to the $44 in
restitution to the Delaware County Criminal Investigation Division only.
Superior Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
parole revoked on one occasion, and was serving four probationary
sentences at the time of sentencing.
-8- | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4023374/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONYA GIDDINGS, DOCKET NUMBER
Appellant, PH-1221-15-0411-W-1
v.
DEPARTMENT OF VETERANS DATE: August 10, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Sonya Giddings, Philadelphia, Pennsylvania, pro se.
Donald W. Taylor and Lauren Russo, Esquire, Philadelphia, Pennsylvania,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant applied for a GS-7 Veterans Service Representative position.
On August 12, 2014, the appellant filed a complaint with the agency’s Office of
Inspector General (OIG) alleging that the agency’s Philadelphia Regional
Office’s Human Resources (HR) office was mishandling her application because
she had been informed that her name was not on the certificate of eligibles. On
that same day, an employee of the HR office, C.M., became aware of the
appellant’s OIG complaint. Subsequently, the agency placed the appellant’s
name on the certificate of eligibles, and on September 18, 2014, the agency
interviewed the appellant for the position.
¶3 On September 26, 2014, the Philadelphia Regional Office instructed agency
personnel to make job offers for the Veterans Service Representative position.
The appellant was not selected to receive an offer. The appellant filed a
complaint with the Office of Special Counsel (OSC) alleging that her
nonselection was retaliation for filing the OIG complaint. The appellant filed this
individual right of action (IRA) appeal after OSC closed its investigation. Initial
Appeal File (IAF), Tab 1.
¶4 Because the appellant declined a hearing, IAF, Tab 31, the administrative
judge issued an initial decision based on the written record, IAF, Tab 34, Initial
3
Decision (ID). He found that the appellant established that she engaged in
activity protected under the Whistleblower Protection Enhancement Act (WPEA)
by filing the OIG complaint. ID at 6. He also found the appellant established
through the knowledge/timing test that the protected activity was a contributing
factor to her nonselection by showing that C.M. was involved in processing the
appellant’s application, had knowledge of the appellant’s OIG complaint, and the
nonselection was made shortly after the appellant filed the complaint. ID at 6-8.
¶5 The administrative judge found, however, that the agency met its burden to
show by clear and convincing evidence that it would not have selected the
appellant in the absence of her protected activity. ID at 8-16. He found that the
agency established that the appellant was not selected because she did not do well
in her interview for the position. ID at 14. He also found that the agency showed
that neither the interviewers nor the selecting official knew of the appellant’s OIG
complaint, and these employees were not influenced in their decisions regarding
the appellant by C.M. ID at 14-16.
¶6 In her petition for review, the appellant contends that C.M. must have
influenced the interviewers’ ratings because C.M. was in contact with them on the
day of the interview. Petition for Review File, Tab 1.
¶7 Under the WPEA, the Board has jurisdiction over an IRA appeal if the
appellant has exhausted her administrative remedies before OSC and makes
nonfrivolous allegations that (1) she made a protected disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Kerrigan v.
Department of Labor, 122 M.S.P.R. 545, ¶ 10 n.2 (2015) (citing 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1)). Once an appellant establishes jurisdiction over her
IRA appeal, she must prove by preponderant evidence that she made a protected
4
disclosure and that it was a contributing factor to the personnel action, i.e., make
a prima facie case. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). As applicable here, the appellant
established jurisdiction over her IRA appeal under the WPEA by making a
nonfrivolous allegation that the agency took the personnel action of nonselection
in reprisal for her disclosing information to the OIG. 5 U.S.C. § 2302(b)(9)(C).
The parties are in agreement that the appellant disclosed information to the OIG.
Further, the appellant’s nonselection occurred shortly after she contacted the
OIG, and one of the agency employees involved in processing the appellant’s
application knew of her OIG complaint. Based on the foregoing, we agree with
the administrative judge that the appellant met her burden to prove her
prima facie case.
¶8 When, as here, the appellant establishes a prima facie case, the agency must
prove, by clear and convincing evidence, that it would have taken the same
personnel action in the absence of the protected activity. 5 U.S.C.
§ 1221(e)(1)-(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7
(2015). In determining whether the agency has carried its burden, the Board will
consider all the relevant facts and circumstances, including: (1) the strength of
the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of agency officials involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Grubb v.
Department of the Interior, 96 M.S.P.R. 377, ¶ 15 (2004).
¶9 We agree with the administrative judge that the agency met its burden to
prove by clear and convincing evidence that it would have taken the same
personnel action in the absence of the appellant’s complaint. As the
administrative judge found, the two agency managers who interviewed the
appellant for the position provided a detailed explanation as to why the appellant
5
was not selected. One stated that the appellant’s answers during the interview
were not strong or detailed enough to support a referral for hire. IAF, Tab 19,
Exhibit (Ex.) 9. The other stated that the appellant’s responses were incomplete,
light on substance, and failed to provide thorough examples describing her
professional experience which would better enable her to succeed in the position.
Id., Ex. 10. Both interviewers noted that the appellant failed to submit her
writing sample on time. Id., Exs. 9-10. Further, both interviewers stated that
they were unaware of the appellant’s OIG complaint. Id. The appellant’s
speculative assertion in her petition for review that they must have known
because they spoke with C.M. on the day of the interview is unavailing.
¶10 Also, there is no evidence that the interviewers or the selecting official,
who also was unaware of the appellant’s OIG complaint, were biased against the
appellant. Further, there is no evidence that C.M. was biased against the
appellant, and, in any event, there is no evidence that she influenced the
interviewers or the selecting official, or manipulated the scoring process.
Additionally, there were two nonselected applicants who did not file OIG
complaints, indicating that other nonwhistleblowers were treated similarly. See
Carr, 185 F.3d at 1323. Thus, we conclude that the administrative judge properly
denied the appellant’s request for corrective action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
6
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
7
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | 01-03-2023 | 08-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4390371/ | People v Clemmons (2019 NY Slip Op 03069)
People v Clemmons
2019 NY Slip Op 03069
Decided on April 24, 2019
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 24, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
BETSY BARROS
FRANCESCA E. CONNOLLY
ANGELA G. IANNACCI, JJ.
2017-05820
[*1]The People of the State of New York, respondent,
vTyreze S. Clemmons, appellant. (S.C.I. No. 87/17)
Steven A. Feldman, Uniondale, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M. Forman, J., at plea; Edward T. McLoughlin, J., at sentence), rendered May 2, 2017, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the component of his sentence which imposed a four-year term of postrelease supervision was not excessive (see People v Suitte, 90 AD2d 80).
The defendant's contention regarding the imposition of the mandatory surcharge is unpreserved for appellate review (see CPL 470.05[2]; People v Moss, 166 AD3d 655, 656), and we decline to reach it in the exercise of our interest of justice jurisdiction.
LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4141967/ | HonorableJohn,R.Shook,PagO 5
"Thatthe State Registrar &all upon ~Fequeat,
supplyto my properlyquallf%ed.p&aant a eertl-
fied copy of the record of any birth or death re-
glsteredtmdor proolslow~of tNs Act far the aak-
ing and cert.lf'laatZon
of which he ehailbe entitled
to a fee of fifty cents ($Jt)to be paid by the
applicant.. . .*
Rule 5)a. Articlel1.477, eupra,a6 amended,Act8 194l.
Forty-seventh page 7g29,Chapter 486, providescer-
Legirrlature,.
tain fess for local Regiatram perfonain~the eervlee8a8 such,
but does not authorizesuch local Regletrarato isaue certified
copiesof birthand deathaerti.f%catesuhichhave beenfiled in
their offlcea.
Therefore,in view of the abovementionedstatutes,
in aamer to your first ueetion.you are nspectfu&ly ldtised
that it is the op%nlmnoP tNs departmentthat Jurtieesof
the Peace rating au local Re strar8 of Yit8l Jtatlstd8eaa
autho~odby $heabovementoaedActarenetempm!exwdor
f?
authorlsedtoiuuo certif'ied aopie8dfbirthardeath eertl-
flcat~wbichha~ebao& flled 5.ntheirofflaes. Itirrour
furtheropblloll that the stati lteg.btl&in a8 only public
oficer authorhod to leaue such aertlfledc@ee excepttha
CountyClerk in aorta&alnstanaesa8 &cm above.
xntiwofourltnewertoyourfir8t lStfO?X, the
other questionsaubdtted fn your inquiryreqUPx'e86 sawer.
Tour8 Yery truly
ATTomk;Ta!WUlL OF TEXAS
AFPROVEBFin 10, 1942
/S/ Groverhl.hra
FIRST ASSISTAHT
ATToi?RM0mRAL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4141977/ | i
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Luther C. Johnatan
c4uutJ Attorney
Andermoa County
Palestlna, Texa#
Dear flita
rrpuestfor our
quate rromyour
t prrsaa m0vmr outwla 0r oity',
e mamo oolmt7, bQrore (Ilaotlon,
e sntitlw¶ to rote without a
iieriasdcivil Natatea of Tmxas, pro-
~3~ory psreon who le oxempteb by law from
eke paymant or a poll tax, and who ir in other
rerpeotm a qwiri4a Voter, rrlu, rsrlds8 tm a
city of ten tliowaaa (10,000) lnhabitmntr or
more, shall before Eha let g{ of~e~#?~ E;-
tha yar when auoh vetor m,h
title6 te suoh newe.ion obtain fran the Rx
Nanerablo I&h@. C. John.t.n, P.S. 8
Col&ator of the oeunty of hi. or her rwl-
d.nob, a oartlflcata .houlng air or her OX-
mpti0n rr0rath. p8pi80nt or 8 poll tar.
"8UOh sxanpt pewaoa 8b.U on emth .t.t.
hi8 mime, age, raae, county 0r rwidenea, w-
oupatlon, the length or time ha ha8 .rwiaed
in seld county, and ths length or time la the
oitJr,and th. nimbsr or the ward or voting
prwfaot in uhfah he rwl6e8, and rhall al.0
atate his e&root addrssr by same and number,
lr mabend, and the greund8 upon whloh h.
alalx8 exanptlon rrom the payment or a poll
ta.
" . . ."
The above Artiela ZiWiB rela tsr exeltislvely to those
r88ldfag in a oik7 o t 1 0,000
lnhabitnnt8 o r mo r e,
a ndlx p r a ~a -
ly prQvide8 ad r84uire8 the obtalnfag of a oaxtlfleatoof
.xtenptlonon or b.tor. th. 3i.t da7 of January 0r the year
in rhloh thep oifiv te rote by ttiose~ exempted by law rroa the
payment of the poll tax. Thenron, your ilr.t que.tleB 1.
re48protfullyanmrrea in the nes8tiv..
With r.r.rcrno.to your moond 4usrrtioaArti.1.
Z968a, Rs~ised CSvll St.tut.8 of Ton., -.pplio.bi.to this..
realdingla a olty or 1.88 than 10,OQQ lnbabimkt8, prevld..
in p4rtr
~avsrg~jwmen not 8ub cot to t&r di8quall-
fixations mbt oat in,Artlo 3e ES54 of the Fie-
rlesd Cfviil Bfatutea of roe5 who do.8 net re-
al.. in a olty of tan thowiarrbiab.bltant8or
mom, aad who in oreruptrroa the payment~of .
poll txixby nm8on of the,faet that he or 8h8
hna not pst reached the we of twenty-one~eari
0~. tha’firat say or January praoadlng it8 .leTJ,
.,gxahcin exempt from the payment of a poll,tax
beqeune he or she wee not 6 r.rfdsnt of ths
Stets',onthe firat day of January preoedl~
lw 3..vy,but who ahall have slnos bwome .li-
p.lbl.to voO4 by rawson of langti of resldw4s
cl;age, shall, on or bef.on the thirty-rlrot
day or Januarg of the par :n whioh he or ehe
orrers to vote, bbteln rren th. k.*a:mr aa
Collector or Tax.. fer th. Bwnty or hi8 m
her maidenas 8 osrtiriwte oi rxemptfo~~ rrmi
the pa7mnt Of a poll tax, and aa 8uah PermoB
*O bus fails& or rntuond to obtain auoh eertl-
Hoaoreble &~ther 0. ~OhnStoB, P.g. s
riiae 0r oxwptiw frolathe PaPneBt 0r e
poll t.x .h.ll ba .ll.wed to vote.
It. . ."
(Sse‘~the oases or Clark v. Stubbe,
131 8. E. (.A) i%S, and
Rogers v. Yaith, ot al, ll9 S. vi. (2d) 678.)
we Fu0tO rrolp0piti00 NO. o-2434 0r thi0 de~rt-
m3at a8 r0iimr,r
Sprum en an8ly818 of this ertiole,.Jn-
fsrrlng to Art1014 EQd6a) it aypeara tW$ the
r4mwtrrg o&8888 or persona rxampt from the
payrnsntof 8 poll tax and ~midi~g elsmhere
than in e olty of 10,000 lohabitants or more
must obtain au eXapti.om eertlficata onLor be-
rote the 316 day or Jaauarp of the 'year in
whfck th8p 0rrw to vote, in order to entitle
them to uaat their balloter (1) Tho8a who nil1
reach the age of t.W.Bty-@Be years, 8rtar tlw
let 867 of Januer7 and bairn the day or a
rollowln electlen at which they may wish to
rota1 (a7 thou exempt from the payment of a
~011 tar beemme not a resident of the stat&
on the firrt da7 of Sanuary preoeding its 1.~7,
but rho lnve 8inoo becotieeligible to vote by
rwaoa or length ol r~esld8noe. . . .
". . .
"'It18 the iWthfBC OplihiOnOr thl8 dOpR&-
sent that those cursleptfmn tha pafzisent
of a
poll tax ror the ~880~8 art out in Aft1019
and
8908a, Vernon*8 Annotated Civil 8tiatut4a,.
rsaldlng elsewhere than in . oity of 10,000
lnbabftant. or QOre must obtain ..o8XClptiOB
oertifiast. ou or bsfore the 31.t day of Jan-
uary or the year 14 which they offer tJ wt.,
in order to be entitled to Wet their ballot..?
TLereicre, you exe respecifully advised that the ans-
nor to your second queatioa I. h neggutlveone for the raaaoll.
eet rorth in opinion Ho. O-8434, a aopy or ri:ioh1. e~olo84d
hamwlth.
In diditioii to the hrM,aabew rQSerre4 to opiat-
ion NO. o-2434, we are onoloslas herawith oopisa or opipionrr
%OS. (j-2155,O-174& O-414 nnd O-4520 written cm relate4
pwirtiono.
ri;e Muat thtlt the abac, satlefaatorlly amwor8
your insquiry.
DaDrao
EFlCLom3fm3 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4141983/ | , OFFICE OF IHE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Ii.W. Pit&m
county liu4itor
Faptte County
La Orangs, Texae
Dear Sirs
Your request f-0
0ar0runy oonali4ere4 by t
rsqueet &$a tollow81
n5.muazalary pay-
hree ItzaP am )otalled; an4
Is deduoted#2,$&O&O, the EB-
lvidsd by three. ,:Tothe result-
kdded the @us of ~2,750,00, the
total representingthe minimum ealary payable
to the County Attorney.
“The above'rmthodof ozlculatint: the mini-
mm salary is nommthod heretofore used
in this County, an4 it-0 to uz that in
forwlating your Opinion O-4281, your Depart-
meat did not realize that the
these caloulation8might zffm
minimum aalzry figure.
I
Bonorable H. K. Pit&an, Page 2
%3retofore, b'ayettecounty ha8 wed the
followingmethod of arrivingat the ~n~um
salary, to-wit: Be8 earned and aolUoteU
and f8e8 earned but not collsotedare totalled.
From this figure is deuuotsd the expenses of
the offioe. From the resulting figure (re-
aUnder) is deducted ;;2,750.00~This figure
is then divided by three and to the resulting'
amount itaatided$2,750.00 and the,ex-offioio
salary pal.4in 19?~5. -
RThe difference in the two osthods of
oalculationsis this: in your mathad, the
1935 ex-offioiosalary Is inoludad In the @al-
oulation befoee deductingthe $2,9BO.O0 and
dIdridingby three. In OUP aethod, the ex-
aifioio salary ir not inoluded u&IL after ttu
$2,750.00 has been deducted and t&r,divieion
by three is made.
*Par au axampleof the diff'ereno~ that
the method of oaloulatfonmakes there is at-
taohed hereto a oaloulation of the minimum
salary payable to the County Wmk based (1) OQ
your method and (2) on our method.
'Whtih method 1s oorreot7*
upon reconaideratlonwe hnn reaohed the oonolunlon
that the method of computation wed by UB in o in1011 NO* 04281
was lnoorrcrotand that your method of oompMat lp
on outlwned in
your letter I.0correot. See the aaao oi Anderson cou3jayv.
Hopkins, 187 S. 'i;r
1019, ublch hold8 t&titIlxoiiicriooompen-
satioa oannet be regardeda6 *exoesa fwuP landerArticle 9891,
V. A. C. 9.
opinion o-4221 is modirle4 a8 r03.mf4:
NO. It ie
our opinion undar the Paote stated ia opinion Ho. O-4221 that
the Commissioners*Court of FaysttQ County ia legally mqUir-
ed t.~a& the salary of the County Attorney of layette County
at $3,300.00 per annum.
Very truly yours
m 4, 1942 ATTOFtf?EY
OliNWsiT,
OF TEZiAS
/7 n | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125966/ | J-S88020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY C. ROSER :
:
Appellant : No. 1533 EDA 2016
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002577-2014
BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 14, 2017
Appellant Harry C. Roser appeals pro se from the order granting PCRA
counsel leave to withdraw under Turner/Finley1 and dismissing Appellant’s
petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. We affirm in part, reverse in part, and vacate the underlying
judgment of sentence in part.
The relevant facts and procedural history are as follows. On June 1,
2014, Appellant was pulled over for driving onto a cement median,
endangering the safety of emergency personnel responding to a fatal
____________________________________________
*Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. 1988)
J-S88020-16
accident, and almost striking a police officer. See Notes of Testimony
(N.T.), 4/21/2015, at 6-8. Appellant “showed many signs of intoxication,
including slurred speech, bloodshot, glassy eyes, he stumbled and after
denying drinking, ultimately admitted to drinking a fifth of vodka.” N.T.,
6/17/2015, at 42-43. Appellant told officers he was too intoxicated to
complete sobriety tests and did not attempt to do so. See N.T., 4/21/2015,
at 7. Appellant’s blood alcohol content was 0.300%. See Affidavit of
Probable Cause, 6/10/2014.2 On April 21, 2015, following a full written and
oral colloquy, Appellant pleaded guilty to driving under the influence (DUI)
with highest rate of blood alcohol content (BAC .16%+), second offense.
See Guilty Plea Colloquy, No. 2577-2014, 4/21/2015 (“Colloquy”).3
At sentencing, the Commonwealth asked the court specifically for an
upward departure from the sentencing guidelines in light of the risk
Appellant posed to the community. See N.T., 6/7/2015, at 3. According to
the pre-sentence investigation report, Appellant was serving probation for
his prior DUI at the time of the incident, and this was Appellant’s “seventh
____________________________________________
2
Appellant was charged with: (1) driving under the influence (DUI) with
highest rate of blood alcohol content (BAC .16%+) (second offense), (2)
careless driving through an emergency response area onto a concrete
medium in disregard for the safety of persons or property, (3) failing to drive
within a single lane on roadways laned for traffic, and (4) failing to reduce
speed for safety while passing an emergency vehicle response area. See
Criminal Compl., No. 62-14-0040, at 3-4. 75 Pa.C.S. §§ 3802(c), 3714(a),
3309(a)(1), 3327(a)(2), respectively.
3
See 75 Pa.C.S. § 3802(c).
-2-
J-S88020-16
lifetime DUI.” Id. at 2. Appellant’s ex-girlfriend testified at the sentencing
hearing. See N.T., 6/17/2015, at 12-16.4 Appellant was sentenced to two
and one-half to five years of imprisonment. See id. at 43-44.
Appellant filed a motion for reconsideration on June 26, 2015, which
the court denied on the same day. Motion for Reconsideration of Sentence,
6/26/2015; Order, 6/25/2015. Appellant failed to file an appeal. Instead,
Appellant pro se filed a PCRA Petition on December 7, 2015. See Motion for
Post-Conviction Collateral Relief, 12/7/2015, at 2, 4. PCRA counsel was
appointed on December 17, 2015. PCRA counsel later submitted a
Turner/Finley letter indicating that Appellant’s claims lacked arguable merit
and moved to withdraw as counsel in February 2016.5 Trial Ct. Op.,
____________________________________________
4
Appellant received his two most recent DUIs driving to see his ex-girlfriend
when she explicitly asked him not to come over. See N.T., 6/17/2015, at
24-25. She could not tolerate his harassment because he constantly called
and emailed her, despite her explicit rejections. She testified that he sent
her hundreds of inappropriate emails; one stated that he tampered with his
ankle transmitter, and in another he admitted to drinking exorbitant
amounts of alcohol. See id. at 12-16. According to girlfriend, he posted a
‘vile’ tweet on her twitter account that could have damaged her professional
reputation. See id. at 24-30. She had to change her phone number and
feared for the safety of her children, whom she had to take into the
basement when Appellant threatened to make unwelcome visits. See id.
5
Following receipt of counsel’s Turner/Finley letter, Appellant pro se filed a
series of correspondence with the court, altering the substance of his original
collateral claims, asserting the discovery of new evidence, alleging PCRA
counsel’s ineffectiveness, and moving for the PCRA judge to recuse. See
PCRA Ct. Order, 5/4/2016, at 2 (“Footnote Order”). As Appellant was still
represented, the PCRA court properly forwarded this correspondence to
appointed counsel. See Commonwealth v. Padilla, 80 A.3d 1238, 1259
(Footnote Continued Next Page)
-3-
J-S88020-16
7/28/2016, at 2.
In March 2016, the PCRA court issued notice of intent to dismiss
Appellant’s petition without an evidentiary hearing pursuant to Pa.R.Crim.P.
907. See Rule 907 Notice, 3/22/2016 (finding “no issues concerning any
material fact”). On May 4, 2016, the court dismissed Appellant’s petition
and granted counsel’s request to withdraw from his representation. See id.
Appellant timely appealed. The PCRA court issued a responsive
opinion incorporating its earlier Footnote Order. See PCRA Ct. Op.,
5/28/2016. On appeal, Appellant pro se raises the following issues:
Whether trial counsel was ineffective for not arguing or
raising the issues below and whether these issues were properly
addressed in my PCRA, subsequent filings, and in PCRA counsel’s
‘no merit’ letters.
1. Were my due process rights violated at my sentencing?
2. Did the sentencing court err when it allowed the
introduction of extrinsic acts and the testimony of a
non-victim, ‘negative’ character witness at the
sentencing proceedings?
3. Was my DUI sentence, specifically it’s conditions, legal?
4. Did the PCRA court err in dismissing the PCRA without
an evidentiary hearing on:
a. Exculpatory evidence withheld by the Court and
the District Attorney’s Office.
b. After ‘ambush’ testimony of two witnesses
regarding phone calls.
_______________________
(Footnote Continued)
(Pa. 2013); Pa.R.Crim.P. 576(A)(4); PCRA Ct. Op., 7/28/2016, at 2.
Further, under our rules of criminal procedure, purported amendments to
pending PCRA petitions require court permission, else they are subject to
waiver. Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015)
(rejecting a claim raised by petitioner “outside of a court-authorized PCRA
petition”); see Pa.R.Crim.P. 905(A). Accordingly, to the extent Appellant
attempted to modify his claims or assert new ones we deem them waived.
-4-
J-S88020-16
c. Ineffective counsel at sentencing.
d. Performance and misrepresentations of appointed
PCRA counsel.
Appellant's Br. at 2.
As to the merits of Appellant’s brief, preliminarily we observe:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or
dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.
Super. 2003).
In re Ullman, 995 A.2d 1207, 1211–12 (Pa. Super. 2010).
While this court is willing to liberally construe materials filed by a pro
se litigant, we note that Appellant is not entitled to any particular advantage
because he lacks legal training. Commonwealth v. Rivera, 685 A.2d
1011, 1013 (Pa. Super. 1996). Appellant’s brief falls well below the
standard for presenting the statement of issues. See Pa.R.A.P. 2116. His
argument consists of a ‘stream of consciousness,’ referencing Appellant’s
version of the facts and matters unrelated to the issues presented in his
PCRA petition. Further, he fails to develop any meaningful argument
regarding his claim of ineffective assistance of counsel or cite any authority
to support his claims, risking waiver of all of his issues. See Pa.R.A.P. 2118.
Accordingly, we could suppress Appellant’s brief and dismiss his appeal on
this basis. See Ullman, 995 A.2d at 1212; Commonwealth v. Adams,
882 A.2d 496, 497-98 (Pa. Super. 2005) (laying out the standard forms that
appellate briefs shall follow); see also Pa.R.A.P. 2111(a)(1)-(11); Pa.R.A.P.
-5-
J-S88020-16
2114-2119 (specifying in greater detail the material to be included in briefs
on appeal). Even though Appellant’s brief is nearly unintelligible, we
recognize that he is pro se. In all fairness to Appellant, we will conduct a
brief review to explain why his issues are devoid of merit.
Our standard of review of an order denying a PCRA petition is to
determine whether the findings of the PCRA court are supported by the
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). This Court gives deference to the PCRA court’s findings
unless there is no support for them in the certified record. Commonwealth
v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth
v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Under the PCRA, ineffective assistance of counsel is a discrete legal
ground for a collateral appeal. See 42 Pa.C.S. § 9543(a)(2)(ii);
Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005). To establish
ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)
actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citing
Commonwealth v. Pierce, 786 A.2d 973, 976 (Pa. 1987)). To establish
prejudice, a petitioner must show that “there is a reasonable probability
that, but for counsel's error, the outcome of the proceeding would have been
-6-
J-S88020-16
different.” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)
(citation omitted). The PCRA court may deny an ineffectiveness claim by
showing that the claim fails any part of the three-part Pierce test. See
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citing
Commonwealth v. Natividad, 938 A.2d 310, 321–22 (Pa. 2007)).
Because Appellant failed to formulate a meaningful argument relating
to his claim of ineffective assistance of counsel, we deem these challenges to
be waived.6 Appellant’s other arguments relate predominantly to
discretionary aspects of his sentence. A bald discretionary sentencing claim
is not cognizable under the PCRA. Commonwealth v. Taylor, 65 A.3d 462,
467 (Pa. Super 2013); Commonwealth v. Wrecks, 934 A.2d 1287, 1289
(Pa. Super. 2007) (“Requests for relief with respect to the discretionary
aspects of sentence are not cognizable in PCRA proceedings.”) (citation
omitted). “[A]fter a defendant has entered a plea of guilty, the only
cognizable issues in a post-conviction proceeding are the validity of the plea
____________________________________________
6
Specifically, Appellant claims that his due process rights were violated at
sentencing by permitting testimony by his ex-girlfriend without affording him
prior notice. See Appellant's Br. at 12-13. Second, he claims that the court
abused its discretion by permitting evidence of aggravating circumstances.
See id. at 12-15. Third, he maintains that the court abused its discretion in
imposing “conditions” along with his sentence. See id. at 16-18. Fourth, he
reiterates his displeasure with the evidence presented by the Commonwealth
at his sentencing hearing regarding the alleged harassment. See id. at 19.
Appellant claims that he was ‘ambushed’ at the hearing and claims his
attorney’s failure to provide him with copies of the evidence somehow
affected his ability to file a direct appeal. See id. at 20.
-7-
J-S88020-16
of guilty and the legality of the sentence.” Commonwealth v. Rounsley,
717 A.2d 537, 538 (Pa. Super. 1998) (citing Commonwealth v. Martinez,
539 A.2d 399 (Pa. Super. 1988)).
Appellant suggests that certain conditions added to his sentence were
improper. See Appellant’s Br. at 16-18 (referencing the court’s
requirements that Appellant refrain from any contact with his ex-girlfriend,
either in person or through social media). This constitutes a challenge to the
legality of his sentence. See Commonwealth v. Mears, 972 A.2d 1210,
1211 (Pa. Super. 2009).
“[T]he Pennsylvania Board of Probation and Parole has exclusive
authority to determine parole when the offender is sentenced to a maximum
term of imprisonment of two or more years.” Commonwealth v.
Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011) (quoting Mears, 972 A.2d
at 1211); see 61 Pa.C.S. § 6132(a). Appellant was sentenced to two and
one-half to five years of imprisonment. Thus, any conditions of parole
imposed upon Appellant are subject to the “exclusive power” of the state
parole board. Coulverson, 34 A.3d at 141; Mears, 972 A.2d at 1211
(citation omitted); see 61 Pa.C.S. §§ 6132(a) and 6134(b)(1), (2).
Here, the trial court lacked authority to impose conditions on
Appellant’s parole. See Coulverson, 34 A.3d at 142. This Court has
previously recognized such court-imposed conditions as “advisory only.” Id.
at 141-42 (citing Mears, 972 A.2d at 1211). Nevertheless, as the court’s
-8-
J-S88020-16
“no contact” condition encroaches upon the exclusive authority of the state
parole board, we vacate that portion of Appellant’s sentence. See id.
Finally, Appellant claims that the court erred in dismissing his PCRA
petition without an evidentiary hearing. See Appellant's Br. at 21. There is
no absolute right to an evidentiary hearing. See Commonwealth v.
Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we examine
the issues raised in light of the record “to determine whether the PCRA court
erred in concluding there were no genuine issues of material fact and
denying relief without an evidentiary hearing.” Springer, 961 A.2d at 1264.
Based upon our review of the record and the issues raised in Appellant’s
brief, there were no genuine issues of material fact that would require an
evidentiary hearing. Id. Accordingly, the court did not err in denying
Appellant’s petition without a hearing.
For the reasons stated above, we affirm the part of the PCRA order
that dismissed Appellant’s PCRA petition without a hearing for failing to raise
any issues of material fact. However, to the extent that the court denied
relief on Appellant’s illegal sentencing claim, we reverse that conclusion.
Finding instead that the “no contact” conditions of Appellant’s sentence are
illegal, that portion of the sentence is vacated without remand in that the
vacatur does not change the length of Appellant’s incarceration.
Commonwealth v. Thur, 906 A.2d 552, 570-71 (Pa. Super. 2006) (citing
-9-
J-S88020-16
Commonwealth v. Robinson, 817 A.2d 1153, 1163 n. 14 (Pa. Super.
2003).
PCRA order affirmed in part, reversed in part; judgment of sentence
vacated in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
- 10 - | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126005/ | Electronically Filed
Intermediate Court of Appeals
CAAP-16-0000453
14-FEB-2017
08:13 AM | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295063/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4023390/ | UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class JUAN M. M. SILVA
United States Air Force
ACM S32316
2 August 2016
Sentence adjudged 19 February 2015 by SPCM convened at Travis Air Force
Base, California. Military Judge: Matthew P. Stoffel (sitting alone).
Approved sentence: Bad-conduct discharge, confinement for 60 days,
forfeiture of $1,000.00 pay per month for 5 months, and reduction to E-1.
Appellate Counsel for Appellant: Lieutenant Colonel Joy L. Primoli and
Major Lauren A. Shure.
Appellate Counsel for the United States: Lieutenant Colonel Roberto
Ramirez; Major Mary Ellen Payne; and Gerald R. Bruce, Esquire.
Before
SANTORO, BROWN, and SPERANZA
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
SANTORO, Judge:
A military judge sitting as a special court-martial convicted Appellant, pursuant to
his pleas, of violating a lawful general regulation and exceeding authorized access to a
computer system, in violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934. 1 The
military judge sentenced Appellant to a bad-conduct discharge, confinement for 5 months,
forfeitures of $1,000.00 pay per month for 5 months, and reduction to E-1. The convening
authority reduced the confinement to 60 days, but approved the remainder of the sentence
1
The Article 134, UCMJ, 10 U.S.C. § 934, violation assimilated 18 U.S.C. § 1030 as a crime or offense not capital.
in accordance with a pretrial agreement. 2 Pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), Appellant asserts that his counsel was ineffective and that his sentence
is inappropriately severe. We disagree and affirm.
Background
Angered at having received non-judicial punishment under Article 15, UCMJ, 10
U.S.C. § 815, Appellant went into his commander’s office while the commander was not
present. He located the commander’s access credentials for the Defense Finance and
Accounting Service myPay website and used them to log onto the website pretending to be
the commander. Once inside the myPay website, Appellant changed the commander’s
allotment to the Thrift Savings Program from 6% of base pay to 92% of base pay, which
resulted in his commander’s receiving only $637.92 in base pay for two months.
Additionally, Appellant changed the commander’s myPay password, accessed the
commander’s electronic leave and earnings statements, and had access to his bank account
information and Social Security number.
Additional facts necessary to resolve the assignments of error are included below.
Effectiveness of Counsel
Appellant argues that his trial defense counsel was ineffective by persuading him to
enter into a pretrial agreement and not exploring potential mental health defenses. In
reviewing claims of ineffective assistance of counsel, we look “at the questions of deficient
performance and prejudice de novo.” United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F.
2012) (quoting United States v. Gutierrez, 66 M.J. 329, 330–31 (C.A.A.F. 2008)).
To establish ineffective assistance of counsel, “an appellant must demonstrate both
(1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Under the first prong, the appellant has the burden
to show that his “counsel’s performance fell below an objective standard of
reasonableness—that counsel was not functioning as counsel within the meaning of the
Sixth Amendment.” United States v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting
United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)). The question is, therefore, “did
the level of advocacy ‘fall[] measurably below the performance . . . [ordinarily expected]
of fallible lawyers?’” United States v. Haney, 64 M.J. 101, 106 (C.A.A.F. 2006) (quoting
United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in original). Under the
second prong, the deficient performance must prejudice the accused through errors “so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” United
2
The court-martial order, staff judge advocate review, and action incorrectly state Appellant’s rank as Senior Airman
when his rank was actually Airman First Class at the time of trial. These clerical errors do not prejudice Appellant’s
substantial rights.
2 ACM S32316
States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007) (quoting Strickland, 466 U.S. at 687).
Counsel is presumed competent until proven otherwise. Strickland, 466 U.S. at 689.
Additionally, in the guilty plea context, “[t]o satisfy the ‘prejudice’ requirement, the
defendant 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.” United States v.
Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
“‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different
result.” Id. at 16–17 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Further,
Appellant must satisfy an objective inquiry: he must show had he been advised properly,
that it would have been rational for him to reject the benefits of the pretrial agreement and
to plead not guilty. Id. at 17.
In an affidavit submitted with his assignment of error, Appellant claims that he
committed the offenses when he was experiencing severe symptoms of an unidentified
mental condition. 3 He asserts that his attorney told him that utilizing that information was
not “a viable option” but did recommend that he speak to a “mental board” to determine
whether he could stand trial. Appellant states “using [his] mental condition as a defense
was not fully explored” and asks that the “medical board . . . be reconsidered.”
We are able to resolve this assignment of error without requiring the submission of
an affidavit from trial defense counsel. See United States v. Ginn, 47 M.J. 236, 241–43
(C.A.A.F. 1997) (requiring no additional factfinding when Appellant’s affidavit fails to
support a claim). Contrary to the assignment of error drafted by counsel, Appellant does
not claim he was persuaded to enter into a pretrial agreement. Absent any evidence
supporting that portion of his claim, we conclude that he failed to meet his burden to
establish either Strickland prong on that issue.
Appellant’s mental health was thoroughly considered both before and during trial.
The “medical board” Appellant refers to in his affidavit was a sanity board convened
pursuant to Rule for Courts-Martial (R.C.M.) 706. The board was composed of two
psychologists supervised by a psychiatrist. In the “short report” issued pursuant to R.C.M.
706(c)(3)(A) and considered by the military judge, the board found that Appellant
understood the nature and seriousness of the charges against him and was able to
understand the proceedings and cooperate fully in his defense. The board also found that
at the time of the offenses, Appellant did not lack substantial capacity to appreciate the
criminality of his conduct or to conform his behavior to the requirements of the law.
At trial, the military judge discussed the board’s findings both with trial defense
counsel and Appellant. The military judge twice correctly advised Appellant about the
3
The Record of Trial suggests that this was bipolar disorder, although that is not stated in Appellant’s affidavit.
3 ACM S32316
defense of lack of mental responsibility. Appellant told the military judge, under oath, that
he had discussed that issue and potential defense with his counsel and told the military
judge that he did not want to assert that defense. Appellant further stated that when he
submitted his offer for pretrial agreement, he was not suffering from the effects of bipolar
disorder and understood the meaning and effect of a guilty plea. Significantly, the military
judge sua sponte recessed the court overnight so Appellant could consider the issue and
consult with counsel. Appellant does not contest the military judge’s factual findings that
nothing occurred at trial that would contradict the presumption of Appellant’s competence.
Appellant has failed to meet his burden to establish that his counsel’s performance
was deficient. To the extent that Appellant belatedly challenges the conclusions of the
R.C.M. 706 board, that issue was waived by his guilty plea, R.C.M. 910(j), and there is no
factual assertion before us that Appellant involuntarily pled or was coerced into pleading
guilty.
Sentence Appropriateness
Appellant alleges that a bad-conduct discharge is inappropriately severe for the
offenses of which he was convicted. We review sentence appropriateness de novo. United
States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006); United States v. Baier, 60 M.J. 382, 383–85
(C.A.A.F. 2005). We “may affirm only such findings of guilty and the sentence or such
part or amount of the sentence, as [we find] correct in law and fact and determine[], on the
basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c).
We assess sentence appropriateness by taking into account Appellant, the nature and
seriousness of his offense, his record of service, and all matters inside the record of trial.
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v. Bare, 63 M.J.
707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F. 2007).
While we have a great deal of discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clemency. United
States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999); United States v. Healy, 26 M.J. 394,
395–96 (C.M.A. 1988).
The maximum authorized sentence was the jurisdictional limit of the court-martial:
reduction in rank to the lowest enlisted grade, forfeiture of two-thirds pay per month for 12
months, confinement for 12 months, and a bad-conduct discharge. Appellant negotiated a
pretrial agreement limiting confinement to 60 days and permitting a bad-conduct discharge.
The approved sentence of a confinement for 60 days and a bad-conduct discharge was
clearly within the discretion of the convening authority.
We have given individualized consideration to this Appellant, his conduct, his
military career and accomplishments, and the other relevant matters within the record of
trial. Although the Defense Finance and Accounting Service was able to restore
4 ACM S32316
Appellant’s commander’s pay distribution, Appellant’s acts caused significant emotional
stress to the commander and the commander’s wife. Upwards of 40 hours of both the
commander’s and his wife’s time were required to rectify the error. Credit- and Social
Security number-monitoring services will now be required to protect against identity theft.
Finally, the motive behind the crime—retaliation for imposition of military discipline—
demonstrates significant prejudice to good order and discipline within the unit. Appellant
also has an extensive disciplinary history which includes non-judicial punishment, a
vacation of a suspended punishment, letters of reprimand, and a letter of counseling.
While we have considered his medical diagnosis and the effects of a bad-conduct
discharge on his future treatment, we nevertheless conclude that the approved sentence
(and one which Appellant himself negotiated and accepted) is not inappropriately severe.
Conclusion
The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
LAQUITTA J. SMITH
Appellate Paralegal Specialist
5 ACM S32316 | 01-03-2023 | 08-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4153896/ | IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JUSTIN DEVONE MORGAN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1630
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 10, 2017.
An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
Andy Thomas, Public Defender, Ross Marshman, Special Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Virginia Chester Harris and Kaitlin Weiss,
Assistant Attorneys General, Tallahassee, for Appellee.
JAY, J.
This is a direct criminal appeal from Appellant’s judgment and sentence for
resisting an officer without violence and possession of less than twenty grams of
cannabis. The sole point raised is whether fundamental error occurred when a
primary juror carried to the jury room the alternate juror’s notepad just moments
before the bailiff retrieved it at the trial court’s request. We conclude that this simple
happenstance did not rise to an error of fundamental proportions, but, instead, was
harmless error, if any error at all. Accordingly, we affirm.
The facts are not in dispute. After the trial court instructed the jury, the jury
retired to deliberate at 6:03 p.m. Immediately afterwards, the trial court addressed
the alternate juror, saying, “If you’ll give us your juror button, we’ll let you go. And
we do this in every case, the bailiffs walk out with jurors to their car.” At that point,
one of the prosecutors announced, “Your Honor, I think we have one thing we need
to address really quickly.” The other prosecutor interjected: “Your honor, my
investigator just informed me he believed he observed one of the jurors take the
alternate juror’s notepad back into the jury room.” The first prosecutor added, “I
saw it, too.” The trial court said, “Okay, we need to retrieve that.” The investigator
was able to describe the juror in question and the bailiff was dispatched to the jury
room. The court reporter noted parenthetically for the record that “Bailiff retrieves
notepad.” The trial court then declared that the court would be in recess “until we
hear from the jury.” The transcript reflects that the proceedings were officially “off
the record” at 6:04 p.m.
We are fully cognizant of the need to “carefully and zealously guard[] against
any intrusions into the deliberations of the jury,” and wholly embrace the proposition
2
that “the presence of any stranger, including an alternate juror, during deliberations
constitutes fundamental error.” Bouey v. State, 762 So. 2d 537, 539 (Fla. 5th DCA
2000) (citations and footnote omitted). These rules “appl[y] equally to both civil
and criminal cases.” Id. at 540. However, we are prompted by the specific facts of
this case to make the following points in rejecting Appellant’s assertion that the
alternate juror’s notepad was the equivalent of a “stranger” in the jury room.
First, the case law relied upon for reversal is wholly inapposite because in this
case, the alternate juror was discharged before the jury retired to the jury room and
was not physically present during the jury’s deliberations. By contrast, all of the
decisions advanced by Appellant involved the alternate juror’s physical presence in
the jury room extending beyond the period of mere “organizational activity” and into
the jury’s actual deliberations. See, e.g., Bouey, 762 So. 2d at 540 (holding that “if
the alternate is present at any time after the deliberations commence, which is the
time the jurors begin discussion of the case, then the error is fundamental and mistrial
or a new trial is necessary”); Fischer v. State, 429 So. 2d 1309, 1311 (Fla. 1st DCA
1983) (reversing for a new trial where it was discovered during the polling of the
jury that the alternate juror had participated in the decision); Berry v. State, 298 So.
2d 491, 493 (Fla. 4th DCA 1974) (reasoning that “[e]ven though [the alternate juror]
did not actually participate in the determination of the verdict, the possibility that
she could have affected the jury verdict was apparent. The presence of [the alternate
3
juror] in the jury room could have operated as a restraint upon the jurors and their
freedom of expression. The attitudes of [the alternate juror] conveyed by facial
expressions, gestures or the like may have had some effect upon the decision of one
or more juror.”); but see Jacksonville Racing Ass’n v. Harrison, 530 So. 2d 1001,
1005 (Fla. 1st DCA 1988) (holding it was harmless error where the alternate juror
was present only during the period when the jury elected the foreperson).
Second, by all accounts, the alternate juror’s notepad was expeditiously
removed from the jury room, likely, within a minute or two of the jury’s going back.
In the highly analogous case of State v. Purdom, No. A13-0205, 2014 WL 2178626
(Minn. Ct. App. May 27, 2014), the Minnesota Court of Appeals was “unpersuaded”
that a juror’s act of taking an alternate juror’s notes into the jury room—for a short
period of time—prejudiced the jury. Specifically, in Purdom, after the trial court
charged the jury, “it identified the alternate juror and told her that she could leave
her notes or give them to one of the jury attendants.” 2014 WL 2178626 at *6. “The
court then noted that the alternate juror had ‘handed her notes to her fellow juror
sitting next to her before she left’ but that a jury attendant retrieved the notes and
that the notes were not in the jury room.” Id. On these facts, the Court of Appeals
held that “even if we were to assume that the presence of the alternate juror’s notes
in the jury room was error, we would not presume prejudice.” Id. The court
distinguished those decisions holding that the alternate juror’s presence during
4
deliberations was “‘presumptively prejudicial.’” Id. (quoting State v. Crandall, 452
N.W.2d 708, 709 (Minn. Ct. App. 1991)) (emphasis added in Purdom); see also State
v. Spears, 908 P.2d 1062, 1074 (Ariz. 1996) (after assuming for argument’s sake
that the alternate juror’s notes left in the jury room during deliberations were
“extraneous evidence,” the court found that the defendant was not entitled to a new
trial because he failed to show actual prejudice). As in Purdom, we are not persuaded
that the fleeting presence of the alternate juror’s notepad in the jury room was
“presumptively prejudicial.”
Third, stated in a slightly different way, the fact that the notepad was removed
so quickly causes us to conclude that any error was “harmless.” Harrison, 530 So.
2d at 1005. The jury was instructed that it must follow the law as set out in the
instructions. Those instructions included an instruction that the “first thing” the jury
should do was to select a foreperson. It is well-established that “‘[a]bsent a finding
to the contrary, juries are presumed to follow the instructions given them.’” Johnson
v. State, 164 So. 3d 794, 797 (Fla. 1st DCA 2015) (quoting Carter v. Brown &
Williamson Tobacco Corp., 778 So. 2d 939, 942 (Fla. 2000)). Thus, assuming—as
we must—that the jury’s first point of business was to elect a foreperson, it is
irrefutable that the alternate juror’s notepad was in the jury’s presence during its
“limited organizational activity,” a fact that stands in sharp contrast to the cases “in
which actual deliberation was commenced.” Harrison, 530 So. 2d at 1005.
5
Therefore, under Harrison, a harmless error analysis would apply. Accord Bouey,
762 So. 2d at 539 (citing Harrison and recognizing that “a distinction should be made
between instances where the alternate juror was present while the jury actually
deliberated on its verdict and instances where the alternate juror was present only
during the limited organizational activity that the jurors typically engage in before
actual deliberations begin,” with the latter instance being subject to “the harmless
error doctrine”).
Fourth, we feel obliged to comment on defense counsel’s failure to request
any court action after it was disclosed that a primary juror had removed the alternate
juror’s notepad. Specifically, counsel did not object to the trial court’s solution of
sending the bailiff back to the jury room to retrieve the notepad; did not request the
court to conduct an inquiry into whether any of the jurors had read the alternate
juror’s notes (assuming the notepad contained any written notes, a fact that is not
established in the record); did not request the trial court to give any special
instruction to the jurors regarding the presence of the notepad; and, did not request
a mistrial. See Harrison, 530 So. 2d at 1005 (noting that “the error was never brought
to the court’s attention as a basis for mistrial or other relief, but [was] instead first
articulated by briefs in this court”); cf. Bouey, 762 So. 2d at 538-39 (observing that
when the prosecutor advised the court that he had been made aware that the alternate
juror had accompanied the six primary jurors to the deliberation room, both attorneys
6
requested an opportunity to establish a record of what had happened with regard to
the alternate juror); Fischer, 429 So. 2d at 1310 (noting that when it became apparent
after polling the jurors that the alternate juror had participated in the deliberations,
defense counsel “promptly objected and moved for a mistrial”); Berry, 298 So. 2d
at 492 (remarking that “[a]fter the jury announced its verdict finding the defendant
was guilty of the robbery charged, counsel for the defendant moved for a new trial
on the ground that the trial judge committed fundamental error in permitting [the
alternate juror] to be in the jury’s presence while the jury was deliberating,” even
though, upon inquiry, it was acknowledged she had not participated in the
determination of the verdict).
In Hargrove v. CSX Transportation, Inc., 631 So. 2d 345 (Fla. 2d DCA 1994),
it was discovered during the jury’s deliberations that the bailiff had delivered the
trial court’s copy of the jury instructions to the jury room. The court’s copy reflected
changes made during the charge conference by way of written notations and lines
drawn through sections to be deleted. When it was discovered that the court’s copy
of the instructions was in the jury room, the parties agreed that the trial court should
retrieve them, and this was promptly accomplished. No objection was raised by
either side. Also, there was no request for a curative instruction or a motion for
mistrial.
7
Following a verdict in favor of Hargrove, CSX, for the first time in a motion
for new trial, raised the specter of the jury’s having considered the marked-through
sections of the court’s instructions. The trial court granted the motion. On appeal,
Hargrove argued that the court’s order was erroneous because CSX never objected
until after the verdict was rendered and did not argue to the trial court that
fundamental error occurred.
In reversing the trial court’s order and concluding that CSX’s objection was
untimely and was not preserved for purposes of the motion for new trial, the Second
District succinctly stated: “This particular case validates the requirement of a timely
objection because remedial options were available when it was discovered that the
instructions were in the jury room.” Id. at 346. Similarly, here, defense counsel’s
inaction eliminated any opportunity for the trial court to rectify any purported
prejudice by eliminating the opportunity to ask the jurors if “any member had even
seen” the notepad or to request an appropriate curative instruction, if necessary. Id.
Without question, “the deliberations of the jury [must] be kept free from any
influence from strangers to the proceedings who may inappropriately influence the
jury or impart information to them that was not filtered through the rules of evidence
under judicial supervision during the trial process.” Bouey, 762 So. 2d at 539. But,
for the reasons discussed above, we find the sanctity of the jury’s deliberations was
not disturbed. Yet, even if there were a remote question of a minor irregularity,
8
counsel’s failure to object waived that argument on appeal. Therefore, Appellant
has failed to demonstrate any error in this case.
AFFIRMED.
ROWE and KELSEY, JJ., CONCUR.
9 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149189/ | 02/28/2017
DA 15-0389
Case Number: DA 15-0389
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 39
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MATTHEW DAVID SHERMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 13-220
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Haley Connell Jackson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Thorin Giest, Deputy
County Attorney, Hamilton, Montana
Submitted on Briefs: February 1, 2017
Decided: February 28, 2017
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Matthew Sherman pleaded guilty to two felonies and one misdemeanor for
possessing dangerous drugs with intent to distribute. At sentencing, the District Court
allowed the State to admit evidence, over Sherman’s objection, of an allegation that
Sherman had raped his cellmate while in jail. The court sentenced Sherman to 100 years
in prison as a persistent felony offender. Sherman argues that his sentence must be
reversed because the court relied on the rape allegation after assuring him that it would
not do so.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In October 2013, Ravalli County Sheriff’s officers arrested Sherman at a motel in
Hamilton, Montana, after receiving information that he was distributing dangerous drugs.
Officers recovered methamphetamine and marijuana upon searching Sherman’s motel
room and vehicle.
¶4 Sherman entered into an open plea agreement in December 2014 in which he
pleaded guilty to three offenses: felony possession of dangerous drugs with intent to
distribute; felony possession of dangerous drugs; and misdemeanor possession of
dangerous drugs. The plea agreement provided a maximum possible penalty for the three
combined counts of 200 years and six months in prison, plus a $100,500 fine. It provided
also that Sherman would be sentenced as a persistent felony offender.
¶5 The court held a sentencing hearing in April 2015. The Pre-Sentence
Investigation (PSI) report contained a summary of Sherman’s criminal history, which
2
included numerous drug-related convictions. The report added a “Jail Adjustment
Summary” discussing Sherman’s myriad behavioral incidents while detained at the
Ravalli County Detention Center after his October 2013 arrest. The summary included,
among other incidents, Sherman’s attempts to “cheek” or “pocket” his medications, his
striking another inmate in the face, an allegation that he intimidated other inmates to give
him their commissary items and extra phone minutes, and an allegation that he had raped
his cellmate in February 2015. The rape allegation was still under investigation at the
time of the sentencing hearing and had not resulted in a criminal charge.
¶6 At the sentencing hearing, the State sought to admit a jail incident report
discussing the alleged rape. Sherman’s counsel objected to the report and to the
discussion of the alleged rape in the PSI report on the grounds that investigation into the
incident was ongoing and that the court’s consideration of the incident would violate
Sherman’s due process rights. The District Court overruled the objection, reasoning that
evidence of the alleged rape “would have some limited utility in regard to the
Defendant’s behavior in the detention center.” Of the substance of the rape allegation,
the court stated, “[I]f there’s [sic] no convictions or charges even, I won’t be relying on
this in making my sentence.” Sherman offered no evidence to rebut the allegation.
¶7 The court sentenced Sherman to 100 years in prison and explained in open court
the reasons for the sentence. It observed that Sherman had at least ten prior felony
convictions, most of which pertained to possessing, transporting, or distributing
controlled substances, in addition to various drug-related misdemeanor offenses. It
highlighted Sherman’s 2003 convictions for possession of methamphetamine and using a
3
communication device to facilitate distribution, for which Sherman was sentenced to
seven years in prison and four years of probation. It emphasized that Sherman had
absconded from probation and was in violation of that probation when he was arrested in
October 2013. It noted that, as a primary source of methamphetamine distribution in
Ravalli County, Sherman had caused significant “social damage” to the community. The
court stated that it recognized many of the names of persons to whom Sherman had
distributed methamphetamine and noted that their methamphetamine use had caused
significant damage to them and to their families. In some cases, the court pointed out, the
methamphetamine users had lost their parental rights because of their addictions. Due to
Sherman’s extensive record of drug-related offenses, the court doubted that Sherman
would be amenable to treatment or rehabilitation.
¶8 The court noted further that Sherman had a “lengthy history of problems in the
jail . . . [m]ore than anybody [the court had] ever sentenced before.” The court did not
specifically mention the allegation that Sherman had raped his cellmate. It concluded
that the primary goal of the sentence should be to remove Sherman permanently from the
drug trade. Sherman appeals.
STANDARD OF REVIEW
¶9 Whether a district court violated a defendant’s constitutional rights at sentencing is
a question of law that we review de novo. State v. Simmons, 2011 MT 264, ¶ 9,
362 Mont. 306, 264 P.3d 706.
4
DISCUSSION
¶10 Whether the District Court violated Sherman’s due process rights at sentencing.
¶11 Sherman contends that the District Court violated his due process rights by falsely
assuring him that it would not rely on the allegation of rape in making its sentencing
decision. He asserts that he relied on this assurance in choosing not to offer any evidence
to rebut the rape allegation. He argues that the court impermissibly considered the rape
allegation in imposing sentence, thereby misleading Sherman and effectively denying
him the opportunity to explain or rebut the allegation.
¶12 The Montana and United States constitutions guarantee against depriving a person
of liberty without due process of law, and these protections apply in sentencing hearings.
U.S. Const. amend. XIV, § 1; Mont. Const. art. II, § 17; State v. Webb, 2005 MT 5, ¶ 18,
325 Mont. 317, 106 P.3d 521. “Due process requires that an offender be given an
opportunity to explain, argue, and rebut any information, including pre-sentencing
information[,] that may lead to a deprivation of life, liberty, or property.” State v.
Mainwaring, 2007 MT 14, ¶ 16, 335 Mont. 322, 151 P.3d 53 (citing Bauer v. State,
1999 MT 185, ¶ 22, 295 Mont. 306, 983 P.2d 955).
¶13 A defendant’s due process rights include protection against a sentence “predicated
on misinformation.” Simmons, ¶ 11; accord State v. Mason, 2003 MT 371, ¶ 21,
319 Mont. 117, 82 P.3d 903. “[W]here a sentencing court is found not to have relied on
improper or erroneous information in sentencing a criminal defendant,” however, “the
defendant is not entitled to resentencing on due process grounds.” State v. Phillips,
2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078 (quoting Mason, ¶ 21; Bauer, ¶ 24).
5
The defendant has an “affirmative duty” to show that the sentence was premised upon
“materially inaccurate or prejudicial” information. Bauer, ¶ 22.
¶14 Sherman argues that he was denied “an opportunity to explain, argue, and rebut”
the rape allegation. Mainwaring, ¶ 16. But the court overruled Sherman’s objection to
the State’s evidence of the allegation and told Sherman that the evidence “would have
some limited utility in regard to [Sherman’s] behavior in the detention center.” Sherman
knew of the allegation when he received the PSI report before sentencing and was
advised of the court’s ruling on the incident report. The court did not preclude Sherman
from rebutting this evidence; instead, Sherman decided that such a rebuttal was not
necessary in light of the court’s comments.
¶15 Sherman’s due process argument rests on the premise that the court relied on the
unproved rape allegation in making its sentencing decision. In Simmons, we held that the
sentencing court did not violate the defendant’s due process rights when it limited
Simmons’s cross-examination of a jail detention officer who testified to Simmons’s
behavioral issues at the detention center. Simmons, ¶¶ 6, 12. The court stated that it
would not “grade” Simmons on her behavioral issues in making its sentencing decision.
Simmons, ¶ 6. When the court sentenced Simmons, it gave numerous reasons for its
decision, including a reference to her “negative behavior in the detention center.”
Simmons, ¶ 7. We concluded that, apart from Simmons’s behavior in the detention
center, “the District Court considered numerous pieces of evidence pertaining to
Simmons’s potential for rehabilitation and the severity of the crimes she committed.”
Simmons, ¶ 12. We held that Simmons had not “met her burden on appeal of showing the
6
sentencing court relied on materially false allegations in forming the sentence.”
Simmons, ¶ 12.
¶16 Here, as in Simmons, the record does not support a finding that the District Court
relied on the rape allegation in making its sentencing decision. The court’s detailed
explanation of its decision focused on Sherman’s lengthy criminal history, the “social
damage” his criminal actions had caused, the improbability of his rehabilitation, and the
need to remove him from the drug trade. It emphasized that Sherman was “a
methamphetamine distributor to other distributors” and that a treatment program would
not be successful. The court told Sherman, “you’ve been in prison before; you’ve not
changed your behavior as a result of that experience.” Due to the court’s conclusion that
Sherman would not be “amenable to treatment or rehabilitative efforts,” the court told
Sherman, “it seems to me that my primary duty here today is to incapacitate you so that
you will be permanently removed from the drug trade and never have the opportunity to
destroy any other lives with this activity.” The court gave mention to Sherman’s
“lengthy history of problems in the jail.” But it did not identify the alleged rape as
having any influence on the decision, and its extensive explanation clearly reveals the
real rationale for the court’s sentence.
¶17 The record shows that the court rested its sentencing decision on Sherman’s
continuous and substantial involvement in the drug trade. It “considered numerous
pieces of evidence” regarding his history of drug dealing and the devastating community
impact of his actions. Simmons, ¶ 12. That evidence—not the jailhouse rape
allegation—formed the basis for the sentence. Sherman has failed to meet his burden on
7
appeal of showing that the court premised its sentencing decision on “materially
inaccurate or prejudicial” information. Bauer, ¶ 22.
CONCLUSION
¶18 We conclude that Sherman “is not entitled to resentencing on due process
grounds.” Phillips, ¶ 17. The judgment of the District Court is affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
8 | 01-03-2023 | 02-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289304/ | Cite as: 585 U. S. ____ (2018) 1
Statement of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
E. I. DU PONT DE NEMOURS & CO., ET AL. v.
BOBBI-JO SMILEY, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 16–1189. Decided June 28, 2018
The motion of the Cato Institute for leave to file a brief
as amicus curiae is granted. The motion of Pacific Legal
Foundation, et al. for leave to file a brief as amici curiae is
granted. The petition for a writ of certiorari is denied.
JUSTICE ALITO took no part in the consideration or deci-
sion of these motions and this petition.
Statement of JUSTICE GORSUCH, with whom THE CHIEF
JUSTICE and JUSTICE THOMAS join, respecting the denial
of certiorari.
Can an agency advance an interpretation of a statute for
the first time in litigation and then demand deference for
its view? There is a well-defined circuit split on the ques-
tion. The Court of Appeals in this case said yes, joining
several other circuits who share that view. 839 F. 3d 325,
329, 333–334 (CA3 2016) (case below); SEC v. Rosenthal,
650 F. 3d 156, 160 (CA2 2011); TVA v. Whitman, 336 F. 3d
1236, 1250 (CA11 2003); Dania Beach v. FAA, 628 F. 3d
581, 586–587 (CADC 2010). But “[t]wo circuits, the Sixth
and Ninth, expressly deny Skidmore deference to agency
litigation interpretations, and the Seventh does so implic-
itly.” Hubbard, Comment, Deference to Agency Statutory
Interpretations First Advanced in Litigation? The Chevron
Two-Step and the Skidmore Shuffle, 80 U. Chi. L. Rev.
447, 462 (2013) (footnotes omitted); Smith v. Aegon Com-
panies Pension Plan, 769 F. 3d 922, 929 (CA6 2014); Alaska
v. Federal Subsistence Bd., 544 F. 3d 1089, 1095 (CA9
2008); In re UAL Corp. (Pilots’ Pension Plan Termination),
2 E. I. DU PONT DE NEMOURS & CO. v. SMILEY
Statement of GORSUCH, J.
468 F. 3d 444, 449–450 (CA7 2006).
The issue surely qualifies as an important one. After
all, Skidmore deference only makes a difference when the
court would not otherwise reach the same interpretation
as the agency. And a number of scholars and amici have
raised thoughtful questions about the propriety of afford-
ing that kind of deference to agency litigation positions.
For example, how are people to know if their conduct is
permissible when they act if the agency will only tell them
later during litigation? Don’t serious equal protection
concerns arise when an agency advances an interpretation
only in litigation with full view of who would benefit and
who would be harmed? Might the practice undermine the
Administrative Procedure Act’s structure by incentivizing
agencies to regulate by amicus brief, rather than by rule?
Should we be concerned that some agencies (including the
one before us) have apparently become particularly ag-
gressive in “attempt[ing] to mold statutory interpretation
and establish policy by filing ‘friend of the court’ briefs in
private litigation”? Eisenberg, Regulation by Amicus: The
Department of Labor’s Policy Making in the Courts, 65
Fla. L. Rev. 1223, 1223 (2013); see also, e.g., Hickman &
Krueger, In Search of the Modern Skidmore Standard, 107
Colum. L. Rev. 1235, 1303 (2007); Pierce, Democratizing
the Administrative State, 48 Wm. & Mary L. Rev. 559,
606–607 (2006); Merrill, Judicial Deference to Executive
Precedent, 101 Yale L. J. 969, 1010–1011 (1992).
Respectfully, I believe this circuit split and these ques-
tions warrant this Court’s attention. If not in this case
then, hopefully, soon. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4128725/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 2,2005
The Honorable Greg Lower-y Opinion No. GA-0370
Wise County Attorney
Wise County Courthouse, Room 300 Re: Whether a statutory county court judge may
Decatur, Texas 76234 recover back pay from the county, which failed to
pay the judge the salary to which the judge was
entitled under Government Code section 25.0005
(RQ-034 1-GA)
Dear Mr. Lowery:
On behalf of the Wise County Commissioners Court (the “Commissioners Court”), you ask
whether a statutory county court judge may recover back pay from Wise County (the “County”),
which failed to pay the judge the salary to which the judge was entitled under Government Code
section 25.0005.’ Your question has two parts. You ask first whether the judge “should be held to
have knowledge of nonpayment of his complete salary,” which the Commissioners Court should
have set in accordance with section 25.0005, “from the date the county initially collected the funds
or from the date the Judge became aware the funds were not being paid to him.” Request Letter,
supra note 1, at 1. You ask second whether governmental immunity bars the judge from recovering
from the County. See id.
I. Relevant Statutes
Your questions involve companion statutes, Government Code sections 5 1.702 and 25.0005,
Section 5 1.702 authorizes a commissioners court annually to authorize the county clerk to collect
“a $40 filing fee in each civil case filed in the [statutory county] court to be used for court-related
purposes for the support of the judiciary” and “$15 as a court cost on conviction of any criminal
offense in a statutory county court.“2 TEX. GOV’T CODE ANN. 5 51.702(a), (b), (f) (Vernon 2005).
‘See Letter from Thomas J. Aaberg, Assistant County Attorney for Honorable Greg Lower-y, Wise County
Attorney, to Honorable Greg Abbott, Texas Attorney General (Apr. 28,2005) (on file with Opinion Committee, also
availabk at http://www.oag.state.tx.us) [hereinafter Request Letter].
2Attorney General Opinion DM-123, issued in 1992, concluded that section 5 1.702(b), which imposes a $15
court cost on conviction of a criminal offense, violates both the due process and the equal protection guarantees of the
federal constitution. See Tex. Att’y Gen. Op. No. DM-123 (1992) at 4. In 1999, in Opinion JC-0098, this office
(continued.. .)
The Honorable Greg Lowery - Page 2 (GA-0370)
The clerk must send the fees and costs collected under section 5 1.702 to the state comptroller, who
deposits them in the judicial fund. See id. 8 5 1.702(d); see also TEX. LOC. GOV’T CODE ANN.
$9 133.003(4), .004(4), .05 1, .052(b), .055(a), .058(d)( 1) (V emon Supp. 2004-05) (providing for the
deposit and remission of the fees and costs collected under Government Code section 5 1.702). The
judicial fund, a separate fund in the state treasury, may be used “only for court-related purposes for
the support of the judicial branch of this state.” TEX. GOV’T CODE ANN. 8 21.006 (Vernon 2004).
Section 25.0005 sets the salary of a statutory county court judge in a county that collects fees
and costs under section 5 1.702:
(a) A statutory county court judge . . . in whose court fees and
costs under Section[] 5 1.702(a) and (b) are . . . collected[] shall be
paid a total annual salary set by the commissioners court at an amount
that is at least equal to the amount that is $1,000 less than the total
annual salary received by a district judge in the county on August 3 1,
1999. A district judge’s or statutory county court judge’s total annual
salary includes contributions and supplements, paid by the state or a
county, other than contributions received as compensation under
Section 74.05 1 [regarding compensation for a presiding judge].
(e) A county is not required to meet the salary requirements
of Subsection (a) for a particular court if:
(1) not later than September 1 of the year in which
the county initially begins collecting fees and costs under Section[]
51.702.. . , the county increases the salary of each statutory county
indicated that Opinion DM- 123 correctly states and applies “the law established by the Texas Court of Criminal Appeals
and lower courts of appeals on the constitutionality of criminal penalty statutes.” Tex. Att’y Gen. Op. No. JC-0098
(1999) at 3. As Opinion JC-0098 further states, however, “approximately two months after . . . Opinion DM- 123 was
issued,” the 78th district court issued a judgment declaring “section 5 1.702 constitutional in its entirety.” Id. (citing In
re Dorsey Trapp, No. 139568-B (78thDist. Ct., Wichita County, Tex., Aug. 24,1992)). According to Opinion JC-0098,
the district court’s “contrary decision” thus “constrain[s]” Opinion DM- 123. Id. at 4. Nevertheless, as Opinion JC-0098
continues,
the [district] court did not expressly overrule DM- 123 or otherwise cite authority for its conclusions.
Accordingly, the scope of the issues actually litigated and resolved in the declaratory action is unclear.
Furthermore, without such clarity, it is impossible to evaluate the trial court’s determination in light
of the existing judicial precedent from our state’s appellate courts.
Id. But see RyZander v. CaZdweZZ, 23 S.W.3d 132, 139 (Tex. App.-Austin 2000, orig. proceeding [mand. denied])
(declining to consider section 5 1.702(b)’ s constitutionality). We assume, for purposes of this opinion, that section
5 1.702(b) is constitutional.
The Honorable Greg Lowery - Page 3 (GA-0370)
court judge in the county to an amount that is at least $28,000 more
than the salary the judge was entitled to on May 1 of the year the
county initially begins collecting fees and costs under Sections 5 1.702
(2) the county pays at least the salary required by
Subdivision (1);
(3) the county collects the fees and costs as provided by
Section[] 51.702 . . . ;
(4) the court has at least the jurisdiction provided by
Section 25.0003 [defining a statutory county court’s jurisdiction]; and
(5) [although the county need not pay a salary that
exceeds the minimum salary set under subsection (a)], the county uses
at least 50 percent of the amount the county receives each state fiscal
year under Section 25 .0016 for salaries for the statutory county court
judges.
Id. $25.0005(a), (e).
Under section 25.0015, the state annually returns to the county a portion of the fees and
costs that the county clerk collected and remitted to the comptroller under section 5 1.702. Id.
$ 25.0015(a). The purpose of the payment from the state is to assist the county with paying the
statutory county court judge’s increased salary:
(a) Beginning on the first day of the state fiscal year, the state
shall annually compensate each county that collects the additional
fees and costs under Section[] 51.702 . . . in an amount equal to
$35,000 for each statutory county court judge in the county who:
(1) does not engage in the private practice of law;
(2) presides over a court with at least the jurisdiction
provided by Section 25.0003; and
(3) except as provided by Section 25.0005(d)
[providing that higher minimum salaries provided by specific statutes
prevail over section 25.0005’s minimums], is not excluded from the
application of Section 25.0003 or Section 25.0005.
(b) For a county that participates under Section 51.702(f)
under a resolution adopted . . . before September 1,2003, the amount
The Honorable Greg Lowery - Page 4 (GA-0370)
shall be paid to the county’s salary fund in equal monthly
installments, and of each $35,000 paid a county, $30,000 shall be
paid from funds appropriated from the judicial fund, and $5,000 shall
be paid from funds appropriated from the general revenue fund.
Id. 5 25.0015(a)-(b). In addition, under section 25.0016, to the extent the fees and costs the
comptroller receives from all counties under section 51.702 exceed the amount returned to the
counties under section 25.0015, the state must “remit the excess to the counties proportionately
based on the percentage of the total paid by each county.” Id. 9 25.0016(a). Consistently with the
purpose of monies placed in the state judicial fund under section 51.702, a county may use its
proportionate share of the excess received under section 25.0016 “only for court-related purposes
for the support of the judiciary. . . ,” which may include judges’ salaries. Id. kj25.0016(b); see Tex.
Att’y Gen. Op. No. JC-0158 (1999) at 3 (stating that, while neither section 25.0016 nor section
2 1.006 defines the phrase “court-related purposes for the support of the judicial branch,” permissible
purposes include salaries related to the operation of the courts); c$ TEX. GOV’T CODE ANN. 5 2 1.006
(Vernon 2004) (creating the judicial fund in the state treasury as a separate fund and limiting its use
to only “court-related purposes for the support of the judicial branch of this state”).
II. Pacts
You inform us that the Commissioners Court resolved in 1994 to collect fees under
Government Code section 5 1.702.3 See Request Letter, supra note 1, at 1; see also TEX. GOV’T
CODE ANN. 9 5 1.702(a), (b) (Vernon 2005). The Commissioners Court did not, however, “utilize
the funds” in accordance with section 25.0005. Request Letter, supra note 1, at 1. You indicate that
the County should have complied with section 25.0005 when it “received funds from the State”
beginning in 1996, but it did not. Id. at 2. The individual who has held the position of statutory
county court judge continuously since at least 1994 “did not find out about the [County’s]
noncompliance until 2003 [,] and the . . . [Commissioners Court] corrected the situation at that time.”
Id. The judge now would like to receive back pay for the years 1996 through 2003. See id. We
understand that the amount of back pay the judge seeks is $269,000.4 You do not inform us of the
use or uses to which the County put the funds received from the state under section 25.0015 or
excess funds received under section 25.0016? See generally id.
3The request letter refers to fees collected under Government Code section 5 1.072, rather than section 5 1.702.
See Request Letter, supra note 1, at 1. There is no section 5 1.072. Furthermore, section 5 1.702 provides for the fees
that must be utilized under Government Code section 25.0005, which you also cite. See TEX.GOV’TCODEAm. $
51.702(k) (Vernon 2005); see also id. 0 25.0005(a) (Vernon 2004); Request Letter, supra note 1, at 1. We therefore
assume that you mean to refer to section 5 1.702.
4See Cude Seeks Re-ezection, WISECOUNTY
MESSENGER,
June 26,2005, available at www.wcmessenger.com/
newsbindata/news/news/Cudeseeksre-election.shtml.
‘As this office previously has suggested, a county’s use of fees, such as those collected under section 5 1.702,
for the government’s general revenue purposes violates article I, section 13 of the Texas Constitution, which guarantees
that state courts shall be open. See TEX.CONST.art. I, 0 13 (“All courts shall be open . . . .“); Tex. Att’y Gen. Op. No.
GA-0340 (2005) at 3. The Texas Supreme Court has construed this provision to “guarantee access to the courts
(continued.. .)
The Honorable Greg Lowery - Page 5 (GA-0370)
III. Lepal Analysis
A. General
This office’s prior decisions indicate that in this situation a statutory county court
judge is entitled to receive the salary required by section 25.0005(a) from September 1 of the year
the county began collecting fees and costs under section 5 1.702. See Tex. Att’y Gen. Op. Nos.
JC-0543 (2002) at 7-8; JC-0159 (1999) at 4; JC-0157 (1999) at 2-3. Although you do not indicate
whether the County intended to set the statutory county court judge’s salary in compliance with
subsection (a) or subsection (e) of section 25.0005, this office has determined that a county that does
not comply with subsection (e) must pay the salary set in subsection (a). See Tex. Att’y Gen. Op.
Nos. JC-0543 (2002) at 6; JC-0159 (1999) at 3. Thus, the “judge should receive from the County
the difference between the amount he or she received and the amount the judge should have received
under subsection (a).” Tex. Att’y Gen. Op. No. JC-0543 (2002) at 7. But our prior decisions do not
address the applicability of the statute of limitations or governmental immunity.
B. Statute of Limitations
You ask first which limitations period applies to the judge’s request for back pay.
See Request Letter, supra note 1, at 2. You suggest that the judge’s action is “for debt” and that the
four-year statute of limitations set out in section 16.004 of the Civil Practice and Remedies Code
therefore applies. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. 9 16.004(a)(3) (Vernon 2002).
Under section 16.004, a person must file an action for debt “not later than four years after the day
the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(3) (Vernon 2002).
This office considered an analogous issue in 2000, in Opinion JC-0182. See Tex. Att’y Gen.
Op. No. JC-0182 (2000) at 1. The opinion addressed a situation in which three Fort Bend County
Court at Law judges had been paid not on an annual basis but on an hourly basis for several years;
as a result, each of the three judges was under-compensated. See id. at l-2. One of the judges
suggested that the statute of limitations prevented the judges from claiming more than four years of
back pay. See id. at 2. The opinion agrees, concluding “that the four-year statute of limitations for
causes of action based upon debt . . . applies to the judges’ claims.” Id. at 3; see TEX. CIV. PRAC.
&REM. CODE ANN. 5 16.004(a)(3) (V emon 2002). The opinion pointed out, however, that “a statute
of limitations does not bar the judges from recovering the full amount the county owes them unless
the county raises a limitations statute as a defense.” Tex. Att’y Gen. Op. No. JC-0182 (2000) at 3.
If the county does not “affirmatively plead the statute of limitations, it waives the defense, . . . and
the judges may recover all of the unpaid salaries.” Id.
‘(...continued)
unimpeded by unreasonable financial barriers,” such as “filing fees to support the state’s general revenue” or fees that
are available to local governments to build roads and schools. State v. FZag-Redfern Oil Co., 852 S.W.2d 480,485 (Tex.
1993); see LeCroy v. Hanlon, 713 S.W.2d 335,341-42 (Tex. 1986); Farabee v. Bd. of Trs., Lee County Law Library,
254 So. 2d 1,5 (Fla. 1971) (quoted in LeCroy, 713 S.W.2d at 342). Thus, although filing fees and court costs usually
are constitutional, see LeCroy, 7 13 S.W.2d at 342, court fees that are used for general revenue purposes instead of court-
related purposes violate the constitution. See Tex. Att’y Gen. Op. No. GA-0340 (2005) at 3.
The Honorable Greg Lowery - Page 6 (GA-0370)
Consistently with Opinion JC-0 182, we conclude that the judge’s request for back pay is an
action for debt and is subject to the four-year statute of limitations that section 16004(a)(3) of the
Civil Practice and Remedies Code sets forth.
The judge’s counsel argues that the discovery rule exception should apply, deferring the
judge’s cause of action until he knew or, “by exercising reasonable diligence,” should have known
of the facts giving rise to the claim! Wagner&Brown, Ltd. v. Horwood, 58 S.W.3d 732,734 (Tex.
2001). According to the Texas Supreme Court, the discovery rule is “a very limited exception”
to a statute of limitations and should be used “only when the nature of the plaintiffs injury is
both inherently undiscoverable and objectively verifiable.” Id. (emphasis added). “An injury is
inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed
limitations period despite due diligence.” Id. at 734-35. A court will determine whether an injury
is inherently undiscoverable “on a categorical basis,” examining whether the alleged injury is “‘the
type of injury that generally is discoverable by the exercise of reasonable diligence.“’ Id. at 735
(quoting HECIExploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)).
Whether a particular type of injury is a type that generally is not discoverable by the exercise
of reasonable diligence and therefore inherently undiscoverable is a question requiring the resolution
of fact questions and is beyond this office’s purview. See Tex. Att’y Gen. Op. No. GA-0156 (2004)
at 10 (stating that fact questions cannot be answered in the opinion process). Nevertheless, a 1949
case, Falls County v. Mires, suggests that the judge’s injury here is the kind that may be discovered
by the exercise of reasonable diligence and is not inherently undiscoverable. See Falls County v.
Mires, 218 S.W.2d 491,494 (Tex. Civ. App.-Waco 1949, writ ref d), superseded in part by statute
as noted in Tex. Att’y Gen. Op. No. JC-0182 (2000) at 3. In Falls County, the Waco court of civil
appeals indicated that a county officer should be held to have knowledge of statutory salary
requirements related to the officer’s position. See Falls County, 218 S.W.2d at 494. The parties
stipulated that a county treasurer had for several years been paid less than the annual salary to which
he was entitled under law, $2000. See id. at 493-94. Because the county raised the statute of
limitations as an affirmative defense, the court applied it, stating that the county treasurer “was
charged, as a matter of law,” with knowing the salary to which the law entitled him. Id. at 494. We
accordingly think it highly likely that a court would find here that the judge should have discovered,
through the exercise of reasonable diligence, the salary he was entitled to receive under section
25.0005(a) of the Government Code.
The judge’s counsel also suggests that the County fraudulently concealed the fact that the
County was collecting fees and court costs under section 5 1.702 of the Government Code but not
paying the judge the salary to which he was entitled under section 25.0005(a) of the same code. See
Judge’s Brief, supra note 6, at 3. Fraud and the doctrine of fraudulent concealment prevent running
of the statute of limitations. See S. K v. R. V., 933 S.W.2d 1, 6 (Tex. 1996). Accrual of actions in
which fraud or fraudulent concealment occurred is deferred “because a person cannot be permitted
to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.” Id.
%ee Letter from Jason L. Wren & Jeffrey J. Wolf, Wolf+Law PC, to Honorable Greg Abbott, Texas Attorney
General, at 2 (June 2, 2005) (on file with Opinion Committee) [hereinafter Judge’s Briefl.
The Honorable Greg Lower-y - Page 7 (GA-0370)
Whether the County’s conduct in this case constitutes fraud or fraudulent concealment is a question
requiring an examination of evidence and the resolution of fact questions; it is therefore not
amenable to the opinion process. See Tex. Att’y Gen. Op. No. GA-0156 (2004) at 10 (stating that
fact questions cannot be answered in the opinion process).
c. Governmental Immunity
You ask second whether the County is immune from the judge’s claim for back pay.
See Request Letter, supra note 1, at 1. Though you refer to “sovereign immunity,” your inquiry
appears to concern the County’s governmental immunity. The terms “sovereign immunity” and
“governmental immunity” denote two different concepts:
Sovereign immunity refers to the State’s immunity from suit and
liability. In addition to protecting the State from liability, it also
protects the various divisions of state government, including agencies,
boards, hospitals, and universities. Governmental immunity, on the
other hand, protects political subdivisions of the State, including
counties, cities, and school districts.
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (citations omitted).
Irnmunity comprises two distinct principles: (1) immunity from suit and (2) immunity from
liability. See Travis County v. Pelzel & Assocs., 77 S.W.3d 246,248 (Tex. 2002); Gendreau v. Med.
Arts Hosp., 54 S.W.3d 877, 879 (Tex. App.-Eastland 2001, pet. denied). Immunity from liability
is an affirmative defense that is waived if a political subdivision does not raise it. See City of San
Benito v. Ebarb, 88 S.W.3d 711,720 (Tex. App.-Corpus Christi 2002, pet. denied). Immunity from
suit, by contrast, bars a suit against the political subdivision unless the state has expressly consented
to suit “in clear and unambiguous language.” Jefferson County v. Bernard, 148 S.W.3d 698, 700
(Tex. App.-Beaumont 2004, no pet.); see City of San Benito, 88 S.W.3d at 720; cJ: TEX. GOV’T
CODE ANN. 8 3 11.034 (Vernon 2005) (directing that a statute may not be construed to waive
sovereign immunity “unless the waiver is effected by clear and unambiguous language”). Any
ambiguity is “to be resolved in favor of retaining immunity.” Jefferson County, 148 S.W.3d at 701
(citing Wichita Falls State Hosp., 106 S.W.3d at 697). Thus, for example, section 89.004(a) of the
Local Government Code, which prohibits a person from filing suit “on a claim against a county” or
a county official “unless the person has presented the claim to the commissioners court and the
commissioners court neglects or refuses to pay all or part of the claim,” does not constitute an
express waiver of the county’s immunity. TEX. LOC. GOV’T CODE ANN. § 89.004(a) (Vernon Supp.
2004-05); see Gendreau, 54 S.W.3d at 879; Taub v. Harris County Flood Control Dist., 76 S.W.3d
406, 409 (Tex. App.-Houston [ 1st Dist.] 2001, pet. filed). In this case, you question whether the
County is immune from suit.
Neither section 5 1.702 nor section 25.0005 of the Government Code-nor any other related
statute pertaining to a statutory county court judge’s salary, see, e.g., TEX. GOV’T CODE ANN.
$4 25.0016, .25 11, .25 12 (Vernon 2004) (relating generally to excess contributions to the judicial
The Honorable Greg Lower-y - Page 8 (GA-0370)
fund under section 5 1.702 and specifically to the County Court at Law of Wise County)-clearly and
unambiguously waives a county’s immunity. The Texas Tort Claims Act, chapter 101 of the Civil
Practice and Remedies Code, which waives county immunity in certain circumstances, does not
apply here. See TEX. CIV. PRAC. & REM. CODE ANN. $8 101.001(3)(B), .002 (Vernon 2005)
(defining “governmental unit” to include counties; titling chapter 101). Under section 10 1.02 1, a
governmental unit, including a county, is liable for
(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of an
employee acting within his scope of employment if:
(A) the property damage, personal injury, or death
arises from the operation or use of a motor-driven vehicle or
motor-driven equipment; and
(B) the employee would be personally liable to the
claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use
of tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas
law.
Id. 4 101.021. Section 101.025 clearly and unambiguously waives immunity “to the extent of
liability created by this chapter,” and “[a] person having a claim under [chapter 1011 may sue the
governmental unit for” certain damages. Id. 8 101.025. In our opinion, a claim for back pay is not
a claim for property damage, personal injury, or death and therefore is not within the “liability
created by” chapter 10 1. See Assoc. Tel. Direct0 y Publ ‘rs, Inc. v. Five D ‘s Pub1 ‘g Co., 849 S .W .2d
894,900 (Tex. App.-Austin 1993, no writ) (stating that the term “property damage” ordinarily refers
to damage to tangible property, not economic loss or loss of economic opportunity); MO@ v. Univ.
of Tex. Health Sews. Ctr., 529 S.W.2d 802,804-05 (Tex. Civ. App.-Dallas 1975, writ ref d n.r.e.)
(equating the terms “personal injury” and “bodily injury” in the Tort Claims Act and suggesting that
the phrases mean damage to a person’s body); Hartford Accident & Indem. Co. v. Thurmond, 527
S.W.2d 180, 187-88 (Tex. Civ. App.-Corpus Christi 1975, writ ref d n.r.e.) (determining that the
phrase “personal injury” in the workers’ compensation statute refers to harm to a body’s physical
structure); see also Casteel v. Crown Life Ins. Co., 3 S.W.3d 582, 596 (Tex. App.-Austin 1997)
(stating that the phrase “personal injury,” as it is commonly understood, does not encompass lost
income or economic injury), rev ‘d on other grounds, 22 S.W.3d 378 (Tex. 2000).
Judicial opinions further suggest that governmental bodies are immune from suits for back
pay. See Bell v. City of Grand Prairie, 160 S.W.3d 691’693-94 (Tex. App.-Dallas 2005, no pet.)
(holding that a trial court did not err in determining that immunity barred appellants’ suit against a
city for back pay); City of San Benito, 88 S.W.3d at 723-24 (holding that immunity bars a suit against
a city for lost wages). But see City of Waco v. Bittle, 167 S.W.3d 20’26 (Tex. App.-Waco 2005, pet.
The Honorable Greg Lowery - Page 9 (GA-0370)
denied) (concluding that a city was not immune from suit seeking to compel the city to comply with
a statute requiring it to compensate the appellant for time lost as a result of a suspension).
The judge’s counsel contends that governmental immunity does not apply because the
County’s actions were beyond its authority. See Judge’s Brief, supra note 6, at 4. For a plaintiff to
bring the type of suit that does not require a waiver of imrnunity, the plaintiff must sue an officer or
officers in an individual capacity. See First State Bank of Dumas v. Sharp, 863 S.W.2d 8 1’83 (Tex.
App.-Austin 1993, no pet.). You do not ask about and we do not address here a lawsuit against the
County’s officers in their individual capacities.
The Honorable Greg Lowery - Page 10 (GA-0370)
SUMMARY
A judge’s action for back pay under section 25.0005 of the
Government Code is subject to the four-year statute of limitations
that section 16.004(a)(3) of the Civil Practice and Remedies Code
sets forth. A court likely would find that a judge should have
discovered, through the exercise of reasonable diligence, the salary
he was due. But whether a particular injury is a type that is inherently
undiscoverable is a question requiring the resolution of fact questions
that are beyond the scope of the opinion process. In addition, whether
the County’s conduct in a particular case constitutes fraud or
fraudulent concealment is also a question requiring an examination
of evidence and the resolution of fact questions.
Governmental immunity bars a suit against a county for back
pay brought by a judge who did not receive the compensation to
which he was entitled under section 25.0005(a).
Very truly yours,
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4141995/ | 666
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https://www.courtlistener.com/api/rest/v3/opinions/4142003/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1731208/ | 504 S.W.2d 887 (1973)
Quenton D. MARTIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 47607.
Court of Criminal Appeals of Texas.
December 12, 1973.
Rehearing Denied February 6, 1974.
*888 Holt & Tatum, Paul Tatum, Nacogdoches, for appellant.
Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
OPINION
ODOM, Judge.
Appeal is taken from an order revoking probation.
On October 5, 1970, appellant pleaded guilty before the court to the offense of driving a motor vehicle upon a public highway while intoxicated, second offense. Punishment was assessed at five years, but the imposition of sentence was suspended and appellant was granted probation.
A motion to revoke appellant's probation was filed on March 31, 1972, and the same was revoked and sentence pronounced on April 26, 1972.
Appellant's single contention is that the court abused its discretion in revoking probation in that evidence reflected that appellant was not competent to stand trial and due process required the court to halt the proceeding and conduct a hearing on the competency of appellant to stand trial.
Appellant relies primarily upon his October 29, 1964, commitment to Rusk State Hospital for an indefinite period, which recites that he was "mentally incompetent," all matters of fact and law having been submitted to the court. The docket sheet of the court below, in the record before us, reflects that a continuance in the primary cause was granted on May 11, 1970, because appellant was at that time in Rusk State Hospital. We also observe that the record reflects appellant was committed to Rusk State Hospital on August 24, 1964, on a writ of commitment for temporary hospitalization as a mentally ill person, for observation or treatment not to exceed 90 days.
All of these factors relied upon by appellant to support his assertion that the court below should have halted the April 26, 1972, revocation proceedings and conducted a competency hearing pre-date the original trial of appellant on October 5, 1970. Furthermore, the court certainly *889 knew appellant was at Rusk when it granted the May 11, 1970, continuance in this cause. Nevertheless, the court accepted appellant's plea of guilty on October 5, the judgment reciting "it appearing to the Court that the Defendant is sane." See and compare Holder v. State, Tex.Cr.App., 406 S.W.2d 436. That judgment carries a presumption of regularity and of conformity with the requirements of Article 26.13, Vernon's Ann.C.C.P. There was no appeal from the conviction and the record before this court does not reflect what inquiry was conducted before appellant's guilty plea was accepted.[1] That the question of competency was resolved against incompetency at the prior proceedings wherein appellant's plea was accepted is the only conclusion which may be reached on the record before us. Such finding would of necessity remove any pre-existing presumption arising from appellant's commitments in 1964. The question before the trial court was appellant's competence to consult with counsel and understand the proceedings at that time, and once decided in favor of competency, any earlier presumptions to the contrary vanish forever.[2]
In the instant case this argument is even more compelling, because the guilty plea was accepted by the same judge sitting in the same court as later heard the motion to revoke probation now before us on appeal. Consequently, he could take judicial notice of his prior determination made before accepting appellant's guilty plea. In such a case as this one, the presumption which would normally arise from a prior judicial determination of mental incompetence simply is no longer of force.
Finding no abuse of discretion by the court below, the revocation of probation is affirmed.
ROBERTS, Judge (dissenting).
I dissent to the affirmance of this case.
In Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517, this Court noted that the fact that a person had previously been determined to be "mentally ill" was not tantamount to a finding of "mental incompetency,"[1] but the finding of mental illness "standing alone" could be sufficient to raise the issue of present incompetency so as to require the trial judge to halt the proceedings and empanel a jury to determine the issue.[2]
Patently, a judicial determination of mental incompetency presents a far stronger case for halting the proceedings and empaneling a jury to determine the issue of incompetency to stand trial.
The record does not reflect that appellant was ever discharged from the Rusk State Hospital or that his mental competency has been redetermined by a court in accordance with Article 5547-83(a), Vernon's Ann.Civ.St.[3] While the judicial determination *890 that appellant was mentally incompetent was on October 29, 1964, the docket sheet in the instant case reflects that appellant's first motion for continuance in the primary offense was granted on May 11, 1970, for the reason that appellant was in Rusk State Hospital. The proceedings in the primary offense and the revocation hearing were both in the 2nd Judicial District Court. Both were before the same judge.
The only other evidence presented at the hearing on appellant's motion was a temporary commitment (and supporting papers in the cause) to Rusk State Hospital on August 24, 1964, based upon a finding that appellant was mentally ill, which was introduced into evidence by the State.
To summarize, the trial court was confronted with the following factors which raised the issue of the appellant's incompetency to stand trial:
(1) Appellant's motion to dismiss, while not a request to hear evidence on the issue of competency to stand trial as provided for in Article 46.02, V.A.C.C.P., did recite that appellant was under indefinite commitment to Rusk State Hospital and that his competency had never been restored.
(2) A commitment, dated October 29, 1964, to Rusk State Hospital for an indefinite period of time based upon a finding that appellant was mentally incompetent.
(3) A temporary commitment, dated August 24, 1964, to Rusk State Hospital based upon a finding that appellant was mentally ill.
(4) A continuance in the primary offense as shown by docket entry of May 11, 1970, reciting that appellant was in Rusk State Hospital.
In view of the foregoing factors which were before the court, I believe that the trial court should have halted the revocation proceeding and empaneled a jury to determine the competency of the appellant to proceed in the revocation hearing. Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517; Vardas v. State, Tex.Cr.App., 488 S.W.2d 467; Hefley v. State, Tex.Civ.App., 480 S.W.2d 810; Townsend v. State, Tex. Cr.App., 427 S.W.2d 55. The fact that the judicial determinations of "mental illness" and "mental incompetency" occurred prior to the trial of the primary offense, where it would appear that they were not brought to the attention of the court, does not preclude appellant from asserting lack of mental competency to stand trial in the revocation proceeding.[4]
Certainly, the unvacated judgment of incompetency put the burden on the State at that point to then prove the appellant's present sanity beyond a reasonable doubt. In Francks v. State, 109 Tex. Crim. 440, 5 S.W.2d 157 (1928), this Court was faced with a case where two unvacated judgments of lunacy existed at the time of the accused's trial for murder. This Court went so far as to hold that a memorandum which indicated that the accused had been released on the recommendation of a certain doctor was still insufficient to show that the judgment had been vacated or annulled. The Court spoke of the State's responsibility for "assuming the burden of proof on the issue of insanity in a case of one who interposes that defense, who is shown by the testimony to have been adjudged insane at a time prior to the commission of the alleged offense." Francks v. State, supra, at pg. 158.
*891 Also, in the case of Bolton v. Stewart, 191 S.W.2d 798 (C.C.A.Fort Worth), no writ, it was held that a prior adjudication of the plaintiff as being of unsound mind created "prima facie proof of her insanity at that time and that she has continuously been insane since that time, and the presumption of insanity will continue so long as she lives or until such time as it shall be judicially determined that she has been restored to sanity under our `restoration' statutes." Of course, such a presumption is rebuttable by the other party, but such party has the burden at that point to offer competent rebuttal evidence.
The case of Elliott v. Elliott, 208 S.W.2d 709 (C.C.A. Fort Worth), writ ref., n. r. e., stated that "an adjudication of insanity by the county court raises a continuous rebuttable presumption of insanity, and that only a judgment of restoration of sanity, entered in a proceeding brought for that purpose, will be sufficient to conclusively remove such rebuttable presumption."
I further refer the reader to our own Court's recent decision in Kalinec v. State, 500 S.W.2d 146 (Tex.Cr.App.1973). There the appellant made the argument that at a sanity restoration proceeding, the burden of proof was misplaced when it put the burden on the defendant to show that he was then sane. This Court correctly held that the issue was not properly before us, but, in dicta at least, stated that it was "very plausibly argued that the burden of proof was thus misplaced."
Perryman v. State, 494 S.W.2d 542 (Tex. Cr.App.1973) correctly stated that "the conviction of an accused person while he is legally incompetent violates due process, and that state procedures must be adequate to protect this right is settled." (Citations omitted).
I would like to distinguish three recent opinions by this Court. In Nichols v. State, 501 S.W.2d 333 (Tex.Cr.App.1973), the record contained no evidence of a prior adjudication of incompetence and held that the State was not required to rebut any inference of insanity. In Wages v. State, 501 S.W.2d 105 (Tex.Cr.App.1973), the trial court also determined that the accused had not previously been adjudicated insane and made extensive inquiry as to the accused's present insanity.
Finally, I feel compelled to further discuss and distinguish the Ainsworth case cited earlier. There, the accused had been previously determined to be mentally ill, but not mentally incompetent. We have both in the present cause.
I sincerely believe that the majority are ignoring what has been the well-recognized law of this State for many, many years. I do not know how much more evidence would be necessary before a trial judge would be required to halt the proceedings and determine the accused's competency to face the charges against him. I cannot help but question whether or not the majority would have reached the same result they have today had this been an ordinary appeal from a conviction and not an appeal from a revocation proceeding. It seems to me that a "not so rigid requirement" rule has been added to the law of probation revocation in Texas. What the majority say in effect is that since the trial judge failed to make such a determination in the trial of the primary offense, there surely must be a presumption of correctness in such action which is necessarily carried over to a probation revocation procedure before the same judge. Many attorneys refer to such logic as "bootstrapping."
I vigorously dissent.
ONION, P. J., joins in this dissent.
ON APPELLANT'S MOTION FOR REHEARING
ONION, Presiding Judge (dissenting).
The majority has overruled the appellant's motion for rehearing without written opinion. To such action I dissent.
This appeal is from an order revoking probation wherein the appellant contends *892 that the trial court abused its discretion "as the evidence introduced during revocation of probation[1] became sufficiently manifest as to appellant's present incompetance (sic) so that to require under due process of law to halt the trial and conduct a hearing on that issue on his own initiative before proceeding further."
The record reflects that on October 5, 1970, the appellant waived trial by jury and entered a plea of guilty to the indictment charging him with the offense of driving a motor vehicle upon a public highway while intoxicated, subsequent offense. The court assessed the punishment at five (5) years, but suspended the imposition of the sentence conditioned in part that he "(a) Commit no offense against the laws of this State or any other State or the United States."
On March 31, 1972, the State filed its motion to revoke probation alleging that on or about March 4, 1972, appellant committed the offense of being drunk in a public place "to wit: the Bull Shed, a place where people go to dance and for public amusement" and that on the same date he did make an obscene and indecent exhibition of his person.
On April 10, 1972, appellant filed a motion entitled "Motion to Dismiss" the State's motion to revoke on the ground he was "under an indefinite commitment of insanity from the County Court of Nacogdoches County . . . ." in Cause No. 1457 and that he was "unable to stand trial." On April 20, 1972, a subsequent "Motion to Dismiss" was filed based on the same ground and further alleging the appellant was under an indefinite commitment at the very time he entered his plea of guilty to the felony offense here involved.[2]
On April 26, 1972, a hearing was held on appellant's motion to dismiss.[3]
At such hearing it was shown that on August 24, 1964, the appellant had been committed to the Rusk State Hospital for temporary hospitalization as a mentally ill person based upon an examination by two doctors, both of whom certified to the County Court that the appellant was mentally ill. On October 29, 1964, the record reflects that the appellant was committed to the Rusk State Hospital for an indefinite period as a "mentally incompetent" person. At the time of such commitment the appellant was in such hospital.
The County Clerk testified that the records of the County Court did not reflect that the appellant had ever been restored.
The "Motion to Dismiss" was overruled and the State proceeded to offer its evidence on the motion to revoke. Doug Nicholas, owner of the "Bull Shed," testified his place was one of public amusement where people danced and where he served Cokes, setups and sandwiches. He related that about 10:30 p. m. on March 4, 1972, he discovered the appellant urinating near the entrance to his business establishment while men and women were entering such place. He expressed the opinion appellant was intoxicated. Two Highway Patrolmen, who were called to the scene and arrested the appellant, expressed the opinion that the appellant was intoxicated.
*893 It was this evidence, along with those records of the instant case of which the trial judge could take judicial knowledge, which the appellant contends should have caused the trial court to halt the proceedings and have a hearing to determine competency.
Among the records in this instant case, we find the following:
The indictment in the felony driving while intoxicated case was filed on March 11, 1970, alleging the prior conviction and that the subsequent offense occurred on or about February 21, 1970. The docket sheet in such cause reflects that appellant's first motion for continuance was granted with the notation "Defendant in Rusk State Hospital." As earlier noted, the plea of guilty to the felony case was entered on October 5, 1970. The transcription of the court reporter's notes of such guilty plea is not in the record before us. The printed judgment form reflects that ". . . and it appearing to the Court that the Defendant is sane . . ." Nothing before us reflects whether the court heard any evidence or conducted any inquiry into appellant's competency at the time.
On original submission the majority concluded that the finding in the judgment entered on the plea of guilty regarding sanity acted as a restoration of competency and that "Such finding would of necessity remove any pre-existing presumption arising from appellant's commitments in 1964."
The majority thus concluded that one method of restoration of competency after a person has been committed for an indefinite period as a mentally incompetent person is for such person to be charged with a felony, come before a District Judge and plead guilty and have such judge make a finding that it appears the person is sane, without any requirement that evidence be heard on the issue, etc. This is true, for this court has held that to satisfy the requirements of Article 26.13, Vernon's Ann. C.C.P., the court need not hear evidence or make inquiry into the competency of a defendant unless an issue is made of the same. Zepeda v. State, 110 Tex. Crim. 57, 7 S.W.2d 527 (1928); Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970); Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); Williams v. State, 497 S.W.2d 306 (Tex. Cr.App.1973); White v. State, 495 S.W.2d 903 (Tex.Cr.App.1973); Thorn v. State, 491 S.W.2d 425 (Tex.Cr.App.1973) and cases there cited.
And it should be borne in mind that in cases where there is a prior unvacated judgment of insanity the presumption of the sanity of a criminal defendant disappears and the burden of proof is placed upon the State beyond a reasonable doubt to show the sanity of the accused. Breland v. State, 489 S.W.2d 623 (Tex.Cr.App.1973); Nilsson v. State, 477 S.W.2d 592 (Tex.Cr. App.1972); Ex parte Tuttle, 445 S.W.2d 194 (Tex.Cr.App.1969); Fuller v. State, 423 S.W.2d 924 (Tex.Cr.App.1968); Gephart v. State, 157 Tex. Crim. 414, 249 S.W.2d 612 (1952); Murray v. State, 147 Tex. Cr.R. 474, 182 S.W.2d 475 (1944).
I find it regrettable that the majority found it necessary to hold that a trial court's findings on a guilty plea as to sanity where there is no requirement of a hearing, etc., restores the individual to competency where there is a prior unvacated adjudication of incompetency where the same would not be true if there was a not guilty plea and evidence of the prior adjudication is offered.
Actually, in my opinion, the majority need not have made such a holding. If the finding on the guilty plea did not restore the appellant's competency, then when the unvacated adjudication of mental incompetency was offered the burden of proof shifted to the State to show his competency to stand trial beyond a reasonable doubt. If it can be argued that the finding on the guilty plea was in fact a restoration *894 proceeding and did remove any preexisting presumption, nevertheless, the evidence before the trial court showed a long period of mental difficulties, lapse of approximately two and one half years from the guilty plea to the time of the revocation hearing together with the claims that he was not competent to defend himself, and the fact of his unusual conduct alleged to be a violation of the probationary conditions. I cannot reach any other result under the given circumstances except that the trial court erred in not conducting a separate competency hearing before a jury before concluding the revocation hearing. I cannot reach any other result under the given circumstances except that evidence of appellant's present incompetency was sufficiently manifest at the revocation hearing so that the due process of law would require the trial court to halt the proceedings on his own initiative and conduct a separate competency hearing before a jury before proceeding further. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.1973).[4]
Further, it should be remembered that an accused is not required to prove actual insanity or incompetency to stand trial before the trial court is required to conduct a separate hearing on the matter. Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App. 1973). "If this were the rule, the separate hearing procedure would become meaningless." Ainsworth v. State, supra; Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App. 1973).
For the reasons stated, I dissent to the court's action in overruling appellant's motion for rehearing.
ROBERTS, J., joins in this dissent.
NOTES
[1] Furthermore, the adequacy of such inquiry is not before us for review, this being an appeal from the revocation of probation and not from the October 5, 1970, conviction. At this date appellant's recourse, if any, must be by writ of habeas corpus.
[2] The record contains nothing originating during the period between acceptance of appellant's guilty plea on October 5, 1970, and the revocation hearing on April 26, 1972, which would raise a question concerning his competence to consult with counsel and understand the proceedings at the revocation hearing.
[1] Article 5547-83(b), V.A.C.S., provides:
"The judicial determination that a person is mentally ill or the admission or commitment of a person to a mental hospital, without a finding that he is mentally incompetent, does not constitute a determination or adjudication of the mental competency of the person and does not abridge his rights as a citizen or affect his property rights or legal capacity."
[2] In Ainsworth v. State, supra, this Court noted there were factors which tended to negate appellant's incompetency to stand trial and concluded that the record supported the trial court's determination that the issue of present incompetence did not exist.
[3] Article 5547-83(a), V.A.C.S., provides:
"The judicial determination under this Code that a person is mentally incompetent creates a presumption that the person continues to be mentally incompetent until he is discharged from the mental hospital or until his mental competency is re-determined by a court."
[4] The case of Holder v. State, 406 S.W.2d 436 (Tex.Cr.App.1966) should be distinguished. There, this Court held that the issue of the accused's present insanity was not raised where he offered into evidence an order showing that two years before, he had been temporarily committed for 90 days.
[1] From the agreement advanced in support of such contention, it appears that appellant is also relying upon the evidence offered in support of his "Motion to Dismiss Petition for Revocation of Probation."
[2] The record is in some confusion. We find another "Motion to Dismiss" filed on February 10, 1971, but no motion to revoke in the record to which it might relate. The motion to dismiss was overruled.
[3] It is obvious that the motion was mislabeled because the appellant would not have been entitled to have the revocation motion dismissed or quashed because he was incompetent to stand trial anymore than an indictment should be dismissed because the accused is presently insane or incompetent to stand trial on the merits.
[4] While Pate v. Robinson, supra, would not require a jury finding on the issue, Texas law would. Townsend v. State, supra footnote #3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4141997/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
i
a- c. MANN
1IIQ*nNun)rL
.
: for 4n op
r qua.lfica~
of M81d4a08
la th8 state tb ?4x4?aptioa
Certlflaoter amide&as af
Ga1vsreon en
were met ‘chn :~%z941.
~fmknoth4r Stat44
now live wt.thtfreia
4WXlWjUS8830&t Ofd4V4b&iIkt IUld
irr'd+kllSa pFOjWt8, curd Othalr8,
hi8 COtmty,~ there 8~4 a gPbat, atibep
the. Sate of Teuri'wixo r4aah4d
Jan- lat, lf#l, who would
ffbd firrmvo~tlngii th4y am not
entltlsdto ex4mptlon~Osrtifioat48,iq q 4lwtion
hela.daringthe p4r 1942 srtdinto the,ecrrl~popWan '~.
of 1943; th4r4ior4.tI?amatter vu1 hqive‘tobe aetea-
mLpbd '38to uh4ther th684 p4OPl4,WhCWillharv4F4Si-
deat quaLLflcatioaaB4for4 any eleotian,are 4ntltled
to aa gr4mptlcaCartlflaatrr "
%onoz%bl%fZb%.r~%a
B. l'h%4~d, Pi84 2
It i8 OUF bXfmtiO?l th%t the ~~~tiOZl Of mte8tCCl
County 18 81,173,sod the poptthticn Of the Oity of QtiY%8t%Xi
gas 60,862, aocording,totha F%d%ti c%llSOa Of 1940.
"A pCrl.3
trU Su b% aOll%et%dima %wwy pa~8on
betmMntheage8 of twaty-cneBpd8lx);Jyems who
l'48~inthk%fht%t% OBth% ft?8tdsJOfJslmcrryp~-
ceding it8 levy, Iadlaw not t%xeQ,p%r%ckn% lIl%W%,
b&S%, dJ3SfOS@!Bbt ZW tbo8%~h%hn~%108t8hsnd
03 root, 0~PO dluabd, exoept%d.Tt f&all
nsaubkntlly
be p%ld at any tlm% b%tw%w tb% flmvt d%y or Ootob%r~
and the flrrrtday af Pebrnery folloyUg~ aad the pep-
eon wbesahe pap ft, fshsll bo eatltledto his poll tax
r4ceipt,evea if bfr other t%X48 %r% u&p%ld."
) ~ergpsrbanwhr,isplorethur8ixtpy~~ aid
or who 18 blind ox d%%f or dumb, or is p%m%mntly
disabled,or h%a lost On% h%nd or foot* Oh%ll b% %ny
t%tl%d to vat% wlthoutbs%ag r%qulx%ato pay a poll
t8X, if h4 ha8 obtatsed bi8 O%FtifhtShteOf %X%SQtitXl
frc%tth4 oot.mtytax col3eotoP'wh%a th8 Iram%ia liw&r%d
by th% pr4~~8mul Of this tit&e."
In thb caee if Pswkelr
VII.,
Rudy (&Dir. ADD.).170
9. bf.1042, it i8 8ddt
%l% WOrd8 'DC&k tax' amaa a tax upoa a'pamoa-
a C%~it%tiOnt%X-%YA&iPthi8Stat% SOOht%X .fS
levi%d by l.%wupon %3.lJn%zopimWm% betw%%n 21 and
60 yeacs of age with certainexaeptionsnat n404%8%ry
to bahsm statedi44%'
In otu opinion30. O-2208 #a%8 d%prtmeat bald1
"A parson i¬ linbfe far the payplantof the
PO11 tRX Ud%S8 h% aheu h%VS l'%illi&d %3Xt&28 4tat4 Ol!A
ths first day of JatnIarypr%%%d2lqfto lsrgkrg;it
fO114lI8that a D4rSOIlwho ltloV48
t0 24X%8 fSX% %ZIOthsF
stats Is Harah of th% yser 3939 ie pQt Ii%b~e for th%'
p8ym8ntofapoll tax $0 qurlvyhipto vca% In th%
year 1940. mPZW8t Vdr wOOdls8, 208 & w.'963 (ot.
'2%~.App., mit diECdSS%d).”
I jonorableChasrler
11.Ilaea&$d,~
Psge 3
m, fo11or8, th%rsfor%,that und%r th8 fact eubnritt%d
g qu.-u.t. thoss pemton8vho ,dldnot reside in Qalvsstoncoun-
on Sang l,@U, wauld not b4 liable Sor.noraub-
j4& to $y a poll tax uadsr th% law8 Of the St&+4 Of %%Xa8 for
that y0ar.
I~'.* + + pl'OVid4dthat 'sayWt4r wfia.i8eubbgest
to p&j a poll tz3Xunder tih4law8 of thin M.&4 or
OrdiaallC48 Of eLIyCity ?P tOWXiOf t-8 e't4t4,Eihsll
havq paid said tex ?4@m offer%% tb vote at any
eleationIs this state 8M%Jlds 4 reoelpt eh6wing '.
that said poll.tsxwas.pei8before the let day,oS
PebruarJEext preeed*~ suah electi%az) and; If said
VOtSP ~123 0XeSlQtf&l!ApZb* S'pou .t= aad T4eide8
in a city of 10,000 inhabitantsor more, he OF she
muat~procum a certificate,ehowinghisNor her'exemg-
r’-
> tion ea. r4qulredby,this title.;** f (Dndewaoring
! cura)
Article 2968, of thtvRevIseit Civil Stetutkaof GO,
providea:
NEwry person who itsexemptedby law fms the
payznentoi'thepoll tctx,~Eher reapepta
%a~4 bbaone entitledto ‘an& exemptionoIa$aln
from the
tax collectorof th8 coun~'of his or he~~m&!lena4,
a certlficat~ ahowlaghis-OF.her exmtiok from +&e
paymsnt of a poll tax." (Uizdereooring
oura)
'St& ex t pama. S& &$ath atatb’hiensntb,
age; i-444, noun a.%@.qW&m, length of
"$ y of reraidsnae;
tlms h% hss resided,3n eaid county;snd the length OS
time ~Lnthe city, and the aumbw of th% ward 02 voting
precinctin wI&oh &9 mafib8, and f&au al80 state his
street oddreasby am114 and amber, if nutnbsred, axidthe
@'CfUnd8 -on Which from payiS%nt Of
h4 claim8'exemption
a PO33 tax."
EonorabZeCharlesII.Theobald, pago 4
Art1010 2968~~ of tha Re&ed Civil statutesof Texas,
pi-ovidh
r
Qvemy person not Jn&t. to.the ciisquau.fioa-~
tio&J pat out in AlW~lO 2954 of the Revisedcivil
StatutesOS 1925 who..does not rqrlde in a city OS
10,000 lnhabitantaor more, ana uriola exempt mcm
The~3mentofauolX taxbrreat3onof the iaetthat
he.or she has not-yetx%mh&~the age of 21 year#&
the let day Of JanuaTgpreaedidgfta levy, or who~is
exempt Sivm the payabat OS a poll tax beoause hr 0~.
she~warn0t.e residhntof the stat* on the 1st day of .~
January precedingits levy;btatwho &all. have since
become eligibleEo~voteby resscm of length ai’~reaidenoe
or age, ahall, on op batore the 3lqt day of danu8ry of
the yeax in whhh h6.or she offem to vote, obtak, fro@
the Asseeeorand Colleotorof Taxes for the countyOS
i
Us or her reaLdenee a certlflcat.8of exesptia firm
(
and no such personwho ltae
the paymentof a pOl3 .tax,~
mm3 or ~rerclsed
to obtaaiaaaoh certiflcsteOf exemp-
;p qmgrralthepa~ntofspoll~ smll+eallowed
to vote. I
"Suoh exemptjxmon abaU on oath etate ais name’:,
age, raoe, oormtf of rmldence, oacupation,length of'. ’
t-8 he ha8 msidedinthe Stata Of If~X8~,~th~l~th
oftlmeheha~ res3.dedlninldoounty, the lengthof
t&e ln the aity, and the ntnnbe~of the wsrd or votIzqg
~preoinctin which ha r08ldew,and shall ala0 state hL61
.streetaddmaa by name and numbel), if numbered,aad
his or her rural address iz not 8 res+dent~ of'a city
or villJ3gs.He shtal also state the griermds upon whloh
he ola3.m sxemptioxi Sram the payment of B poll tax, and
pertainingtomforeign-born
sxch I.nSor?PatI.aP oitixti
oa is's& out in the certificatehemI+after preaml.bed.'
(TJnderseoringours) .. ,.
In the case of Clapk VII,Stubb'(Ct..Civ:Apgl)~13T 3. w.
(26) 663, the court,heldt
wAppelleechalUmged-the votes of *-+ l bearwe
each of them became 21 years of a&m per January,
1938, and p:riorto ~ovembex8, 1938, ~(thedate of the
election) and under the governIs statute,therefore,
they were not entitledt0 vote Vith0Ut q eXe-85@10~
c.ertftlcate. Artic3.e2$G%a;+V&r~on~aAnni Oiv. Stat.*
Ads of 1935, 44th big. p. 686, dh. 292, Seoi 1,~ pm-..
vfdes that each of the voto&stiqueatLonuaa requiretd
to obtain an exemptionoartif%ate before he OF'.she
HonorableObm~es..H.!Fheobald,
page 5 -
would bo entztlodtm vote. Roither of thm obtained
such..aaertificate. The atatutoIs mmadatoryand
these votem were not qualifiedto vote tit.$heelec-
tion,snd the trial oomt correotl~excludedall or :
such votes.a
Ih tab case of Ro@mi 61, Smith et al, lli38. W. (26)
~’
678, the Boawmaat. Co?irtof Civil Appeal8held that, In an oleo-
tion coateat,the reSusal(u1the part of tie dfistrfat cowt hea+
ing sauteto otamt~ a vote by a party who beoame 21 yearn of age
beforean olo&&on held og April 3, 1937, and subsequentto
Jyluar~1. 1937, ~88 not error,, wham ,maohvoteo failed to ob-
taln from the.tax aasesaop,+ndoolleator a scrrti.fioatC’or
eiemp- ..
tion and that such psrsonwa8!not a qtxal%Sfed voter..As allthor- :
ity for thla holdins,the oeurt cited Artfole 296&r,Vernoa8~
zt;tsd .$lF” Stfutes, ~f~Ct+ ~1935,44th I.eg.,p.~686, e. 292,
. . . ...~.
It till be noted tbat with the exceptionoS~the prorf-
,sionid A&ale 296&s, aupra, that there 5.eno.spoolfiastatutory
sxemptionwith ref&mncs to personsmoving Into thin.state eubao+
JBDIUL~ lat of tha 'par for whioh the polX,tax Iti
quent tom, 'loviqd.
It will Abenoted that w provlslom of A&lclo -68, euppa. am
applicable,to “Everyperson who.Is~exemptedby lav from $3~ pay-
ment of tha:poll tax. Doea this statuteinaludo;by I.n@Zoatlom,
.person#moviag into the State of Texas.subsequentto January1st
of the yeax .Sorwhich the poll tax 18 levied? ( :.
In cooley on l’axatian, 4th Ed. Vol. 2, sec..
,651i,~
it is
2dll: ,. "."
I"!kbxex0lnptlonAxe of two klads. 'Ehs'sirat ldaa
is an exprtiss exemption0s aertulnprepertrfrcm all, .’
of ceri~@ taxes, eitbeel entirelyor In.part.*‘:**
The sooomdkind ia an exemptionbp omissionvb%oh map
be .oithoraccidentalor intentional,as vhme the tax
le laid on certainnamed propertywithoutmentImIng
other property. Every ststutefor the levy of’taxee
is 5~3a s0u.s~) a statutemking exemptions;that i* to
say, it leavesmany thingstmtaxsd whLch it would be
entlrolycompetentto tax if the legislaturehad deem-
od It wliseor go32tio.”
In th4 aam4 Of ~h4lopW *il.City of Austin (CUP. Gt.
App. 5th cir.) 85 Pes38nl359, it ia so.ldt
a%xl?ultptlQn’
meoneiros fromliabIlIty,from
duty, rrcu 4*rvh4. Xtia 8gnoo,8 fsvorand lm-
munltyj taken out rrcm lxldarth4 g4n4r41rul4 not to
b4 llk4 oth4m who 4z4 not oxomptj r404ive4&s not
! mak48r4turn~’ *
I xt 18 our Qp3nion,th4nroP4, thnt th4 x.&.sla~ Y&-
I/ taded to lnalwl4, wfthin tha pmaw of AFti0l.e 2968, gupra,
thO84 p4Psoa4who didnotrori& in th4
stat4 0iPezsa onJsn-
I lJbrylsto?th4yeaProrvh%oht.h~pQll taxirl4lrlijdandvhO
! reddS kr a Sity Or t&l thOUapnb lnhabitants~Or mope and who
are
in other ruapoet6purrlititi votmra a* oontempl4t4din Article
2955 0r VOFXIC~~~S ci0fl stetot9~4 OX w-8.
! Tollare, th42e0rs advirod,ia 4nmmP to yaur qoeation~
! tat th08+3p0m~~h0hsv41110~4dint4 th4 stat4Or~42548snd
your oounty after January lt
1941, under th4 ruling in the ~884
of Ulmk VI).8tubba.supraeand Roger8 VII.spit& et al, eupre,
and who do not reside inn city or 10,000 fphabitants~ Qrnore,
and who hare eince bmmtu3 eligiblete vote by m88on 0r.x43gpih
of r4si&m44 8a oontempla~ed ti Arttile,2955,supa, are entitled
I to bo ismued 04Ft1fuat48'0r 4xemptlanvlthln the p,rovlsioIm or,
and es aonteatplatod in, Article 2968% of the R4vls4dCivil Stat-
utes or T-S.
YOUS~S fbth8r~dvmd ehstiti~ th4 apiai~0rthi~
departssentthat under the ruling in the 0444 of Clark vs. stubba,
t supra,and Roger4 VI).smith, et al, snpn, that those emionswho
have moved late the State of !femr aface Janu4ry 1, 19i1, sab are
j In other nspcrotcl qualWl4d voters ai3 *ontomplatodin Art1014
1 2955, tmpn, 81~3who neide 33161t3fty0r 10,800 bhabitanta or
more, are, under th4 provt8iaxu 0r ktio14 2968, 4ntasd to re-
ceiv4 corttiiicrtes 0r exsraptidn~FOIUth4 p4yment or poll tax a8 ,
i therelw4os#xmploted sad provided.
!t We trust that la th;his
mannor ve have fully 4nswew4d
YwaP
,..lnqtlby.
!
I
i
1~ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142015/ | OFFICE OF.THE ATTORNEY GENERAL OF TEXAS
Bonor8blO-modBorrir
oountyAuditor
Polk countl ..
Ll*lagston,?*xsa
Your rw3.ur~t for an
omulrrrl~rrr'Co&t &.ly authorizer
r r r lr ta l
nt
d do o rno tnus a o rb o a -
t 1s our oplalon, uader the rtrthortti~r
a. O+O, O-875 and O-1954,eopleaot
hioh an 8 hrrowlthSor your ltioraablcm,that suoh
lppOi~ttSJlIt WOUl6 ;aot h ilb&.
COMMilTEE | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4145689/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN /
amILD c. MANN
mr.*. ..“.UL
r Eon; 8. I..Shelton
.. County hudltor
Johnson County
4
Cleburne, Texas.
Dear Sir:
Cplnlon %. C-724
how nuEh per diem?"
*Transport& ion ot prboners. The mana-
gar shall wake suitable provision8and regu-
latlons for the cafe and speedy tran~orkatlon
of prisoners tron couutlee where oentenoed to
the State penltentlery by the sheriffs of such
Eon. E. L. Sheltm, June 8,1939, Page 2
reqmatloe counties if auoh sheriffs are will-
Ing to perform such aenloea as ohaply as
aald oaamIaaloo een have it dam otherrise.
j 3ald traoaportatlonshall be on State aoaount
and In no laatanoe shall the prlaooera be
oarrled direct trcnathe oounty jails to the
State farm, but shall rlrat bo oarrled to the
reoelving station as designated by the prison
board ahera the aharaoter of labor which each
prisoner may reasonebly perfom shall be deter-
nlned...."
It la apparent from a readily of the above ata-
U&that It la the duty of the ma.mger of the prison
system to make suitable provisiona and regulations ror
the sate and speedy tranaportatlonof prlaonera froszcoun-
ties where aentenoed to the state penitentiaryby the
aherltta of auoh respective countlea It auoh aherlfta are
wlfllng to perform auoh aervloea as oheeply as Bald oaa-
mission oan have It dons othemlae. It la further appar-
ent that if auoh aherifta ere not wiUlng to perfcm such
eervlaea as cheaply as said conm.ls~loncan bare It done
otherwise, then in that.event the prison oomlaalon, through
Its menager may oontraot ior auoh aenloea elaawhere. We
oan aae DO tagel InhIbItIonrhieh would prawent the mana-
ger ot the rlaon ayat=, either personally or by some
legslly luttorbed agent, traa oontraotlngwith the oca-
mIaalonere~ oourt of the oouaty ror the providing or over-
night lodging and feeding of state prisoners on the way
to the penItentIaryby the oouaty in the oounty jail. Be
can see no lo@ InhIbItIonwhleh would prevent an lnde-
pendant contraotor,hr,rlnga contraot with the manager of
the prison spat to transport prlaonera from countlea
rhera aentanoed72 the atate penltentlary,iram oontract-
Ing with the oo~aalonera* oourt of the oouaty for the
prorldlag of overnight lodging end feedlq or state prl-
boners on the my to the penitentiaryby the county In the
eountg jaIL
Therefore, In enawef to your question,you are
respectfullyadvised that It la the opinion of this de-
partment that any valid olalm tor overnlcht lodging and
feeding of prlaonere on the wey ti the paftentlary should
Eon. S. 1. Shelton, June 8, 1939, Page S
be preaknted to the party or ayatea oontraotlng for
auop overnight lcdglq and feeding of prisonore. You
am further respeotiullyadvised that the amount of
the claim or olalma should be the amount prevloualy
agreed upoh or contracted for by and between the per-
ties to the ooatreot.
Trusting that this anewem your lnqulr~, we
are
APi??OVED:
COMMIREE
X-l’Oi?!EY
-*w DIs?liXAL
OF TE | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126090/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 14, 2017
Plaintiff-Appellee,
v No. 329755
Wayne Circuit Court
LEMARR ROBINSON, LC No. 15-004308-01-FC
Defendant-Appellant.
Before: WILDER, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury conviction of first-degree criminal sexual conduct,
MCL 750.520b. We affirm.
Defendant first contends that the trial court committed error requiring reversal in
permitting the victim’s aunt to testify, pursuant to MRE 803A, concerning statements made to
her by the victim, who was then between 7½ and 8 years old. Defendant argues that the
statements did not meet the standards for admission under MRE 803A and were inadmissible
hearsay because they were not spontaneously uttered as required by this hearsay exception. We
disagree.
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). A trial court abuses its discretion
when its decision falls outside a range of principled outcomes. People v Nicholson, 297 Mich
App 191, 196; 822 NW2d 284 (2012). However, we review de novo preliminary questions of
law, such as whether a rule of evidence precludes admission of the evidence. People v Gursky,
486 Mich 596, 606; 786 NW2d 579 (2010). “[I]t is an abuse of discretion to admit evidence that
is inadmissible as a matter of law.” Id., quoting People v Lukity, 460 Mich 484, 488; 596 NW2d
607 (1999).
“‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception
to the hearsay rule. MRE 802. MRE 803A provides such an exception for a child’s statement
regarding sexual assault in certain circumstances. MRE 803A states, in relevant part:
-1-
A statement describing an incident that included a sexual act performed
with or on the declarant by the defendant or an accomplice is admissible to the
extent that it corroborates testimony given by the declarant during the same
proceeding, provided:
(1) the declarant was under the age of ten when the statement was made;
(2) the statement is shown to have been spontaneous and without
indication of manufacture;
(3) either the declarant made the statement immediately after the incident
or any delay is excusable as having been caused by fear or other equally effective
circumstance; and
(4) the statement is introduced through the testimony of someone other
than the declarant.
“The question of spontaneity, at its essence, asks whether the statement is the creation of
the child or another.” Gursky, 486 Mich at 613. “[F]or such statements to be admissible, the
child must broach the subject of sexual abuse, and any questioning or prompts from adults must
be nonleading or open-ended in order for the statement to be considered the creation of the
child.” Id. at 614. Trial courts are required to “review the totality of the circumstances
surrounding the statement in order to determine the issue of spontaneity.” Id. at 615. “[A]
statement prompted by an adult’s question specifically concerning sexual abuse is not
spontaneous.” Id. at 618.
Here, both the victim and her aunt testified that the aunt was in her bedroom watching a
television show about molestation when the victim, then 7½ to 8 years old, came into the room
and sat in her aunt’s desk chair and swiveled around in it. The victim overheard a woman on the
show state that she believed her child’s father was touching the child inappropriately. Upon
hearing that, the victim asked her aunt if she could tell her something in private. The aunt told
the victim she could, paused the television show, and told the victim to shut the bedroom door.
Thereafter, the victim told her aunt about defendant’s actions.
Upon review of the record, it is clear the trial court reviewed the totality of the
circumstances surrounding the statement. The trial court found that the victim “initiated the
conversation,” that her statements to her aunt were “disclosed without prompting” and were
spontaneous, and that there was no credible evidence that she manufactured the story. The trial
court further noted that, while the content of the television show was a “trigger,” the victim’s
statement was not initiated through question and answer or prodding by her aunt. We agree and
conclude that the aunt’s testimony about what the child told her was admissible under MRE
803A as a matter of law. Upon overhearing a woman on a television show talk about a situation
that was similar to what had happened to her, the victim then initiated the conversation with her
aunt. The victim’s statements were her own creation and did not arise from “prompts” or “in the
context of questioning by an adult;” instead, she broached the subject. See id. at 614. The trial
court’s decision falls within the range of principled outcomes. See Nicholson, 297 Mich App at
-2-
196. Therefore, the trial court did not abuse its discretion or err as a matter of law in admitting
the aunt’s testimony under MRE 803A.
Next, defendant contends that he was denied his constitutional rights to present a defense
and to have a properly instructed jury when the trial court refused defendant’s request to include
the phrase “good sexual morals” when instructing the jury on M Crim JI 5.8a. We disagree.
A claim of instructional error involving a question of law is reviewed de novo, but a trial
court’s determination whether a jury instruction is applicable to the facts of the case is reviewed
for an abuse of discretion. People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). A
court must give a requested jury instruction on a theory or defense if it is supported by the
evidence. People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). “The defendant bears the
burden of establishing that the asserted instructional error resulted in a miscarriage of justice.”
Dupree, 486 Mich at 702.
M Crim JI 5.8a provides in pertinent part:
(1) You have heard evidence about the defendant’s character for
[peacefulness / honesty / good sexual morals / being law-abiding / (describe other
trait)]. You may consider this evidence, together with all the other evidence in
the case, in deciding whether the defendant committed the crime with which (he /
she) is charged. Evidence of good character alone may sometimes create a
reasonable doubt in your minds and lead you to find the defendant not guilty.
Concerning M Crim JI 5.8a, the trial court instructed as follows:
You have heard evidence of the defendant’s character for being a law-
abiding citizen. You may consider this evidence together with all the other
evidence in the case in deciding whether the defendant committed the crime with
which he is charged. Evidence of good character alone may sometimes create
reasonable doubt in your mind and lead you to find the defendant not guilty.
Defendant argues on appeal, as he argued in the trial court, that there was sufficient evidence to
support including the phrase “good sexual morals” in the jury instruction. Defendant contends
that the jury instruction should have read: “You have heard evidence of the defendant’s character
for good sexual morals and being a law-abiding citizen.” The court found that the evidence did
not support the inclusion of “good sexual morals” in the instruction, and we agree.
Defendant’s mother testified that defendant had a reputation for being trustworthy and for
honesty. She had never known him to do anything “out of line” or “to alarm her” with his
children, and none of the children shied away from him or thought he was a threat. The mother
of defendant’s two children, an 11-year-old boy and a 5-year-old girl, testified that he was good
with the children, watched them three or four days a week, helped them with their homework,
took them to movies, was very active in their lives, and provided financial support. She said that
his reputation in the community was that he was a “nice person, a good father, hard worker, fun
to be around.”
-3-
As the trial court held, the testimony by defendant’s mother and the mother of his
children did not speak specifically to “good sexual morals.” Those descriptions of defendant’s
character supported an instruction that included “law-abiding.” Therefore, the trial court did not
abuse its discretion by instructing the jury on M Crim JI 5.8a without including the phrase “good
sexual morals,” because such instruction was not supported by the evidence. See Dupree, 486
Mich at 702; Riddle, 467 Mich at 124. Accordingly, defendant’s claim of instructional error is
without merit.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
-4- | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289306/ | Cite as: 585 U. S. ____ (2018) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MARY ANNE SAUSE v. TIMOTHY J. BAUER, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 17–742. Decided June 28, 2018
PER CURIAM.
Petitioner Mary Ann Sause, proceeding pro se, filed this
action under Rev. Stat. 1979, 42 U. S. C. §1983, and
named as defendants past and present members of the
Louisburg, Kansas, police department, as well as the
current mayor and a former mayor of the town. The cen-
terpiece of her complaint was the allegation that two of
the town’s police officers visited her apartment in response
to a noise complaint, gained admittance to her apartment,
and then proceeded to engage in a course of strange and
abusive conduct, before citing her for disorderly conduct
and interfering with law enforcement. Among other
things, she alleged that at one point she knelt and began
to pray but one of the officers ordered her to stop. She
claimed that a third officer refused to investigate her
complaint that she had been assaulted by residents of her
apartment complex and had threatened to issue a citation
if she reported this to another police department. In
addition, she alleged that the police chief failed to follow
up on a promise to investigate the officers’ conduct and
that the present and former mayors were aware of unlaw-
ful conduct by the town’s police officers.
Petitioner’s complaint asserted a violation of her First
Amendment right to the free exercise of religion and her
Fourth Amendment right to be free of any unreasonable
search or seizure. The defendants moved to dismiss the
complaint for failure to state a claim on which relief may
be granted, arguing that the defendants were entitled to
qualified immunity. Petitioner then moved to amend her
2 SAUSE v. BAUER
Per Curiam
complaint, but the District Court denied that motion and
granted the motion to dismiss.
On appeal, petitioner, now represented by counsel,
argued only that her free exercise rights were violated by
the two officers who entered her home. The Court of
Appeals for the Tenth Circuit affirmed the decision of the
District Court, concluding that the officers were entitled to
qualified immunity. 859 F. 3d 1270 (2017). Chief Judge
Tymkovich filed a concurring opinion. While agreeing
with the majority regarding petitioner’s First Amendment
claim, he noted that petitioner’s “allegations fit more
neatly in the Fourth Amendment context.” Id., at 1279.
He also observed that if the allegations in the complaint
are true, the conduct of the officers “should be con-
demned,” and that if the allegations are untrue, petitioner
had “done the officers a grave injustice.” Ibid.
The petition filed in this Court contends that the Court
of Appeals erred in holding that the officers who visited
petitioner’s home are entitled to qualified immunity. The
petition argues that it was clearly established that law
enforcement agents violate a person’s right to the free
exercise of religion if they interfere, without any legiti-
mate law enforcement justification, when a person is at
prayer. The petition further maintains that the absence of
a prior case involving the unusual situation alleged to
have occurred here does not justify qualified immunity.
There can be no doubt that the First Amendment pro-
tects the right to pray. Prayer unquestionably constitutes
the “exercise” of religion. At the same time, there are
clearly circumstances in which a police officer may lawfully
prevent a person from praying at a particular time and
place. For example, if an officer places a suspect under
arrest and orders the suspect to enter a police vehicle for
transportation to jail, the suspect does not have a right to
delay that trip by insisting on first engaging in conduct
that, at another time, would be protected by the First
Cite as: 585 U. S. ____ (2018) 3
Per Curiam
Amendment. When an officer’s order to stop praying is
alleged to have occurred during the course of investigative
conduct that implicates Fourth Amendment rights, the
First and Fourth Amendment issues may be inextricable.
That is the situation here. As the case comes before us,
it is unclear whether the police officers were in petitioner’s
apartment at the time in question based on her consent,
whether they had some other ground consistent with the
Fourth Amendment for entering and remaining there, or
whether their entry or continued presence was unlawful.
Petitioner’s complaint contains no express allegations on
these matters. Nor does her complaint state what, if
anything, the officers wanted her to do at the time when
she was allegedly told to stop praying. Without knowing
the answers to these questions, it is impossible to analyze
petitioner’s free exercise claim.
In considering the defendants’ motion to dismiss, the
District Court was required to interpret the pro se com-
plaint liberally, and when the complaint is read that way,
it may be understood to state Fourth Amendment claims
that could not properly be dismissed for failure to state a
claim. We appreciate that petitioner elected on appeal to
raise only a First Amendment argument and not to pursue
an independent Fourth Amendment claim, but under the
circumstances, the First Amendment claim demanded
consideration of the ground on which the officers were
present in the apartment and the nature of any legitimate
law enforcement interests that might have justified an
order to stop praying at the specific time in question.
Without considering these matters, neither the free exer-
cise issue nor the officers’ entitlement to qualified immun-
ity can be resolved. Thus, petitioner’s choice to abandon
her Fourth Amendment claim on appeal did not obviate
the need to address these matters.
For these reasons, we grant the petition for a writ of
certiorari; we reverse the judgment of the Tenth Circuit;
4 SAUSE v. BAUER
Per Curiam
and we remand the case for further proceedings consistent
with this opinion.
It is so ordered. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289307/ | Cite as: 585 U. S. ____ (2018) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
NORTH CAROLINA, ET AL., APPELLANTS v.
SANDRA LITTLE COVINGTON, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 17–1364. Decided June 28, 2018
PER CURIAM.
This appeal arises from a remedial redistricting order
entered by the District Court in a racial gerrymandering
case we have seen before. The case concerns the redis-
tricting of state legislative districts by the North Carolina
General Assembly in 2011, in response to the 2010 census.
A group of plaintiff voters, appellees here, alleged that the
General Assembly racially gerrymandered their districts
when—in an ostensible effort to comply with the require-
ments of the Voting Rights Act of 1965—it drew 28 State
Senate and State House of Representatives districts com-
prising majorities of black voters. The District Court
granted judgment to the plaintiffs, and we summarily
affirmed that judgment. See Covington v. North Carolina,
316 F. R. D. 117 (MDNC 2016), summarily aff ’d, 581 U. S.
___ (2017).
At the same time, however, we vacated the District
Court’s remedial order, which directed the General As-
sembly to adopt new districting maps, shortened by one
year the terms of the legislators currently serving in the
gerrymandered districts, called for special elections in
those districts, and suspended two provisions of the North
Carolina Constitution. See North Carolina v. Covington,
581 U. S. ___, ___ (2017) (per curiam) (slip op., at 1–2).
The District Court ordered all of this, we noted, after
undertaking only the “most cursory” review of the equita-
ble balance involved in court-ordered special elections.
Id., at ___ (slip op., at 3). Having found that the District
2 NORTH CAROLINA v. COVINGTON
Per Curiam
Court’s discretion “ ‘was barely exercised,’ ” we remanded
the case for further remedial proceedings. Ibid. (quoting
Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 27 (2008)).
On remand, the District Court ordered the General
Assembly to draw remedial maps for the State House and
State Senate within a month, and to file those maps in the
District Court for approval. The General Assembly com-
plied after directing its map drawers to, among other
things, make “[r]easonable efforts . . . to avoid pairing
incumbent members of the House [and] Senate” and not to
use “[d]ata identifying the race of individuals or voters” in
the drawing of the new districts. 283 F. Supp. 3d 410,
417–418 (MDNC 2018) (per curiam). The plaintiffs filed
objections to the new maps. They argued that four legisla-
tive districts—Senate Districts 21 and 28 and House
Districts 21 and 57—still segregated voters on the basis of
race. The plaintiffs also objected to the General Assem-
bly’s decision to redraw five State House districts situated
in Wake and Mecklenburg Counties. They argued that
those five districts “did not violate the [U. S.] Constitution,
[and] did not abut a district violating the [U. S.] Constitu-
tion.” Id., at 443. Thus, they contended, the revision of
the borders of those districts constituted mid-decade redis-
tricting in violation of the North Carolina Constitution.
See Art. II, §5(4); Granville County Commr’s v. Ballard, 69
N. C. 18, 20–21 (1873).
After some consideration of these objections, the District
Court appointed a Special Master to redraw the lines of
the districts to which the plaintiffs objected, along with
any nonadjacent districts to the extent “necessary” to
comply with districting criteria specified by the District
Court. App. to Juris. Statement 106–107. Those criteria
included adherence to the “county groupings” used by the
legislature in its remedial plan and to North Carolina’s
“Whole County Provision as interpreted by the North
Cite as: 585 U. S. ____ (2018) 3
Per Curiam
Carolina Supreme Court.” Id., at 108. The District Court
further instructed the Special Master to make “reasonable
efforts to adhere to . . . state policy objectives” by creating
relatively compact districts and by avoiding split munici-
palities and precincts. Id., at 108–109. The District Court
also permitted the Special Master to “adjust district lines
to avoid pairing any incumbents who have not publicly
announced their intention not to run in 2018” and to
“consider data identifying the race of individuals or voters
to the extent necessary to ensure that his plan cures the
unconstitutional racial gerrymanders.” Id., at 109–111.
Upon receipt of the Special Master’s report, the District
Court sustained the plaintiffs’ objections and adopted the
Special Master’s recommended reconfiguration of the state
legislative maps. See 283 F. Supp. 3d, at 414. With re-
spect to Senate Districts 21 and 28 and House Districts 21
and 57, the District Court found that those districts, as
redrawn by the legislature, “retain[ed] the core shape” of
districts that it had earlier found to be unconstitutional.
Id., at 436; see id., at 439, 440, 441–442. The District
Court noted, for instance, that the legislature’s remedial
plan for Senate District 21 copied the prior plan’s
“horseshoe-shaped section of the city of Fayetteville,”
which “include[d] Fayetteville’s predominantly black
[voting districts] and blocks and exclude[d] Fayetteville’s
predominantly white [voting districts] and blocks.” Id., at
436. Although the defendants explained that the new
district was designed to “ ‘preserve the heart of Fayette-
ville,’ ” the District Court found that they had “fail[ed] to
provide any explanation or evidence as to why ‘preserving
the heart of Fayetteville’ required the exclusion of numer-
ous majority-white precincts in downtown Fayetteville
from the remedial district.” Ibid. (alterations omitted).
Likewise, the District Court found that the legislature’s
remedial version of Senate District 28, though it “encom-
passe[d] only a portion of [the city of] Greensboro,” never-
4 NORTH CAROLINA v. COVINGTON
Per Curiam
theless “encompasse[d] all of the majority black [voting
districts] within Greensboro,” while “exclud[ing] predomi-
nantly white sections of Greensboro,” and “reach[ing] out
of Greensboro’s city limits to capture predominantly
African-American areas in eastern Guilford County.” Id.,
at 438. By choosing to preserve the shape of the district’s
“ ‘anchor’ ” in eastern Greensboro, the District Court found,
the General Assembly had “ensured that the district
would retain a high [black voting age population], thereby
perpetuating the effects of the racial gerrymander.” Id., at
438–439.
The District Court made similar findings with respect to
the legislature’s remedial House Districts 21 and 57.
House District 21, it found, “(1) preserve[d] the core shape
of . . . the previously unconstitutional district, (2) in-
clude[d] all but one of the majority-black [voting districts]
in the two counties through which it [ran], (3) divide[d] a
municipality and precinct along racial lines, [and] (4) ha[d]
an irregular shape that corresponde[d] to the racial make-
up of the geographic area.” Id., at 439–440. In light of
this and other evidence, the District Court concluded that
House District 21 “continue[d] to be a racial gerrymander.”
Id., at 440. House District 57, the District Court found,
likewise inexplicably “divide[d] the city of Greensboro
along racial lines,” id., at 442, and otherwise preserved
features of the previously invalidated 2011 maps. The
District Court thus concluded that the General Assembly’s
remedial plans as to those districts were unconstitutional.
Ibid.
The District Court then sustained the plaintiffs’ remain-
ing objection that several House districts in Wake and
Mecklenburg Counties had been redrawn unnecessarily in
violation of the North Carolina Constitution’s prohibition
on mid-decade redistricting. See id., at 443 (citing Art. II,
§5(4)). The court reasoned that the prohibition “pre-
clude[d] the General Assembly from engaging in mid-
Cite as: 585 U. S. ____ (2018) 5
Per Curiam
decade redistricting” except to the extent “required by
federal law or a judicial order.” 283 F. Supp. 3d, at 443. It
noted further that, “[w]hen a court must draw remedial
districts itself, this means that a court may redraw only
those districts necessary to remedy the constitutional
violation,” ibid. (citing Upham v. Seamon, 456 U. S. 37,
40–41 (1982) (per curiam)), and that “Upham requires
that a federal district court’s remedial order not unneces-
sarily interfere with state redistricting choices,” 283
F. Supp. 3d, at 443. This remedial principle informed the
District Court’s conclusion that “the General Assembly
[had] exceeded its authority under [the District Court’s
remedial] order by disregarding the mid-decade redistrict-
ing prohibition,” since the legislature had failed to “put
forward any evidence showing that revising any of the five
Wake and Mecklenburg County House districts challenged
by Plaintiffs was necessary to remedy the racially gerry-
mandered districts in those two counties.” Id., at 444.
Finally, the District Court adopted the Special Master’s
recommended replacement plans for the districts to which
the plaintiffs had objected. In adopting those recommen-
dations, the District Court turned away the defendants’
argument that they were built on “specific . . . quota[s]” of
black voters in each reconstituted district. Id., at 448–
449. The District Court instead credited the Special Mas-
ter’s submission that his “ ‘remedial districts were drawn
not with any racial target in mind, but in order to maxim-
ize compactness, preserve precinct boundaries, and respect
political subdivision lines,’ ” and that the remedial map
was the product of “ ‘explicitly race-neutral criteria.’ ” Id.,
at 449. The District Court directed the defendants to
implement the Special Master’s recommended district
lines and to conduct elections accordingly.
The defendants applied to this Court for a stay of the
District Court’s order pending appeal. We granted a stay
with respect to implementation of the Special Master’s
6 NORTH CAROLINA v. COVINGTON
Per Curiam
remedial districts in Wake and Mecklenburg Counties, but
otherwise denied the application. See 583 U. S. ___
(2018). The defendants timely appealed directly to this
Court as provided under 28 U. S. C. §1253. We have
jurisdiction, and now summarily affirm in part and re-
verse in part the order of the District Court.
* * *
The defendants first argue that the District Court
lacked jurisdiction even to enter a remedial order in this
case. In their view, “[w]here, as here, a lawsuit challenges
the validity of a statute,” the case becomes moot “when the
statute is repealed.” Juris. Statement 17. Thus, according
to the defendants, the plaintiffs’ racial gerrymandering
claims ceased to exist when the North Carolina General
Assembly enacted remedial plans for the State House and
State Senate and repealed the old plans.
The defendants misunderstand the nature of the plain-
tiffs’ claims. Those claims, like other racial gerrymander-
ing claims, arise from the plaintiffs’ allegations that they
have been “separate[d] . . . into different districts on the
basis of race.” Shaw v. Reno, 509 U. S. 630, 649 (1993).
Resolution of such claims will usually turn upon “circum-
stantial evidence that race for its own sake, and not other
districting principles, was the legislature’s dominant and
controlling rationale in drawing” the lines of legislative
districts. Miller v. Johnson, 515 U. S. 900, 913 (1995).
But it is the segregation of the plaintiffs—not the legisla-
ture’s line-drawing as such—that gives rise to their
claims. It is for this reason, among others, that the plain-
tiffs have standing to challenge racial gerrymanders only
with respect to those legislative districts in which they
reside. See Alabama Legislative Black Caucus v. Ala-
bama, 575 U. S. ___, ___ (2015) (slip op., at 6). Here, in
the remedial posture in which this case is presented, the
plaintiffs’ claims that they were organized into legislative
Cite as: 585 U. S. ____ (2018) 7
Per Curiam
districts on the basis of their race did not become moot
simply because the General Assembly drew new district
lines around them. To the contrary, they argued in the
District Court that some of the new districts were mere
continuations of the old, gerrymandered districts. Be-
cause the plaintiffs asserted that they remained segre-
gated on the basis of race, their claims remained the subject
of a live dispute, and the District Court properly retained
jurisdiction.
Second, the defendants argue that the District Court
erred when it “conclu[ded] that the General Assembly
engaged in racial gerrymandering by declining to consider
race.” Juris. Statement 20. They assert that “there is no
dispute that the General Assembly did not consider race at
all when designing the 2017 [remedial plans]—not as a
predominant motive, a secondary motive, or otherwise,”
and that such “undisputed fact should have been the end
of the plaintiffs’ racial gerrymandering challenges.” Id., at
21–22.
This argument suffers from the same conceptual flaws
as the first. While it may be undisputed that the 2017
legislature instructed its map drawers not to look at race
when crafting a remedial map, what is also undisputed—
because the defendants do not attempt to rebut it in their
jurisdictional statement or in their brief opposing the
plaintiffs’ motion to affirm—is the District Court’s de-
tailed, district-by-district factfinding respecting the legis-
lature’s remedial Senate Districts 21 and 28 and House
Districts 21 and 57.
That factfinding, as discussed above, turned up suffi-
cient circumstantial evidence that race was the predomi-
nant factor governing the shape of those four districts.
See, e.g., 283 F. Supp. 3d, at 436. As this Court has previ-
ously explained, a plaintiff can rely upon either “circum-
stantial evidence of a district’s shape and demographics or
more direct evidence going to legislative purpose” in prov-
8 NORTH CAROLINA v. COVINGTON
Per Curiam
ing a racial gerrymandering claim. Miller, supra, at 916.
The defendants’ insistence that the 2017 legislature did
not look at racial data in drawing remedial districts does
little to undermine the District Court’s conclusion—based
on evidence concerning the shape and demographics of
those districts—that the districts unconstitutionally sort
voters on the basis of race. 283 F. Supp. 3d, at 442.
Third, the defendants argue that the District Court
abused its discretion by arranging for the Special Master
to draw up an alternative remedial map instead of giving
the General Assembly—which “stood ready and willing to
promptly carry out its sovereign duty”—another chance at
a remedial map. Juris. Statement 33. Yet the District
Court had its own duty to cure illegally gerrymandered
districts through an orderly process in advance of elec-
tions. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per
curiam). Here the District Court determined that “provid-
ing the General Assembly with a second bite at the apple”
risked “further draw[ing] out these proceedings and poten-
tially interfer[ing] with the 2018 election cycle.” 283
F. Supp. 3d, at 448, n. 10. We conclude that the District
Court’s appointment of a Special Master in this case was
not an abuse of discretion.
Neither was the District Court’s decision to adopt the
Special Master’s recommended remedy for the racially
gerrymandered districts. The defendants argue briefly
that the District Court’s adoption of that recommendation
was error because the Special Master’s remedial plan was
“expressly race-conscious” and succeeded in “compel[ling]
the State to employ racial quotas of plaintiffs’ choosing.”
Juris. Statement 34–35. Yet this Court has long recog-
nized “[t]he distinction between being aware of racial
considerations and being motivated by them.” Miller,
supra, at 916. The District Court’s allowance that the
Special Master could “consider data identifying the race of
individuals or voters to the extent necessary to ensure
Cite as: 585 U. S. ____ (2018) 9
Per Curiam
that his plan cures the unconstitutional racial gerryman-
ders,” App. to Juris. Statement 111, does not amount to a
warrant for “racial quotas.” In any event, the defendants’
assertions on this question make no real attempt to coun-
ter the District Court’s agreement with the Special Master
that “ ‘no racial targets were sought or achieved’ ” in draw-
ing the remedial districts. 283 F. Supp. 3d, at 449.
All of the foregoing is enough to convince us that the
District Court’s order should be affirmed insofar as it
provided a court-drawn remedy for Senate Districts 21
and 28 and House Districts 21 and 57. The same cannot
be said, however, of the District Court’s actions concerning
the legislature’s redrawing of House districts in Wake and
Mecklenburg Counties. There the District Court proceeded
from a mistaken view of its adjudicative role and its
relationship to the North Carolina General Assembly.
The only injuries the plaintiffs established in this case
were that they had been placed in their legislative dis-
tricts on the basis of race. The District Court’s remedial
authority was accordingly limited to ensuring that the
plaintiffs were relieved of the burden of voting in racially
gerrymandered legislative districts. See DaimlerChrysler
Corp. v. Cuno, 547 U. S. 332, 353 (2006). But the District
Court’s revision of the House districts in Wake and Meck-
lenburg Counties had nothing to do with that. Instead,
the District Court redrew those districts because it found
that the legislature’s revision of them violated the North
Carolina Constitution’s ban on mid-decade redistricting,
not federal law. Indeed, the District Court understood
that ban to apply unless such redistricting was “required
by federal law or judicial order.” 283 F. Supp. 3d, at 443.
The District Court’s enforcement of the ban was thus
premised on the conclusion that the General Assembly’s
action was not “required” by federal law.
The District Court’s decision to override the legislature’s
remedial map on that basis was clear error. “[S]tate legis-
10 NORTH CAROLINA v. COVINGTON
Per Curiam
latures have primary jurisdiction over legislative reappor-
tionment,” White v. Weiser, 412 U. S. 783, 795 (1973)
(internal quotation marks omitted), and a legislature’s
“freedom of choice to devise substitutes for an apportion-
ment plan found unconstitutional, either as a whole or in
part, should not be restricted beyond the clear commands”
of federal law, Burns v. Richardson, 384 U. S. 73, 85
(1966). A district court is “not free . . . to disregard the
political program of ” a state legislature on other bases.
Upham, 456 U. S., at 43. Once the District Court had
ensured that the racial gerrymanders at issue in this case
were remedied, its proper role in North Carolina’s legisla-
tive districting process was at an end.
The order of the District Court is affirmed in part and
reversed in part.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
NORTH CAROLINA, ET AL. v. SANDRA
LITTLE COVINGTON, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 17–1364. Decided June 28, 2018
JUSTICE THOMAS, dissenting.
I do not think the complicated factual and legal issues in
this case should be disposed of summarily. I would have
set this case for briefing and oral argument. I respectfully
dissent. | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/8669379/ | By Judge James H. Chamblin
This case came before the Court on October 29,2009, for argument on the following:
1. Demurrer of the Defendant, Andrew W. Wyczalkowski (“Andrew”);
2. Demurrer of the Defendant, Anna Wyczalkowski (“Anna”);
3. Motion Craving Oyer of Andrew and Anna;
4. Motion to Dismiss of Andrew and Anna;
5. Plea in Bar of Andrew and Anna.
The Demurrers were argued, taken under advisement, and are addressed below. Counsel agreed that the copy of the Durable General Power of Attorney executed by Marcin R. Wyczalkowski (“Marcin”) on June 21,2007, tendered to the Court by Ms. Royer is the document requested by Andrew and Anna in their Motion Craving Oyer.
Counsel agreed that the issues raised in the Motion to Dismiss were also raised in Demurrers. The Motion to Dismiss was taken under advisement and is addressed below.
*600Andrew and Anna decided not to proceed at this time on their Plea in Bar except for their res judicata argument. After argument thereon, I denied the Plea in Bar on this issue without prejudice to Andrew and Anna. They can renew their Plea in Bar on the res judicata issue depending on the ultimate resolution of Andrew W. Wyczalkowski v. Brian D. Carter et al., Civil Case No. 51125, now on appeal.
Upon consideration of the memoranda filed by counsel and the argument on October 29,2009, the Demurrers are sustained, and the Motion to Dismiss is granted, to the extent hereinafter set forth, with leave to the Plaintiffs to file an amended complaint as hereinafter explained.
Demurrer of Andrew W. Wyczalkowski
In the Plaintiffs’ lengthy eleven count Complaint, they have sued Andrew both individually and as Executor of Marcin’s estate and as Trustee under a trust established by Marcin in June 2007 (the “2007 Trust”).
The parties are certainly familiar with the pleadings. Therefore, there is no need to set forth herein the lengthy allegations of the forty page Complaint except to the extent needed to explain the reasons for my decisions.
Not only is the Complaint lengthy, but also the responsive pleadings filed by Andrew and Anna are lengthy. Andrew’s Demurrer states fifteen separate grounds. Each ground is addressed below.
Andrew asserts that the Complaint fails to inform not only him, but also each defendant, of the true nature of the claim against him or her. I generally agree with him. There are some counts where it is clear which defendant or defendants from which relief is requested. For example, the counts for civil conspiracy and unjust enrichment are clearly claims against Andrew, Anna, and Marykim Stamile (“Marykim”), and the counts for surcharge and injunctive relief and for removal and replacement of trustee and executor are clearly against Andrew as trustee and executor. However, some counts do not even state from whom relief is requested. For example, Count I (for an accounting) does not state from whom an accounting is demanded. Count II (for breach of fiduciary duty) does not state from whom the plaintiffs are requesting damages. The same is true as to the counts involving fraud. The foregoing is not all inclusive of each category.
Each defendant is entitled to know exactly what claim is being made against him or her as well as the exact nature of such claim. I do not think that any defendant in this case should have to guess as to the nature or application to him or her of any claim. Taken as a whole, no defendant can be reasonably assured as to which claim, or the nature of it, applies to him or her.
*601Andrew’s demurrer is sustained on the foregoing ground.
Andrew also argues that Count I (for an accounting), Count II (for breach of fiduciary duty), Count IX (for surcharge and injunctive relief) and Count X (for removal and replacement of trustee and executor) fail to state a cause of action against him individually. I agree. Based upon the factual allegations in the Complaint, I think that these causes of action can only be against Andrew as trustee under the 2007 trust and as executor of Marcin’s estate. I disregard, and place no weight on, the Plaintiffs’ argument in their Memorandum in Opposition that Andrew is or was a de facto trustee or guardian for or of Marcin because such is not pleaded in the Complaint.
Andrew argues that, as to Count IH (for fraud) and Count IV (for constructive fraud), each count must fail because the Plaintiffs have not alleged that they have suffered any injury to their interests or property. In other words, he argues that the Plaintiffs have no standing to allege damage or injury to Marcin’s property. I agree. I do not agree with the Plaintiffs’ argument that they may maintain a suit for damages to Marcin’s property during his lifetime caused by the Defendants because Andrew, as executor of Marcin’s estate, would obviously take no action to enforce any claim of Marcin’s estate against himself, Anna, or Marykim. There are, also, no allegations that the Plaintiffs were, or are, beneficiaries of Marcin’s estate. Further, Virginia does not recognize a cause of action for tortious interference with an inheritance. Economopoulos v. Kolaitis, 259 Va. 806, 812 (2000). Andrew’s demurrer is sustained on this ground.
Andrew demurs to Count V (for conversion) because the Plaintiffs do allege that they are entitled to or have an interest in the property allegedly converted. The property allegedly converted was Marcin’s, not the Plaintiffs’. Andrew’s demurrer to Count V is sustained on this ground.
Andrew also demurs to Count V (for conversion) because the Plaintiffs have no standing to bring a claim for the conversion of the property of another (in this case, Marcin’s property). I agree. Andrew’s demurrer to Count V is sustained on this ground.
As to Count VI (for undue influence), Andrew argues that it must fail for the following reasons:
(1) The Complaint does not allege sufficient facts to establish a confidential relationship between Andrew and the Plaintiffs or between Andrew and Marcin.
(2) The Plaintiffs lack standing to assert an undue influence claim on behalf of Marcin and/or his estate.
(3) There is no allegation that Marcin was of feeble or unsound mind.
*602(4) There is no allegation that the gifts made by Marcin were gratuitous in nature.
(5) There is no allegation that any of the contracts entered into by Marcin as a result of undue influence resulted in grossly inadequate consideration to Marcin.
As to the foregoing five grounds, I agree with Andrew except as to (1) above; I do think the Complaint alleges sufficient facts to show a confidential relationship between Andrew and Marcin.
To the foregoing extent Andrew’s demurrer to Count VI is sustained.
As to Count VUI (for unjust enrichment), I agree with Andrew’s argument that it must fail because the Plaintiffs have no standing to sue for unjust enrichment on behalf of Marcin or his estate.
Andrew argues that the Plaintiffs are not proper parties and lack standing to pursue the claims in Counts HI through VUI (for an accounting, breach of fiduciary duty, fraud, constructive fraud, conversion, undue influence, civil conspiracy, and unjust enrichment) because any such claim belonged to Marcin during his lifetime and to his executor upon his death. I agree. These eight counts do not concern any damage to the Plaintiffs or their property. The Plaintiffs are not alleged to be beneficiaries of Marcin’s estate. Andrew’s demurrer to these eight counts is sustained.
Andrew argues that, as to Count X (for removal and replacement of trustee and executor) and Count XI (for declaratory judgment and reformation), the Plaintiffs have failed to allege that they lack an adequate remedy at law for equitable claims in each count. Andrew’s demurrer on this ground is overruled because I do not think that the relief purportedly being requested by the Plaintiffs is so equitable in nature as to require a lack of adequate remedy at law before it can be granted.
Andrew asserts that Count XI (for declaratory judgment and reformation) fails to allege facts sufficient to establish a cause of action for reformation. He is essentially arguing that this count does not allege a cause of action for a declaratory judgment. I do not agree. The factual allegations of the Complaint may support the relief requested. Andrew’s demurrer is overruled on this ground.
Andrew demurs to the allegations of Counts II, HI, IV, V, VII, and VUI that the Plaintiffs were beneficiaries of Marcin’s estate. I agree. Andrew’s demurrer is sustained on this ground.
Andrew demurs on the ground that the Plaintiff, Brian D. Carter, has no legal interest in any of the causes of action alleged, is not a proper party plaintiff, and lacks standing to pursue any of the claims. I agree. I fail to see any allegation to support any claim by Brian D. Carter. Andrew’s demurrer on this ground is sustained.
*603Andrew also asserts that the Complaint fails to specify facts on which to base a claim for costs, pre-judgment or post-judgment interest, or attorney’s fees. I do not completely agree. Certainly any prevailing party is entitled to recover the costs allowed by statute. See, e.g., Va. Code §§ 17.1-600, 17.1-601. Under Va. Code § 8.01-382 provides for pre-judgment and post-judgment interest. I do agree with Andrew that, under the “American Rule,” the Plaintiffs are not entitled to recover their attorney’s fees if they prevail absent a statute or a contractual agreement (neither of which are alleged to apply here). However, in Virginia, attorney’s fees may be considered as part of the damages in a fraud claim. See, Prospect Development Co. v. Bershader, 258 Va. 75, 93 (1999). Attorney’s fees may also be recovered in a trustee accounting proceeding under Va. Code § 55-550.04. Andrew’s demurrer on these grounds is overruled with the ruling that the only attorney’s fees potentially recoverable in trustee accounting are as to damages for fraud.
Andrew finally demurs to the Complaint on the ground that it fails to allege sufficient facts upon which to base a claim for punitive damages. The Plaintiffs seek punitive damages in Count II (for breach of fiduciary duty), Count III (for fraud), Count V (for conversion), and Count VTI (for civil conspiracy). I do not agree. The Plaintiffs have pleaded enough to survive demurrer as to punitive damages. Andrew’s demurrer to the punitive damages claims is overruled.
Demurrer of Anna Wyczalkowski
Anna asserts sixteen grounds in her demurrer. Thirteen of the sixteen grounds are similar to those set forth in Andrew’s demurrer. My rulings on these thirteen are the same for Anna’s demurrer. The other three are addressed below.
Anna demurs to Counts I through VII and EX through XI because these counts do not state a cause of action against her. In their Memorandum in Opposition and in argument, the Plaintiffs have conceded that their only claims against Anna are found in Count VII (for civil conspiracy) and Count VIH (for unjust enrichment). The Plaintiffs have stated a cause of action for civil conspiracy against Anna in Count VII. Anna did not demur to Count VUE Anna’s demurrer to Counts I through VI and EX through XI is sustained, but overruled as to Count VII.
Anna’s demurrer to Count VI (for undue influence) on the ground that it fails to allege sufficient facts to establish a confidential relationship between her and the Plaintiffs is sustained, but it is overruled on the ground that it fails to allege sufficient facts to establish a confidential relationship between her *604and Marcin. Also, her demurrer to Count VI on the ground that the Plaintiffs lack standing to assert an undue influence claim on behalf of Marcin or his estate is sustained.
Finally, Anna’s demurrer to Count VII (for civil conspiracy) on the ground that it fails to allege sufficient facts upon which damages can be demanded from her is overruled. Sufficient facts are alleged.
Motion To Dismiss Of Andrew W. Wyczalkowski And Anna Wyczalkowski
The Motion to Dismiss filed by Andrew and Anna is granted because the Complaint does not allege facts, if they can ever be alleged, showing that Brian D. Carter has standing to bring any of the causes of action, and because the Plaintiffs have no standing to bring suit against any of the Defendants for damages to Marcin and/or his estate.
Order
Let Ms. Royer prepare an order consistent herewith to which she and Mr. Whitticar may note any exceptions sustaining the Demurrers and granting the Motion to Dismiss, but also allowing the Plaintiffs to file an amended complaint within ten days of the entry of the order, if they be so advised. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4289308/ | FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2548
_____________________________
TRAVIS THURSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
June 28, 2018
PER CURIAM.
Travis Thurston appeals his convictions for aggravated
assault with a firearm, discharging a firearm in public, battery on
a law enforcement officer, and resisting arrest. We affirm.
Thurston was arrested in 2015 after he shot a car and bit two
police officers in a McDonald’s parking lot. Thurston’s bizarre
behavior led the trial court to appoint an expert to determine
whether he was competent to proceed. But before the court could
make a competency determination, Thurston was taken into
federal custody on unrelated charges. Nearly two years later, he
returned to face his state charges. By then, a new judge and
prosecutor were assigned, and Thurston had a new public
defender.
Two witnesses into Thurston’s trial, the new judge realized
the previous judge never made a competency finding. So during a
continuance, the court appointed another expert to evaluate
Thurston. That expert promptly evaluated Thurston, opined that
he was competent, and prepared a report. The court then held a
hearing and entered an order finding Thurston competent based
on the expert’s report.
Thurston’s first argument on appeal is that it was
fundamental error to begin the trial without determining his
competency. See Zern v. State, 191 So. 3d 962, 964 (Fla. 1st DCA
2016) (“[O]nce the court has reasonable grounds to question the
defendant’s competency, the court has no choice but to conduct a
hearing to resolve the question.”); Cotton v. State, 177 So. 3d 666,
667-68 (Fla. 1st DCA 2015) (“It is a due process violation to proceed
against an incompetent criminal defendant.”). We have held,
though, that a conviction can stand if the trial court can
retroactively determine competency. Chester v. State, 213 So. 3d
1080, 1083 (Fla. 1st DCA 2017); see also Dougherty v. State, 149
So. 3d 672, 679 (Fla. 2014). Here, although the trial was already
underway, the court promptly determined Thurston’s competency
once the issue reappeared. There was no fundamental error.
Thurston’s second argument is that his trial counsel was
constitutionally ineffective. However, to succeed with this
argument on direct appeal, Thurston needed to show
“ineffectiveness obvious on the face of the record, indisputable
prejudice, and an inconceivable tactical explanation for the
conduct.” Morales v. State, 170 So. 3d 63, 67 (Fla. 1st DCA 2015)
(on rehearing). He has failed to meet this heavy burden, so he can
raise his ineffective-assistance claims only through a rule 3.850
motion.
AFFIRMED.
WOLF, JAY, and WINSOR, JJ., concur.
2
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel,
Gainesville, and Melissa Joy Ford, Assistant Regional Conflict
Counsel, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.
3 | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4142014/ | .
OZ+Z.CS OF TZ-ZEATI-ORNEY GENE@AL OF’TEXA5
>.i .,
t
AUSTiM .
Qarrocnuad
m- 2’ 2: :
. j.- (a
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‘. .
i
. .
‘.
S8tlat6 Bill Xo. 398; bh. 242, Ganoral t12Ir.l
Speeie.1..Laws, 4.7th T&g;. , provides in part:
"'SoctI;ion1. A -- Thnt the p;ovsmir~ b&y
of 3ny incxqorated city In $hio Stats my 1~542~
celva tkrou~h &Xi or dodicoki.or, snA is hereby
oilp0X;islMlto acquire, by purchoso %it!lGUt eon- .
dunmtion or by pumhaso throu,$ co:r0amH,ion
plracrwx35qs, sod there&tar mlntnin onC operate
8s an strport, or 1ea?sc, or salX, to tho Ycdoral
bovarment, -tracto of lc;rd e5.thor nithin 02
without; t&6 ‘corpo2ats lfrdtn of such city and
within the county in urhich ouch city Is situated.,
ml Shci Cotiseioner~~ Conrt of. any county nay
lUwifiso ucquuirc, fialntcln .and operate for like
purpose tracts of lend withia the btiits OS tha
COWlI;~.
. IttB -- .That’she (loveming body of any
5Jlcorporatca csty in t&ii3 state R3y reoo5.vc
wtJmx~& gift oz1 &aicatLon, and is hereby mpo+
cred to acquire, b~r.purchme without cordazuation,,.
end thereaSter xisintein ruM operate as ah, atiport,
0s 3ease; 02 sell to the~‘T&iIeral GoVornmnt,
tracts of ~&ml :dthoMi tha county in rd&-h such ~lty~ ~.
is oitu3tsb,p+3m0a c&i triscts zwe not with;tn~., ‘, .‘~,
rive (~).&len bf ano%her inoorporatad oity that ,’
has a populatio?l of mro~than SiSteen huGi?od (1500) ~
people, eccdr6igg to the. Iwt precadirg Faderal
'Cen3c3,~~* -
._
:
.
.
_.
. . .
.
Priorto ths anactmxtOf s. B. 398,c&es
h>& 5KtJiOrity t0 3Ci&ro Ull& CQXZc?t5 5b~Ol$E! Uild&‘~
Ii. S.'l6(r, 41st Leg., but such authority extcnds8 ozlly
t3 the coqM.sition of airports r;ituatoC wholly dthin
t.>e county in With the city wss loaatd. T&u mod for
futhority for cities to acquire airport land outside
the couaty xvi3 the basis or" the ener@enaoycleaso of
3, ii.392. The diffxwum neda bet-.vean counties onil
citice quits cviitently vies a c~neoioue one on the
pri of the Legislatnre.
57hU.e S. 33. 433, Ch. Il.&?, Ganeral ena Special
Lsv1.3,47th Lug., psobsbly Is xot appl.i.cftblo, as it is,
onsctod to proviCe for tfie ac#sition.+T 1enCrs VOX
the USC of the P&ml Govmment~~. it is notsd that Zt
6180 provides that the land so aoquixe8 by (1 ooaty nust
lier;itMll
the J&litsor ouch covnty.
Bintin~ no otatute ox codstitntiosal p~ovIsioa
0xqrBssly giving authorSt,u to a county tcJ acqusre litnO
oid3ido it23 bounilsries for nlrport pllQOSG8, nor froa-
6hiuh the po-aer could bo rortsombLy tiplied, -88 am
ccxpullql to anums you- quorstion in the negative.
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142021/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Ronorebla 2. Sayne Setterfleld
Deer Sk:
the writer for cooaiberetlon.
"The queatienh66 f the fire dejmrt-
6WDt6 Pf?((r.ldin~ tht3 PiOt lng the wunt to
Mb by the flmimnbr
6ahrg Or the 66hl7
66Y a fiX’86!6n W66 -
or&h, but rho actually
100 da6 to the t6.at that
tttsa W66 daduet.5 -as
yQw: fi1’6t gUS6tiOll iIMO1V66 the OOIl6tl'WfiO~Of
Section 16 ot House 61111Z58, 6ttJW6, whlah i6 a6 fOlhW6:
Eonotabla 8. Sayne Ssttsrffe&d, Waui66foner, pa8 8!
"Within 6ixty (60) dam lfterthlr Aat take8
effeot l6oh tul4 paid flr6aan ma lmh put pelb
firbmSn whose 661aI7 Or oOngen&tion 16 Fifty Dd&rS
(%50) or more Qar month and eaah part p6ia flmm6n
who60 6516ry 01 OOi~~M&tfOIl i6 1e66 thn Fifty Del-
lax-6(#bO) per Pvrnthati eaoh a6tln rolu6teer‘rlreme.n
In the 06$&y of any ewh oitr or torn or laxwlled In
tho ii re d8prkn8nt of ln? luch ofty or tom, who de8ln6
hlsurelfor hi6 beneflolarie6, a6 heroinafter n6med, to
participate in 6uOh l'UW3or the benefit6 therefrem 66
by ttiiskot provided, 6hau.file with the.SeOretarJ-
Tre66urer 0r the soara of ylre61en'6xtbuer ana Rbtln-
ment ma Trustee tr that cfty or town a atateaent in
writing under oath that he ae6lru to partialpate In
the bsnbrita rroa rUOh'Y'u& glting ths x&J66aa relation-
6hip or hi6 then aotU6l dependent6 and ehall therein
authorize 6atd pity or town or the gwarnlag body thereof
to deaut3t not 1666 than 0118 per asntpm nor mom th4n three
(3) .per eentum, the er6ot Blount thereof te be determined
by the vote d the fire de@ertmeut of whleh 6uah penon i6
am.embe.r,frQlhl6 sal.6ryorocuapen6ucrtloslflwholljbld
or p6rt paid flreman.riho6e66tiry or OoiQ~n6atloiIi6 mom
than Fifty Dollar6 (#Cl) per month, but if a part pald
firmum nhore 6alary la 1066 than Firtf Dollara ($50) per
month, or tifa vohnteer fil~nan the 6t6tOMUIt 6bau
inOh a JUti Ma Ul obll&on t0 Pay t0 add mud
of Tru6tee6 not lees than Three Dollar6 (*J) nor more then
Fire L80116r6 ($S) per wmum to be paid ,6aml-6~uill.~, the
mot a6muOt tbsreor to be llk6wi6e 4etennlaed by rote
0r tat3rire a0Wrtsent of.which 6u0h pe~on ia a~maaber.
Suoh money 80 abauoted mm 661arle6'or oa6pen6atlon or
agreed to bepeldtoboeO6m and form apart of theFund
herein da6ignated e6d uteblf6hdl 68 Firemen16 Reuer 6&d
RetlrexzentFuna or that oltf or town. Fallure or z+efu66l
to XW&O md file the statement herein pravlaed, or fall.ure
or rem661 to allow deduotion from salary or tc pay the
66munt herein 6psalfle(la6 herein provided on the part 0r
my moabsr shall forfett bi6 right to QOrtioipdb in UrJ
of the bsnetitr rroa; aala YiretPen’s Reiibi MU RefIXWent
Fund. lf any 6UOb member 6han eieat POt to partioipate
in 6uoh Iti&, he ah621 not be llable,igr 6ny Sti6m de&IO-
tina nor to p6y a6 herein pmviutta.*
.
Honorable H. Beym s6tterfiela, CammIr6ionsr, Pam 3
The Le$lelature hae not 6een fit to define whet it
meant bg the tew *ealary or owpea6etioa.n Tketera 8828z-y
i6 dsiined ln W6b6ter*6 InternatIonal DlotIonary a8 beirigr
The reoompen68 or ao6ipeneetloapala; or 6tlgtrkte&
to be pda, to a per6m 6t re&ar lnterr616 Sor 8enI08,
86peoially to holder6 of official,exe6utlte or elerIo8l
po6ltIon6; rix0a aompe58etlon regularly paid, 86'by the
year, quarter, month or week.w
The we,authorlty deilner th6 tann 8cWW86tiOa a8
belalet .~~
?That which oon6titute8, or i6 re@rded 08,.&h epdra-
lent or reuompen88~ that whlah mk68 6ood th6 laok of v8rI8-
tion or 6oinething8188~ t&t which bompenrator for lotisor
prl*utloa; emeuls; ~entlon; r60~a8e.R
A reading al the mtlrq bill 6160lo886 tht the word8
W8elery or aolap6n8etIoa*6re ~lof'orodaxeapt In Sutloa 10. fh
other pauta of the bill the word W618W *loti 16 wed.
A0 stated in your quwtim Bar .l, th6 8ilax-yof the
ilreaui ~88 $lSO.OO per month but the fIra aetuallf re6elved
Onlf $1~0.00 dU6 t0 d8dU6tiOM for b66’ Of tiPI).
ATtar a 6on8lderetIan of th6 bill a8 a *ba&k; thr
purp0666 of Out the ptoti8iOM
the AOt end th6 a6aner Of 68rXy'ine;
thereof, we 6re of thb opinion that it was the latentioa at the
Legl6littire to repulre the meat8 to be made oa th8 bad.6 of
the aompea6r&loa aatu6lU rrobiyed br t&e f%reman.
You ore, thererore, edvl8ed that your quritioa X0; 1
IO eamred to the effeot thet the deduotlon will b8 8648 oa
the b8818 or @OO.OO per mnth.
The wmwerto iour eoooad wmotioa depeadr oa the
eoa6truatlon or Seation 7 or Eoure Bill,OS& 6kQT6, whloh I‘
. a6 r0ilorr8:
Wh6nev6r a perooa nrylid 68 an 6.otivofinrurduJ$
86roUsd in any regularly aatlye iire deprtmat in m
elty ore tom in the State, sow wlthla or that m6 here-
efter oane wlthh the prorislonr of,&8 A6t, 8haL beeoae
Bonorab1e.H. Bayne sattortiold, Oaemi8rloner,~~&e 4
phJ8ioally or mentally disable4 uhlb In and/or in'
oon8epuence of, the pdx?onanor of his duty, aaid Board
of TIpsfee Eey, upon his mqUbl)t, or without suoh
request if It 8hall doem proper an6 for the $006 of
the awartm-t, rstlrs 8Wh p8r8& fr0m 8~mt1 88rViOe
either upon total or partisl dlrablllty a8 the Oa8e
may warrant &nd rhall or&or thet hs b8 paid from 8uOh
Fun&, (a) it ror totddiaability, aa ammt equal
to one-half the average mmthly ralary of ouoh fireran,
not to exceed the 8um of Ona IiuudrsdDollar8 ($100) p8r
month; provided that if 8uoh anrago smthly satiry be
Fifty Dollar8 ($60) or lam per month, or he be a rolua-
tser firelQanwith no salary, th8 amount a0 ordered paid
8hall not be la815than TWmty-five Dollan ($a) p8r
month; such average monthly salary to be bal.6 QII th8
monthly avorap of hle ralary tar the firs (5) year
period, or 80 muah tharsof a8 he lolay have fmrved, pre-
08tIing the date or sgah retlruasnt; or, (b) elf the
dl88bilitJ be loE8 than t&81, t&ll SUoh 8ulL1M ia oh!,
juagniartor the Poard or %kU8t808 may bo propa- nnd
OOIWHX8U~t6 With t&r!drip88 Or dl8&bfiit;l; ~~Wid8d
iurther, that if and when 8u@h di8ablUty Bhan 88888,
8uoh retlnlssnt or aisabiuty 8lkwano~ mhallbo'dl8-
oontlnued and auoh wr8on 8hall be re8tor.d to WSivO
88niae 8% not b8S than the 8am0 8daarp he MOStVred
at ,tho time of hi8 retirelrnt for dl8abillty.”
For the rea8on stat& In 8lWU8T to yoOrrQUO8~hI
Boo. 1, w8 are of the opinion that tho tlrsm8nWamhhly
bensflt8 mhould be ba88d uppon the fiv8-yWW merag Of th8
aaountrrof money aotually rees~vet3by ruoh firema.
Trusting that the forrgolng fully aqswore your
Inquiry, se are
Tours ~0x7 truly
RICHARD El. COCK5
A88i8taBlt
APrnrnD onmolJ
, By B.W.B.
,
,/’ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126028/ | 02/14/2017
DA 15-0751
Case Number: DA 15-0751
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 28N
IN THE MATTER OF:
J.S.,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DI 11-71
Honorable Michael G. Moses, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Mark English, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: January 4, 2017
Decided: February 14, 2017
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 J.S. has a history of mental illness. Between October 2011 and May 2012, in
response to petitions by the Yellowstone County Attorney’s office, J.S., a widowed
homeless person, was committed on two occasions to Montana State Hospital (MSH) for
evaluation and treatment. For both commitments, the medical documentation attached to
the petitions indicated that J.S. suffered from depression and was both suicidal and
homicidal.
¶3 On November 10, 2015, the Yellowstone County Attorney filed another petition to
commit J.S involuntarily. Following a hearing on November 16, 2015, at which J.S. and
his Billings Clinic physician testified, the District Court found that J.S. suffered from
bipolar disorder, post-traumatic stress disorder, anti-social personality disorder, and
possibly schizoaffective disorder. J.S. does not dispute his diagnosis nor the severity of
his mental condition. The court further found, based upon the testimony of the Billings
Clinic treating physician, that upon presenting himself at the Clinic, J.S. “was suicidal,
homicidal, psychotic, hostile and threatening.” The court noted that following his
admission to the Clinic, J.S. refused medications and remained “suicidal, homicidal,
2
psychotic, hostile and threatening,” resulting in the Clinic requesting the Yellowstone
County Attorney to file a petition for commitment. In its November 16 order, the District
Court concluded that the requirements of § 53-21-126, MCA, had been met. The court
ordered J.S. to be committed to MSH for not more than three months of inpatient care,
forced medications, and long-term treatment.
¶4 J.S. was scheduled to be discharged from MSH on December 14, 2015, and on this
day, through counsel, J.S. filed a Notice of Appeal with this Court challenging the
District Court’s November 16 Findings of Fact, Conclusions of Law and Order. We
affirm.
¶5 J.S. argues on appeal that the State failed to prove beyond a reasonable doubt that
he posed an imminent threat to himself or others. He claims that the “vague statements”
he made to the physicians about hurting himself and others were insufficient to satisfy the
requirements of § 53-21-126(2), MCA. The State counters that the District Court’s
findings of fact upon which it granted the petition for commitment were supported by
substantial evidence and are not clearly erroneous.
¶6 We review a district court’s civil commitment order to determine whether the
court’s findings of fact are clearly erroneous and its conclusions of law correct. In re
C.V., 2016 MT 307, ¶ 15, 385 Mont. 429, 384 P.3d 1048.
¶7 Section 53-21-126(2), MCA, requires “[i]mminent threat of self-inflicted injury or
injury to others” to be “proved by overt acts or omissions, sufficiently recent in time as to
be material and relevant as to the respondent’s present condition.” In this case, J.S.’s
treating physician with the Billings Clinic submitted a written report stating that on
3
November 9, 2015, J.S. presented himself to the emergency doctor at the Billings Clinic
stating that he felt like “he was going to go off on somebody,” and that he wanted to kill
security guards. He further claimed that he had thoughts of killing himself by jumping in
front of a train and that if he left the Clinic he “will be suicidal.”
¶8 These statements, made just seven days prior to commitment to MSH, and after
refusal of medications and continued symptoms of psychosis, hostility, and threatening
behavior, are sufficient in time and relevance to reflect J.S.’s condition at the time of
commitment. As we have stated previously, “[T]he law does not require proof beyond a
reasonable doubt that an injury will occur in the future. Threat is not certainty. The law
requires only proof beyond a reasonable doubt that the threat of future injury presently
exists and that the threat is imminent, that is, impending, likely to occur at any moment.”
In re S.L., 2014 MT 317, ¶ 31, 377 Mont. 223, 339 P.3d 73; In re B.D., 2015 MT 339,
¶ 11, 381 Mont. 505, 362 P.3d 636.
¶9 We acknowledge that, at his hearing, J.S. denied making such comments;
however, it is within the District Court’s broad discretion to determine the credibility of
witnesses and the weight to be afforded their testimony. M. R. Civ. P. 52(a); In re E.A.L.,
2015 MT 203, ¶ 11, 380 Mont. 129, 353 P.3d 1186. The court believed the physician’s
testimony was more credible than J.S.’s. There is substantial credible evidence to support
the District Court’s findings.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
4
of this Court, the District Court’s findings of fact are not clearly erroneous, its
conclusions were not incorrect, and its ruling was not an abuse of discretion.
¶11 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
5 | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126038/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
AMO Enterprises, Inc., No. 08-17-00002-CV
§
Appellant, Appeal from the
§
v. 327th District Court
§
Ramon Perez, of El Paso County, Texas
§
Appellee. (TC# 2014DCV0855)
§
ORDER
Pending before the Court is a motion filed by Appellant, AMO Enterprises, Inc., to stay
all proceedings in the trial court pending resolution of this interlocutory appeal. The motion to
stay is GRANTED. Accordingly, the trial court is ordered to stay all proceedings, including the
trial scheduled for April 4, 2017, in cause number 2014DCV0855, styled Ramon Perez v. AMO
Enterprises, Inc. and Superior Food Machinery, Inc., pending resolution of this appeal or further
order of this Court. In order to expedite resolution of the appeal, the Court will impose limits on
the briefing deadlines. See TEX.R.APP.P. 38.6(d). Appellant’s brief is currently due on February
22, 2017. Appellant is advised that if the brief is not filed by the due date, any further extension
of time granted by the Court will be limited to twenty days and will be final. See TEX.R.APP.P.
38.6(a). Likewise, Appellee will be limited to no more than two extensions of time in which to
file his brief. See TEX.R.APP.P. 38.6(b).
IT IS SO ORDERED this 8th day of February, 2017.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ. | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126076/ | STATE OF MICHIGAN
COURT OF APPEALS
TYANN SHELTON, FOR PUBLICATION
February 14, 2017
Plaintiff-Appellee,
and
DWAYNE WILLIAMS,
Plaintiff,
and
MICHIGAN CRNAS STAFFING, LLC,
Intervening Plaintiff,
v No. 328473
Wayne Circuit Court
AUTO-OWNERS INSURANCE COMPANY, LC No. 13-010612-NF
Defendant-Appellant.
Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.
K. F. KELLY, P.J. (concurring).
I concur in the result only.
/s/ Kirsten Frank Kelly
-1- | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126071/ | FILED
February 9, 2017
No. 15-1223 – Coffman et al v. Nicholas County Commission et al released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
WORKMAN, J., concurring: OF WEST VIRGINIA
I concur in the majority’s affirm of the circuit court’s grant of summary
judgment on behalf of respondents and agree that the annexation by minor boundary
adjustment was proper. I write separately, however, to underscore that the crux of
petitioners’ grievance appears to be, not with the annexation, but with the purported use
of the subject property. Given the state of record, it would appear that petitioners have
residual opportunities to challenge the use of the property, to whatever extent such issues
are properly presented below and/or become ripe for adjudication.
As discussed by the majority, the subject property appears to not be
properly zoned, as yet, for the operation of the “salvage yard” at issue. Moreover, the
circuit court’s order did not address the issues of statutory exceptions to licensing
requirements, the interplay of the City of Summersville ordinance, and public nuisance.
These matters were held in abeyance and the only issue presented to this Court pertains to
the annexation by minor boundary adjustment, which was made fully and finally
appealable by the circuit court’s order. The circuit court’s order suggests that significant
factual development remains as to matters not encompassed within this appeal and which
appear to more squarely vindicate petitioners’ grievances.
Accordingly, for the reasons set forth hereinabove, I respectfully concur.
1 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142006/ | TEE A~TOFCNEY GENERAL
OF TEXAS
AUSTIN 11.TEXAS
-
A-lZN=Y G&N-
Honorable George H. Sheppard
Comptrollersof Public Accounts
Austin, Texas
Dear Sir: OpMlon No. O-4339
Re: Is the surrender of shares of
capital stock by the individual
shareholder to the Issuing corpor-
ation, for cancellation and exting-
uishment, subject to the st.ock
transfer tax levied by Article XV,
House Bill 8, Acts, Regular Session,
47th Legislature?
Your letter of January 17, 1942, submits for our opinion
the following question which we quote therefrom:
“Combined Oil Company, a joint stock assocla-
tlon operating under a declaration of trust, recent-
ly gave Carl P. Bruner an Interest In an 011 payment
for 1,000 shares of stock In said association. The
stock certificate was indorsed ‘surrendered for can-
celatlon and retirement’ and the capital stock was
thereby reduced.
“Please tell me whether or not this transaction
is subject to the tax levied by Article $V of House
Bill 8 of the Forty-seventh Legislature.
Section 1 of the above cited Act levies the following
tax:
“There is berebg imposed and levied a tax as
hereinafter provided on all sales, agreemerit:s
to
sell, or memoranda of salea, and all deliveries or
transfers of shares, or ceratlflcatesof stock, or
certificates for rights to stock, or certificates of
~deposlt representing an,Interest In o??r*epl>esentlng
certificates made taxable under this Section in any
domestlc or foreign association, cornpan:?,
o??corpora-
,tion, or certificates of Interest In any bs.siriess
conducted by tmstee or trustees made after tie !+f-
fective date hereof, whether made upon or rho%??by
the books of the association, company, corporet.lon,
Honorable George H. Sheppard, page 2 o-4339
or trustee, or by any assignment In blank or by any
delivery of any paper or agreement or memorandum
or other evidence of sale or transfer or order for
or agreement to buy, whether intermediate or final,
and whether investing the holder with the beneficial
Interest in or legal title to such stock or other
certificate taxable hereunder, or with the posses-
sion or use thereof for ang'purpose, or to secure the
future payment of money or the future transfer of any
such stock, or certificate, on each hundred dollars
of face value of fraction thereof, three (3) cents,
+ * * c*"
Construing the Federal Stock Transfer Tax Act, substan-
tially similar textually, (26 U.S.C.A. 1802) the courts have
held that the Imposing of a stamp tax on all sales, agreements
to sell, memoranda of sales or deliveries or transfers of legal
title to any shares or certificates, Included every transaction
whereby the right to be or become a shareholder of a corporation
or to receive any certificate of any interest In its property was
surrendered by one and vested in another. Niagara Hudson Power
Company vs. Hoey, 34 Fed. Supp. 302, affirmed 117 Fed. (2d) 414,
certiorari denied, 61 Sup. Ct. 95, 313 U.S. 571. Glenn L. Martin
Company vs. United States 21Fed. Supp. 562. Ra bestos-Manhattan
United States 56 Sup' Ct. 63, 296 U.S. 60, 50 L. Ed. 44, 102
Z.R. 111, aff&lng 10 Fed. supp. 130. Westbrook-Thompson
Holding Corporation vs. U.S. 18 Fed. Supp. 289.
Article 35 (f) of Regulation 71 of the U.S. Treasury
Department declares 'the surrender of stock for extinguishment"
to be a transaction not subject to this stock transfer tax law,
which, as we have stated, is substantially identical, regarding
the incidence of the tax, to the Act before us.
Moreover, In the case of Glenn L. Martin Company vs.
United States, supra, the court,.In holding a transaction identi-
cal to the instant one to be non-taxable, made the following per-
tinent comment:
'!Thelegal effect of the transaction shown to
have been intended in its Inception and finally con-
summated in appropriate legal form was the actual
retirement of the stock. The surrender of the stock
did not transfer to the corporation any title or
ownership therein, either beneficial or only legal,
as it was delivered expressly for cancellation, and
was intended to be retired and extinguished, and not
to be kept alive for any purpose. The legal dlstinc-
tlon important here Is that between the surrender and
retirement of issued stock, and the transfer of stock
.. f(
Honorable George Ii.Sheppard, page 3
to a corporation to be held as treasury stock. In
the former case, which Is the one we have here, the
stock was Intended to be and was actually retired,
and had the status thereafter of stock authorized to
be issued but not Issued; and thereafter the corpor-
ation could not have properly reissued the stock so
retired except on the same conditions and under the
same Maryland corporate law provlslons as applied to
originally authorized but unissued stock. In contra-
distinction therefrom stock, transferred or delivered
to a corporation by a stockholder to be held as
treasury stock, is held by the corporation for its
own use, benefit and disposition without the legal
requirements pertaining to the original issue of
authorized but unissued stock; and treasury stock Is
not in fact cancelled or extinguished but Is kept
alive as a treasury asset of the corporation."
Although the administrative rulings and court decisions
above adverted to are not controlling of the situation before us,
this prior constructIon of a stock transfer tax having a slmllar
incidence to that levied by the subsequent Act under consideration,
holds considerable persuasive merit, especially in view of the
fact that we find no decisions or administrative rulings to the
contrary upon a similar tax levy by the state of New York, from
which we understand the Texas Act to be patterned.
Aside from these considerations, however, it appears a
holding that the instant transaction was not taxable would be scrp-
ported by the better reasoning. The text of the Texas Act and
the decisions, supra, indicate, generally and fundamentally, that
the tax is levled upon any one Gf several taxable eventa or trans-
actions looking to a transfer of the title or ownership, legal or
equitable, of shares Gf StGCk Out Of one person, firm.or corpora-
tion into another, so as to vest in the latter all of the rights
and incidents.of stock ownership. Both a transferor and transferee
are contemplated. The surrender of stock for cancellation or
extinguishment, for the purpose of effecting a duly authorized
reduction of capital stock, dGeS not vest in the corporation WY?
of the legal or beneficial rights or in.ci.dentsGf stock Gwner-
ship, such as would be the case if such stock was purchased and
he1.dby the corporation as treasury stock. The return t.othe
corporation for cancellation and extlngui5hment. of issued and
outstanding stock, is complementary to the original issue of 5>.ch
stock Gut of the corporation, which we have held to be non-te.xable
in our Opinion NG. O-3594, directed to YOU.
It is accordingly our opinion that the transaction out-
lined in, your letter Is not subject to the stock t:ransfertax
levied by Article 15, House Bill 8, Acts, Regular Session, 47t!i
Legislature.
Honorable George H. Sheppard, page 4 o-4339
Trusting the foregoing fully answers your Inquiry,
we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s,fPat M. Neff, Jr.
Pat MiNeff, Jr.
Assistant
?MN:ej :wc
APPROVED FEB 26, 1942
g$msms;~~;~
A'TTORNEYGEN~AL
Approved Oplnlon Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142026/ | TXZEATIWDRNEY GENERAL
OF TEXAS
Auslw 11.
TExas
honOr8ble P.W.Winter
county Attcrney
Jim Ho= county
Hebbronvllle, Texas
mir Sir: opinion Wo. o-4318
Ret Would 8 person convicted under Article
480a, Vernon's Annotated Pen81 Code,
thereby forfeit hi8 huntizg license
sxitl huntins rights under Article 893,
Penal Code0
Thl8 is in Feeponrreto your request for our opinion 8nswer-
lng the above question. you say you have 8 a8de pending wherein the
questionwfll be r8ised 8nd you seek our advice 88 to whether conviction
of ViO~tiOtl of &tide $808, Vernon18 kUlOt8ted Penal Code would result
in forfeiture of huntlxq liaen8es 88 authorized and required by Article
893 oi the Penal code of this State.
The lest official revl8lon of the Penal Code of Taxas ~8s
effective on Septeiier 1, 1925. It aontalned Article 893 88 8 part
of Tftle 13 %ffenses AgainrrtPublic Property” and w88 incorporatedin
Chapter 6 ofi88ld title, *Game, Fish 8nd Oysters", said Article 893
X%8ds 88 fOiiOW8t
'Any person convlated of vlol8tinS 8ny provl-
slon of the Same laws of this State sh811 thereby
8UtCUlKktiC8l’ly forfeit his license for 88id 8e88On.
Any 8uah parrron80 aonvlcted of vlol8tlnS the g8me
laws 8h8ll not be entitled to reaelve from the St8te
e'liaense to hunt for one yeer issaedlately folloulng
the d8te of his COtWiCtlOn# 8nd It ehall be unlawful
for 8ny person who la convicted of violatin& 8ny of
the provisions of the S8me 18wu of thle Stste to pur- I
chase or possess 8 huntInS llaense for 8 period of
one ye8r lamedlately following date of such conviction;
and it 8h811 8180 be unl8wful for 8ny peivon con-
vlcted of viol8ting m of the Same laws of this State
to hunt with 8 Sun In this State for e period of one ~
year immediatelyfollowing date of such aonvlction.
personVlOl8tlttg
"ditty w Of the prO~lSlOn8
of this (IcMtlOnsh8ll be deemed gulltyof a mlsde-
me8nor 8nd upon aonvlatlon 8h811 be fined in any sum
not lrS8 th8n one hundred ($100.00) doller8, nor more
th8ntwohundmd (&!C@.~) dollsrs."
Qttriavestig8tlgndoes not disclose that thb above mtiOle
~ ,'!'~.,'~
been amgmd&in @rq manner since the codiiicstionOf the st8tuta8
.,.
;,'i.:.,~~rerred
to ebove.
Ronorable P.W. Rlnter, Page 2 mm O-4318
_ -
Vermonta Annotated Pen81 Code Artiole 4808 ~88 p8ssed
by the Legl618eUn, 8ubrequent to the 8dOptiOn Of the l&i Pen81 Code.
It lt8S enacted by the Forty-firsttig1818tUN 8t its Second Called
&sslon,~and 1s offlCl8lly Printad 8s Chapter 3, page 4 of the Oeneral
L8W8 0s the Forty-first b&!l8tUl'8, Second and ThM Called Settsions,
1929. As the 88me la relatively rhort, we quote In f'ullt
"An Act prohibiting the shooting or dlsch8rging of 8ny
pi8tOi or firearm0s any kind in or SiOng
.gtttt,
or 8~088 8ny public road In this State; and
pX'e8cribing8 penalty theZ%fOr.
"Be it enacted by the Legi818tWe of the State Of
"Section 1. Any person who shoots or discharges
any gun, pl8tol or firearm 3.n on, 81Ow or 8Cro8S 8ny
publle ro8d ln thls State sh8il be fined not more than
~bldlY?d~118l-8.
"SEC. 2. The f8Ct that many person8 are now
dlscharglng fire8~~1 along and 8cro8s public roads In
this State, thereby endangeringthe lives and safety
0s persons rightfully on said roada oreates 8n emer-
gency requlrlng th8t the Constltutlon81Rule requiring
8 bill to be read on three seper8te days be 8u8pended
8nd said Rule 18 hereby 8uspended and that this Act
take effect immediately,and it 1s so enacted."
In the c8se or ffallowayv. State 125 Tex. Cr. R. 524, 69
S.W.’ (2d89, there Is 8 dl8eWlOn of the ef#ect.8nd 8ppliO8tion of
ArticleQ93, Penal Code. I 18 pointed out in the opinion 0s the court
Of crimb81 Appeals that 8 ViOl8tiOn Of 8ny Of the g8me bWS Of thl8
State 8utom8ticallyforfeits the llcenee of the guilty party; th8t such
forfeiture he8 no place in the j*ent 0s conviction r0r the offense or
ViOl8ting the Bame l8U8.
We find nothlng ln 8ny pirtlon 0s Vern&n's Penal Code, Artlalc
4808, nor in the 0rricial Acts 0s the Party-first Legislature, supr8, to
Indicate that the Legl8lature intended such 8et to b8 denomltded as 0
"provision 0s the game laws 0s this State". It 1s obvlous'thatmany per-
sons might shoot or discharge gun67 platols or other fire&m6 "in, on,
81Onp;and 8ClWSB" public roads In &hi8 etate without any of +em beinp; ln
pursuit 0s game.
It is Our opinion that mere conviction for shooting 8
8crosa a publia road in violation of Vernon's Pen81 Code, Article 4K
(Acts Forty-firstLeg., svpra), would not bring 8bOUt a~&rfelture of
the hunting licenee of the dimfhnt; that such offense .lsnot 8 vfol8tlon
;iokhe game 18~8, and therefore Article 893, Penal Code, has no appllca-
.
A>
' Roiorlble P.W. Winter, paSe3 O-4318
Yours very truly
Al’l’ORWI3Y OZNFSAL OF TRXAS
By 8/ Rcnj8ml.nwood811
Renj8mln wood811
Aaelstant
BWtmptwo
APPROVRD JAR 21, 1942
8/ Grover Seller8
FIRST ASSISTAWT
ATTQRRSY GENRRAL
APPROVRDOPINIORCOWITTEEBY B/BWBCRA-
i | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289309/ | FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Nos. 1D17-3602
1D17-3603
1D17-3604
1D17-3605
1D17-3596
1D17-3597
1D17-3598
(Consolidated for disposition)
_____________________________
S.G., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.
June 28, 2018
PER CURIAM.
S.G., who attacked and injured her father with a 6-8” shard of
broken mirror glass and smashed a picture frame over his head all
while threatening to kill him, challenges her conviction for
aggravated battery with a deadly weapon, claiming the shard did
not constitute a deadly weapon because it is not ordinarily
considered such a weapon, was not converted into one by its use in
this case, and caused only a “scratch” that healed by the time of
trial.
Though the aggravated battery statute does not define what
constitutes a “deadly weapon,” it has been judicially defined as
“1) any instrument which, when used in the ordinary manner
contemplated by its design and construction will or is likely to
cause great bodily harm, or 2) any instrument likely to cause great
bodily harm because of the way it is used during a crime.” Smith
v. State, 969 So. 2d 452, 454–55 (Fla. 1st DCA 2007) (quoting
V.M.N. v. State, 909 So. 2d 953, 954 (Fla. 4th DCA 2005)). While a
piece of broken glass, whether a mirror, a window, or a beer bottle,
may not ordinarily be a deadly weapon by itself, the context in
which the item is used can transform it into one. Cloninger v. State,
846 So. 2d 1192 (Fla. 4th DCA 2003) (affirming determination that
unbroken beer bottle could be deadly weapon); Brown v. State, 787
So. 2d 58 (Fla. 2d DCA 2001) (stating that evidence supported the
finding that a glass bottle could be used as a deadly weapon); see
also State v. Shilling, 889 P.2d 948, 950 (Wash. Ct. App. 1995)
(Beer “glass is not a per se deadly weapon; thus, the inherent
capacity and ‘the circumstances in which it is used’ determine
whether the weapon is deadly.”); Harris v. State, 705 So. 2d 542,
548 (Ala. Crim. App. 1997) (“Although a glass bottle is not
specifically included in the list of weapons defined as ‘deadly
weapons,’ a bottle may be ‘adapted for the purposes of inflicting
death or serious physical injury,’ and may therefore be a ‘deadly
weapon.’”); Pauls v. State, 476 A.2d 157, 160 (Del. 1984) (“The end
of a shattered glass bottle, with its ragged, jagged, sharp cutting
edges, is clearly capable of causing death. It is well known to be as
deadly as those objects listed in the statute as deadly weapons.”).
There was evidence from which the factfinder could determine
that S.G. intended to use the shard to cause severe harm or death
to her father, who was fearful and distraught; S.G. had already cut
herself in multiple locations and was “angry, cussing, using all
kind of crazy language” as she slashed the shard toward him. That
his injuries healed and left no permanent damage doesn’t
undermine the fact that the shard could have caused far worse
harm, such as loss of an eye. State v. Pomeroy, 573 P.2d 805, 808
(Wash. Ct. App. 1977) (“One of the victim's eyes had to be removed
as a result of the blow [from the broken beer bottle].”).
2
Because the shard from the broken mirror was likely to cause
great bodily harm as used by S.G. against her father, the trial court
correctly determined it was a “deadly weapon” and denied S.G.’s
motion for judgment of acquittal.
AFFIRMED.
MAKAR, WINOKUR, and WINSOR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and John W. Hedrick, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
3 | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/7295064/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4142054/ | .“.._
OFFICE OF THE AsITORNEY GENERAL OF TEXAS
AUSTIN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142228/ | OFFICE OF THE A’l7ORNEY GENERAL OF ?‘m
AUSTIN
HonorableAlex Jung
County.Attomet
Ollleepie CoulltJ
Fredericksburg,Texas
Dear Sir: Op iniol
no. O-4126
Re~8 kIdor the faots ret forth
ir ft perrisaible to tq
the o8ae before eome per-
80LLagreed upon betveen
the aounty attorney and
the derendant or hie at-
;;= And l’dAtOd QUOB-
.
Your FOQUOSt for Our 09iniO~ On the hbrelnabove mp-
tioned Question8ban beea noelved b this departme&. We
quote from your letter (LBrollowr~
“Lee Its, a realdent oltlren of Oiller$ie
County, Texaa, but rerldlng out&lo of the
llmlts of Jurtlae Preelnot go. 1 aad also out-
side OS the corporate llmlts 05 the Cltr of
Frederfakkrburg, etandr ahmged by oomplslnt
filed In the Jurtlce Court or Preolnot Ho. 1,
of Oilleeple County, ‘Poxal. vlth a gane viola-
tion vhloh ocmrmd outside OS the llmlte or
euah city and preoinot. The Juetlae of the
,Peaaehas elgnlfledhi8 disQuallflcationin
this particular caee on the ground of relatlon-
ehfp vlthia the prohibiteddegree. There 8n
nine jumtioe preqttaotsin Ollleaple County but
then 20 no Justice'of,thePerae other then
the one mentioned in euoh oountj, none other
havlng been elected or appointed.
“it l l*
gonorableAlex Jung, Page 2
"1. The Quoted statutes being inadequate
to deal vlth the situationpresented under the
foregoing facts, 1s it pemieslble to try th,y
case before some person agreed upon between
ths County Attorney and the defendantor his
attorxmy?
"1; In the absence of an agreement,vho
has the pover and authority to appoint a special
justice to try the cause?
"3. The CormieelonereCourt being poeeoaeed
of the paver to ill1 vaaanciee by appointmnt
(Art. 235~5)~ does such court also have the lesser
pover to appoint a epeclal juetloe to try the
partluular cause?"
We note in your letter th0 etatem0nt that8 "There
are nine juatloe pmoincte in Oilleep~e County l * .*." Ye
reepXI%lly aall your attention to Article V, Seatlon 18 of
the Texaa Constitutionvhiuh permlta "not lees than four and
not non than eight," juet~leeprecinctr.
Artlole 552 of Vernon's Annotated Code of Crw
Proo0dureraada as Pollovel
"Art. 552. (617) (606) Causes which die-
qualify :
50 judge or
in any case Maen
vhere he has been of oouueel for the Stati or the
accused, or vhere the aoaueed or the party injured
may be oonneotedwith him by eOn8anguinltj or af-
finity within the third degree." (Undereoorlng
ours)
Article 553 of sald Code provides for the seleotion
of a special district judge In the event the regular dletrlat
Judge is dlepuallfledin a orllllinbloaee. Artlale 554 of said
Code provides for a apeoial oountx judge vhare the regulw coun-
ty j-0 La die&mlified In a urlmlnal uasb.
Article 558, Vernon's Annotated Code of Criminal Pro-
1 aedure,provide6 that:
586
gonorable Alex Jung, Page 3
"Art. 558. (624) (611) Justice dlequallfied
“If a justice of the peace be d.ZagualifLed
from aSttl.w in a119crlmlnal actlon Dendlmz be-
fore him, he shall-transferthe name-to th; near-
ent justice of the pence of the county vho is
not dlsqualiflsdto try It.” .(UnderEcorlngours)
Article 2399, Vemonn’e Annotated Civil gtatutee,pro-
videe for a special justice of the peace in cas88 only.
Where, ne under the facts stated by you, there la
only OM justice of the ‘,eaaein a county, and he is dlequall-
fled, ve are unable to find any etatutory authority for the
selectionor appolntmnt of 0 special justice In a arlminal
oaee, either bg agreementof the parties or otherwise.
Inasmuch aa the Texas Constitutionrequlrae each aoun-
ty to be divided .lntojustice aourt precincta,not leas than
fournor more than eight Zn ntuaber(Art. V, i?eo.18), it vae no
doubt antlolpated+bythe Leglalature that e&oh county vould have
more than one jue*lce-.pf the peaoe and bonsequentlya euffiolant
procredure provided for%y AArt1ol.e558, aupra, where a justice of
,thepeace la dlaqusllfled¶.na criminal case.
The fact that there la only one juatlce of the pea00
in the county, does not have the effeot of authorielngthe ap-
pointment of a apeclnl justice of the paaue, either by agree-
ment between the aounty attorney and ~defendant,or by the Com-
tiselonereCourt or any one else. The only statutoryauthorltJ
f'orthe trial in such a case 1s in accordancevlth the piwvi-
alone of Article 558, supra: Judges can only be aelaated and
croaaiseloned to preside over a court an.18 provided by law and
statutesprovldlng for apeelal juwee Iwit be strictly oonstrued.
Orogm vs. Robinson (Clv. App.), 8 3. W. (2d) 571, (error refused).
While Article 2355, Veimon’e Annotated Civil Statutes,
gives the Comal.seloner~Court the payer to fill a vacancy ln the
offloe of justloe of the penoe, It does not, in our opinion,
give said court the power to appoint a epeolal justice to tFy
a particular case.
In vlev Of the foregoing, Ye rea,pbCtfully UIBWOrYOUr
three questions,under the facta stated, as follo~~i
. .
EonoFable Alex Jung, Psge 4
1. It is~not permissible to try the case before
som person agreed upon between the county attorney and the
defendant or his attorney.
2. Ve have been unable to find any statutoryor con-
stitutionalauthority authorlelngthe appointmentof a special
Justice to try the particular case mentioned, and, therefore,
no ona has the povsr or authority to make such appointment.
3. Although the ComalselonersCourt has the paver,
under Article 2355, .Vernon’sAnnotated Crvil Statutea, to PI11
vacancies ln the offloe of Justice of the pe8oe, said Article
does not oonfer on aaid court the pover to appoint a spsclal
Justice to try the particular case laentloned.
Thank- you for the able brief eubmlttedby you,
ve an
Very truly 'youn
CC"'r-y,I?;!? ATTORBEY aRlmAL OF TRXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4396115/ | C-Track E-Filing
Nevada
Appellate Courts
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search | 01-03-2023 | 05-13-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4396123/ | Fourth Court of Appeals
San Antonio, Texas
May 10, 2019
Nos. 04-18-00764-CR, 04-18-00765-CR, 04-18-00774-CR, 04-18-00775-CR, 04-18-00777-CR,
04-18-00778-CR, 04-18-00779-CR, 04-18-00780-CR, 04-18-00781-CR, 04-18-00782-CR,
04-18-00783-CR, 04-18-00784-CR, 04-18-00785-CR, 04-18-00786-CR, 04-18-00787-CR,
04-18-00788-CR, 04-18-00789-CR, 04-18-00790-CR, 04-18-00791-CR, 04-18-00792-CR,
04-18-00794-CR, & 04-18-00795-CR
The STATE of Texas,
Appellant
v.
Mark Anthony GONZALEZ, Agustin Perez, Jr., Gabriel Rene Perez, Jeremias Aguilar, Jr.,
Martin M. Rios, Jr., Steven Negrete, Fernando Jefte Mata, Eloy Canales Romo, Francisco
Antonio Rodriguez, Raymond Ryan Robinson, Winston Robert Modisette, Courtney Marie
Seilhammer, and Ahmed Mamuth
Appellees
From the County Court, Kinney County, Texas
Trial Court Nos. 10041CR, 10056CR, 10122CR, 10134CR, 9711CR, 9712CR, 9892CR,
10123CR, 10054CR, 10138CR, 10187CR, 9964CR, 10185CR, 10047CR, 10074CR,
10115CR, 10116CR, 10117CR, 10118CR, 10125CR, 10195CR, 10196CR
Honorable Spencer W. Brown, Judge Presiding
ORDER
The State filed its notice of appeal in each of the underlying causes asserting a right to
appeal pursuant to article 44.01(a)(1), (4) of the Texas Code of Criminal Procedure (“Code”).
TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1), (4). Article 44.01(e) of the Code provides, “The
state is entitled to a stay in the proceedings pending a disposition of an appeal under Subsection
(a) or (b) of this article.” Id. art. 44.01(e). Because the State seeks to appeal under Subsection
(a), the State’s emergency motion to stay is GRANTED, and all further proceedings in the
underlying causes are ORDERED stayed pending the disposition of the appeals.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 10th day of May, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 05-13-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4126136/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,906
5 MICHAEL BALTES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DE BACA COUNTY
8 Albert J. Mitchell Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Michael Baltes
13 Fort Sumner, NM
14 Pro se Appellant
15 MEMORANDUM OPINION
16 GARCIA, Judge.
17 {1} Defendant-Appellant Michael Baltes (Defendant) appeals, in a self-represented
18 capacity, from the district court’s order entitled “order dismissing notice of appeal and
1 remand to magistrate court[.]” [RP 106, 108; DS 1] We previously issued a notice of
2 proposed summary disposition in which we proposed to affirm. Defendant has filed
3 a memorandum in opposition, which we have duly considered. Because we remain
4 unpersuaded, we affirm.
5 {2} Our notice proposed to affirm on two alternative bases. [CN 2–4] First, we
6 explained that the law of the case doctrine precluded our review of Defendant’s issues
7 on the merits. See Alba v. Hayden, 2010-NMCA-037, ¶ 7, 148 N.M. 465, 237 P.3d
8 767. Defendant already sought to have the merits of his appeal reviewed by this Court
9 in 2014, but this Court dismissed his appeal due to his failure to file a timely notice
10 of appeal. We further explained that once mandate was issued by this Court, the
11 district court’s review of the proceedings was limited to the scope of the mandate. See
12 State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶ 22, 145 N.M.
13 769, 205 P.3d 816 (“The district court was not free to enlarge or alter the issues
14 presented in the mandate.”).
15 {3} Second, our notice observed that Defendant’s notice of appeal in magistrate
16 court was untimely filed. [CN 3–4] Because Defendant is representing himself, our
17 notice explained that we do not extend the presumption of ineffective assistance of
18 counsel and require that he file a timely notice of appeal in the correct tribunal. See
19 Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M 301, 980 P.2d 84.
2
1 {4} Defendant’s memorandum in opposition does not respond to the first basis for
2 affirmance set forth in our notice of proposed disposition, regarding the applicability
3 of the law of the case doctrine. Defendant has therefore failed to persuade us to depart
4 from the initial position set forth in our notice. See State v. Johnson,
5 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (stating that when a case is
6 decided on the summary calendar, an issue is deemed abandoned where a party fails
7 to respond to the proposed disposition of the issue).
8 {5} In response to the second basis for affirmance, the untimely notice of appeal in
9 magistrate court, Defendant explains that he is not represented by an attorney, and to
10 the best of his knowledge, he completed and filed all necessary paperwork in a timely
11 manner. [MIO unnumbered 2] Defendant does not, however, offer any additional facts
12 to demonstrate that notice of appeal was, in fact, timely filed in the correct tribunal.
13 See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our
14 courts have repeatedly held that, in summary calendar cases, the burden is on the party
15 opposing the proposed disposition to clearly point out errors in fact or law.”) We
16 acknowledge that Defendant has chosen to represent himself in this appeal. However,
17 self-represented litigants must comply with the rules and orders of the court and will
18 not be treated differently from litigants with counsel. See Bruce, 1999-NMCA-051,
19 ¶ 4.
3
1 {6} In sum, Defendant has not demonstrated that either of the two alternative bases
2 for affirmance proposed in our notice were in error. Accordingly, for the reasons
3 stated above and in the notice of proposed summary disposition, we affirm.
4 {7} IT IS SO ORDERED.
5 ________________________________
6 TIMOTHY L. GARCIA, Judge
7 WE CONCUR:
8 _______________________________
9 LINDA M. VANZI, Chief Judge
10 _______________________________
11 J. MILES HANISEE, Judge
4 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142104/ | ‘*
i OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
&JQaoeblo c. uoodmw ldepadilip
qou@y Attorney
Jj.& walls county
A&&o*, texml
glrlrturo, waharired thm sup-
a on praotioe uld pouedur* la
The opaatmont ale0 pmrldod
t b* ttme it iLla the fulee, tho
llfile uiththo Beorotmqo?
11 8rtieles or eeationr of the
ou~ral uws OS the state or ~9~9, aa part8 0t
ut10lo* 8nd sootlon8 of ruoh qwmral xawa, wbleh,
in itr judpmnt, are ropoalqd ba 8ootlon of thim
Jut. Such llrt giving the ooaetruotlon aS the
8uprme Qourt am to the *nom& L8wr u14 pta of
lawm repe*led by !3oat&oa Z #hUl bebatitute, an&
hove the 8mm weight m.4 effect, 8s ln7 Other da-
oleloa of the Supreme Cuurt.a
gonorable C. Woodrow Laughlin, page 2
By Senate Eill 206, the 44th L*gISlatu?a passed what
is known as Article 7336,1, Vernon*6 Revised Civil Stattat4m,
ad Seotion 6 thereof pmrldes a form for aitat$oas in tar
luits.
The s~pr4B4 COUt Or TaXaS aoioplisd
With Section 3
of EiousaBill 108, supra, end tiled with the ;earetary of Stats
a &fat of all artiolas and sections of the General Laws whlah
wm in its judgamnt repealed by the Rules of Praotloe aad Pro-
..duN in Civil Imtions. An sxamlaatlonOS the list does not
ulaa$ose that Artiole 7328.1, was tansldsred by the Supreme Court
as belkxgrepealed. The list war, filed bl the Suprmse Court on
wteber 29, 1940, and /,rtiolr 732&l, uas a part of the General
L&W at that time. %e are therafore of the oppinlon,thatRule Eio.
101 of the &lg+s of Practios and Proaedure In Civil hations doeu
uot~mplaoe Ar%ials 7326.1,
You are theretore~adrlsedthat fn our oplnlon a olta-
tion in a tax suit is riotsuff,iaient wile86 it is substantlallp
In the fork pTe%eribedby said hrticla 9ZWl.l.
IQ answer to yOUr SSOOnd pWStien .yQuare adtlaad that
Artlola 73138.1has not been rspaaled for the seasons above
etated, and that the folplpresaribsdtherein is the proper fors~
fbl:use in tax suits,
Your attention Is se&lad to the faot that ths Suprssm
Coart has amended Eule No. 8 of the Ruler of Praotloe and Pro-
emlure in Cftil Aotlons, effeotlre Daoember 81, 1941, expressly
aontlnulngthe rules zoverniq procedure Fn Tax suits whicrhwere
effwtlre faumbdiately prior to Saptstribar
1, 1941.
Trusting thet tha toregoIn(~fully asmwers your In-
quiry, we are
Tours very truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142110/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
_ ..
P
P
0
.I | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126440/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 400 WAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
DANIEL SCOTT MUZZY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 15th day of February, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129652/ | OFFICE OF THE ArroRNEV GENERAL STATE OF TEXAS
JOHN CORNYN
March 31.1999
The Honorable Mark Piland Opinion No. JC-0029
Mitchell County Attorney
349 Oak Street, Room 206 Re: Whether the constitutional residency requirement
Colorado City, Texas 79512 applies to a deputy county clerk (RQ-1168)
Dear Mr. Piland:
You ask if a deputy county clerk who moves outside ofthe county where she works becomes
ineligible to serve. To answer your question, we must determine whether a deputy county clerk is
an officer and subject to article XVI, section 14 of the Texas Constitution, which requires that all
district or county officers reside within their districts or counties. See TEX. CONST.art. XVI, 5 14.
We conclude that the constitutional residency requirement does not apply to a deputy county clerk,
because a deputy clerk works under the direction of the county clerk and is an employee rather than
an officer.
You explain that a deputy county clerk employed by Mitchell County plans to move to
another county, but desires to continue her employment as deputy county clerk in Mitchell County.
Article XVI, section 14 of the Texas Constitution provides: “All civil officers shall reside within
the State; and all district or county officers within their districts or counties, and shall keep their
offices at such places as may be required by law; and failure to comply with this condition shall
vacate the office so held.” Id.; see also Jordan v. Crudgington, 231 S.W.2d 641,646 (Tex. 1950)
(constitutional mandate that all county officers shall reside within their counties). The constitutional
residency requirement for state, district and county officers is self-enacting and requires no
legislative action to put it into force and effect. See Ehlinger Y. Rankin, 29 S.W. 240,241 (Tex. Civ.
App. 1895, no writ). Failure to comply with its terms creates a vacancy in the office. Id.
The answer to the question you ask depends on whether the deputy county clerk is a “district
or county officer.” Texas law distinguishes between an “officer” and an “employee.” This office
applies the test articulated in Aldine Independent School District Y. Standley, 280 S.W.2d 578 (Tex.
1955), to ascertain whether a person is a public officer or an employee. Under Aldine, one’s status
as an officer is determined by “‘whether any sovereign function ofthe government is conferred upon
the individual to be exercised by him for the benefit of the public largely independent of the control
of others.“’ Aldine, 280 S.W.2d at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738,740
The Honorable Mark Piland - Page 2 (X-0029)
(Tex. Civ. App.-Galveston 1949, writ ref d)) (em ph asis supplied by the court in Aldine); Tex. Att’y
Gen. Op. No. DM-212 (1993) at 2. “In more recent decisions, both the Texas Supreme Court and
the courts of appeals have further emphasized that an office involves not only the authority to
perform certain sovereign functions, but also the authority to perform these functions largely
independent of the control of others. In other words, individuals who perform sovereign functions
under the direction of another are not officers.” Tex. Att’y Gen. Op. No. DM-212 (1993) at 3 (citing
Green v. Stewart, 516 S.W.2d 133, 136 (Tex. 1974) and Harris County v. Schoenbacher, 594
S.W.2d 106, 111 (Tex. Civ. App.-Houston [lst Dist.] 1979, writ ref d n.r.e.)). See also Powell v.
State, 898 S.W.2d 821,825 (Tex. Crim. App. 1995) (en bane) (applying Aldine test to determine that
assistant district attorney is not public officer).
Section 82.005(c) of the Local Government Code provides that a deputy county clerk acts
in the name of the county clerk. See TEX. LOCAL GOV’T CODE ANN. 9 82.005(c) (Vernon 1988). A
deputy county clerk does not perform sovereign functions of the government largely independent
of the control of others. Rather, a deputy county clerk performs functions solely at the direction and
under the control of the county clerk. We conclude that a deputy county clerk is an employee, see
Tex. Att’y Gen. Gp. Nos. EM-1083 (1989) at 2 (chief deputy of a county tax assessor collector does
not hold an office), MW-415 (1981) at 1 (deputy county clerk exercises power in the name of
appointing officer and not in own right), H-l 144 (1978) at 2 (stating that Green, 516 S.W.2d at 136,
provides strong implication that the Texas Supreme Court would hold deputy county clerks to
constitute employees); Tex. Att’y Gen. LO-96-148, at 2 (assistant district attorney does not hold an
office), and is not subject to the residency requirement of article XVI, section 14 of the Texas
Constitution. Accordingly, a deputy county clerk who moves out of the county may continue to
serve in that capacity.
The Honorable Mark Piland - Page 3 (X-0029)
SUMMARY
A deputy county clerk is an employee, not an officer, and therefore is not
subject to the residency requirement of article XVI, section 14 of the Texas
Constitution.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Mary R. Grouter
Assistant Attorney General | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142322/ | OFFICE OFTHE ATTORNEY GENERALOF=
AUSTIN
Honorable Romer Garrison, Jr., Dlreotor
apartment of Publiu Safety
O~=P llabrg
ILwtin, texM
AtteIltlont Mr. J. 8. Draper
Bsar slrt opinion PO. O-403&
Rer Isauanoe of driver's lieens to
a a&nor under 16 ysarr of age.
We huve reaelvsd your 1ott.r of W@ptmber 23, 19.941,
vhloh ve quots in part aa follolrrt
"we shall. greatlg appreoiate it if j0u~rll.l
pleaae give ~8 hour oplnlon on the following quer-
tiont
%hsn & aounty $&go givQs authorlsat~fon for
ismanoe of liaswe to a minor under .a6 yeari of
ago and over 14 yeare of age, and do+ not rhov
ths neaes8lty, but the llcrener vlll Ibe used to
drive an antomeb%le for pleaanre, etc., do we have
the authorltp to refuse lssuanoe of license?@
Bubsdctlon 1, Qeotion 4, Hour4 Bill Ilo. 2$ Aota
.?ort;T-seventhLeglrlature, Regular $easion, la queted a6 iollowr
'The De~tment ehall imt lreue any llaense
m&e 1% neoesssry for euah person to be lie(rased
as an operator; provided, howmoP, that in-~40 event
aball an operator's liaense a? oless be pmea
to any person less then fourteen
"T 14) pare Of aget.*
(Emphasis supplied)
I
Honorable Homer Qarrleon, Jr., PagQ 2
Tiwa, we see that under above quoted provisions the
county judge may after fnvestlgatlon authorize the Department
of public Safety to issue a J.ioense to a pemon under 16 but
over 14 yeare of age "vhen, in hle (the county judge's) opin-
ion, the person apply- Is qualified and conditions exist
vhloh make it necessary Sor such Person to be licensed aa an
operator." (Parenthetical insertion Ours) The determlaatlon
of the existence of condltlons aiag nQCesBary the issuance
of the license la a matter solely fOF the county jud,gQ. A
written authorlzatloo from the county ju&e is required, but
the statute does not require that the authorlzatlon shop the
n40easlty. After a vrltton authorizationis rQoelvQd by the
Department of Public Safety, It then becomes the duty of that
deputmQnt to lseue a lloense to the applicant.
The determination by the county judge, aStep l&esti-
getion, that there 1s 8 ne04ss~tY requlrlng the lseuanae 15s a
lloowe~ls in the nature OS a oourt order vhlah, ln our opinion,
la bIndIng upon the Department OS Public Safety. gee Oplnlon
Ho. o-1079.
You are respecthilly advised that necessity does not
have to be shown by the county dudge ln his vrltten authoriza-
tian to the Department OS Public Safety to issue an ape&attir's
llomae to a person under 16 but not less than 14 yearo’of sg~,
and th4 Deparbwnt of Pub110 Safety may not r4SusQ to lrsu4 a
lie~nse because of the Saot that su0h neoQs8ity Is not shown.
Houeve~, we do not believe that it was the legislative
intent to place persons under 16 but not less than 14 years of
age, sob to whom the county judge ,authorlced the Department OS
Public Sifety to iesue a license, In a more desirable class than
that occupied by other applicants; but on the other hand ve feel
that it vas intended that such PeTsOns be plaoQd in the same
category es any other applicant. 'PhBreSore, th4 mpartment of
Public Safety may refuse to lssu~ a Xloense to such person lt he
oomes wlthln any of the provislona vhlch diaqualifg him. gee
SeCtiOn 4 of House Bill NO. 200
YtlurE very truly
pI%T ASSISTANT
ATWRNEY G-~
W3Pej | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142092/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
scnorable 5%. F. Xiisks
:&unty Attorney
.&O C0unt.J
@idd~n6s, 7bxt.m
prsr sir:
33: can the
your letter of r eating an oppinion
d thersin reads ae
treets; 2. (Ian
olty, and also provides the
ok for the oommunlty surround-
outside of the olty limits?
w I my opinion that the City oan not
donate money for the purchaee of a fire truak
axoapt by an agreement to furnish its use to
the entire aounty, 1 BP or the opinion that tha
oounty aan agree with the alty to help In the
maintsnanae 0r streets. I beaa thin latter aon-
tention on Smith va. Calthy 228 S. Y:. 198 and
Eughee v. County Comel~sloner~ Court Of Ha@8
county, 35 a. ?Y. 2nd ala, wherein it la held
a
Honorable ;E. F. Kieke, Fag3 2
that the oounty has authority to help maintain
streets within the oity limits, providing the
oity does not objeot.
“1 should appreaiate an opinion in regard
to the above rrom your department. I believe
that perhaps the opinion reoently given Travis
County tith reference to a donation to some Army
unit may be of help to me and I should like to
have a copy or same.”
It is stated in our Opinion Zo. o-1190:
“As a general proposition 0r law it la set-
tled that the oontrol and jurisdiotlon over
streets of a muniofpal oorporation is exclusive
in said corporation. However, the oourta have
construed to the oountles the right to expend
funds in the Improvement of streets withfn the
oorporate limits of a alty when said streets
were alao a pub110 road, particularly when done
with the consent of the olty. see Hughes VS.
County Commlsel.onere’ Court 0r IIerris County,
35 s. YI. (2d) 818. This same aonalusion was
reaohed by the Supreme Court in the case of
the City of Breokenridge vs. Stephens County,
40 s. w. (2d) 43, ivherein the oourt said:
“*The aommiseioners court may expend coun-
ty road bond funds for improvement of oity
streets rorming part oi aounty roads whhsre made
with city’s oonsent. *
*The general underlying theory being that
such improvements must be confined to streets
forming part of a oounty road system and also
that the aounty must have the oonsent Or a muni-
alpal oorporation within whloh said streets may
be looated. The Supreme Court in the Brecken-
ridge case, above alted, dlstlnguished between
streets forming a part of a oounty road system
and streets generally within the city. In that
oase the oourt held that the ocenulssloners~ court
could bind itself to expend oounty road bond funds
to aid the City of Breokenridge in improving
c ‘streets forming part of oounty roads, f and In
,277
Honorable ?:. F. Xieke, Yage 3
the ssme ease held that the county aould not
bind itself to aid +he City of Zreokenridgo in
improving ‘etreete’ . It Is obvious that they
intended to draw a dietinotion between streets,
speuking generally of the arteries of trafflo
within a munioipalitg, and.suoh streets ae form
a continuation of e oounty road, but In any
event a street whioh had been designated by the
county as a part 0r Its system. . . . n
In this State it is well settled, aa a general
proposition of law, that the oommissioners’ oourt Is a
oourt of lImited power and jurisdiotion, and has no powers
or dutlea exoept those whioh are olearly set forth and de-
fined In the Constitution and statutes, and those powers
that arise by a neaessery implloatlon. The authorities
supporting this general statement are so nu-zerous we do not
deem It neoeaeary to oite any of them.
:.ith reference to your first question you do not
state whether or not the streets mentioned aonetitute a
part of the aounty road syatem. however, in the sbsenos
of any statement showing that said streets are a part of
the (runty road system and in view of Cpinion No. O-1190
and the authorities oi ted therein we respeotfully answer
your rir3t question in the negative.
Ile now ooneider your seoond and third questions.
fiticle .S351a-1, V.n.C.S., reads as follows:
‘*The Commissioners Court in all oountiea
of this State shall bs authorized to furnish
rlre protection and fire fighting equipment to
the oitizanu of such county residing outaide
the city limits of any olty, town, or vllleg4
within the county snd/or adjoining oounties.
?he Commissioners Court shall hsve the author-
ity to purchase fire trucks and other fire fight-
ing equi;.%ent by first advortisinC end reoeir-
ing bids thereon, as provided by law. The Con-
missioners Court of any county of this State
shall also have the authority to enter bUi0 Oon-
tracts with any oity, town, or village within..
the county and/or adjoining oonnties, upon such
terms and conditions as shall be agreed upon
Ronorable ?X. F. Kleke, Page 4
between the.- Commissioners Court and the govern-
ing body of such city, town, or village, ror
the use of the fire trucks and other fire fight-
ing equipPGent or the oity, town, or village.
It fe apeoliicaUg provided that the acts of
MJ person or persons while fl.$ting fires,
traveling to or rr0n fires, or in any manner
turnluhing rim proteotlon to the oitizens or
a aounty outside the oity limits of any olty,
town, or village, shall be oonsldered as the
acts of agents of the oounty In all respeots,
- notwithstanding ouoh person or Persons may be
regular employeea or firemen or a olty, town,
or villa&e. No city, town, or village within
a county and/or adjoining oountles shall be
held liable for the aots of any of its employees
while engaged in righting fires outside the city
limits pursuant to any contract theretofore en-
tared into between the Commissioners Court of
the oounty and the governing body of the oity,
town, or vlllsge. Provided however, that any
tire equipment purohosed by any County shail be
done only by a majority vote of property own-
ing taxparers and qualified voters of suoh ooun-
ty at a oounty-wide eleotion oslled tor such
PurPose. "
The above quoted statute do& not authorize a
oounty to donate any money to a oity within or without the
county to purohase a rlre truok. 3s have been unable to
find any other authority authorizing a oounty to donate
money to a city for suoh purpose.
Artlola 2351a-1, suprs, apaoirloauy authorize8
tbe oommIssIoners* 00w 0r any 00unty 0r this state to
enter Into contraots with any city, town, or village within
the county and/or ad oining aounties upon auoh terms and
oondltione as shall e a reed upon between the oommisslonars'
court and the governing i %;
ody of suoh dlty, town or village
ror the use or rlre trucks and other fire fighting eqtiPlr,ent
of a c lty, town, or village. Lt will be noted that the above
mentloned statute speclf loally provldea, "provided however,
that any fire equipment purchased by MY county shall be done
only by a majority vote or the property Owning taXPaYerS
and qualified voters or suah county at a county-wide else-
tlon called ror auoh PUrPOse." Therefore, in reply to your
third question, as stated nbove, YOU sre advlsed that lt is
Ronorabla Z. 2’. Kleke, Taga 4
our opinion that e oouuty cannot !;ioe or donate to a olty
or town within the county any amount of money for the ain-
tenanoe of ,streete in said olty or to-n. Dut a county oan
legally make expenditures for the improvement and malntan-
snco of streets in e atty or to%% within the oounty ahan
rald 8tmots form or oonstitute a portion of the oounty road
aystam,when the oonsent or the city or town is had. However,
ss above indioated, the oommlssloners* court or any county
is euthoricad to enter into contraots with any oity, eto.,
within the oounty and/or adjoining counties, upon suoh tewm
end conditions 88 shall be agreed upon between the oommlsalonars*
court and the governing body or such aity, etc., for the use
or fire truoks end other rlre righting equipment oi the olty,
tmn, or village, in oompllance with irtlole ZMla-1, supra.
.You have requested a oopy of our opinion to Travis
County with refemnoe to a donation or appropriation to pur-
ohasa reading room equipment for Camp Mwla. ‘Phls opinion la
80. O-3963 and we anolose a oopy or the aema ror your inror-
nation and alao a oopy of our Opinion Ho. 04190 above m+n-
tloned.
Truetlw that the roregolng fully answers your ln-
wiry, we are
Yours very truly
ATi’ORIiEYGEXERALOF TE=
irdell Williama
asslatant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149858/ | STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
FILED
Plaintiff Below, Respondent
March 2, 2017
released at 3:00 p.m.
vs) No. 15-1017 (Harrison County 14-F-5-2) RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Adam Derek Bowers
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Adam Derek Bowers, by counsel Christopher M. Wilson and David B.
DeMoss, appeals the September 22, 2014, order entered by the Circuit Court of Harrison
County, West Virginia, sentencing petitioner upon his conviction of two counts of first
degree sexual assault, one count of burglary and one count of first degree robbery. Petitioner
was sentenced to a term of imprisonment of not less than fifteen nor more than thirty-five
years for each of the first degree sexual assaults, to be served consecutively; to a term of
imprisonment of not less than one nor more than fifteen years for burglary, to run
concurrently; and to a term of imprisonment of forty years for first degree robbery, to run
consecutive to the other counts. Respondent State of West Virginia (hereinafter “the State”),
by counsel James Armstrong, filed a response and petitioner filed a reply. Petitioner assigns
two errors on appeal. The first issue1 is whether the circuit court erred in precluding
1
The first assigned error is as follows:
The Trial Court erred in precluding the Defendant’s admission
of certain evidence pursuant to its Order Granting State’s
Motion, as Amended, to Preclude Reference to Any Admission
of Guilty Pleas or Particular Conduct or Court Proceedings of
Joseph Buffey and Prohibiting any Reference, Introduction or
Use at Trial herein of any Admission of Guilty Pleas or
Particular Conduct or Court Proceedings of Joseph Buffey
(continued...)
1
petitioner from admitting or referencing the guilty plea entered by, particular conduct of, and
court proceedings relating to Joseph Buffey (also referred to as “the Buffey materials”).2 The
second assigned error is whether the circuit court erred in denying petitioner’s motion for
judgment of acquittal or, alternatively, motion for a new trial.
Having thoroughly reviewed the appendix record, the parties’ briefs and oral
arguments, the applicable law and all other matters before the Court, the Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the West Virginia
Rules of Appellate Procedure.
1
(...continued)
entered May 5, 2015.
The error as assigned is convoluted and confusing. We, therefore, rephrase it for purposes
of this appeal.
2
Initially, Joseph Buffey was identified as a suspect in the case involving the same
crimes of which petitioner stands convicted. See Buffey v. Ballard, 236 W. Va. 509, 512, 782
S.E.2d 204, 207 (2015). Mr. Buffey repeatedly stated that he was not involved in the crimes
perpetrated against the victim, however, he admitted that he “had broken into ‘[t]his old
lady’s house[,]’ but said he could not recall any sexual assault.” Id. Mr. Buffey ultimately
entered a guilty plea to two counts of first degree sexual assault and one count of robbery,
wherein he admitted to breaking into Mrs. L.’s home, robbing her and forcing her to have sex
with him. See id. at 513-14, 782 S.E.2d at 208-09; see also infra note 3. Despite his guilty
plea, this Court noted in Buffey that there were numerous inconsistencies with the actual facts
of the case as the police knew them and what Mr. Buffey was telling the police. Id. at 512
n.4, 782 S.E.2d at 207 and n.4.
We reversed the circuit court’s denial of habeas relief to Mr. Buffey and remanded
the case to the lower court to allow Mr. Buffey to withdraw his guilty plea. Id. at 511, 782
S.E.2d at 206. The Court found that Mr. Buffey had repeatedly requested the results of DNA
testing and that the State had incorrectly informed him that the testing was not complete.
Instead, the results of the DNA testing had been obtained six weeks prior to Mr. Buffey’s
plea hearing. The Court found that the DNA results were favorable to Mr. Buffey as the
results indicated that the DNA did not come from Mr. Buffey. Thus, the Court determined
that the State had violated Mr. Buffey’s due process rights in suppressing the exculpatory
evidence. See id. at 513 and 526, 782 S.E.2d at 208 and 221.
2
On November 30, 2001, Mrs. L.,3 who was eighty-three years old at the time,4 was
sexually assaulted, both vaginally and orally, at knifepoint, during a burglary and robbery that
occurred in her home in Clarksburg, West Virginia. Mrs. L. lived alone and in the early
morning hours on that day, she was awakened by her assailant in her bedroom, which was
located on the second floor of her home.5 The victim’s son, Joseph L., who was a lieutenant
with the Clarksburg Police Department at the time the crimes were committed against his
mother, testified at trial. Joseph L. stated that his mother told him that “they shined a
flashlight” in her eyes and that they were behind her.6 Joseph L. also testified that his mother
was instructed not to ever turn around. They first took his mother downstairs, wanting to
know how much money she had. She gave them the nine dollars in cash that she had in purse.
They then took her back upstairs to her bedroom, where they sexually assaulted her. Then,
“they tied” her up with belts before leaving her home.
The victim was taken to United Hospital Center for medical treatment and to have a
sexual assault examination. Dori Josimovich, a SANE nurse, treated Mrs. L. The SANE
nurse testified that the victim told her that her attacker was white and said he entered her
home through the side door.7 Mr. L.’s son also testified that he had found the side door ajar.
3
Pursuant to West Virginia Rule of Appellate Procedure 40(e), we identify the victim,
and the victim’s son in this case by their initials. See also State v. Edward Charles L., 183
W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) (stating that “[c]onsistent with our
practice in cases involving sensitive matters, we use the victim’s initials. . . . See Benjamin
R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814 n. 1 (1990) (citing In re
Jonathan P., 182 W. Va. 302, 303, 387 S.E.2d 537, 538 n. 1 (1989)); State v. Murray, 180
W. Va. 41, 44, 375 S.E.2d 405, 408 n. 1 (1988).”).
4
At the time of petitioner’s trial, the victim was ninety-seven years old and suffered
from advanced dementia. She did not testify during the trial.
5
Mrs. L’s statements, including those made to her son, the sexual assault nurse
examiner (hereinafter “SANE nurse”) and the investigating officer with the Clarksburg
Police Department, Lt. Robert Matheny, were admitted during trial. The admissibility
determination is not at issue in the instant appeal.
6
Joseph L. testified that his mother indicated to him that there was more than one
assailant; however, as discussed herein, the SANE nurse testified the victim indicated just
one assailant.
7
According to Robert Matheny, who was a lieutenant with the Clarksburg Police
(continued...)
3
Mrs. L. further told the SANE nurse that the attacker had robbed her first and then sexually
assaulted her. A sexual assault kit was utilized and swabs from the victim’s vagina were
taken for analysis, as well as the panty liner the victim had been wearing. The victim was
diagnosed with “[a]nterior fourchette reddened with second degree tear between the anus and
the vaginal opening.” Three sutures were needed to repair the second degree tear. According
to the information provided to the SANE nurse, there was only one assailant and her assailant
did not use a condom.
During the investigation of the crime, the police also collected as evidence a tissue that
the victim had used to clean herself following the attack and the bedding from the victim’s
bedroom where the sexual assault occurred. Further, the belts that bound Mrs. L. were also
collected as evidence.
Approximately ten years after the crimes were perpetrated against Mrs. L., during the
pendency of the habeas corpus proceeding involving Mr. Buffey,8 forensic testing was
performed on the victim’s bedding that had been collected as evidence at the time of the
crime, the vaginal swabs collected during the examination of the victim and the tissue
collected from the crime scene. Allen Keahl, a forensic scientist with Forensic Analytical
Sciences, testified that the presence of semen was found on both the vaginal swabs and a
cutting from the fitted sheet that was taken from Mrs. L.’s bed. Mr. Keahl stated that “the
majority9 of semen that is detected” by the data “comes back to a single male.” (Footnote
added). The DNA profile was then entered into the national Combined DNA Index System
(“CODIS”). This profile matched a convicted felon in prison in this State, who was identified
as petitioner.
Based upon the match found using CODIS, Lieutenant Jason Snider of the Clarksburg
Police Department obtained a search warrant in order to get a sample of petitioner’s DNA by
using an oral swab. At that time, petitioner was incarcerated in the Northern Regional Jail and
7
(...continued)
Department at the time of the crimes, Mrs. L. gave a description of her attacker from what
she saw of him during the crime, including what her attacker was wearing and that he kept
a bandanna over the lower part of his face. The victim also indicated that her attacker used
a knife.
8
See supra note 2.
9
Mr. Keahl testified that “there was some other evidence to a second sperm contributor
that was revealed in the Y chromosome testing but it was such a low level we weren’t sure
that it was an artifact or not.”
4
Correctional Center serving time on unrelated crimes including breaking and entering and
unlawful assault. As a result of the DNA obtained from petitioner, he was identified as the
perpetrator of the crimes against Mrs. L. According to Mr. Keahl, the genic profile, which
was developed and identified as matching petitioner’s DNA profile, was determined to occur
in approximately one out of forty billion people. Mr. Keahl further testified that in his opinion
“to a reasonable degree of scientific certainty” the DNA profile that was generated “from the
partial vaginal swabs one, two, three, and four and the fitted sheet cutting H and area A is that
of the Defendant, Mr. Bowers[.]”
Petitioner testified on his own behalf at his trial. At the time of the crime, petitioner
was sixteen years old. He stated that he knew where the victim lived as he had delivered
papers to her home, which was in his neighborhood. Petitioner, however, denied any
involvement in the crimes charged.
At the close of all the evidence, the jury convicted petitioner on the crimes charged.
First, we address petitioner’s argument that the circuit court erred in precluding him
from admitting or referencing the guilty plea entered by, particular conduct of, and court
proceedings relating to Joseph Buffey.10 As this assignment of error is based upon the
exclusion of evidence, we invoke the following standard of review: “‘Rulings on the
admissibility of evidence are largely within a trial court’s sound discretion and should not be
disturbed unless there has been an abuse of discretion.’ State v. Louk, [171] W. Va. [639,
643,] 301 S.E.2d 596, 599, (1983).” Syl. pt. 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d
574 (1983); accord State v. Guthrie, 205 W. Va. 326, 332, 518 S.E.2d 83, 89 (1999).
Prior to trial, the State filed a motion to preclude reference and admission of the Buffey
materials. Petitioner opposed the motion, arguing that
[t]here is no question that the Buffey materials provide a
direct link to the identification of Mr. Buffey as the perpetrator
in the crime committed against the victim in the matter. Along
with introduction of the fact that the investigation totally and
completely shifted from a single perpetrator theory to a multiple
perpetrator theory – even where that is inconsistent with the
evidence at hand – the Defendant should be permitted the
opportunity to offer evidence to show that another person
committed the crime for which he is now accused. In order to do
10
See supra note 2.
5
so, the Defendant must be permitted the opportunity to reference,
introduce or otherwise utilize the guilty pleas previously entered
by Joseph Buffey. . . .
The circuit court conducted a hearing on the motion on October 31, 2014. By order
entered May 5, 2015, the circuit court granted the State’s motion and prohibited petitioner
from “making any reference to, introduction or use of any admissions of Joseph A. Buffey
and/or Joseph A. Buffey’s particular conduct and court proceedings at the trial of Defendant,
Adam D. Bowers, in this particular criminal matter.” The circuit court determined that the
Buffey materials lacked “sufficient relevancy” and probative value in regards to petitioner’s
case. The circuit court was also concerned with confusion of issues and unnecessarily
misleading the jury. As the circuit court found:
Such evidence is deemed to not establish any alternative
perpetrator theory in keeping with applicable case law authority
asserted as being supportive of Mr. Bowers[’s] arguments and
position in this instant matter. It would only provide Mr. Bowers
a means for collaterally attacking the State’s initial single
perpetrator theory which became a two perpetrator theory as a
result of Mr. Buffey’s Habeas proceedings and related DNA
testing upon which a CODIS data base search was conducted that
has purportedly identified Mr. Bowers.
The circuit court further found that “[t]he ‘Buffey materials’. . . in this Court’s estimation, do
not provide a direct link to the identification of Mr. Buffey as the perpetrator (and not Mr.
Bowers) in the crime committed against the victim in this matter.” Finally, the circuit court
further determined that “Mr Buffey’s guilty pleas, admissions or particular conduct are not
deemed by this Court to be evidence which demonstrates his guilt as being inconsistent with
that of Mr. Bowers and, as such, they do not unilaterally constitute an alternative perpetrator
defense.”
6
Petitioner argues11 that in a case where the victim identified a single perpetrator and
an individual other than petitioner pleaded guilty to the crimes charged, evidence regarding
the investigation and conviction of the other individual is crucial to petitioner’s ability to
present a complete defense. Thus, petitioner argues that the Buffey materials were admissible
as they were relevant and not too prejudicial. See W. Va. R. Evid. 401, 402 and 403.
Conversely, the State argues that the DNA evidence proving petitioner’s involvement
in the crimes perpetrated in this case was “definitive and unassailable.” Thus, the State
contends that based upon the evidence at trial, “the probability that another male left this
genetic material is so incredibly infinitesimal that it is almost incalculable.” Consequently,
the State, relying upon this Court’s decision in State v. Frasher, 164 W. Va. 572, 265 S.E.2d
43 (1980), overruled on other grounds as stated in State v. Guthrie, 194 W. Va. 657, 461
S.E.2d 163 (1995), argues that the circuit court correctly precluded the admissibility of the
Buffey materials. In Frasher, the defendant was convicted of embezzlement. During his trial,
the circuit court prevented the defendant from questioning a witness for the State concerning
another employee’s involvement in other embezzlement-type actions. This Court held in
11
Petitioner also argues that admissibility of the Buffey materials is supported by the
State’s disclosure of those materials as “potentially exculpatory” material under Brady v.
Maryland, 373 U.S. 83 (1963). See Syl. Pt. 2, State v. Youngblood, 221 W. Va. 20, 650
S.E.2d 119 (2007) (“There are three components of a constitutional due process violation
under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963), and State v.
Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be
favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must
have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must
have been material, i.e., it must have prejudiced the defense at trial.”). According to
petitioner, because the State produced the materials during discovery they are necessarily
“directly relevant to the guilt of the Defendant[,]” and, consequently, the failure to admit
those materials resulted in the petitioner being denied a “‘meaningful opportunity to present
a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (determining that
exclusion of defense evidence of third-party guilt denied defendant a fair trial).
We easily dispose of this argument as petitioner ignores the principle under Brady that
“[t]he duty to disclose exculpatory evidence extends to all ‘favorable information’
irrespective of whether the evidence is admissible at trial.” State v. Robinson, 146 S.W.3d
469, 512 (Tenn. 2004) (citing Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001))(emphasis
added); accord Berry v. State, 366 S.W.3d 160, 175-76 (Tenn. Crim. Ct. App. 2011).
Consequently, simply because the information was disclosed by the State does not mean that
the information was automatically admissible at trial.
7
syllabus point five of Frasher that “[f]or evidence of the guilt of someone other than the
accused to be admissible, it must tend to demonstrate that the guilt of the other party is
inconsistent with that of the defendant.” Id. at 573, 265 S.E.2d at 45. The Court, in Frasher,
determined that the admission about the other employee was not inconsistent with the
defendant’s guilt regarding the charges against the defendant as the other employee’s guilt
concerned a different transaction than the one with which the defendant was charged. Id. at
587, 265 S.E.2d at 52. As the State posits, petitioner cannot demonstrate that Mr. Buffey’s
guilt is inconsistent with the petitioner’s guilt. See Frasher, 164 W. Va. at 573, 265 S.E.2d
at 45, Syl. Pt. 5. Rather, according to the State, all that the Buffey materials could possibly
establish is that there was complicity between petitioner and Mr. Buffey in committing the
crimes, not that Mr. Buffey was the sole perpetrator to the exclusion of petitioner. We agree
with the State’s position.
Our review of the evidence leads us to the conclusion that there is no merit to
petitioner’s argument. Petitioner’s fixation with the single perpetrator theory used in the
Buffey case and that the single perpetrator theory somehow controls the determination of
whether the Buffey materials were admissible in the instant case is legally not supportable.
The circuit court engaged in a thorough examination of the admissibility of the Buffey
materials in reaching its determination that those materials were not relevant to whether
petitioner was guilty. Further, petitioner completely ignores the DNA evidence against him,
going so far in his reply brief to argue that “[t]he forensic testing is not an issue in the instant
appeal.” Under Frasher, however, because the DNA evidence against petitioner inextricably
links him to the crimes charged, the Buffey materials are not inconsistent with petitioner’s
guilt. Consequently, the circuit court did not abuse its discretion in its determination of the
admissibility of the evidence at issue.
Petitioner next argues that the circuit court erred in denying his motion for judgment
of acquittal or, alternatively, motion for a new trial. Petitioner maintains that the State failed
to present sufficient evidence of the crimes charged. Specifically, petitioner contends the
State did not establish any link between petitioner and the weapon that the victim alleged was
used during the sexual assault and robbery sufficient to support his convictions under Counts
I, II and IV in the indictment.12 Further, petitioner contends that the State failed to introduce
12
Counts I and II pertained to sexual assault in the first degree. According to West
Virginia Code § 61-8B-3, a person is guilty of this crime when “[t]he person engages in
sexual intercourse or sexual intrusion with another person and, in so doing: . . . [e]mploys
a deadly weapon in the commission of the act . . . .” Count IV in the indictment concerns
first degree robbery and also required the use of a weapon. According to West Virginia Code
(continued...)
8
any evidence that the victim’s home was broken into and entered by anyone, which was a
necessary element for his burglary conviction.13
As this Court has previously held syllabus points one and three of Guthrie:
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such
evidence, if believed, is sufficient to convince a reasonable
person of the defendant’s guilt beyond a reasonable doubt. Thus,
the relevant inquiry is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proved
beyond a reasonable doubt.
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution and
must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence
need not be inconsistent with every conclusion save that of guilt
so long as the jury can find guilt beyond a reasonable doubt.
Credibility determinations are for a jury and not an appellate
court. Finally, a jury verdict should be set aside only when the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.
194 W Va. at 663, 461 S.E.2d at 169.
12
(...continued)
§ 61-2-12(a), “[a]ny person who commits or attempts to commit robbery by: . . . us[ing] the
threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of
robbery in the first degree . . . .”
13
This claim concerns Count III of the indictment, which is the burglary charge.
According to West Virginia Code § 61-3-11(a), a burglary is committed “[i]f any person
shall, in the nighttime, break and enter . . . the dwelling house . . . of another, with intent to
commit a crime therein . . . .”
9
Evidence presented during petitioner’s trial shows that the victim told her son and
others that a knife was used during the commission of the crimes. According to the State, the
victim described a knife being used during the perpetration of the sexual assaults and the
robbery. The State also presented DNA evidence that linked petitioner to the crimes charged,
as the DNA evidence came from vaginal swabs taken from the victim as well as bedding
removed from the victim’s bedroom where the sexual assaults occurred.
Moreover, regarding the burglary conviction, the evidence offered by the State during
trial established that while the victim was asleep her attacker or attackers broke into and
entered her home in order to commit robbery and to sexually assault her. There was no
evidence that the victim invited her attacker(s) into her home. Rather, Mrs. L. told the SANE
nurse that her attacker said he had entered her home through the side door. Finally, the
victim’s son testified that the victim’s side door to her home was ajar. Based upon all the
above, sufficient evidence was presented from which the jury could find that petitioner was
guilty of the crimes charged in the indictment beyond a reasonable doubt.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 2, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
10 | 01-03-2023 | 03-02-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288956/ | In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1155
KHALID KHOWAJA,
Plaintiff-Appellant,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00983-NJ — Nancy Joseph, Magistrate Judge.
ARGUED MAY 17, 2018 — DECIDED JUNE 27, 2018
Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
BAUER, Circuit Judge. Khalid Khowaja served as a Special
Agent (SA) in the Federal Bureau of Investigation’s Milwaukee
field office for nearly a year before his employment was
terminated. Khowaja brought this lawsuit under Title VII,
alleging that he was discriminated against and terminated
from the FBI, and that he was subject to disparate treatment,
2 No. 18-1155
because he is Muslim. The district court granted summary
judgment in favor of the Attorney General, and we affirm.
I. BACKGROUND
Prior to joining the FBI, Khowaja served as an Immigration
Enforcement Agent with the Department of Homeland
Security, Immigration and Customs Enforcement from 2008 to
2012. On February 26, 2012, he began employment with the FBI
as a SA on a two-year probationary term. He was assigned to
the Milwaukee field office and placed in the office’s Joint
Terrorism Task Force.
Probationary SAs are evaluated using the FBI’s “Suitability
Standards for Probationary Employees,” which include the
following six “dimensions:” (1) conscientiousness; (2) coopera-
tiveness; (3) emotional maturity; (4) initiative; (5) integrity and
honesty; and (6) judgment. A deficiency in any one of these
dimensions can result in a SA’s removal.
During his employment, Khowaja’s judgment, or lack
thereof, was frequently cited as an area of concern by his
immediate supervisor, Supervisory Special Agent (SSA) Mark
Green, which ultimately formed the basis for his termination.
On June 17, 2013, a recommendation for removal report was
approved by SSA Green as well as the field office’s Special
Agent in Charge (SAC), Teresa Carlson, and the Assistant
Special Agent in Charge (ASAC), G.B. Jones. The report listed
several instances where Khowaja demonstrated a lack of
suitability in the judgment dimension. Importantly, Khowaja
does not dispute that any of these instances occurred.
In October 2012, Khowaja went to a local jail to recruit an
inmate as a Confidential Human Source (CHS), but failed to
provide Miranda warnings before interviewing the inmate. SSA
No. 18-1155 3
Green counseled Khowaja about this mistake, and noted that
he should have known to administer Miranda warnings to an
individual in custody given his prior law enforcement experi-
ence. Rather than accept this counsel, Khowaja argued with
SSA Green and defended his actions.
In another instance, Khowaja was instructed, and ulti-
mately failed, to properly coordinate with local law enforce-
ment officials before taking investigative actions. In December
2012, Khowaja was working an investigation of a threatening
subject in West Bend, Wisconsin, which the local police had
been involved with from the beginning. Without coordination
from local law enforcement or approval from his supervisors,
Khowaja independently interviewed administrators at the
West Bend High School regarding the subject. The administra-
tors were alarmed at the FBI’s involvement and contacted
the local police, who in turn were angered that they had
no prior knowledge of Khowaja’s actions. Khowaja initially
defended his actions to the local police chief, but he later
admitted his mistake after being counseled by SSA Green.
The report also cited other instances where Khowaja
demonstrated a disregard for his supervisors’ authority. For
example, Khowaja needed repeated reminders from his
supervisors not to undertake interviews of certain subjects. In
addition, he disregarded an instruction to maintain a lower
profile with a CHS and avoid meeting the CHS in public.
Finally, the report cited his avoidance of senior agents in favor
of working with agents junior to him, specifically noting an
instance where Khowaja brought an untrained and unarmed
intelligence analyst into a dangerous area of Milwaukee to
contact a potential source.
4 No. 18-1155
In summary, the report found that Khowaja had demon-
strated poor judgment since his arrival at the field office, but
that his supervisors had hoped training and cultivation of
relationships with senior agents would reverse this trend.
Instead, the report concluded, Khowaja’s arrogance, his
avoidance of senior agents, and his defensiveness when
corrected about his mistakes had hindered his judgment.
Additionally, Khowaja’s performance assessments through-
out his employment repeatedly highlighted his judgment as an
area of concern. During his tenure as a SA, Khowaja’s perfor-
mance was evaluated by SSA Green and others in five “Perfor-
mance Summary Assessments” (PSA), a “Performance Ap-
praisal Report” (PAR), and in a “6 month New Agent Assess-
ment” (NAA). In his second PSA for the period of
September 14, 2012, to October 14, 2012, the assessment noted
that Khowaja should use good judgment and develop relation-
ships with senior agents. His third PSA for the period of
November 14, 2012, to January 14, 2012, stated that
“[p]rofessional judgment has been an issue … that must be
improved.” The assessment cited to another instance involving
Khowaja’s lack of coordination with local law enforcement,
and concluded that “if his current judgment cannot improve he
is unlikely to succeed in the FBI.”
Khowaja’s six-month NAA highlighted an “unacceptable”
rating in the judgment dimension. While the assessment
concluded that Khowaja was still suitable for continued
employment as a probationary SA, it included a “plan of
action” to address Khowaja’s judgment deficiency. His fifth
PSA for the period of March 14, 2013, to May 14, 2013, stated
that he had “shown deficiencies in judgment on a regular
basis,” and that “[h]is lack of judgment requires much closer
No. 18-1155 5
supervision of his work than would be expected of a special
agent.”
In late February of 2013, around the time Khowaja’s six-
month NAA was completed, Khowaja’s supervisors inquired
of the “Performance Appraisal Unit,” a section of the Human
Resources Division, about his probationary status and potential
termination. By May 3, 2013, SSA Green had provided Human
Resources with a draft recommendation for removal report,
approved by SAC Carlson and ASAC Jones. On May 16, ASAC
Jones and SSA Green met with Khowaja for his file review and
informed him that his removal was being sought. Seven days
later, Khowaja began the process of filing a formal complaint
with the Equal Employment Opportunity Commission (EEOC).
The final recommendation for removal report was approved
on June 17, 2013, and in a letter dated July 5, 2013, James
Turgal, Assistant Administrative Director of the FBI’s Human
Resources Division, removed Khowaja from his probationary
SA position based on his failure to meet all of the suitability
standards.
Khowaja’s allegations of religious discrimination focus on
SSA Green, a white Christian. According to Khowaja, SSA
Green asked Khowaja during their first meeting if he was
Muslim and questioned him about his faith. SSA Green, who
is fluent in Arabic, yelled Arabic holy phrases, such as
“Alhamdulillah!” (“praise be to God!”), throughout the office
and used such Arabic phrases in emails. Khowaja claims SSA
Green used these phrases in a derogatory manner. He also
asserts that SSA Green mocked Middle Eastern accents, called
a Muslim CHS a “tool,” and pointed out the fact that Khowaja
is Muslim during a presentation to other agents. Finally,
Khowaja also stresses a remark made by ASAC Jones in June
6 No. 18-1155
2013 to a local police chief describing Khowaja as “not our
typical agent.”
As to his disparate treatment claim, Khowaja asserts that he
was held to a different standard as his probationary SA peers,
particularly with regard to SA Adam Herndon. SA Herndon
accompanied Khowaja during the episode where Khowaja
failed to administer Miranda warnings to an inmate. However,
SA Herndon had no prior law enforcement experience and
vowed to never let it happen again instead of defending his
actions. Additionally, SA Herdon accompanied Khowaja to
West Bend High School without the coordination of local
police. Importantly, Khowaja was lead investigator on that
particular subject and he was ultimately responsible for the
lack of coordination.
After exhausting his administrative remedies with the
EEOC and the Department of Justice, Khowaja filed this two-
count lawsuit on June 8, 2016. Khowaja alleged first that he
was unlawfully discriminated against and removed from his
position because he is Muslim, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a). His claim also
contained allegations that he was subjected to a hostile work
environment, which Khowaja voluntarily dismissed with
prejudice before summary judgment, and subjected to dispa-
rate treatment. His second claim alleged that he was intention-
ally and unlawfully terminated in retaliation for beginning the
EEOC process, in violation of 42 U.S.C. § 2000e-3(a).
The district court granted summary judgment in favor of
the Attorney General with respect to both claims. On appeal,
Khowaja only challenges the court’s ruling with respect to his
first claim of religious discrimination and disparate treatment.
No. 18-1155 7
II. DISCUSSION
Summary judgment is appropriate if the moving party has
shown there is “no genuine dispute as to any material fact,”
and is entitled to summary judgment as a matter of law. Fed.
R. Civ. P. 56(a). We review a grant of summary judgment
de novo, construing all factual disputes and drawing all
reasonable inferences in favor of the non-moving party. Golla
v. Office of Chief Judge of Cook Cty., Ill., 875 F.3d 404, 407 (7th Cir.
2017).
Title VII prohibits federal employers from discriminating
against federal employees and applicants on the basis of
religion. 42 U.S.C. § 2000e-16(a). In Ortiz v. Werner Enterprises,
Inc., we held that the “direct” and “indirect” methods of proof
in employment discrimination cases must not be treated as
distinct legal standards. 834 F.3d 760, 765 (7th Cir. 2016).
Rather, all the evidence must be evaluated as a whole, and the
legal standard “is simply whether the evidence would permit
a reasonable factfinder to conclude that the plaintiff’s …
religion … caused the discharge.” Id. at 765–66. Ortiz made
clear that we were only concerned with the proposition of
sorting evidence into “direct” and “indirect” piles, and that our
holding did not alter the burden-shifting framework estab-
lished in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Id.
On appeal, Khowaja maintains that he established a prima
facie case of religious discrimination and disparate treatment
under the McDonnell Douglas framework. Both claims can be
established under the same framework, so we evaluate them
together. Thus, Khowaja carries the burden of showing that
“(1) [he] is a member of a protected class; (2) [his] job perfor-
mance met [the FBI’s] legitimate expectations; (3) [he] suffered
8 No. 18-1155
an adverse employment action; and (4) another similarly
situated individual who was not in the protected class was
treated more favorably.” McKinney v. Office of Sheriff of Whitley
Cty., 866 F.3d 803, 807 (7th Cir. 2017) (quoting Burks v. Wis.
Dep’t of Transp., 464 F.3d 744, 750–51 (7th Cir. 2006)). If
Khowaja can establish a prima facie case, the burden shifts to
the Attorney General to articulate a legitimate, non-discrimina-
tory reason for terminating his employment. Id. Then, Khowaja
must present evidence that the proffered reason is pretext. Id.
While Khowaja, as a Muslim, is a member of a protected
class, and clearly suffered an adverse employment action
through his termination, Khowaja’s prima facie case is doomed
by one major hurdle: his job performance clearly did not meet
the FBI’s legitimate expectations. Probationary SAs are
evaluated under the various suitability dimensions, and a
deficiency in any one of these can lead to termination. The
record conclusively reflects that Khowaja had ongoing
judgment-related issues throughout his employment. Khowaja
does not contest any of the instances described above and
contained in the recommendation for removal report occurred.
He admits that he conducted an un-Mirandized interview with
an inmate in custody, and that he was defensive when coun-
seled by SSA Green. He also admits that he violated protocol
when he conducted an interview at the West Bend High School
without coordinating with the local police or his supervisor.
Additionally, Khowaja does not dispute that his judgment
was repeatedly cited as an issue in his performance assess-
ments. Numerous PSAs noted Khowaja’s judgment deficiency,
including one from November 2012 to January 2013, which
concluded that “if his current judgment cannot improve he is
unlikely to succeed in the FBI.” Moreover, Khowaja’s six-
No. 18-1155 9
month NAA rated his judgment as unacceptable, and provided
a “plan of action” to address this deficiency. The recommenda-
tion for removal report cited Khowaja’s lack of suitability in
the judgment dimension, and his July 5, 2013, termination
letter stated that his employment was terminated for failure to
meet the suitability standards. The undisputed facts show that
Khowaja was not meeting the FBI’s legitimate expectations,
and consequently, he cannot establish a prima facie case of
intentional discrimination or disparate treatment under the
McDonnell Douglas framework.
Although Khowaja’s prima facie case fails at the onset, he
points us to the fact that SA Herndon was not terminated, even
though he was involved in some of the same lapse-of-judgment
episodes. Khowaja asserts that SA Herndon serves as a
similarly situated co-worker, and that SA Herndon’s preferen-
tial treatment means the FBI’s basis for terminating him is
pretext for religious discrimination. The similarly situated and
pretext analysis often overlap, as comparator evidence and
selective enforcement of an employer’s rules are relevant to
both inquiries. See Coleman v. Donahoe, 667 F.3d 835, 857–59 (7th
Cir. 2012).
“Similarly situated employees must be directly comparable
to the plaintiff in all material respects,” yet this is a flexible
inquiry with no magic formula. Id. at 846–47 (internal quota-
tion marks and citation omitted). Both Khowaja and SA
Herndon were probationary SAs who began their employment
in close proximity; SSA Green served as their immediate
supervisor; and SA Herndon was involved in both the failure
to Mirandize episode and the West Bend High School episode.
Despite these similarities on the surface, there are signifi-
cant distinctions in their treatment that undermine any
10 No. 18-1155
comparison. See id. at 847 (“In the usual case, a plaintiff must
at least show that the comparators … engaged in similar
conduct without such differentiating or mitigating circum-
stances as would distinguish their conduct or the employer's
treatment of them.”) (internal quotation marks and citation
omitted). First, SA Herndon, like Khowaja, was also counseled
by SSA Green for his mistakes after both episodes; he did not
escape discipline. Significantly, SA Herndon did not defend his
mistakes in either episode, unlike Khowaja. Second, as it relates
to the West Bend High School episode, Khowaja was the lead
investigator and accordingly, the responsibility fell on him for
that mistake. Most importantly, Khowaja’s termination and his
failure to meet the judgment dimension of the suitability
standards was based on numerous other instances lacking SA
Herndon’s involvement. Khowaja’s recommendation for
removal report cited judgment-related instances where he
disregarded his supervisors’ authority to proceed with certain
interviews, met with a CHS in public despite being instructed
to maintain a lower profile, and failed again to properly
coordinate with local law enforcement. Simply put, Khowaja
and SA Herndon are not similarly situated, and their compari-
sons do not demonstrate disparate treatment or pretext.
Setting aside the McDonnell Douglas framework and
examining the evidence as a whole, Khowaja presents no
evidence that would lead a reasonable factfinder to conclude
that he was terminated, or subjected to disparate treatment,
because he is Muslim. Khowaja offers no evidence of religious
discrimination or animus by SSA Green or any other supervi-
sor. True, SSA Green admitted that he inquired about
Khowaja’s religion during their first meeting, and that he did
use Arabic phrases throughout the office given his fluency in
the language. However, nothing in the record supports
No. 18-1155 11
Khowaja’s contention that SSA Green’s inquiry into Khowaja’s
religion was demeaning, or that his use of Arabic phrases or
accents was done in a derogatory manner. More importantly,
Khowaja fails to demonstrate how any of SSA Green’s actions
constitute religious discrimination against him, or how these
actions are related to his termination. Finally, while ASAC
Jones did remark that Khowaja is “not our typical agent,” he
did so while apologizing to local police about Khowaja’s
failure to properly coordinate with them. Khowaja offers no
evidence that this remark evinces religious animus or was in
any way related to the fact that he is Muslim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the Attorney General.
12 No. 18-1155
MANION, Circuit Judge, concurring in part and concurring
ȱȱǯȱȱȱ ȱȱȱȱȱĴ¢ȱ Ȭ
ȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ǯȱ ȱ ȱ
¢ȱȱȱȱȱȱȱȱȱ¢Ȭ
ing the burden-ȱ ȱ ȱ McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
The magistrate judge in this case held that Khowaja’s
ȱȱ¢ȱȱȱȱȱ ȱȱȱ ȱ
ȱȱȱȱ’s legitimate expectations. The judge
cited our decision in BrumĴȱǯȱȱǰȱǯǰȱŘŞŚȱǯřȱ
742, 744–45 (7th Cir. 2002)ǰȱ ȱ ȱ ȱ ȱ ȱ Ȭ
¢ȱ ȱ ȱ ȱ ȱ his ¢’s legitimate expecta-
tions cannot establish a prima facie case under McDonnell
Douglas unless he can prove that the expectations themselves
ȱȱȱȱǯȱȱȱ’s ex-
pectations Ĵ¢ȱ ȱ¡ȱȱǰȱȱ
ȱ ȱ ¢ȱ ȱ ȱ ȱĴ¢ȱ ǯȱ
As a result, she did not consider whether Khowaja’s col-
league, Special Agent Adam Herndon, ȱ ȱ ¢ȱ Ȭ
ȱ¢ȱ ȱ ȱȱȱȱȱȬ
duct.
ǰȱȱȱȱȱȱȱȱěȱȱȬ
tablish a prima facie ȱ¢ȱ ȱȱȱ¢’s legit-
imate expectations weȱ¢ȱȱȱȱǯȱȱ ȱ
explained, “[ ǾȱȱěȱȱȱĜȱȱ
ȱȱȱȱȱ¢ȱȱȱȱ¡Ȭ
ȱ ȱ ȱ ȱ ȱ ǯǯǯȱ ȱ ȱ ȱ ȱ
prongs merge— ȱěȱȱȱěȱ¢ȱȬ
ȱȱȱȱǰȱȱȱȱȱ¡ȱ¢ǯ”
ȱǯȱȱǰȱǯǰȱŚşřȱǯřȱŞŘŝǰȱŞřŗȱǻŝȱǯȱŘŖŖŝǼȱ
ǻȱȱǯȱ¢ȱǯȱǯȱǯǰȱŘŞŞȱǯřȱřŗşǰȱřŘşȱǻŝȱ
No. 18-1155 13
ǯȱ ŘŖŖŘǼȱ ǻȱ ȱ ȱ ȱ ĴǼǼǯ Thus,
Khowaja could have cleared the prima facie hurdle even
ȱȱ ȱȱȱȱȱȱ’s expectations.
ȱȱȱȱ ȱȱ
ȱ ȱȱĜȱȱ
and was not terminated.
ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ
Khowaja cannot establish his McDonnell Douglas prima facie
ȱȱȱȱȱȱȱ’s expectations. Maj. Op.
at 9. Nevertheless, tȱȱ¢ȱȱ Khowaja
ȱ
ȱ ȱȱ¢ȱ. It is this, not Khow-
aja’s ȱȱǰȱȱ¢ȱȱȱǯȱ
ȱ¢ȱǯ | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289028/ | J-A07023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
B.N. : No. 1728 MDA 2017
Appeal from the Order Entered October 31, 2017
in the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): 2015-FC-41365
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2018
M.G. (“Father”) appeals from the October 31, 2017 order granting B.N.’s
(“Mother’s”) petition to modify the parties’ child custody arrangement and
permitting Mother to relocate with E.M.G. (“Child”), the parties’ three-year-
old son. We affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
On October 22, 2015, Father filed a complaint in custody seeking
primary physical custody and legal custody of Child. A conciliation
conference was scheduled for December 1, 2015. Prior to the
conciliation conference, Father and Mother entered into a
stipulated interim order dated November 12, 2015 where the
parties agreed to have shared legal and physical custody of Child.
The parties appeared on December 1, 2015 for the conciliation
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07023-18
conference. At that time, the parties entered into a stipulation,
which was made an order of court dated December 9, 2015.[1]
On March 31, 2016, Mother filed a petition for modification of
custody averring that the current custody schedule was no longer
in the best interest of Child as a result of too many custody
exchanges between the parties that have a high level conflict of
with each other, among other things. The parties agreed to co-
parenting classes and to have the prior order remain in effect with
a review before the trial court within 60 days.
***
On February 2, 2017, Mother filed a petition for modification of
custody. Then, on March 23, 2017, Mother filed a petition for
relocation.
Trial Court Opinion, 11/29/17, at 1-4 (cleaned up).
On October 31, 2017, the trial court granted Mother’s petition for
relocation permitting her to move from Lackawanna County, Pennsylvania to
Philipsburg, New Jersey. The trial court also modified the parties’ custody
arrangement by granting (1) Mother physical custody from 4:00 p.m. Sunday
to 4:00 p.m. Wednesday; Father physical custody from 4:00 p.m. Wednesday
to 9:00 a.m. Saturday; and (3) each party, on alternating weeks, physical
custody from 9:00 a.m. Saturday to 4:00 p.m. Sunday. This timely appeal
followed.2
Father presents three issues for our review:
____________________________________________
1Such stipulation provided for multiple exchanges each day in order to
maximize Father’s time with Child when Mother was working and vice versa.
2Father included all issues raised on appeal in his concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
-2-
J-A07023-18
1. Whether the trial court abused its discretion and erred as a
matter of law in denying Father’s [request for primary physical
custody]?
2. Whether the trial court abused its discretion and erred as a
matter of law in finding that Mother’s proposed relocation is in
[Child’s] best interests pursuant to the relocation factors at 23
Pa.C.S.[A.] §5337(h)?
3. Whether the trial court abused its discretion and erred as a
matter of law in adopting Mother’s proposed custody schedule
before the completion of the hearing regarding Mother’s
proposed relocation, contrary to 23 Pa.C.S.[A.] §5337(f)?
Father’s Brief at 10.3
In his first issue, Father argues the trial court erred in modifying the
parties’ custody schedule and not granting him primary physical custody of
Child. This argument is waived. Father does not set forth any argument in
his brief as to how the trial court erred in this respect. Instead, he
incorporates by reference the analysis of the factors listed in 23 Pa.C.S.A. §
5328 regarding the modification of custody orders contained in a pleading he
filed before the trial court. See Father’s Brief at 26. As our Supreme Court
has explained, “our appellate rules do not allow incorporation by reference of
arguments contained in briefs filed with other tribunals, or briefs attached as
appendices, as a substitute for the proper presentation of arguments in the
body of the appellate brief.” Commonwealth v. Briggs, 12 A.3d 291, 343
____________________________________________
3 We have renumbered the issues for ease of disposition.
-3-
J-A07023-18
(Pa. 2011) (citation omitted); see Pa.R.A.P. 2119(a). Accordingly, Father’s
first issue is waived. See Pa.R.A.P. 2101, 2119(a).
In his second issue, Father challenges the trial court’s order permitting
Mother’s relocation. He argues that the trial court’s order deprives Child of
the frequency and continuity of daily contact with Father and his extended
family in Lackawanna County. Father asserts that Mother’s sole reason for
relocation is her own desire to move out of her parents’ home in Lackawanna
County and into the residence of her fiancé, E.J. (“Fiancé”). Father contends
that Mother’s relocation is not motivated by a new employment opportunity.
Instead, he believes Mother will financially depend on Fiancé if she moves to
New Jersey. Father asserts that there is no evidence in the record to show
that Child was ever harmed by the daily contact with both parties and
numerous extended family members in Lackawanna County, and that neither
obtaining additional exclusive space nor reducing the number of custody
exchanges supports a relocation to New Jersey.
We review a trial court’s relocation order for an abuse of discretion and
our scope of review is plenary. S.J.S. v. M.J.S., 76 A.3d 541, 547 (Pa. Super.
2013) (citation omitted). A trial court must consider the following factors
when considering a custodial parent’s request to relocate:
(1) The nature, quality, extent of involvement and duration of the
child’s relationship with the party proposing to relocate and with
the nonrelocating party, siblings and other significant persons in
the child’s life.
-4-
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(2) The age, developmental stage, needs of the child and the likely
impact the relocation will have on the child’s physical, educational
and emotional development, taking into consideration any special
needs of the child.
(3) The feasibility of preserving the relationship between the
nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial
circumstances of the parties.
(4) The child’s preference, taking into consideration the age and
maturity of the child.
(5) Whether there is an established pattern of conduct of either
party to promote or thwart the relationship of the child and the
other party.
(6) Whether the relocation will enhance the general quality of life
for the party seeking the relocation, including, but not limited to,
financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life
for the child, including, but not limited to, financial or emotional
benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or
opposing the relocation.
(9) The present and past abuse committed by a party or member
of the party’s household and whether there is a continued risk of
harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
23 Pa.C.S.A. § 5337(h).
The sole issue Father preserved related to these factors is whether the
trial court’s factual findings with respect to the first, second, sixth and seventh
relocation factors are supported by the record. Father does not set forth
argument in his brief with respect to the other six factors. Hence, any
-5-
J-A07023-18
argument related to those factors is waived. See Pa.R.A.P. 2119(a). We
conclude that the trial court’s factual findings with respect to the first, second,
sixth and seventh relocation factors are supported by the record.
With respect to the first factor, the trial court recognized the bonds Child
has with both parties and their extended families in Lackawanna County.
Nonetheless, it found the first factor weighed in favor of permitting Mother’s
relocation because the relocation would not interfere with Child’s relationships
with Father or the parties’ extended families. Specifically, the trial court noted
that the parties’ revised custody arrangement ensures that Child is present
during Thursday dinners Father has with his extended family and permits Child
to be present for one-half of the Sunday dinners Father has with his immediate
family. See N.T., 7/14/17, at 138, 211-212. Moreover, the trial court found
that Maternal Grandmother travels to New Jersey between two and four times
per month and would be available to assist Mother in caring for Child in New
Jersey. N.T., 6/7/17, at 66. These factual determinations were reasonable in
light of the evidence presented at the custody trial. Hence, we will not disturb
the trial court’s factual findings with respect to section 5337(h)(1).
The trial court found the second relocation factor neutral. It concluded
that, because Child was not attending school nor did he have any meaningful
friendships, moving to New Jersey would not affect his physical, educational,
or emotional development. Moreover, the trial court noted that Child could
still attend the daycare Father preferred on those days Father has custody of
-6-
J-A07023-18
Child. These factual findings are reasonable in light of the evidence presented
at the custody trial. Therefore, we will not disturb the trial court’s factual
findings as to section 5337(h)(2).
Father focuses on the economic effect of the relocation on Mother when
discussing the sixth relocation factor. Father ignores the plain language of
section 5337(h)(6), which requires trial courts to consider the emotional effect
a potential relocation will have on the relocating parent. Father concedes in
his brief that the relocation will benefit Mother emotionally. See Father’s Brief
at 18-19. With respect to the economic portion of section 5337(h)(6), the
trial court credited Mother’s testimony that the new employment opportunity
was beneficial in the long run. The trial court reasoned that the ability to
expand a dance program year-round outweighed working more hours nine
months per year. This was a reasonable factual determination supported by
Mother’s former guardian’s testimony along with her current employer’s
testimony. See N.T, 6/7/17, at 35 and 152. Father’s arguments as to why
the move will not benefit Mother go to the weight of the evidence. As an
appellate court, we may not reweigh the evidence where, as here, the trial
court’s factual findings are supported by the record and the weighing of the
evidence is neither arbitrary nor capricious. Hence, we will not disturb the
trial court’s factual findings or weighing of the evidence related to section
5337(h)(6).
-7-
J-A07023-18
The trial court’s factual findings with respect to the seventh relocation
factor are also supported by the record. The trial court credited Mother’s
testimony that relocating would help facilitate a shared custody schedule with
Father. Moreover, Child will have his own bedroom and a shared playroom in
the New Jersey residence. Id. at 178. As Child is not attending school, the
trial court reasonably determined that it would enhance his quality of life to
have smoother custody exchanges, his own bedroom, and his own playroom.
Father’s arguments as to why the move will not benefit Child go to the weight
of the evidence. As an appellate court, we may not reweigh the evidence
where, as here, the trial court’s factual findings are supported by the record
and the weighing of the evidence is neither arbitrary nor capricious. Hence,
we will not disturb the trial court’s factual findings as to the seventh relocation
factor.
Father also argues that the trial court’s relocation decision evidenced
bias. To the extent Father argues that the trial court should have recused
itself, this argument is waived. See League of Women Voters of
Pennsylvania v. Commonwealth, 179 A.3d 1080, 1086 (Pa. 2018) (citation
omitted) (party must seek recusal at the earliest opportunity possible). To
the extent that Father argues that the trial court abused its discretion by
granting Mother’s relocation request as a result of bias, this argument is
without merit. The trial court carefully considered the testimony given at the
entire custody trial and issued detailed factual findings and conclusions of law.
-8-
J-A07023-18
There is no evidence that the trial court was biased against Father. Hence,
Father is not entitled to relief on his second claim of error.
In his final issue, Father argues that the trial court improperly granted
Mother’s request to modify the parties’ custody arrangement at the conclusion
of the first day of the custody trial. To the extent Father challenges that
interim order, this issue is moot. “If events occur to eliminate the claim or
controversy at any stage in the process, the [issue] becomes moot.” In re
S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation omitted). This Court has
held that a challenge to an interim custody order becomes moot when a final
custody order is entered. K.W. v. S.L., 157 A.3d 498, 499 n.1 (Pa. Super.
2017). To the extent that Father argues that this interim order evidences the
trial court’s bias, we reject that argument for the reasons set forth above.
Therefore, Father is not entitled to relief on his third claim of error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
-9- | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4126148/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 IN THE MATTER OF THE ESTATE OF
3 ROBERT JOHANN ULLRICH AND
4 EVELYN ULLRICH, Deceased.
5 STEPHEN FLOYD ULLRICH,
6 Petitioner-Appellant,
7 v. NO. 35,108
8 ADDA MOLDT, TRUSTEE,
9 Respondent-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
11 Sarah M. Singleton, District Judge
12 Stephen Floyd Ullrich
13 Boise, ID
14 Pro Se Appellant
15 Lynn M. Finnegan
16 Los Alamos, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 {1} Petitioner appeals from the district court’s dismissal of his petition concerning
2 his parents’ estates. We issued a notice of proposed disposition proposing to affirm,
3 and Petitioner has responded with a memorandum in opposition. We have carefully
4 considered the arguments raised in that memorandum, but continue to believe that
5 affirmance is warranted in this case. Therefore, for the reasons set out below and in
6 our notice of proposed summary disposition, we affirm.
7 {2} In our notice we pointed out that evidence was presented to the district court
8 indicating that the estates of Petitioner’s parents had no assets to distribute, and that
9 even if they did, Petitioner was not entitled to any assets as he had been disinherited
10 in the parents’ wills. We also pointed to evidence presented by Respondent, the trustee
11 for parents’ trusts, showing that Respondent had no knowledge of any property
12 belonging to Petitioner that was being held by the parents on behalf of Petitioner. In
13 response, Petitioner makes several arguments, none of which is supported by legal
14 authority. For that reason alone, we would be entitled to refuse to consider those
15 arguments. ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶
16 10, 125 N.M. 244, 959 P.2d 969 (holding that this court does not consider arguments
17 not supported by citation to authority). In addition, the arguments lack merit, as we
18 briefly discuss below.
19 {3} Petitioner contends that Respondent disposed of personal property belonging
20 to his parents’ estates and that her statement that she did not know of any property
2
1 being held for Petitioner is a “mere assertion.” [MIO 2] As to the first contention,
2 Petitioner submitted no evidence supporting his claim, and without such evidence we
3 cannot credit the claim on appeal. See, e.g., State v. Pacheco, 2007-NMSC-009, ¶ 27,
4 141 N.M. 340, 155 P.3d 745 (declining to order a new trial on the basis of the
5 defendant’s mere assertion, without supporting evidence, that the interpreter acted
6 improperly). As to the second, Respondent’s statement about Petitioner’s property was
7 not a “mere assertion”—as we discussed in our notice, the statement was made in a
8 verified (meaning sworn) response filed by Respondent, and is therefore the
9 equivalent of a sworn affidavit. See Rekart v. Safeway Stores, Inc., 1970-NMCA-020,
10 ¶ 18, 81 N.M. 491, 468 P.2d 892 (stating that a verified complaint is in effect an
11 affidavit). In turn, an affidavit may properly be the basis for a grant of summary
12 judgment. Rule 1-056(C) NMRA. We therefore reject Petitioner’s contentions.
13 {4} Petitioner next raises certain questions, without providing any answers or even
14 discussion. For example, he asks whether an executor should have been appointed for
15 his parents’ estates and whether there is a statute that allows him to be disinherited
16 even though he was adopted. [MIO 3] It is not this Court’s duty to search for authority
17 to answer Petitioner’s questions, and we decline to do so. See Elane Photography,
18 LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (pointing out that the appellate
19 courts will not perform parties’ work for them by addressing unclear arguments or
20 arguments that are not supported by cited authority).
3
1 {5} Finally, Petitioner complains that the district court, and now this Court, have
2 accepted Respondent’s assertions as fact while rejecting his assertions. He adds that
3 he believes it is extremely unlikely that his parents did not retain some items of
4 property, such as heirlooms. The reason Petitioner’s assertions have been rejected,
5 while Respondent’s have not, is simple—Petitioner’s assertions are unsworn
6 statements made in pleadings, while Respondent’s were made in a submission that,
7 as we discussed above, is equivalent to an affidavit. Unsworn statements and
8 assertions made in a brief or other pleading are not sufficient to create an issue of fact
9 requiring further proceedings. V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 2,
10 115 N.M. 471, 853 P.2d 722; Martin v. Bd. of Educ., 1968-NMSC-178, ¶ 8, 79 N.M.
11 636, 447 P.2d 516. On the other hand, as we discussed above, factual assertions made
12 in an affidavit or in the equivalent of an affidavit are properly considered by the
13 district court. For this reason, the district court did not err in finding against Petitioner
14 and dismissing his petition.
15 {6} Based on the foregoing, we affirm the district court’s decision.
16 {7} IT IS SO ORDERED.
17 __________________________________
18 LINDA M. VANZI, Judge
19 WE CONCUR:
4
1 _________________________________
2 TIMOTHY L. GARCIA, Judge
3 _________________________________
4 M. MONICA ZAMORA, Judge
5 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126156/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lutheran Senior Services :
Management Company, :
Petitioner :
: No. 1074 C.D. 2016
v. :
: Submitted: November 4, 2016
Workers’ Compensation Appeal :
Board (Miller), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: February 15, 2017
Lutheran Senior Services Management Company (Employer) petitions
for review of the June 8, 2016, order of the Workers’ Compensation Appeal Board
(Board) affirming the decision of the Workers’ Compensation Judge (WCJ) granting
the claim petition of Jerry Miller (Claimant).
Facts and Procedural History
Claimant filed a claim petition on April 22, 2014, alleging ongoing
disability from a “broken eye socket, broken pelvis, ruptured bladder, [and] multiple
scars and disfigurements” arising out of a “work-related motor vehicle accident” on
March 13, 2014. (Reproduced Record, (R.R.) at 3.) Employer filed a timely answer
on May 6, 2014, denying all material allegations and demanding strict proof of those
allegations. (R.R. at 7-9.) At the first hearing before the WCJ on May 19, 2014,
Employer orally amended its defenses to include the defense that Claimant was not in
the course of his employment when he was injured. (R.R. at 13-14.)
Claimant testified before the WCJ that he had worked for Employer for
twelve years as Director of Maintenance, overseeing three other employees. He
stated that he was a salaried employee exempt from the overtime requirements of the
Fair Labor Standards Act,1 whose regular work hours were Monday through Friday,
starting at 7:00 a.m. and ending at 3:30 p.m. (R.R. at 20-22, 47.)
According to both Claimant and Diana Seip (Employer’s Executive
Director), Employer maintained a four-building campus over eighteen acres as a
facility for senior citizens. (R.R. at 20-21 and 79-81.) According to Ms. Seip, as part
of the protection for its residents, Employer had a system of security cameras spread
out over the campus. Proper functioning and accuracy of these security cameras was
an important priority for Employer. (R.R. at 93-94.)
At the July 14, 2014, hearing, Claimant testified that as Director of
Maintenance, “It means I oversee the maintenance staff, help implement all the
building’s systems, repair the building’s systems, [and] respond to after-hours
emergencies.” (R.R. at 20.) He testified that he was called in to work while off-site
two to three times monthly. (R.R. at 22-23.) Whenever he was called in to work
while off-site, Claimant testified that in lieu of additional pay, he received “comp
time,” which accumulated from the time he picked up the phone until when he
arrived back home. This “comp time” was to be taken as soon as possible after being
1
29 U.S.C. §213(a)(1).
2
called in, and for the same time as the non-exempt, wage employees he supervised,
that is, door to door, from home to work and back. (R.R. at 23-27.)
Claimant testified about Employer’s “on call” policy and admitted into
evidence Employer’s written “on call” policy. That policy stated in pertinent part:
Employees on-call for after hours maintenance problems
are not compensated for carrying the pager since these
employees are able to pursue personal activities and
interests while carrying the pager. However, once a call is
received and a determination is made that it is necessary to
go to Luther House [the four-building site], this time will be
considered work time from the point that the employee
begins responding to the call until the work is done and the
employee arrives home or at whatever activity or location
where the pager call was received. All of this time should
be recorded on the timesheet for that workweek.
(R.R. at 68.) The written policy also permitted the employee to record a minimum of
three work hours if the employee must return to Luther House to respond to an
emergency maintenance call, and receive mileage reimbursement. (R.R. at 69.)
Claimant stated that he awoke the morning of March 13, 2004, “feeling
very poor, very weak,” from being up all night due to a reaction to a prescription
medication. (R.R. at 30.) He stayed home past his usual 7:00 a.m. start time and
called his ex-wife, Jacqueline Miller, about his physical symptoms inasmuch as she
was a trained EMT. (R.R. at 30-32.) While on his cell phone with Ms. Miller,
Claimant testified that Ms. Seip “beeped in,” and he accepted the call. According to
Claimant, she asked him if he was available to handle the security cameras being
down, and he said he told Ms. Seip he was home and not available because he was
sick, and for such emergencies, “the other guys were supposed to respond if they can
handle it.” (R.R. at 32, 48.)
3
Claimant characterized the camera malfunction as “an emergency, but
not life or death,” and when he told Ms. Seip he intended to take a sick day, she
advised him that the others had already called off. Claimant noted that he was not
infectious, and felt obligated “ to go in and fix these cameras.” “I didn’t want to
make her [Ms. Seip] mad.” (R.R. at 32-33, 48, 53-54.)
Claimant denied that he told Ms. Seip that he had planned on coming in
to work; rather, he insisted that he told her he intended to take a sick day.
Additionally, when he agreed to come in, he said he told her he was not staying the
whole shift, and she was fine with that. (R.R. at 53-55, 127-28.)
Claimant also adduced the testimony of Ms. Miller, taken by deposition
on November 4, 2014. She confirmed that they had been married for twenty years
and were divorced in September of 2013. (R.R. at 141.) A licensed EMT, she
testified that her ex-husband called her on the morning of March 13, 2014, telling her
“he wasn’t feeling well from a new medicine he started.” (R.R. at 141.) She
continued, “He said he was nauseous, he was dizzy…and tired.” (R.R. at 141, 143.)
Then, she testified, Claimant told her he was calling off sick that day, but “Diane”
(Ms. Seip) had beeped in, so that he told Ms. Miller that he was going in to fix the
cameras and then come home, intending to take the rest of the day off to be with their
baby grandson Liam. (R.R. at 141-42.)
Claimant testified that, after speaking with Ms. Seip he showered and
began driving to work. He testified that he began feeling nauseous en route from
home to work, which caused him to veer off the road and hit a telephone pole. (R.R.
at 35.) He testified that he remains under the care of doctors and physical therapists
and has not been able to return to work since the accident. (R.R. at 41.)
4
Claimant also presented the deposition testimony of his treating
physician, William C. Murphy, D.O. A board-certified physiatrist, Dr. Murphy has
treated Claimant since the accident and continues to treat him. He testified that “as of
the date of the accident, he [Claimant] would have been disabled based on the extent
of his severe injuries.” In fact, Dr. Murphy testified that Claimant “is totally disabled
from all employment.” (R.R. at 145, 146, 150.)
The Employer’s Executive Director, Ms. Seip, confirmed Claimant’s
testimony about his schedule and job duties. (R.R. at 88.) She described Employer’s
“on call “ system as “if there was something that happened after hours that was
necessary to be fixed before the next day, then the on-call system would kick into
place and the maintenance men would come in and take care of it.” (R.R. at 87-88.)
She testified that the written policy applied only to non-exempt, wage employees (not
Claimant), but she never addressed the specific “on call” procedure for Claimant and
never rebutted Claimant’s assessment and summary of that policy as it applied to
him. She also described Employer’s sick leave policy, which she said was fairly
simple: just call or send her an e-mail before the shift starts. (R.R. at 88, 91, 100-
01.)
On the morning of March 13, 2014, Ms. Seip testified that the security
cameras were down, and she called Claimant on his cell phone, assuming he was
already at work. She testified that she got through to Claimant, who informed her he
was getting dressed and coming in to work. She testified that Claimant never
mentioned anything about taking a sick day, and that because Claimant was one of
only two employees who understood the camera system (and the other had already
called off sick), she told Claimant, “You need to…get this camera working…” (R.R.
at 92-95, 99, 108-10, 118-19.)
5
Employer also offered the deposition testimony of Menachem Meller,
M.D., who is board-certified in orthopedic surgery. Dr. Meller examined Claimant
once, at the request of the Employer, on November 17, 2014. (R.R. at 163.) Dr.
Meller related all of Claimant’s symptoms and restrictions to pre-existing,
degenerative, non-work-related conditions. (R.R. at 168.) He concluded that
Claimant “does require treatment, but not due to the car accident.” (R.R. at 170.)
The WCJ described the “threshold issue” before him as whether
Claimant was in the course and scope of his employment at the time of the accident.
(WCJ’s Finding of Fact No. 1.) After assessing the testimony of Claimant, Ms. Seip,
and Claimant’s ex-wife (a trained EMT with whom Claimant has been talking on his
cell phone about his physical condition on the morning of March 13, 2014), Dr.
Murphy, (Claimant’s treating physician), and Dr. Meller (Employer’s examining
physician), the WCJ found: “While Claimant has a fixed place of employment, and
his commute to work would ordinarily not be deemed in the course of his
employment, special circumstances were present on the day of injury, March 13,
2014, so as to earmark Claimant’s commute to work that day as being on a ‘special
mission’ for Employer.” (WCJ’s Finding of Fact No. 6.) Put another way, the WCJ
found that “Claimant was sick on March 13, 2014, and except for the special need of
the Employer to assure [that the] surveillance cameras became operative . . . Claimant
would not have gone to work.” Id.
Having determined that the claim petition was not excluded by the
“coming and going rule,” the WCJ resolved the medical issues in favor of Claimant,
finding Dr. Murphy more credible than Dr. Meller, so that he found Claimant to have
been totally disabled from the date of injury continuing up through the present.
(WCJ’s Findings of Fact Nos. 4, 8-11.)
6
Employer filed an appeal to the Board, arguing that compensation was
precluded by the “coming and going rule.” In an opinion and order dated June 8,
2016, the Board rejected Employer’s appeal but held that Claimant was not so much
on a “special mission” for Employer as he was in “special circumstances” in his
employment. The Board reasoned that where Claimant was intending to take March
13, 2014, as a sick day, Employer’s “on call” policy came into play, and “the fact that
the ‘on call’ policy provides that an ‘on call’ employee is ‘on the clock from the time
he leaves home, [this] is a special circumstance which causes Claimant’s motor
vehicle accident to be in the course and scope of his employment.” (Board op. at 11.)
Employer now appeals to this Court.2 Employer contends that Claimant
failed to present “competent evidence sufficient to sustain his burden of proving that
he was injured in the course and scope of his employment.” (Petition for Review,
¶9.) Specifically, Employer argues that for an injury occurring while the employee
was off Employer’s premises and traveling to work, Claimant failed to demonstrate
that his injury fell into one of the four exceptions to the “coming and going rule,”
that is, the rule of law generally barring workers’ compensation benefits to an
employee injured while traveling to or from work. (Petition for Review, ¶10.)
Discussion
Section 301(c) of the Workers’ Compensation Act (Act)3 provides in
pertinent part,
2
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
3
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §411.
7
The terms ‘injury’ and ‘personal injury’ shall be construed
to mean an injury to an employe…arising in the course of
his employment and related thereto…The term ‘injury
arising in the course of employment,’ as used in this
article…shall include all…injuries sustained while the
employe is actually engaged in the furtherance of the
business or affairs of the employer, whether upon the
employer’s premises or elsewhere. . . .
77 P.S. §411.
Whether an employee is acting within the course of his employment at
the time of the injury is a question of law, determined on the basis of the WCJ’s
factual findings, and subject to this Court’s plenary review. Williams v. Workers’
Compensation Appeal Board (Matco Electric Co., Inc.), 721 A.2d 1140, 1142 (Pa.
Cmwlth. 1998), appeal denied, 739 A.2d 547 (Pa. 1999).
Generally, for an injury sustained in a commute to or from work,
disability is not compensable, with four recognized exceptions: (1) the employment
contract includes transportation to and/or from work; (2) the claimant has no fixed
place of work; (3) the claimant is on a special assignment or mission for the
employer; or, (4) special circumstances are such that the claimant was furthering the
business of the employer. Id. at 1143.
We focus on the fourth exception, as that is the exception relied upon by
the Board. “Special circumstances” have rendered compensable an injury sustained
during a commute where: (1) the employee is requested by the employer to come in;
(2) the request is for the convenience of the employer or in furtherance of its
business; and (3) the trip is not simply for the convenience of the employee. LoPresti
v. Workers’ Compensation Appeal Board (Gulf Construction Co.), 384 A.2d 1017,
1019 (Pa. Cmwlth. 1978). Further, the request by the employer can be direct or
express, on the one hand, or implied, on the other, to qualify as a special request by
8
the employer. City of Philadelphia v. Workers’ Compensation Appeal Board
(Stewart), 728 A.2d 431, 433 (Pa. Cmwlth. 1999) (employer’s supervisory person
made no direct request but did ask whether his suggestions for improving a problem
had worked, which claimant took as an implicit request to come from home to the
plant; benefits were awarded).
Employer relies upon the reasoning in Simko v. Workers’ Compensation
Appeal Board (United States Steel Corp.), 101 A.3d 1239 (Pa. Cmwlth. 2014), appeal
denied, 113 A.3d 282 (Pa. 2015). However, Simko is distinguishable from this case.
In Simko, this Court affirmed the Board’s reversal of a WCJ’s award of benefits to an
employee who was injured in an automobile accident on his way to a monthly safety
meeting at the employer’s workplace. The claimant there had asserted “special
circumstances” in that he had to come in prior to the start of his shift but this Court
held, “[c]laimant did not dispute that monthly safety meetings are treated as part of an
employee’s shift, that employees are paid their hourly wage during the meetings, or
that employees must arrive early to attend the meetings. Although attendance at the
meetings furthers [e]mployer’s safety goal, it is still part of [c]laimant’s regular work
duties. Therefore, the special circumstances exception does not apply.” 101 A.3d at
1242-1243. The focus of a WCJ under the Simko analysis is how the employer styles
or categorizes the event to which the employee is coming or going, during what
would otherwise be considered his or her daily commute. Unlike the case at bar, the
Court in Simko was faced with regular, scheduled safety meetings and not
emergencies that occur with neither regularity nor predictability.
Here, the WCJ specifically credited Claimant’s testimony that he was
feeling ill and intended to take a sick day on March 13, 2014. The WCJ also credited
Claimant’s testimony that whenever he was called in to work while off site, he
9
received “comp time,” to be taken as soon as possible after being called in, and for
the same time as the non-exempt, wage employees he supervised, that is, door to
door, from home to work and back. In other words, unlike the claimant in Simko,
when Claimant here was on call, Employer did not treat it as part of Claimant’s shift
or some extension of his regular shift; rather, Claimant received “comp time.” The
WCJ found that, but for the emergency with the security cameras, Claimant would
not have made the trip to work. The WCJ noted that Ms. Seip wanted Claimant to
come into work to resolve the specific problem with the security cameras. The WCJ
also found Claimant made these “on call” assignments two to three times monthly. In
the present case, however, due to Claimant’s illness and the absence of the other
employee normally available to address an emergency related to the security cameras,
Claimant drove in to rectify the problem when he otherwise would not have gone into
work. The fact that Claimant here was sick and would not otherwise have come to
work (but for Employer’s request to do so) makes the present case readily
distinguishable from Simko.
The present case is similar to LoPresti, a case on which the Board relied
and a leading case to define the details of the “special circumstances” exception to the
“coming and going rule.” In LoPresti, the claimant worked as a construction
foreman. Due to weather conditions on a scheduled work day, his work was
cancelled for the day. The claimant decided to travel to the employer’s home office,
which was ten miles from where he lived, to pick up his paycheck and discuss a
specific job. The claimant received his check and proceeded to discuss the specific
job with the employer’s president. The claimant and the employer’s president also
discussed a potential new job involving a house foundation. The employer’s
president asked the claimant to contact the builder regarding further details of this
10
new job when the claimant got back home and to report back to him. The employer’s
president explained that it was in that employer’s interest for claimant to be there to
call the potential customer from his home because the actual reception area at the
regular work site was chaotic. Unfortunately, the claimant was involved in an
accident on the way home and he succumbed to injuries suffered in that accident the
next day.
The WCJ ultimately granted a fatal claim petition brought by the
claimant’s widow, concluding that the claimant fit within the special circumstances
exception to the “coming and going rule” because the employer specifically requested
that the employee do something at home for the convenience of the employer. The
Board reversed, concluding that the claimant did not fit within this exception.
However, this Court reversed the Board and reinstated the decision of the WCJ,
which properly applied the exception. We noted that the outcome was consistent
with our Superior Court’s decision in Muir v. Wilson Cola Co., 168 A.2d 588, 589
(Pa. Super. 1961), which held that the fact that the employer paid the claimant “door
to door,” i.e., from the moment he left his house, was alone sufficient to support
application of the exception to the “coming and going rule.”
Similarly, here, Claimant was paid from “door to door” when he was
responding to on call assignments or emergencies. Claimant would not have come in
on the day in question due to his illness, but for the problem with the security
cameras and the direction from his supervisor, Ms. Seip, that the problem needed to
be fixed. In other words, Claimant was injured in the course of responding to a direct
request from Ms. Seip to come into work (despite his illness and his intention to take
a full sick day) and during a time for which he would have been compensated, albeit
in the form of comp time.
11
In William F. Rittner Co. v. Workers’ Compensation Appeal Board, 464
A.2d 675 (Pa. Cmwlth. 1983), this Court affirmed the award of benefits to the widow
and minor children of an employee killed on his way home from work. There, an
employee had been driving a company van as part of the terms and conditions of his
employment, based on that employer’s desire “to have the van constantly available to
respond to emergencies.” These facts comprised “special circumstances” which took
that case out of the “coming and going rule.” 464 A.2d at 678. Similarly, in the
present case, although Claimant was not driving a company vehicle, Employer voiced
a specific desire to have employees available (“on call”) for emergencies, and it is
understandable that in a facility devoted to the care of older citizens, the security
cameras would be an important priority.
Further, we reached a similar result in City of Philadelphia, in which the
claimant drove to one of his employer’s sites as part of his requirement to be “on
call” every thirteen weeks. The claimant was an electrician normally assigned to a
specific plant. On a day when he was on call, the claimant made a trip from home
“under the mistaken belief” that a supervisor wanted claimant to go there. 728 A.2d
at 431-432. This Court upheld an award of benefits, holding, “[t]he infrequency of
Claimant’s being ‘on call,’ coupled with the fact that being ‘on call’ did not
necessarily require that Claimant travel to his workplace, leads this Court to conclude
that the act of driving to work…was not part of Claimant’s regular duties,” but rather
was a special assignment or special circumstances so as to qualify as an exception to
the “coming and going rule.” 728 A.2d at 432-433. We concluded that the claimant
“acted in accordance with his responsibilities as the ‘on call’ electrician and
attempted to make his way to the plant in the effort to resolve the situation.” 728
A.2d at 433. Similarly here, Claimant has acted in accordance with his “on call”
12
responsibilities in attempting to make his way to work to address an emergency at
Employer’s request.
Moreover, as in City of Philadelphia, being “on call” did not necessarily
require that Claimant travel to his workplace, as sometimes he could address the
issues by telephone.
Here, Claimant was ill and intended to take a sick day. Indeed, although
Claimant normally would have been on call for emergencies, he certainly would not
have been expected to come to work when ill and taking a sick day. He was also not
required to drive to work if an emergency could be handled by him over the phone.
The other employee who usually responded to issues about the security cameras,
however, was not available, and when Employer specially requested that Claimant
come in, Claimant acquiesced to that request. Claimant was “on the clock” from the
moment he picked up the phone at home and fielded Ms. Seip’s specific request to fix
the security cameras.
For all the above reasons, the Board did not err in concluding that the
special circumstances surrounding Claimant’s injuries fall within an exception to the
“coming and going rule,”
Accordingly, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lutheran Senior Services :
Management Company, :
Petitioner :
: No. 1074 C.D. 2016
v. :
:
Workers’ Compensation Appeal :
Board (Miller), :
Respondent :
ORDER
AND NOW, this 15th day of February, 2017, the order of the Workers’
Compensation Appeal Board, dated June 8, 2016, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126204/ | Third District Court of Appeal
State of Florida
Opinion filed February 15, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-2253
Lower Tribunal No. 13-3447B
________________
Jorge Martin Mazzi,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Stephen Thomas Millan, Judge.
Jorge Martin Mazzi, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
This is an appeal of an order summarily denying a motion under Florida
Rule of Criminal Procedure 3.801. On appeal from a summary denial, this Court
must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A),
shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P.
9.141(b)(2)(D).
Because the record now before us fails to make the required showing, we
reverse the order and remand for attachment of records conclusively showing that
the appellant is not entitled to any relief or an evidentiary hearing. Langdon v.
State, 947 So. 2d 460 (Fla. 3d DCA 2007). If the trial court again enters an order
summarily denying the postconviction motion, the court shall attach record
excerpts conclusively showing that the appellant is not entitled to any relief.
Reversed and remanded for further proceedings.
2 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4108142/ | J-S85002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.A.J.F., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.T.F., FATHER
No. 1306 EDA 2016
Appeal from the Order Entered March 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): AP#: CP-51-AP-0000333-2015
DP#: CP-51-DP-0000623-2014
FID#: 51-FN-000592-2014
IN THE INTEREST OF: K.A.-M.T., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: M.T.F., FATHER
No. 1307 EDA 2016
Appeal from the Order Entered March 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): AP#: CP-51-AP-0000416-2015
DP#: CP-51-DP-0000766-2014
FID#: 51-FN-000592-2014
IN THE INTEREST OF: M.T.F., JR., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: M.T.F., FATHER
No. 1308 EDA 2016
Appeal from the Order Entered March 23, 2016
J-S85002-16
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): AP#: CP-51-AP-0000334-2015
DP#: CP-51-DP-0000767-2014
FID#: 51-FN-000592-2014
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 16, 2016
Appellant, M.T.F. (“Father”), appeals from the orders involuntarily
terminating his parental rights to his three children, M.A.J.F. (born August
2011), M.T.F., Jr. (born March 2013), and K.A.-M.T. (born March 2014).1
Father contends that the evidence at trial was insufficient to support the trial
court’s decision. After careful review, we affirm.
On May 2, 2012, Mother entered a negotiated guilty plea to the charge
of corruption of minors, whereby several other sexual offense charges were
noll prossed. The victim in these charges was Father. Mother received a
probationary sentence of three years.
On March 7, 2014, a general protective services report was referred to
the Department of Human Services (“DHS”) alleging that K.A.-M.T. had
tested positive for marijuana at birth. It was later determined that Mother
had tested positive for marijuana during delivery. DHS had K.A.-M.T. taken
____________________________________________
1
K.T. (“Mother”), the mother of all three children, had her parental rights
involuntarily terminated at the same proceeding. Her appeals are docketed
at 1135, 1136, and 1137 EDA 2016.
-2-
J-S85002-16
into protective custody and ultimately declared dependent and placed with a
foster family.
DHS visited Mother’s home, which consisted of two non-adjacent
rooms in a boarding house. Mother indicated that she locked the children
into separate rooms at night as a protective measure. Concerned with the
circumstances, DHS arranged for Mother to be admitted into a residential
treatment program where she could live with her two older children.
After a short time in the program, Mother was taken into custody for
violating her probation. DHS took M.A.J.F. and M.T.F., Jr. into protective
custody, as they could not remain at the treatment program in Mother’s
absence. Both children were ultimately declared dependent and placed with
the same foster family as K.A.-M.T.
Approximately nine months later, in January 2015, Father was
arrested and charged with aggravated assault, terroristic threats with the
intent to terrorize, stalking – intent to cause fear, simple assault and
recklessly endangering another person. Shortly thereafter, Mother submitted
herself to her first drug screen after her release from imprisonment for the
probation violation. She tested positive for marijuana.
Evidence was presented that, at the time of the termination hearing,
Father had never complied with drug and alcohol counseling and did not
participate in parenting classes. Furthermore, he had not located suitable
housing. Father’s compliance with his objectives was described as minimal.
-3-
J-S85002-16
The trial court determined that termination was appropriate under 23
Pa.C.S.A. § 2511(a), subsections (1), (2), (5), and (8), as well as § 2511(b),
and entered orders terminating Father’s parental rights, and this timely
appeal followed.
On appeal Father raises five issues, but these merely consist of
challenges to the sufficiency of the evidence to support the trial court’s
findings under each of the above sections. Our standard of review regarding
orders terminating parental rights is as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (quoting In re C.S., 761
A.2d 1197, 1199 (Pa. Super. 2000)).
In termination cases, the burden is upon the petitioner to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. See id., at 806. The standard of
clear and convincing evidence is defined as testimony that is so “clear,
direct, weighty and convincing as to enable the trier of fact to come to a
clear conviction, without hesitance, of the truth of the precise facts in issue.”
-4-
J-S85002-16
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). The trial court is free
to believe all, part, or none of the evidence presented and is likewise free to
make all credibility determinations and resolve conflicts in the evidence. See
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).
In terminating Father’s parental rights, the trial court relied upon §
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, which provide as
follows:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
…
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
reasonable period of time and termination of the
parental rights would best serve the needs and welfare of
the child.
-5-
J-S85002-16
…
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
...
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on the
basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
This Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (citation omitted).
With respect to § 2511(a)(2), termination of parental rights due to
parental incapacity that cannot be remedied, the grounds are not limited to
affirmative misconduct; “to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties.” In re A.L.D., 797
A.2d 326, 337 (Pa. Super. 2002) (citation omitted). Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities. See id., at 340. A child’s life “simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
-6-
J-S85002-16
responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citations omitted). Rather, “a parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004)
(citation omitted).
At the termination hearing, DHS social worker Lynn Speight testified
that Father never attended drug and alcohol counseling. See N.T.,
Termination Hearing, 3/23/16, at 27. Furthermore, he had never attended
parenting classes that DHS provided to him. See id. Nor had he ever located
appropriate housing in which to have to custody of the children. See id.
In addition, Father had two troubling incidents while he had
unsupervised visitation with the children. In the first, he took K.A.-M.T. to
get a treat. See id., at 29-30. Approximately 3 hours later, Father’s uncle
contacted the person with physical custody to inform her that Father had
dropped the child off and disappeared. See id., at 30.
In the second incident, Father purported to take all three children to a
local mall. See id., at 31. He was not prepared to take the children on such
an outing; among other reasons, he did not have a stroller. See id., at 30.
When DHS suggested a more appropriate destination, Father refused and
insisted on taking the children to the mall. See id., at 31. However, an
-7-
J-S85002-16
interview with the children after the outing revealed that Father had not
gone to the mall, but met with Mother and took the children to Mother’s
parents’ home. See id. This was a violation of the visitation plan, as
Mother’s visits were to be supervised, and her father had an offense that
disqualified him from visitation. See id. After this incident, Father’s visitation
was modified to supervised. See id., at 32.
On appeal Father complains that DHS did not provide enough
opportunities or assistance to achieve his goals. This Court has stated that a
parent is required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities. See In re A.L.D. 797 A.2d 326,
337 (Pa. Super. 2002). A parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. See id., at 340.
Here, evidence at trial established that Father had not availed himself
of the opportunities and services that DHS provided him. After our careful
review of the record in this matter, we find that the trial court’s credibility
and weight determinations are supported by competent evidence in the
record. Accordingly, we find that the trial court’s determinations regarding §
2511(a)(2) are supported by sufficient, competent evidence in the record.
When termination is found to be appropriate under subsection (a), the
trial court must still consider whether termination of parental rights would
best serve the developmental, physical and emotional needs of the child.
-8-
J-S85002-16
See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005). “Intangibles
such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child.” Id. at 1287 (citation omitted). We have
instructed that the court must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. See id.
At the termination hearing, social worker Speight testified that after
the children had been removed, Father had not regularly attended visitation
sessions with the children after his visitation was modified to supervised.
See N.T., Termination Hearing, 3/23/16, at 32. Social worker Akia Butts
testified that the children look to the foster mother to have their needs met.
See id., at 76-77. Furthermore, she testified that she did not believe that
the children would suffer irreparable harm if their biological parents’ rights
were terminated. See id., at 78.
After careful review of the record, we find that competent evidence in
the record supports the trial court’s determination that the children would
not suffer harm from termination of Father’s parental rights, and that the
termination would best serve the needs and welfare of the children. The
testimony at the hearing established that the children had been placed for
approximately 24 months and had established an appropriate bond with the
foster mother. We therefore find no basis upon which to disturb the trial
court’s orders.
-9-
J-S85002-16
We affirm the orders terminating Father’s parental rights on the basis
of § 2511(a)(2) and (b) of the Adoption Act.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
- 10 - | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7606061/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4142089/ | Honorable John D. Reed, ~Commiseioaer .~ '. "
..
.:
Bureau of Labor Statia'tica .:
Austin, Texas -
an account for the purohaee of
,,~~~;n~lm vhfoh.Ia over two
.
You attaoh to your lettcer ~of Yaroh lq,th-a fIls.oonoernIng a
statement submitted for payment to your departmentby'~the Gulf
Oil Corporation; covartxig:: an aaoount for the purdhase of ._
certain Items from the.@ulf Oil Corporation during the month
of September, 1939. You ask the,opInIon of .thIa dsp'artment upon
the question'ol whether the State Board of ciontrol would be
within Its authorIty':In approving this acoount for payment,
Inasmuch as It Ia over'tro.yeAr.re' old., The queatIon)'therefore,
Is confined to the Inquiry whetherthe 'fact 'that t-his~account
waa'incurred more than two yeare ago preclude& Its approval by
the State Board of' Control, and our opinion Is limited to
answering that question. .
Apparently your inquby Is prompted by the'provisions of Article
4357,Revised Civil Statutes of,Texaa 4.1q2$., as amended by Acts
1931,Forty-second Legislature;. page 00, Chapter 243, Section
1. This law provides in part as hollows:
"No claim shall be Daid from appropriations unless presented to
the Comptroller for payment within two years from the close of
the fiscal year for which suoh appropriations were made, but
any claim not presented for payment within such. period may be
presented to the Legislature ae other claims for which no appro-
priations are avAIlable. . .e
It Is to be noted that the,computatIon of the two years period
of limitation for presentation of claims for payment to the
Comptroller Is, 'a? the terms of the statute, made from the
close of the f&scal ypar for whioh the appropriation against
which the olaim'wae fnourred was made, not from the date on
which the claim was In6Wred.
Honorable John D. Reed, CommI8eio~b~,Fage 2, O-4259
r
It aPPeara that this loonunt waa Inourred during the month
of September*- 1939. Obviouelg, tlyrefore, It must have been
Incurred against an appTaprIation made to lhe Bureau of ”
Labor Statistics for the ,fIscal year beginning September 1,
1939, and ending, or closing, on Aupmt 31, 1940. Two years
from the close of thie fiecal year, therefore; would extend the
period of limitation to and through August 31, 1942. It IS
apparent, therefore, that the claim has been presented.for
payment within two yeare from the ~cloee OS the Sisoal year for
which the appropriations .agaInat which o laim wae ‘Inourred were
made.
Notice, perhaps, ~ahould be taken of the ‘provisions of Article.
4371, Vernon’s Revised Civil S,tatutee of Texas, which provides
In part a8 Sollowa: .
“No.money shall bye paid out of the Treasury except on the
warrants of the Comptroller , and.no.wanrant shall be paid by
the Treasurer unless Presented for payment within two years
fro+. the cleat of the fiaoal ~year In vhiah euch w arrant was
. Iaeued l . . . ,’ ._
The period of limitation. prescribed’ by +thIs Artiole has no
reference to the ,mattpr ,of the isauanoe of a,warrant for payment
but, a8 Is plain from the language I@&& preecribea only the
period within which the holder of-.a ~warrant duly Issued must
present aaid warmnt ‘far .pajmen$:. kn’thb Instant situation,
apparently no warrant hae ever ,been- Isaued~, and therefore
Article 4371 hae no aPplIoatIon. . ._
Youra very truly
ATTORNEY GERERAL
._ .~ ,OF TEXAS
,.- _- .--
.’ ai’
.., R; ‘@.’ Fairohlld” C-.--r
BY .- -:. ‘R. W. FaIr6hIl.d
RWF:LM/cg . ~.‘, .:, .+ Asaietant
p. S. The file attached to your letter .oS request Is returned
to you herewith
APPROVED RARWI26, 1942
a/ Grover Sellers
FIRST ASSISTANTATTORNEY
GENERAL
Approved Opinion &muiittee; .By’Bb’B, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142107/ | PFFICE OF THE ATTORNEY GENERAL OF TEXAS
;
AUSTIN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149744/ | Court of Appeals
of the State of Georgia
ATLANTA, February 27, 2017
The Court of Appeals hereby passes the following order
A17D0278. SHONDYLON JAMES v. ATLANTA INDEPENDENT SCHOOL SYSTEM.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
2015CV262764
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, February 27, 2017.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk. | 01-03-2023 | 03-02-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289012/ | FILED
Jun 27 2018, 2:42 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 46S04-1711-CR-701
State of Indiana
Appellant (Plaintiff below),
–v–
John B. Larkin
Appellee (Defendant below).
Argued: December 19, 2017 | Decided: June 27, 2018
Appeal from the LaPorte Circuit Court,
No. 46C01-1212-FA-610
The Honorable Patrick C. Blankenship, Special Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 46A04-1607-CR-1522
Opinion by Justice David
Chief Justice Rush, Justice Massa, Justice Slaughter, and Justice Goff concur.
David, Justice.
Following the death of his wife, John Larkin was charged with
voluntary manslaughter. However, this charge was later dismissed
because both of the lower courts found that: 1) the Criminal Rule 4(C)
period within which to bring Larkin to trial had expired and the delays in
bringing him to trial were not attributable to him; and 2) the prosecutorial
misconduct in this case required dismissal. For reasons discussed herein,
we disagree with the lower courts on both issues. Accordingly, we reverse
and remand for the trial court to hold a hearing or proceed to trial
pursuant to this Court’s holding in State v. Taylor, 49 N.E.3d 1019 (Ind.
2016).
Facts and Procedural History
In December 2012, police were dispatched to the home of John and
Stacey Larkin for a reported shooting. Stacey Larkin sustained two fatal
gunshot wounds during a domestic dispute involving her husband, John
Larkin. Police took Larkin into custody for questioning, and he invoked
his right to counsel. The police interrogated him anyway. Larkin’s
statements to police during those sessions were later suppressed.
While the State’s preliminary charge was murder, Larkin agreed to
speak with police if the State would consider only charging him with
manslaughter. The police so charged Larkin, and then conducted a
recorded interview. During a break, police left Larkin alone with his
attorney, but kept the video recording equipment running, capturing
Larkin and his attorney’s privileged communications. Larkin and his
attorney discussed various aspects of the case including insurance,
motivation and motive, possible charges, filing for divorce, the children,
conditions of bond, the funeral, possible defenses, and the sequence of
events on the evening of the shooting. Police and prosecutors viewed the
video and, therefore, saw and heard Larkin’s privileged discussion with
counsel. A court reporter even transcribed the discussion and distributed
it to the prosecutor’s office. Nearly one year later (December 2013), the
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 2 of 13
State disclosed to Larkin that it had eavesdropped on privileged
communications between him and his attorney.
In March 2014, following several continuances, the parties stipulated
that after November 5, 2014, the State would have 90 days to try Larkin
pursuant to Indiana Criminal Rule 4(C). Thereafter, in July 2014, Larkin
moved to dismiss the voluntary manslaughter charge, citing police and
prosecutorial misconduct that deprived him of his Sixth Amendment right
to effective counsel. He later moved to disqualify the LaPorte County
Prosecutor’s Office on the same grounds and requested a special
prosecutor. He also filed another motion to dismiss in September 2014,
alleging that the State’s lead detective conspired to obstruct justice by
having another officer change his statement regarding that officer’s prior
interaction with Stacey Larkin. In October 2014, the trial court denied
Larkin’s motions, but it suppressed: 1) statements Larkin made to police
after he invoked the right to counsel but before counsel arrived; and 2) the
recorded conversation between Larkin and counsel.
At Larkin’s request, the trial court certified for interlocutory appeal the
denial of Larkin’s motion to disqualify the prosecutor’s office, and stayed
the proceedings pending resolution from the Court of Appeals.
In September 2015, the Court of Appeals dismissed Larkin’s appeal as
moot since LaPorte County elected a new prosecutor in November 2014.
Larkin v. State, 43 N.E.3d 1281, 1286-87 (Ind. Ct. App. 2015). The court’s
opinion explained that it addressed only the LaPorte Prosecutor’s Office
as a whole and did not evaluate whether individual prosecutors should
withdraw from the case. Id. at 1287. The court then opined, “if requested
by Larkin, the trial court should consider whether disqualification of [two
deputy prosecutors] would be appropriate in this situation.” Id. The Court
did not certify its decision until November 20, 2015.
In the six weeks between when the Court of Appeals issued and
certified its opinion, the State moved to withdraw the two deputy
prosecutors, Neary and Armstrong, named in the Court of Appeals
opinion. The State also moved for the appointment of a special
prosecutor. The trial court granted all motions. Also during this time (in
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October 2015), the trial court judge recused himself and the County Clerk
appointed Judge Thomas Alevizos to preside over the case going forward.
Thereafter, in December 2015, Larkin moved to disqualify Judge
Alevizos, alleging the judge had a conflict of interest. Following a hearing,
Judge Alevizos found no conflict that jeopardized his impartiality, but
nonetheless recused himself to save the matter from further delays. The
Clerk sought replacements, but four other judges in the county either
declined the appointment or recused themselves. On February 29, 2016,
Pulaski County’s Judge Patrick Blankenship accepted the appointment.
On March 28, 2016, citing Rule 4(C), Larkin moved for discharge. He
orally renewed that motion in an April 7, 2016 hearing. During that same
hearing, the court and parties discussed possible trial dates, should the
court deny Larkin’s 4(C) motion. The court and State proposed trial dates
in early May 2016, but Larkin declined those dates. Larkin agreed to a
June 20, 2016 trial date. The court clarified on the record that Larkin
waived his 4(C) argument regarding the June trial date to the extent he
already made a record that he believed the period had run.
In May 2016, Larkin filed another motion for discharge under Criminal
Rule 4(C). He also again moved to dismiss the voluntary manslaughter
charge, this time arguing the police and prosecutorial misconduct made a
fair trial impossible. The court held a hearing on Larkin’s motion to
dismiss on June 9, 2016. Due to last-minute scheduling, the State appeared
via telephone. The State argued against dismissal, citing the denial of
Larkin’s first motion to dismiss back in 2014. Alternatively, pursuant to
this Court’s opinion in Taylor v. State, 49 N.E.3d 1019 (Ind. 2016), the State
requested another hearing to present evidence to prove Larkin did not
suffer prejudice from the State’s prior misconduct. The trial court denied
that request and on the same day and granted Larkin’s motions,
discharging him pursuant to 4(C) and dismissing the voluntary
manslaughter charge.
The State appealed, raising two issues: 1) whether the trial court erred
in granting Larkin’s 4(C) discharge motion; and 2) whether the trial court
erred in granting Larkin’s motion to dismiss. In a split published opinion,
the Court of Appeals affirmed on both issues. State v. Larkin, 77 N.E.3d 237
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 4 of 13
(Ind. Ct. App.), reh'g denied (Aug. 25, 2017)(“Larkin I”), transfer granted,
opinion vacated, 94 N.E.3d 700 (Ind. 2017). Judge Barnes dissented; he
would have reversed and remanded on both issues. The State sought
transfer which we granted, thereby vacating the Court of Appeals’
opinion. Indiana Appellate Rule 58(A). Additional facts are set forth
below.
Standards of Review
When evaluating a Criminal Rule 4 motion for discharge, “in cases
where the issue is a question of law applied to undisputed facts, the
standard of review—like for all questions of law—is de novo.” Austin v.
State, 997 N.E.2d 1027, 1039 (Ind. 2013). However, in cases where a trial
court makes a factual finding of congestion or emergency based on
disputed facts, the standard of review for appellate courts is not abuse of
discretion, but the clearly erroneous standard. Id. at 1040.
We review a trial court’s ruling on a motion to dismiss a charging
information for an abuse of discretion. State v. Thakar, 82 N.E.3d 257, 259
(Ind. 2017). A trial court abuses its discretion when it misinterprets the
law. Id.
Discussion and Decision
I. Discharge pursuant to Criminal Rule
4(C)
The State bears the burden of bringing the defendant to trial within one
year. Bowman v. State, 884 N.E.2d 917, 919 (Ind. Ct. App. 2008), trans.
denied. Rule 4(C) provides a defendant may not be held to answer a
criminal charge for greater than one year, unless the delay is caused by the
defendant, emergency, or court congestion. Curtis v. State, 948 N.E.2d
1143, 1148-49 (Ind. 2011).
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A defendant extends the one-year period by seeking or
acquiescing in delay resulting in a later trial date. A defendant
waives his right to be brought to trial within the period by
failing to raise a timely objection if, during the period, the trial
court schedules trial beyond the limit. However, a defendant
has no duty to object to the setting of a belated trial date if the
setting occurs after the year has expired.
Pelley v. State, 901 N.E.2d 494, 498-99 (Ind. 2009) (internal citations
omitted).
In this case, the parties stipulated that the State would have 3 months
from November 5, 2014 to try Larkin. Trial was ultimately set for June 20,
2016 after an interlocutory appeal and a motion for change of judge. At
issue is whether the delay as a result of the interlocutory appeal and the
motion for change of judge are attributable to Larkin or not.
A. Interlocutory Appeal
In Pelley, this Court said, “[w]hen trial court proceedings have been
stayed pending resolution of the . . . interlocutory appeal, the trial court
loses jurisdiction to try the defendant and has no ability to speed the
appellate process.” 901 N.E.2d at 500. See also Wood v. State, 999 N.E.2d
1054, 1063 (Ind. Ct. App. 2013) (citing Pelley for the principle that “in the
absence of jurisdiction in the trial court, the Criminal Rule 4(C) . . . was
tolled“).
As for when the trial court resumes jurisdiction, Indiana Appellate Rule
65(E), provides in relevant part: “[t]he trial court . . . and parties shall not
take any action in reliance upon the opinion or memorandum decision
until the opinion or memorandum decision is certified.” Case law clarifies
that if a trial court acts before certification, the action is considered a
nullity—as if the trial court lacked jurisdiction. Hancock v. State, 786 N.E.2d
1142, 1143 n.1 (Ind. Ct. App. 2003) (explaining that trial court’s action pre-
certification was “premature and should be considered as a nullity”);
Jallaili v. National Bd. of Osteopathic Medical Examiners, Inc., 908 N.E.2d 1168,
1176 n.4 (Ind. Ct. App. 2009) (labeling a motion filed before certification
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 6 of 13
“premature”); Montgomery v. Montgomery, 59 N.E.3d 343, 355 n.8 (Ind. Ct.
App. 2016) (“We remind the parties and the trial court that no action
should be taken in reliance on [the Court of Appeals] opinion until it is
certified as final under Indiana Appellate Rule 65(E)”).
Here, Larkin I was not certified until November 20, 2015, but prior to
that, the State filed several motions including one for appointment of a
special prosecutor. Pursuant to Pelley and App. R. 65, the trial court did
not yet have jurisdiction. Nevertheless, the Court of Appeals majority
found that the trial court reassumed jurisdiction and the State submitted
itself to the trial court’s jurisdiction due to a “constructive” lift of the stay
when the State moved for appointment of a special prosecutor. It found
that the purpose of App. R. 65 was satisfied by the trial court and the
State’s actions; that is, they were acting in accord with the decision being
final. But as Judge Barnes noted in his dissent, there are three problems
with this: 1) any action taken by the court prior to certification was
potentially voidable; 2) the parties could have petitioned for transfer; and
3) the majority’s outcome punishes the State for trying to move the case
forward prior to the stay being lifted. The State further notes that any date
prior to the date of certification is an inappropriate measure of when the
clock restarts for 4(C) purposes, as it injects uncertainly and allows for
potential game-playing by defendants.
We agree with the State and Judge Barnes that until the interlocutory
appeal was certified, the trial court did not have jurisdiction. As such, the
period of delay during the pendency of Larkin’s interlocutory appeal
through the time the Court of Appeals opinion was certified is chargeable
to Larkin.
B. Motion for Change of Judge
On November 23, 2015, Larkin moved for a change of Judge. Judge
Alevizos took the matter under advisement and later recused himself.
Then, several special judges declined appointment until finally, on
February 29, 2016, Judge Blankenship accepted appointment.
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This Court has held that “a delay occasioned by a defendant’s filing of a
motion for change of judge is chargeable to him and that the time begins
to run anew when the new judge qualifies and assumes jurisdiction.”
State ex rel. Brown v. Hancock County Superior Court, 372 N.E.2d 169, 170
(Ind. 1978); See also, Wedmore v. State, 143 N.E.2d 649, 650 (Ind. 1957); State v.
Grow, 263 N.E.2d 277, 278 (Ind. 1970). As Judge Barnes notes in his dissent,
the delay between the filing of the motion and appointment of a qualified
judge in Grow was six months and in Brown, sixteen months; both
chargeable to the defendant. Thus, under this line of cases, Larkin should be
charged with the delay from the filing of his motion until Judge Blankenship
accepted appointment.
However, the Court of Appeals majority found Harrington v. State, 588
N.E.2d 509 (Ind. Ct. App. 1992), disapproved by Cook v. State, 810 N.E.2d
1064 (Ind. 2004) dispositive. In Harrington, the defendant moved for a
special prosecutor because the current prosecutor had a conflict of interest
(the prosecutor had previously represented the defendant). 588 N.E.2d at
510. A 317-day delay resulted from the defendant’s motion. When the
defendant moved for discharge under Criminal Rule 4(C), the State argued
the delay should be charged to the defendant, since he made the special
prosecutor motion. Id. at 510-11. Harrington countered that the delay should
be charged to Rule 4(C) since the prosecutor knew of the conflict and it
would be unfair to charge the delay to him. The Court of Appeals concluded
the delay was attributable to the State because “a defendant should not be
forced to choose between a speedy trial and a fair trial as a result of the
prosecutor’s failure to identify and cure his conflicts.” Id. at 511.
In Cook, this Court disapproved Harrington. We held “delays caused by
action taken by the defendant are chargeable to the defendant regardless
of whether a trial date has been set.” 810 N.E.2d at 1067. We also expressly
disapproved a string of cases (including Harrington) to the extent they
were inconsistent with that holding. Id. The Court of Appeals majority
here relied heavily on Harrington’s language that a defendant should not
be forced to choose between a fair and speedy trial. Admittedly,
Harrington’s language about choosing between a fair and speedy trial was
not explicitly disapproved in Cook.
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However, there are a few problems with applying Harrington in this
case. First, adopting this approach would allow for a defendant to file for
change of judge preventing the case from moving forward but allowing
the 4(C) period to run. Just as interlocutory appeals toll the 4(C) period
despite who filed because the case cannot practically move forward, the
same is true when a motion for change of judge is filed.
Also, the Court of Appeals majority assumes that Judge Alevizos’ conflict
that caused his recusal was something he should have just known from the
outset. It’s not clear that this is the case. While he previously presided over
a matter involving Larkin’s sister and children and the outcome was less
than desirable for Larkin’s sister, we presume our trial judges are unbiased.
Patterson v. State, 926 N.E.2d 90, 93 (Ind. Ct. App. 2010). Further, practically
speaking, there are times when it will take time to find a suitable special
judge depending on the circumstances, and it’s not clear why this delay is
not akin to court congestion. Accordingly, we apply Cook and find that the
delay in finding a special judge is attributable to Larkin. Because the
delays that occurred as a result of Larkin’s interlocutory appeal and his
motion for change of judge are attributable to him and he agreed to a June
2016 trial date in May, prior to expiration of the 4(C) period, he is not
entitled to discharge pursuant to Criminal Rule 4(C).
II. Motion to dismiss due to inability to get
a fair trial
A. The State committed misconduct.
In this case, there is no dispute that the State committed misconduct
and on numerous occasions. First, police continued to question Larkin
after he invoked his right to counsel. Then, Larkin’s private conversation
with his attorney was recorded and listened to by several individuals at
the prosecutor’s office. The situation was compounded when the
conversation was transcribed and further distributed. Additionally, there
is evidence in the record reflecting potential evidence tampering. That is,
one officer instructed another to change his statement about his prior
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interaction with Larkin’s wife. There is also evidence that a piece of
physical evidence, the safe containing the gun used to shoot Stacey, was
tampered with while in the State’s custody and prior to allowing Larkin
an opportunity to examine it.
It is especially troubling to this Court that one of the prosecuting
attorneys involved in this matter was also involved in the misconduct in
Taylor. However, the discipline of attorneys is a separate matter than the
matter at hand. As we noted in Taylor: “what constitutes an effective remedy
for [defendant] is not necessarily what would constitute a proportionate
punishment for the State. Our concern is to ensure the State’s egregious
misconduct does not actually prejudice [defendant]. . . .” Taylor at 1024.
Accordingly, here we must decide whether the State’s misconduct is so
severe that Larkin’s criminal charges should be dismissed over it. Balancing
Larkin’s rights with the public’s interest in seeking justice for victims and
applying our precedent, we find that outright dismissal is not the
appropriate remedy in this case.
B. The appropriate remedy for the State’s
misconduct is suppression of the tainted
evidence for which the State cannot rebut the
presumption of prejudice pursuant to Taylor.
In Taylor, when considering a motion to suppress, this Court
announced a rule that when the State eavesdrops on a defendant’s
privileged communications with counsel, there arises a rebuttable
presumption of prejudice. This Court instructed the State may rebut that
presumption only by proof beyond a reasonable doubt. 49 N.E.3d at 1019.
We noted that it would be a windfall to Taylor if all statements were
suppressed because this would be disproportionate to the prejudice Taylor
actually suffered. Id. at 1029. We further noted that there may be other
circumstances where the taint would be so pervasive and insidious that no
remedy short of barring the tainted witnesses would suffice but we did not
address “that larger question” at that time. Id. Taylor considered a motion to
suppress only and not a motion to dismiss.
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Larkin argues, and the Court of Appeals found that the prosecutorial
misconduct in this case is more severe than in Taylor and thus, Taylor does
not apply. That is, they argue that Taylor only involved eavesdropping1
whereas here, the misconduct did not end there. Judge Barnes disagreed
with the majority, believing the facts in Taylor were not so much more
egregious than the ones here as to require dismissal.
However, even acknowledging that the prosecutorial misconduct may be
worse here, we find Taylor is applicable to this case, and as such, outright
dismissal is not an appropriate remedy. Pursuant to Taylor, the State must
be given a chance (even though it may not be possible) to demonstrate by
proof beyond a reasonable doubt that some untainted and admissible
evidence exists. Further, Taylor does not require that the State make an offer
of proof in order to rebut the presumption of prejudice.
The trial court already suppressed statements made by Larkin after he
invoked his right to counsel when the police continued to question him as
well as his recorded conversation with his attorney. Testimony or
portions of testimony from certain officers may also need to be suppressed
and the safe may need to be excluded from evidence. However, the State
cites other evidence which may not be tainted at all. For instance, Larkin’s
911 call, a physical description of the shooting scene, pathologist
testimony and Larkin’s statement to police may be used to bring Larkin to
trial. The trial court will need to look at each piece of evidence and
testimony and determine first, whether it is tainted and next, if so,
whether the State can rebut prejudice beyond a reasonable doubt.
Finally, we note again that Taylor involved blanket suppression and not
a motion to dismiss. Dismissal is an extreme remedy. As the U.S.
Supreme Court has held, for constitutional violations committed by the
government, “the remedy characteristically imposed is not to dismiss the
1 Taylor involved more than eavesdropping as well. After eavesdropping, police used
information gained from what they overheard to go find the murder weapon. Further, police
invoked their Fifth Amendment rights during their depositions when Taylor sought to learn
the extent of the prejudice from the eavesdropping.
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 11 of 13
indictment but to suppress the evidence” gained from the violation. U.S.
v. Morrison, 449 U.S. 361, 365 (1981). To the extent the prosecutorial
misconduct in this case has caused prejudice which the State cannot rebut
beyond a reasonable doubt, the appropriate remedy is suppression of the
tainted evidence, not outright dismissal without taking into account other
untainted evidence or giving the State an opportunity to rebut the
presumption of prejudice. It may be that the State has no case without the
suppressed evidence. Regardless, the trial court abused its discretion in
not applying Taylor to this case.
Conclusion
We find that the delays associated with Larkin’s interlocutory appeal
and motion for change of judge are chargeable to Larkin. As such, the
Criminal Rule 4(C) period had not expired before Larkin agreed to a June
2016 trial date. Thus, his motion for discharge should have been denied.
We further find that Taylor applies to this case and outright dismissal is
not the appropriate remedy for the State’s misconduct. Instead, the trial
court is to assess each piece of evidence to determine whether it is tainted
by the State’s misconduct. If it is, the State shall be afforded the
opportunity to rebut the presumption of prejudice by proof beyond a
reasonable doubt. Failing that, the testimony or evidence at issue will be
suppressed.
Accordingly, we reverse the trial court on both issues and remand. The
trial court, at its discretion, may either hold a hearing during which the
State is given an opportunity to rebut the presumption of prejudice for
any tainted evidence or proceed to trial at which the State may attempt to
meet its burden through offers of proof outside the presence of the jury.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 12 of 13
A TT O RN E YS FO R A P PELL A N T
Curtis T. Hill, Jr.
Attorney General of Indiana
Stephen R. Creason
Chief Counsel
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
A TT O RN E YS FO R A P PELL EE
Stacy R. Uliana
James E. Foster
Bargersville, Indiana
Indiana Supreme Court | Case No. 46S04-1711-CR-00701 | June 27, 2018 Page 13 of 13 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289013/ | No. 118,165
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF LEAWOOD,
Appellee,
v.
ROBERT PUCCINELLI,
Appellant.
SYLLABUS BY THE COURT
1.
Standard field sobriety tests are not searches under the Fourth Amendment to the
United States Constitution or Section 15 of the Kansas Constitution Bill of Rights.
2.
The voluntariness of consent to a search is a factual question that the district court
determines. On appeal, we uphold its finding if it is supported by substantial evidence.
3.
In this case, even if field sobriety tests were considered a search under Fourth
Amendment standards, the district court's finding that the defendant voluntarily
completed them is supported by substantial evidence.
4.
While the results of horizontal gaze nystagmus (HGN) tests are not admissible in
Kansas courts for any purpose unless a proper foundation for their scientific validity is
made, evidence about the process of testing may be introduced if it is otherwise relevant.
Here, the defendant's ability to follow simple instructions was relevant, so the district
court did not err in allowing evidence about—but not including the results of—HGN
testing.
Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed June 22,
2018. Affirmed.
Thomas J. Bath Jr. and Mitch E. Biebighauser, of Bath and Edmonds, P.A., of Overland Park, for
appellant.
Marcia L. Knight, assistant city attorney, for appellee.
Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.
LEBEN, J.: Robert Puccinelli appeals his conviction for driving under the influence
of alcohol, raising two points. We do not find either of them persuasive.
First, he argues that allowing a police officer to testify about how Puccinelli did on
field sobriety tests violated Puccinelli's Fourth Amendment right to be free from
unreasonable searches. But field sobriety tests aren't searches under the Fourth
Amendment at all. For the most part, the tests simply check for physical actions
associated with inebriation, something that a careful observer might learn simply from
watching the defendant.
Second, he argues that the district court shouldn't have allowed the officer to
testify that he had given Puccinelli the horizontal-gaze-nystagmus (HGN) test, a test that
hasn't been shown sufficiently based on science for its results to be presented in Kansas
criminal trials. But the test results weren't admitted in Puccinelli's trial. Instead, the
sequence of the officer giving instructions about the HGN test and Puccinelli's responses
was admitted mainly because of how much difficulty Puccinelli had in following simple
2
instructions. That evidence was relevant in determining whether Puccinelli was drunk and
was properly admitted for that purpose.
FACTUAL AND PROCEDURAL BACKGROUND
Before we look in depth at the legal issues, we need to set out some of the factual
background. Because part of Puccinelli's legal argument is based on his claim that he
objected to doing the field sobriety tests but was ordered to do them anyway, we will
include the facts related to the voluntariness of his participation in those tests.
Puccinelli's encounter with Leawood police officer Andrew Bacon began in what
we'd generally call late on a Monday night in April 2016, though it was actually
12:45 a.m. the following morning. Bacon pulled Puccinelli over for failing to signal a
turn.
Puccinelli said he had come from a nearby Taco Bell and that he had thrown his
Taco Bell trash out the window. Bacon said he didn't see Puccinelli come from the Taco
Bell parking lot and asked if he'd been anywhere else. Puccinelli said he hadn't.
Bacon then said he'd seen Puccinelli come out of the parking lot of a nearby bar,
but Puccinelli denied having been there. He also denied having had anything to drink that
night.
Bacon said he was going to "have [Puccinelli] do a couple of things in the window
of the car to so [Bacon could] make sure [Puccinelli was] alright to drive." Puccinelli
agreed, but again denied having had anything to drink.
Bacon first asked Puccinnelli to do a fingertip-counting test. Although Bacon
explained it, Puccinelli said he didn't understand what Bacon wanted him to do. Then,
3
after failing to do the test correctly, Puccinelli said he wasn't going to get out of the car
and that he hadn't been drinking.
Bacon then asked Puccinelli to recite the alphabet from C to N and to count
backwards from 83 to 62. Puccinelli couldn't do those tests correctly, either. At that point,
Bacon told Puccinelli to step out of the vehicle.
Puccinelli said he wasn't "comfortable with this." But Bacon told him, "Okay,
well, comfortable or not, you need to get out of the car." Puccinelli complied.
Bacon then began to give Puccinelli three standard field sobriety tests—the HGN
test, in which the person visually follows a moving object while the officer looks for
involuntary eye movements; the walk-and-turn test, in which the driver must walk heel to
toe in a line; and the one-leg-stand test, in which the driver stands on one leg while
counting out loud.
For the HGN test, Bacon told Puccinelli to stand with his feet together, arms down
at his side. Bacon told him to follow a pen being moved back and forth in front of him
without moving his head—only moving his eyes. Shortly after starting the test, Bacon
asked, "What do you want me to do, look at the pen?" Bacon again told Puccinelli to
follow the pen with his eyes, but Puccinelli quit doing that and looked directly at the
officer after only a short time. Bacon asked whether he was looking at the pen or the
officer. "You, now," Puccinelli replied.
At that point, Puccinelli made the first of several references to a desire to move on
to taking a breath test (using a machine called a "breathalyzer"): "Do you wanna give me
a breathalyzer, I mean 'cause I'm not drunk. So let's—let's move on with this," Puccinelli
said.
4
Bacon instead asked Puccinelli next to do the walk-and-turn test. Puccinelli again
said, "Why can't we just do the breathalyzer?" But Bacon said "[w]e'll get to it." Bacon
then began giving instructions, but Puccinelli had trouble understanding them and said,
"I'm not going to do it. Give me the breathalyzer . . . ." After a bit more discussion,
Puccinelli did the walk-and-turn test.
Bacon then explained the one-leg-stand test. Puccinelli did it without objection.
In Bacon's opinion, Puccinelli failed both the walk-and-turn test (showing six of
eight clues for impairment) and the one-leg-stand test (showing three of four clues of
impairment). Bacon also had smelled an odor of alcohol coming from inside Puccinelli's
car, had noticed Puccinelli's eyes were bloodshot, and had noticed that Puccinelli had not
been able to follow simple instructions. Based on all of that, Bacon arrested Puccinelli.
After the arrest, Bacon took Puccinelli to a nearby police station and asked that he
take either a breath or blood test for alcohol. Puccinelli refused.
The City of Leawood charged Puccinelli with one count of driving under the
influence of alcohol and the separate traffic infraction of failing to signal a turn. Before
trial, Puccinelli asked the court to suppress the evidence of the field sobriety testing. We
don't have a copy of the motion he filed in the district court, but an earlier motion filed in
municipal court had alleged "an unlawful search of Mr. Puccinelli's person." The district
court denied the motion, concluding that field sobriety tests aren't a search under the
Fourth Amendment. Even if they were, the court also concluded that Puccinelli had
voluntarily consented to do the tests.
At the beginning of trial, Puccinelli also asked that the court preclude the City
from presenting any evidence that Bacon had administered one specific test, the HGN
5
test. The City said it didn't seek to introduce the HGN test results, and the court denied
Puccinelli's motion.
The City's case was presented at a jury trial in district court. (Puccinelli had
appealed after his initial conviction in municipal court.) Both Bacon and Puccinelli
testified, and the jury also saw police recordings of their encounter.
Puccinelli told the jury that he had gone through the Taco Bell drive-through
window and had eaten in his car. After that, he said he had stopped at the nearby bar
Officer Bacon had mentioned during the traffic stop. Puccinelli admitted having one
mixed drink there and a "couple" of beers earlier in the day. He told the jury, though, that
he felt he had been sober enough to drive that night.
The jury convicted Pucinnelli of DUI and the failure to use a turn signal. The
district court sentenced him to serve 2 days in custody plus 12 months of probation. He
also received fines of $1,000 for the DUI and $100 for the failure to signal a turn. If
Puccinelli fails to satisfactorily complete his probation, there's an underlying 180-day
sentence that would have to be served.
Puccinelli then appealed to our court.
ANALYSIS
I. The District Court Properly Denied Puccinelli's Motion to Exclude All Evidence of the
Field Sobriety Tests.
Puccinelli's first argument is that his rights under the Fourth Amendment were
violated through the admission of evidence about the field sobriety tests. The Fourth
Amendment protects our right to be free from unreasonable searches and seizures.
6
Generally a search may be conducted only with a warrant, issued on probable cause, or
when a recognized exception to the warrant requirement applies. See State v. Ramirez,
278 Kan. 402, Syl. ¶¶ 2-3, 100 P.3d 94 (2004).
One of the warrant exceptions is a search by consent. Puccinelli argues that field
sobriety tests "can be likened" to a consent-based search: If there's no consent, the
search—here field sobriety tests—aren't proper.
Puccinelli contends that he didn't voluntarily take the field sobriety tests, citing
statements he made like, "I'm not going to do it. Give me the breathalyzer . . . ." Thus, he
argues, he didn't consent to the field sobriety tests, and the court should have held the
tests constituted an illegal search that violated the Fourth Amendment.
But there are two problems with his argument. First, field sobriety tests are not
Fourth Amendment searches, so there can be no Fourth Amendment violation. Second,
the district court concluded that he voluntarily participated in the field sobriety testing,
and there's evidence to support its conclusion.
Let's start with the Fourth Amendment. It explicitly protects us "against
unreasonable searches and seizures." There's no dispute here that Puccinelli was seized—
he was driving a car and the officer made him stop. But that's not a violation of the
Fourth Amendment. Officer Bacon had seen Puccinelli commit a traffic infraction, the
failure to signal a turn, so the officer could lawfully stop the car. And once the officer
smelled alcohol, saw bloodshot eyes, and had some confusing answers coming from the
driver, the officer could reasonably extend the traffic stop to investigate whether
Puccinelli had been driving while intoxicated. See State v. Jones, 300 Kan. 630, Syl. ¶¶
1-6, 333 P.3d 886 (2014); State v. McClellan, No. 115,164, 2017 WL 839720, at *4-7
(Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. ___ (February 26, 2018).
Thus, Puccinelli hasn't challenged the constitutionality of his seizure.
7
Instead, he has challenged the officer's act of conducting field sobriety tests as an
illegal search. So the threshold question we must address is whether field sobriety tests
are a search at all.
We have a handy explanation of what's a search from a Kansas Supreme Court
opinion: A Fourth Amendment search occurs when "(1) the government obtains
information by physically intruding on a constitutionally protected area, i.e., persons,
houses, papers, or effects; or (2) invades a subjective expectation of privacy that society
recognizes as reasonable." State v. Talkington, 301 Kan. 453, Syl. ¶ 4, 345 P.3d 258
(2015) (citing Florida v. Jardines, 569 U.S. 1, 10-11, 133 S. Ct. 1409, 185 L. Ed. 2d 495
[2013]). The field sobriety testing done here was not a search under those criteria.
First, Bacon didn't intrude on any constitutionally protected area. He didn't make
physical contact with Puccinelli until after the field sobriety tests were done. The only
papers or effects the officer touched was Puccinelli's driver's license; Puccinelli had no
expectation of privacy in it—an officer can ask for a driver's license, registration, and
proof of insurance in any traffic stop. See Jones, 300 Kan. at 640. And the officer didn't
intrude here on Puccinelli's home.
Second, the three standard field sobriety tests done here—HGN, the walk-and-turn
test, and the one-leg-stand test—don't invade any area for which there is a reasonable
expectation of privacy. A majority of the Washington Supreme Court recently held in
State v. Mecham, 186 Wash. 2d 128, 134, 380 P.3d 414 (2016), that these tests are a
seizure but not a search when—as is true in Puccinelli's case—the driver has not yet been
arrested and there's a reasonable basis for the DUI investigation. We find persuasive the
four-justice plurality opinion in Mecham, which concluded that tests like these simply are
not searches. As they explained, there's simply no invasion of a reasonable privacy
expectation:
8
"[Field sobriety tests] require a detainee to perform three activities: visually follow a
moving object while the officer looks for involuntary eye movements, walk heel to toe in
a line, and stand on one leg while counting out loud. None of these activities is private in
nature. Indeed, they are all physical characteristics that any observer might see upon
casual observation of a person under the influence of drugs or alcohol. [Field sobriety
tests] thus do not invade a person's reasonable expectations of privacy." 186 Wash. 2d at
142.
We do realize that not all courts are in agreement on this point. Some have held
that field sobriety tests do constitute Fourth Amendment searches. E.g., Commonwealth
v. Blais, 428 Mass. 294, 701 N.E.2d 314 (1998); Hulse v. State, 289 Mont. 1, 961 P.2d 75
(1998); State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994). More recently, Washington (in
the Mecham case) and Georgia have disagreed. See Mitchell v. State, 301 Ga. 563, 802
S.E.2d 217 (2017). We find the position taken in Mecham and Mitchell more persuasive.
Puccinelli didn't reveal any sensitive information during the sobriety tests that
would reasonably be expected to be kept private. He had no reasonable expectation of
privacy in his balance, coordination, or responses to simple mental-acuity challenges, like
a divided-attention task. These simply show physical characteristics and responses that
could have been seen in the neighborhood bar or when he chose to get into his car and
drive on public streets. See Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L.
Ed. 2d 576 (1967) ("What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.").
Indeed, the United States Supreme Court has held that no Fourth Amendment
rights are violated by a government actor requiring a suspect to provide handwriting
samples or to read a text so that it might be recorded. See United States v. Mara, 410 U.S.
19, 21, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973) (handwriting sample); United States v.
Dionisio, 410 U.S. 1, 14, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (voice sample).
9
"Handwriting, like speech, is repeatedly shown to the public, and there is no more
expectation of privacy in the physical characteristics of a person's script than there is in
the tone of his voice." Mara, 410 U.S. at 21. By contrast, the Supreme Court has held that
taking blood, obtaining a DNA sample, or removing scrapings from underneath a
fingernail—the physical removal of tangible evidence—does constitute a Fourth
Amendment search. See Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed.
2d 696 (2013) (blood); Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 186 L. Ed. 2d 1
(2013) (cheek swab for DNA); Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000, 36 L.
Ed. 2d 900 (1973) (fingernail scrapings).
We agree with the Georgia Supreme Court that "[a] field sobriety test appears to
us to be an act more akin to a handwriting or voice exemplar than the physical removal of
tangible evidence." Mitchell, 301 Ga. at 570. So we conclude that field sobriety tests do
not constitute searches under the Fourth Amendment.
Puccinelli also claimed that the field sobriety tests violated Section 15 of the
Kansas Constitution Bill of Rights. But he provided no separate analysis under the
Kansas Constitution, and our Supreme Court has held that Section 15 "provide[s] the
same protection from unlawful government searches and seizures as the Fourth
Amendment to the federal Constitution." State v. Daniel, 291 Kan. 490, Syl. ¶ 5, 242 P.3d
1186 (2010). We therefore find that field sobriety tests do not constitute searches under
Section 15, either.
The second problem with Puccinelli's argument is that the district court concluded
that he voluntarily took the field sobriety tests. So even if those tests constitute a Fourth
Amendment search, the exception to the warrant requirement for consent searches would
apply. See State v. Parry, 305 Kan. 1189, 1195-96, 390 P.3d 879 (2017).
10
Puccinelli raised this issue in the district court on a pretrial motion to exclude
evidence about the sobriety tests. The district court specifically found as a factual matter
"that he did not refuse to take the test[s], and took these tests voluntarily." The court
noted that the officer "was extremely polite during the entire process" and "never even
raised his voice." The court also recognized that Puccinelli sometimes said things like he
wasn't comfortable with the process or let's move on to the breath test, but concluded that
he wasn't refusing to take the tests and voluntarily did so.
When we review the district court's ruling on a motion to suppress evidence, we
generally follow two rules for appellate review. First, we must accept the district court's
factual findings if they are supported by substantial evidence. Second, we then
independently review its legal conclusions. State v. Keenan, 304 Kan. 986, 993, 377 P.3d
439 (2016). When appellate courts consider a district court ruling about consent to
search, though, the Kansas Supreme Court has held that the voluntariness of the consent
is a factual issue that "appellate courts review to determine if competent evidence
supports the trial court's findings." State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015
(2007); accord State v. Ransom, 289 Kan. 373, Syl. ¶ 2, 212 P.3d 203 (2009). Here,
there's substantial evidence to support the district court's conclusion that Puccinelli
voluntarily complied with the officer's request that he do the field sobriety tests.
When the officer first asked Puccinelli to get out of his car, he said he was "not
comfortable with this," but he quickly got out of the car after the officer said he needed to
do that. And an officer at a traffic stop has an absolute right to have a driver get out of the
car. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).
On the second test—the walk-and-turn test—Puccinelli's objections were mainly
that the street where the officer asked him to do the test wasn't flat. After some
complaints about the slope, Puccinelli began his approach of asking to move on to the
11
breath-test phase at the first. Officer Bacon said he needed to go in order—and when
Bacon suggested using a flatter driveway rather than the street, Puccinelli agreed:
Puccinelli: "Why can't we just do the breathalyzer?"
Bacon: "We'll get to it."
Puccinelli: "And I can show that I'm not going to do that, so . . ."
Bacon: "I have to do the whole thing when I do it. That's the last thing, okay, so just bear
with me here."
Puccinelli: "Sure."
Bacon: "You're going to imagine a line that's going to run from where your foot's at all
the way to the front of my car and back to where you're standing at again. What I need
you to do now is take your left foot and put it on that line. This line's completely straight.
It's approximately the width of your foot."
Puccinelli: "I—it's—I'm—it's—I'm not going to do it 'cause it's not—it's not flat."
Second Officer: "Okay. Why don't we use that driveway? It's a straight line."
Puccinelli: "Sure."
Puccinelli argues in his appellate brief that he requested three times to "move on
with this," meaning to skip over the field sobriety tests and proceed to a breath test. But
the example we've given above typifies what happened. Bacon would say that he needed
to go step by step, and Puccinelli would then agree to do so. On the facts, then, there's
support for the district court's conclusion that Puccinelli proceeded voluntarily.
12
In making its ultimate finding on voluntariness, a court must consider all the
circumstances; no single factor is determinative. State v. Thompson, 284 Kan. 763, 803-
04, 811-13, 166 P.3d 1015 (2007). Here, of course, Puccinelli had been stopped—seized,
in Fourth Amendment terms—by the officer. He wasn't free to leave the scene. But
Puccinelli acted as if he could refuse to do the tests requested by the officer; he said
directly that he wasn't going to do some of what he was asked to do. On the walk-and-
turn test, for example, he initially said he wouldn't do the test because the street wasn't
flat enough. When offered an alternate location, the nearby driveway, though, he agreed
to proceed. Ultimately, he did all three of the field sobriety tests. We conclude that the
district court's finding that he did so voluntarily is supported by substantial evidence.
II. The District Court Properly Allowed Evidence of Puccinelli's Failure to Follow
Simple Directions during the HGN Test while Evidence of the Results of that Test Were
Excluded.
The second issue on appeal relates solely to the HGN testing. As part of that test,
an officer observes a person's eye movements to get a measure of whether the person is
intoxicated. That's something based on scientific principles and well beyond the
knowledge of jurors. So our Supreme Court has held that "before the results from an
HGN test may be considered by a Kansas court for any purpose, the State must establish
the reliability of such a test in a district court within this state." City of Wichita v. Molitor,
301 Kan. 251, Syl. ¶ 2, 341 P.3d 1275 (2015).
At Puccinelli's trial, the City didn't present evidence of the HGN test result. But
the City did present a video showing the officer's interaction with Puccinelli during the
HGN test. The City said it did so to show that Puccinelli wasn't able to follow simple
instructions, something that might well be an indicator of inebriation.
13
Puccinelli made a pretrial motion to exclude all evidence related to the HGN
testing, which the district court denied. A district court may grant such a motion before
trial when (1) the evidence would be inadmissible and (2) a pretrial ruling, rather than a
ruling during trial, is justified because the mere mention of the evidence at trial may
cause unfair prejudice or confusion. State v. Shadden, 290 Kan. 803, Syl. ¶ 3, 235 P.3d
436 (2010). The starting point for analysis, then, is whether the evidence was admissible.
To determine whether the evidence was admissible, we look to see whether it's
material and probative, as required of evidence for it to be relevant under K.S.A. 60-
401(b). Evidence is material if the fact it proves "has some real bearing on the decision in
the case." State v. Torres, 294 Kan. 135, 139, 273 P.3d 729 (2012). Evidence is probative
"if it furnishes, establishes, or contributes toward proof." State v. Coones, 301 Kan. 64,
78, 339 P.3d 375 (2014). In other words, the evidence must tend to make a fact that's of
consequence in determining the case more or less probable than it would be without the
evidence.
On appeal, we review the district court's decision that the evidence was material—
of consequence in determining the case—independently, with no required deference to
the district court. We review the district court's decision that the evidence was
probative—tending to make the consequential fact more or less probable—only for abuse
of discretion. State v. Magallanez, 290 Kan. 906, Syl. ¶ 4, 235 P.3d 460 (2010). A district
court abuses its discretion if no reasonable person would agree with its decision or the
decision is based on a factual or legal error. State v. Mosher, 299 Kan. 1, 3, 319 P.3d
1253 (2014).
The key fact here was Puccinelli's level of intoxication. Since he refused breath
and blood tests, there was no mathematical data available to the jury. So the jury had to
rely on other evidence.
14
The City argued that Puccinelli's inability to follow simple instructions during the
HGN test helped to show how intoxicated he was. Puccinelli counters on appeal that
because HGN test results aren't admissible because their validity hasn't been shown, his
"manner of performing the test is no more material than the results." We disagree.
The City made no attempt to present the results of the HGN tests. But it presented
both video of the HGN testing (with redactions for any portion that might have
referenced how Puccinelli was doing) and Bacon's testimony.
As we noted in our earlier factual summary, Bacon told Puccinelli to use his eyes
to watch a pen moving back and forth in front of him. Yet shortly after beginning the test,
Puccinelli asked, "What do you want me to do, look at the pen?" Bacon explained it
again, but after briefly watching the pen, Puccinelli started looking directly at Bacon
instead. When asked at trial whether Puccinelli had been "able to follow your
instructions" on that test, Bacon replied, "He did poorly at it."
The jury had the opportunity to view the videotape and hear testimony from both
Bacon and Puccinelli. Being unable to follow simple instructions was probative because
it made it more probable that Puccinelli was intoxicated. And that was a fact of
consequence so it was material.
We do recognize that our Supreme Court has directed that the results of HGN
testing may not be admitted for any purpose unless the State (or here, a municipality) first
comes into court and proves that test's scientific reliability. Molitor, 301 Kan. 251, Syl.
¶ 2. We do not believe our ruling here undercuts that holding in any way. The jurors in
this case weren't told anything about the results of the HGN test, and they were instructed
not to make any assumptions about portions of the videotape that had been removed. Nor,
as far as we can tell, did any party even hint at the HGN results to the jury. While
Puccinelli claims in his brief that jurors might have heard Bacon's response ("He did
15
poorly at it.") as a comment on the test results, that answer came in response to a simple
question: "Was he able to follow your instructions?"
Unless the scientific reliability of HGN testing is first proved in a Kansas court,
trial courts and attorneys should be careful to make sure that HGN test results are neither
mentioned nor presented in such a way that the jury would make an inference about the
results. Doing so would violate the Molitor ruling. In this case, though, Puccinelli's
inability to follow instructions was relevant evidence—and perhaps the clearest example
of this came during the HGN testing. We find no error in the district court's admission of
that testimony.
The district court's judgment is affirmed.
***
SCHROEDER, J., concurring: I concur in the result but I write separately to caution
prosecutors in the use of video footage of the administration of the HGN test. The safest
path might be to ignore or redact that portion of the video. Here, the video was admitted
to show Puccinelli failed to follow the officer's instructions while he was trying to
administer the field sobriety tests, including the HGN. Although the video was properly
admitted in this case, using video of the HGN test risks getting too close to the exclusions
in City of Wichita v. Molitor, 301 Kan. 251, 341 P.3d 1275 (2015), requiring reversal of
the conviction. This seems a harsh penalty for the slight benefit of showing a defendant's
inability to follow simple instructions during the administration of the HGN test. To be
safe, I caution against the use of videotape of the HGN test.
16 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289029/ | J-A12016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. LATZANICH II, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SEARS ROEBUCK AND COMPANY, : No. 3894 EDA 2017
SEARS HOLDINGS CORPORATION :
AND DOES 2-10 :
Appeal from the Order Entered October 24, 2017
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 8634-CV-2015
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED JUNE 27, 2018
John J. Latzanich, II, appeals pro se from the order entered October 24,
2017, in the Court of Common Pleas of Monroe County, granting summary
judgment in favor of Sears Roebuck and Company and Sears Holdings
Corporation (Sears).1 In this timely appeal, Latzanich raises two claims that
the trial court erred in denying his discovery requests, and that, as a
subsequent result of his inability to conduct discovery, erred in granting
summary judgment in favor of Sears. After a thorough review of the
____________________________________________
1 Latzanich never identified, much less served, any of the John Doe
defendants. The trial court specifically dismissed the entire action after
granting summary judgment in favor of Sears, therefore the order is final and
appealable. Latzanich does not appeal the dismissal of the non-existent claims
against the John Doe defendants.
J-A12016-18
submissions by the parties, relevant law, and the certified record, we affirm
based on the well-reasoned opinions of the Honorable David J. Williamson,
dated June 13, 2016, April 7, 2017 and October 24, 2017.2 The parties are
directed to attach copies of the opinions in the event of further proceedings.
A brief history of this matter is required. Latzanich purchased a used
lawnmower from Sears Roebuck in Stroudsburg, Pennsylvania, on July 10,
2012. The lawnmower cost approximately $200.00. Sears provided a two-
year warranty on the machine, which was identical to the warranty given on
a new lawnmower. Latzanich used the lawnmower through 2012 and 2013.
In May, 2014, while still under warranty, the self-propel feature
malfunctioned. Sears repaired the lawnmower, charging Latzanich only for a
new mower blade, which was not covered under the warranty. The
lawnmower functioned for the rest of the 2014 mowing season. In May, 2015,
approximately 10 months after the two-year warranty expired, Latzanich
alleged the self-propel feature again failed. Rather than pay the approximate
$150.00 fee to have the machine repaired, Latzanich filed suit. The complaint
contained four causes of action: 1) rescission,3 2) intentional and negligent
misrepresentation, 3) violation of the Pennsylvania Unfair Trade Practices and
____________________________________________
2 These opinions address Latzanich’s initial motion to compel answers to
interrogatories and request for production of documents, motion to compel
supplemental answers to interrogatories and supplemental request for
production of documents, and the grant of summary judgment in favor of
Sears, respectively.
3 We note rescission is not a cause of action, it is a remedy.
-2-
J-A12016-18
Consumer Protection Law, and 4) breach of implied and express warranties.
Latzanich sought actual damages, punitive damages (not to exceed 10% of
defendants’ net worth), attorneys’ fees, prejudgment interest, and injunctive
relief forbidding Sears from selling lawnmowers in Pennsylvania and from
conducting any business in Pennsylvania.
During the course of the lawsuit, Latzanich sought production of
documents and answers to interrogatories from Sears. Sears objected to
many of the requests as irrelevant and/or vague and overbroad. Examples of
the objected to information sought by Latzanich were: information regarding
the prior owner of his lawnmower, all other similar lawnmowers sold by Sears,
and all lawnmower advertising by Sears. The trial court agreed with Sears
and denied most of Latzanich’s discovery requests.4
At the close of discovery, Sears filed for summary judgment, which was
granted by the trial court, having determined Sears had repaired the
lawnmower which it was still covered by the warranty and when the machine
allegedly malfunctioned the second time, it was no longer covered by the
warranty. Additionally, Latzanich had produced no evidence demonstrating
even the possibility of entitlement to relief on any of his other claims.
Our standard of review for a denial of a discovery motion is as follows:
____________________________________________
4Depositions of Sears’ representatives were conducted and written discovery
such as repair information and bills for the lawnmower after it was purchased
by Latzanich were supplied.
-3-
J-A12016-18
Orders regarding discovery matters are subject to the discretion
of the trial court. McNeil v. Jordan, 586 Pa. 413, 894 A.2d 1260
(2006) . . . An appellate court will not disturb discovery orders
without a “showing of manifest, unreasonableness, partiality,
prejudice, bias, ill will, or such lack of support in the law or record
for the [trial court's action] to be clearly erroneous.” Samuel-
Bassett v. Kia Motors, Inc., 613 Pa. 371, 34 A.3d 1, 51 (2011).
Hill V. Kilgallen, 108 A.3d 934, 941 (Pa. Super. 2015).
Our standard of review for the grant of a motion for summary judgment
is well known:
This court will only reverse the trial court's entry of summary
judgment where there was an abuse of discretion or an error of
law. Merriweather v. Philadelphia Newspapers, Inc., 453
Pa.Super. 464, 684 A.2d 137, 140 (1996). Summary judgment is
proper when the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits demonstrate
that there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2.
In determining whether to grant summary judgment a trial court
must resolve all doubts against the moving party and examine the
record in the light most favorable to the non-moving party. Id.
Summary judgment may only be granted in cases where it is clear
and free from doubt that the moving party is entitled to judgment
as a matter of law. Id.
Rutyna v. Schweers, 177 A.3d 927, 929 n.1 (Pa. Super. 2018).
The trial court’s opinions, referenced above, provide a cogent analysis
of the denials of Latzanich’s discovery requests, as well as Sears’ entitlement
to summary judgment. Our review of this matter leads us to find the trial
court has committed neither an abuse of discretion nor error of law
Order affirmed. Parties are directed to attach copies of the June 13,
2016; April 7, 2017; and October 24, 2017 trial court opinions in the event of
further proceedings.
-4-
J-A12016-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
-5-
Circulated 05/30/2018 03:12 PM
I 97a
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JOHN J. LATZANICH, II, ; NO. 8634 CIVIL 2015
Plaintiff
vs.
SEARS, ROEBUCK AND COMPANY,
SEARS HOLDINGS CORPORATION,
AND DOES 2-10,
PLAINTIFF'S
Defendants : MOTION TO COMPEL
OPINION
Plaintiff has initiated suit against Defendants regarding an alleged defective
lawnmower purchased used from a Sears retail store. The lawnmower in question was purchased
on July 10, 2012 for $228.98. Nearly two (2) years after purchase of the lawnmower, Plaintiff
experienced problems with the self-propel system. Plaintiff was advised prior to his purchase that
the lawnmower was returned to Sears by the previous owner for a similar problem. Sears had
fixed that condition and issued a warranty on the lawnmower. Sears fixed the lawnmower for
the Plaintiff, allegedly billing him $41.96 for service, even though the mower was still under
warranty. Plaintiff used the lawnmower for the rest of 2014 without a problem. However, in
98a
May of 2015, problems occurred again with the self-propel system of the mower. Although the
Plaintiff spent a total of $270.94, and used the mower for three years (2012, 2013, 2014), he is
seeking monetary damages in excess of the arbitration limits, an injunction against Sears,
attorney's fees, punitive damages and interest. The issue before the Court is Plaintiff's Motion
to Compel Discovery Responses.
A Rule was issued by this Court on March 29, 2016. The Defendant filed a
Reply/Brief on April 5, 2016. The Plaintiff filed a brief on May 17, 2016. The Defendants have
filed responses and objections to discovery requests. The Plaintiff requests an order that requires
more complete answers, that overrules Defendants' objections, and for sanctions of $1,000.
We first address the Plaintiff's contention that Defendants waived any objection
to the requested discovery by not answering timely. We note this matter was transferred to
Monroe County from Federal Court on February 24, 2016. Answers to discovery were provided
March 8, 2016 according to the signed certificate of service. That time period is not
unreasonable and well within the time period set by the Pennsylvania Rules of Civil Procedure,
once the matter was transferred to this Court. Even if the discovery requests were sent more than
thirty (30) days prior to transfer of this matter to Monroe County on February 24, 2016, this
Court had no jurisdiction over the matter until that time. Furthermore, we find no prejudice as a
result and it is within this Court's discretion to allow the responses in the time period given.
We have reviewed the Answer to Interrogatories submitted with Plaintiff s
Motion to Compel. Defendants have provided answers to Interrogatory #1, 2, 3, 4, 5, 6, 8, 11
and 17. The Defendants objected to Interrogatory #7, 9, 10, 12-16, 18 and 19 as vague and
overly broad, burdensome, and not reasonably calculated to lead to discovery of admissible
2
99a
evidence. We agree. The issue is the lawn mower sold to the Plaintiff, and not all lawnmowers
of the same make and model sold or serviced by the Defendants. This is not a class action suit,
nor is the request for such information reasonable in this case. The other information
requested
in these interrogatories is overly broad and burdensome under the circumstances. This
matter
involves the purchase of a used lawnmower, with a limited warranty, which was repaired on one
occasion by the Defendants after purchase by the Plaintiff. Under these circumstances, the
interrogatories objected to by the Defendants is unduly burdensome and not related to the issue
of problems with this one particular lawnmower, in which the self-propelled drive system did not
work properly.
The Reply to Request for Documents was also attached to Plaintiffs Petition.
The Defendants objected to Request 1, 2, 4, 5, 6, 7 and 8 as vague, overly broad, burdensome
and seeking information not reasonably calculated to lead to the discovery of admissible
evidence. We agree. The information sought is in no way relevant to the problems the Plaintiff
had with the mower, and/or is overly burdensome to the Defendants to obtain such information.
The information sought might be relevant in a class action suit, but in this case is unreasonable
under the circumstances, as it relates to this single lawnmower. The Defendants have
answered
Request #3 and 9, the only remaining requests. As such, we find that Defendants' Responses to
Discovery are sufficient and we will deny Plaintiffs Motion to Compel.
Cirillat05/301201p p3:1-4 Pfd
157a /
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JOHN J. LATZANICH, H, : NO, 8634 CIVIL 2015
Plaintiff
vs.
SEARS, ROEBUCK AND CO., et al., : PLAINTIFF'S
SECOND MOTION TO COMPEL
Defendants : AND REQUEST FOR SANCTIONS
OPINION
Plaintiff John J. Latzanich, H has filed a Second Motion to Compel and Request
for Sanctions concerning discovery disputes with the Defendants. This matter involves a claim
for monetary damages for a faulty used lawnmower sold by the Defendant to the Plaintiff at the
Stroudsburg, Pennsylvania Sears store. The Plaintiff also seeks injunctive relief to prevent future
sales, punitive damages and attorney's fees. The Plaintiff is pro se in this matter.
We note there has already been contentious litigation between the parties in this
matter. In review of the pleadings, the Second Motion to Compel and Response thereto, and the
actual discovery in dispute, we will deny the Plaintiffs Motion.
First, Sears Holdings Corporation has provided adequate responses. The
responses of Sears Holdings Corporation is that it is the parent company of Sears, Roebuck and
158a
Co. and does not operate the retail business or service the Plaintiffs lawnmower, and refers to
the responses of Sears Roebuck and Co. who does operate the retail business in question.
Plaintiff next objects to the answers provided by Sears, Roebuck and Co.
However, we find that the responses of Sears, Roebuck and Co. adequately respond to the
requests for discovery. For example, Sears, Roebuck and Co. responded to the questions as
asked. The fact the Plaintiff does not like the answer given, or expected more information than
given, or now argues that he meant a broader request for information than what was interpreted
by the Defendant, will not entitle the Plaintiff to relief. We found several of the questions to be
repetitive to ones previously asked by the Plaintiff, and others that have triggered additional
questions by the Plaintiff. However, that does not mean the questions were not adequately
answered by the Defendant. Much of the information requested appears irrelevant to a dispute
over this particular used lawnmower, or is able to be gathered by way of a deposition. If Plaintiff
does not know who to depose, then he can request a corporate designee, or manager of the Sears
store in question. We find all of the requests were adequately answered as to what was asked.
Finally, we note the Plaintiff has now issued more than twenty-five (25)
interrogatories total in this case. Although not raised as an objection by the Defendant, we
remind the Plaintiff of the local rules limiting the total number of interrogatories to twenty-five
(25), including subparts. The Plaintiff should be guided accordingly.
Circulate 0/2018 Pk
C64,0 I 9
175a
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JOHN J. LATZANICH, II, : NO. 8634 CIVIL 2015
Plaintiff
vs,
SEARS ROEBUCK AND CO., et al,,
DEFENDANTS'
Defendants MOTION FOR SUMMARY JUDGMENT
OPINION
Defendants Sears, Roebuck and Co. and Sears Holding Corporation (Defendants)
filed a Motion for Summary Judgment. The other Defendants are Does 2-10, and have not been
identified. Plaintiff seeks damages for Count I - Rescission; Count II - Negligent/Intentional
Misrepresentation; Count III - Violation of Pennsylvania Unfair Trade Practices Act; and, Count
IV - Breach of Express and Implied Warranties.
The purpose of summary judgment is to resolve matters based upon pleadings
when a trial would be unnecessary because "a party lacks the beginnings of evidence to establish
or contest a material issue." Eitel v. Patriot -News Co., 544 Pa. 93, 674 A.2d 1038, 1042 (1996).
Summary judgment is appropriate when, at the closing of pleadings there is 1) no genuine issue
as to material fact or 2) when the party bearing the burden of proof has failed to prove sufficient
176a
evidence to prove the facts of the case. Pa.R.C.P. 1035.2. A material fact is one which affects
the outcome of the case. Beach v. Burns Ints1 Security Services, 593 A.2d 1285, 1286 (Pa. Super.
1991). The moving party has the burden of proving no issue of merit exists. Kafando v. Erie
Ceramic Arts Co. 764 A.2d 59, 61 (Pa. Super. 2000). Evidence is viewed in the light most
favorable to the non-moving party. Grandelli v. Methodist Hospital, 2001 Pa. Super. 155, ¶10,
777 A.2d 1138, 1144 (2001). In order to grant summary judgment, the non-moving party must
have failed "to adduce sufficient evidence on an issue essential to his case upon which he bears
the burden of proof such that no jury could return a verdict in his favor." Grandelli at 1143.
Summary judgment is only appropriate when after pleadings have closed there remains no
question that a jury would not return a verdict contrary to the moving party.
Plaintiff alleges a cause of action for Rescission, Negligent and Intentional
Misrepresentation, Violation of the Pennsylvania Unfair Trade Practices Act and Breach of
Express and Implied Warranties: The basis for the claim is Plaintiffs purchase of a used lawn
mower from the Sears store located in Stroudsburg, Pennsylvania on July 10, 2012. The lawn
mower was covered by a two-year warranty. Plaintiff brought the lawnmower back to Sears for
a repair of the self-propelled drive mechanism on May 2, 2014. The lawnmower was repaired
and Plaintiff picked it up on June 15, 2014. The lawnmower repairs were covered under
warranty at no charge to the Plaintiff. Repair records confirm the Plaintiff was only charged for a
new blade and belt that were not covered under warranty. (Plaintiffs Brief, Exh. 4). Plaintiff
continued to use the lawnmower for the rest of 2014. The warranty expired on July 10, 2014.
Plaintiff raises the Magnuson -Moss Act in his brief; however, there was no cause of action for it in his Complaint
and it will not be considered now.
2
177a
Plaintiff encountered problems with the lawnmower in the spring of 2015 and again requested
repairs by Sears under the warranty. Sears gave the Plaintiff an estimate of $150 for the repairs
as the lawnmower was no longer covered under the warranty. This estimate was about $22 more
than what the cost of the previous repairs would have been if not under warranty. (Plaintiff's
Brief, Exh. 4). Plaintiff declined to have Sears repair the lawnmower and subsequently filed this
suit on November 12, 2015. A Complaint was first filed in the Monroe County, Pennsylvania
Court of Common Pleas. The matter was briefly removed to Federal Court during which time
Plaintiff filed a First Amended Complaint. The matter was then transferred back to Monroe
County, PA. Plaintiff seeks damages, attorney's fees, punitive damages and an injunction
prohibiting Sears from selling lawnmowers in Pennsylvania.
Defendants filed this Motion for Summary Judgment and a brief on September
21, 2017. Plaintiff filed a brief on October 10, 2017 opposing the Motion.2 Count I of the
Amended Complaint seeks rescission. This is an equitable remedy to be granted only when the
parties to a contract can be placed in their former positions prior to undertaking the contractual
terms. Sullivan v. Allegheny Ford Truck Sales. Inc., 283 Pa. Super. 351, 423 A.2d 1292 (1980).
Plaintiff seeks a unilateral rescission of the contract due to misrepresentations by
the Defendants as to quality of the product. Misrepresentation, or fraudulent conduct, requires a
showing that 1) a representation was made; 2) about a material aspect of the transaction; 3) that
was falsely made with knowledge or reckless disregard of the truth; 4) with an intent to mislead
the other party; 5) justifiable reliance on the misrepresentation; and, 6) a resulting injury caused
2We will treat Plaintiffs brief as the response to the Motion for Summary Judgment required by the Rules of Civil
Procedure.
3
178a
by that reliance. See Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994). In this case, Plaintiff has failed to
put forth any facts in support of fraudulent conduct necessary for rescission.
Plaintiff argues the false representation was the Defendants' claim that Craftsman
lawnmowers, like the one sold to Plaintiff, are a quality and durable product. Plaintiff alleges
these assertions were made by an unidentified clerk employed by Defendant when Plaintiff
purchased the subject lawnmower.3 These are assertions made solely by the Plaintiff. There is
no evidence cited that such representations were made, other than Plaintiffs own testimony, nor
that such statements were false, nor intended to mislead. Plaintiffs allegations are based upon
his experience with the subject lawnmower. He admits the following: that he went to Sears and
bought a used lawnmower; that he was advised by a Sears employee that the self-propelled drive
mechanism had previously failed and been repaired; that the lawnmower came with a warranty;
and, that Craftsman products are known for quality and durability. Nearly two (2) years after
purchase, the self-propelled drive mechanism failed and Plaintiff had it repaired under warranty.
The self-propelled drive mechanism then allegedly failed again nine (9) months later after the
warranty expired.
Plaintiffs own allegations confirm he was advised of a prior problem and that
Sears believed it had been repaired. There is nothing misleading or false under those facts. Even
if a clerk had stated that Craftsman lawnmowers are quality and durable products, Plaintiff has
advanced no facts to show this is either misleading or false. The fact that this particular
lawnmower needed to be repaired in the future, even if for the same problem, is not proof of
3 Plaintiff argues he has been unable to identify the clerk's identity because Sears refuses to name the clerk;
however, Sears has indicated they are unable to do so based upon their records. The issue is moot because even if
the clerk made such statements, there is no proof it was false or misleading.
4
179a
false or misleading statements about the quality or durability of a whole line of products.
Plaintiff has no evidence that the mower was per se defective, or that Defendants knew or should
have known it was defective when they sold it or that Defendants knew or should have known
that this lawnmower was not a quality product. Plaintiff confirms Defendants told him about the
prior repair before the sale to him. There are no facts to support Plaintiff's contention of false or
misleading statements about the quality of Craftsman products, or the history and quality of this
particular lawnmower, especially in light of Defendant's disclosure of the prior repair to the self-
propelled drive mechanism. Therefore, summary judgment in favor of the Defendants on the
claim for rescission is appropriate.
Plaintiff also seeks damages for negligent and intentional misrepresentation.
Intentional misrepresentation requires the same legal showing as common law fraud. Id.
Negligent misrepresentation requires: 1) a misrepresentation of a material fact; 2) the
misrepresentation is made with knowledge thereof, or should have known of its falsity; 3) the
misrepresentation is made with the intent of inducing the other to act on it; and, 4) injury results
because of the justifiable reliance on the misrepresentation. Id. Here, Plaintiff has failed to set
forth any facts of intentional or negligent misrepresentation. As set forth above in the discussion
concerning rescission, Plaintiff was advised of the prior repair history. There is no evidence
Defendants knew the lawnmower was defective or that they should have known the lawnmower
was actually defective or that the Craftsman lawnmower is not a quality and durable product.
For the same reasons as above, summary judgment in favor of the Defendants on the claim of
negligent and/or intentional misrepresentation will be granted.
5
180a
Count III of Plaintiff's Amended Complaint alleges a breach of warranty
constituting a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection
Law. ("UTPCPL"). The basis for the claim as alleged in the Amended Complaint is that the
UTPCPL, 73 Pa. CSA §201.1 et seq., "... prohibits Defendant Sear (sic) from misrepresenting
its products and prohibits confusion of or misleading the origin of said goods." (Plaintiffs First
Amended Complaint, para. 33). In other words, Plaintiff has only sought relief under the Act for
misrepresentation. There are no allegations therein for violation of the UTPCPL for breach of
warranty or for violation of the Magnuson -Moss Act as argued in Plaintiff's brief. Therefore,
only the claim for violation of the UTPCPL for misrepresentation, or fraud, will be considered
for purposes of the summary judgment motion.
Plaintiff argues in his brief that the Defendants fraudulently marketed and sold a
defective product. This is based upon Plaintiff's own experience with the lawnmower he
purchased. This is not predicated on other sales, and such other sales are not relevant to this
particular purchase. Plaintiff cites various arguments in his brief to support misrepresentation
and fraud that he believes is a violation of the UTPCPL and reasons he has been hampered in his
efforts to show proof thereof. However, there is only one fact at issue: whether or not there was
a misrepresentation or fraud at the time of sate of the lawnmower to the Plaintiff. All other
issues argued are irrelevant and/or fail to prove the fact at issue, even if accepted as true. As
previously noted, Plaintiff admits he was advised of a prior problem and repair of the
lawnmower's self-propelled drive mechanism. The lawnmower was represented and sold as a
used product, with a representation made about the prior repair, and a two-year warranty was
given to the Plaintiff. The drive mechanism needed to be repaired within two (2) months of the
6
181a
expiration of the warranty and it was done at no charge for the warranty items. It is alleged that
the drive mechanism needed additional repairs the following year.
Other than the fact that the drive system failed, no other facts have been put
forward by the Plaintiff to support his claims of misrepresentation and fraud. There are no
expert reports setting forth the reasons for the drive mechanism failure. There are no facts to
show that Sears misrepresented or lied about either: I) the condition of the lawnmower when
sold to the Plaintiff, other than Plaintiffs own belief of such; or, 2) the reason for the repair that
was disclosed to Plaintiff; or 3) the fact that it was a used lawnmower that came with the same
warranty as if sold new. (See Defendants' Motion, Exh. D). Even assuming the allegations of
the Plaintiff are true, there are no facts that support a misrepresentation or fraudulent conduct
about the drive mechanism of this particular lawnmower. The general statements, advertising, or
stated reputation for quality and durable products cannot prop up a claim for misrepresentation
without actual proof. The two repairs to the lawnmower after purchase is not enough to prove
misrepresentation or fraud concerning the condition or performance of the Plaintiff's
lawnmower. As such, there can be no violation of the UTPCPL. Summary judgment will be
granted as to Count III.
Plaintiffs final claim in the Amended Complaint is for breach of implied and
express warranties. Plaintiff argues in his brief that the express warranty was breached by failing
to provide Plaintiff with the warranty at time of sale. It appears in this case that the warranty
provided was an extension of the original two-year warranty set forth in the owner's manual for
this make and model lawnmower sold by Sears. Even though this lawnmower was a used
lawnmower, Sears gave the same two-year warranty from time of sale to Plaintiff that comes
7
182a
the written warranty
with a new lawnmower. (See Defendants' Motion, Exh. D). Whether
purchase is not relevant
information and owner's manual were given to the Plaintiff at time of his
or not Sears breached an implied or
to a breach of warranty claim. Rather, the issue is whether
to provide the written
express warranty by failing to honor such warranty. Therefore, failure
warranty,
warranty at time of sale, even if true, is not a breach of an express
Breach of implied warranty presumes products will be free of substantial
defects
for a reasonable amount of time. 13 Pa. C.S.A. §2315; Allen-Mvland, Inc. et al vs Garrnin
is a failure to honor a
International. Inc., et al, 2016 Pa. Super. 107. Breach of express warranty
written or oral warranty given at time of sale, 13 Pa. C.S.A. §2313;
AllenW/1nd, Inc, supra.
for repairs for two years
To address the express warranty first, the lawnmower was warranted
July 10, 2012. It was presented
from the date of sale to the Plaintiff. The lawnmower was sold
to the Plaintiff for warranty
for repairs under warranty May, 2014, and was repaired at no charge
items. The lawnmower was presented for repairs again in the spring
of 2015, after the expiration
of the warranty on July 10, 2014. A breach of express warranty can only occur if a product is
Here, Sears performed
presented for repairs and denied during the term of the warranty period.
for warranty items. Sears
all repairs requested during the term of the warranty with no charge
had expired. Under the
refused to perform repairs under the warranty in 2015 after the warranty
warranty.
uncontested facts as presented, there can be no breach of an express
Plaintiff asserts various arguments why the express warranty should still apply
prior to his purchase for
after the two-year term. He cites the fact the lawnmower was repaired
the same problem he later encountered. However, anything occurring
prior to his purchase is
also states he was unaware
irrelevant to a breach of express warranty given to him. The Plaintiff
8
183a
of the warranty term. Even if this is true, it does not change the express warranty given to him.
Furthermore, if the warranty period and terms were important to him, he should have inquired
further at time of purchase. In fact, Plaintiff stated in his deposition that he believed the
warranty ran from the time that was remaining on the warranty given at time of initial purchase
(prior to him) which he believed could have been a two-year, or a three-year, or a one-year. He
thought the warranty was whatever was left following the original sate. Plaintiff could not recall
if he saw anything in writing. (See Defendants' Motion Exh. B, deposition p. 25 lines 1-6).
Plaintiff has the burden of proving at time of trial the existence of an express warranty and
breach thereof, yet he could not recall with certainty what the terms of the warranty were on the
lawnmower. Based upon Exhibit D of Defendants' Motion, the warranty was clearly for two (2)
years from the date of Plaintiff's purchase, and Plaintiff has produced no evidence to the
contrary.
Plaintiff also argues the length of time it took to perform the first repair after he
owned the lawnmower, and the subsequent need for another repair the following year, somehow
constitutes a breach of express warranty. There can be no breach of express warranty simply
because it took Sears four (4) weeks to repair the lawnmower in May 2014. There is nothing in
the warranty itself, or agreed to by the parties, that repairs will occur within a certain period of
time. Plaintiff argues he was inconvenienced and had to buy a second lawnmower. The fact that
Plaintiff bought a second lawnmower during the period the lawnmower at issue was being
repaired makes good sense. Lawnmowers routinely break down, there are only so many
locations servicing lawnmowers, and delays can occur. It is prudent to have a contingency plan
if one mows their lawns regularly. Interestingly, Plaintiff acknowledges in his brief that "Sears
9
184a
probably just needed to put a belt on this defective self-propelled mechanism which would have
taken 10 minutes ..." That begs the question of how a lawnmower could be defective if it only
needed a belt. Nonetheless, Plaintiff offers no evidence to support a claim for breach of express
warranty in the arguments and facts set forth.
Plaintiff's claim for breach of implied warranty rests with the alleged defective
nature of the lawnmower, and likelihood repairs would continue to be needed. First, Plaintiff has
offered no evidence, other than his own lay opinion, that the product is defective. His argument
is that three (3) repairs of the drive shaft over a period of at least three (3) years is enough to
prove it is defective. First, that assumes it was the same problem each time. It also assumes that
it was a defect in the lawnmower, and not a wear and tear or maintenance issue. Plaintiff has
offered no expert testimony as to the reason for the malfunction, or that there is actually a defect
in the product. There could be numerous other reasons for the issue such as wear and tear,
excessive terrain being mowed, bad belts, etc. Plaintiff himself stated in his brief that Sears
"probably just needed to put a belt on ...". Without expert testimony, or some other evidence
besides his own testimony, Plaintiff cannot prove a defect just because repairs were needed,
when there could be any number of causes.
Furthermore, it cannot be said that such problems arose in an unreasonable period
of time. Again, Plaintiff offers no expert testimony or other evidence in support of this
allegation. Also, this was a used lawnmower, sold for $200, with the representation it had the
drive mechanism repaired prior to sale. There was no evidence as to how old the lawn mower
already was at time of sale to the Plaintiff. There was no evidence of the amount or kind of use
prior to the sale to Plaintiff. The drive mechanism failed one time near the end of the warranty
10
185a
period. It allegedly failed in some manner nine (9) months later after regular use.
There was no
expert testimony or other proof what the problem was with the lawnmower. We
cannot say that
the time period in which repairs were needed is an unreasonable amount of time for this
particular brand and/or model lawnmower or any brand or model of lawnmower.
Lawnmowers
break and/or need service for a variety of reasons. Without evidence of an actual
defect, or
testimony from an expert as to the cause for repairs or the unreasonableness of the time period
in
which repairs were necessary, there are no facts to support a breach of implied warranty.
Therefore, summary judgment is appropriate as to the claims of breach of express and
implied
warranty. As all claims are being dismissed against Defendants Sears, and no Do,es 2-10
have
been identified, the suit will be dismissed. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4395316/ | Matter of George L. v Karen L. (2019 NY Slip Op 03661)
Matter of George L. v Karen L.
2019 NY Slip Op 03661
Decided on May 9, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 9, 2019
Sweeny, J.P., Gische, Tom, Gesmer, Singh, JJ.
9247 9246
[*1]In re George L., Petitioner-Respondent,
vKaren L., Respondent-Appellant.
In re Karen L., Petitioner-Appellant,
vGeorge L., Respondent-Respondent.
Daniel R. Katz, New York, for appellant.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent.
Karen Freedman, Lawyers for the Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the children.
Appeals from orders, Family Court, New York County (Gail A. Adams, Referee), entered on or about February 8, 2018, which dismissed, without prejudice, appellant mother's petition for custody, and, after an inquest, granted the father's petition, awarding him custody of the subject children, unanimously dismissed, without costs, as taken from nonappealable orders.
No appeal lies from either of the February 8, 2018 orders, because both were entered on default, and the petitioner-mother made no motion to vacate either default (CPLR 5511; see e.g. Matter of Daleena T. [Wanda W.], 145 AD3d 628, 629 [1st Dept 2016]). Even if the mother had a meritorious challenge to the Referee's jurisdiction to hear and determine the matter in the absence of her consent, she was required her to move to vacate her default prior to raising that challenge (see Matter of Newmann-Werth v Werth, 165 AD3d 1147, 1148 [2d Dept 2018]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2019
CLERK | 01-03-2023 | 05-09-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4125269/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
204
CAF 16-00027
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF JUSTIN E. KIEFFER,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
DELEMA DEFRAIN, RESPONDENT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (MATTHEW J. PORTER OF
COUNSEL), FOR PETITIONER-RESPONDENT.
RUTHANNE G. SANCHEZ, ATTORNEY FOR THE CHILD, WATERTOWN.
Appeal from an order of the Family Court, Jefferson County (Diana
D. Trahan, R.), entered August 24, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted joint
custody of the subject child to the parties, with primary physical
residence to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the tenth ordering
paragraph and as modified the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that, inter alia,
modified a prior order entered on stipulation of the parties by
awarding petitioner father primary physical residence of the parties’
child. Contrary to the mother’s contention, we conclude that Family
Court properly determined that the father met his burden of
establishing a change in circumstances sufficient to warrant an
inquiry into whether a change of custody is in the best interests of
the child (see Matter of Murphy v Wells, 103 AD3d 1092, 1093, lv
denied 21 NY3d 854; Matter of Markey v Bederian, 274 AD2d 816,
817-818; Matter of Brewer v Whitney, 245 AD2d 842, 843). Contrary to
the mother’s further contention, there is a sound and substantial
basis in the record for the court’s determination that it is in the
child’s best interests to award the father primary physical residence
of the child and to award visitation with the mother (see Matter of
Tuttle v Tuttle, 137 AD3d 1725, 1726; see generally Eschbach v
Eschbach, 56 NY2d 167, 171-174). In addition, we reject the mother’s
contention that she was denied effective assistance of counsel (see
Matter of Nicholson v Nicholson, 140 AD3d 1689, 1690, lv denied 28
-2- 204
CAF 16-00027
NY3d 903; Matter of Brown v Gandy, 125 AD3d 1389, 1390).
We agree with the mother, however, that the court erred in sua
sponte ordering that the father shall have the right to relocate the
residence of the child anywhere in the continental United States with
30 days’ notice to the mother inasmuch as that relief was not
requested by the parties or the Attorney for the Child (see Matter of
Irons v Schneller, 258 AD2d 652, 653; see generally Matter of Majuk v
Carbone, 129 AD3d 1485, 1485-1486). We therefore modify the order
accordingly.
Entered: February 10, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126163/ | United States Court of Appeals
for the Federal Circuit
______________________
CHANGZHOU HAWD FLOORING CO., LTD.,
DUNHUA CITY JISEN WOOD INDUSTRY CO.,
LTD., DUNHUA CITY DEXIN WOOD INDUSTRY
CO., LTD., DALIAN HUILONG WOODEN
PRODUCTS CO., LTD., KUNSHAN YINGYI-
NATURE WOOD INDUSTRY CO., LTD., KARLY
WOOD PRODUCT LIMITED, FINE FURNITURE
(SHANGHAI) LIMITED, LUMBER LIQUIDATORS
SERVICES, LLC, ARMSTRONG WOOD PRODUCTS
(KUNSHAN) CO., LTD.,
Plaintiffs-Appellants
HOME LEGEND, LLC,
Plaintiff
v.
UNITED STATES, THE COALITION FOR
AMERICAN HARDWOOD PARITY,
Defendants-Appellees
______________________
2015-1899, 2015-1901, 2015-1903, 2015-1904
______________________
Appeals from the United States Court of International
Trade in No. 1:12-cv-00020-DCP, Judge Donald C. Pogue.
______________________
Decided: February 15, 2017
______________________
2 CHANGZHOU HAWD FLOORING CO. v. US
JEFFREY S. GRIMSON, Mowry & Grimson, PLLC,
Washington, DC, argued for all plaintiffs-appellants.
Plaintiff-appellant Fine Furniture (Shanghai) Limited
also represented by KRISTIN HEIM MOWRY, JILL A.
CRAMER, SARAH M. WYSS.
GREGORY S. MENEGAZ, DeKieffer & Horgan, PLLC,
Washington, DC, for plaintiffs-appellants Changzhou
Hawd Flooring Co., Ltd., Dunhua City Jisen Wood Indus-
try Co., Ltd., Dunhua City Dexin Wood Industry Co., Ltd.,
Dalian Huilong Wooden Products Co., Ltd., Kunshan
Yingyi-Nature Wood Industry Co., Ltd., Karly Wood
Product Limited. Also represented by JAMES KEVIN
HORGAN, ALEXANDRA H. SALZMAN.
ARTHUR K. PURCELL, Sandler Travis & Rosenberg,
P.A., New York, NY, for plaintiff-appellant Lumber Liq-
uidators Services, LLC. Also represented by MARK
LUDWIKOWSKI, KRISTEN SMITH, Washington, DC;
MICHELLE L. MEJIA, Chicago, IL.
HAROLD DEEN KAPLAN, Hogan Lovells US LLP, Wash-
ington, DC, for plaintiff-appellant Armstrong Wood Prod-
ucts (Kunshan) Co., Ltd. Also represented by CRAIG
ANDERSON LEWIS.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States.
Also represented by BENJAMIN C. MIZER, JEANNE E.
DAVIDSON, CLAUDIA BURKE; SHELBY ANDERSON, Office of
Chief Counsel for Trade Enforcement and Compliance,
United States Department of Commerce, Washington,
DC.
JEFFREY STEVEN LEVIN, Levin Trade Law PC, Bethes-
da, MD, for defendant-appellee The Coalition for Ameri-
can Hardwood Parity.
CHANGZHOU HAWD FLOORING CO. v. US 3
______________________
Before LOURIE, TARANTO, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
This case arises from the U.S. Department of Com-
merce’s antidumping-duty investigation of multilayered
wood flooring imports from the People’s Republic of Chi-
na. The appellants here are Chinese entities that Com-
merce found had demonstrated their independence from
the Chinese government and so deserved a “separate”
antidumping-duty rate, not the so-called China-wide rate
that applies to entities that had not shown their inde-
pendence from the Chinese government. Commerce did
not individually investigate appellants to determine firm-
specific dumping margins. Instead, it assigned them a
rate that, though not specified numerically, was declared
to be more than de minimis, even though it found zero or
de minimis dumping margins for all three of the Chinese
firms that it had individually investigated. The Court of
International Trade affirmed that determination.
Appellants contend that they are entitled to a de min-
imis rate. After the Court of International Trade ren-
dered its decision in this case, our court made clear that
the “separate rate” method used by Commerce here is a
departure from the congressionally approved “expected
method” applicable when all of the individually investi-
gated firms have a zero or de minimis rate, which is the
case here, and that certain findings are necessary to
justify such a departure. Albemarle Corp. & Subsidiaries
v. United States, 821 F.3d 1345, 1348 (Fed. Cir. 2016).
Under the “expected method,” appellants would be enti-
tled to a de minimis rate. Because Commerce did not
make the findings needed to justify departing from the
expected method, we vacate the Court of International
Trade’s judgment, and we remand.
4 CHANGZHOU HAWD FLOORING CO. v. US
I
In 2010, the Department of Commerce initiated an
antidumping-duty investigation of multilayered wood
flooring from China, based on a petition filed by the
Coalition for American Hardwood Parity under 19
U.S.C. § 1673a(b). Multilayered Wood Flooring from the
People’s Republic of China: Initiation of Antidumping
Duty Investigation, 75 Fed. Reg. 70,714 (Dep’t of Com-
merce Nov. 18, 2010). In order to select particular Chi-
nese firms to be individually investigated as mandatory
respondents, Commerce sent questionnaires to the Chi-
nese exporters and producers identified in the petition,
asking about the quantities and value of the goods at
issue sent to the United States. Id. at 70,717–18. Of the
190 recipients of the questionnaire, 80 timely responded.
Multilayered Wood Flooring from the People’s Republic of
China: Preliminary Determination of Sales at Less Than
Fair Value, 76 Fed. Reg. 30,656, 30,657 (Dep’t of Com-
merce May 26, 2011). Commerce selected “the three
largest exporters (by volume)” as mandatory respondents.
Id. at 30,658. Although several firms offered to be indi-
vidually investigated as voluntary respondents, id., the
three mandatory respondents are the only firms that
Commerce individually investigated in this investigation.
See Changzhou Hawd Flooring Co. v. United States, 44 F.
Supp. 3d 1376, 1389 n.31, 1390 (Ct. Int’l Trade 2015).
Commerce deems China to be a nonmarket economy,
and it presumes that each Chinese exporter and producer
is state-controlled, and thus covered by a single China-
wide antidumping-duty rate, but a firm may rebut the
presumption. See Changzhou Wujin Fine Chem. Factory
Co. v. United States, 701 F.3d 1367, 1370 (Fed. Cir. 2012).
Here, Commerce determined that 74 firms established
their independence from the Chinese government. See
Multilayered Wood Flooring from the People’s Republic of
China: Final Determination of Sales at Less Than Fair
Value, 76 Fed. Reg. 64,318, 64,321–22 (Dep’t of Commerce
CHANGZHOU HAWD FLOORING CO. v. US 5
Oct. 18, 2011). For those 74 firms—not individually
investigated, but not covered by the China-wide rate—
Commerce had to calculate a “separate rate.”
Commerce published its Final Determination on Oc-
tober 18, 2011, finding that the subject merchandise was
being sold at less than fair value (dumped) in the United
States. Id. at 64,318. Commerce determined that one of
the three mandatory respondents had a de minimis
dumping margin, but it assigned margins of 3.98% and
2.63% to the other two mandatory respondents. See id. at
64,323. After a voluntary remand from the Court of
International Trade, Commerce revised the mandatory
respondents’ dumping margins, finding all three to be
zero or de minimis. J.A. 101941. Commerce calculated
the “separate rate,” not by simply using the zero/de mini-
mis rates for the three mandatory respondents, but by
averaging those three zero figures with the 25.62% rate it
adopted as the China-wide rate—yielding a separate rate
of 6.41%. J.A. 101942.
On review, the Court of International Trade affirmed
the dumping margins for the mandatory respondents but
remanded for further explanation of how the separate
rate related to economic reality. Baroque Timber Indus.
(Zhongshan) Co. v. United States, 971 F. Supp. 2d 1333,
1336 (Ct. Int’l Trade 2014). On remand, Commerce
reasoned that the separate rate for the period of investi-
gation should not be drawn entirely from the three man-
datory respondents, all having a de minimis rate.
Commerce gave two reasons. First, Commerce said, “if
[any of] the 110 companies [that did not respond to the
quantity-and-value questionnaires] had chosen to cooper-
ate, the examined company’s rate would have been above
de minimis . . . and would have been assigned to the
separate rate plaintiffs as a separate rate in the Final
6 CHANGZHOU HAWD FLOORING CO. v. US
Determination.” J.A. 102099. 1 Second, merely as confir-
mation, Commerce pointed to the recent results of its first
administrative review under 19 U.S.C. § 1675, in which
Commerce found dumping even for imports made after
the announcement of the antidumping-duty order, not-
withstanding that “the discipline of an antidumping order
often results in lower or no margins . . . as companies may
change their pricing practices to eliminate the price
discrimination found in the period of investigation.” J.A.
102100. That result, Commerce said, confirmed the
likelihood that it would have found above-de minimis
dumping had it investigated more individual firms during
the investigation. Id. On that basis, although Commerce
did not reaffirm its 6.41% rate for the “separate rate” (not
individually investigated) Chinese entities, it declared
that they would be subject to a rate that it did not specify
but declared to be more than de minimis. 2
Appellants challenged that determination in the
Court of International Trade. That court affirmed, con-
1
Of the 110 entities that did not respond to the
quantity-and-value questionnaires, Commerce removed
one, located in Taiwan, from the investigation. J.A.
101424.
2 Commerce also determined that it need not calcu-
late a specific separate rate for all but one of the separate-
rate litigants (appellant Changzhou Hawd Flooring
Company) because “the rate determined in the first
administrative review supersedes the cash deposit rate
established in the final determination of the investiga-
tion.” J.A. 102100. As to Changzhou Hawd Flooring,
Commerce announced that it would conduct an individual
investigation, J.A. 102102, but it decided to delay the
actual investigation until after the Court of International
Trade reviewed the remand determination. See Chang-
zhou Hawd Flooring, 44 F. Supp. 3d at 1382 & n.13.
CHANGZHOU HAWD FLOORING CO. v. US 7
cluding that “Commerce’s determination regarding the
group . . . is based on a reasonable reading of the law and
record evidence.” Changzhou Hawd Flooring, 44 F. Supp.
3d at 1380. The court held that Commerce’s methodology
was permissible because the statute allows “any reasona-
ble method.” Id. at 1384. After one further remand,
which brought Changzhou Hawd Flooring within the
“separate rate” applicable to government-independent but
not individually investigated firms, the Court of Interna-
tional Trade entered a final judgment. Changzhou Hawd
Flooring Co. v. United States, 77 F. Supp. 3d 1351, 1359–
60 (Ct. Int’l Trade 2015). 3
Appellants, who are separate-rate entities, have time-
ly appealed the above-de minimis separate rate, arguing
for a de minimis separate rate. They assert that, alt-
hough no rate was numerically specified, the assignment
of an above-de minimis rate harms them because it sub-
jects them to the antidumping-duty order and its continu-
ing consequences, including subsequent periodic reviews
under 19 U.S.C. § 1675, whereas assigning them a de
minimis rate in this investigation would remove them
from the order and relieve them from its consequences.
See 19 C.F.R. § 351.204(e)(1) (excluding from final deter-
mination “any exporter or producer for which the Secre-
3 In Changzhou Hawd Flooring, 44 F. Supp. 3d at
1390, the court held to be arbitrary and capricious Com-
merce’s decision to conduct a full individual investigation
of Changzhou Hawd Flooring so late in the investigation.
On remand, Commerce applied the same above-de mini-
mis but unspecified separate rate to Changzhou Hawd
Flooring that it applied to the other separate-rate firms.
The Court of International Trade approved that decision.
Changzhou Hawd Flooring, 77 F. Supp. 3d at 1359.
Commerce does not challenge the rejection of its attempt
to individually investigate Changzhou Hawd Flooring.
8 CHANGZHOU HAWD FLOORING CO. v. US
tary determines an individual weighted-average dumping
margin . . . rate of zero or de minimis”); Dupont Teijin
Films USA, LP v. United States, 407 F.3d 1211, 1216
(Fed. Cir. 2005); Tung Mung Dev. Co. v. United States,
354 F.3d 1371, 1375 n.3 (Fed. Cir. 2004); see also 19
U.S.C. §§ 1673b(b)(3), 1673d(a)(4) (disregarding weighted
dumping margin that is de minimis). Commerce does not
disagree that appellants have a stake in challenging the
above-de minimis rate. We have jurisdiction under 28
U.S.C. § 1295(a)(5).
II
“Commerce’s determination will be sustained unless it
is unsupported by substantial evidence on the record, or
otherwise not in accordance with law.” Yangzhou Bestpak
Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1377
(Fed. Cir. 2013); 19 U.S.C. § 1516a(b)(1)(B)(i). Appellants
argue that Commerce erred by not relying on the three
mandatory respondents’ zero/de minimis rates to generate
a de minimis “separate rate.” We agree that Commerce
has not justified its departure from that method.
In investigations involving exporters from market
economies, 19 U.S.C. § 1673d(c)(5) establishes the method
for determining the rate for entities that are not individu-
ally investigated, the so-called all-others rate. Commerce
has relied on that statutory provision in determining the
separate rate for exporters and producers from nonmarket
economies that demonstrate their independence from the
government but that are not individually investigated.
See Albemarle, 821 F.3d at 1348.
The statute says that where the “estimated weighted
average dumping margins established for all exporters
and producers individually investigated are zero or de
minimis margins, or are determined entirely under [19
U.S.C. § 1677e],” Commerce “may use any reasonable
method to establish the estimated all-others rate for
exporters and producers not individually investigated,
CHANGZHOU HAWD FLOORING CO. v. US 9
including averaging the estimated weighted average
dumping margins determined for the exporters and
producers individually investigated.” 19 U.S.C.
§ 1673d(c)(5)(B). But the Statement of Administrative
Action accompanying the Uruguay Round Agreements
Act—which Congress has deemed “authoritative,” 19
U.S.C. § 3512(d)—states that the “expected method” is to
“weight-average the zero and de minimis margins and
margins determined pursuant to the facts available,
provided that volume data is available.” Uruguay Round
Agreements Act, Statement of Administrative Action,
H.R. Rep. No. 103-316, vol. 1, at 873 (1994), reprinted in
1994 U.S.C.C.A.N. 4040, 4201 (quoted in Albemarle, 821
F.3d at 1352 & n.5). 4 If Commerce reasonably concludes
that “this method is not feasible” or would result “in an
average that would not be reasonably reflective of poten-
4 The language of “margins determined pursuant to
the facts available” refers to margins determined under
19 U.S.C. § 1677e. The statutory context, 19 U.S.C.
§ 1673d(c)(5)(B), makes clear that the language refers to
margins so determined for firms that are individually
investigated. Commerce has not suggested that, in the
present case, there are any such § 1677e-based margins to
be included in the average. Thus, only “zero and de
minimis margins” are part of the average here.
In this respect, the case is unlike Yangzhou Bestpak
Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed.
Cir. 2013), where Commerce calculated a “separate rate”
by averaging the two individually investigated firms’
rates—one de minimis, the other a high § 1677e-based
rate. This court held Commerce’s result to be unreasona-
bly high on the record in the particular case. Id. at 1377–
81. Here, in contrast, there is no issue of an unreasonably
high average of the individually investigated firms’ rates;
as in Albemarle, 821 F.3d at 1349, the average in this case
is zero or de minimis.
10 CHANGZHOU HAWD FLOORING CO. v. US
tial dumping margins for non-investigated exporters or
producers,” it “may use other reasonable methods.” Id.
Albemarle explains that Congress thus expressed a
preference for the expected method, 821 F.3d at 1351–54,
a preference reflecting how Commerce selects mandatory
respondents, id. at 1353. Here, Commerce chose the
exporters whose quantity-and-value questionnaires
indicated that they were the largest exporters by volume,
as expressly authorized by 19 U.S.C. § 1677f-1(c)(2)
(2010). 5 Albemarle explains: “The very fact that the
statute contemplates using data from the largest volume
exporters suggests an assumption that those data can be
viewed as representative of all exporters.” 821 F.3d at
1353. “The statute assumes that, absent [evidence that
the largest exporters are not representative], reviewing
only a limited number of exporters will enable Commerce
to reasonably approximate the margins of all known
exporters.” Id. “[T]he representativeness of the investi-
gated exporters is the essential characteristic that justi-
fies an ‘all others’ rate based on a weighted average for
such respondents.” Id. (quoting Nat’l Knitwear & Sports-
wear Ass’n v. United States, 779 F. Supp. 1364, 1373–74
(Ct. Int’l Trade 1991)). And, recognizing that the pre-
sumption of representativeness may be overcome, Albe-
marle holds that, in order to depart from the expected
method, “Commerce must find based on substantial
evidence that there is a reasonable basis for concluding
that the separate respondents’ dumping is different.” Id.
Pointing to Albermarle’s observation that the manda-
tory respondents in that case accounted for “a majority of
the market,” id. at 1353, Commerce argues that Albe-
marle’s requirement of a showing of unrepresentativeness
for departing from the expected method does not apply
5 The section was amended in 2012, but the rele-
vant language is unchanged. 19 U.S.C. § 1677f-1(c)(2).
CHANGZHOU HAWD FLOORING CO. v. US 11
where the mandatory respondents do not account for “a
majority of the market.” Appellee’s Br. 22. But that
argument takes too narrow a view of Albemarle. The
court did not rely for its statutory analysis on the obser-
vation that the particular respondents accounted for a
“majority of the market.” It relied on the statutory stand-
ards for selecting mandatory respondents under § 1677f-
1(c)(2), which, the court held, make the mandatory re-
spondents representative unless evidence shows other-
wise. Albemarle, 821 F.3d at 1353. The statutory
standards—involving either a statistical sample, 19
U.S.C. § 1677f-1(c)(2)(A), or the largest exporters by
volume, id. § 1677f-1(c)(2)(B)—are not tied to a “majority”
share of a “market,” of the imports at issue, or any other
class or collection.
Thus, the mandatory respondents in this matter are
assumed to be representative. Under Albemarle, Com-
merce could not deviate from the expected method unless
it found, based on substantial evidence, that the separate-
rate firms’ dumping is different from that of the mandato-
ry respondents. But it has not done so.
Commerce did articulate a reason addressing firms
that did not respond to the quantity-and-value question-
naires: it said that those firms likely “would have cooper-
ated with the Department’s investigation if they could
have obtained a low rate.” J.A. 102119. But that ra-
tionale does not suggest the needed inference about the
separate-rate firms, all of which did respond to the ques-
tionnaires. Indeed, under Commerce’s reasoning, the
separate-rate firms’ decisions to respond to the question-
naires might suggest that they are more similar to other
firms, like the mandatory respondents, that responded.
And Commerce may have suggested the same when, in its
first “final determination,” it calculated the separate rate
by averaging the rates of the two mandatory respondents
that had margins above de minimis. Multilayered Wood
Flooring from the People’s Republic of China: Final De-
12 CHANGZHOU HAWD FLOORING CO. v. US
termination of Sales at Less Than Fair Value, 76 Fed.
Reg. at 64,322.
III
Because Commerce has not made the findings neces-
sary to justify departing from the “expected method” here,
we vacate the judgment of the Court of International
Trade, and we remand with instructions to remand to
Commerce for it to reconsider its separate-rate determi-
nation. We find it unnecessary to address appellants’
other challenges to the separate-rate determination.
Costs awarded to appellants.
VACATED AND REMANDED | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126019/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
2910 GEORGIA AVENUE LLC,
Plaintiff,
Civil Action No. 12-1993 (CKK)
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
(February 14, 2017)
Plaintiff 2910 Georgia Avenue LLC filed suit against the District of Columbia, Mayor
Muriel Bowser, and Polly Donaldson in her official capacity as Director of the Department of
Housing and Community Development (“DHCD”), 1 alleging that the application of the District’s
Inclusionary Zoning Program (“IZ Program”) to the development of a 22-unit condominium
building near Howard University constituted an unconstitutional taking and violated Plaintiff’s
due process and equal protection rights. Presently before the Court are Defendants’ [67]
Renewed Motion for Summary Judgment and Plaintiff’s [68] Motion for Summary Judgment.
Upon consideration of the pleadings, 2 the relevant legal authorities, and the record for the
purposes of these motions, the Court finds that Defendants are entitled to summary judgment on
1
Pursuant to Fed. R. Civ. P. 25(d), Muriel Bowser and Polly Donaldson have been
automatically substituted for Vincent C. Gray and Michael P. Kelly, whom the parties’ pleadings
name as Defendants.
2
The Court’s analysis has focused on the following documents: Defs.’ Renewed Mot. for
Summ. J. (“Defs.’ Mot.”), ECF No. 67; Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 68; Defs.’
Opp’n to Pl.’s Mot. for Summ. J. (“Defs.’ Opp’n”), ECF No. 71; Pl.’s Opp’n to Defs.’ Mot. for
Summ. J. (“Pl.’s Opp’n”), ECF No. 70; Defs.’ Reply in Support of Mot. for Summ. J. (“Defs.’
Reply”), ECF No. 72; Pl.’s Reply in Support of Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 73.
The Court has also reviewed all of the evidentiary material attached to these documents. In an
each of Plaintiff’s claims. In so finding, the Court does not intend to minimize Plaintiff’s
legitimate grievances with the District’s administration of the IZ Program, or to suggest that the
District acted perfectly at all times. The Court merely concludes that at no point did the
District’s conduct rise to the level of a violation of the United States Constitution.
First, the Court finds that the economic effect of the challenged regulations on Plaintiff’s
condominium building is not sufficient to establish a takings claim as a matter of law. Second,
Plaintiff has not established an equal protection claim because it has not demonstrated that it was
treated differently by the District than any other developer subject to the IZ Program. Third,
Plaintiff has not established a substantive due process claim because the conduct of the District
at issue demonstrates, at most, confusion or negligence; it does not approach the level of grave
unfairness or deliberate flouting of the law that is required for such a claim. Finally, Plaintiff’s
procedural due process claim also fails because Plaintiff has not established that the IZ Program
deprived Plaintiff of any protected property interests without sufficient process of law.
Accordingly, Defendants’ motion for summary judgment is GRANTED and Plaintiff’s motion is
DENIED.
I. BACKGROUND
A. The Basics of the District of Columbia IZ Program
As relevant to the parties’ dispute, the District of Columbia’s IZ Program requires that 8-
10 percent of the gross floor area of new residential developments (or substantial additions to
existing developments) in the District be used for sale or lease to eligible low- and moderate-
exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).
2
income households at certain maximum price levels. D.C. Mun. Regs. tit. 11, § 2603. 3 The
affordable units created by the program are referred to as inclusionary units (“IZ Units”). Id. §
2601.1. The District enacted the IZ Program in order to “increas[e] the amount and expand[ ] the
geographic distribution of adequate, affordable housing available to current and future
residents.” Id. § 2600.1. Under the IZ Program, “no building permit shall be issued” unless the
owner of the development subject to the IZ Program “records a covenant in the land records of
the District of Columbia that binds all persons with a property interest in any or all of the
[property] to construct and reserve the number of inclusionary units.” D.C. Code § 6-1041.05(a)
(“IZ Covenant”).
B. The History of the IZ Program Rulemaking
The IZ Program was established by the District of Columbia Zoning Commission on
August 25, 2006. Pl.’s Stmt. of Undisputed Material Facts, ECF No. 68-2 (“Pl.’s Stmt.”), ¶ 3.
The Zoning Commission delegated responsibility for developing the IZ Program to the Council
of the District of Columbia (“D.C. Council”) and the Mayor, who subsequently delegated that
authority to the Deputy Mayor for Planning and Economic Development (“Deputy Mayor”). Id.
¶¶ 3, 5; Pl.’s Mot., Ex. 3, ECF No. 68-5 (Delegation of Authority – Inclusionary Zoning
Implementation Act of 2006). The program was established pursuant to statutory authority set
forth in section 107 of the Inclusionary Zoning Implementation Amendment Act of 2006. Id. ¶
4.
Although on the books as of 2006, the IZ Program was not implemented until certain
rules and regulations were passed regarding its implementation. On April 11, 2008, the District,
3
The Court refers in this Memorandum Opinion to D.C. Municipal Regulations by the
section numbers in place during the time frame relevant to the parties’ dispute.
3
through the Deputy Mayor, issued a Notice of Proposed Rulemaking for regulations that would
implement and establish the procedures for the IZ Program. Id. ¶ 8; Pl.’s Mot., Ex. 6, ECF No.
68-8 (Notice of Proposed Rulemaking for Chapter 22 of Title 14 of the District of Columbia
Municipal Regulations, entitled “Inclusionary Zoning Implementation”). Among other things,
these regulations established the process and the requirements for obtaining building permits for
properties subject to the IZ Program. Pl.’s Stmt. ¶¶ 8, 26; Pl.’s Mot., Ex. 6. The Notice of
Proposed Rulemaking stated that “[f]inal rulemaking action shall be taken in not less than sixty
(60) days from the date of publication of this notice in the D.C. Register.” Pl.’s Mot., Ex. 6 at
1. It also stated that the “[t]he Deputy Mayor [ ] intends that the final rules shall not become
effective until ninety (90) days after publication of the Notice of Final Rulemaking in the D.C.
Register in order to allow a transition period between publication and implementation.” Id.
In the months after the Notice of Proposed Rulemaking was published, the District began
to express its concern, in a series of published resolutions, that the IZ Program was not being
implemented quickly enough. On October 21, 2008, the D.C. Council passed Resolution 17-848,
which referenced the April 11, 2008 Notice of Proposed Rulemaking and noted that “final
rulemaking, including the maximum rent and purchase price schedule [for the IZ Program] has
not been published. Because final regulations have not been promulgated . . . and the maximum
rent and purchase price schedule has not been published . . . the Inclusionary Zoning Program
has not been implemented.” Pl.’s Mot., Ex. 11, ECF No. 68-13 (D.C. Council Resolution 17-
848). This resolution also stated that “[c]ontinuing delays [in implementing the IZ Program]
have resulted in the loss of affordable mixed-income units being included in many residential
developments” and that “[e]mergency legislation is need[ed] to provide that the final rulemaking
and publication requirements for the Inclusionary Zoning Program be met expeditiously.” Id.
4
On November 18, 2008, the D.C. Council passed Resolution 17-871, again stating that
final rulemaking had not been published and again declaring an emergency as to the need to
publish final rulemaking expeditiously so as to not lose further affordable housing in new
developments. Pl.’s Mot., Ex. 12, ECF No. 68-14 (D.C. Council Resolution 17-871). This
resolution also stated that “[t]he Administration has stated that because of significant changes
that will be made to the proposed rulemaking based on comments received since the initial notice
of proposed rulemaking, a revised notice of proposed rulemaking will be published for public
comment.” Id. It also stated that “[t]he Administration has further stated that 90 days are needed
for District agencies to finalize plans for the implementation of the rules after the notice of final
rulemaking is published.” Id.
As promised, a Revised Notice of Proposed Rulemaking was then published on
December 26, 2008, incorporating certain changes to the proposed rules. Pl.’s Mot., Ex. 13, ECF
No. 68-15 (Revised Notice of Proposed Rulemaking). Of some note, the Revised Notice stated
that “[t]he Deputy Mayor . . . intends that the final rules shall not become effective until sixty
(60) days after the publication of the Notice of Final Rulemaking in the D.C. Register,” which
was thirty days less than the 90-day phase-in period envisioned in the initial proposed
rulemaking. Id. at 1. The Revised Notice also stated that it replaced the initial notice, and that
“[f]inal rulemaking action shall be taken in not less than thirty (30) days from the date of
publication of this notice.” Id.
By February 3, 2009, final rulemaking still had not been published, and the D.C. Council
adopted another emergency resolution regarding the need for final rulemaking. Pl.’s Mot., Ex.
14, ECF No. 68-16 (D.C. Council Resolution 18-22). This resolution referenced the same
emergency need for affordable housing as the emergency resolutions that predated it, and again
5
noted that “[t]he Administration . . . stated that 90 days were needed for District Agencies to
finalize plans for the implementation of the rules after the notice of final rulemaking is
published.” Id. at 1.
The Notice of Final Rulemaking for these IZ Program regulations was then published on
May 15, 2009. Pl.’s Stmt. ¶ 20; Pl.’s Mot., Ex. 18, ECF No. 68-20 (Notice of Final
Rulemaking). Plaintiff contends that when this Notice was published, it was “not known, clear,
or stated” when the rules were to become effective and applicable. Pl.’s Stmt. ¶ 20. As
discussed in more detail later in this Memorandum Opinion, a number of Plaintiff’s legal
arguments are premised on this claim. This claim is not, however, supported by the record, and
the Court rejects it at the outset. The Notice stated that “[t]hese final rules shall become effective
on the date of publication of this notice in the D.C. Register, but . . . shall not become applicable
until ninety (90) days after such publication or the date on which the final Maximum Rent and
Price Schedule is published in the D.C. Register, whichever is later.” Pl.’s Mot., Ex. 18 at 1. It
is undisputed that the maximum rent and price schedule was published in the D.C. Register on
August 14, 2009. Pl.’s Stmt. ¶ 20; Pl.’s Mot., Ex. 19, ECF No. 68-21 (Inclusionary Zoning
Affordable Housing Program Maximum Rent and Purchase Price Schedule). Accordingly, the
final rules became effective on August 14, 2009, after the lengthy notice and comment process
described above and a significant “phase-in” period after publication of the Notice of Final
Rulemaking.
Amendments to the IZ Program regulations were later made, but Plaintiff has provided
absolutely no reason why the Court should excuse Plaintiff from having been on notice that the
IZ Program was generally applicable, in all ways relevant to this case, as of August 14, 2009.
On August 28, 2009, the Deputy Mayor published a Notice of Emergency and Proposed
6
Rulemaking, which gave notice of proposed amendments to the IZ Program rules. Pl.’s Stmt. ¶¶
24-25; Pl.’s Mot., Ex. 21, ECF No. 68-23 (Notice of Emergency and Proposed Rulemaking).
Plaintiff does not contend that these amendments are relevant to the applicability of the program
to Plaintiff or to the claims in this case. The emergency rulemaking notice stated that the
changes were needed to “fully implement” the IZ Program, but expressly acknowledged that the
IZ rules had otherwise already been “previously adopted” and had an “August 14, 2009 effective
date.” Pl.’s Mot., Ex. 21 at 1. Accordingly, although the Notice of Final Rulemaking for these
amendments was not published until December 11, 2009, and became effective immediately on
that date, Pl.’s Mot., Ex. 22, ECF No. 68-24 (Notice of Final Rulemaking), the IZ Program had
otherwise, in all ways relevant to this case, already been in effect since August 14, 2009.
C. Plaintiff’s Experience with the IZ Program
Plaintiff is a real estate company that invests in new housing in the District of Columbia.
On November 24, 2009, over three months after the IZ Program rules became effective and
applicable in the District, Plaintiff purchased the property at 2910 Georgia Avenue, N.W. from
Howard University. Pl.’s Stmt. ¶ 19; Pl.’s Mot., Ex. 16, ECF No. 68-18 (Special Warranty Deed
for 2910 Georgia Avenue property). Plaintiff purchased the property, then a vacant lot, for
$560,000.00. Defs.’ Stmt. of Material Facts for Which There is Not Genuine Dispute, ECF No.
67-30 (“Defs.’ Stmt.”), ¶ 25. Plaintiff purchased this property with the intention of constructing
a 22-unit condominium building. Pl.’s Stmt. ¶ 19. It is undisputed that this entire development
project—the condominium building consisting of all 22 units—was a single investment for
financing and planning purposes. Defs.’ Stmt. ¶ 27.
Plaintiff subsequently, on December 23, 2009, filed a building permit application to
construct this condominium building. Pl.’s Stmt. ¶ 28. Even though the IZ Program was in
7
effect as of this date, on March 30, 2010 the D.C. Zoning Office initially indicated to Plaintiff
that the project’s zoning had been approved without requiring compliance with the IZ Program.
Id. ¶ 31. However, the office did not grant Plaintiff a building permit at this time. The parties
apparently do not dispute that communicating preliminary zoning approval without IZ
compliance was an oversight on the part of the Zoning Office, apparently due to the fact that this
was the first IZ Program building permit the office had handled. Id. ¶ 30; Pl.’s Mot., Ex. 17,
ECF No. 68-19 (January 23, 2015 Deposition of Mathew LeGrant), at 39:19-40:14.
Subsequently, however, an employee at the District’s Office of Planning discovered the mistake
and, in April, 2010, the District informed Plaintiff that its zoning approval, and accordingly its
ability to acquire a building permit, would be contingent on compliance with the IZ Program.
Pl.’s Stmt. ¶¶ 32-35. Plaintiff’s condominium building was the first development in the District
subject to the IZ Program. Id. ¶ 35.
Developments that are subject to the IZ Program are allowed to take advantage of “bonus
density,” which gives developers the option to “construct up to twenty percent (20%) more gross
floor area than permitted as a matter of right.” D.C. Mun. Regs. tit. 11, § 2604.1; see also Pl.’s
Mot., Ex. 4, ECF No. 68-6 (DHCD webpage entitled “Inclusionary Zoning Affordable Housing
Program”). Although the parties dispute Plaintiff’s reasons for not doing so, it is undisputed that,
after being told by the District in April, 2010 that its development was subject to IZ regulations,
Plaintiff did not redesign its building plans to incorporate the “bonus density” made available
under the IZ Program, opting instead to proceed forward with the building as planned. Pl.’s
Stmt. ¶ 36. Plaintiff claims that it had “no choice” in the matter because to incorporate bonus
density at this stage, “Plaintiff would have had to spend months and tens of thousands of
8
dollars,” and add more parking. Pl.’s Mot., Ex. 7, ECF No. 68-9 (June 28, 2015 Declaration of
Arthur S. Linde), at ¶¶ 8-10.
On May 14, 2010, Plaintiff subdivided the separate lots that made up the property at 2910
Georgia Avenue into a single record lot. Defs.’ Stmt. ¶ 28. On May 20, 2010, to satisfy the IZ
Program’s requirements that 8-10% of the development be used for affordable housing, Plaintiff
signed an IZ Covenant binding two of the envisioned 22 condominium units within the planned
building: Unit C-02 and Unit 2-02. Pl.’s Stmt. ¶¶ 38, 42; Pl.’s Mot., Ex. 28, ECF No. 68-30
(Plaintiff’s IZ Covenant). The building was then constructed. On September 11, 2011, after
completing construction, Plaintiff subdivided the building into 22 residential units and 11
parking units. Defs.’ Stmt. ¶ 29.
Efforts then began to locate eligible low- and moderate-income purchasers for Plaintiff’s
IZ Units. Plaintiff submitted a “Notice of Availability” to Defendants on May 12, 2011,
indicating that the two IZ Units would be available for occupancy starting on August 1, 2011.
See Defs.’ Mot., Ex. 9, ECF No. 67-9 (May 12, 2011 Notice of Availability). DHCD created a
list of eligible households or persons interested in purchasing or renting the IZ Units who self-
certified their eligibility to participate in the IZ Program. Pl.’s Stmt. ¶¶ 44-45. Using these lists,
the District subsequently went through a process of running “lotteries” and other alternative
selection procedures to identify possible buyers for the units. Id. ¶¶ 47-56.
However, for reasons the parties dispute, the effort to locate a buyer for the units was
unsuccessful for an extended period of time. Plaintiff contends that this failure was the fault of
Defendants. Predominantly, Plaintiff claims that a requirement in the IZ Covenant that the
affordability restrictions on the IZ Units were to survive any foreclosure on the property
prevented would-be purchasers from using HUD-insured mortgages. Id. ¶¶ 67-72. The record
9
shows that the District, as well as Plaintiff, was aware that there was a possibility that this aspect
of the IZ Covenant could make it difficult for participants in the IZ Program to acquire their
preferred form of financing to purchase IZ Units, but chose to make the affordability restrictions
survive foreclosure regardless. Pl.’s Mot., Ex. 15, ECF No. 68-17 (March 2011 e-mail indicating
that in 2008 or 2009 DHCD had been sent a letter explaining HUD’s policy on deed restrictions);
Pl.’s Mot., Ex. 29, ECF No. 68-31 (May 10, 2010 e-mail from Plaintiff’s manager Art Linde to
DHCD employee Anna Shapiro stating that “the covenant may be a barrier to purchaser
mortgage financing . . . we will have to wait and see how the mortgage markets react”). After
gaining experience implementing the IZ Program, the District revised the IZ Covenant in 2012 to
change this feature. Pl.’s Stmt. ¶¶ 71, 75. Plaintiff also implicates in the delay selling the IZ
Units Defendants’ failure to timely create lists of eligible buyers, understaffing, and various
other alleged “blunders” in the implementation of the IZ Program. At multiple times throughout
this period, Plaintiff requested that DHCD release it from having to comply with the IZ Program,
but DHCD declined to do so. Pl.’s Stmt. ¶¶ 60, 63, 76; see also, e.g., Defs.’ Mot., Ex. 10, ECF
No. 67-10.
For their part, Defendants contend that Plaintiff’s lack of cooperation with efforts to
market and sell the property is to blame. Defendants argue that Plaintiff was more interested in
using the failure of these units to sell as evidence in its battle to dismantle the IZ Program than in
actually selling the units. As evidence, Defendants cite that Plaintiff refused to advertise the
units at all, turned down at least one potential buyer, and at one point labelled the IZ Units as
“sold” on its website. Defs.’ Mot., Ex. 19, ECF No. 67-19 (2910 Georgia Ave. webpage listing
units as sold in April 2013).
10
Having carefully reviewed the evidence in the record, the Court concludes that both
parties share some part of the blame for the time it took to sell Plaintiff’s units. But who is more
or less at fault for the delay is not dispositive of Plaintiff’s constitutional claims at this stage. Far
more important is the fact that during this period Plaintiff was able to, and did, make unrestricted
and quite profitable use of the vast majority of Plaintiff’s development. The twenty units not
affected by the IZ regulations in Plaintiff’s building were sold at market rates between $225,000
and $404,000, for a total of over $6 million. Pl.’s Stmt. ¶ 57; Defs.’ Stmt. ¶ 61. This earned the
investors in Plaintiff’s condominium building a 20% return on their investments. Defs.’
Stmt. ¶¶ 62, 63; Defs.’ Mot., Ex. 25, ECF No. 67-25 (December 23, 2011 Letter from Art Linde
to the investors in 2910 Georgia Ave).
Plaintiff has now also sold its IZ Units. IZ Unit C-02 was sold on April 8, 2015 for
$145,200, although Plaintiff strenuously disputes whether the buyer, Ms. Ragini Patel, was in
fact eligible to participate in the IZ Program. Pl.’s Stmt. ¶ 105; Defs.’ Mot., Ex. 27, ECF No. 67-
27 (Deed for Unit C-02). IZ Unit 2-02 was recently sold for $271,200. Pl.’s Stmt. ¶ 130; Defs.’
Stmt. ¶ 16; Defs.’ Reply, Ex. 1, ECF No. 72-1 (Deed for Unit 2-02).
D. Procedural History
The parties’ relationship predictably grew sour amid these extended efforts to sell
Plaintiff’s IZ Units, leading Plaintiff to file its first complaint in this case on December 13, 2012.
Compl. for Monetary and Declaratory Relief, ECF No. 1. On February 11, 2013, Defendant
District of Columbia moved to dismiss for lack of subject matter jurisdiction and for failure to
state a claim. Mot. to Dismiss Compl., ECF No. 12. The Court granted-in-part and denied-in-
part Defendant’s motion. See 2910 Georgia Ave. LLC v. D.C., 983 F. Supp. 2d 127 (D.D.C.
2013). With respect to the Court’s subject matter jurisdiction, the Court concluded that
11
“Plaintiff’s takings claim with respect to the set-aside requirement itself is not ripe,” because
Plaintiff had not sought relief from that requirement from the D.C. Board of Zoning
Adjustments, and that it accordingly “lack[ed] subject matter jurisdiction over the Plaintiff’s
challenge to the IZ Program writ large.” Id. at 136. However, the Court concluded that it could
still “consider the Plaintiff’s challenge to the inclusionary zoning covenant restricting the sale of
the units in question.” 4 Id. The Court also concluded that it had subject matter jurisdiction over
Plaintiff’s due process and equal protection claims. Id. at 134. Finally, the Court found that
“Plaintiff has sufficiently alleged a total taking of its property.” Id.
Discovery closed in this matter on May 7, 2015. However, on December 29, 2015, the
Court granted Plaintiff’s motions to reopen discovery and for leave to file an amended
complaint. Mem. Op. & Order (Dec. 29, 2015), ECF No. 57. Plaintiff sought permission to
engage in limited additional discovery regarding the sale of Unit C-02 to Ms. Patel, which had
only recently occurred at that point, and sought to amend its complaint to add a procedural due
process claim. Id. at 7. The Court granted the motion to amend, noting, among other things, that
the new procedural due process claim was not futile for the reasons argued by Defendants. Id. at
17. The Court also granted the motion to reopen discovery because it found that “the facts newly
discovered by Plaintiff shortly before the filing of Plaintiff’s motion to reopen discovery raise
questions regarding Ms. Patel’s eligibility to purchase Unit C-02 and regarding the process by
which the District approved Ms. Patel’s application.” Id. at 12.
4
On April 9, 2014, the Court denied Defendants’ Motion for Reconsideration of the
Court’s holding that Plaintiff’s challenge to the IZ Covenant was ripe. Order (April 9, 2014),
ECF No. 31; Mem. Op. (April 9, 2014), ECF No. 32.
12
Plaintiff’s Amended Complaint was deemed filed as of December 29, 2015. Count I of
the Amended Complaint alleges a claim under the Takings Clause of the Fifth Amendment
pursuant to 42 U.S.C. § 1983. Amend. Compl. for Monetary and Declaratory Relief, ECF No.
58, ¶¶ 80-95. Count II alleges that the way in which the District implemented and administered
the IZ Program violated Plaintiff’s substantive due process and equal protection rights in
violation of the Fifth Amendment. Id. ¶¶ 96-100. Count III alleges that the way in which the
District implemented and administered the IZ Program violated Plaintiff’s procedural due
process rights in violation of the Fifth Amendment. Id. ¶¶ 101-07. Finally, Count IV seeks a
declaratory judgment that the IZ Program is unconstitutional, that the Defendants, acting under
color of state law, deprived the Plaintiff of rights guaranteed by the United States Constitution,
and that the Plaintiff is entitled to compensation. Id. ¶¶ 108-11.
After the filing of Plaintiff’s Amended Complaint, the parties filed and briefed cross-
motions for summary judgment. These motions are now ripe for resolution.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
13
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
14
III. DISCUSSION
At its core, this case is about Plaintiff’s complaint that it “bore the brunt of the District’s
‘growing pains’ as it fumbled and bungled every aspect of the IZ Program’s implementation.”
Pl.’s Mot. at 4. This may be so, but the facts in the record are simply insufficient to establish the
constitutional violations alleged. For the reasons discussed below, Plaintiff has not established
(A) an unconstitutional taking, (B) a violation of the Equal Protection Clause, (C) a violation of
Plaintiff’s substantive due process rights, or (D) a violation of its procedural due process rights.
Accordingly, Defendants are entitled to summary judgment on each of Plaintiff’s claims.
A. Plaintiff’s Takings Claim
“The Takings Clause of the Fifth Amendment prohibits the government from taking
‘private property . . . for public use, without just compensation.” Dist. Intown Properties Ltd.
P’ship v. D.C., 198 F.3d 874, 878 (D.C. Cir. 1999) (quoting U.S. Const. amend. V). Two types
of takings are prohibited by this clause: “takings without just compensation and takings for a
private purpose.” Rumber v. D.C., 487 F.3d 941, 943 (D.C. Cir. 2007). Plaintiff alleges that
both prohibited types of takings have occurred here.
For the reasons set forth below, Defendants are entitled to summary judgment on
Plaintiff’s takings claim. The Court begins its analysis of this claim, as it must, by (1)
determining the relevant parcel of property at issue. The Court concludes that the relevant parcel
is the 22-unit condominium building for which Plaintiff sought a building permit from the
District. The Court then (2) explains why the regulations at issue, which affected the use of only
8-10% of that building, did not constitute either a permanent or temporary regulatory taking.
Next, the Court (3) explains why the various alternate takings frameworks that Plaintiff has
15
suggested could apply to this case are inapposite. Finally, the Court (4) concludes that Plaintiff
has not presented evidence necessary to establish an unconstitutional private taking.
1. The Relevant Parcel of Property
Before the Court can consider whether the regulations at issue constituted a taking of
Plaintiff’s property, the Court “must first define what constitutes the relevant parcel.” Dist.
Intown, 198 F.3d at 879. Defendants contend that the relevant parcel in this case is “the 22-unit
development as a whole” for which Plaintiff sought a building permit. Defs.’ Mot. at 7.
Plaintiff, on the other hand, contends that “the relevant parcels are the individual condominium
units subject to the IZ Program and the IZ Covenant.” Pl.’s Opp’n at 10.
The Court previously addressed this issue in its 2013 Memorandum Opinion on the
District’s Motion to Dismiss, wherein the Court noted that this constituted the “fundamental
dispute between the parties.” 2910 Georgia Ave., 983 F. Supp. 2d at 137. It remains a
fundamental dispute between the parties now, and its resolution has profound implications for
the legal sufficiency of Plaintiff’s takings claim. See Dist. Intown, 198 F.3d at 879 (“[t]he
definition of the relevant parcel profoundly influences the outcome of [the] takings analysis.”).
As the Court stated in its earlier Opinion, “[u]ltimately the relevant ‘property’ for purposes of
this case is a fact-intensive inquiry.” 2910 Georgia Ave., 983 F. Supp. 2d at 137. This fact-
intensive inquiry includes consideration of at least the following factors: “the degree of
contiguity, the dates of acquisition, the extent to which the parcel has been treated as a single
unit, and the extent to which the restricted lots benefit the unregulated lot.” Dist. Intown, 198
F.3d at 880. “[A] court must [ ] consider how both the property-owner and the government treat
16
(and have treated) the property.” Id. “Above all, the parcel should be functionally coherent.”
Id.
The leading case applying these factors in the D.C. Circuit is District Intown Properties
Ltd. Partnership v. District of Columbia. In that case, plaintiff District Intown had purchased an
apartment building and landscaped lawn across from the National Zoo in 1961. Id. at 876. In
1988, District Intown subdivided that property into nine lots. Id. at 877. In 1992, the Mayor of
the District of Columbia denied District Intown’s request for construction permits to build
townhouses on eight of those nine lots, based on the lots’ status as historic landmarks. Id. at
877-78. Plaintiff sued, alleging that this constituted a violation of the Takings Clause. Id. The
District Court granted summary judgment for Defendant District of Columbia and the Court of
Appeals affirmed. Id. at 876-77.
As relevant here, the question the Court of Appeals considered was: “Does
the relevant parcel consist of the property as a whole or do the eight lots for which construction
permits were denied constitute the relevant parcels?” Id. at 879. The Court of Appeals held that
the relevant parcel was the property as a whole. The court reasoned that “[t]he lots are spatially
and functionally contiguous,” “District Intown purchased the property as a whole” and treated it
as a single property before subdivision, and that there was no evidence that District Intown
treated the lots separately for the purposes of accounting or management. Id. at 880. Although
there are certain factual distinctions between this case and District Intown, the Court finds that
application of the District Intown court’s reasoning to the undisputed facts in this case demands
the conclusion that the relevant parcel is the entire 22-unit condominium building which Plaintiff
sought a permit to build.
17
As an initial matter, the Court notes that when addressing this issue in its earlier Opinion,
in the context of the District of Columbia’s motion to dismiss the complaint, the Court stated that
the fact that “District of Columbia law provides that ‘[e]ach condominium unit shall constitute
for all purposes a separate parcel of real estate, distinct from all other condominium units’”
supported Plaintiff’s argument that the relevant parcel could be the individual condominium
units. 2910 Georgia Ave., 983 F. Supp. 2d at 137 (quoting D.C. Code § 42-1901.03). The Court
reaffirms here that D.C. law is a relevant factor in determining what constitutes the relevant
parcel, and that in this case this factor tends to support Plaintiff’s position. See Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1016 n.7 (1992) (“The answer to this difficult question may lie
in how the owner’s reasonable expectations have been shaped by the State’s law of property”).
However, the Court of Appeals in District Intown expressly instructed that local law “is not
always determinative” of the relevant parcel question, 198 F.3d at 879, and the Court rejects
Plaintiff’s suggestion that the Court’s earlier statement should be conclusive of the Court’s
decision regarding the relevant parcel at this stage in the litigation. The Court did not make any
final determination in its preliminary Opinion as to what the relevant parcel would be. Instead,
the Court’s statement regarding D.C. law was made in the context of its holding that, having
reviewed the complaint “for purposes of a motion to dismiss, the Plaintiff has sufficiently
alleged that the IZ program constitutes a total taking.” 2910 Georgia Ave., 983 F. Supp. 2d at
137 (emphasis added). Now, for purposes of the parties’ cross-motions for summary judgment,
the Court has conducted a fact-intensive analysis of all the relevant factors and has considered
not just the allegations in Plaintiff’s complaint, but the factual record as a whole. Having
conducted such an analysis, the Court concludes that despite the referenced D.C. law, the District
Intown factors demand the conclusion that the relevant parcel is the entire 22-unit condominium
18
building, not only the individual units within that building that were affected by the challenged
regulations.
First, all of the condominium units within the building are contiguous. They are all units
within a single building on a single parcel of land. See Defs.’ Mot., Ex. 8, ECF No. 67-8 (Plat
and Plans of Condominium Subdivision for 2910 Georgia Avenue); see also Contiguous,
BLACK’S LAW DICTIONARY (9th ed. 2009) (“[t]ouching at a point or along a boundary”). The
Court does not find persuasive Plaintiff’s contention that the individual condominium units in
this case are not contiguous because they are “on different floors” or otherwise “physically
separated from” each other. Pl.’s Opp’n at 11-12. Despite the fact that the units are separated
from each other to the same extent units within a condominium building are generally separated
(i.e., walls and doors), the Court concludes that the contiguity factor certainly weighs in favor of
considering the condominium building as a whole to be the relevant parcel of property.
Second, the date of acquisition also favors this conclusion. Plaintiff did not acquire the
IZ Units at different times than all of the other units within the condominium building. Plaintiff
purchased six lots of land in 2009, combined them into a single parcel, and then built the entire
condominium building at one time. Defs.’ Stmt. ¶¶ 23-29. The building was only subdivided
into 22 units at a later date, after acquisition. Id. ¶ 29; Dist. Intown, 198 F.3d at 880 (considering
entire parcel as a whole because “District Intown purchased the property as a whole in 1961”
before later subdividing it).
The third factor, “the extent to which the parcel has been treated as a single unit,” also
favors concluding that the relevant parcel is the condominium building as a whole. Plaintiff
argues that this factor weighs in favor of considering the two IZ Units separately because
Plaintiff subdivided the building and sold the units within it, including the IZ Units, individually
19
to separate buyers and at different times. Pl.’s Opp’n at 10-12. Plaintiff elaborates that the units
receive separate utilities, are separately recorded, and are separately taxed and assessed
fees. Id.
As an initial matter, most, if not all, of the distinct treatment Plaintiff can point to with
respect to the individual condominium units is merely a result of the fact that Plaintiff subdivided
the condominium building after it was constructed. The Court of Appeals has held that “[t]he
intentional act of subdivision” alone is not sufficient to show that the subdivided units should be
the relevant parcels for takings analysis. Dist. Intown, 198 F.3d at 880. When the record in this
case is viewed as whole it becomes clear that these aspects of distinct treatment do not tell the
full story, and that in reality the 22-unit condominium building as a whole has consistently been
treated as a single, coherent piece of property. The building was treated as a single unit for
permitting purposes—this lawsuit arose from Plaintiff’s filing of a building permit application to
the District to construct the entire condominium building, not any individual units. See Norman
v. United States, 429 F.3d 1081, 1091 n.4 (Fed. Cir. 2005) (noting that the fact that “appellants’
own permit application related to the entire 2280–acre parcel, and not to any subdivision thereof”
indicated that the entire parcel should be considered the relevant parcel for the purposes of
appellants’ taking claim). All of the units were also part of a single, common development plan
or project. See Forest Properties, Inc. v. United States, 177 F.3d 1360, 1365 (Fed. Cir. 1999) (a
combination of legally distinct parcels was properly treated as the relevant parcel where “the
development was treated as a single integrated project” and it was understood that the individual
“portions would be developed as a single project”). It is undisputed that the entire building, all
22 units included, was presented as a single investment for financing, planning and building
purposes. See Defs.’ Stmt. ¶¶ 23-27; Defs.’ Mot., Ex. 6, ECF No. 67-6 (2910 Georgia Avenue
20
Investment Prospectus describing entire building as a single project for investment); Defs.’ Mot.,
Ex. 25 (letter to investors describing the return they received on their investment in the building
as whole). Only after the IZ Covenant was signed, the permit for the entire building was granted,
and the building was completed, did Plaintiff then subdivide the building into separate units. 5
Despite this history, Plaintiff asks the Court to analyze Plaintiff’s takings claim as though
the relevant parcel only includes the units that were affected by the challenged regulations. But
to do so would allow Plaintiff to unfairly paint a regulation which only regulates the use of a
small portion (8-10%) of Plaintiff’s development as a restriction on the development in its
entirety, and therefore potentially a “total” taking. This is precisely the type of circular logic that
the Supreme Court has rejected because it would lead to every regulation, no matter how
reasonable in scope, constituting “total” and therefore categorical taking. See Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 331 (2002) (“Of course,
defining the property interest taken in terms of the very regulation being challenged is circular”
because “[w]ith property so divided,” every potential taking “would constitute [a] categorical
taking[ ].”); Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers Pension Trust for S.
California, 508 U.S. 602, 644 (1993) (“a claimant’s parcel of property could not first be divided
into what was taken and what was left for the purpose of demonstrating the taking of the former
5
Plaintiff also suggests that the manner in which the IZ Program itself “view[s]” the
property shows that the relevant parcels should be the individual IZ Units. Pl.’s Opp’n at 12.
This argument is meritless. The fact that the IZ Program is only applicable to developments with
ten or more dwelling units, or that the Program restricts the use of the set-aside units but not the
remaining units, is not “clearly inconsistent,” id. at 13, with treating the entire building to which
the IZ Program regulations apply as the relevant parcel for Plaintiff’s takings claim. If anything,
the fact that the IZ Program applies to 8-10% of “the gross floor area” of developments, D.C.
Mun. Regs. tit. 11, § 2603, suggests that the IZ Program “views” the subject of its regulation to
be developments as a whole.
21
to be complete and hence compensable. To the extent that any portion of property is taken, that
portion is always taken in its entirety”); Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104,
130 (1978) (“‘Taking’ jurisprudence does not divide a single parcel into discrete segments and
attempt to determine whether rights in a particular segment have been entirely abrogated.”).
Accordingly, the Court concludes that the manner in which the property has been treated also
weighs in favor of considering the entire condominium building at 2910 Georgia Avenue the
“relevant parcel” for the purposes of Plaintiff’s takings claim.
Finally, the Court finds that that there is not significant evidence regarding the “extent to
which the restricted lots benefit the unregulated lot” that favors either parties’ position in this
case. However, the District Intown court found that summary judgment on the relevant parcel
issue was proper even when a dispute existed as to this final factor where, as here, “the other
three factors strongly suggests that [the subdivided lots] are functionally part of the same
property.” Dist. Intown, 198 F.3d at 880.
The Court concludes by noting that, although Plaintiff is certainly correct that certain
“other takings decisions have held that it is appropriate to analyze a regulation’s effect on
specific parcels or portions of a property that are subject to government imposition,” Pl.’s Opp’n
at 14, none of those decisions demand the outcome sought by Plaintiff here. In particular,
Plaintiff relies heavily on Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir.
1994), but the reasoning of that case does not support Plaintiff’s position. 6 In that case, the
6
Nor does the reasoning of Lost Tree Vill. Corp. v. United States, 707 F.3d 1286 (Fed.
Cir. 2013) support Plaintiff’s position. In that case, the Federal Circuit stated that “even when
contiguous land is purchased in a single transaction, the relevant parcel may be a subset of the
original purchase where the owner develops distinct parcels at different times and treats the
parcels as distinct economic units.” Id. at 1293. This may be true, but as described herein,
22
Federal Circuit concluded that the relevant parcel for its takings analysis was 12.5 acres out of an
original 250-acre parcel. Id. at 1181. That conclusion, however, was based on the fact that most
of the remaining acres had already been developed and sold before the state attempted to impose
the regulatory restrictions at issue. Id. Here, by contrast, Plaintiff was required to agree to abide
by the IZ regulations in order to obtain a building permit for the entire 22-unit condominium
building at the same time, before any of the units were developed. Other acres were not included
in the “relevant parcel” in Loveladies Harbor because those parcels had already been dedicated
to the state. Plaintiff has not dedicated the 20 units it seeks to exclude from the relevant parcel
here to the state—it has been left to use them unregulated and has received significant economic
benefit from selling them to private parties in the course of its business. 7 Unlike the dedicated
acres in Loveladies Harbor, the 20 unrestricted units in Plaintiff’s building brought Plaintiff
economic benefit and it accordingly makes perfect sense to consider them when determining the
challenged regulations’ overall economic effect on Plaintiff.
In sum, in analyzing whether the regulations at issue constituted a “taking” of Plaintiff’s
property, the Court views the relevant parcel of property as the condominium building at 2910
Georgia Avenue for which Plaintiff sought a building permit from the District. As will be seen
below, this conclusion is largely determinative of Plaintiff’s takings claim.
Plaintiff treated all of the units at issue in this case as a whole, developing them all at the same
time as part of a single project.
7
The Court additionally notes that even application of the rejected bright line rule
proposed by the plaintiff in Loveladies Harbor, “that the denominator of the takings fraction is
that parcel for which the owner seeks a permit,” Loveladies Harbor, 28 F.3d at 1181, would
result in the relevant parcel in this case being the entire 22-unit condominium building for which
Plaintiff sought a building permit.
23
2. Plaintiff’s Regulatory Takings Claim
“In a regulatory takings case,” such as this one, “the principal focus of inquiry is whether
a regulation ‘reaches a certain magnitude’ in depriving an owner of the use of property.” Dist.
Intown, 198 F.3d at 878 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)).
“The Supreme Court has indicated that most regulatory takings cases should be considered on
an ad hoc basis, with three primary factors weighing in the balance: the regulation’s economic
impact on the claimant, the regulation’s interference with the claimant’s reasonable investment-
backed expectations, and the character of the government action.” Id. at 878-79 (citing Penn
Central, 438 U.S. at 124). “As the ‘party challenging governmental action as an unconstitutional
taking,’ [Plaintiff] bears a ‘substantial burden.’” Id. at 878 (quoting Eastern Enterprises v. Apfel,
524 U.S. 498, 523 (1998)).
Plaintiff has not satisfied its burden in this case. First, and most importantly in this
particular case, the economic impact of the regulation at issue on Plaintiff weighs strongly
against finding a taking in this case. Under this factor, Plaintiff must demonstrate that the
relevant parcel of property “no longer provide[s] a reasonable rate of return” in light of the
challenged regulation. Id. at 884. “[A] claimant must put forth striking evidence of economic
effects to prevail even under the ad hoc inquiry.” Id. at 883 (emphasis added). Indeed, in Penn
Central, the Supreme Court found that no taking had occurred despite the fact that the regulation
at issue caused a diminution in value of 75%. Penn Central, 438 U.S. at 131.
Here, only two of the 22 units in Plaintiff’s development were subject to an IZ Covenant
restricting their use at all. Although Plaintiff complains that the IZ Program delayed the sale of
these units and affected the profit Plaintiff sought to receive from them, the regulations certainly
did not leave Plaintiff without a reasonable rate of return from its development as a whole. Quite
24
the opposite: Plaintiff sold the unrestricted units in its development for over $6 million, earning
the investors in Plaintiff’s building a 20% return on their investments. Defs.’ Stmt. ¶¶ 62, 63;
Defs.’ Mot., Ex. 25 (letter to investors in 2910 Georgia Ave. stating that they had received a 20%
return on their investment in the development even before the two IZ Units were sold). 8 Far
from the “striking evidence” of economic impact required, Dist. Intown, 198 F.3d at 883, the
evidence shows that the regulations at issue—albeit perhaps a source of justifiable frustration for
Plaintiff—did not prevent Plaintiff from earning a considerable profit from its property.
The other Penn Central factors do not salvage Plaintiff’s claim. First, Plaintiff’s
investment backed expectations do not support finding a taking. “A reasonable investment-
backed expectation ‘must be more than a unilateral expectation or an abstract need.’” Id. at 879
(quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06 (internal quotations omitted)).
“Claimants cannot establish a takings claim ‘simply by showing that they have been denied the
ability to exploit a property interest that they heretofore had believed was available for
development.’” Id. (quoting Penn Central, 438 U.S. at 130). Instead, “a buyer’s reasonable
expectations must be put in the context of the underlying regulatory regime.” Id. at 883.
Here, Plaintiff did not have a “reasonable” investment-backed expectation of selling its
condominium units free from IZ Covenants. Plaintiff’s argument that it did have such a
reasonable expectation is apparently based on its claim that the IZ Program was sprung on
8
Although this alone would suffice to show that the economic effect of the regulation
was insufficient to constitute a regulatory taking, the Court additionally notes that the IZ Units
themselves also eventually sold, providing Plaintiff with an additional $416,400 of revenue from
its property. Pl.’s Stmt. ¶¶ 105, 130; Defs.’ Stmt. ¶ 16. In light of the considerable amount of
revenue Plaintiff’s property generated, as discussed herein, the Court need not resolve the
parties’ dispute regarding whether Plaintiff could have generated even more revenue by renting
its property.
25
Plaintiff unfairly, becoming effective immediately on December 11, 2009 without a promised
phase-in period. However, the Court has already determined that the IZ Program—at least as
relevant to Plaintiff’s project and claims—took effect on August 14, 2009, three months prior to
Plaintiff’s purchase of the property at 2910 Georgia Avenue and after a phase-in period. See
Full Value Advisors, LLC v. S.E.C., 633 F.3d 1101, 1110 (D.C. Cir. 2011) (holding that plaintiff
did not have a reasonable investment-backed expectation where challenged-requirements were in
effect before acquisition). Plaintiff may genuinely not have been aware that these new
regulations had taken effect, but the fact that Plaintiff did not keep abreast of building
regulations, and accordingly subjectively believed that it could build its development without
being subject to the IZ Program, does not make its investment-backed expectation reasonable.
Plaintiff was apparently relying on its architect to keep updated on those laws, Defs.’ Stmt. ¶ 42,
which he apparently did not do, despite declaring that he was aware that the IZ Program “had
been under discussion within the District government at that point for four or five years.” Defs.’
Mot., Ex. 11, ECF No. 67-11 (June 26, 2015 Declaration of Eric Colbert) at ¶ 11. Finally, the
fact that the D.C. Zoning Office employee in charge of Plaintiff’s application initially mistakenly
failed to require IZ Program compliance does not make Plaintiff’s own belief reasonable that it
could develop its project without complying with a law that was undisputedly in effect at the
time and applicable to Plaintiff’s development.
Finally, the character of the government action in this case does not support a finding that
a “taking” has occurred. 9 “To assess the character of the government’s action, the central
9
Contrary to Plaintiff’s insinuation, the Supreme Court in Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005), did not hold that the character of the government action is not a relevant
consideration in the Court’s taking analysis, and Defendants were correct to address it as one of
the three Penn Central factors. Id. at 545 (“our holding today-that the ‘substantially advances’
26
question is whether the regulation advances a ‘common good’ or ‘public purpose.’” George
Washington Univ. v. D.C., 391 F. Supp. 2d 109, 113-14 (D.D.C. 2005) (citing Dist. Intown
Properties Ltd. P’ship v. D.C., 23 F. Supp. 2d 30, 37 (D.D.C. 1998)). Here, the Court has
already answered this question in the affirmative in its 2013 Memorandum Opinion: the IZ
Program serves a public purpose. 2910 Georgia Ave., 983 F. Supp. 2d at 135. The Court
reaffirms that conclusion now.
Plaintiff’s arguments regarding this factor are not persuasive. First, Plaintiff argues that
the character of the government action in this case favors finding that a taking has occurred
because the IZ Program has been a “failure.” Pl.’s Opp’n at 16. In support of this claim,
Plaintiff argues that other programs have produced more affordable housing than the IZ Program.
Id. at 16-17. This line of attack misinterprets the Court’s role in analyzing the character of the
government action. The character of the government action weighs against finding a taking if
the action is “a general regulation with a legitimate public purpose.” Dist. Intown, 198 F.3d at
883. The Court takes a “deferential stance regarding what constitutes a legitimate public
purpose.” Perry Capital LLC v. Lew, 70 F. Supp. 3d 208, 245 (D.D.C. 2014). Given that the
program at issue here serves a public purpose, it is not the role of the Court, other than perhaps in
extreme circumstances not present here, to sit in judgment of the efficacy of this program as
compared to others.
Second, Plaintiff argues that the character of the government action is “very much
call[ed] into question” by the eventual sale of one of Plaintiff’s IZ Units to an individual, Ms.
Ragini Patel, who Plaintiff now claims is not eligible to participate in the IZ Program. Pl.’s
formula is not a valid takings test-does not require us to disturb any of our prior holdings”).
27
Reply at 13. The Court addresses this issue further below in section III.A.4 of this Memorandum
Opinion, but for now it is sufficient to say that Plaintiff’s evidence in this regard does not show
that Defendants acted with any non-public purpose when administering the IZ Program with
respect to Plaintiff and this purchaser. At most, Plaintiff raises questions about whether District
employees made mistakes while administering the program and whether Ms. Patel may have
falsely represented her wealth, income or intentions in her application to participate in the
program. These question do not change the fact that the character of the government action
challenged here is a generally applicable regulation intended to serve a public purpose. 10 At the
very least, they certainly do not constitute a powerful enough showing as to the character of the
government action factor to overcome the Court’s conclusion that the other two Penn Central
factors weigh strongly in favor of finding that no taking has occurred. See Perry Capital, 70 F.
Supp. 3d at 244 (“A [party] is not required to demonstrate favorable results under all three Penn
Central factors . . . it is a balancing test.”).
In sum, the challenged regulation, which affected how Plaintiff could use 8-10% of its
development, is a generally applicable regulation with a legitimate purpose. It did not interfere
with any reasonable investment-backed expectations of Plaintiff’s, nor create a sufficiently
severe economic effect on Plaintiff, to rise to the level of an unconstitutional regulatory taking.
The above analysis also resolves Plaintiff’s “temporary takings” claim. At no point, even
prior to the sale of the two IZ Units, did the IZ Program regulations at issue affect Plaintiff’s
development in such a way as to work a taking. Plaintiff argues that, “at an irreducible
10
The Court further notes that Plaintiff’s allegations are irrelevant to the character of the
government action with regard to the initial imposition of the IZ Covenant or the effect the
covenant had on the delayed sale of Plaintiff’s units leading up to their eventual sale, given that
the sale to Ms. Patel had not even occurred yet at those times.
28
minimum” Defendants’ actions constitute a “temporary taking” because of the delay in selling
the IZ Units. Pl.’s Mot. at 27-28. But this argument is misguided in its assumption that
temporary takings are “different in kind from permanent takings.” First English Evangelical
Lutheran Church of Glendale v. Los Angeles Cty., Cal., 482 U.S. 304, 318 (1987). They are not
different. Id. Temporary takings “should be analyzed in the same constitutional framework
applied to permanent irreversible takings.” Yuba Nat. Res., Inc. v. United States, 821 F.2d 638,
641 (Fed. Cir. 1987). With respect to Plaintiff’s reasonable investment-backed expectations and
the character of the government action, the Court’s analysis is the same for Plaintiff’s temporary
takings claim as it was for Plaintiff’s permanent takings claim, which is described above.
With respect to the economic effect of the regulation, which was arguably temporarily
more severe before the IZ Units eventually sold, the effect was still far from sufficient to support
a regulatory takings claim. “[I]n a temporary regulatory takings analysis context the impact on
the value of the property as a whole is an important consideration, just as it is in the context of a
permanent regulatory taking.” Cienega Gardens v. United States, 503 F.3d 1266, 1281 (Fed.
Cir. 2007). As discussed above, viewing the property as a whole, it is clear that the regulations
at issue did not work a taking of Plaintiff’s condominium building, despite the time it took to
find buyers for two of the units therein. Even before these units were sold, the degree of
economic impact the regulations had on Plaintiff’s rate of return with respect to the
condominium building as a whole was far from sufficient to establish a taking. Plaintiff was able
to sell units making up 90% of its building for over $6 million, earning a significant profit and a
healthy return for its investors. Although Plaintiff complains that it was required to pay real
estate taxes and other “carrying costs” on the IZ Units before they sold, there is “no evidence that
29
this regulation rendered [Plaintiff’s condominium building] unprofitable to maintain.” Dist.
Intown, 198 F.3d at 883.
For all of the reasons explained above, Defendants are entitled to summary judgment on
Plaintiff’s permanent and temporary regulatory takings claim.
3. Plaintiff’s Proposed Alternative Takings Frameworks
In an attempt to escape application of the Penn Central factors, Plaintiff posits numerous
alternative takings frameworks it believes this Court should apply to its takings claim. None of
those frameworks apply. As an initial matter, Plaintiff’s claim does not fit into any of the narrow
categories of categorical or per se takings. Although the Supreme Court has held that most
takings claims should be analyzed on the ad hoc basis set forth above, it has also “indicated that
it will find a ‘categorical’ or per se taking in two circumstances.” Dist. Intown, 198 F.3d at
879. “The first circumstance includes regulations that result in ‘permanent physical occupation
of property.’” Id. (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-
35 (1982)). “The second circumstance includes regulations pursuant to which the government
denies all economically beneficial or productive use of property.” Id. (quoting Lucas, 505 U.S.
at 1015). Plaintiff argues that either or both of these circumstances are present here.
First, for the same reasons set forth above in the Court’s Penn Central analysis, Plaintiff
is incorrect that the regulations at issue denied it “all economically beneficial or productive use
of” its property. Id. (emphasis added). To constitute this type of categorical taking, “a claimant
must show that its property is rendered ‘valueless’ by a regulation.” Id. at 882; see also Lucas,
505 U.S. at 1019 n.8 (noting that categorical taking would not occur where landowner’s property
was diminished in value by regulation by only 95%).
30
Here, Plaintiff was plainly not denied all economically beneficial use of its property.
Plaintiff was required to execute IZ Covenants for 8-10% of the condominium building at issue.
D.C. Mun. Regs. tit. 11, § 2603. Plaintiff was free to, and did, use the remaining 90-92% of the
building not subject to IZ Covenants, earning over $6 million and a significant profit. Defs.’
Stmt. ¶¶ 29, 61. Accordingly, because Plaintiff has not shown that it was denied all
economically beneficial use of its property, its first categorical taking claim fails. 11
The Court pauses here to address the argument Plaintiff makes at various points
throughout its summary judgment briefing that there has also been a categorical taking of
Plaintiff’s alleged “property right” to the bonus density allowed for under the IZ Program. See,
e.g., Pl.’s Mot. at 10, 20. This argument does not have merit because Defendants did nothing to
“take” this supposed right from Plaintiff. Plaintiff’s argument on this point is premised on its
claim that it was “realistically” unable to take advantage of the bonus density because the IZ
Program regulations became effective immediately on December 11, 2009, with no phase-in
period. As the Court has already discussed above, this assertion is wrong. The IZ Program
became effective on August 14, 2009, after a phase-in period. Even if certain amendments were
subsequently made to the program, the basic requirements of the program were effective and
applicable before Plaintiff purchased the property at issue. It is also worth noting that Mr. Linde,
Plaintiff’s manager, was aware of bonus density in the IZ laws as early as October of 2009, a
11
In fact, the Court notes that even if the relevant parcel of property for purposes of
Plaintiff’s takings claim consisted only of the units Plaintiff set aside for affordable housing use,
Plaintiff could still not establish that it was denied all economically viable use of the property.
Those units sold for a combined price of $416,400. Although Plaintiff argues that it is “self-
evident” that these units were rendered “valueless” because Plaintiff did not receive its
“commercially expected profit,” Pl.’s Opp’n at 19, this analysis misinterprets Lucas. Failure to
receive an expected profit is not the same thing as rendering property “valueless.”
31
month before Plaintiff even purchased the property at issue. Pl.’s Opp’n, Ex. 88, ECF No. 70-3
(May 6, 2015 Deposition of Arthur Linde), at 40:12-20 (“Q: So you were aware October 29th,
2009, of the bonus density in the inclusionary zoning laws? A: Apparently, I was. Yes.”); Defs.’
Mot., Ex. 13, ECF No. 67-13, at 2 (October 29, 2009 e-mail from Art Linde to Paul Adresino et
al.) (“Of some use may be the bonus density we are afforded via the Inclusionary Zoning laws”).
Plaintiff cannot, accordingly, claim that Defendants “took” its right to bonus density.
Second, relying on the Supreme Court’s opinion in Loretto v. Teleprompter Manhattan
CATV Corp., Plaintiff unsuccessfully attempts to shoehorn the facts of this case into a categorical
taking by arguing that “[t]he Court could properly view the IZ Program, as applied to this
Plaintiff, as an actual physical invasion or usurpation of property rights.” Pl.’s Mot. at 15.
“[R]egulations that compel the property owner to suffer a physical ‘invasion’ of his property” are
“compensable without case-specific inquiry into the public interest advanced in support of the
restraint.” Lucas, 505 U.S. at 1015. Compensation is required “no matter how minute the
intrusion, and no matter how weighty the public purpose behind it.” Id. In Loretto the Supreme
Court held that a New York law that required landlords to “permit a cable television company to
install its cable facilities upon his property,” such that “the cable installation occupied portions of
appellant’s roof and the side of her building,” was a taking because it constituted a “physical
occupation of property.” Loretto, 458 U.S. at 421. The Court stated that “when [a] physical
intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred.”
Id. at 426.
Similarly, as Plaintiff notes, the Supreme Court has also recently reiterated that a per se
taking occurs when “‘the government directly appropriates private property for its own use.’”
Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2425-26 (2015) (quoting Tahoe-Sierra, 535 U.S. at
32
324). The Supreme Court in Horne held that a reserve requirement set by the government’s
Raisin Administrative Committee, whereby raisin growers were required to “give a percentage of
their crop to the Government, free of charge,” constituted a categorical or per se taking. Id. at
2424. This holding was based on the fact that under the program “[a]ctual raisins [were]
transferred from the growers to the Government. Title to the raisins passe[d] to the Raisin
Committee.” Id. at 2428. Under these circumstances, the Court held that “a clear physical
taking” had occurred. Id.
These forms of categorical taking are plainly not applicable to the facts of this case. The
regulations at issue in this case regulate the terms upon which Plaintiff can use (in this case, sell)
its property, generally by limiting the maximum price Plaintiff can charge for that property. The
District does not take title to Plaintiff’s property, nor does it compel Plaintiff to suffer any
physical invasion of its property—points that Plaintiff concedes. Pl.’s Reply at 8; see also Defs.’
Mot., Ex. 3, ECF No. 67-3, at 5 (Plaintiff’s response to Defendants’ ninth request for admission,
stating that “Plaintiff admits that the IZ Laws and IZ Program have not resulted in a permanent
physical occupation of Plaintiff’s property”). In asking the Court to find a categorical taking
under this line of cases regardless, Plaintiff seeks to downplay these distinctions as unimportant.
They are not. The Supreme Court has “stressed the ‘longstanding distinction’ between
government acquisitions of property and regulations.” Horne, 135 S. Ct. at 2427 (quoting
Tahoe-Sierra, 535 U.S. at 323); see also George Washington Univ., 391 F. Supp. 2d at 112
(order prohibiting George Washington University from using its property for any purposes other
than as residences did “not result in a physical occupation of property,” but instead simply
“require[d] the University to use its property for a certain purpose”). To the extent that the
regulations in this case might “go[ ] too far” and constitute a taking, Mahon, 260 U.S. at 415,
33
they must be analyzed on the ad hoc basis set forth in Penn Central and applied above, see Yee v.
City of Escondido, Cal., 503 U.S. 519, 529 (1992) (“When a landowner decides to rent his land
to tenants, the government may place ceilings on the rents the landowner can charge . . . or
require the landowner to accept tenants he does not like . . . without automatically having to pay
compensation. . . . Such forms of regulation are analyzed by engaging in the ‘essentially ad hoc,
factual inquiries’ necessary to determine whether a regulatory taking has occurred”) (internal
citations omitted).
Finally, Plaintiff is also incorrect in suggesting that “an alternative framework through
which the Court may consider Plaintiff’s claim for uncompensated taking is that Defendants’
actions also amount to an imposition of unconstitutional conditions on the development of
Plaintiff’s land.” Pl.’s Mot. at 25. For this argument, Plaintiff relies on Nollan v. California
Coastal Comm’n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). In
those cases, the Supreme Court “held that a unit of government may not condition the approval
of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a
‘nexus’ and ‘rough proportionality’ between the government’s demand and the effects of the
proposed land use.” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2591 (2013).
Plaintiff argues that the IZ Program is “essentially the same thing” as the forced exactions of
property analyzed in Nollan and Dolan. Pl.’s Opp’n at 4.
Plaintiff is again incorrect. Unlike in Nollan and Dolan, the Plaintiff in this case was not
required to relinquish any portion of its property to the public in return for a building permit. As
discussed above, the IZ Program regulations at issue are generally applicable regulations on how
developers may use their property. Pursuant to these regulations, Plaintiff must use a portion of
34
its real estate development for affordable housing, selling it at certain maximum prices. The
Nollan and Dolan exaction framework accordingly does not apply here.
In this regard, the Court finds persuasive the recent opinion of the Supreme Court of
California, in which that Court analyzed whether a similar inclusionary zoning program
implemented in San Jose, California constituted an unconstitutional exaction. California Bldg.
Indus. Ass’n. v. City of San Jose, 61 Cal. 4th 435 (2015), cert. denied, 136 S. Ct. 928 (2016).
Similar to—although apparently more demanding than—the IZ Program at issue in this case, the
ordinance at issue in California Bldg. Indus. required that “15 percent of the proposed on-site
for-sale units in [a new] development shall be made available at an ‘affordable housing cost’ to
households earning no more than 120 percent of the area median income for Santa Clara County
adjusted for household size.” Id. at 449-50. Like Plaintiff here, the plaintiff in California Bldg.
Indus. argued that the “[o]rdinance violate[d] the unconstitutional conditions doctrine, as applied
to development exactions.” Id. at 457. The Supreme Court of California disagreed, explaining
that “there can be no valid unconstitutional-conditions takings claim without a government
exaction of property, and the ordinance in the present case does not effect an exaction.” Id. That
court concluded that “[i]t is the governmental requirement that the property owner convey some
identifiable property interest that constitutes a so-called ‘exaction’ under the takings clause and
that brings the unconstitutional conditions doctrine into play.” Id. at 460. Distinguishing Nollan
and Dolan, the California Supreme Court noted that in both of those cases, the Supreme Court
had “considered the validity of ad hoc administrative decisions regarding individual land-use
permit applications that required a property owner, as a condition of obtaining a sought-after
permit, to dedicate a portion of the property to public use.” Id. (emphasis in original). Unlike in
those cases, the California Supreme Court noted that the 15% set aside “simply places a
35
restriction on the way the developer may use its property by limiting the price for which the
developer may offer some of its units for sale.” Id. at 461.
The Court finds this analysis persuasive. 12 The IZ Program is a generally applicable
regulation that required Plaintiff, to the same degree as any other developer, to use a certain
portion of the units in its new development in a certain manner by regulating the price at which it
could sell those units. It did not require that Plaintiff dedicate any portion of its property to the
public in return for granting Plaintiff a building permit. The unconstitutional exaction
framework accordingly does not apply. 13
In sum, the Court rejects Plaintiff’s arguments that this Court could analyze its takings
claim under anything other than the ad hoc three factor test set forth by the Supreme Court in
Penn Central. Plaintiff cannot demonstrate any type of categorical taking, nor can it demonstrate
that the Nollan-Dolan unconstitutional conditions framework is applicable to this case. Because
Plaintiff has not established a taking under Penn Central, Defendants are entitled to summary
judgment.
12
Plaintiff argues that the Court should not rely on California Bldg. Indus. because of
certain factual distinctions and because the California Supreme Court is an “outlier” that has
demonstrated “an historic antipathy toward the property rights of developers that is out of step
with” the United States Constitution. Pl.’s Reply at 9-11. Plaintiff is, of course, correct that the
California Supreme Court’s opinion is not binding on this Court, but this Court nonetheless finds
that court’s reasoning persuasive. None of Plaintiff’s arguments regarding the California Bldg.
Indus. opinion take away from the fundamental soundness of the California Supreme Court’s
analysis on the question of whether an inclusionary zoning program constitutes an exaction.
13
In this section of its briefing, Plaintiff makes references to the fact that the District
initially granted and then revoked zoning approval for Plaintiff’s development. Pl.’s Opp’n at
23. This is irrelevant. The fact that a District employee initially mistakenly granted zoning
approval for Plaintiff’s development and then that approval was retracted when the Zoning
Office realized that the project was subject to the new IZ regulations does not change the
fundamental nature of the regulations at issue. They are still generally applicable regulations on
the use of Plaintiff’s property, not exactions.
36
4. Plaintiff’s “Private Taking” Claim
The Court also finds that Defendants are entitled to summary judgment on Plaintiff’s
“private taking” claim, which is how Plaintiff has styled its argument that Defendants have
violated the public use requirement of the Takings Clause. It is well settled that “[a] taking for a
private purpose is unconstitutional even if the government provides just compensation.”
Rumber, 487 F.3d at 944 (citing Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984)); see
also Midkiff, 467 U.S. at 245 (a taking “executed for no reason other than to confer a private
benefit on a particular private party,” does “not withstand the scrutiny of the public use
requirement”). Plaintiff claims that the public use requirement has been violated in this case
because, despite the public purpose of the challenged regulations generally, the individual who
eventually purchased one of Plaintiff’s IZ Units through the IZ Program did not, as it turns out,
satisfy the District’s rules for participating in the program. 14
This argument does not salvage Plaintiff’s takings claim. At the threshold, it fails for the
fundamental reason that the Court has already determined that there has been no taking here at
all. The public use requirement becomes relevant only if a taking has occurred. See Rancho de
Calistoga v. City of Calistoga, 800 F.3d 1083, 1093 (9th Cir. 2015) (“Because we determined
that there has been no taking in the first place, it is unnecessary to address whether the public use
14
The Court notes that Plaintiff also at various points in its briefing questions the
qualifications of the purchaser of its other IZ Unit, Ms. Tia Watkins. See, e.g., Pl.’s Mot. at 33
(referring to Ms. Watkins as “questionably qualified”). Plaintiff apparently questioned Ms.
Watkins’ qualifications to the District during her application process on several grounds,
including her grandmother’s ownership of a townhouse and the fact that Ms. Watkins entered
into the contract and deed for the unit alone, despite her application as a two-member IZ
household. Pl.’s Stmt. ¶¶ 124-30. The District responded to Plaintiff’s concerns explaining how
neither issue rendered Ms. Watkins ineligible. Id. Despite passing references to these facts,
Plaintiff does not appear to make any genuine effort to argue that the sale to Ms. Watkins was
improper in its briefing on the pending motions for summary judgment.
37
requirement is met.”). For this reason alone, Plaintiff’s extensive arguments about the sale to
Ms. Ragini Patel are misguided.
The Court also notes, however, that even if it had found that the IZ regulations at issue
constituted a taking, this line of attack would fail for the additional reason that Plaintiff’s theory
that this “taking” was carried out for a private purpose is not supported by the record. 15
Although Plaintiff has developed an extensive factual record surrounding this argument, it is key
to distinguish between facts that have recently come to light that demonstrate that Ms. Patel was
not, in fact, an eligible purchaser under IZ Program rules, and facts supporting the quite different
assertion that Defendants allowed Ms. Patel to participate in that program for a “private
purpose.” With the help of a private investigator, Plaintiff has marshalled colorable evidence of
the first issue, apparently indicating that—despite the certifications she made to the District
during the application process—Ms. Patel’s income and wealth are in fact too substantial to
warrant housing assistance, and she has not been using the unit she purchased as her primary
residence.
Plaintiff has not, however, presented sufficient evidence on the second issue—
Defendants’ purpose in administering the IZ Program with respect to Ms. Patel. This is crucial,
because “‘it is only the taking’s purpose, and not its mechanics,’ . . . that matters in determining
public use.” Kelo, 545 U.S. at 480 (emphasis added); Franco v. D.C., 456 F. Supp. 2d 35, 40
15
Defendants argue that the Court should not consider Plaintiff’s “private taking” claim
at all, because Plaintiff did not raise it in its Amended Complaint. Defs.’ Opp’n at 2, 38. The
Court will not dismiss this claim for this reason alone. Plaintiff’s Amended Complaint asserts a
cause of action under the Takings Clause of the Fifth Amendment of the United States
Constitution. Am. Compl. at 21. This cause of action is reasonably interpreted as encompassing
Plaintiff’s “private taking” claim, which is really nothing more than an argument regarding the
public use requirement of the Takings Clause.
38
(D.D.C. 2006) (“a court will not recognize a taking as unconstitutional without evidence that the
taking was strictly for a private purpose”). The mere fact that Ms. Patel’s participation in the IZ
Program may not have objectively furthered the program’s overall goal of providing affordable
housing to low income individuals is not, in itself, sufficient to establish a violation of the public
use requirement. Kelo, 545 U.S. at 484 (“it is appropriate for us . . . to resolve the challenges of
the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because
that plan unquestionably serves a public purpose, the takings challenged here satisfy the public
use requirement of the Fifth Amendment.”); Rancho de Calistoga, 800 F.3d at 1092 (rejecting
“private as-applied takings” claim that was merely based on claim that “none of the purposes
enumerated in [the challenged ordinance] apply here”). 16
Focusing on Defendants’ purpose, it is clear that Defendants would be entitled to
summary judgment on this issue. The IZ Program’s purpose is to “increas[e] the amount and
expand[ ] the geographic distribution of adequate, affordable housing available to current and
future residents.” D.C. Mun. Regs. tit. 11, § 2600.1. The Court has already determined—and
herein reaffirms—that this is a valid public purpose. 2910 Georgia Ave., 983 F. Supp. 2d at 135.
The Court begins with the premise that the District administered the IZ Program with respect to
Ms. Patel in pursuit of this purpose, especially considering that “‘[t]here is a presumption that
public officers perform their duties correctly, fairly, in good faith, and in accordance with the law
16
Accord McKenzie v. City of Chicago, 118 F.3d 552, 558 (7th Cir. 1997) (reversing
opinion of district court which had held that eminent domain program of demolishing Chicago
buildings did not serve the public interest if the buildings were demolished mistakenly, holding
that “of course mistakes in the implementation of a program don’t serve the public interest, but
errors are endemic to human activity. Surely the judge did not mean that any program that ever
errs violates the Constitution.”).
39
and governing regulations . . . .’” Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir.
1993) (quoting Parsons v. United States, 670 F.2d 164, 166 (Ct. Cl. 1982)).
To be sure, the Court’s analysis does not end with the IZ Program’s stated purpose.
Plaintiff could establish a private purpose if it could show that the District acted under the “mere
pretext of [this] public purpose, when its actual purpose was to bestow a private benefit.” Kelo,
545 U.S. at 478 (emphasis added). However, despite Plaintiff’s intense rhetoric—Plaintiff refers
to the District’s certification of Ms. Patel as eligible to participate in the IZ Program in turn as
“cook[ing] the books,” “bogus,” “fraudulent” and a “sham,” Pl.’s Mot. at 1, 10, 12—there is no
evidence to genuinely support such a claim.
In a nutshell, Plaintiff claims that it has demonstrated a private purpose simply because
Defendants’ projection of Ms. Patel’s annual income during the certification process was
allegedly so grossly inaccurate that it could not have been made in good faith. As part of
determining Ms. Patel’s eligibility for the IZ Program in late 2014, Defendants were required to
determine Ms. Patel’s household’s annual income. Defendants projected Ms. Patel’s annual
income would be $40,882, which was less than the maximum allowable amount for her
household size of $42,800. 17 Pl.’s Mot., Ex. 66, ECF No. 68-70 (Patel Certification of Income,
Affordability and Housing Size). Plaintiff asserts that this conclusion is in itself evidence of
fraud, cooking the books, or private purpose because the paystubs Ms. Patel submitted to the
District indicated that in the earlier part of 2014 she had been earning at a significantly higher
rate. In particular, Ms. Patel had made $45,139.71 between the beginning of 2014 and August
17
Other agents of Defendants apparently reviewed Ms. Patel’s paperwork a second time, at
which point they projected that her income could be as low as $23,995. Pl.’s Stmt. ¶ 101.
40
29 of that year. Pl.’s Stmt. ¶¶ 95-96; Pl.’s Mot., Ex. 67, ECF No. 68-71 (Patel Earning
Statement).
The Court need not make any determination as to the accuracy of the District’s projection
of Ms. Patel’s income—indeed, the parties appear to agree that it turned out to be wrong.
However, the Court does conclude that the inference of a hidden private purpose or pretext that
Plaintiff suggests can be drawn simply based on the District’s projection is neither supported nor
reasonable. Plaintiff fails to mention that, despite Ms. Patel’s earnings earlier in 2014, every
single piece of information that the District was provided by Ms. Patel showed that her income,
by the time they considered her application, was sufficiently low to qualify her for the IZ
Program.
Ms. Patel was an Air Force reservist and her paystubs indicated that she had a highly
fluctuating income. Defs.’ Opp’n, Ex. 23, ECF No. 71-23 (Patel paystubs); Defs.’ Opp’n, Ex.
13, ECF No. 71-13 (February 3, 2016 Deposition of Ragini Patel) (“I’m not a permanent
employee. So my salary, what it does is it fluctuates.”). Ms. Patel submitted tax returns for the
years 2012 and 2013, which indicated that she had made far below the maximum allowable
income in each of those years. Defs.’ Opp’n, Ex. 15, ECF No. 71-15 (Patel 2012 and 2013 tax
returns). Ms. Patel’s 2014 paystubs did indicate that she had made an abnormally large amount
earlier in the year, but they also showed a steeply decreasing income throughout that year.
Defs.’ Opp’n, Ex. 23. In projecting Ms. Patel’s income, the District annualized the amounts on
her most recent paystubs, which in addition to being the most current income information
provided to the District, were also in line with her earnings in the immediately preceding years.
Far from being somehow inappropriate, it is clear that this is precisely how HUD encourages
parties to project annual income. Defs.’ Opp’n, Ex. 12, ECF No. 71-12 (HUD Handbook
41
Chapter 5, “Determining Income and Calculating Rent”) at 3, 5 (stating that “[t]he owner
calculates projected annual income by annualizing current income” and, especially in
“challenging situations” such as where applicants have “sporadic work or seasonal income,”
“owners are expected to make a reasonable judgment as to the most reliable approach to
estimating what the tenant will receive during the year”) (emphasis in original).
Most importantly of all, Ms. Patel herself submitted a signed and notarized declaration
attesting that her household’s income was below the maximum allowable amount. Defs.’ Mot.,
Ex. 26, ECF No. 67-26 (Patel Declaration of Eligibility). Ms. Patel’s Intake Form also indicated
that her monthly income was $3,000 which, annualized, constituted a sufficiently low income to
qualify her for the program. Pl.’s Mot., Ex. 72, ECF No. 68-76 (Patel Universal Intake Form).
Allegedly, Ms. Patel failed to disclose certain income, property or other sources of wealth on
these documents—discoveries Plaintiff has made through various means, including by reviewing
documents the District was not given by Ms. Patel. But Plaintiff, who concedes that Ms. Patel
was dishonest and attempted to “game” the system, Pl.’s Mot. at 33 (“Ms. Patel certainly bears a
measure of responsibility for her dishonesty and attempt to ‘game’ the system”), cannot seriously
suggest that Ms. Patel’s perjury during the application process demonstrates that the District
acted with any “private” purpose in administering the IZ Program. 18 If anything, the District
18
For the same reason, the Court does not find persuasive Plaintiff’s argument that
Defendants’ failure to incorporate spousal income into their projection is somehow evidence of
the alleged “sham.” As an initial matter, Ms. Patel has testified that she is not legally married to
the father of her children despite Plaintiff’s belief otherwise, and even Plaintiff only claims that
this individual is “either” her husband or “fiancé.” Pl.’s Mot., Ex. 7 at ¶ 19. Regardless,
Plaintiff does not contend that the District knew Ms. Patel was married but failed to consider her
husband’s income. Plaintiff simply claims Defendants failed to determine her marital status.
But Defendants were not required to specifically inquire as to Ms. Patel’s marital status—they
were required to consider the annual income of the applicant’s household. D.C. Mun. Regs. tit.
14, § 2213. Ms. Patel told the District that her household was to include only her and her child.
42
employees involved acted reasonably in relying on Ms. Patel’s signed statements given that
perjury is a felony in the District of Columbia, punishable by up to ten years in prison. D.C.
Code § 22-2402.
Before concluding, the Court notes for the record that it has reviewed all of the other
evidence Plaintiff has put forth regarding the Patel transaction, and none of it supports Plaintiff’s
private purpose theory. Of particular note, the series of emails exchanged between Darryl
Featherstone and Chris Marshall during November, 2014, Pl.’s Mot., Ex. 68, ECF No. 68-72, do
not show that Defendants altered Ms. Patel’s income to make it appear lower than they knew it to
be, as Plaintiff insinuates in its papers. Instead, those emails are clearly about the fact that Ms.
Patel’s paperwork at that time stated that her income was too low for the IZ Program, because a
box was checked on one of her forms that indicated that she would be spending more than 41%
of her monthly income on the purchased unit. Id. at 1. In the e-mails, Mr. Featherstone stated
that this was an error because, regardless of the metric Defendants used to calculate Ms. Patel’s
fluctuating income, she would not exceed the 41% threshold and was accordingly eligible. Id.;
Pl.’s Mot., Ex. 69, ECF No. 68-71 (February 3, 2016 Deposition of Darryl Featherstone), at
53:5-9 (“Q: So you were focusing here to make sure that her income was high enough to pay the
mortgage basically? That’s what the 41 percent is for, correct? A: Yeah.”). This same mistake is
clearly what was referenced in the December 12, 2014 e-mail from Chris Marshall in which he
stated: “Please disregard the income specified in the ‘COIAH_Patel.pdf’ document. Subsequent
calculations confirmed that she is income-eligible for this unit.” Pl.’s Mot., Ex. 61, ECF No. 68-
Pl.’s Mot., Ex. 72 at 2. The Court is hard pressed to see how the District basing its calculations
on this representation is somehow evidence of fraudulent intent or non-public purpose in the
administration of the IZ Program.
43
65, at 15. This evidence is simply not susceptible to the implication suggested by Plaintiff: that
Defendants re-calculated Ms. Patel’s income to make it appear low enough to be eligible for the
IZ Program. Such a theory is nonsensical, because Ms. Patel’s “COIAH” document states that
her income was $40,882, which was already below the allowable maximum income. Pl.’s Mot.,
Ex. 66.
In short, none of Plaintiff’s evidence regarding the Patel transaction indicates that the
District’s purpose in administering the program was anything other than the public one
animating the program in general. At most, interpreted in the light most favorable to Plaintiff,
the evidence shows that Ms. Patel made certain omissions and misrepresentations about her
eligibility, and that if District employees had dug deeper, been less trusting, exercised more
diligence, or interpreted Ms. Patel’s documents more conservatively, they may have discovered
the truth. But without any probative evidence of a private purpose, the allegedly imperfect
execution of a government program alone does not give rise to a constitutional violation. See
44
Kelo, 545 U.S. at 480 (“‘it is only the taking’s purpose, and not its mechanics,’ . . . that matters
in determining public use”). 19
Accordingly, even had the Court concluded that a taking had occurred, Plaintiff’s public
use challenge would fail for lack of evidence. Defendants are entitled to summary judgment on
Plaintiff’s takings claim in its entirety. 20
B. Plaintiff’s Equal Protection Claim
Although this case is, in essence, about an alleged taking, Plaintiff has also attempted to
frame the preceding facts as violations of various other constitutional guarantees. The Court first
addresses Plaintiff’s equal protection claim. Specifically, Plaintiff states that it is pursuing a
“class of one” equal protection claim. Pl.’s Opp’n at 28-29. “A ‘class of one’ equal protection
claim may be maintained ‘where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.’” XP Vehicles, Inc. v. Dep’t of Energy, 118 F. Supp. 3d 38, 75 (D.D.C. 2015)
(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). There are “two essential
elements of [a] ‘class of one’ equal protection claim: (1) disparate treatment of similarly situated
parties (2) on no rational basis.” 3883 Connecticut LLC v. D.C., 336 F.3d 1068, 1075 (D.C. Cir.
2003). 21
19
Because the Court grants Defendants summary judgment as to Plaintiff’s private
takings claim, it need not address Defendants’ alternative argument that the relief Plaintiff seeks
in that claim is unavailable because of certain language in the IZ Covenant and the failure to
include Ms. Patel as a party to this action.
20
The parties also dispute whether either is entitled to summary judgment on the question
of just compensation. Pl.’s Mot. at 28; Defs.’ Opp’n at 18. Because the Court grants summary
judgment in favor of Defendants and against Plaintiff on Plaintiff’s takings claim in its entirety,
Plaintiff is not entitled to just compensation.
21
Plaintiff concedes that it is not a member of a protected class, and that its claim is
subject to rational basis review. Pl.’s Opp’n at 28; Defs.’ Mot., Ex. 3 at 6 (Plaintiff’s response to
45
Here, Plaintiff argues that it has been treated differently because it was the only
developer subject to the IZ Program that was “unable to take advantage of density bonuses,” was
the only developer to carry two IZ Units before the District revised the IZ Covenant so that IZ
participants could take advantage of HUD-insured mortgages, and because it carried its IZ Units
for longer than other developers. Pl.’s Mot. at 34-37; Pl.’s Opp’n at 29. Plaintiff also revives
under this cause of action its allegation that Ms. Patel was fraudulently certified to participate in
the IZ Program. Id.
The Court begins by noting that it has already rejected some of these claims as
unsupported by evidence or counter to the record. For example, Plaintiff’s argument that the
District prevented it from incorporating “bonus density” into its building plans is based on its
claim that the IZ Program only became applicable in December of 2009 and without a phase-in
period. As discussed above, this is wrong. The Program became applicable on August 14, 2009,
after a phase-in period. Plaintiff also suggests that it was treated differently because it was the
only developer “forced to transfer his property to a patently ineligible real estate speculator in an
illegal private use taking,” Pl.’s Opp’n at 29, but the Court has already explained above that this
allegation is not supported by sufficient evidence to survive summary judgment.
More fundamentally, however, Plaintiff’s equal protection claim fails as a matter of law
because although Plaintiff claims that the manner in which the District applied the IZ Program to
Plaintiff was unfair for various reasons, it fails to show that the District applied that program to
any other developer in a different manner. See Tate v. D.C., 627 F.3d 904, 910 (D.C. Cir. 2010)
(equal protection claim that plaintiff “was singled out for harsh treatment” failed because
Defendant’s twelfth request for admission, admitting that it is not a member of a suspect class).
46
plaintiff had “not identified any similarly situated person . . . who was treated differently”);
Quezada v. Marshall, 915 F. Supp. 2d 129, 135 (D.D.C. 2013) (“This requirement is not a mere
formality. Rather, it serves to distinguish claims to the treatment that was afforded others, which
can be cognizable under principles of equal protection, from bare complaints of governmental
unfairness, which cannot”). The mere fact that the IZ Program had certain unique effects on
Plaintiff because Plaintiff was the first developer to be subject to its requirements does not give
rise to an equal protection claim, because it does not show that the District applied the IZ
Program to Plaintiff in a different way than it applied it to anyone else similarly situated. See
3883 Connecticut LLC, 336 F.3d at 1075 (affirming dismissal of equal protection claim where
developer “showed only that the District had never before required an EIS for an apartment
building project,” which says “nothing about what requirements the District had imposed upon
other projects before ultimately determining no EIS was required, which was Clark’s situation”).
Because Plaintiff has not established any disparate treatment of similarly situated parties,
Defendants are entitled to summary judgment on Plaintiff’s equal protection claim.
C. Plaintiff’s Substantive Due Process Claim
Defendants are also entitled to summary judgment on Plaintiff’s substantive due process
claim. As an initial matter, the IZ Program as a whole clearly survives a facial substantive due
process challenge. Plaintiff concedes that no fundamental right is at issue here, and accordingly
the IZ Program “is subject only to rational basis scrutiny.” Abigail All. for Better Access to
Developmental Drugs v. von Eschenbach, 495 F.3d 695, 712 (D.C. Cir. 2007). “The rational
basis test requires that [Plaintiff] prove that the government’s restrictions bear no rational
relationship to a legitimate state interest.” Id. Here, the District’s affordable housing goals
constitute a legitimate state interest, and requiring developers of real estate to rent or sell portions
47
of their developments at affordable prices to low income individuals is rationally related to that
interest. Plaintiff makes no serious effort to argue otherwise.
Plaintiff’s apparent as-applied challenge to the IZ Program is only slightly more
colorable, and also fails. “To assert a substantive due process violation [ ] the plaintiff must [ ]
show that the District of Columbia’s conduct was ‘so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.’” Butera v. D.C., 235 F.3d 637, 651 (D.C. Cir.
2001) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)); see also George
Washington Univ. v. D.C., 318 F.3d 203, 209 (D.C. Cir. 2003) (plaintiff must demonstrate
“egregious government misconduct”); Tri Cty. Indus., Inc. v. D.C., 104 F.3d 455, 459 (D.C. Cir.
1997) (the doctrine prohibits “actions that in their totality are genuinely drastic”). “This
stringent requirement exists to differentiate substantive due process, which is intended only to
protect against arbitrary government action, from local tort law.” Butera, 235 F.3d at 651. The
Court of Appeals has determined that the “‘grave unfairness’” required for the type of
substantive due process claim argued by Plaintiff here can by shown by “[1] a substantial
infringement of state law prompted by personal or group animus, or [2] a deliberate flouting of
the law that trammels significant personal or property rights.” Tri Cty. Indus., 104 F.3d at 459
(quoting Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1988)).
Plaintiff believes that it has satisfied this “admittedly high,” Pl.’s Opp’n at 27-28,
standard with a laundry list of its complaints and frustrations about the District’s administration
of the IZ Program. It has not done so. Although significant in quantity, none of Plaintiff’s
complaints are of the grave, egregious or shocking quality that is required for this constitutional
claim.
48
First, Plaintiff again relies on the District’s certification of Ms. Patel as eligible for the IZ
Program. But as the Court has already explained above, Plaintiff’s accusations of “fraud” or
“cooking the books” are simply not supported by evidence. At most, Plaintiff has demonstrated
that some combination of mistakes or a lack of diligence on the part of the District on the one
hand, and potentially false or incomplete representations of the applicant on the other, led to an
ineligible individual participating in the IZ Program. Such mistakes do not give rise to
substantive due process claims, because for the purposes of substantive due process,
“‘[i]nadvertent errors, honest mistakes, agency confusion, even negligence in the performance of
official duties, do not warrant redress.’” Elkins v. D.C., 527 F. Supp. 2d 36, 49 (D.D.C. 2007)
(quoting Silverman, 845 F.2d at 1080). Even to the extent Plaintiff had demonstrated that the
District failed to follow certain regulations or procedures in certifying Ms. Patel, “[a] mere
violation of law or deviation from regulations and procedures has been found insufficient to
support a substantive due process claim.” Id.; see also George Washington Univ., 318 F.3d at
210 (“a breach of local law does not of itself violate substantive due process.”). Although the
parties may genuinely dispute how the District could have most accurately projected Ms. Patel’s
household’s annual income, there was nothing so inherently unreasonable about the District’s
methods or conclusions so as to constitute “a deliberate flouting of the law.” Tri Cty. Indus., 104
F.3d at 459.
The remainder of the complaints leveled by Plaintiff are similarly insufficient. The fact
that District employees overlooked the need to apply the IZ Program when they first reviewed
Plaintiff’s building permit application and then later corrected themselves certainly does not
constitute severe enough illegal conduct or unfairness to support a substantive due process claim.
As an initial matter, although Plaintiff complains that the District only caught the fact that
49
Plaintiff’s application was subject to the IZ Program by happenstance, Plaintiff does not appear
to contest that the IZ Program in fact applied to its development. It is difficult to comprehend
how Plaintiff could assert that the eventual decision of the Zoning Office to apply the IZ
Program, which undisputedly did apply to Plaintiff’s development, is somehow a violation of
Plaintiff’s substantive due process rights. With respect to the initial failure to require IZ Program
compliance, Plaintiff does not contend that this was caused by anything other than oversight, or
perhaps negligence, which is “categorically beneath the threshold of constitutional due process.”
Butera, 235 F.3d at 651 (quoting Cty. of Sacramento, 523 U.S. at 848-49); see also Elkins v.
D.C., 690 F.3d 554, 562 (D.C. Cir. 2012) (the fact that District officials “‘sent out mixed
messages’ . . . at most show[ed] ‘agency confusion,’ not the ‘grave unfairness’ required for a
substantive due process claim”).
Similarly, Plaintiff’s complaints regarding the IZ Covenant, although dressed in rather
inflammatory language, essentially are critiques of the efficacy the District’s IZ Program as
originally implemented. Although Plaintiff at times refers to the IZ Covenant as “illegal” when
first drafted, see, e.g., Pl.’s Opp’n at 23, such a claim is not supported by the record. At most,
the IZ Covenant was incompatible with certain requirements for obtaining a HUD-insured
mortgage, making it difficult for low-income purchasers to obtain financing to purchase IZ Units
and therefore making it more difficult to locate purchasers for the IZ Program. There is nothing
“illegal” about this, and indeed it appears that other jurisdictions have similar requirements.
Defs.’ Mot., Ex. 28, ECF No. 67-28 (May 5, 2015 Deposition of Rachel Meltzer), at 78:21-79:19
(stating that inclusionary zoning programs in San Francisco and Boston do not allow for the
release of inclusionary zoning restrictions upon foreclosure). Nor does this constitute
“irrational” government conduct—the District presumably drafted the IZ Covenant in this way
50
not out of animus or flouting of any law, but because it wanted the IZ restrictions to survive
foreclosure to ensure the continued availability of affordable housing. In short, although the
District has now amended the IZ Covenant in hopes of improving the IZ Program, there was
nothing irrational or illegal about how it crafted the covenant initially.
Plaintiff also complains about the District’s refusal to exempt Plaintiff from the IZ
Covenant. However, the District was never under any obligation to do so. To the extent Plaintiff
complains that the District denied its requests for exemption because it incorrectly believed it did
not have the authority to exempt Plaintiff based on a misinterpretation of the applicable
regulations, this is insufficient to support a substantive due process claim. See Am. Fed’n of
Gov’t Employees, AFL-CIO, Local 2798 v. Pope, 808 F. Supp. 2d 99, 111 (D.D.C. 2011), aff’d,
No. 11-5308, 2012 WL 1450584 (D.C. Cir. Apr. 12, 2012) (“Any legal errors in the General
Counsel’s decision not to issue a complaint on the plaintiffs’ unfair labor practice charge or in
the calculation of the timeliness of the plaintiffs’ motion for reconsideration would not rise to the
level of substantive due process violation.”); Chang v. D.C. Dep’t of Regulatory & Consumer
Affairs, 604 F. Supp. 2d 57, 64 (D.D.C. 2009) (“While Mr. Masoero may have been incorrect in
his interpretation of the Construction Codes, plaintiff has not alleged any motivation on the part
of defendants that would make such an allegation amount to stating a claim for a substantive due
process violation.”). 22
22
The Court notes that at various times throughout its papers Plaintiff also suggests that
the District “hid” the IZ Covenant. This is another example of Plaintiff’s use of rhetoric that is
unsupported by the record. Plaintiff’s evidence shows that a PDF of the IZ Covenant was taken
down from a DHCD website while changes were being made to it in response to comments, but
was still available upon request. Pl.’s Mot., Ex. 20, ECF No. 68-22 (August 26, 2009 e-mail
from Eric Jenkins) (“if there is an issue with DCBIA review, the covenant can just be pulled
from the site until all reviews have been made. Any requests for the covenant can come through
the appropriate DHCD/DMPED rep. That way we can track and manage the covenants until it is
51
Finally, the District’s failure to publish certain annual reports—even if said reports were
required by law—is similarly far from sufficient to support Plaintiff’s substantive due process
claim. The Court notes that it fails to see how this has harmed Plaintiff or shows any unfairness
to Plaintiff at all. Regardless, like Plaintiff’s numerous other complaints, this failure to timely
comply with annual reporting requirements is clearly insufficient to establish the “grave
unfairness” or “deliberate flouting of the law” required to establish a substantive due process
claim. See George Washington Univ., 318 F.3d at 210; Elkins, 527 F. Supp. 2d at 49 (mere
“deviation from regulations and procedures” is insufficient to establish violation of substantive
due process).
In sum, the Court finds that although Plaintiff has found numerous aspects of the
District’s administration of the IZ Program frustrating—and perhaps rightfully so—Plaintiff has
not presented evidence of the type of extreme, unfair, egregious or shocking conduct necessary
to establish a violation of its substantive due process rights. “In so doing, [the Court] do[es] not
say that the District’s actions were ideal.” Silverman, 845 F.2d at 1080. It merely holds “that at
no point did the District’s [administration of the IZ Program] rise to the level of a constitutional
violation.” Id. (agreeing with district court’s assessment that list of complaints regarding how
the District handled plaintiff’s application for apartment building conversion showed that the
District was “beset by ‘confusion’” implementing new law, but that this was insufficient to show
a substantive due process violation).
fully reviewed”). This simply does not support Plaintiff’s suggestion that Defendants “hid” the
IZ Covenant, nor Plaintiff’s repeated insinuations of bad faith on this score.
52
D. Plaintiff’s Procedural Due Process Claim
Finally, Plaintiffs also argue that Defendants have violated Plaintiff’s procedural due
process rights. “A procedural due process violation occurs when an official deprives an
individual of a liberty or property interest without providing appropriate procedural protections.”
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009). “The three basic elements
of a procedural due process claim are (1) a deprivation, (2) of life, liberty, or property, (3)
without due process of law.” Morris v. Carter Glob. Lee, Inc., 997 F. Supp. 2d 27, 35-36
(D.D.C. 2013). Plaintiff’s briefing on this claim, which amounts to little more than a restatement
of most if not all of Plaintiff’s grievance about the IZ Program and conclusory statements that
they constitute violations of Plaintiff’s procedural due process rights, is not a model of clarity nor
particularly helpful to the Court. Plaintiff fails to cogently explain how each and every one of its
complaints about the IZ Program, of which there are many, were deprivations of property
without sufficient process of law. Nonetheless, the Court can discern three potential property
interests that Plaintiff was allegedly deprived of without sufficient process that could be at issue
here.
First, to the extent Plaintiff’s claims are based on the implementation of the IZ Program
and that Program’s effect on the profit Plaintiff was able to derive from its property, this claim
fails because the IZ Program is a set of generally applicable regulations. “[I]t is well established
that statutes or ordinances of general applicability may condition or even prohibit the right to
conduct a business without running afoul of procedural due process.” Jones v. Air Line Pilots
Ass’n, 713 F. Supp. 2d 29, 36 (D.D.C. 2010) (quoting Vaden v. Maywood, 809 F.2d 361, 364
(7th Cir. 1987)). The notice and comment process that preceded the enactment of the IZ
regulations, described above in section I.B, was sufficient to satisfy any requirements of
53
procedural due process in this context. See Pickus v. U.S. Bd. of Parole, 543 F.2d 240, 244 (D.C.
Cir. 1976) (“for ‘legislative-type’ rulemaking, notice and written comment procedures comport
with due process”). Additionally, the Court notes that there was a procedure available to
Plaintiff for requesting a waiver of the IZ Program’s requirements by appealing to the District’s
Board of Zoning Adjustment. D.C. Mun. Regs. tit. 11, § 2606.
Second, to the extent Plaintiff’s claim is based on the D.C. Zoning Office granting initial
zoning approval for Plaintiff’s condominium building and then revoking that approval after
realizing that the building should be subject to IZ Program restrictions, this claim fails because
Plaintiff was not deprived of any “property.” What was revoked in this case was a preliminary
zoning approval, not any actual permit to build. This initial zoning approval appears to have
been “merely a step towards the acquisition of the building permit.” Tri Cty. Indus., Inc. v. D.C.,
104 F.3d 455, 458 (D.C. Cir. 1997). Under well-settled law in this circuit, the District does not
“‘deprive[ ]’ an applicant of ‘property’ whenever it backtracks on a prior favorable finding on
one of those steps, independently of withdrawal of the permit itself.” Id.
Finally, to the extent Plaintiff’s claim is based on the District’s alleged deprivation of
Plaintiff’s ability to use “bonus density,” the Court reiterates its finding, explained above, that
the basic premise underlying this claim—that the IZ Program became applicable on December
11, 2009 with no phase-in period—is not supported by the record. The IZ Program became
effective and applicable after a notice and comment period and a phase-in period on August 14,
2009. Accordingly, the District simply did not deprive Plaintiff of any property interest it might
have had in the bonus density available under the IZ Program. 23
23
The Court concludes that Defendants are entitled to summary judgment on Plaintiff’s
procedural due process claim for the reasons discussed herein, and accordingly does not need to
54
Accordingly, to the extent Plaintiff was deprived of any cognizable property right in this
case, that deprivation occurred with sufficient process of law. Plaintiff’s procedural due process
claim therefore fails.
IV. CONCLUSION
In sum, the Court finds that Defendants are entitled to summary judgment on each of
Plaintiff’s claims. Plaintiff’s various grievances about the District’s implementation of its IZ
Program, although perhaps not completely unjustified, do not rise to the level of constitutional
violations. Plaintiff has not established that regulations that restricted Plaintiff’s use of only 8-
10% of its development constituted an unconstitutional taking. Nor has Plaintiff established that
it was treated differently than any other developer under the IZ Program, or that anything about
the IZ Program or its implementation violated Plaintiff’s substantive or procedural due process
rights. Accordingly, Defendants’ [67] Renewed Motion for Summary Judgment is GRANTED
and Plaintiff’s [68] Motion for Summary Judgment is DENIED. 24 An appropriate Order
accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
reach Defendants’ alternative argument that this claim is barred by the statute of limitations.
24
Because Plaintiff does not prevail on any of its claims, Plaintiff’s request for attorney’s
fees is denied.
55 | 01-03-2023 | 02-14-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295065/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4126210/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 14, 2017
The Court of Appeals hereby passes the following order:
A17E0035. MAYS v. THE STATE.
The appellant’s motion for out-of-time application for discretionary appeal
from the denial of a motion to set aside a judgment is hereby DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/14/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142113/ | OFFICE OF THE AlTORNEY GENERAL OF T’EXAS
AUSTIN
Opinion Ho 1
?e: c0fiaOiida4237 0r in ana*
aoqmnies under t. 400SO&
v a 'I 3.C.S. 19
+
You hsvs nubbnrilit to rel questions Fotolv-
1~8 the eonstruotion 0r m e8 04 'an 5041 Vemoa*r I?.-
VLed Civil statuts8 0r Tax 0 , 0 1*8 0 0&0lidttti08 0r
iJleuraAnae0oERpRn1atl.
alder Art*. 5040
hutare MdOF th.
t neau8arg to *mend
h it Bmhllo~ 6apltal oboak
5erger. . . . and req,uire
BfmRta aB repremz%ti.Rngthe
eiore insuranira ocmpmla8 dolnd a
rinsof4 wNah are and hvo Been subrtanti-
controlling sto8kholdare and rrhioh have
as.aotual.LJ aompatlng with @ash other,
hamp have b4.n~ pradoualy ortpuxlasQ under
1116 Rtete, atap unite or ocarolidate upon ma-
pliaooe with the terns, or thir law. Suoh aonsol~dation
shall not be m9otmted in riolatiori or the anti-trwt
and *ntl-monopoly lawn or this State. Berore auy rooh
aousolld8tian shall take plaar Elm psrtlos holding art leas8
two-thirda of the capital ntook of aaeb of the oeeganlos
h. 0. P. Lookhert, pa%s 2
shell vats in Zevor thereor at e separete aeetlnngor the
etookholdere of eaah aoapaay aalled ror euah purpoee.
Suah neatln$ map bs salled in bhe smnaer provided in
the by-lawa of the Faepestlve 0os;malee OF the Iawe ondor
tile& suab ooqmnlee are o~izeaiaed, 14 oalltig eprahl
awtijpig~ or etookhOldeF8, esoe# that eaoh ntoakboldor
ehall~,.be notlried by aall. of the time end plaae and obfeot
or 8wh 8+watg.*
.b.rtr5041 pravi4art
%%ch kapaaiee ptopoeiag to eoaeolldste aey unite
their aer;ate OS eap pert thersor and beoole inoorpmeted
in ona body m&r th* nupe or my OII, OF aolpa of a&
oarpeniar cc’ &&a~ eny otthas aam4 thet may bo a ilq!j UwJb
M b iea le
r teek
la a uo i
o%
o r p QF stita l ltQokhe OF B
te tno
OS eeoh of the ooqariiee ao.neelldatod,
the eotwl value
or whioh 8Doek fa t&a am ocwpuyl ehall beer the came pro-
portion to the eotual valw et. b&%atoak eurrwSueU by
luoh l tooklwl4~r + We entlti Beebe ot the mapany IPI
r~Qar:og maah 0 ::,, 8ese tb the MtiFe ae~ata of the
asw ooqmny, rhloh ““x% a a lhe21 be ago@4 qmn by the beard
or dlreatora or 088h”~o 1 gtsorldaQl thetileid hook-
holder8 (holding tw6- s* the rtook) rmr~et the
muting pwwiue4 r0r .ta, thi,weaodiry lr tia le,
d*lo@a
tha vahetlon ,ciaemte t&a samnittea ot Hieakhaldon
appointed br their reageattre bmrdr or dlreotore; 8r
*2. orprmqmaq aey teki owir all the aeeete of
the other aa%pas@e ptopoefm to oonmlldrta an4 ieme
6tO6k to theirrtiookbO’ld8Fs iS th* ~FOp6Stt66 tht th.
valuq,or 06el~ esoek b6we ta bha eatire value 09 the
ad&i of ~$hc.a++qq 6n vi&oh they asa rtoakkol~m?@,
aad for thijs gmrpcrrrethe aapikl etoak ei 6uoh pureslrrlng
emmy trry be inoreeeed, te now OF mey b* herearter pro-
vld.4 by l.ew.
“3:. In ~880 or awealfdatioe M~V the fleet 8 t1o11
pfovided in the rlret eubdivfeion hereof, the Weeies P BBer
ehsll upon proof tarnished of ooqlteeoe with the tenan
hereof’ WXIbeilM: ltlefied thet tba pFWmed oan*olidetlc#l
is ror the brrt interseta of Ohs llay holdem et the
reepotivo 06?~pmlem and MLde iii r ~@8e)rdt8nOt9 With leW&RU
e; ~~~~~~~~h~Q~~~~~ P%.
nnd delltar a aharter CO *aOh LL@W O~puY*
#&. 0. P. xmkhart, pa@ 3
"4. SuQh ewwolidatfao shall uork a df8uolution of
the oompamie~ absorbd, but shall in 80 wise prrjudiaa the
right of aZig4xadftor of azip6uoh oorporatianto har4 pap
want O? hia debt out ot tha assets end property thwsof,
nor shall w oreditor be thereby daprived of, nor praju-
diOti iA .A$' Si&ht Of 80tkOn than peAfling @I' rxhtin& 01
whiah msy thsreaftm aslm a@Autt said oo~pany, and mr-
+icro or S~QIW Qf the proper offi44rs or a&eats of ssah
new tar r4orglrnlldd aorporatlon aball be doam saitioiant
aa to all or any of aaah 04qmni4s.
"5, AlI pOli410a of insuraaoa oatstaadlsg agsla8t
all s&oh aompaaies rhali by raamn of rueh aonselidatitwz
br arsumsd by ~tlha rcrorgluriadronpaty, aaQ they *hall carry
oat the tesiw Of suoh pdlioy on th4 t ot the lnsuror end
be astitlad 60 all the rlglhta and pr rrllagaa thsmof and the
;;;;m48 8oo~letiniF: on aaah polfog prior to sa0k aon8ollda-
.I
It till' ba &ba&xrad that the firat option pro+lQe&
br Art.504l pro~ldas teea n0vA80116e~tloA*and oontem letas thr
orgpmlaationof a naw aorposn$lpn to take over the baa zp
sass and
urotr or the croanolidatlng, obspaalas; nbilr the sa0oad O~%OA
aontsr fat48 a *m4rg4rP",with one vf' tha eorporatioo6 eontlaabg
it8 usfstume, but leqd.rlng Eke a'68ets OS tha othesrri
11n the 0880 qf the "ooaablLidntfOn*, 110 e A4B Of
vkdta-
the olmrtor of either of the corpwatians 18 iarolva )
tatas oont4mplatoa thr issuanos ol a sew abrter 60 a 31s~ mm-*.
'PhO 0Epikl. Rt?UOtUSO Of th0 “A4W 0mw” Il.86 ZtOt 4XO.d tee
aapltal struotwe or aithar of t&s aonsolldstina; BOQpU3lasf all
that 10 reqalred Is .+&at the aapital steak of thr4aw 0oapaAy~
be distributed among the stoakholdar8 of the 0QA8QliQatkrg 8014
orstlons in sush ammaw thr6t *the actual vaLlaO* 02 the sto0k
L the mw oosporatlongdtan to eaah storkheldw "shall bw tha
saaa proportion to tim aotual velua of the steak swrrs&itra4* by
sa6h 8tookbolPer *an tba~antirs assots of tha OOmpaAY aUSS*nd~iag
aash atook beara to thn aatlrs asaat&+f the A- OwQW.*
i..,
m. 0l.P. Lsakharti, page 1,
IA wbioh ther ire stookhoL40rsa, ths tnormso I@ not man5atvryg
,the, 0apital #took may s&saia the mm, baa say be rsa pesti-@
Aetgl(((;the st@akholdors ai tbc abaorblne and ths ebsor Ii
ad,ampany.
The 8eOanb branch Of pow question ingulres whsthar
upon *oonrollQatSon*, or apen *aorger” with SA 8ttsnCant larseas*
IA tha Oapita’l #tOOk Of the 8~WIving oo&qaAy for tha pltrpoae of
lff$ 0tiAgM .ppVStiO+Mt Plnong tha #tookholders Of t&e respae-
t~M~@oqaaio# of lts&ock, partlotiar assets as& ba deai@at&
aa rqpreaaatlng the aagltsl steel la the woonsolIUatadw 0-w
0~ the Qple hand, et as reproseating the Increa8o In cupit swok
la the %ar@ax* on the o6har.
XA tlilr 0i3nneotlon, toa asu oonemaed with the ltseo t
ffh/. 4720 upon oonsolldatioas OF aargars undar Art. 5040 an&
l
hrti. 4720 prorld*sr
Vihon the fkst reotlag of the 8toakholdscs shall bm
hali3 end tha ofriears a? tha OoapaJly ela&r9* the pm#i&wlt
or lrerstnry shall notify t&o Comlaslon~r~ arndhe aball
thmroupoa lmmdiataly make, or oauae to be u&o, at t&s 0x0
pan80 ot the oaapuby, a fall and thorsagh axamiaatlvn thumb.
Xf he rinds t&d all of the erpltel atoak of the ooopuiy,
awuattn& to not less thm oaa hundred thousaad dollars, hss
boon tally p&Q up an& Ss In the ou8to&y e? the nff&sars,
aIth8r la oaah ov seoarltlaa of t&s olsss in whloh sash o(*r
paalaa ars luthariaad bl this chqtaprbo bweet or lsaa tbeIir
funds, ho shall ~~QWIta 6wh aoa~paay a aaftifiaate ai author-
ity to traaaast aaoh kind or kLnda ot i~snrranes ba&ers~ritbln
this stat* as sash 0rmm8 glsg B yly tar. WH%as m&ybe aathor-
Iaad by fita ohartaet wbiPh aertir P catsshall axpjra #&It&e
last day ot Plabroary aart aitor ths data 31 it8 is#uan~&
Before suah stitiflorte la Iasned, AQt l45e thaiI tw@ OffiO~S
of EUOR company shall emout atd file with ths GosYissiBd~
a sworu eohedule of all the. astratr of ~the ooqany -b&tad
84 hita upon suth esamfnatlaa , shoriug ths valqa UsraW, ED-
sa$har wItA s stern ststaaent that the 65a4 ere bona ifda,
%a wuon<io~ral and urianaumbarea pso-party of the oeqaaY
gad are rotth the emurats tatat#l in suoh aohdtalo. HO o~~II&@
or fir& aattiffcate or aatbority ohall bo &ra~bml axeapt l.A
a6dordty hsrmith, regardleas ef the data 0% iillne 0r tha
utialto of inaorporation with the Comalralcw6r.*
&rer 0. P. Iaekhwt, pets 6
8. ?Y.?ni+ahild
Aari88M8 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142117/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAF.
AUSTIN
Honorable John S. Baker
County Auditor
Lnmnr county
Paris, Texas
Deal-sir:
fun8 to taks aare
90, repuestlng an
stated quasCion reade
aereag* 'enWI&& si0wdue a lkrg0 ~stl%oir'de-'
IlnQaent taies*
*f w&l& like t6 know if we ualzlegally ep-
propriate this money, derlimd irm delinC&ent
tax oollwC&z36, it and *en oC&leotieb to the
gsneral hid t6 take oaxe of the &made mabe
upon tue rwi."
FfonorqbleJohn 5. dkor, Page 2
This department has heretoforeruled on a question
vry almilar to the question preeented in your inquiry in
Opinion No. O-869. We enolose a oopy of said opinion for your
fnr0mdf0n.
In view or the authoritieeoited in said Opinion Ho.
O-869, it is our opinion that pour qUki8tiO!l should be answered
ln the negative.and Is so enewered.
Trusting that the roregolng rap anewer~ your in-
qulry , wo are
Yours very truly
ATTORNEYUi%ERALO~l'E2%S
APPROVED DEC 5,19W m
%8ell Wlllianm
Urorer Sellers /a/ AStliutaIlt
FIRfiTASS1STANT
ATTORHISYG-’
APPROVED
OPIRION
fX#MIl!TRP
BY B.V.8
CHA- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142122/ | OFFICE OF THE ATTORNEY GENERAL OF rEXAS
AUSTIN
flonoro blo Tra~lor RWMll
County Attorney
Titw- County
‘In meoh aqm ot oobvlotlonln 8 oettntp
Court; or a CountyCaurt notLaw, whetherby
& jwy or br l,Cnurt,them &all b8 tared
,ag9iast th9.,d9~9dant or a~alnat all doian&-
utt8, uhon rovqrcll 8re held jofotly,8 trial
fee ot Flvo uOllnri8, thm 66~6 to be oalleot
66 and p&l4 aver.llkthe rem0 m*nner a8 in the
owe OS a Jury fete,and 1x1the JuatlaeOowt
tho trial foe ehaU be the mm of POW D01lerr.~
PO think the above #t&s6 ~ua8tfoa I8 aiwurrsdin
the ns&tlve by the &ate Court of CrinrlnalAppcialr in the
fo1lonlngCeIOSI iil4lardeon v. state,4 8. %i.(86)99
Vera v. Stat.,10 S. ti.(0d) 383j cod &tnwte bll~, 10
a. w. @a) 703. 7brercrs, we ruqe0tsuUy aaswer your puerr-
tlon in tha.n~atlve.
ttuly anaworryous in-
Txwtiag mat mhe rorcr&olAg
pulpy,we cre
A#toG | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4399365/ | Case: 18-40957 Document: 00514966921 Page: 1 Date Filed: 05/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-40957 May 22, 2019
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROEL RUBEN RAMOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-69-1
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Roel Ruben Ramos was convicted of possession with the intent to
distribute 100 kilograms or more of marijuana and was sentenced to 87 months
of imprisonment, to be followed by four years of supervised release. On appeal,
he contends that his conviction was not supported by an adequate factual basis
because the Government did not meet its obligation to prove that he had
knowledge of the quantity of the controlled substance involved in his offense.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-40957 Document: 00514966921 Page: 2 Date Filed: 05/22/2019
No. 18-40957
As Ramos concedes, his sole appellate argument is foreclosed by United
States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), which determined
that Flores-Figueroa v. United States, 556 U.S. 646 (2009), did not overturn
United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir. 2003), and that the
Government is not required to prove knowledge of the drug quantity as an
element of a 21 U.S.C. § 841 offense. The Government thus did not have to
prove that Ramos knew the quantity of the controlled substance involved in
his offense.
Accordingly, Ramos’s unopposed motion for summary disposition is
GRANTED, and the judgment of the district court is AFFIRMED.
2 | 01-03-2023 | 05-22-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4125251/ | SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
200
KA 15-00762
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JEFFREY SAPP, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (JAMES M.
MARRA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered January 5, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the second degree and criminal possession of a
weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a controlled substance in the
second degree (Penal Law § 220.18 [1]) and criminal possession of a
weapon in the second degree (§ 265.03 [3]), defendant contends that
Supreme Court erred in refusing to suppress evidence seized during a
search of his residence by parole officers. We reject that
contention.
A parolee’s right to be free from unreasonable searches and
seizures is not violated if a parole officer’s search of the parolee’s
person or property “is rationally and reasonably related to the
performance of his [or her] duty as a parole officer” (People v
Huntley, 43 NY2d 175, 179; see People v Escalera, 121 AD3d 1519, 1520,
lv denied 24 NY3d 1083; People v Nappi, 83 AD3d 1592, 1593-1594, lv
denied 17 NY3d 820). A parole officer’s search is unlawful, however,
when the parole officer is “merely a conduit for doing what the police
could not do otherwise” (Escalera, 121 AD3d at 1520 [internal
quotation marks omitted]). Thus, “a parolee’s status ought not to be
exploited to allow a search which is designed solely to collect
contraband or evidence in aid of the prosecution of an independent
criminal investigation” (People v Candelaria, 63 AD2d 85, 90).
Contrary to defendant’s contention, we conclude that the record
-2- 200
KA 15-00762
supports the court’s determination that the search was “ ‘rationally
and reasonably related to the performance of the parole officer’s
duty’ and was therefore lawful” (People v Johnson, 94 AD3d 1529, 1532,
lv denied 19 NY3d 974). The parole officer testified that he searched
defendant’s apartment for the purpose of determining if defendant was
in violation of the conditions of his parole because he “received
credible information from law enforcement sources that defendant
possessed a large quantity of cocaine in his” residence (Escalera, 121
AD3d at 1520). With respect to the credibility of the law enforcement
source, the parole officer’s testimony, along with the testimony of an
agent with the Federal Bureau of Investigation (FBI) and other parole
officers, established that the parole officer received credible
information, originating from a confidential informant of the FBI
agent who had proven to be reliable in the past, that defendant was in
possession of a large quantity of cocaine (see People v Robinson, 72
AD3d 1277, 1278, lv denied 15 NY3d 809). To the extent that defendant
challenges that testimony, we “afford deference to the court’s
determination that the . . . testimony [of the People’s witnesses] was
credible” (Johnson, 94 AD3d at 1532).
We conclude that defendant’s further contention that the parole
officer was acting as an agent of law enforcement agencies is
undermined by the testimony of defendant’s parole officer and an FBI
agent that the law enforcement agency played no role in the decision
to search defendant’s residence. The FBI agent further testified that
the FBI was not investigating defendant on this matter, did not have
an open file on defendant, and did not relay the information in order
to have the parole officers search defendant’s home on their behalf
(see Escalera, 121 AD3d at 1520). Thus, we cannot conclude on this
record that the search was “designed solely to collect contraband or
evidence in aid of the prosecution of an independent criminal
investigation” (Candelaria, 63 AD2d at 90).
Defendant concedes that his remaining contention regarding the
search of his residence is unpreserved for our review (see CPL 470.05
[2]), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).
With respect to defendant’s remaining contentions, we note that,
“ ‘[b]y pleading guilty, defendant forfeited review of [Supreme]
Court’s Molineux and [Sandoval] ruling[s]’ ” (People v Pierce, 142
AD3d 1341, 1341; see People v Ingram, 128 AD3d 1404, 1404, lv denied
25 NY3d 1202).
Entered: February 10, 2017 Frances E. Cafarell
Clerk of the Court | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4108101/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,646
5 RACINE IRONWING,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 M. Victoria Wilson, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
1 WECHSLER, Judge.
2 {1} Defendant Racine Ironwing appeals from the judgment and sentence following
3 entry of his conditional guilty plea and argues that on appeal the district court erred
4 in denying his motion to suppress evidence, because the stop was not based on
5 reasonable suspicion. [DS 1, 4; RP 68, 89] This Court issued a notice proposing to
6 reverse on the grounds that the stop of Defendant was unreasonable under the Fourth
7 Amendment, Defendant’s subsequent concealment of his identity did not purge the
8 taint of the illegal stop, and the discovery of methamphetamine on Defendant’s person
9 was not so attenuated from the illegal stop to be admissible. [CN 1, 4–6] The State
10 filed a memorandum in opposition, which we have duly considered. Remaining
11 unpersuaded, we reverse.
12 {2} In its memorandum in opposition, the State concedes Defendant was
13 unconstitutionally seized, because the stop was not based on reasonable suspicion.
14 [MIO 5–7] Instead, the State argues that this Court should reconsider its decision in
15 State v. Tapia, in which this Court held “the commission of a non-violent,
16 identity-related offense in response to unconstitutional police conduct does not
17 automatically purge the taint of the unlawful police conduct under federal law.” 2015-
18 NMCA-055, ¶ 17, 348 P.3d 1050, cert. granted, 2015-NMCERT-005, 367 P.3d 441.
19 The State urges this Court to reverse its decision in Tapia and hold that, where, as in
2
1 this case, a defendant commits a non-violent, identity-related offense following an
2 unconstitutional stop, the identity-related offense should constitute a new crime that
3 purges the taint of the illegal stop. [MIO 8–9] In support of this argument, the State
4 offers various policy reasons to reconsider Tapia and also points out that our Supreme
5 Court granted the State’s petition for certiorari. [MIO 8, 9-20]
6 {3} Because, as we discussed in our notice of proposed disposition, Tapia is
7 directly on point and its effectiveness is not affected by the pending Supreme Court
8 review, [CN 4-5] we decline to consider the policy arguments the State advances in
9 support of reversal of Tapia. See Rule 12-405(C) (“A petition for a writ of certiorari
10 filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition
11 does not affect the precedential value of an opinion of the Court of Appeals, unless
12 otherwise ordered by the Supreme Court.”). Accordingly, we reverse.
13 {4} IT IS SO ORDERED.
14 ________________________________
15 JAMES J. WECHSLER, Judge
16 WE CONCUR:
17 ________________________________
18 M. MONICA ZAMORA, Judge
3
1 ________________________________
2 TIMOTHY L. GARCIA, Judge
4 | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4108104/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,551
5 RONNIE TRILLO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Charles W. Brown, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 John J. Woykovsky, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 WECHSLER, Judge.
1 {1} Defendant appeals from the revocation of his probation. We previously issued
2 a calendar notice proposing to summarily reverse. The State has filed a memorandum
3 in opposition. After due consideration, we reverse.
4 {2} Because we previously set forth the relevant background information in the
5 notice of proposed summary disposition, we will avoid lengthy reiteration here. Very
6 briefly, Defendant has argued that the district court erred in revoking his probation,
7 absent admissible evidence of a willful violation. [DS 7] In our notice of proposed
8 summary disposition we posited that the evidence upon which the district court
9 apparently relied (i.e., hearsay to the effect that Defendant was expelled from the
10 Good Shepherd program as a result of criminal misconduct) [MIO 6] was admitted in
11 violation of Defendant’s constitutional right to confrontation. [CN 2-6] In its
12 memorandum in opposition, the State concedes this point. [MIO 7-9]
13 {3} As we previously observed, Defendant testified that he did not willfully violate
14 the terms and conditions of his probation; rather, his participation in the Good
15 Shepherd program was terminated for reasons beyond his control. [DS 5] In the notice
16 of proposed summary disposition, we observed that the State did not appear to have
17 offered any admissible evidence to controvert Defendant’s mitigating assertion. [CN
18 6-7] See generally State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d
19 1321 (observing that probation revocation is inappropriate if a failure to comply was
2
1 not willful); In re Gabriel M., 2002-NMCA-047, ¶ 24, 132 N.M. 124, 45 P.3d 64
2 (observing that while the “trial court is not required to believe a defendant’s
3 testimony,” when reviewing for substantial evidence, “that disbelief cannot substitute
4 for affirmative proof of the [s]tate’s case”). In its memorandum in opposition the
5 State contends that evidence of an indirect nature was presented tending to rebut
6 Defendant’s assertion that the violation was not willful. [MIO 11] Two theories are
7 advanced.
8 {4} First, the State argues that insofar as Defendant admitted that he was expelled
9 from the program because he had “confrontations” or “altercations” with others, the
10 district court could reasonably have inferred that Defendant “was an active participant,
11 and at least partially responsible” for his ensuing expulsion from the program. [MIO
12 11-12] However, the fact that Defendant was involved in one or more disputes with
13 other program participants, without further elucidation, tells us nothing about
14 causation or responsibility. Furthermore, we find no indication that his involvement
15 in one or more confrontations with other program participants, standing alone and in
16 the absence of the allegations of underlying criminal misconduct, would have supplied
17 grounds for expulsion. Given the record’s silence on these matters, we are unable to
18 indulge the invited inferences. See generally State v. Slade, 2014-NMCA-088, ¶ 14,
19 331 P.3d 930 (“[A]n inference must be linked to a fact in evidence.”); Bowman v. Inc.
3
1 Cty. of Los Alamos, 1985-NMCA-040, ¶ 9, 102 N.M. 660, 699 P.2d 133 (“An
2 inference is more than a supposition or conjecture. It is a logical deduction from facts
3 which are proven, and guess work is not a substitute therefor.” (internal quotation
4 marks and citation omitted)).
5 {5} Second, the State asserts that Defendant’s failure to find an alternative program
6 “immediately” after his expulsion from the Good Shepherd program could be regarded
7 as evidence of willfulness. [MIO 12-14] However, the record before us contains no
8 evidence to suggest that admission to an alternative program was possible; and given
9 that Defendant actually obtained admission to an alternative program, [DS 6; MIO 6,
10 15] the invited inference of willfulness is not rationally supported. See generally id.
11 {6} Accordingly, for the reasons stated in the notice of proposed summary
12 disposition and above, we reverse and remand for further proceedings.
13 {7} IT IS SO ORDERED.
14 ________________________________
15 JAMES J. WECHSLER, Judge
16 WE CONCUR:
17 ________________________________
18 LINDA M. VANZI, Judge
4
1 ________________________________
2 J. MILES HANISEE, Judge
5 | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4289030/ | J-A10038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LEO HERNANDEZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRIAN E. QUINN, ESQUIRE, THE : No. 2017 EDA 2017
LAW OFFICES OF BRIAN E. QUINN, :
AND BRIAN E. QUINN ESQUIRE, PC :
Appeal from the Order Entered May 17, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 161001514
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2018
Appellant Leo Hernandez appeals from the order of May 17, 2017, that
sustained the preliminary objections of Appellees Brian E. Quinn, Esquire
(“Mr. Quinn”), The Law Offices of Brian E. Quinn, and Brian E. Quinn,
Esquire, PC, to Appellant’s second amended complaint (“the Complaint”) and
that dismissed the Complaint with prejudice. We affirm in part and reverse
in part. We reverse the trial court’s ruling sustaining Appellees’ preliminary
objections to the counts of invasion of privacy based on intrusion upon
seclusion, invasion of privacy based upon public disclosure of private facts,
invasion of privacy based upon publicity placing another in a false light
before the public, and intentional infliction of emotional distress; we
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10038-18
reinstate those claims. We affirm the trial court’s rulings as to all remaining
preliminary objections and its dismissal of all other counts.
In January 2013, Appellant, a registered nurse, testified1 in criminal
court against Charles Engelhardt, who was convicted of “one count each of
endangering the welfare of a child, corruption of minors, and indecent
assault.” Commonwealth v. Engelhardt, No. 2040 EDA 2013
(unpublished memorandum at 1) (Pa. Super. filed Mar. 25, 2015)
[hereinafter Engelhardt] (footnote omitted) (affirming judgment of
sentence); see id. at 3 (Appellant’s testimony). During his criminal trial and
appeal, Mr. Engelhardt was represented by Michael J. McGovern, Esquire,
from the firm McElroy, Deutsch, Mulvaney & Carpenter, LLP (“McElroy
Deutsch”). Appellant now alleges that Mr. McGovern attempted to “smear”
Appellant in order to damage Appellant’s credibility. The Complaint at 4-6,
25 ¶¶ 13, 20, 90.2
In March 2013, Appellant initiated an unrelated civil medical
malpractice claim against Jay Glickman, D.O., and Independence Medical
____________________________________________
1 See Court of Common Pleas Docket No. CP-51-CR-0003525-2011, Trial
Court Opinion, 12/17/13, at 3.
2 According to the Complaint, the victim in Engelhardt also filed a civil suit
against Mr. Engelhardt and Mr. Engelhardt’s former employer, the
Archdiocese of Philadelphia. The Complaint at 4 ¶ 8. The complaint further
alleged that Mr. McGovern claimed that Appellant “perpetrated a fraud” by
“scheming” with the victim in order to “get paid” in the victim’s civil case.
Id. at 5 ¶ 13.
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J-A10038-18
Associates, P.C. (“the Glickman Defendants”), Hernandez v. Glickman,
Court of Common Pleas of Philadelphia County Civil Division Docket No.
130304392 [hereinafter Glickman]. Appellees were personal disciplinary
counsel for the Glickman Defendants. The Complaint at 6 ¶ 20B. During
pretrial discovery, both Appellant and his mother gave depositions.
In October 2015, Appellant commenced a civil action against
Mr. McGovern and McElroy Deutsch, Hernandez v. McGovern, Court of
Common Pleas of Philadelphia County Civil Division Docket No. 151001280
[hereinafter McGovern].3 The complaint in McGovern alleged defamation,
injurious falsehood, invasion of privacy based upon three different theories,
intentional infliction of emotional distress, illegal distribution of confidential
information, tortious interference with contractual relationship, and civil
conspiracy.
In October 2016, Appellant commenced this current civil action against
Appellees, Hernandez v. Quinn, Court of Common Pleas of Philadelphia
County Civil Docket No. 161001514, by writ of summons. In November
2016, Appellant filed a complaint. In December 2016, Appellees filed
preliminary objections to the complaint.4 Before the trial court entered an
____________________________________________
3 As of the date of this memorandum, that matter is ongoing.
4 Appellees’ preliminary objections to the initial complaint and preliminary
objections to the first amended complaint raised identical challenges as their
preliminary objections to the Complaint.
-3-
J-A10038-18
order on the preliminary objections, in January 2017, Appellant filed an
amended complaint, and Appellees once more filed preliminary objections.
Again, before the trial court entered an order on the preliminary
objections to the amended complaint, in February 2017, Appellant filed the
Complaint,5 which alleged the following facts:
20. . . . [Mr.] McGovern . . . acquired [Appellant]’s private and
confidential medical records, psychiatric records, and civil
deposition, which he knew he had no authorization to have, and
further distributed those records in and around Philadelphia and
Pennsylvania to lawyers, bloggers, the press, and the public at
large.
20A . . . [Mr.] McGovern and McElroy Deutsch admitted in
response to [Appellant]’s discovery requests in this case, and
also a court order compelling answers to those discovery
requests, that . . . [Mr.] Quinn had secretly given them
[Appellant]’s litigation, medical, and psychiatric records—as well
as pictures.[6] . . .
20C At the time of the distribution in August and September
2014, none of these litigation records, medical records, and/or
pictures had been made public or were filed on the docket in
[Appellant]’s medical malpractice case. . . .
20D [Mr.] McGovern had to obtain these records from
[Mr.] Quinn, personal counsel for the medical malpractice
defendant, [the Glickman Defendants,] precisely because the
records were not public. . . .
____________________________________________
5 i.e., the second amended complaint.
6 Later in the Complaint, Appellant clarified that these photographs included
“naked pictures” of him, only intended for attorneys in Glickman. The
Complaint at 24 ¶ 87C.
-4-
J-A10038-18
20F [Mr.] Quinn sent an email (included in Exhibit 1[7] to th[e
C]omplaint) to [Mr.] McGovern at 3:39 pm on September 18,
2014, with attachments identified as [Appellant]’s medical
records from Belmont Behavioral Health and exhibits from
[Appellant]’s deposition.
20G [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
C]omplaint) to [Mr.] McGovern at 3:42 pm on September 18,
2014, with the attachments identified as pictures of [Appellant]
and [Appellant]’s house.[8]
20H [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
C]omplaint) to [Mr.] McGovern at 3:43 pm on September 18,
2014, with the attachments identified as pictures of [Appellant].
20I [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
C]omplaint) to [Mr.] McGovern at 3:44 pm on September 18,
2014, with the attachments identified as pictures of
[Appellant].[9]
20J [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
C]omplaint) to [Mr.] McGovern at 3:45 pm on September 18,
2014, stating that he would provide to Mr. McGovern the
depositions of [Appellant] and [Appellant]’s mother.
____________________________________________
7 According to Exhibit 1, Mr. McGovern received Appellant’s “deposition,
exhibits to that deposition, photographs, and drug treatment records” for
Appellant from Mr. Quinn. The Complaint, Ex. 1, Def., Michael McGovern,
Esquire Supp. Answers to Pl.’s Interrogs. in McGovern, 8/15/16, at ¶ 7, 8,
18.
8 Although the photographs themselves were not attached to the Complaint,
the file name of one of the attachments is “Leo naked at new home dec
2011.JPG”. The Complaint, Ex. 1, Email from Mr. Quinn to Mr. McGovern
(Sept. 18, 2014, 3:42 p.m.).
9 Although these photographs themselves were also not attached, the file
names of some of the attachments to the email were “Leo naked after
shower.JPG”, “Leo naked at new home dec 2011.JPG”, “Leo naked at
work.JPG”, “Leo post orchiectomy to show me what the loss of testicle
looked like.JPG”. The Complaint, Ex. 1, Email from Mr. Quinn to
Mr. McGovern (Sept. 18, 2014, 3:44 p.m.).
-5-
J-A10038-18
20K [Mr.] Quinn received an email (included in Exhibit 1 to th[e
C]omplaint) from a McElroy Deutsch employee named
Tracey McQuaid at 7:36 am on September 19, 2014, stating that
a “runner” would pick up the depositions of [Appellant] and
[Appellant]’s mother.
20L On or around September 19, 2014, [Mr.] Quinn provided
the depositions of [Appellant] and/or [Appellant]’s mother to a
courier and/or a runner.
20M On or around September 19, 2014, someone acting at the
direction of and/or on behalf of [Mr.] Quinn, through an agency
relationship and/or employment, provided the depositions of
[Appellant] and/or [Appellant]’s mother to a courier and/or a
runner.
21. The privacy of those records are protected by law and
[Mr.] McGovern had absolutely no authorization to receive or
distribute [Appellant]’s medical, psychiatric, and legal records.
[Mr.] McGovern’s conduct is a shocking breach of [Appellant]’s
privacy rights, and his conduct in doing so was in violation of the
Rules of Civil Procedure, Rules of Criminal Procedure, the
Philadelphia Civil Rules, Disciplinary rules, and state/federal law
(such as HIPAA) including the state and federal constitutions.
...
24. In addition, [Appellant]’s deposition from [Glickman] was
anonymously mailed to [Appellant]’s employer and the state
nursing board in an unmistakable attempt to have him fired from
his job. . . .
25A Upon information and belief, [Mr.] Quinn was involved in
the distribution of [Appellant]’s medical malpractice deposition to
his employer.
25B [Mr.] Quinn wrote the document attached as Exhibit 2[10]
to th[e C]omplaint.
____________________________________________
10 Exhibit 2 appears to be a one-page cover letter for the copy of Appellant’s
deposition that was mailed to his employer, but it is not labelled as such and
does not mention the deposition in the text. The letter is to the attention of
“Jill Stunkard MSN RN” and is undated and unsigned. The letter is copied
(Footnote Continued Next Page)
-6-
J-A10038-18
25C Someone acting at the direction and/or on behalf of [Mr.]
Quinn, through an agency relationship and/or employment,
wrote the document attached as Exhibit 2 to th[e C]omplaint.
25D [Mr.] Quinn mailed the document attached as Exhibit 2 to
th[e C]omplaint.
25E Someone acting at the direction of and/or on behalf of
[Mr.] Quinn, through agency relationship and/or employment,
mailed the document attached as Exhibit 2 to th[e C]omplaint.
25F [Mr.] Quinn knows the identity of the individual who
mailed the document attached as Exhibit 2 to th[e C]omplaint.
25G [Mr.] Quinn knows the identity of the individual who
mailed the envelope attached as Exhibit 3[11] to th[e C]omplaint.
25H [Mr.] Quinn knows the identity of the individual who
handwrote the addresses on the envelope attached as Exhibit 3
to th[e C]omplaint.
The Complaint at 6-10 ¶¶ 20-20A, 20C-D, 20F-M, 21, 24, 25A-H.
(Footnote Continued) _______________________
(“cc:”) to “Richard Greenberg MD”, “Deborah Cattolico BSN CMSNN MSN”,
and “PA State Board of Nursing”.
11 Exhibit 3 to the Complaint is a photocopy of the front and back of an
envelope with the handwritten mailing address of “Einstein Medical Center,
Jill Stunkard MSN RN, 5501 Old York Rd, Philadelphia, PA 19141” and with
the handwritten return address of “Einstein Med. Ctr. – Elkins Park, 60
Township Rd, Elkins Park, PA 19027.” There is no address to or from
Appellees, McElroy Deutsch, or Mr. McGovern. The Complaint, Ex. 3, at 1-2.
Additionally, the postmark on the envelope is from “Doylestown, PA 18901”
in August 2014. Id. at 1; accord the Complaint at 9 ¶ 24 (“Discovery
obtained from the United States Post Office revealed that whoever sent
these documents did so from the Doylestown, PA post office.”).
(We are uncertain why Appellant draws the court’s attention to the fact that
the envelope was mailed from Doylestown, as the Complaint avers that
Appellant, Mr. McGovern, McElroy Deutsch, Mr. Quinn, The Law Offices of
Brian E. Quinn, and Brian E. Quinn Esquire, PC, all have Philadelphia
addresses. The Complaint at 14-15 ¶¶ 36, 39, 43, 43D, 43F, 43I.)
-7-
J-A10038-18
The Complaint pleaded the following causes of action: invasion of
privacy based upon intrusion upon seclusion, public disclosure of private
facts, and false light; intentional infliction of emotional distress (“IIED”);
illegal distribution of confidential information; tortious interference with
contractual relationship (“tortious interference”); and civil conspiracy. Id. at
22-34 ¶¶ 77-118.
For the count of invasion of privacy based upon public disclosure of
private facts, the Complaint added that Appellees “acquired” Appellant’s
“private and confidential records and pictures, and the facts contained
therein, and distributed them to [Mr.] McGovern and others without any
authorization whatsoever.” Id. at 24 ¶ 87A. It continues: “Upon
information and belief, [Appellees] distributed these confidential records to
other individuals and entities who had no authorization to possess[] them,
including [Appellant]’s place of employment.” Id. at ¶ 87B.
For the count of false-light invasion of privacy, the Complaint further
stated:
95A [Appellees’] distribution of [Appellant]’s litigation records
to his employer and the nursing board, as well as being
malicious, was done to portray Appellant in a false light at his
workplace. [Appellee] highlighted specific portions of the long
deposition out of context (from both the entire deposition and
the overall litigation), specifically for the purpose of having
[Appellant] fired.
95B At all points [Mr.] Quinn intended to portray [Appellant] in
2014 as a drug addict and otherwise immoral person . . .
95C [Appellees] also distributed the litigation records, medical
records, and pictures to [Mr.] McGovern for the same purpose
-8-
J-A10038-18
demonstrated by [Mr.] Quinn when he sent the litigation records
to [Appellant]’s employer and the nursing board. [Mr.] Quinn
knew or should have known, and intended, that [Mr.] McGovern
would also improperly use the documents.
95D The articles in question also falsely portray [Appellant] in a
false light as they omit many contextual facts which would place
[Appellant] in a different light if they were known to the reader.
Id. at 26-27 ¶¶ 95A-D.
For the count of tortious interference, the Complaint also stated that
Appellant “had and has a contractual employment relationship with
Albert Einstein Medical Center.” Id. at 32 ¶ 109.
In March 2017, Appellees filed preliminary objections requesting
demurrer on all counts of the Complaint. Prelim. Objs. of Appellees to the
Complaint, 3/6/17, at 3-4, 6-7, 9, 11-12, 14-15. Preliminary objections of
the ground of demurrer – i.e., legal insufficiency of the pleading – are raised
pursuant to Pa.R.C.P. 1028(a)(4). Appellees’ preliminary objections
contained averments raising facts that were not already of record. Prelim.
Objs. of Appellees to the Complaint, 3/6/17, at 5-7, 15-17 ¶¶ 23, 25, 30,
33, 36, 72-80. Specifically, these were facts about Glickman that were not
included in the Complaint, including that Appellant’s testimony in his
deposition for Glickman allegedly “contradicted” his in-court testimony in
Engelhardt; a purported release from a settlement agreement in Glickman
was attached to the preliminary objections as Exhibit A (“the Release”). Id.
at 5, 7, 15-16 ¶¶ 23, 25, 36, 74, 76 & Ex. A. Appellant then filed
preliminary objections to Appellees’ preliminary objections.
-9-
J-A10038-18
On May 17, 2017, the trial court entered two orders: one overruled
Appellant’s preliminary objections to Appellees’ preliminary objections; the
other sustained Appellees’ preliminary objections to the Complaint “in their
entirety” and dismissed the Complaint with prejudice. The trial court
simultaneously issued a “Memorandum in Support of Order Dismissing [the]
Complaint” and a “Supplemental Memorandum Relating to the General
Release Executed by [Appellant].”
In June 2017, Appellant timely filed this appeal. The trial court did not
order and Appellant did not provide a statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b), but the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant now raises the following issues on appeal:
[1.] Affirmative defenses may not be advanced at the
preliminary objection stage. Was it reversible error for the [trial]
court to prematurely adjudicate several affirmative defenses--
over [Appellant]’s objection--when [Appellant] was prejudiced
and harmed by these improper rulings which were done in
violation of the Rules?
[2.] Did the [trial] court misinterpret the plain language and
scope of the Release which in no way applies to the actions of
[Appellees] where [they] engaged in a pattern of secretive
witness intimidation and retaliation against [Appellant] by
distributing his medical and psychiatric records to third parties
outside the malpractice action, which was illegal, violated public
policy, and went far beyond the scope of the Release?
[3. Appellees] never verified their pleadings. Neither the
Release--nor any of the allegations surrounding the Release--
which the [trial] court relied upon were verified by anyone. Was
it reversible error when the [trial] court failed to sustain
[Appellant]’s preliminary objections concerning the failure of
[Appellees] to submit a verification for substantive facts and
- 10 -
J-A10038-18
documents which the [trial] court relied upon in coming to its
findings?
[4. Appellant] had a constitutional right to privacy for his
psychiatric and medical records. Was it reversible error for the
[trial] court to dismiss this cause of action when there was
irrefutable documentary proof that [Appellees] had in fact
illegally distributed [Appellant]’s confidential records?
[5. Appellant] retains full medical privacy rights outside of a
medical malpractice action. [Appellees] distributed [Appellant]’s
medical and psychiatric records to third parties outside the
malpractice action without authorization and for an improper
purpose. Did the [trial] court wrongly find that [Appellant] had
no privacy rights for his medical records and erroneously dismiss
the invasion of privacy claims?
[6. Appellant] pled that [Appellees] anonymously sent
litigation records to [Appellant]’s employer with the intent and
purpose of having [Appellant] fired, and distributed his
confidential psychiatric records to third parties. Did the [trial]
court erroneously dismiss [Appellant]’s tortious interference . . .
and [IIED] claims because it failed to credit these facts in
[Appellant]’s favor?
Appellant’s Brief at 9-10 (emphasis in original) (issues re-ordered to
facilitate disposition and suggested answers omitted).
In considering an appeal from an order granting preliminary
objections in the nature of a demurrer, which is a question of
law, our standard of review is de novo and our scope of review is
plenary.
The court may sustain preliminary objections only when, based
on the facts pleaded, it is clear and free from doubt that the
complainant will be unable to prove facts legally sufficient to
establish a right to relief. For the purpose of evaluating the legal
sufficiency of the challenged pleading, the court must accept as
true all well-pleaded, material, and relevant facts alleged in the
complaint and every inference that is fairly deducible from those
facts.
Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super.
2016) (citations omitted) (some formatting added).
- 11 -
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“In ruling on preliminary objections in the nature of a demurrer, the
trial court may consider no testimony or evidence outside of the complaint.”
Schmidt v. Deutsch Larrimore Farnish & Anderson, LLP, 876 A.2d
1044, 1046 (Pa. Super. 2005). “[P]reliminary objections in the nature of a
demurrer . . . should be sustained only if, assuming the averments of the
complaint to be true, the plaintiff has failed to assert a legally cognizable
cause of action.” Langella v. Cercone, 34 A.3d 835, 838 (Pa. Super. 2011)
(citation omitted).
Affirmative Defenses, the Release, and Verification
We begin by addressing Appellant’s challenges to the inclusion of
“affirmative defenses”12 and the Release in Appellees’ preliminary objections
and the lack of a verification with those preliminary objections. Appellant’s
Brief at 44-48 (Appellant’s argument about “affirmative defenses . . . at the
preliminary objection stage”), 65-66 (Appellant’s argument about the lack of
verification, including challenges to Appellees’ failure to verify the Release
and “any of the allegations surrounding the Release” (citing Atl. Credit &
Fin., Inc. v. Giuliana, 829 A.2d 340, 344 (Pa. Super. 2003)).
Appellant is correct that Appellees should not have included any new
factual averments – i.e., averments that were not included in the Complaint
____________________________________________
12 We do not necessarily subscribe to Appellant’s characterization of certain
paragraphs of Appellees’ preliminary objections to the Complaint as
“affirmative defenses,” but we need not reach this issue.
- 12 -
J-A10038-18
-- in their preliminary objections pursuant to Pa.R.C.P. 1028(a)(4)
requesting demurrer. See Langella, 34 A.3d at 838; Schmidt, 876 A.2d at
1046. To do so is an improper “speaking demurrer.” See, e.g., Welteroth
v. Harvey, 912 A.2d 863, 869 (Pa. Super. 2006); Regal Indus. Corp. v.
Crum & Foster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005). Any such
facts, including the existence and content of the Release, should be stricken
at this stage, see Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 5-
7, 15-17 ¶¶ 23, 25, 30, 33, 72-80 & Ex. A. To the extent that the trial court
considered them, it was in error.13
As a verification is only required where new averments of fact are
pleaded and as we have eliminated all new averments of fact from the
preliminary objections, there is no need for a verification, and any
consideration of whether one should have been attached to the preliminary
objections hence is moot. See Pa.R.C.P. 1024(a) (only pleadings
“containing an averment of act not appearing of record in the action” require
a verification).
Illegal Distribution of Confidential Information
Next, Appellant contends that he “had a constitutional right to privacy
for his psychiatric and medical records” and that “it was reversible error for
____________________________________________
13 We make no determination as to Appellees’ ability to introduce the
Release and any other evidence about or from Glickman at any later stage
of the current action.
- 13 -
J-A10038-18
the [trial] court to dismiss this cause of action for the illegal distribution of
[his] confidential records.” Appellant’s Brief at 25.
However, we find no such tort as “illegal distribution of confidential
information” in Pennsylvania, the Complaint at 30-31 ¶¶ 103-107, and
Appellant provides us with no Pennsylvania authority to support this cause of
action. Appellant’s Brief, at 27, cites to a Supreme Court of Ohio case,
Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 154, 156, 158 (Ohio
2008), recognizing this tort; however, in Hageman, only two justices joined
the opinion, while two justices concurred, and two justices dissented. Id. at
158. We decline to create a new cause of action in Pennsylvania.
Appellant’s challenge thus fails to merit relief.
Invasion of Privacy
“[I]nvasion of privacy involves four separate torts: (1) unreasonable
intrusion upon the seclusion of another; (2) appropriation of another’s name
or likeness for commercial purposes; (3) publicity given to another’s private
life; and (4) publicity that unreasonably places another in a false light before
the public.” Tagouma v. Investigative Consultant Servs., Inc., 4 A.3d
170, 174 (Pa. Super. 2010) (citation omitted). Here, Appellant contended
that Appellees engaged in the first, third, and fourth torts. The Complaint at
22-27 ¶¶ 77-97.
Even though these are three separate causes of action, the trial court
memorandum combined all three, writing:
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Not only did [Appellant] choose to place his personal life at issue
when he filed a medical malpractice claim, [Appellant] testified
in one of a series of very public and publicized criminal trials.
. . . [Appellant’s] actions and inactions were within the scope of
legitimate public concern. He was “news” and newsworthy, even
though he may not have sought nor wanted publicity. Moreover,
it is well-established that a plaintiff in a civil case or a claimant in
a Workers’ Compensation matter have diminished expectations
of privacy. A patient’s privacy interests and rights to
confidentiality are reduced when he files suit.
Trial Court Mem. in Supp. of Order Dismissing Appellant’s the Complaint
(TCM), 5/17/17, at 8-9 (citations omitted).
In his brief to this Court, Appellant likewise combines his argument
about the dismissal of his invasion of privacy claims, contending that he
“retain[ed] full medical privacy rights outside of a medical malpractice”
action and that the trial court “wrongly found [he] had no privacy rights for
his medical records and erroneously dismissed the invasion of privacy
claims.” Appellant’s Brief at 30. He continues that the trial court “analyzed
a completely wrong legal standard, failing to apply the correct legal analysis
explained in Moses v. McWilliams,” 549 A.2d 950, 959 (Pa. Super. 1988)
(en banc). Appellant’s Brief at 32.
Appellees raised separate preliminary objections to each of the three
different invasion of privacy causes of action. We will consider each in turn.
Intrusion Upon Seclusion
According to Appellees’ preliminary objection to Appellant’s cause of
action for invasion of privacy based on intrusion upon seclusion, Appellant
“gave up his right to ‘seclusion’ of the details of his personal life” by filing
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Glickman and thereby “chose to place his personal life, medical history, and
social history in a public forum when he filed suit[.]” Prelim. Objs. of
Appellees to the Complaint, 3/6/17, at 4 ¶¶ 18, 21.
The trial court concluded that Appellant was “an involuntary public
figure” – i.e., an “individual[] who had not sought publicity or consented to
it, but through their own conduct or otherwise became a legitimate subject
of public interest” -- who “testified in one in a series of very public and
publicized criminal trials.” TCM at 8 (quoting Restatement (Second) of Torts
§ 652D cmt. f).14 The trial court also found that Appellant’s intrusion upon
seclusion claim, the Complaint at 22-23 ¶¶ 77-84, did “not aver that
[Appellees] were not properly or legitimately in possession of the challenged
materials in the course of and scope of their representation of” the Glickman
Defendants. TCM at 10.
However, Appellees’ preliminary objections never raised the question
of whether they had properly obtained the challenged materials nor
contended that Appellant had relinquished his right to seclusion by testifying
in Engelhardt. Instead, the preliminary objections argued that Appellant
had “given up his right to ‘seclusion’” by initiating Glickman. Prelim. Objs.
____________________________________________
14 Restatement (Second) of Torts § 652D cmt. f only applies to causes of
action for invasion of privacy based upon publicity given to another’s private
life, not for intrusion upon seclusion.
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of Appellees to the Complaint, 3/6/17, at 4 ¶ 21. Thus, the trial court
decided this preliminary objection on an improper basis.
Based upon a de novo standard of review, Heldring, 151 A.3d at 641,
we may now consider the merit of Appellees’ actual preliminary objection to
Appellant’s intrusion upon seclusion claim. In doing so, we strenuously
disagree with Appellees’ interpretation that information acquired during
discovery in a medical malpractice lawsuit is automatically “in a public
forum.” Appellees’ Brief at 14. As this Court has asserted:
[P]rivate documents collected during discovery are not judicial
records. Anderson v. Cryovac, Inc., 805 F.2d 1 (1st
Cir.1986); see also Seattle Times v. Rhinehart, 467 U.S. 20,
104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). . . . [D]iscovery is
essentially a private process. As stated by the Supreme Court in
Seattle Times, “pretrial depositions and interrogatories are not
public components of a civil trial.” Seattle Times, 467 U.S. at
33, 104 S. Ct. at 2207. Thus, wrote the Court, “such
proceedings were not open to the public at common law.” Id.
Justice Burger wrote separately in another Supreme Court
opinion that “it has never occurred to anyone, so far as I am
aware, that a pretrial deposition or pretrial interrogatories were
other than wholly private to the litigants.” Gannett Company
v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61
L.Ed.2d 608, 632 (1979).
Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960-61 (Pa. Super.
1989) (some citations omitted). Appellant’s deposition and any other
documents or information obtained by Appellees during discovery in
Glickman had not been filed on that docket or otherwise entered into
evidence in that case, the Complaint at 7 ¶ 20C, and hence were not
publicly available judicial records. See Stenger, 554 A.2d at 960-61. Thus,
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Appellees’ contention that the challenged materials somehow became public
and that their contents were no longer private and consequently could be
disseminated indiscriminately is erroneous.
Additionally, a plaintiff’s status as a public figure is not a defense to
intrusion upon seclusion. The Restatement (Second) of Torts § 652B cmt. b
(1977)15 provides two useful examples:
A, a woman, is sick in a hospital with a rare disease that arouses
public curiosity. B, a newspaper reporter, calls her on the
telephone and asks for an interview, but she refuses to see him.
B then goes to the hospital, enters A’s room and over her
objection takes her photograph. B has invaded A’s privacy. . .
A, a professional photographer, seeking to promote his business,
telephones B, a lady of social prominence, every day for a
month, insisting that she come to his studio and be
photographed. The calls are made at meal times, late at night
and at other inconvenient times, and A ignores B’s requests to
desist. A has invaded B’s privacy.
Id. illus. 1, 5. Therefore, even if an individual is the subject of public
interest or is a public or socially prominent figure, his or her privacy may still
be invaded pursuant to a theory of intrusion upon seclusion. Hence, even
assuming that Appellant’s decision to testify as what Appellees characterize
as “a crucial witness in a highly publicized criminal trial,” Appellees’ Brief at
____________________________________________
15 Although the Supreme Court of Pennsylvania has not officially adopted the
definition of intrusion upon seclusion as set forth in the Restatement
(Second) of Torts § 652B, this Court has relied upon it and its comments in
analyzing such claims. See, e.g., Tagouma, 4 A.3d at 174. In the absence
of a contrary pronouncement by the Supreme Court, we are free to adopt
sections of the Restatement in an appropriate case. Newell, 154 A.3d at
824 n.7.
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14, made him a public figure, such status would not justify an intrusion upon
his solitude or seclusion.16
Appellees’ objection to Appellant’s claim for invasion of privacy based
on intrusion upon seclusion thus is unsupportable. For this reason, this
objection should have been overruled, and we reverse the decision of the
trial court and reinstate the count of invasion of privacy based on intrusion
upon seclusion.
Publicity Given to Private Life
The elements of an invasion of privacy claim based upon publicity
given to private life are: “publicity, given to private facts, which would be
highly offensive to a reasonable person and which are not of legitimate
concern to the public.” Strickland v. Univ. of Scranton, 700 A.2d 979,
987 (Pa. Super. 1997) (citation omitted).
Appellees preliminarily objected to this count, maintaining that,
although the Complaint insists that “private facts” were disclosed, the
Complaint fails to detail what those private facts were. Prelim. Objs. of
Appellees to the Complaint, 3/6/17, at 6 ¶ 29.
____________________________________________
16 Additionally, we are concerned that Appellees’ suggestion that anyone
who testifies in a criminal case could suddenly have his or her private
information, including medical records and intimate photographs, considered
publicly available would have a chilling effect on individuals’ willingness to
testify at criminal trials.
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This assertion is incorrect. The Complaint is replete with allegations
that Appellees disclosed specific private facts, including the unauthorized
distribution of Appellant’s medical records from Belmont Behavioral Health,
drug treatment records, other medical and psychiatric records, and
photographs of Appellant while naked. The Complaint at 6-8, 24 ¶¶ 20,
20A, 20C, 20F-20G, 20I, 21, 87C & Ex. 1, Def., Michael McGovern, Esquire
Supp. Answers to Pl.’s Interrogs. in McGovern, 8/15/16, at ¶ 7, 8, 18 &
Emails from Mr. Quinn to Mr. McGovern (Sept. 18, 2014, 3:42 and 3:44
p.m.).17 Accordingly, Appellees’ first preliminary objection to Appellant’s
claim of invasion of privacy based upon publicity given to private life fails.
Next, Appellees repeat the same objection that they made against the
intrusion upon seclusion invasion of privacy claim – i.e., that, “[b]y filing a
civil suit alleging personal injuries, [Appellant] relinquished his expectation
of privacy[,]” that Appellant’s “personal life and medical issues became
relevant and public issues in his civil suit[,]” and that Appellees thus cannot
be held liable for merely giving further publicity to information about a party
that is already public. Prelim. Objs. of Appellees to the Complaint, 3/6/17,
at 6-7 ¶¶ 32, 34. This objection fails for the same reason that it was
____________________________________________
17 “[T]he appellate court must examine the averments in the complaint,
together with the documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred.” N. Forests II, Inc. v. Keta
Realty Co., 130 A.3d 19, 35 (Pa. Super. 2015). We thus have examined
Exhibit 1 attached to the Complaint when determining the sufficiency of the
facts averred.
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unsuccessful under the invasion of privacy claim based on intrusion upon
seclusion – i.e., private documents collected during discovery are not judicial
records and not public. See Stenger, 554 A.2d at 960-61.
For these reasons, none of Appellees’ preliminary objections to the
count of invasion of privacy based upon publicity given to private life are
sustainable. Consequently, we reverse the trial court’s decision to sustain
these objections, and we reinstate this count.18
Publicity Placing Another in a False Light Before the Public
“The tort of false light-invasion of privacy involves publicity that
unreasonably places the other in a false light before the public.” Rush v.
Phila. Newspapers, Inc., 732 A.2d 648, 654 (Pa. Super. 1999) (citations
and internal quotation marks omitted). Appellees objected to this count on
the basis that the Complaint did not plead facts alleging that they provided
____________________________________________
18 As with the preliminary objection to the previous invasion of privacy
count, this preliminary objection only challenges whether the information
disclosed was private. It does not raise any claims concerning the additional
elements of invasion of privacy based upon publicity given to private facts,
including whether the Complaint properly pleaded the element of “publicity”
itself. Again, neither we nor the trial court could hence consider whether
this element was properly pleaded. To the extent the trial court considered
whether the Complaint sufficiently pleaded the element of publicity for the
publicity given to private life cause of action, it did so erroneously. See
MacGregor v. Mediq Inc., 576 A.2d 1123, 1128 (Pa. Super. 1990)
(“matters not raised in preliminary objections may not be considered by the
court sua sponte”); Alumni Assoc., Delta Zeta of Lambda Chi Alpha
Fraternity v. Sullivan, 535 A.2d 1095, 1101 (Pa. Super. 1987) (“matters
not raised in preliminary objections are not to be considered by the court
sua sponte”).
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Appellant’s deposition to the press or to Appellant’s employer. Prelim. Objs.
of Appellees to the Complaint, 3/6/17, at 8 ¶ 40.
“[P]ublicity” means that the matter is made public, by
communicating it to the public at large, or to so many persons
that the matter must be regarded as substantially certain to
become one of public knowledge. Thus, it is not an invasion of
the right of privacy to communicate a fact concerning the
plaintiff’s private life to a single person or even to a small group
of persons.
Doe v. Wyo. Valley Health Care Sys., Inc., 987 A.2d 758, 765-66 (Pa.
Super. 2009) (internal citations, ellipsis, and some quotation marks
omitted).
Here, the body of the Complaint itself only named one specific person
to whom Appellees allegedly disclosed the challenged materials --
Mr. McGovern.19 The Complaint at 6-8, 24 ¶¶ 20A, 20D, 20F-20M, 87A. As
noted above, disclosure to one person is insufficient to establish the element
of “publicity.” See Doe, 987 A.2d at 766.
However, the Complaint also averred that Mr. Quinn “knew or should
have known, and intended, that [Mr.] McGovern would also improperly use
the documents.” The Complaint at 27 ¶ 95C; accord Appellant’s Brief at 36.
This alleged improper use of the documents by Mr. McGovern is that he gave
the challenged materials to “bloggers, the press, and the public at large.”
The Complaint at 6 ¶ 20.
____________________________________________
19 Mr. McGovern is not named as a defendant in the Complaint.
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Furthermore, the Complaint alleged that Appellees “distributed these
confidential records to other individuals and entities who had no
authorization to possess[] them, including [Appellant]’s place of
employment.” Id. at 24 ¶ 87B.20 The Complaint also later contends that
Mr. Quinn “sent the litigation records to [Appellant]’s employer and the
nursing board.” Id. at 27 ¶ 95C.21
Accordingly, the Complaint alleged that Appellees directly sent the
challenged materials to Mr. McGovern, Appellant’s employer, and the nursing
board and, through Mr. McGovern, indirectly sent these materials to
bloggers, the press, and the public at large. Id. at 6, 24, 27 ¶¶ 20, 87B,
95C. The Complaint consequently communicated to many people, not just
one person, and ergo sufficiently pleaded the element of publicity for the
false-light invasion of privacy count. See Doe, 987 A.2d at 765-66.
____________________________________________
20The false-light invasion of privacy claim is Paragraphs 92 to 97 of the
Complaint. The Complaint at 26-27 ¶¶ 92-97. Paragraph 92 “incorporates
by reference and realleges the preceding paragraph[.]” Id. at 26 ¶ 92
(emphasis added). The factual allegation in Paragraph 87B can therefore be
applied to the false-light invasion of privacy count.
21 In addition, the cover letter attached to the Complaint as Exhibit 2 and the
photocopy of the envelope attached to the Complaint as Exhibit 3 both
explicitly listed “Jill Stunkard MSN RN” as the recipient and the letter
indicated that it was copied to “Richard Greenberg MD” and
“Deborah Cattolico BSN CMSNN MSN.” Hence, if we examine these exhibits
and not just the text of the Complaint itself, see N. Forests, 130 A.3d at
35, then we could also find that Appellant has named other particular
individuals as recipients of the challenged materials, not just Mr. McGovern.
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Appellees also objected to the false-light count, because the Complaint
failed to assert facts to establish that Appellees acted with malice. Prelim.
Objs. of Appellees to the Complaint, 3/6/17, at 8-9 ¶¶ 43, 45. See
Appellant’s Brief at 14.
“The required standard of fault in a false light claim is . . . actual
malice. See Time, Inc. v. Hill, 385 U.S. 374, 387, 87 S.Ct. 534, 17
L.Ed.2d 456 (1967) (defining actual malice as ‘knowledge that the
statements are false or in reckless disregard of the truth’).” Rubin v. CBS
Broad. Inc., 170 A.3d 560, 568 n.9 (Pa. Super. 2017). “Unlike the law of
defamation, false light invasion of privacy offers redress not merely for the
publication of matters that are provably false, but also for those that,
although true, are selectively publicized in a manner creating a false
impression.” Id. at 568 (citation and internal brackets and ellipsis omitted).
Here, the Complaint stated that, when Appellees sent materials to
Appellant’s employer and to the nursing board, the Complaint at 24, 27
¶¶ 87B, 95C, he “highlighted specific portions” with the intent “to falsely
portray [Appellant] in 2014 as a drug addict and otherwise immoral person.”
Id. at 26 ¶¶ 95A-B. The Complaint also asserted that the blog articles that
resulted from the materials sent by Appellees to Mr. McGovern “falsely
portrayed [Appellant] in a false light as they omit many contextual facts
which would place [Appellant] in a different light if they were known to the
reader.” Id. at 27 ¶ 95D. Thus, although the Complaint does not allege
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that the challenged materials were “provably false,” it instead expresses that
the materials were “selectively publicized in a manner creating a false
impression.” Rubin, 170 A.3d at 568. The Complaint thereby sufficiently
pleaded malice for the count of false-light invasion of privacy.
Therefore, Appellees’ preliminary objections to the false-light invasion
of privacy count should have been overruled, and demurrer should not have
been granted on this count. We thus reinstate this claim.
Tortious Interference
Next, Appellant maintains that he pleaded adequate facts to establish
a legally sufficient cause of action for tortious interference. Appellant’s Brief
at 37. Specifically, he insists that the trial court “failed to credit” his
averments that Appellees “anonymously sent litigation records to [his]
employer with the intent and purpose of having [him] fired” and that
Mr. Quinn was the individual “who was distributing [Appellant]’s records
outside the [Glickman] litigation in the late summer of 2014.” Id. at 37-
38. He continued that the trial court “required of [him] a super[-]elevated
level of proof not warranted by law” and erroneously “dismissed the case
claiming the Complaint was contradictory,” because the trial court “failed to
realize that [Appellant] is permitted to plead claims in the alternative under
the Rules of Civil Procedure[.]” Id. at 38, 42.
Appellees’ preliminary objection to Appellant’s tortious interference
claim asserts that this count was legally insufficient, because “none of the
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information [Appellant] claims to have been disclosed is false.” Prelim. Objs.
of Appellees to the Complaint, 3/6/17, at 13 ¶ 63.
Tortious interference with prospective or existing contractual
relations consists of the following elements:
(1) the existence of a contractual, or prospective
contractual relation between the complainant and a third
party;
(2) purposeful action on the part of the defendant,
specifically intended to harm the existing relation, or to
prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of
the defendant; and
(4) the occasioning of actual legal damage as a result of
the defendant’s conduct.
Maverick Steel Co. v. Dick Corp./Barton Malow, 54 A.3d 352, 354-55
(Pa. Super. 2012) (citation omitted).
“[T]he third element of the tort requires a showing that defendant’s
actions were not privileged.” Salsgiver Commc'ns, Inc. v. Consol.
Commc'ns Holdings, Inc., 150 A.3d 957, 966 (Pa. Super. 2016) (citation
and internal brackets omitted). “[O]ne who intentionally causes a third
person not to perform a contract with another does not interfere improperly
with the other’s contractual relation by giving the third person truthful
information.” Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 20
A.3d 468, 471 (Pa. 2011). We find no exception or qualification for matters
that “are selectively publicized in a manner creating a false impression,” as
with claims for false-light invasion of privacy. Rubin, 170 A.3d at 568.
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Here, the Complaint contended that Appellees sent Appellant’s
deposition and litigation records from Glickman and other confidential
records to his employer, Einstein Medical Center. The Complaint at 24, 27,
32 ¶¶ 87B, 95C, 109. At no point does the complaint maintain that any of
Appellant’s own deposition testimony was false or that any of the material
contained in his litigation and other confidential records was false. See
generally id. As giving a third party truthful information cannot be
considered “improper” and as actions must be “improper” in order to fulfill
the third element of tortious interference, by failing to plead that Appellees
provided Einstein Medical Center with false information, the complaint failed
to establish that Appellees’ actions were not privileged and, accordingly,
failed to plead the third element of tortious interference. Salsgiver, 150
A.3d at 966; Walnut, 20 A.3d at 471; Maverick, 54 A.3d at 355.22 Thus,
we affirm the trial court’s dismissal of this claim.
IIED
Appellant raises the same contentions about the dismissal of his IIED
claim as he did for his tortious interference claim. Appellant’s Brief at 37-38,
43.
____________________________________________
22 We thus need not reach the issue of whether the trial court used an
inappropriately heightened level of proof when evaluating whether Appellant
sufficiently pleaded a tortious interference cause of action or if the trial court
should have considered whether the Complaint was internally inconsistent.
Appellant’s Brief at 38, 42; see TCM at 11 (“The factual allegations of
‘wrongful conduct’ by [Appellees] are contradictory and unsupported.”).
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Appellees’ preliminary objection to Appellant’s IIED count stated that
Appellant had not alleged any act so extreme or outrageous as would be
sufficient to establish IIED. Prelim. Objs. of Appellees to the Complaint,
3/6/17, at 9-10 ¶¶ 49-50 (citing Hoy v. Angelone, 720 A.2d 745, 753-54
(Pa. 1998) (conduct must be atrocious, “extreme[,] or clearly outrageous”
and not even criminal conduct is always sufficient)).23
____________________________________________
23 We need not consider whether Appellant sufficiently pleaded other
elements of IIED, as Appellees have only challenged whether the Complaint
pleaded facts that, if true, would be sufficiently outrageous to support an
IIED claim. Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 9-11
¶¶ 48-53.
Ergo, we cannot consider whether the Complaint pleaded the remaining
requirements of IIED, including the existence of a physical injury. See
Rolla v. Westmoreland Health Sys., 651 A.2d 160, 161-63 (Pa. Super.
1994) (appeal from order granting appellees’ preliminary objections in the
nature of a demurrer and dismissing with prejudice appellant’s complaint,
including claim for emotional distress; appellant asserted that emotional
harm is just as damaging as physical harm and contended that “in the area
of damages, it is believed that recent United States Supreme Court cases in
the area of discrimination establish that physical harm is not necessary to
have occurred”; this Court disagreed, holding that, for IIED, plaintiffs must
allege physical injury); Hart v. O’Malley, 647 A.2d 542, 553-54 (Pa. Super.
1994) (appellants failed to state an IIED claim, because they “fail[ed] to
allege physical injury”).
Additionally, Appellees’ preliminary objection to the IIED cause of action do
not contend that the factual allegations supporting said claim were
contradictory. Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 9-11
¶¶ 48-53. Thus, the trial court should not have considered this question, as
it did at TCM at 11. See MacGregor, 576 A.2d at 1128; Alumni, 535 A.2d
at 1101. Hence, we also do not need to consider Appellant’s argument that
the trial court “failed to realize that [Appellant] is permitted to plead claims
in the alternative under the Rules of Civil Procedure and dismissed the case
claiming the Complaint was contradictory.” Appellant’s Brief at 42.
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Appellees are correct that, in order to recover on a claim of IIED, “a
plaintiff must prove that the defendant by extreme and outrageous conduct
intentionally or recklessly caused severe emotional distress.” Gray v.
Huntzinger, 147 A.3d 924, 927 (Pa. Super. 2016) (citation and internal
brackets and quotation marks omitted), appeal denied, 168 A.3d 1238 (Pa.
2017).
The Restatement (Second) of Torts defines “extreme and
outrageous conduct” as follows:
The cases thus far decided have found liability only where
the defendant’s conduct has been extreme and
outrageous. It has not been enough that the defendant
has acted with an intent which is tortious or even criminal,
or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by “malice,”
or a degree of aggravation which would entitle the plaintiff
to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the
facts to an average member of the community would
arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!”
Id. at 928 n.1 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
Here, the Complaint asserts that, without Appellant’s knowledge or
consent, Appellees distributed his drug treatment, medical, and psychiatric
records and photographs of him while naked, including one post-
orchiectomy. The Complaint at 6-10, 24 ¶¶ 20-20A, 20C, 20F-G, 20I, 21,
25A-H, 87C & Ex. 1, Def., Michael McGovern, Esquire Supp. Answers to Pl.’s
Interrogs. in McGovern, 8/15/16, at ¶ 7, 8, 18 & Emails from Mr. Quinn to
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Mr. McGovern (Sept. 18, 2014, 3:42 & 3:44 p.m.). A factfinder could
conclude that any one of these allegations alone, if true, would be beyond
the bounds of decency; the factfinder could further find that, if taken in
combination, these allegations become atrocious and utterly intolerable.
See Gray, 147 A.3d at 928. Although the main body of the Complaint only
names one specific person to whom Appellees allegedly disclosed the
challenged materials, Mr. McGovern, the Complaint at 6-8, 24 ¶¶ 20A, 20D,
20F-M, 87A,24 a factfinder could still conclude that the distribution of these
highly sensitive records and intimate photographs even to just one
unauthorized individual would arise resentment in the factfinder. See Gray,
147 A.3d at 928.25 Accordingly, Appellees’ preliminary objection to
Appellant’s IIED claim is meritless, and, consequently, we reverse the trial
court’s decision sustaining this preliminary objection and reinstate
Appellant’s IIED claim.26
____________________________________________
24Although, as noted above, if we take into account the names listed on the
documents attached to the Complaint as Exhibits 2 and 3, see N. Forests,
130 A.3d at 35, then Appellant also set forth that Appellees further disclosed
the challenged materials to Nurse Stunkard, Dr. Greenberg, and
Nurse Cattolico. The Complaint, Exs. 2-3.
25 Unlike claims of invasion of privacy based upon publicity given to private
life or placing another in a false light, IIED does not include the element of
“publicity.” Compare Strickland, 700 A.2d at 987, and Rush, 732 A.2d at
654, with Gray, 147 A.3d at 927.
26 In its memorandum that accompanied the orders at issue, the trial court
found that the Complaint presented insufficient factual allegations to support
(Footnote Continued Next Page)
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* * *
In conclusion, we reverse the trial court’s grant of demurrer as to the
counts of invasion of privacy based on intrusion upon seclusion, invasion of
privacy based upon public disclosure of private facts, invasion of privacy
based upon publicity placing another in a false light, and intentional infliction
(Footnote Continued) _______________________
the IIED count, because the Complaint “assert[ed] more than once that the
materials were sent to [Appellant’s] employer ‘anonymously[.]’” TCM at 11.
The trial court concluded that this anonymity meant that the Complaint
failed to “provide facts to support that [Appellees] distributed records[.]”
Id.
However, we fail to see any contradiction between the Complaint’s factual
averment that the materials were sent anonymously – i.e., without a
sender’s name attached – to Appellant’s employer and the factual averment
that Appellees were the senders who concealed their names. The Complaint
at 9 ¶¶ 24, 25A.
Additionally, we fail to see any significant incongruity between the
Complaint’s averments that Mr. Quinn personally wrote and mailed Exhibit 2,
the cover letter accompanying the mailing of Appellant’s deposition in
Glickman, or if he directed an agent or employee to write Exhibit 2 on his
behalf. Id. at ¶¶ 25B-D. Either way, Mr. Quinn was responsible for the
writing of Exhibit 2.
Moreover, when evaluating preliminary objections to a complaint, “the court
must accept as true all well-pleaded, material, and relevant facts alleged in
the complaint[.]” Heldring, 151 A.3d at 641. The complaint does not need
to provide proof of those allegations. See N. Forests, 130 A.3d at 35 (“The
impetus of our inquiry is to determine the legal sufficiency of the complaint
and whether the pleading would permit recovery if ultimately proven.”
(emphasis added) (citation omitted)); Discover Bank v. Stucka, 33 A.3d
82, 87 (Pa. Super. 2011) (citing Hess v. Fox Rothschild, LLP, 925 A.2d
798, 805–06 (Pa. Super. 2007)) (same). Thus, in a complaint, Appellant
does not yet need to present evidence to support his factual averments,
including whether Appellees had distributed the records. See TCM at 11.
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of emotional distress, and we reinstate those claims.27 We affirm the trial
court’s grant of demurrer as to all other counts.
____________________________________________
27In a footnote at the end of his brief to this Court, Appellant “also requests
that the dismissal of the civil conspiracy claim be reversed, as that claim is
dependent on the other claims [he] is alleging were erroneously dismissed.”
Appellant’s Brief at 66 n.10. In his reply brief, Appellant states that he “is
not replying on the issue[] of . . . civil conspiracy as his opening brief more
than adequately covers and rebuts [Appellees’] arguments.” Appellant’s
Reply Brief at 19 n.5. Appellant presents no other argument about his civil
conspiracy cause of action.
Claims are deemed meritless where the assertions therein are not explained,
developed, or supported by the record factually or legally. In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (“The argument portion of an
appellate brief must include a pertinent discussion of the particular point
raised along with discussion and citation of pertinent authorities.” (internal
citations and quotation marks omitted)); Lackner v. Glosser, 892 A.2d 21,
29-30 (Pa. Super. 2006) (explaining that an appellant’s arguments must
adhere to rules of appellate procedure, and “arguments which are not
appropriately developed are waived”; arguments not appropriately
developed include those where party has failed to cite any authority in
support of contention). As Appellant fails to cite any applicable law in
support of his contention or to develop any additional argument, his request
that the dismissal of the civil conspiracy claim be reversed does not merit
relief.
Assuming we were to accept Appellant’s two sentences as sufficient
argument to preserve this issue for our review, we would still find that this
challenge would fail. Appellant’s contention that his civil conspiracy claim
was “dependent on the other claims [he] is alleging were erroneously
dismissed,” Appellant’s Brief at 66 n.10, is inaccurate and misinterprets
Appellees’ preliminary objection. Appellant alleged separate facts for the
civil conspiracy count in the Complaint, independent from other causes of
action. The Complaint at 33-34 ¶¶ 113-118. Additionally, Appellees’
preliminary objection was not predicated upon the other claims being
dismissed – i.e., it was not that, if all other claims are dismissed, civil
conspiracy must also be dismissed. Instead, Appellees alleged that the
Complaint failed to plead that they “act[ed] with a common purpose with
another person” and did “an unlawful act, or [did] a lawful act by unlawful
(Footnote Continued Next Page)
- 32 -
J-A10038-18
Order affirmed in part and reversed in part.
President Judge Gantman joins this Memorandum.
Judge McLaughlin files a Concurring and Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
(Footnote Continued) _______________________
means or for an unlawful purpose.” Prelim. Objs. of Appellees to the
Complaint, 3/6/17, at 14-15 ¶¶ 69-70 (quoting Grose v. P&G Paper
Prods., 866 A.2d 437, 440-41 (Pa. Super. 2005)). The trial court agreed on
the first point and did not address the second. TCM at 13-14. Even if the
most liberal reading of Appellant’s brief would result in Appellant’s restored
causes of action – the three invasion of privacy counts and IIED – being
considered the required “unlawful acts,” etc., Appellant has still failed to
present any argument to this Court to counter the assertion in the
preliminary objections that Appellees “did not act with a common purpose
with another person.” Prelim. Objs. of Appellees to the Complaint, 3/6/17,
at 14-15 ¶¶ 69-70. This Court cannot consider any theories not presented
to it by the parties. See, e.g., Commonwealth v. Colavita, 993 A.2d 874,
891 (Pa. 2010); Safe Harbor Water Power Corp. v. Fajt, 876 A.2d 954,
966 n.13 (Pa. 2005). Therefore, without an additional theory presented to
this Court by Appellant, the reinstatement of some of Appellant’s causes of
action does not redeem Appellant’s claim for civil conspiracy.
- 33 - | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4129255/ | OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
October 22,200l
Dr. Ann Stuart, Chancellor Opinion No. JC-0426
Texas Woman’s University
P.O. Box 425497 Re: Whether a state university may contract with
Denton, Texas 76204-5497 a bank that employs a member of the board of
regents as an officer (RQ-0387-JC)
Dear Dr. Stuart:
A new regent at Texas Woman’s University is an employee and officer of a bank with which
the university has a continuing banking relationship. * The regent is not a stockholder, has no
ownership interest in the bank, and does not participate in managing the university account with the
bank.* You ask whether the regent has a pecuniary interest in that bank and whether the university
may continue to contract with the bank if contracts are awarded upon the basis of sealed bids and
the regent refrains from voting on matters relating to such contract after fully disclosing his interest.
Under the common-law conflict of interest rule, an employee or officer of a bank has a pecuniary
interest in the bank. When a regent of Texas Woman’s University has such interest in a bank, the
university board of regents may not enter into a contract with the bank.
The board of regents of Texas Woman’s University “has the power incident to its position
and to the same extent, as far as applicable, as is conferred on the board of regents of The University
of Texas System.” TEX. EDUC. CODE ANN. $ 107.41 (Vernon 1991); see id. 0 107.44 (authority of
board to adopt rules). Accordingly, the board of Texas Woman’s University may exercise, with
respect to that institution, the contracting powers conferred upon the board of regents of the
University of Texas System. The board of the University of Texas System has broad power to
govern, operate, support, and maintain each of the institutions included in the system. See id. 8
65.3 1(a); see also id. 8 65.34 (Vernon 1991& Supp. 2001) (contracts must be approved by the board
of the University of Texas or otherwise entered into in accordance with rules of the board). Thus,
the board of regents of Texas Woman’s University exercises the university’s authority to contract
with banks.
‘Brief fiomMr. John Lawhon, General Counsel, Texas Woman’s University, to Honorable John Comyn, Texas
Attorney General (Mar. 22,200l) (on file with Opinion Committee).
Dr. Ann Stewart - Page 2 (JC-0426)
A strict common-law conflict of interest rule applies to contracts entered into by the
governing bodies of state agencies, including the governing boards of state universities. See Tex.
Att’y Gen. Op. Nos. DM- 18 (199 1) (member of Board of Examiners in the Fitting and Dispensing
of Hearing Aids); JM-671 (1987) (regent of Texas A & M University); MW-179 (1980) (member
of Board of Health); Tex. Att’y Gen. LO-97-052 (board member of Texas Agricultural Finance
Authority). The court in Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App.-Eastland 1925, no writ)
stated this rule as follows:
If a public official directly or indirectly has a pecuniary interest in a
contract, no matter how honest he may be, and although he may not
be influenced by the interest, such a contract so made is violative of
the spirit and letter of our law, and is against public policy.
Id. at 307.
The enactment of section 572.058 of the Government Code did not repeal the common-law
rule. See Tex. Att’y Gen. Op. No. JM-671 (1987) at 6 (discussing predecessor of section 572.058,
Government Code). This statutes provides that a member of a state agency board “who has a
personal or private interest in a measure, proposal, or decision pending before the board” shall
disclose that interest and refrain from voting on the matter. TEX. GOV’T CODE ANN. fj 572.058(a)
(Vernon 1994). Neither the language nor the legislative history of this provision indicates that it was
intended to apply to contracts. Id. If the new regent has a pecuniary interest in the bank, the
common-law conflict of interest rule would bar the board of regents of Texas Woman’s University
from contracting with it.
In Attorney General Opinion H-91 6, this office determined that a school trustee who was
employed by a paper company in a managerial capacity had a pecuniary interest in the company’s
contracts, because of his interest in the financial success of the company. Tex. Att’y Gen. Op. No.
H-9 16 (1976) at 2; see also Tex. Att’y Gen. LO-93-01 2 (state university may not contract with a law
firm in which a regent is a partner); Tex. Att’y Gen. Op. No. DM- 18 (199 1) (employee of a hearing
aid company has a financial interest in company for purposes of statute regulating the fitting and
dispensing of hearing aids). As an officer and employee of the bank, the new regent of Texas
Woman’s University would have a pecuniary interest in the bank, and the common-law conflict of
interest rule would prevent the board of regents from entering into a contract with it.
We note that section 5 1.923 of the Education Code modifies the common-law conflict of
interest rule for certain contracts between a university and a corporation in which a regent is
economically interested. An institution of higher education may contract with a corporation even
though one or more members of the governing board holds stock in it or serves as a director, as long
as no board member has a beneficial interest in more than five percent of the corporation’s
outstanding capital stock. TEX. EDUC. CODE ANN. Q 5 1.923(c) (Vernon 1996). In addition, the
contract must be “an affiliation, licensing, or sponsored research agreement” or must be awarded by
competitive bidding or competitive sealed proposals, and the board member having an interest in the
Dr. Ann Stewart - Page 3 (JC-0426)
contract or transaction must disclose that interest in a public meeting and refrain from voting on the
contract or transaction. Id. 6 5 1.923(c), (d). An affirmative majority of the board members voting
on the contract or transaction must approve it. Id. 5 5 1.923(d).
Section 5 1.923, however, does not expressly change the common-law rule when a regent is
an officer or employee of the corporation. It might be argued that section 51.923 impliedly
authorizes contracts in which the regent is interested as an officer or employee, on the ground that
these positions involve lesser pecuniary interests in the bank than the positions of director or
shareholder. However, we must read this statute according to its clear terms and may not read
language into it, unless this is necessary to effect a clear legislative intent. See RepubZicBankDaZZas,
iV. A. v. Interkal, Inc., 691 S.W.2d 605,607 (Tex. 1985) (statute must be construed according to its
plain language); Bouldin v. Bexar County Sher$‘s Civil Serv. Comm ‘n, 12 S.W.3d 527, 529 (Tex.
App.-San Antonio 1999, no pet.) (additional words may not be inserted into a statute unless it is
necessary to effect a clear legislative intent).
As introduced, the bill that became section 5 1.923 of the Education Code provided that an
institution of higher education or a university system was not prohibited from contracting with a
business entity because a member of the governing board was “a stockholder, officer, director, or
employee” of the business entity. Tex. S.B. 1569, 71st Leg., R.S. (1989). The bill included this
language at its first public hearing before the Senate Committee on Education, at which it was
referred to a subcommittee. Hearings on Tex. S.B. 1569 Before the Senate Committee on Education,
71 st Leg., R.S. (Apr. 19,1989) (audio tape available from Senate Staff Services Office). The Senate
Committee on Education ultimately approved a committee substitute from which the terms “officer”
and “employee” were deleted. Hearings on Tex. S.B. 1569 Before the Senate Committee on
Education, 71st. Leg., R.S. (Apr. 19 & May 3, 1989) (audio tapes available from Senate Staff
Services Office). Given the deletion of these terms, we will not assume that section 5 1.923 of the
Education Code impliedly applies to an “officer” or “employee.” Accordingly, when a regent of
Texas Woman’s University is an employee and officer of a bank, the university board of regents may
not enter into a contract with that bank.
Dr. Ann Stewart - Page 4 (JC-0426)
SUMMARY
Under the common-law conflict of interest rule, an employee
or officer of a bank has a pecuniary interest in the bank. When a
regent of Texas Woman’s University is an officer and employee of a
bank, the university board of regents may not enter into a contract
with that bank.
Section 51.923 of the Texas Education Code authorizes a
university to enter into certain contracts with a corporation in which
one or more members of the governing board has a pecuniary interest
as a stockholder or a director, as long as no board member has a
beneficial interest in more than five percent of the corporation’s
outstanding capital stock. This Education Code provision does not,
however, modify the common-law conflict of interest rule if the
regent is an employee or officer of a business entity. Accordingly,
section 5 1.923 of the Education Code does not authorize the board of
regents of Texas Woman’s University to contract with a bank where
a regent serves as an officer and employee.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129093/ | OFFICE oftheATTORNEYGENERAL
GREG ABBOTT
December 17,2002
The Honorable Roy DeFriend Opinion No. GA-0002
District and County Attorney
Limestone County Re: Determination of a bail bondsman’s bonding
200 West State Street, Suite 110 capacity with regard to persons held in his county
Groesbeck, Texas 76642 jail on charges from another county
(RQ-0560-JC)
Dear Mr. DeFriend:
You ask whether a bond executed in Limestone County to secure the release of a person held
in the Limestone County Jail on a criminal charge from another county is to be counted in calculating
a licensed bondsman’s financial capacity to execute bonds in Limestone County for the purpose of
section 1704.203 of the Occupations Code.’ We conclude, based on the plain statutory language,
that it is.
As your request letter notes, “Limestone County, Texas is a bail bond board county.”
Request Letter, supra note 1, at 1. Accordingly, save for an attorney representing the defendant in
a criminal case, “a person may not act as a bail bond surety in the county unless the person holds a
license issued under [chapter 1704 of the Occupations Code] .” TEX. OCC. CODE ANN. § 1704.15 1
(Vernon 2003). An individual, unless acting only as an agent for a corporation, must among other
qualifications “possess the financial resources required to comply with Section 1704.160 [of the
Code].“ld. 5 1704.152(a)(3). Section 1704.160 mandates the deposit of funds or deeds of trust with
a value of not less than $50,000 as security. See id. 5 1704.160. Under section 1704.203, the
amount a license holder may write in bail bonds depends upon the amount of security deposited or
executed under section 1704.160. See id. 8 1704.203(a), (c). The amount also depends upon when
and for how long the license holder has been licensed. See id. 8 1704.203(f). “A license holder, at
any time, may increase the limits prescribed . . . by depositing or executing additional security.” Id.
6 1704.203(d). Generally, the limit on how much a bondsman may write takes into account the
aggregate amount of bail bonds “executed by the license holder in [the] county.” Id. fj 1704.203(a).
You point out that it is common for persons to be held in your county jail who are charged
with offenses in other counties. See Request Letter, supra note 1, at 1. The bondsmen who make
‘See Letter from Honorable Roy DeFriend, County /District Attorney of Limestone County, to Honorable John
Corny-n, Texas Attorney General, at 1 (June 5,2002) (on file with Opinion Committee) [hereinafter Request Letter].
An Equal Employment Opportunity Employer Printed on Recycled Paprr
The Honorable Roy DeFriend - Page 2 (GA-0002)
bond for them are licensees of your bond board, and you wish to know whether the bonds issued in
these instances are to be counted in aggregating the amounts they have written for the purpose of
section 1704.203. See id. It has been suggested to you that such bonds should not be taken into
account because under article 15.18 of the Code of Criminal Procedure, as soon as bail is taken in
your county, the magistrate must “immediately transmit the bond taken to the court having
jurisdiction of the offense.” TEX. CODECRIM.PROC.ANN. art. 15.18(a)(l) (Vernon Supp. 2003).
The obligation of both the defendant and the surety, thereafter, is that the defendant shall appear
in the court with continuing jurisdiction over the matter. See id. art. 17.08(2). “In effect, [the
proponents of this position] argue that these are no longer Limestone County bonds.” Request
Letter, supra note 1, at 2.
A bail bond is defined by article 17.02 of the Code of Criminal Procedure as “a written
undertaking entered into by the defendant and his sureties for the appearance of the principal therein
before some court or magistrate to answer a criminal accusation.” TEX. CODECRIM.PROC.ANN. art.
17.02 (Vernon 1977). A bail bond must be made payable to “The State of Texas,” must recite that
the defendant and his sureties “bind themselves that the defendant will appear” to answer the charge
against him, must state whether the charge is a felony or a misdemeanor, and must be signed, with
name and address, by the defendant and his sureties. Id. art. 17.08 (Vernon Supp. 2003). The court
taking the bond must “require evidence of the sufficiency of the security offered,” and “any
person who has signed as a surety on a bail bond and is in default thereon shall thereafter be
disqualified to sign as a surety so long as he is in default on said bond.” Id. art. 17.11 (Vernon 1977
& Supp. 2003).
Under section 1704.203 of the Occupations Code, a licensed bondsman whose license was
issued before September 1, 1999:
may not execute, and a person may not accept from the license holder,
a bail bond that, in the aggregate with other bail bonds executed by
the license holder in that county, results in a total amount that
exceeds 10 times the value of the security deposited or executed by
the license holder under section 1704.160.
TEX. Oct. CODEANN. 8 1704.203(a) (Vernon 2003) (emphasis added). The Seventy-sixth Texas
Legislature, in the same session in which this provision’s statutory predecessor was repealed and
recodified, amended the statute to provide a sliding scale limit for bondsmen licensed on or after
September 1, 1999, which restricted these limits yet further for licensees with fewer than six years
of experience. This amendment was conformed by the Seventy-seventh Texas Legislature, and now
forms subsection (f) of section 1704.203.
The question therefore is whether bonds written by licensed Limestone County bondsmen
to secure the release from the Limestone County Jail of persons held on warrants from other counties
are “bail bonds executed by the license holder” in Limestone County that are to be aggregated with
other such bonds to calculate the bondsmen’s financial capacity to issue further bonds. We conclude
that they are.
The Honorable Roy DeFriend - Page 3 (GA-0002)
The Code Construction Act requires words to be “read in context and construed according
to the rules of grammar and common usage,” and words with a technical meaning are to be
“construed accordingly.” See TEX. GOV’T CODE ANN. 5 311.011 (Vernon 1998). The Oxford
English Dictionary defines “execute” in the sense of section 1704.203 as “to complete and give
validity to (the instrument by which [a legal] act is effected) by performing what the law requires to
be done, as signing, sealing, etc.” V OXFORD ENGLISH DICTIONARY520 (2d ed. 1989) (sense 3).
The bonds in question, as we have noted, are intended to secure the release of persons held
in the Limestone County Jail. Accordingly, they must be executed either by a lawyer representing
such a person or by a bondsman licensed in Limestone County, given that only such categories of
person may write bonds in your county. See TEX. OCC. CODEANN. 8 1704.15 1 (Vernon 2003). The
. bonds are to be taken by a Limestone County magistrate. See TEX. CODE CRIM. PROC. ANN. art.
15.1 S(a)( 1) (Vernon Supp. 2003). They are therefore executed in Limestone County, even though
the bond is transferred pursuant to article 15.18 to the county issuing the warrant. Accordingly, they
are bonds executed in Limestone County within the meaning of section 1704.203 of the Occupations
Code. In order to read the aggregate amount limit of section 1704.203 differently, we would have
to insert some such phrase as: save for those executed to secure release ofpersons held on out-of-
county warrants. We may not do so. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996
S.W.2d 864,867 (Tex. 1999) (court may “add words into a statutory provision only when necessary
to give effect to clear legislative intent”).
As you note, a prior opinion of this office, Attorney General Opinion JC-0019 (1999),
addresses the effect of article 15.18 on the taking of bail bonds. On the basis of Font v. Carr, 867
S.W.2d 873 (Tex. App.-Houston [ 1st Dist.] 1993, writ dism’d w.o.j.) and Attorney General Opinion
JM-1057 (1989), opinion JC-0019 suggested but did not decide that a bail bond board could not
suspend the license of a bondsman who defaulted on a bond in another county, even though that
bond had originally been executed in the licensing county and transferred under article 15.18. See
Tex. Att’y Gen. Op. No. JC-0019 (1999) at 7. However, opinion JC-0019 does not address the
question before us here. Moreover, as you point out, the statutory language upon which that opinion
relied was from the former Bail Bond Board Act* and no longer forms part of the Occupations Code.
See Request Letter, supra note 1, at 3; see also TEX. OCC. CODEANN. $5 1704.201, .204, .252(8)
(Vernon 2003).
It is true that enforcement of the obligation of the bond lies with the court to which the bond
has been transferred, and that opinion JC-0019 suggests in dicta that the bail bond board may not
have authority to discipline a bondsman who has defaulted on such a bond. But it remains the case
that the bonds were, and indeed had to be, executed in Limestone County; as such, under section
1704.203, they must be included in the calculation of the surety’s financial capacity. Nothing in
either opinion JC-0019, any other opinion of this office, or any judicial decision of which we are
aware supports the reading of bonds issued pursuant to article 15.18 as constituting a class of bonds
executed in a county, but not subject to inclusion in calculating a licensed surety’s financial capacity
to write bonds.
‘The former Bail Bond Board Act, article 2372p-3 of the Revised Civil Statutes, was repealed and recodified
by the Seventy-sixth Texas Legislature. See Act of May 10,1999,76th Leg., R.S., ch. 388, $5 1,6,1999 Tex. Gen. Laws
143 1,2277,2440-4 1.
The Honorable Roy DeFriend - Page 4 (GA-0002)
SUMMARY
Bail bonds written by a licensed surety in a county where the
person is licensed to secure an appearance by a defendant in another
county are executed in the licensing county for the purpose of
determining the bondsman’s financial capacity under section
1704.203 of the Occupations Code.
Very truly yours,
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DEMON GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4395320/ | Jacobs v Metropolitan Transp. Auth. (2019 NY Slip Op 03689)
Jacobs v Metropolitan Transp. Auth.
2019 NY Slip Op 03689
Decided on May 9, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 9, 2019
Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.
9287 154652/14E
[*1]Sander Jacobs, Plaintiff-Appellant,
vMetropolitan Transportation Authority, et al., Defendants-Respondents.
Morelli Law Firm PLLC, New York (Sara A. Mahoney of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York (James M. Strauss of counsel), for respondents.
Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered April 13, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly granted in this action where plaintiff was injured while attempting to disembark a bus from the rear emergency door. The record shows that defendants satisfied the duty of a common carrier to provide a clear, direct
and safe path of egress, namely the front door of the bus (see Abraham v Port Auth. of N.Y. & N.J., 29 AD3d 345, 347 [1st Dept 2006]; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 109 [1st Dept 1987], affd 72 NY2d 888 [1988]).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2019
CLERK | 01-03-2023 | 05-09-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4126311/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-16-00710-CV
IN THE INTEREST OF J.K.L., J.A.L., and J.C.L., Children
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00056
Honorable Charles E. Montemayor, Judge Presiding
BEFORE JUSTICE ANGELINI, JUSTICE ALVAREZ, AND JUSTICE RIOS
In accordance with this court’s opinion of this date, the trial court’s order is AFFIRMED.
Appellant is indigent; no costs are taxed in this appeal.
SIGNED February 15, 2017.
_____________________________
Patricia O. Alvarez, Justice | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142131/ | %s
: i
OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Honorable T. M; Trimble,
Firat A8818tMt State Superlaitendept or PttblioIni3truotion
Austin, Texas
Dear Slrr
ne hive ix9
In whioh you 88k:the
oeptlomd question.
to eny particularph
thererore,determine
and whether the sub)
that on whloh the Le
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“as%o. 2. That &tiOh 39% Title 63 'Of
the Redlsed aivil.statutesor Tekas or 192!i,be
tended so 8s to ht3rearterread a8 roiiows:
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Honorable T. M. Trimble, Page 2
“‘Artiole3959.
W*Eaah’building rrhi?h.isor map be oonstruoted
within this State at three ,or~nwrestories In height, '.
or in oase ,or.aaohoolhouaetwdor more stories in
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or by:any ofty,
county, or school,distriot, and in ,whloJi building
publlo asaembllea~ are permitted or .intandedto ba
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ted or intei@e&;t.@‘be permItted;on stir.floor. above ‘; ;.,;,
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aeoapr ii:tha lot urea or
such building,shallnot exoaed fiva thousend (5,000)
square teats;Andyone additional adequate.t$reeeoape
ror aaoh:five thoutiand(5,000) square teat, or fiao-
tion thereor, ii,‘suohrraotion exoeads two.thousand Z’.Lb~
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The’.oniyahangas made in AFtlolee 3955 ana 3959 :..:...
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by House B1l.X716 were -the add%tion oi the.underaoored parts;
other than these addJtlons the statutes are exaqtly as they I
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were berore tha.~axteqdmept. ~.
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,(: Title .63$.or ~theRevised Clvll:Stat&it66 M Texas of’
il 1925, 80 .a13,ta.proVide.
for fire,ea~oapearor sohool-
p, housas or.two ‘ormoxe storise in ,height;and deolar-
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ing an emergemy.?. 1 ‘~
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2 The 6apti& P&t8 &at the artioles ihioh are to !
be amended and speoiriaehow they are to.be amended, and the I
amendmentin the’body or the bill oaniorms therewith. We are I
or the oplnionthat the oaption ot thenbill la stitiolentun-
der Artlole III, Seotlon 35 or the C&nst$tutlonor Texas. : :
See Guli ProduotionCo. v. Garrett (Coin.,App.);24 S. W. (26)
389; Rutledge ‘v.,
Atkinson, 101 8. W;rr 376t Lendrum to
~(26)’
‘..
CentennialRural ‘sighSahool Dlat. No. 2’(W. 6. dlam’d.),
134 S. W.’(26) 353.,
Xe shell~now turn to a ooaslderatlonot the subjeot
matter or the legislation.
“Then3idi68 power inherent in the state has
been llkonad unto the law of self-deransathat Is
Bonorable ,T.M. Trimble, Page 3
said to-be born In eaoh individual. Asthe indl-
vldual haa the right to protect hle life or hod;
from serious bodily injury, and hlaproperty whioh
he has lawfully acquired iromdeetruotlon, so the
state has the inherent right, under the police
power, to proteot the pub110 welrare from thoee
things which would produoe death or seriously ar-
ieot the health of the publio'or its,gener$,mo;$
welfare. . . .* Lonpire v. %ute,
., ..*. "J.
171
It-is mani&t~that~ steps tomard &teotioa or.
the oltlzena or a state rrom iIre hazard8 Wnild be far the I
..
publio welrare'ot the state, and it,haa been ~heldthat atat- !
utee may validly be enaoted requiring reasonable fire es-
oapes ana other recautions. See State v:Heldenhaln (Sup.
Ct. La.), 7 ~Sor121; Louisv$llePublio Lfbrary Co. v. City
oi Loulatllle~fCt..~App.~Ky.)-80 S.:W. 11691 Ai.L. Roumfort ..' '/
Co. v. Delaney (.Sup.Ct. Pa;!, 79 A.6531~ 16 Cr:J. S. 553;
12 c. J. 916. ~ :
You ask that we pass on the oonetitutlonalltyof
House Dill 716 hit arrests the publio sohoole. The pro- :
teotlon of the aohool ohildren of th.isState Ss oertainly
of prime importance.,'andexperlenoe baa taught that danger'~
arising rrom,tlre hazards is one of the greatest. It Is
our opinion, therefore,~,thatHouse Bill ,716'laa velld and
commendablelaw.
Some question may arise as to whyfire esoapee ~~'~~'.
are required on aohool buildinga two etoriss~in height, and
not on the other deeorgbed buildings unless-they are.at least
three storlea in height. (See Artiole 3955,~'%tseq.,V.A.C.S.)
iYe are of the opinion that thle is a.validolassitication for
several reasons..-First,there ,leusually a greater,oonoen-
tration of individualsin e sohool house than in other types
or buildinga; seoondly, school ohlldren Of tender years oan'
not be expeoted to exercise as wise a dlsoretion.intimes of
panic as persons or mature years. We believe that there is
ample reason to make the dlstinotJ.onwhich the Legislature
has made between school bulldings and the other described
buildings.
In view or the foregoing dlsousalon and authori-
ties cited, it is the opinion of th2s departmentthat the
Honorable 4. Y. Trlmble, Page 4
requfrrment~l&House Bill:716, Aate 27th Legislature,Regu-
lar Eession, of fire esoapas on aohoolhousesuncIerthe oon-
ditions set out therein is R valid exerolse or the pollee
power of this State.
very +mlulYPow5
ATTORNEY G-AL OF !BXAS
BP
/,
AsiRistant "
I
GVSrmp
I | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142337/ | OFFICE OF THE A’ITORNEY GENERAL OF TEXAS
AUSTIN
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7~lr8t AulH8ntAttamiey | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126504/ | Case: 16-20269 Document: 00513877239 Page: 1 Date Filed: 02/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20269 FILED
Summary Calendar February 15, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JADER TORRES ERAZO, also known as Pedro Antonio Lebron, also known as
Javier Jader Torres-Erazo, also known as Pedro Antonio Lebron Serrano,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-489-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Jader Torres Erazo appeals his guilty plea
conviction and sentence for illegal reentry into the United States after
deportation following an aggravated felony. See 8 U.S.C. § 1326(a), (b)(2).
According to Torres Erazo, the district court plainly erred at rearraignment by
failing to advise him, as required by Rule 11 of the Federal Rules of Criminal
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-20269 Document: 00513877239 Page: 2 Date Filed: 02/15/2017
No. 16-20269
Procedure, regarding his right to plead not guilty, the mandatory special
assessment, and the fact that, in the future, he could be denied United States
citizenship or admission if he pleaded guilty. See United States v. Vonn, 535
U.S. 55, 59 (2002).
The record establishes that, although the district court did not engage in
a “talismanic” repetition of the Rule 11 provisions, it did admonish Torres
Erazo regarding his right to persist in a plea of not guilty, and it discussed
generally with Torres Erazo the immigration consequences of his plea. United
States v. Bachynsky, 949 F.2d 722, 726 (5th Cir. 1991); see FED. R. CRIM. P.
11(b)(1)(B), (b)(1)(O). Torres Erazo thus shows no clear or obvious error in the
district court’s admonishment regarding his right to plead not guilty. See
United States v. Narez-Garcia, 819 F.3d 146, 150 (5th Cir.), cert. denied, 137 S.
Ct. 175 (2016). Moreover, he has failed to allege, much less show a reasonable
probability, that he would not have pleaded guilty had he known more
specifically that he might not be able to legally reenter, seek asylum, or obtain
citizenship in the United States. See United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004).
As to the special assessment, in addition to referencing a special
assessment, the district court advised Torres Erazo that he faced a maximum
potential fine of $250,000, well above the $100 mandatory special assessment
imposed. Therefore, as Torres Erazo acknowledges, his substantial rights were
not affected by the district court’s omission of the details of the mandatory
nature and specific amount of the special assessment. See United States v.
Powell, 354 F.3d 362, 369 (5th Cir. 2003).
The judgment of the district court is AFFIRMED.
2 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4108143/ | J-S85001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.A.J.F., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: K.T., MOTHER
No. 1135 EDA 2016
Appeal from the Order Entered March 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000333-2015
CP-51-DP-0000623-2014
IN THE INTEREST OF: M.T.F., JR., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: K.T., MOTHER
No. 1136 EDA 2016
Appeal from the Order Entered March 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000334-2015
CP-51-DP-0000767-2014
IN THE INTEREST OF: K.A.-M.T., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: K.T., MOTHER
No. 1137 EDA 2016
Appeal from the Order Entered March 23, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000416-2015
J-S85001-16
CP-51-DP-0000766-2014
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 16, 2016
Appellant, M.T. (“Mother”), appeals from the orders involuntarily
terminating her parental rights to her three children, M.A.J.F. (born August
2011), M.T.F., Jr. (born March 2013), and K.A.-M.T. (born March 2014).1
Mother contends that the evidence at trial was insufficient to support the
trial court’s decision. After careful review, we affirm.
On May 2, 2012, Mother entered a negotiated guilty plea to the charge
of corruption of minors, whereby several other sexual offense charges were
noll prossed. The victim in these charges was Father. Mother received a
probationary sentence of three years.
On March 7, 2014, a general protective services report was referred to
the Department of Human Services (“DHS”) alleging that K.A.-M.T. had
tested positive for marijuana at birth. It was later determined that Mother
had tested positive for marijuana during delivery. DHS had K.A.-M.T. taken
into protective custody and ultimately declared dependent and placed with a
foster family.
____________________________________________
1
M.F. (“Father”), the father of all three children, had his parental rights
involuntarily terminated at the same proceeding. His appeals are docketed at
1306, 1307, and 1308 EDA 2016.
-2-
J-S85001-16
DHS visited Mother’s home, which consisted of two non-adjacent
rooms in a boarding house. Mother indicated that she locked the children
into separate rooms at night as a protective measure. Concerned with the
circumstances, DHS arranged for Mother to be admitted into a residential
treatment program where she could live with her two older children.
After a short time in the program, Mother was taken into custody for
violating her probation. DHS took M.A.J.F. and M.T.F., Jr. into protective
custody, as they could not remain at the treatment program in Mother’s
absence. Both were ultimately declared dependent and placed with the same
foster family as K.A.-M.T.
Approximately nine months later, in January 2015, Father was
arrested and charged with aggravated assault, terroristic threats with the
intent to terrorize, stalking – intent to cause fear, simple assault and
recklessly endangering another person. Shortly thereafter, Mother submitted
herself to her first drug screen after her release from imprisonment for the
probation violation. She tested positive for marijuana.
Evidence was presented that, at the time of the termination hearing,
Mother had stopped complying with her drug and alcohol counseling and did
not participate in parenting classes. Furthermore, she had not located
suitable housing. The trial court determined that termination was
appropriate under 23 Pa.C.S.A. § 2511(a), subsections (1), (2), (5), and (8),
-3-
J-S85001-16
as well as § 2511(b), and entered orders terminating Mother’s parental
rights to all three children, and this timely appeal followed.
On appeal Mother raises five issues, but these merely consist of
challenges to the sufficiency of the evidence to support the trial court’s
findings under each of the above sections. Our standard of review regarding
orders terminating parental rights is as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (quoting In re C.S., 761
A.2d 1197, 1199 (Pa. Super. 2000)).
In termination cases, the burden is upon the petitioner to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. See id., at 806. The standard of
clear and convincing evidence is defined as testimony that is so “clear,
direct, weighty and convincing as to enable the trier of fact to come to a
clear conviction, without hesitance, of the truth of the precise facts in issue.”
In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). The trial court is free
to believe all, part, or none of the evidence presented and is likewise free to
-4-
J-S85001-16
make all credibility determinations and resolve conflicts in the evidence. See
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).
In terminating Mother’s parental rights, the trial court relied upon §
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, which provide as
follows:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
…
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
reasonable period of time and termination of the
parental rights would best serve the needs and welfare of
the child.
…
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
-5-
J-S85001-16
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
...
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on the
basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
This Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (citation omitted).
With respect to § 2511(a)(2), termination of parental rights due to
parental incapacity that cannot be remedied, the grounds are not limited to
affirmative misconduct; “to the contrary, those grounds may include acts of
refusal as well as incapacity to perform parental duties.” In re A.L.D., 797
A.2d 326, 337 (Pa. Super. 2002) (citation omitted). Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities. See id., at 340. A child’s life “simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citations omitted). Rather, “a parent’s basic constitutional right to the
-6-
J-S85001-16
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004)
(citation omitted).
At the termination hearing, DHS social worker Lynn Speight testified
that Mother was never in compliance with her drug and alcohol objectives.
See N.T., Termination Hearing, 3/23/16, at 20. Furthermore, she had never
attended parenting classes that DHS provided to her. See id. Nor had she
ever located appropriate housing in which to have to custody of the children.
See id., at 20-21.
On appeal Mother complains that DHS did not provide enough
opportunities or assistance to achieve her goals. This Court has stated that a
parent is required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities. See In re A.L.D. 797 A.2d 326,
337 (Pa. Super. 2002). A parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. See id., at 340.
Here, evidence at the termination hearing established that Mother had
not availed herself of the opportunities and services that DHS provided her.
After our careful review of the record in this matter, we find that the trial
court’s credibility and weight determinations are supported by competent
-7-
J-S85001-16
evidence in the record. Accordingly, we find that the trial court’s
determinations regarding § 2511(a)(2) are supported by sufficient,
competent evidence in the record.
When a trial court finds that termination is appropriate under
subsection (a), it must still consider whether termination of parental rights
would best serve the developmental, physical and emotional needs of the
child. See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005).
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” Id. at 1287 (citation
omitted). We have instructed that the court must also discern the nature
and status of the parent-child bond, with utmost attention to the effect on
the child of permanently severing that bond. See id.
At the termination hearing, social worker Speight testified that after
the children had been removed, Mother had not regularly attended visitation
sessions with the children. See N.T., Termination Hearing, 3/23/16, at 22-
23. Social worker Cynthia Broadnax-Nichols testified that Mother’s
participation in visitation sessions was 70%. See id., at 55. Social worker
Akia Butts testified that the children look to the foster mother to have their
needs met. See id., at 76-77. Furthermore, she testified that she didn’t
believe that the children would suffer irreparable harm if their biological
parents’ rights were terminated. See id., at 78.
-8-
J-S85001-16
After careful review of the record, we find that competent evidence in
the record supports the trial court’s determination that the children would
not suffer harm from termination of Mother’s parental rights, and that the
termination would best serve the needs and welfare of the children. The
testimony at the hearing established that the children had been placed for
approximately 24 months and had established an appropriate bond with the
foster mother. We therefore find no basis upon which to disturb the trial
court’s orders.
We affirm the orders terminating Mother’s parental rights on the basis
of § 2511(a)(2) and (b) of the Adoption Act.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
-9- | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7295067/ | Petition for certification denied. | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4126327/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-16-00605-CR
Joe GUTIERREZ Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 14-11-0223-CRA
Honorable Donna S. Rayes, Judge Presiding 1
BEFORE JUSTICE ALVAREZ, JUSTICE CHAPA, AND JUSTICE RIOS
In accordance with this court’s opinion of this date, we GRANT IN PART the State’s
motion as it pertains to reforming the judgments. For each of the three judgments, identified by
“Count I,” “Count II,” and “Count III” respectively, we MODIFY the language on the first page
of each judgment under the heading “Degree of Offense” that reads “1ST DEGREE FELONY” to
read “2ND DEGREE FELONY”; we do not modify any other language in the judgments.
The judgments of the trial court are AFFIRMED AS MODIFIED.
SIGNED February 15, 2017.
_________________________________
Patricia O. Alvarez, Justice
1
The Honorable Russell Wilson, Presiding Judge of the 218th Judicial District Court, conducted the plea hearing. The
Honorable Donna S. Rayes signed each of the three judgments. | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126329/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-16-00255-CV
EX PARTE S.E.W.
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-14781
Honorable Gloria Saldaña, Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, AND JUSTICE RIOS
In accordance with this court’s opinion of this date, the order of the trial court is
REVERSED, and judgment is RENDERED denying the appellee’s petition for expunction. It is
ORDERED that appellant, Texas Department of Public Safety, recover its costs of this appeal from
appellee, S.E.W.
SIGNED February 15, 2017.
_____________________________
Sandee Bryan Marion, Chief Justice | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126333/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-16-00337-CR
EX PARTE Jennifer RODRIGUEZ
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 496800
Honorable Jason Wolff, Judge Presiding
BEFORE JUSTICE ANGELINI, JUSTICE ALVAREZ, AND JUSTICE CHAPA
In accordance with this court’s opinion of this date, the trial court’s June 3, 2016 order
denying habeas relief is AFFIRMED.
SIGNED February 15, 2017.
_____________________________
Karen Angelini, Justice | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143515/ | Honorable L.R. Thompson
County Auditor
vaylor county
Abllene, Texas
Dear Sir; Opinion UO. 0-2857
Re: Are men nor in the U.8. Army who
have not served ln time of war en-
titled to benefits under Article.
1939a, Vernon's Annotated Civil
Statutes?
Your recent request for an opinion of this department
on the above stated question has been received.
We quote from your letter as foll3wa:
*Under Article '1939aof'the Revised Civil
Statutes the county clerks are required to furnish
certified copies of documents used ln obtaining com-
pensation for World Yar Veterans, etc. Section 2
under this article states and defines ex-service men
coming under this article as being entitled to bene-
fits referred to 'for aervlce In time OS w$r'.
"Are men now In the U.S. Army who have not
served In time of war entitled to such benefits?"
Article 1339a, Vernon's Annotated Civil Statutes, reads
as follows~
Section 1. "That from and after the effec-
tive date of this Act, all county clerks, district
clerks, and other official 8 of this State rho are re-
quired to issue any form of certificate or any copy or
copies of instrumentsnecessary as proof to establish
any claim or claims of ex-service men OS the Federal
Government, shall Issue such aertlficate and likewise
certlfled copies of any Instrument necessary to prove
any fact or establish eny claim of such ex-service,
free of any charge and shall include the establishing
ofcompensatlonstatuts, and any otherfact to be es-
tablished to aid and assist such ex-service men in
completing the record of such service when necesearlly
required In the establishmentofclaims and necessary
service stagus, and either the World War, the Spanish
American War, or any other active service, where such
service was rendered, and where the person would,
on proper proof, be entitled to compensation,insurance,
or any other form or adjustment serviue for servicer3
Honorable L.R. Thompson, Page 2 0-2857
.
rendered to the United 8tates government by such ex-
iservice men. The county clerk, district clerk, or
other officials issulng such certificates or certified
copies of Instruments, shall not be liable for arq
settlement, for an$ such reduction, and the same &all
not be counted aa fees collected and chargeable to such
office, and ahall form no part of the maxd.mumfees of
such office, All the provlslons of Section 1 hereof,
shall inure to the heirs at law of such ex-service men,
where the proof Is necessary to establish the claims
emanating through or under such ex-service men."
Section 2, "Xx-servicemen, as mea.ntin
this Act, shall include all those persons recognized
by the United States as being entitled to adjustment
compensation or other form of settlement for service
In tlme of war."
The above mentioned statute was passed by the 46th Leg-
islature and became effective April 27, 1939. Section 3 of the Act
repeals all conflicting;laws and parts of laws and Section 4 declared
an emergency and provided that the Act should take effect from and after
its passage.
The title of the Act reads as follows:
"An Act providing and directing county
Clerks, district clerka,,and other officials to issue
certificates and certified copies of Instruments In
their respective offices to ex=service men of the .
World War and the Spanish American iiarwhere-such
certificate anlcoples of Instruments are necessary
to be used for furthering claims and establishing
proof of such er-service men to such claims for ccm-
pensatlon, or other claims to be established, defining
ex-service men; repealing all laws and parts of 1:~s
in conflict herewith; and declaring an emergency.
After carefully considering Article 1939a, supra, and
the caption of the Act creating It, you are respectfully advised that
It Is the opinion of this Department that said act was Intended to apply
only to ex-service men of the World War and the Spanish American War.
Your question Is, therefore, answered In fhe negative.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
A~EYQENILRALOF'ITXAS
By s/Ardell Yllllams
AW:Ra:wc Ardell Wllllsms
Assistant
hF+PROVKDWV 6, 1940
I/ Qerald C. %ann
ATFOlWlCY6EUBRAL OF TImAs Annroved Oainion Committee bv e/BW3 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142127/ | HonorableGso . if.Cox, M.D.
State Health Officer
Austin, Texas
Dear Sir: Opinion No. O-4224
Re: Whether the balance in Vital
Statistics Fund may be devoted
to the construction of a build-
ing for the use of the Bureau
of Vital Statistics.
In your letter of November 24th you explain the recent great in-
crease in the work of the Bureau of Vital Statistics which makes
necessary enlarged facilities for carrying on the work of the
Bureau and storing its records.
After setting out the applicable provisions of the current appro-
riation for the Bureau of Vital Statistics contained in Senate Bill
R o. 423, Regular Session, 47th Legislature and in the general sta-
tutes pertaining to the Bureau, you request our opinion on the fol-
lowing question:
'We shall ask you to advise us whether the above funds, to-
gether with any additions thereto deposited during the biennium
beginning September 1, 1941, can be used in constructing a
building for offices and working space for the employees and.
personnel of the Bureau ofVita Statistics, and a fire proof
vault for the protection and safe preservation of the records
and files of that Bureau, as is provided~for under Article
4477, Rule 35a, R.C.S.rr
We quote thenprovisions of the gene~rallaw and curr'entappropria-
tion bill and the existing facts applicable to this problem, as set
out in your letter:
"Rule 35a of Article 4477, R.C.S. State of Texas, in part
reads as follows: 'The Board of Control shall provide suitable
offices for the Bureau of Vital Statistics in the State Cap-
itol or in other suitable buildings at Austin which shall be
properly equipped with fire proof vault and filing cases for
the permanent and safe preservation of.all records made and
returned under this Act.'
Honorable Ceo. Ii.Cox, M.D., page 2 O-4224
"Senate Bill 423, Regular Session, 47th Legislature, Sections
ti0to 97, dppropriated various sums for salaries for employees
of the Bureau of Vital Statistics, and in addition thereto
appropriated certain fees as follows: 'Subject to the limita-
tions appearing at the end of this Act all fees received under
the provisions of Article 4477, Rule 54a and deposited to the
Vital Statistics Fund are hereby appropriated for each year
of the biennutnbeginning September 1, 1941, for the uses and
purposes prescribed by the Above Act, and any amenbents there-
to, including salaries, maintenance, travel and contingent
expense. This appropriation shall be in addition to the item-
ized appropriation herein made for the Bureau of Vital Statis-
tics.'
"Rule 54a of Article 4477 R.C.S. reads in part as follows:
"And the State Registrar 1Registrar of Vital Statistics) shall
keep a true and correct account of all fees by bin:received un-
der these provisions, and turn the sane over to the State
Treasurer at the close of each month,.and all such fees shall
be kept by the State Treasurer in a special and separate fund
to be known as the "Vital Statistics Fund", and the amount so
deposited in this fund may be used for defraying expenses in-
curred in the enforcement and operation of this Act.'
"For your information may we point our tha~tthe Bureau of Vital
Statistics has no.inspectors or field workers who administer
or enforce the Vital Statistics Law in anv manner whatsoever.
The entire enforcement and operation of this Act is carried on
through the office personnel and the enforcement and operation
consists of properly checking records, filing saine,and seeing
that these records are preserved, their chief problem of en-
forcement being the storing of these records in places where
they are not subject to fire hazards, loss and theft.
*As of November 21, 1941, we are advised by the State Treasurer
that the Vital Statistics Fund has a balance of $30,251.34.
The collections of fees as averaged for the ty:relve
months end-
ing August 21, 1941, are $1,912.00 per month. The expendi-
ture of the above balance and a portion of the monthly income
from fees would not reduce the efficiency of the Bureau of
Vital Statistics."
The answer to your question turns upon this point: whether the pro-
viso in the appropriation bill, "all fees received under the pro-
visions of Article 4477, Rule 54a, Andydeposited to the Vital Sta-
tixtics Fund sre hereby appropriated...for the uses and :?urposes
prescribed by the above Act, and any amendments thereto, including
salaries, naintenance, tr;;veland contingent expense" may be con-
strued so as to authorize the Bureau of Vital Statistics to devote
the balance of $30,251.34 in its special fund, and subsequent ad-
ditions thereto, to the construction of a building for use of the
Honorable Geo. W. Cox, M.D., page 3 O-4224
Bureau, in the absence of an express legislative sp-i>ropriation
for
such purpose We think it clearly may not be so construed. As
said by the Austin Court of Civil Appeals in State v. Haldeman,
163 S.W. 1020, (writ of error refused) at page 1022:
" ...The Legislature might authorize commissioners to contract
for the erection of a public building of such a character and
at such cost as to them might seem best, but'such a proceed-
ing would, to say the least of it, be unwise, and such has
not been the usual,course with reference to public buildings
in Texas. It is well known that it is the custom with Legis-
latures to appoint committees to investigate the needs of
public institutions, to hear evidence and visit and inspect
such institutions, and to pass appropriation bills for definite
amounts for the support, maintenance, and erection of buila-
ings therefor....."
In the Haldeman case the court held that the Legislature, having
appropriated $47,000 for the erection of buildings at the State
Lunatic Asylum, any additional sum expended thereon was unauthorized,
and was not supported by pre-existing law as required by Article
III, Section 44, of the Texas Constitution, so that no subsequent
appropriation could be made to pay for the excess cost of the build-
ings above the amount originally appropriated. The court refused
to recognize any authority, implied or otherwise, in the Board of
Directors to authorize any enlargement of the buildings as authorized
by the Legislature. Said the court:
"We do not think by the passage of the appropriation bill
above referred to, wherein the specific amount of $47,500 was
appropriated for the buildings for the lunatic asylum, the
Legislature intended to grant the directors of said institu-
tion discretion to incur liability on the part of the state
for more than this amount......n
To the same effect is the holding in Nichols v. State, 32 S.X.
452. See also Ft. Worth Calvary Club v. Sheppard, $3 S.W. (2d) 660.
Article VIII, Section 6, of the Constitution of Texas, provides:
"No money shall be drawn from the Treasury but in pursuance of
specific appropriations made by law...f1';ledo not believe that the
language of the appropriation to the Bureau of Vital Statistics,
which reads:",.-for the uses and purposes prescribed by the above
Act ...including salaries, maintenance, travel 2nd contigent expense"
can be construed as a "specific appropriation" for the construc-
tion of a public building as that term is used in Article VIII,
Section 6. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480; National
Biscuit Co. v. State, 134 Tex. 293, 135 S.W. (2d) 687; County of
Dallas v. McCombs, 135 Tex. 272, 140 S.W. (2d) 1109.
Honorable Geo. W. Cox, M.D., Page 4 O-4224
We have no doubt of the urgent necessity for enlarged and permanent
quarters to house the growing and important functions of the Bu-
reau of Vital Statistics, but we are of the opinion that it will
require an express appropriation of A sum certain by the Legisla-
ture for such specific purpose, either out of the moneys in the
special "Vital Statistics Fund" or out of the general fund before
any money may be withdrawn from the State Treasury for the purpose
of construing the building about which you inquire.
Yours very truly
APPROVED DEC. 2, 1941
GROVER SELLERS ATTORNEY GENERAL OF TMAS
FIRST ASSISTANT
ATTORNEY GENERAL
BY Walter R. Koch
WRK:lm:ml Assistant | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4395345/ | FILED
MAY 9, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35726-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
NICHOLAS ANDRES FUENTES III, )
)
Appellant. )
PENNELL, A.C.J. — Nicholas Andres Fuentes III appeals his conviction for second
degree assault. Mr. Fuentes argues that the case against him should have been dismissed
based on the delayed disclosure of a State’s witness. Mr. Fuentes also challenges the trial
court’s imposition of legal financial obligations (LFOs). We affirm Mr. Fuentes’s
conviction but remand for correction of LFOs as warranted by recent statutory changes.
FACTS
In March 2017, Mr. Fuentes attempted to steal a can of beer from a gas station
convenience store. His actions caught the attention of the store clerk. When the clerk
confronted Mr. Fuentes about the attempted theft, Mr. Fuentes became irate. Mr. Fuentes
went around the store’s checkout counter and began physically attacking the clerk.
During the skirmish, Mr. Fuentes broke one of the clerk’s fingers before the clerk escaped
No. 35726-1-III
State v. Fuentes
to outside the store. Once outside, the store clerk called for help from customers who
were fueling their cars. Mr. Fuentes briefly chased the clerk before fleeing the scene.
Bruce Rhimer was one of the customers pumping gas during the altercation. He
saw portions of the interaction between Mr. Fuentes and the store clerk. Mr. Rhimer
also called 911.
Mr. Fuentes was charged with attempted first degree robbery and second degree
assault. Trial was scheduled to begin on Monday, July 17, 2017. The Wednesday before
trial, the State disclosed that it would be calling Mr. Rhimer as a witness. Although Mr.
Rhimer’s identity was previously disclosed through the 911 records, this was the first time
the State had indicated that Mr. Rhimer would testify. The State explained its delay as
attributable to difficulties making contact with Mr. Rhimer.
The disclosure of Mr. Rhimer as a State witness prompted Mr. Fuentes to make
an oral motion for dismissal of charges under CrR 8.3(b). Mr. Fuentes also sought an
alternative remedy of a short continuance of the trial date. However, Mr. Fuentes
complained that the State’s late disclosure should not force him to “choose between
waiving his speedy trial right or going . . . to trial unprepared.” Report of Proceedings
(RP) (July 17, 2017) at 2. The trial court denied Mr. Fuentes’s motion to dismiss, but
granted a short continuance.
2
No. 35726-1-III
State v. Fuentes
At trial, the State called four witnesses: the store clerk, Mr. Rhimer, and two
police officers. Mr. Fuentes testified on his own behalf. After conclusion of the State’s
case-in-chief, the court dismissed the charge of attempted first degree robbery on grounds
of insufficient evidence. A jury convicted Mr. Fuentes of the remaining second degree
assault charge. The court sentenced Mr. Fuentes to 72 months’ confinement and 18
months’ community custody.
Mr. Fuentes now brings this timely appeal.
ANALYSIS
Dismissal motion
A trial court may dismiss a criminal charge under CrR 8.3(b) “due to arbitrary
action or governmental misconduct when there has been prejudice to the rights of the
accused which materially affect the accused’s right to a fair trial.” Disposition of a
CrR 8.3(b) motion is reviewed for abuse of discretion. State v. Williams, 193 Wash. App.
906, 909, 373 P.3d 353 (2016).
Dismissal based on CrR 8.3(b) can be predicated on “simple mismanagement,”
rather than “evil or dishonest” conduct on behalf of the State. State v. Garza, 99 Wn.
App. 291, 295, 994 P.2d 868 (2000). Nevertheless, dismissal is an “extraordinary
remedy.” State v. Moen, 150 Wash. 2d 221, 226, 76 P.3d 721 (2003). When it comes to
3
No. 35726-1-III
State v. Fuentes
a CrR 8.3(b) motion based on an alleged discovery violation, dismissal is inappropriate
if a lesser remedial action, such as suppression of testimony, can adequately address
prejudice to the defense. State v. Salgado-Mendoza, 189 Wash. 2d 420, 430-31, 403 P.3d 45
(2017).
Here, Mr. Fuentes fails to show dismissal was necessary to preserve his right to
a fair trial. Mr. Rhimer had long been identified as a witness to the events at the gas
station. Mr. Rhimer did not offer any new information in support of the State’s case.
He instead corroborated the store clerk’s testimony. In addition, although the State did
not include Mr. Rhimer’s name on its initial witness list, it did disclose Mr. Rhimer as
a State’s witness several days before trial. Mr. Fuentes never formally asked for
suppression of the witness’s testimony instead of dismissal. The only affirmative
alternative to dismissal was a short continuance. 1 Given the foregoing circumstances,
it was not manifestly unreasonable for the trial court to deny Mr. Fuentes’s motion to
dismiss. We find no abuse of discretion.
1
During the hearing on the motion to dismiss, counsel for the State suggested that,
if the trial court found there was prejudice, suppression would be a more appropriate
remedy than dismissal. While defense counsel affirmed that she would be “happy with
suppression,” she reiterated that the “primary objective” of the motion was dismissal with
an alternative remedy of continuance. RP (July 17, 2017) at 6.
4
No. 35726-1-III
State v. Fuentes
LFOs
Citing State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018), Mr. Fuentes has
filed a supplemental brief, arguing the trial court erred in imposing a $200 criminal filing
fee and a $100 deoxyribonucleic acid (DNA) collection fee at sentencing. 2 Ramirez was
decided after Mr. Fuentes filed his opening brief. That decision held that the 2018
amendments 3 to Washington’s LFO scheme apply prospectively to cases on direct
appellate review at the time of enactment. Ramirez, 191 Wash. 2d at 747. The 2018
amendments prohibit imposition of a $200 criminal filing fee on defendants who are
“indigent” at the time of sentencing as that term is defined by RCW 10.101.010(3)(a)-(c).
RCW 36.18.020(2)(h). Also prohibited is the assessment of a DNA database fee if the
state has previously collected the defendant’s DNA as a result of a prior conviction.
RCW 43.43.7541.
The record supports Mr. Fuentes’s claim for relief from the $200 criminal filing
fee and $100 DNA collection fee. Mr. Fuentes has no financial resources. He is
unemployed and has no prospects for future employment. Accordingly, Mr. Fuentes
meets the definition of indigence set forth by RCW 10.101.010(3)(c). In addition, the
2
The State has not responded to Mr. Fuentes’s supplemental assignment of error.
3
LAWS OF 2018, ch. 269.
5
No. 35726-1-III
State v. Fuentes
record reflects that Mr. Fuentes has a lengthy felony history. We therefore accept defense
counsel's uncontested representation that Mr. Fuentes has previously paid a $100 DNA
collection fee.
Mr. Fuentes's request for LFO relief is granted. We direct the trial court to
strike the $200 criminal filing fee and the $100 DNA collection fee from Mr. Fuentes's
judgment and sentence.
CONCLUSION
The judgment of conviction is affirmed. This matter is remanded to the trial court
with instructions to strike the $200 criminal filing fee and $100 DNA collection fee from
the judgment and sentence.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q
Pennell, A.CJ.
.St. I ft: | 01-03-2023 | 05-09-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142151/ | Hon. Sam G. Reams Opinion No. O-4202
County Attorney
Brooks County Re: Taxation of personal property of
Falfurrias, Texas a State banking corporation.
Dear Sir:
We acknowledge receipt of your request for an opinion
of this department with reference to the above subject.
‘Your request reveals the ‘facts to be that *the
. San
Antonio Loan and Trust Company Is a bankrng .corporatlon, organ-
ized under the laws of the- State of Texas. That they are the
owners of about Pj,OOO acres of land and 1,00$3 head of cattle,
all located In Brooks County, Texas. That the Brooks County
Tax Collector -maintains that the cattle should be taxed in
Brooks County, while the bank contends that they are a part of
-the capital assets and the tax thereon should be paid in Bexar
County, the home .offlce.
These cattle constitute a part of the personal prop-
ert of the banking corporation snd Article 71.65, Revised Civil
Sta f utes, 1925, provides in part as follows:
” . . . 4. All other banks . . . shall render
their lists in the following manner: . . .
“(5) All other property belonging or apper-
taining to. said bank or business Including both
personal property and real estate, shall be listed
as other personal property and real estate.”
Artlcie 7166, Revised Civil Statutes of 1925, provide.sr
nEvery banking corporation . . . shall . . .
render its real estate to the tax assessor at the
time and in the manner requ&red of individuals.
At the time of making .-such-rendition the president
or some other officer of said bank shall file with
said assessor the Worn statement showing the num-
ber and amount of the shares of said bank, the name
and residence of each shareholder, and the number
Hon. Sam G. Reams, page 2 (o-4202)
and amount of shares owned by him. Every share-
hol.der of ‘.said bank, shall, in the city or town
where said bank is located, render at their actual
value to the tax assessor all shares owned by him
In such bank; and In case of his-failure so to do,
the assessor shall assess such unrendered shares
as other uurendered property. Each share in such
bank shall be taxed only for the difference between
Its actual cash value. and .the .proportfonate amount
per stare at which its real estate, Is assessed.
.,. .
Thi purpose of these two provisions if our statutes is
to provide a convenient means of taxing property belonging to a
banking corporation. The bank is first required to f lie a list
oft all proprty and- then .file. a list showing the number and amount
of shares there are 4.n said bank and the names of the .shareholders,
together with the number and amount of the shares owned by each.
The shareholder Is then required to render hi,s shares for taxa-
tion at their actual value, and upon a failure to render the as-
sessor shall render the shares and .place them on the unrendered
rolls. .
‘.
The effe+ of the& stat&es 1s to require the. banking
corpor’atlon to pay t-es on .a11 of its real estate and the- shsre-
hold’ers .to pay the; taxes on the. personal property. Engelke v.
Shlenker, 12 S.W. 9990City of MarshalL v.’ State Bank of Marshall,
127 S.W. 1083. It follows that a State bank is not liable for the
taxes on Its personal -property.*.
You &e thererore advised that- Brook2 County. c¬ ‘re-
quire San Antonio Loan and Trust Company to pay taxes on the 1,000
head of cattle located in,. that county. _ .. _
. .
Trusting that the fo&goihg fully answers your inquiry,
we are
APPROVED DEC.9 1941,. Yours very ‘t&y
/s/ Grover &l&s ATTORNEY GENERAL OF TEXAS
FIRST ASSISTANTATTORNEYGENERAL. By /s/ Richard H. Cocke
Richard H.. Cocke, Assistant
iPPiOvED: OPINIONCiOMMiTTEE
BY: BWB, CHAIRMAN.
RHC:db:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4108105/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 34,235
5 DAVID HACKER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana H. Zamora, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 Charles J. Gutierrez, Assistant Attorney General
12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender
15 Will O’Connell, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 SUTIN, Judge.
1 {1} Following his provisional guilty plea to possession of a controlled substance
2 and drug paraphernalia, Defendant appeals the district court’s order denying his
3 motion to suppress. Defendant contends that private security guards improperly
4 detained and searched him in violation of his constitutional right to be free from
5 unreasonable searches and seizures. He further contends that a law enforcement
6 officer’s later pat-down search was patently a search for evidence and was unjustified
7 as a search for weapons. We hold that the district court did not err in denying
8 Defendant’s motion to suppress.
9 BACKGROUND
10 {2} Evidence at the suppression hearing supports all that follows in this background
11 section. Valor Security is a private security company that pursuant to contract
12 conducted surveillance of the parking areas of Coronado Shopping Center in
13 Albuquerque, New Mexico for the purpose of providing security to the property, as
14 well as visitors and tenants. Valor’s standard operating procedures include looking for
15 suspicious, unlawful activity in the parking lot area. The standard operating
16 procedures govern such activities as surveillance, initiating contact with individuals,
17 using handcuffs, and when to follow someone who has left Coronado’s property.
18 Valor conducted the training of its guards on standard operating procedures internally.
2
1 {3} The Albuquerque Police Department (APD) maintains a substation on
2 Coronado’s property. The only significant institutional connection between Valor
3 employees and APD officers is that APD has conducted seven to eight informal
4 training classes annually for Valor guards, including training on narcotic transactions
5 and how to differentiate between types of drugs. In these training sessions, APD does
6 not set Valor’s policies, train Valor on issues of state law, or direct Valor guards on
7 how to act.
8 {4} With respect to the incident in question, Valor observed Defendant riding his
9 bicycle around the Coronado parking lot without entering or leaving the mall. The
10 parking lot had been having a high number of vehicle crimes. Valor observed
11 Defendant enter a silver vehicle, briefly converse with the driver, and engage in a
12 hand-to-hand exchange, all over a period of 30-40 seconds. The driver dropped
13 Defendant off at his bicycle, and Defendant began riding through the parking lot away
14 from the building. Believing that a drug transaction had occurred, a Valor guard
15 followed the vehicle to get a license plate number. Defendant continued to ride his
16 bicycle around the parking lot. Another Valor guard pulled his vehicle in front of
17 Defendant, initiated contact, and asked something along the lines of “what’s going
18 on?” Defendant responded, “[w]hat the fuck do you want?” When the guard tried to
19 converse with Defendant, Defendant became “extremely agitated” and began
3
1 “screaming” statements like “[w]hat the fuck did I do? Leave me alone. I didn’t do
2 nothing.” Defendant reached with one of his hands to his side in a manner that made
3 the guard feel threatened. The guard secured Defendant’s arm by grabbing his wrist
4 and told Defendant to calm down. Defendant started fighting, trying to get away, and
5 trying to run.
6 {5} At this point, with two guards present, one guard tried to execute an armbar
7 takedown as Defendant was swinging his other arm either trying to strike the guard,
8 escape, or both. “There was physical contact between the two.” When Defendant
9 continued to fight, scream, and yell, the guards took him to the ground and placed him
10 in handcuffs. Defendant was asked if he had any weapons and a security pat-down
11 appears to have been performed. One of the guards made the determination to ban
12 Defendant from Coronado for criminal trespass. The Valor shift supervisor began
13 filling out paperwork and conversing with Defendant to obtain information for the
14 ban. Valor dispatch had called APD in regard to the altercation and potential drug
15 transaction. While the guards waited for APD to respond, one of the guards had a
16 conversation with Defendant regarding the drug transaction. On the subject of
17 quantity, it appears that Defendant admitted to buying drugs from the driver of the
18 vehicle, got more agitated, and began saying “[m]y life is over” multiple times and
19 rocking back and forth. As the supervisor was filling out the paperwork, Defendant
4
1 got up and ran southbound off the property. Two guards left the property to find
2 Defendant.
3 {6} One of the guards found Defendant between an apartment complex and the
4 freeway and told him to stop, but Defendant kept “trying to run.” The guard caught
5 up with and grabbed Defendant and both fell to the ground. A second guard arrived,
6 and Defendant was transported to the APD substation at Coronado, where an APD
7 officer, Officer Tapia, was given “a rundown of the situation on what had occurred[,]”
8 which included Defendant’s hostile behavior toward the guards.
9 {7} Officer Tapia asked Defendant “[w]hat’s going on?” and Defendant responded,
10 “I made a mistake.” After obtaining Defendant’s address, Officer Tapia asked
11 Defendant what he was doing in the area, and Defendant responded, “I’m dumb.”
12 Officer Tapia Mirandized Defendant, which Defendant invoked. In her testimony,
13 Officer Tapia described her intention toward Defendant as follows: (1) believing that
14 she had possible assault charges, she wanted Defendant’s version of the events; (2) if
15 there were assault charges, her intention was to issue a criminal summons; and (3) she
16 intended to issue Defendant a criminal trespass notice for Coronado, then ensure that
17 Defendant left Coronado’s property.
18 {8} Officer Tapia asked Defendant to stand so that she could perform a pat-down
19 for weapons based on her suspicion that Defendant may have been armed. She
5
1 attempted the pat-down prior to releasing Defendant from his handcuffs because, as
2 she described, “[g]iven that he had already fought with three security officers that are
3 much bigger than me, I wanted to ensure that I was safe.” Officer Tapia testified that
4 if Defendant was “willing to fight with three security officers and run from them, . . .
5 there was a possibility that he did have a weapon on him.” She explained that “[g]iven
6 that he had been uncooperative, the suspicious behavior [he] showed, and that he,
7 from my understanding, was uncooperative with mall security throughout their entire
8 contact, I felt that it was a possibility he had a weapon on him.” Her intent was to pat
9 Defendant down, complete preparation of a summons, issue and explain the criminal
10 trespass notification, and release him, making sure he left the property.
11 {9} As Officer Tapia began the pat-down, Defendant said “I’m so stupid,” to which
12 Officer Tapia asked, “You’re so stupid?” Unsure of the reason for Defendant’s
13 statement, Officer Tapia then stated, “[y]ou know, you’ve been cooperative with me
14 so far.” Defendant then stated, “[m]y life is pretty much over[,]” causing Officer Tapia
15 to ask “[w]hat?” Defendant repeated that his life was pretty much over. Officer Tapia
16 asked why Defendant’s life was pretty much over, and Defendant admitted he had
17 drugs and then indicated that they were in his pocket. Officer Tapia asked Defendant
18 if she could take the drugs out, and Defendant said, “[y]eah, go ahead.” Officer Tapia
6
1 retrieved a black velvet bag containing a glass pipe with residue, a small blue baggy,
2 and a clear plastic baggy containing methamphetamine.
3 {10} Officer Tapia testified that she did not intend to check Defendant’s pocket for
4 drugs because she did not believe that the Valor guard’s statement was enough to
5 justify “going into somebody’s pocket[.]” She further testified that she would not have
6 retrieved the drugs from Defendant’s pocket if he had not consented, and instead, she
7 would have obtained a warrant.
8 THE DISTRICT COURT’S DETERMINATIONS
9 {11} The district court entered an order containing findings and conclusions with
10 respect to the foregoing background facts. Defendant has not challenged the court’s
11 findings. Findings regarding the status of Valor include: (1) None of the Valor guards
12 involved are certified law enforcement officers; (2) Valor is not hired or advised by
13 a state law enforcement agency; (3) Valor policy is not validated or directed by a state
14 law enforcement agency; (4) Valor uses a different radio channel than local law
15 enforcement agencies; (5) APD did not instruct Valor to approach, seize, or chase
16 Defendant on October 26, 2012; (6) State law enforcement agencies did not
17 discourage Valor’s behavior because they did not know about it as it relates to this
18 case; and (7) Officer Tapia treated Valor guards as she would treat any civilian when
19 she arrived on scene.
7
1 {12} Based on State v. Santiago, 2009-NMSC-045, 147 N.M. 76, 217 P.3d 89, the
2 district court concluded that Valor was not a state actor. The finding regarding Officer
3 Tapia’s pat-down was that “Officer Tapia had reasonable concern for her safety upon
4 initially encountering Defendant[, a]ccording to the [information] she received from
5 [a Valor guard] that Defendant had fought with him, that Defendant had run away
6 from him, and that Defendant was acting in an agitated manner.” The court found that
7 Officer Tapia acted reasonably.
8 DISCUSSION
9 I. Detention by Valor Did Not Constitute a Constitutional Violation
10 {13} There exists no reason for any detailed discussion on this point. Our Supreme
11 Court’s Santiago decision is directly on point and controlling under the facts
12 presented in the present case. Id. Santiago involved the same private security company
13 and the same shopping mall as in the case now before us. Id. ¶ 4. The facts in the
14 present case do not fall outside of Santiago’s reach. Defendant’s argument to the
15 contrary is unpersuasive, in that it fails to significantly distinguish Santiago on the
16 facts and it fails to provide any authority to support a view that Santiago is not
17 controlling. Applying Santiago, we hold that Valor was not a state actor under either
18 an agency theory or a public function theory. See id. ¶¶ 29-37.
19 II. Officer Tapia’s Pat-Down Did Not Constitute a Constitutional Violation
8
1 A. Standard of Review and Rules
2 {14} This Court’s review of a district court’s ruling on a motion to suppress involves
3 a mixed question of fact and law. See State v. Vandenberg, 2003-NMSC-030, ¶ 17,
4 134 N.M. 566, 81 P.3d 19. “While deferring to the district court with respect to factual
5 findings and indulging in all reasonable inferences in support of that court’s decision,
6 we nonetheless review the constitutional question of the reasonableness of a search
7 and seizure de novo.” State v. Light, 2013-NMCA-075, ¶ 19, 306 P.3d 534 (internal
8 quotation marks and citation omitted).
9 {15} To justify a protective pat-down, the officer “must have a sufficient degree of
10 articulable suspicion that the person being frisked is both armed and presently
11 dangerous.” Vandenberg, 2003-NMSC-030, ¶ 22 (emphasis omitted). “[T]he officer
12 need not be absolutely certain that the individual is armed; the issue is whether a
13 reasonably prudent officer in the circumstances would be warranted in the belief that
14 [her] safety . . . was in danger.” Id. ¶ 23 (alteration, internal quotation marks, and
15 citation omitted). Our courts provide significant deference to the judgment of the
16 officer. If reasonable people might differ on the justification for a protective pat-down,
17 “we defer to the officer’s good judgment.” Id. (internal quotation marks and citation
18 omitted).
9
1 {16} The evidence indicates that Officer Tapia conducted the pat-down based on
2 what the guards detailed about Defendant’s hostile behavior and conduct that led her
3 to believe that Defendant could be armed and dangerous. Further, she conducted the
4 pat-down before she released Defendant from the handcuffs in order to ensure her
5 safety once Defendant was no longer restrained. The district court could reasonably
6 infer and conclude that Officer Tapia’s search was for weapons and not, as Defendant
7 argues, “patently a search for evidence” or pretextual. We are not persuaded by
8 Defendant’s argument that because Officer Tapia was aware that a guard may have
9 already conducted a pat-down, she had no reasonable basis on which to conduct a pat-
10 down for weapons herself. Under the totality of circumstances, we hold that the
11 district court did not err in determining that Officer Tapia’s pat-down for weapons was
12 reasonable.
13 CONCLUSION
14 {17} We affirm the district court’s denial of Defendant’s motion to suppress.
15 {18} IT IS SO ORDERED.
16 __________________________________
17 JONATHAN B. SUTIN, Judge
18 WE CONCUR:
19 _______________________________
20 MICHAEL E. VIGIL, Chief Judge
10
1 _______________________________
2 STEPHEN G. FRENCH, Judge
11 | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4126336/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00803-CV
Armando BENAVIDES,
Appellant
v.
Anselmo BENAVIDES, Antonio Benavides, and A.T. Trucking, L.L.P.,
Appellees
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 06-03-44411-CV
Honorable Richard C. Terrell, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: February 15, 2017
AFFIRMED
This is the third appeal arising from the underlying cause involving a dispute among three
brothers over a business partnership. See Benavides v. Benavides, No. 04-12-00864-CV, 2014 WL
235281 (Tex. App.—San Antonio Jan 22, 2014, pet. denied) (“Benavides II”); Benavides v.
Benavides, No. 04-11-00252-CV, 2011 WL 5407493 (Tex. App.—San Antonio Nov. 9, 2011, pet.
denied) (“Benavides I”). In the underlying cause, one of the brothers, Armando, alleged the other
two brothers, Anselmo and Antonio, breached a settlement agreement, and Anselmo and Antonio
filed a counterclaim alleging Armando breached the settlement agreement. In this appeal,
04-15-00803-CV
Armando asserts four separate issues; however, the issues commonly contend the trial court erred
in entering a judgment that exceeded the scope of our remand in Benavides II. Because we hold
the trial court’s judgment was within the scope of our remand, we affirm.
BACKGROUND
The following summarizes the findings of fact and conclusions of law entered by the trial
court following a bench trial held after we remanded the cause in Benavides II. 1
On October 17, 2005, Armando voluntarily withdrew from the partnership he had with his
brothers. After the date of Armando’s withdrawal, Anselmo and Antonio paid Armando
“$1,338,734.07 in cash and/or equipment and/or services toward the satisfaction of his redemption
interest” in the partnership. A dispute arose among the brothers, and they entered into a mediated
settlement agreement (“MSA”) on May 27, 2009, in an effort to resolve the dispute.
Under the terms of the MSA, Anselmo and Antonio were required to transfer possession
of the partnership’s work trucks to Armando within two weeks from the date of the MSA. Anselmo
and Antonio did not transfer possession of the trucks to Armando because Armando failed to
provide them with proof that he had procured insurance on the trucks. Armando testified he needed
possession of the trucks to “rearrange” them for his banker’s inspection, apparently implying he
needed to obtain financing from the bank to obtain the insurance. Although Anselmo and Antonio
offered to rearrange the trucks for Armando, Armando rejected that offer. The trial court
concluded Anselmo and Antonio breached the MSA by failing to transfer possession of the trucks. 2
However, the trial court also found the breach was not material and that Armando did not incur
any damages as a result of Anselmo and Antonio’s breach.
1
Armando has not raised an issue on appeal challenging the trial court’s findings of fact.
2
The conclusion that Anselmo and Antonio breached the MSA is law of the case based on our holding in Benavides
I.
-2-
04-15-00803-CV
Also under the terms of the MSA, Armando was required to pay Anselmo and Antonio
$500,000 each within ninety days after the date of the MSA. The trial court concluded Armando
breached the MSA by failing to pay or tender the payment, and also found Armando’s breach was
material. The trial court further found Anselmo and Antonio did not incur any damages as a result
of Armando’s breach.
In the final judgment, the trial court entered a take nothing judgment on Armando’s breach
of contract claim and on Anselmo and Antonio’s breach of contract counterclaim. In its judgment,
the trial court found, “neither party is entitled to monetary damages as a result of the breach of
contract claims, because of the distribution referenced in paragraph 2.” In paragraph 2, the trial
court found Anselmo and Antonio “previously distributed to [Armando] $1,338,734.07 in cash,
equipment and services in full satisfaction of [Armando’s] redemption interest in [the
partnership].” Armando appeals.
LAW OF THE CASE AND SCOPE OF REMAND
In Benavides II, we explained the legal principles of law of the case and scope of remand
as follows:
When a cause is remanded to a trial court by an appellate court, the
application of both the law of the case doctrine and the scope of the remand must
be considered by the trial court in determining what additional proceedings are
necessary to fully resolve the underlying cause. “The ‘law of the case’ doctrine is
defined as that principle under which questions of law decided on appeal to a court
of last resort will govern the case throughout its subsequent stages.” Hudson v.
Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). “By narrowing the issues in
successive stages of the litigation, the law of the case doctrine is intended to achieve
uniformity of decision as well as judicial economy and efficiency.” Id. Similarly,
when an appellate court “remands a case and limits a subsequent trial to a particular
issue, the trial court is restricted to a determination of that particular issue.” Id.
“Thus, in a subsequent appeal, instructions given to a trial court in the former appeal
will be adhered to and enforced,” regardless of whether those instructions appear
in the appellate court’s mandate or in its opinion. Id.
2014 WL 235281, at *2.
-3-
04-15-00803-CV
In Benavides II, we held confusion over our opinion in Benavides I necessitated a remand
in the interest of justice, explaining:
. . . remand is appropriate because the parties and the trial court appear to have been
laboring under a misinterpretation of the law of the case arising from our prior
opinion and the scope of the remand. For example, Armando appears to have
interpreted our decision as resolving the breach of contract claim alleged against
him. It did not. As previously noted, although Anselmo and Antonio alleged a
breach by Armando in their amended answer and counterclaim, the trial court did
not address that claim in its judgment. Armando also appears to believe the trial
court could be precluded from considering the equitable remedy of rescission based
on his amended pleadings. This contention ignores the instructions given to the
trial court in our prior opinion to reconsider the equitable remedy of rescission.
Finally, the trial court, Anselmo, and Antonio appear to have misunderstood the
legal principles stated in our opinion that would preclude a trial court from ordering
a rescission for an immaterial breach of contract. As previously noted, an
immaterial breach permits a party to sue for damages, not rescission. Because a
probability exists that the underlying cause was not fully developed due to
confusion arising from our prior opinion, we reverse the trial court’s judgment and
remand the cause in the interest of justice.
2014 WL 235281, at *3.
To clarify the scope of remand, we stated in our holding in Benavides I that Anselmo and
Antonio breached the settlement agreement was law of the case. Id. We further clarified, however,
that Benavides I did not address Anselmo and Antonio’s counterclaim against Armando for breach
of contract.
DISCUSSION
The issues asserted by Armando in the instant appeal are premised on his contention that
the trial court was not authorized to consider Anselmo and Antonio’s counterclaim on remand.
We disagree.
“Generally, when an appellate court reverses and remands a case for further proceedings,
and the mandate is not limited by special instructions, the effect is to remand the case to the lower
court on all issues of fact, and the case is opened in its entirety.” Simulis, L.L.C. v. Gen. Elec.
Capital Corp., 392 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also
-4-
04-15-00803-CV
Univ. of Tex. Sys. v. Harry, 948 S.W.2d 481, 483 (Tex. App.—El Paso 1997, no writ) (“When we
remand a cause to the trial court for a new trial, the remand generally is unlimited in scope and the
cause is reopened in its entirety.”). For a reversal to be limited to particular fact issues, it must be
clearly apparent from the decision that the appellate court intended to do so. Hudson v. Wakefield,
711 S.W.2d 628, 630 (Tex. 1986). The scope of the remand is determined by looking to both the
mandate and the opinion. Id; Celtic Props., L.C. v. Cleveland Reg'l Med. Ctr., L.P., No. 09–13–
00464–CV, 2015 WL 4600661, at *3 (Tex. App.—Beaumont July 31, 2015, no pet.) (mem. op.).
As we noted in Benavides II, our opinion in Benavides I did not address Anselmo and
Antonio’s counterclaim against Armando. 2014 WL 235281, at *3. Our opinion in Benavides I
did, however, address Armando’s breach of contract claim. Because we determined Anselmo and
Antonio breached the MSA as a matter of law, we held Anselmo and Antonio’s liability was
uncontested; therefore, we limited the scope of the remand as to Armando’s breach of contract
claim to “all legal and equitable issues relating to damages or other relief that may or may not be
appropriate.” 2011 WL 5407493, at *2. Although our opinion limited the scope of the remand as
to Armando’s breach of contract claim, the trial court’s judgment was reversed, and the entire
cause was remanded to the trial court for further proceedings. Similarly, in Benavides II, after
clarifying that we did not address Anselmo and Antonio’s counterclaim against Armando in
Benavides I, we again reversed the trial court’s judgment and remanded the entire cause to the trial
court for further proceedings. Because our opinion and mandate only limited the scope of the
remand as to Armando’s breach of contract claim, all other issues in the case, including Anselmo
and Antonio’s counterclaim for breach of contract, were opened in their entirety. Simulis, L.L.C.,
392 S.W.3d at 734; see also Univ. of Tex. Sys., 948 S.W.2d at 483.
-5-
04-15-00803-CV
CONCLUSION
Because the trial court properly considered Anselmo and Antonio’s counterclaim on
remand, Armando’s issues are overruled. The trial court’s judgment is affirmed.
Irene Rios, Justice
-6- | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126339/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GORDON LAWRENCE PENN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:15-cr-00016-JLK-1)
Submitted: February 9, 2017 Decided: February 15, 2017
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
for Appellant. John P. Fishwick, Jr., United States Attorney,
R. Andrew Bassford, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gordon Lawrence Penn appeals from his convictions and 61-
month sentence imposed following his conditional guilty plea to
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) (2012); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2012). On appeal, Penn challenges only the
district court’s denial of his motion to suppress evidence
seized by law enforcement during the search of a vehicle he was
driving when he was stopped for a traffic infraction, as well as
statements he later made to law enforcement. Finding no error,
we affirm.
“When considering a district court’s denial of a motion to
suppress, we review the [trial] court’s factual findings for
clear error and all legal conclusions de novo.” United States
v. Stover, 808 F.3d 991, 994 (4th Cir. 2015). Because the
Government prevailed on the suppression issue below, we construe
“the evidence presented in the light most favorable to the
[G]overnment.” Id.
The Fourth Amendment protects citizens against unreasonable
searches and seizures. U.S. Const. amend. IV. Warrantless
searches are per se unreasonable, but “there are a few
specifically established and well-delineated exceptions to that
2
general rule.” United States v. Davis, 690 F.3d 226, 241-42
(4th Cir. 2012) (internal quotation marks omitted).
One such exception to the warrant requirement is the
voluntary consent given by an individual possessing the
authority to do so. Illinois v. Rodriguez, 497 U.S. 177, 181
(1990); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.
1996) (en banc). “The government has the burden of proving
consent[,]” however, and “[w]e review for clear error a district
court’s determination that a search [was] consensual . . . [and]
apply a subjective test to analyze whether consent was given,
looking to the totality of the circumstances.” United States v.
Robertson, 736 F.3d 677, 680 (4th Cir. 2013). In this case, the
district court found that Penn consented to the search of the
vehicle he was driving and, thus, that the ensuing search was
constitutional. We have reviewed the record and have considered
Penn’s arguments and discern no clear error in the district
court’s findings.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142160/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
*nom*sY~m~AL
Honorable5ert Ford, Addnlstrmtor
Toras Liquor Control Board
PAustin, Texmo
Dear Sir: opinionHo. o-w9
Your letter of Oot
opinion ot 8hlB department o
ma&m am follevflr:
hereinaitsrat
are nm to11owa
seib ArtLolea.
*2. Shor$ly th~reaflmr in the year 1913,
the oitl or Harton pmwad an ordinaoo in keep-
ing with rraidArtlelea 0r aha stebotea 8nd by
HonorableBert For&, MmInIstratar, Pqs a
the terms thereoflx teml~d Its l&Its for the
lirsitedpurgosesnamedla the ststute r0r sppra.x-
lmstelftwnSy atIles down the Ruffslobayou iram
the olty llmlts es then fixed, and the lend lying
on each side thereofror 8 distance0r 2500 feet
rpomthe thmad 0r the stress.
“3. In the latter part or the year 1928
the olty 0r Pasadeuswas Iaoorporatedas e olty
uader the generallaw o? Texas, sinoeuhloh
t&w It has funotloneda8 mob. At the time or
Its InooxporstIon the olty oi Psssdeaafixed Its
no Hh 0m boundsrylt the nor&h line oi .%oond
Strsst ror some dIst8aos both ee8t and west rr08h
Shaver Stree4. Shsrsr strast is s muin thorough-
ram manIn north and south throughthe oIty or
Pasadsnmlul la Its extmk3lenbsyead ths e1ty
limits northwardat SeoondStrost,it lb8 be-
tnsn the propertiesor ths Cmm CenOrsl Pe8ra-
leoa RsflnlngCoapaayon the mast side and the
OhmmploaPspsr and Fibex Gompanfs plant UA the
wst side until it resohe8Burrs10Bapu et w&t
Is known as ths PasadenaPerry. Crow Oentr,al
P~taolmua compmnyowns the lamI just north 0r
said Seaond Street UA% erst of said ShsterStmet,
0twid8 0r trid ooxporsSe iirits’0r thr Ofty or
Posmdena*, sad 8 I&. Erylsos 6UM a *mob of lsad
lfing on the ss6t aid0 or Shs~or Sfmet and 8dOth
of 8soaad kSU-est,aad has leortdl on said txaot
or land a oats build- ju8t aomms SeoosAStrsst
fmts Ohe Crown CentralRailnaryand wIthIn tho
oorporatelimitsor the oIty or l?sssdens as tina
St tho tIma or its inoorporstIon.
-4. since the time 0r Its InoosparstIon the
oity 0r Pssmdenmhas runotiose In rU respOots
under the laws of Terar as 8 city, aad ha8 levied,
reme8se6,and oolleotodtazos upon the prraperties
wlohin the ooxporsto1-w es iixed at the tIma I
or inonrporstion sad furtherhas lxaroI8edpelloo
Jurisafetlae Oontimt0wly rr00l time et inoomm-
tion over the entim area inoludsdwithin its
corporate li4uSts IneludIngthe mea whem mid
cafe bulldingIs now loeatsdon th4 Hu@es pro-
P-W-
888
HonorableBsrt Ford, AdmhI8br~OOr, Psp 3
*Also sInos
Its Inoorporation the elty or
Pasadena hw issued seteml series or bonds, II
large portionot whloh bonded indobtednsss Is
still outstaudiagand unpaid,amsg whleh bond
Issuesare the tolloulngr Plre StationTax lI)oods,
Water Works Tax Bonds, Sewer Byatom Tar Bonds
and 1929 ReMdine; Tax Bonds,all dated Septem-
her 25, 1929, 1931 ElerusdtagTax Bonds dated
February 10, 1931, W8tsr sn4 Sower Bevenus&&la
dated Xaroh 1, 1934, Bmmr Syshrn Tax Bonds dated
Maroh 10, 1938, 9trsetXmprmemsnt Tax Bands
dated Ysroh 10, 1938, all or whlcrhwsrs spprorsQ
by the Attorney Denoral of !ibus snd transorIp~s
or whlah are on .rile In that orrioe.
“5. The north llue at SeoentlSt~ot at itrs
Interssotlon with Shaver SWeot Is spproxhatoly
2100 feet math from the thread or the etmsm or
ButfsloBayou snb thst a lIm dzsus so~oss Shsvor
Strsetparsllslto t&e thlwd Ot the 08reama2
Bu!YaloBayou 8nQ at 2500 reot distant thersfia
would probablyores8 JheterStzsst and the aarth
pati of bhe oity of Fasa&eM aa fixed by tts In-
oorpontlon proaeodIngssbotlt400 reet south of
said oah buIlbSnLn(l
oa the Eu&es wopsrty. Ia
otherwords, the said oafs WUdIug WI the Eu&es
propertyisdthIathes3vm lylag betweenthe
thawed or BufrsloBsyou and said 2500 tee line
as rixe44by the osdlinurse or the olty 0r Bowton
in 19lf. also that said oare bulldln~an8 the
Hugher properly are within the sm~s~iaolubdin
the elty or Pesodensas flwd at the time at its
InoorporstIon.
"6. The oity 0r Bow*on has never ecqutred
any laua llther by purohase,son4emsatiouor gljt
1yIw wI8hInthe slsisd OorgOmte limitsat ths
olty or Pamdens se ilad at the time or its ta-
oorpor8tion, that 18 south 0r ~;eoan~ Vwaet, r0x
the Improv*ment f5r n8~i~aa9Ioa,or r0r the purpose
or estsblishingand amIntainiag[ whnr~~~a, dooks,
rsllwsytsrmlnsls,side trsoks, rarshotues,@r
any other tsollitfesor si68 wh~Wme+er to either
ns~ip*ion or wharves, or r0r any other purposs,
and the olty of-Houstonhas not b;l ordlaaneeor
EenorsbleBert Ford, Admini8trmterr,
Pogs 4
otherwIseexwoised any golloe $arietiotIon what+
ever over wy part at the ems wIWn tie sorpomtb
llrmits0r the olty 0r P8~a0~8. as rlzed at the
time 0r its inoorporatIon.
"7. An elsotlonuse hsld on Ihey22, 1937,
In the oity or Pmsadsnaiar the purposeofdetsr-
mining whetheror not the sale oi liquorend bwr
shall bs prohibitedwithintha olty oi Pmsadsns,
in Harris @ounty,mse~ and thmt 8 majority of
*he votersvo*lng 8% ssid elsetiosvoted In r8v0r
or prshlbltingthe sale of 811 liquors,Inoludlng
beer and wine, and the oosmIssIoners~ oourt oaa-
teemed the returnssnd tiolsrsdthe results,and
by retwon thereofi% has ewr slnae &hat tlm bssn
lull4 to sell llquws, bsor or tiae within the
oorpors
Ye lidto or l&e aity 6r ?momdoar.Tbo
oorpormtellmlts or tha oity at tks tlm or meld
lleotlonwre the maw es than ilxsd at the tlmo
0r inoorgomtlon,6he nor@ Une themor bawfng
at SeoondE&mot, an& 8616 sure buildingu& Eu&&s
propertythea es new balagdthln the olala*dssr-
poratelirits or the olty or Pmosde~.
?7mlterOrowd*r I8 Sow sngmgsdio epwst-
Isqg8% busIne88In the sbwe wntIow6 omio
?s%Ildlsgon the S&a&es preporty,and has mpp&iod
to the oounty judgs and rsssltoda lioeussdmtrd
September 17, 19U, WIQ;~WILI~& him to BO%& and
disponsabeer at said losmtlon,the Is8usnos0r
said lleensshsrUg bass spproYedby the Ihxm
Liz? ControlBoard end number thsrsolbsing
.
"9. Them has basn ems eosq!laInt that sin40
Walter Crolber*s plaoo at businsssis wfthln tha
oorporstelimitsoi the oity or Pssmdeasaa oL&ssd
ever slnoe the Inaorporstion tboreoi,a liosnroor
permit to sell beer at that losatlousould not ba
hur~I.LyIesuodto hIxa,and 8~ sale of beer st
that plsos of businesswcwld bs awful by NSSBB
or the r80t8 and olrw5st4mws hersiambevsset out.
0s the o&her head, WalterUrowdsrbslIens ha is
sntltlsdto the lioenssand to as11 hser St 8814
loostion r0r the remscm thst It Is situatedwIthin
EonorableBerC ?0rd, Admlnl8tretoor.
P*ga 5
2300 feet or the threador the strvam of Buffale
Bayou aa rlxrd by the 1913 ardlamnaeor the olty
0r Iiountonand by mason themor under the pollee
juriedlotlou or the olty or HourtonexolurlVely.
*Wo theretoredeelra your opinionupon the
r0iiorring queetlons:
*I. Is the looritlon or Walter OroWar*a
oaie as h@relnaboVedeseribd undor the polioo
jurieaiotion or the oIt]ror Permlena,or or the
oity or Howton?
*2. Is the looatlonor Walter Orowdor*a
oare as her&mborcl de8OPlkd rdthln a 'dry ema*
by rmaon or the abom mentionr4boor eleotlon
in the oity or Pasadena,OS‘is raid oar* loonted
within the oitt o? HouNon, or to aate it aimP-
lntlyr Could a lloonsebe le&ly irrmmd80 Walter
Crowderauthorlrlagthm ~010 of beer at sold loea-
tlon?
"Atteahodhereto Is a rup @hatingths laaatiou
0r the atreetaand preporbism honinberore kun-
th nr dand th 0lppromte loeatlon or the 2500
root line rr0m the thxead or the ohannmlto murala
BqQU."
Under the iaata atate In your Bettor the sat8 in
question *Is wl8hlnthe axee l#ngf betmea the thread or
Iiwr~lo Bayou and mid 2500 root line aa fired by the or-
dlnanoeor the olty or Bowton In 1913. . . . aud also with-
in the area lnoludedin the olty or Pasadenaaa rlxed at t&e
time 0r its lnao~ratlon.w
It'18 statedby MaQuufllin
on MunlaipalQorporstioa8,
2nd Edition,VolunmI, page 713;
oorp+ratloas@annethave jtiiadlotion and oontrol
at one the 0r the mm qmlatlon aid terrftav
and exeralm like or 8s lap pewer8 in b&s *tam
bcsunaarle8. i?owwer, in t&u ebtmnoeor oom~tilbo-
tional rs~tristloas, no abjertlonexlato to the
BonorableBert Ford, Administrator,
Paga 6
power of the legislatureto authorize the forma-
tion of two munlolpaloorporatlonein tha same
territoryat the same time for dlrrerentpurposas,
anr!to authorizethem to oo-operateao far as
oooperationmay be oonalstentwith or desirable
for the aooorlpllshment
of theirrespectivepur-
pocree.
%bnloipel oorporatlons organlzadror dlf-
rerent purposesmay lnoludethe name territory,
as a olty and a oountr,or a oltp and a board
of eduostlon,or a sohooldlstrlot,or a olty
and a port dlstriot. A drainagedltitrlot may
includewIthin its limitspart of the territory
or an lnoorporated rl1laga.
"The rule that there eannot be two mniol-
pal oorporatlonsor like kind and powsra In the
s=a area at the same tlma must be undorrtoed
as neanlng two legal and effeotlvaoorporatlonsi
There may be a de raoto oorporatlonwithoutright,
and a oorporatlonlegal11organiaedbut not In
aotual governmentuntil the de faoto oorporatlon
16 ourted. The f%uWtionsof the legal oorpon-
tlons ara in abeyanoruntil tha ouster,when thsy
then oame ln*o sotltitg. For like reasons two
~latlnotchartersfor OQOatidtha 6ame oorpora-
tfon oannotaxlet at the same ttio, and, hanoe,
a munlsipal &rpomation alreadyin ~xletsnoeand
having e valid charter aannot ba reiaoorporetsd
by a oourt havingno authorityto repaal,annul
or deolareforfeitedthe rxlrtiag ohartar,but
whose powers are, on the oontrary,sxpreasly
limitedby statuteto the Inoorporatlon of places
and inhabitanta*not inoorporatsd*.*
In the osse 0r city or GalanaPark, et al. 1. Gltr
of muston, 133 s. ‘8. (2d) 162, (writoz error refuredl it
was held In affaotthat two munlolpaloorporationaoannot
have 4exlstentcontrolover the stum territorfand contam-
poraneouslpaxerolse essentiallythe aama gmarnB@ntal parers
In it*. IO was furtherheld in this taaaethat the oity a?
Houstonby enaatmentof an ordinanoeoxtsndiqgits boundarie8
along BuffaloBayou and the HoustonWhip Canal as authorimd
by emergenagstatutesto provide wharrageraeiiitIa8r0r
HonorableFort Ford, Administrator,
Page 7
oltlsa on narlgablestreaiaa,did not aoqtire*rely llmit~e
powere for naoigationpurpoi3eaover the territorylnoludad
dttin euoh boundaries,but aoqulredex~luaiv~ juriadiotlou
theroorer80 es to precludethe olty of CilensPark rrcm
aubaequently enlarginglta boundariesto lnoludea portion
of the lend theretoforeannexad by the oity of Houeton.
It la shown In the above mentioned eeae that
"On April 18, 1913, the oity of Houetm, by
an ordlnanuein all reapeotaappropriating auoh
power8 to do that as was grantedit (a duly qumll-
ried oltf) under a genenl law or the ?tate passed
Maroh 17, 1913, now appearing as Ohapter14, Title
28, or Artlolea1183 to 1167, lnalualva,or the
Rmvlaed Ztatutia of Texas, lxtendod lte boundarloa
ror an air-linedlatanaeor 20 ~Ilea from lta Wnn
eaat~rnlimit-lIn*down and along ButraloBayou
and the HoustonShip Channal,so as to lnoluda
wlthln the olty tOrrthat dl@tanOrauoh narlgeblo
atroom togetherwith the lrnb mdjolnlngIt on
both aiden ior WOO feet each way, rrom the threads
thenor.
Y'hereaftor, in 1935, tha Olt)ror Qaleaa Park,
a amall town inoorporataeuneor the generallaw,
and pursuantto the atatuteaauthorislngauoh paam%-
olpalltlos la proaorlbedmamer and olroumatanooa
to enlargetheir baundarlea,underbook to Inoor-
porate and lnoludawithin lta liaiba ror general
purpoaeaa portionof the land 40 oontlguouato
RuftaloBayou aad the Hou880n Ship Chenml that
bed theretororebeen anaone to and appropriated
;z the olty or Houston,under the OrdlnanOOreferred
.
". . . .
*Aa beforeindioatrd,the city or xouaten,
being then oiturt& UPOA t&e savlgable8txYsamaf
BuffaloBayou, and being in exlstenoeunder 8 apO-
olal charter,one no&h after its paeeageadopted
the nsooeaary ordi~laaa~ an8 therebytook OdVanta@
of suah new17 deolaredpubllapolloyof the at6tOa
t&A axtendingits jorladlotloa Over the 2@-sailQ
strip-inolus$veof the portionhere iA Oantrotersp-
HeaorsbleBar-tForb, Adainlstrater, Paga 8
and ha4 4-r sin04 zmint4ln4band axaralasd It.
*. . . .
When the detailsd protisfona of the Aat are
lookedto, such poliafq4ems all the 1~or4plain,
ths 4peaI~Iapurpo444~&IQJ eet out In th444 four
4uoo4s4ir4Artta14rIJO4.i 1183 to 1186, IaalurIt4.
There is then appendedArt14141187, whIah, though
laat In order, is worthy of m4ntiw Sirst~a4 M-
flratlng al4ar 11&t upon what wan intsnd4il Ia the
pr404ilIngfour. It run4 44 ta11ow4r
*Vh4 power gr4ntd in th4 rour pr404dIng
art14144#hall not 4uthorIe4th4 4xt4n4ionoi bh4
t4rrItory.orany olt~ ior th4 lImIt4bpwpo44e
-4 80 a4 to Inoludrany land uhI4h ~i4almadr
par8 of any other aity or town aoFgoraQIonwhether
1naorporaCed uri44r the g4n4rallaua or andbp q~~ial
law, or any land at tha tIm4 belo~&ng to a~ other
Oibf or tawR.'
"Thbasby 4xpr440interdlatlon th4 Citr ot
xouston In 1913, rh4n it 04m4 to so 4xt4nd it4
lirita, aould not ha+4 lnalud4dth4rrinth4 part'
tlon hami Iaroltod,bad It already b44n i~mwper-
at44 Ints th4 CItT OS Onlena Park: by the @aam
% tokmn, It would ~440 that in 1935, uh4n aha 0187
of tkl4na Par& in Sum aame mssklng the aaaa 46*
rllmry,It ~144lik4wl44prsaludrdfrem taklag it
in, b4aau4eof It4 sp4aIalina4rporatIon and appm-
priatianby the Olty of Bouston 22 par6 b&o~O.*
W4 think, what ~44 aaid h4rs with refaren44to the
CItt of Gal4naPark meekkingthe 4-4 b4rrItOry,which wa8
dthln the Inaorporete1ImIte or the Cl8y ot'HOuaBon,kt wa4
pr4alu&4drrem taking It in beaeueeof Its 4p4aIallILa4rlWP4-
tlon and appropriation by the Oltg o? Xeuston,Ir 4qwlly ap-
plIoabl4to the City of fasadsna when It.sought Ilk4 twritory
and would b4 preolud4dfrcmotab1 It In koawo ai ttr spr-
ala1 inoorporation and approprlatT On by the Ditr of Xou4ta
In the year 1913.
For d4rlaitIms of th4 t4ns *thmad at 4 8Bse4%*w4
refer you to Worda and Phraa44,P4r4mti4nt
Edition,VOlun4 bl,
page 592.
Xonorab14 Ikrt ?ord, Adminlotrator, Pap 9
In ln8uer to your tlrat qwetlon as statedabow,
you ara ad~lnd that it la our opinion th4t Walter 0rowd4rw8
oar4 Ia 8Ituat44 within th4 oity limits of Hourton and Is un-
der the polio4 jurlrdiotion.# 4ald ait?.
In nply to your 44aond qu44tlon, you are a&r1844
that It In our opinion that the 84Id aa? Is not boated wlth-
la a dry,area notwIthrt4kkdIngth4 looal option 414otIon h4ld
In and by the Olty ot~Panatl@aa but thet~uald ante, a8 abom
8tat44, i8 8ituated dthIn th4 Oitr lirmiteof Howton and th4
loo41 optloa 414otlon h4a no etfeet or rorab wlOB ref4nn44
to that territory or au-48 Inolud4d in th4 olty lItit of
Hourtan. It I8 our further opinionth4t the abovo moatload
lIo4n84 4oul4 b4 legally 148ued to Walww Crarrd4r4uthorircIng
t& 8a14 of beer at 4ald loaatlon 991488 l4gally prohlbIt4d
by ecm rmgnlatlon br the City of Houston.
Tru8ting that the Bmegolag fully amwP8 pur In-
quirr, ‘I, lr 4 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124956/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 9, 2016
The Honorable Lisa Pence Opinion No. KP-0108
Erath County Attorney
100 West Washington Re: Whether a nonprofit entity that has
Stephenville, Texas 76401 offices on land owned by a municipality may
restrict the licensed carrying of handguns on
the property (RQ-0097-KP)
Dear Ms. Pence:
You explain that in -your county "at least two non-profit agencies ... have offices located
on land owned" by a city. 1 You further explain that those agencies are the only entities located on
the specific properties in question, that no governmental offices are located on the properties, and
that the city "has no authority as to the operation of the non-profit and all decisions are made by
an independent board of directors." Request Letter at 1. Given these facts you ask whether
handguns may be prohibited by a nonprofit entity when the entity's offices are located on property
owned by a city or governmental entity. Id .at 2. You base your questions on section 411.209 of
the Government Code and sections 30.06 and 30.07 of the Penal Code, and we will address each
of these provisions in tum.
The Eighty-fourth Legislature enacted section 411.209 of the Government Code, which
prohibits state agencies and political subdivisions from providing notice that a licensed handguri
carrier is prohibited from entry to a location other than those articulated in the Penal Code:
A state agency or a political subdivision of the state may not provide
notice by a communication described by Section 30.06, Penal Code,
or by any sign expressly· referring to that law or to a concealed
handgun license, that a license holder carrying a handgun under the
authority of this subchapter is prohibited from entering or remaining
on a premises or other place owned or leased by the governmental
entity unless license holders are prohibited from carrying a handgun
on the premises or other place by Section 46.03 or 46.035, Penal
Code.
'Letter from Honorable Lisa Pence, Erath Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Feb. 11, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Lisa Pence - Page 2 (KP-0108)
TEX. Gov'T CODE§ 411.209(a). A state agency or political subdivision found in violation of this
provision is 'liable for a civil penalty administered by the attorney general. Id. § 41 l .209(b)-(h).
Relevant to your request, the prohibition in subsection 41 l.209(a) applies only to "a state
agency or political subdivision of the state." Id. § 41 l.209(a). Section 411.209 does not address
whether a private entity, including an independent nonprofit entity, may provide notice to license
holders that the carrying of handguns is prohibited in its offices. If a private entity is operating
jointly with a governmental entity or has been hired by the governmental entity to perform certain
governmental functions, fact questions could arise about which entity effectively posted a notice
prohibiting the carrying of guns. However, under the facts you describe, the private, nonprofit
entity appears to have an arms-length agreement to lease city property and is not otherwise
affiliated with the city. See Request Letter at 1. "As a general rule, a lessor relinquishes possession
or occupancy of the premises to the lessee." Levesque v. Wilkens, 57 S.W.3d 499, 504 (Tex.
App.-Houston [14th Dist.] 2001, no pet.). In such circumstances, section 411.209 does not apply
to a city that leases property to a nonprofit entity that provides notice that a license holder carrying
a handgun is prohibited from entry. As long as the state agency or political subdivision leasing
the property to the nonprofit entity has no control over the decision to post such notice, the state
agency or political subdivision lessor would not be the entity responsible for the posting and would
therefore not be subject to a civil penalty under section 411.209. See TEX. Gov'T CODE
§ 41 l.209(a).
Whether sections 30.06 and 30.07 of the Penal Code make it an offense for a person
carrying a handgun to enter property leased by a nonprofit entity from a state agency or political
subdivision is a separate question. See Request Letter at 1. Subsections 30.06(a) and 30.07(a)
make it an offense for a license holder to carry a handgun, either concealed or openly, "on property
of another without effective consent," when the license holder "received notice that entry on the
property by a license holder . . . was forbidden." TEX. PENAL CODE §§ 30.06(a), .07(a).
Subsections 30.06(e) and 30.07(e) create exceptions to the application of those sections if "the
property on which the license holder ... carries a handgun is owned or leased by a governmental
entity and is not a premises or other place on which the license holder is prohibited from carrying
the handgun under Section 46.03 or 46.035." Id.§ 30.06(e); see id.§ 30.07(e). We must therefore
determine whether these exceptions to the offenses apply to property that is owned by a
governmental entity but leased to a private, nonprofit organization.
When the Legislature enacted subsection 30.06(e), its stated focus was on local
governmental entities that were prohibiting concealed handguns from public places. See House
Research Org., Bill Analysis, Tex. S.B. 501, 78th Leg., R.S. (May 9, 2003) at 4 ("A city's ban on
concealed handguns in public buildings could make it needlessly difficult for a person lawfully
carrying a concealed handgun to perform necessary tasks such as paying a utility bill or renewing
a car registration."). Nothing in the text of the statute itself nor in the legislative history suggests
that the Legislature considered whether private entities that leased property from a governmental
entity were required to allow the carrying of handguns on the property that they lease. The fact
that the Legislature created a civil penalty in section 411.209 of the Government Code only for
state agencies and political subdivisions provides some contextual support for the idea that the
Legislature may not have intended to require private lessees of governmental property to allow
handguns on that property. See TEX. Gov'T CODE§ 41 l.209(a).
The Honorable Lisa Pence - Page 3 (KP-0108)
Nevertheless, when construing statutes, courts recognize that the words the Legislature
chooses are "the surest guide to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 866 (Tex. 1999). When possible, courts will discern legislative intent from
the plain meaning of the words chosen, and only when words are ambiguous will courts "resort to
rules of construction or extrinsic aids." Entergy Gulf States, Inc., 282 S.W.3d 433, 437 (Tex.
2009). The plain language of subsections 30.06(e) and 30.07(e) make an exception ifthe property
on which the license holder carries a gun "is owned or leased by a governmental entity." TEX.
PENAL CODE§§ 30.06(e), .07(e). These statutes make no exception to that exception for property
owned by a governmental entity but leased to a private entity, and to conclude that carrying a
handgun on such property is prohibited would therefore require reading language into the statute
beyond what the Legislature included. See Entergy Gulf States, Inc., 282 S.W.3d at 443 (noting
that courts "refrain from rewriting text that lawmakers chose"). Thus, a court would likely
conclude that a license holder carrying a handgun on property that is not a premises or other place
from which the license holder is prohibited from carrying under sections 46.03 or 46.035 of the
Penal Code and that is owned by a governmental entity but leased to a private entity is excepted
from the offenses in 30.06(a) and 30.07(a). 2
2
Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an
owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d
705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done
or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d I, 12 n.36 (Tex. 2008) (quotation
marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the
private entity from restricting entry onto that leased property for individuals carrying handguns.
The Honorable Lisa Pence - Page 4 (KP-0108)
SUMMARY
Section 411.209 of the Government Code creates a civil
penalty for a state agency or a political subdivision that provides
notice that a license holder carrying a handgun is prohibited on
property owned by the governmental entity unless carrying a
handgun in such locations is expressly prohibited under the Penal
Code. Section 411.209 applies only to a state agency or political
subdivision of the State and does not address whether a private
entity, including an independent nonprofit entity, may provide
notice to license holders that the carrying of handguns is prohibited
in the private entity's offices. As long as the state agency or political
subdivision leasing the property to the private entity has no control
over the decision to post such notice, the state agency or political
subdivision lessor would not be the entity responsible for the posting
and would therefore not be subject to a civil penalty under section
411.209.
A court would likely conclude that a license holder who
carries a handgun on property that is owned by a governmental
entity but leased to a private entity and that is not a premises or other
place from which the license holder is prohibited from carrying a
handgun under sections 46.03 or 46.035 of the Penal Code is
excepted from the offenses in subsections 30.06(a) and 30.07(a) of
the Penal Code.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee | 01-03-2023 | 02-10-2017 |