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[ "2002 OK CR 17", "46 P.3d 154" ]

[ { "author_str": "Lile", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5419, "opinion_text": "\n46 P.3d 154 (2002)\n2002 OK CR 17\nThe STATE of Oklahoma, Appellant,\nv.\nFrankie HOWERTON, Appellee.\nNo. SR-2001-242.\nCourt of Criminal Appeals of Oklahoma.\nApril 11, 2002.\n*155 James E. Wallace, Grove, OK, Attorney for Defendant at trial.\nKathy Lungren Baker, Assistant District Attorney, Delaware County, Jay, OK, Attorney for the State at trial and on appeal.\nJames E. Wallace, Grove, OK, Representing the Trial Court on appeal.\n\nOPINION\nLILE, J.:\n¶ 1 Frankie Howerton was charged with one count of Owning or Operating a Chop Shop, 63 O.S.Supp.1998, § 4253A, and five counts of Knowingly Concealing Stolen Property, 21 O.S.1991, § 1713, in the District Court of Delaware County, Case No. CF-98-301. Howerton filed a motion to suppress the evidence alleging, generally, that the search of the premises was in violation of the Fourth Amendment to the United States Constitution.\n¶ 2 The Honorable Robert G. Haney, District Judge, ruled that Title 63 O.S.Supp. 1998, § 4209.8 is unconstitutional because its administrative inspection provision violates the 4th Amendment rule against unreasonable searches and seizures. The evidence discovered during the inspection, as well as evidence recovered pursuant to a follow-up search warrant, was suppressed. Subsequently, the Trial Court granted a motion to quash the Information because the State, without the suppressed evidence, had insufficient evidence to proceed.\n¶ 3 The State, taking exception to the Trial Court's ruling, announced its intent to appeal the ruling of unconstitutionality pursuant to 22 O.S.1991, §§ 1053 & 1053.1.\n¶ 4 The State presented the following issue to this Court for determination:\nWhether 63 O.S.Supp.1998, § 4209.8, violates the provision against unreasonable searches and seizures found in the 4th *156 Amendment to the United States Constitution.[1]\n¶ 5 We find that Title 63 O.S.Supp.1998, § 4209.8, which was initially enacted in 1997, does not violate constitutional prohibitions against unreasonable searches and seizures.\n¶ 6 Lake Patrolman Randy Bland, along with two Grand River Dam Authority lake patrolmen, went to Frankie's Marine to conduct an administrative inspection. The visit was prompted by discrepancies on some title applications that Frankie Howerton submitted to the Oklahoma Tax Commission. Howerton was not at the business when Bland arrived, so he waited for the owner to return.\n¶ 7 When Howerton arrived, Bland told him why they were there. Howerton stated, \"Well, I was wondering when you guys were going to show up.\" Howerton said that he was buying motors from out of state and that the paperwork he was getting with the motors was off one or two numbers, so he was changing the paperwork to match the serial numbers on the motors and then sending the paperwork in with the title applications.\n¶ 8 Bland asked if he could look around and Howerton said \"sure.\" Howerton took Bland to a room containing about 75 outboard motors. Howerton showed Bland a few of the motors that he had trouble getting registered. One of these motors had the serial number removed.\n¶ 9 They then went to another building where there were about 200 outboard motors and two or three boats. Two other officers arrived sometime during the inspection. One of the motors had the cables and wires from a boat still attached, and it appeared that the motor had never been in the water. There was also a bass boat in the building that Howerton said he was storing for someone; however, Howerton could not provide the name of the person. A check of the serial number of that boat indicated that it was stolen. At this point the administrative inspection was ceased and a search warrant was obtained.\n¶ 10 Title 63 O.S.Supp.1998, § 4209.8, relates to boats and related equipment and provides that,\nAny peace officer of the State of Oklahoma may inspect any vessel, motor, trailer, or related equipment in any public garage or repair shop or in any place where such vessel, motor, trailer or related equipment is being held for sale or wrecking, for the purpose of locating stolen vessels, motors, trailers, or related equipment and investigating the title and registration of those items.\n¶ 11 The Trial Court relied on the provisions of New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987), as it relates to administrative searches and ruled that the statute did not limit the discretion of officials as to when they could search; therefore, the statute was unconstitutional.\n¶ 12 The Burger case set forth specific criteria to be evaluated in determining the constitutionality of an administrative inspection (search). The Burger case also establishes that, \"An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home.\" Burger, 482 U.S. at 700, 107 S.Ct. at 2642. See also Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S. Ct. 2534, 2538, 69 L. Ed. 2d 262 (1981) (The greater latitude to conduct warrantless inspections of commercial property reflects the significantly different expectation of privacy in commercial property compared to the sanctity accorded an individual's home). Moreover, \"[t]his expectation is particularly attenuated *157 in commercial property employed in `closely regulated' industries.\" Burger, 482 U.S. at 700, 107 S.Ct. at 2642.\n¶ 13 The Burger case establishes that, to be reasonable, warrantless inspections of pervasively regulated businesses must meet a three-part test:\nFirst, there must be a \"substantial\" government interest that informs the regulatory scheme pursuant to which the inspection is made. . . .\nSecond, the warrantless inspections must be \"necessary to further the regulatory scheme.\" . . .\nFinally, \"the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.\" In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be \"sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.\" In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be \"carefully limited in time, place and scope.\"\nBurger, 482 U.S. at 702-03, 107 S.Ct. at 2644 (citations omitted).[2]\n¶ 14 Our search of the statutes reveals that public garages, repair shops and places where vessels, motors, trailers, or related equipment are held for sale or wrecking are closely regulated businesses.[3] The regulations cover dealers of both new and used vessels and motors. This close regulation promotes a substantial government interest in protecting consumers from fraudulent vessel and motor dealers. The statute in question specifically addresses the significant problem of vessel and motor theft in Oklahoma and the use of seemingly legitimate businesses to hide the transportation, trade and trafficking in stolen vessels and motors.\n¶ 15 It is quite rational for the State to believe that regulations aimed at preventing vessel and boat dealers from becoming marketing venues for stolen vessels and motors will logically help reduce theft. It is also rational to find that in order for such regulations to be effective, warrantless inspections are necessary. See Horner, 836 P.2d at 682. Thus the requirements of \"substantial\" governmental interest and \"necessity\" of administrative inspections \"to further the regulatory scheme\" are satisfied.\n¶ 16 Finally we must determine whether this statute in particular provides, in terms of certainty and regularity of its application, a constitutionally adequate substitute for a warrant as is required by Burger.\nStatutes are presumed constitutional; and, if possible, this Court has a duty to construe statutes in a manner which does not run afoul of the constitution. State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). It also has a duty to liberally construe statutes \"with a view to effect their objects and to promote justice.\" 25 O.S.1991, § 29. With those dictates in mind, we shall re-examine the statute to determine if a constitutionally sound interpretation can be found.\nGonseth v. State, 1994 OK CR 9, ¶ 8, 871 P.2d 51, 54.\nA strong presumption exists in favor of legislative enactments and the constitutionality of a statute will be upheld unless it is \"clearly, palpably, and plainly inconsistent with fundamental law. [citation omitted]\" *158 Rivas v. Parkland Manor, 2000 OK 68, ¶ 8, 12 P.3d 452, 456.\n¶ 17 This statute informs the owner of an establishment where vessels, motors, or trailers are being held for sale or wrecking that the inspection is limited in scope and place to vessels, motors, trailers or related equipment held at the place of business. This statute also limits inspection to times where any such vessel, motor trailer or related equipment is being held for sale or wrecking. We interpret this to mean during reasonable business hours on business days. The inspection made in this case occurred during regular business hours and was constitutionally conducted in this case.\n¶ 18 We have held:\nThe traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. [citation omitted]\nWilkins v. State, 1999 OK CR 27, ¶ 6, 985 P.2d 184, 185. We said in State v. Johnson, 1992 OK CR 72, ¶ 3, 877 P.2d 1136, 1139:\nIt is a fundamental principle of constitutional adjudication that \"a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.\" Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 2915, 37 L. Ed. 2d 830, 839 (1973). A statute is presumed to be constitutional and the person alleging its unconstitutionality has the burden of proving same beyond a reasonable doubt. Nunley v. State, 660 P.2d 1052, 1056 (Okl.Cr.1983); S.A.H. v. State, 753 P.2d 381, 383 (Okl.Cr. 1988). Appellees have failed to carry that burden. [footnote omitted]\n¶ 19 Since Howerton's business was searched at a reasonable time, during business hours, he does not have standing to argue that the statute should be held facially void because other persons could conceivably be searched at an unreasonable time, outside of business hours.\n¶ 20 We find that this statute, as construed by us to be limited to business hours, complies with the 4th Amendment's prohibition of unreasonable searches and seizures. Therefore, we reverse the trial court and remand this case for further proceedings.\nDECLARATION OF UNCONSTITUTIONALITY OF STATUTE REVERSED.\nLUMPKIN, P.J., JOHNSON, V.P.J., CHAPEL, J., and STRUBHAR, J., concur.\nNOTES\n[1] On July 16, 2001, this Court ordered that, despite the fact that the Petition in Error was not timely filed, the portion of the State's appeal brought pursuant to 22 O.S.1991, § 1053.1 (providing for automatic appeals in matters where a district court has determined an act of the State Legislature to be unconstitutional) would be heard by this Court.\n\nThe language of Section 1053.1 specifically makes the appeal automatic. We find that automatic indicates that no action is necessary for the judgment to be on appeal to this Court. Thus, while we urge compliance with our Court Rules, the language of Section 1053.1 prevents us from not hearing an appeal when a District Court has declared a statute unconstitutional.\nState v. Pratt, 1991 OK CR 95, ¶ 4, 816 P.2d 1149, 1151.\nWe shall not answer the State's second issue involving the validity of consent to search, as the State's Petition in Error was not timely filed.\n[2] In Horner v. State, 1992 OK CR 46, ¶ 13, 836 P.2d 679, 682, this Court applied the Burger criteria and held that 47 O.S.Supp.1988, § 591.6, was constitutional as it provided for an administrative search of a closely regulated business, an automobile salvage yard.\n[3] Vessel and motor dealers must be licensed and they must comply with certain reporting provisions regarding the transfer of vessels or motors. 63 O.S.Supp.1993, § 4033. A vessel and motor dealer may have his license revoked if certain regulations are not followed. 63 O.S.Supp.1993, § 4041.\n\n", "ocr": false, "opinion_id": 2636981 } ]

[ "933 F. Supp. 781" ]

[ { "author_str": "Longstaff", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1962, "opinion_text": "\n933 F. Supp. 781 (1996)\nDavid E. BRUCE, Trustee of the Keith E. Bruce Revocable Trust; David E. Bruce, Trustee of the Mary Kay Bruce Revocable Trust; David E. Bruce, Husband and Wife, Plaintiffs,\nv.\nICI AMERICAS, INC., n/k/a Zeneca Inc., A Delaware Corporation, Defendant.\nCivil No. 1-94-CV-10042.\nUnited States District Court, S.D. Iowa, Western Division.\nMay 15, 1996.\n*782 *783 *784 John Billings Boeye, Stamets Law Office, Red Oak, Iowa, for Plaintiffs.\nK.J. Walker, Des Moines, Iowa, John P. Mandler, Faegre & Benson Professional, Limited Liability Partnership, Minneapolis, MN, for Zeneca, Inc.\n\nORDER\nLONGSTAFF, District Judge.\nThe Court has before it Defendant ICI Americas Inc., n/k/a Zeneca Inc.'s (\"Zeneca\") Motion for Summary Judgment filed December 18, 1995, regarding the allegations contained in Plaintiffs' Petition.[1] Plaintiffs resisted this motion on April 2, 1996 and Defendant filed a reply brief on April 11, 1996.\n\nI. BACKGROUND\nUnless otherwise indicated, the following facts are either not in dispute or are viewed in the light most favorable to the plaintiffs. Plaintiffs are in the business of farming. Their farming operation is a large agricultural business[2] formerly operated by Keith Bruce and his son David Bruce and currently operated by David and Peggy Bruce. During the years 1990, 1991, and 1992, Plaintiffs' farming operation generated gross income of $2.1 million, $1.4 million, and $1.3 million respectively.\nIn connection with their farming operation, between 1982 and 1992, Plaintiffs purchased and used 32 different agricultural chemical products from 14 different manufacturers, including at least 29 separate purchases of five different Zeneca products. In addition, Plaintiffs have purchased Zeneca products in every year since 1983. These purchases have included Dyfonate, the product at issue in this case, in 1985, 1986, 1987, and 1990. The labels for each of these products included a disclaimer of warranty and limitation of liability. Moreover, all of the Zeneca and Stauffer[3] products purchased and used by Plaintiffs during this time period contained a label with a similar disclaimer of warranty and limitation of liability as the one on the Dyfonate label at issue.\nPlaintiff David Bruce has had a commercial pesticide application license since 1976 and has personally applied agricultural chemicals in every year since 1976. In order to maintain his license, David Bruce must take a class and pass a certification test every three years.\nDavid Bruce stated that he believed it is important to read agricultural chemical labels prior to applying the product. He also understood that it is a violation of federal law to apply a product in a manner inconsistent with the product's label. It is his practice to read every agricultural product label before applying the product.[4] David Bruce was also aware that agricultural chemical dealers had copies of labels of the products they sold and that he could review such labels prior to purchasing agricultural chemicals.\n*785 In 1992, Plaintiffs purchased Dyfonate II 20-G (\"Dyfonate\"), a Zeneca product, from two companies: J & N Fertilizer Company, Inc., Malvern Iowa and Benes Service Co., Valparaiso, Nebraska. Zeneca offers various rebates, promotional gifts, contests and calibration of equipment through dealers such as J & N and Benes.\nThe Dyfonate product which Plaintiffs purchased in 1992 contained a label on the bottom portion of the fifty pound bag that sets forth the following disclaimer of warranties and limitation of liabilities:\nIMPORTANT: Read the entire Directions for Use and Warranty before using this product.\nCONDITIONS OF SALE AND LIMITED WARRANTY:\nThe Directions for Use of this product are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks associated with the use of this product. Crop injury, ineffectiveness or other unintended consequences may result because of such factors as timing and method of application, weather and crop conditions, mixture with other chemicals not specifically recommended or other influencing factors in the use of this product, all of which are beyond the control of the seller. All such risks shall be assumed by Buyer and User, and Buyer and User agree to hold Seller harmless for any claims relating to such factors.\nSeller warrants that this product conforms to the chemical description on the label and is reasonably fit for the purpose stated on the label, subject to the inherent risks referred to above, when used in accordance with directions under normal conditions of use. This warranty does not extend to the use of this product contrary to label instructions, or under abnormal conditions, or under conditions not reasonably foreseeable to or beyond the control of Seller and Buyer and User assume the risk of any such use. SELLER DISCLAIMS ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY WARRANTY OF FITNESS OR MERCHANTABILITY.\nWhen Buyer and User claims losses or damages resulting from the use or handling of this product (including claims based on contract, negligence, strict liability or other legal theories), Buyer or User must promptly notify in writing Seller of any claims to be eligible to receive either of the remedies set forth below. The EXCLUSIVE REMEDY OF BUYER OR USER and the LIMIT OF LIABILITY of seller will be, at the election of the Seller, refund of the purchase price for product bought, or replacement of amount of product used. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES RESULTING FROM THE USE OR HANDLING OF THIS PRODUCT AND SELLER'S SOLE LIABILITY AND BUYER'S AND USER'S EXCLUSIVE REMEDY SHALL BE LIMITED TO THE REFUND OF THE PURCHASE PRICE.\nWhile Plaintiffs admit that they read the printed material that accompanied the pesticide which provided instructions for use and generally reviewed the bag for storage and disposal information, they deny that they actually read the disclaimer of warranties contained on the bag. (Bruce depo. 31:2-8; D. Ex. J).\nPlaintiffs applied the Dyfonate to 1,253.5 acres of their 1992 corn crop in order to control rootworm. However, the Dyfonate failed to properly control corn rootworms in Plaintiffs' 1992 corn crop resulting in substantial damage to Plaintiffs' crops and lower yields.\n\nII. SUMMARY JUDGMENT STANDARD\nSummary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Walsh v. United States, 31 F.3d 696, 698 (8th Cir.1994). The moving party must establish its right to judgment with such clarity that there is no room for controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982). \"[T]he mere existence of *786 some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). An issue is \"genuine,\" if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. \"As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted.\" Id.\n\nIII. ANALYSIS\nIn support of its Motion for Summary Judgment, Zeneca argues that summary judgment is appropriate for several reasons. First, Zeneca asserts that all of the Plaintiffs' claims are based on allegedly inadequate pesticide labeling and as such are expressly preempted by the Federal Insecticide Fungicide and Rodenticide Act (\"FIFRA\"), 7 U.S.C. § 136 et seq. Second, Zeneca argues that Plaintiffs fail to state a claim under Iowa law because Plaintiffs may not recover economic losses pursuant to tort theories. In addition, Zeneca argues that Plaintiffs may not recover consequential economic loss against a non-privity seller pursuant to breach of warranty theories. Finally, Zeneca asserts that pursuant to Iowa Code §§ 554.2316 and 554.2719, it disclaimed all implied warranties and limited recovery upon a showing of breach of express warranty to the price of the product.\n\nA. Preemption by FIFRA\n\"FIFRA creates a comprehensive scheme for the regulation of pesticide labeling and packaging.\" Welchert v. American Cyanamid, Inc., 59 F.3d 69, 71 (8th Cir.1995); see Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601, 111 S. Ct. 2476, 2479-80, 115 L. Ed. 2d 532 (1991). Section 24 of FIFRA provides in part:\n(a) In general\nA State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.\n(b) Uniformity\nSuch State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.\n7 U.S.C. § 136v(a), (b).\nState actions based on the adequacy of warnings or instructions on the labels of EPA-registered pesticides are preempted. E.g., Welchert, 59 F.3d at 73; see Cipollone v. Liggett Group, 505 U.S. 504, 525, 112 S. Ct. 2608, 2622, 120 L. Ed. 2d 407 (1992). \"Labeling\" is defined as \"all labels and all other written, printed, or graphic matter (A) accompanying the pesticide or device at any time; or (B) to which reference is made on the label or in the literature accompanying the pesticide or device.\" 7 U.S.C. § 136(p)(2).\nZeneca asserts that all of the Plaintiffs' claims are label-based, and, as such, are preempted by FIFRA. Plaintiffs, on the other hand, contend that their claims are not based upon information or instructions contained in the label. Rather, Plaintiffs assert that their claims are based upon the fact that the Dyfonate was ineffective regardless of what wordage was contained in or on the label.\n\n1. Breach of Implied Warranty of Fitness for a Particular Purpose\nDivision I of Plaintiffs' Petition states a claim for Breach of Implied Warranty of Fitness for a Particular Purpose. Paragraph 7 of Division one states:\nThat on the label of each bag of [Dyfonate] Defendant impliedly warranted to the ultimate consumer that the insecticide was for the control of corn rootworm, conformed to the chemical description on the label and was `reasonably fit for the particular purpose of the control of corn rootworm for use as directed thereon.'\nIf the Plaintiffs' claim for Breach of Implied Warranty of Fitness for a Particular Purpose was based on this paragraph alone, it would be preempted by FIFRA. See Welchert, 59 F.3d at 72-73. However, in other portions of *787 Plaintiffs' Petition, they indicate that the claim is also dependent upon representatives of Zeneca's statements and representations, advertising, sales literature, and Zeneca's trade name. (Petition ¶¶ 8, 9). As a result, while Plaintiffs may not rely on label-based allegations, as is contained in paragraph 7, the other allegations supporting their claim are not preempted by FIFRA.\n\n2. Breach of Warranty of Merchantability\nDivision II of Plaintiffs' Petition states a claim for Breach of Warranty of Merchantability. Similar to Plaintiffs' claim in Division I of their Petition, Plaintiffs' claim of breach of warranty of merchantability is premised upon label-based allegations (Petition, Division II ¶ 2) and allegations regarding representations made through advertising, sales literature, and Zeneca's trade name. (Petition, Division II ¶¶ 3, 4). As a result, while Plaintiffs' label-based allegations, contained in paragraph 2, are preempted by FIFRA, the other allegations supporting their claim are not preempted by FIFRA.\n\n3. Breach of Express Warranty\nUnlike an implied warranty, an express warranty based on the labeling of a product, which is \"voluntarily undertaken should not be regarded as a `requirement ... imposed under State law.'\" Cipollone v. Liggett Group, 505 U.S. 504, 526, 112 S. Ct. 2608, 2622, 120 L. Ed. 2d 407 (1992)[5] (emphasis added). Rather, the contractual nature of such a warranty dictates that such claims are not preempted by FIFRA. Id.\nUnder FIFRA, before a pesticide can be registered with the EPA, the Administrator must determine whether:\n(A) its composition is such as to warrant the proposed claims for it;\n(B) its labeling and other material required to be submitted comply with the requirements of the Act; ....\n7 U.S.C. § 136a(c)(5)(A)-(B).[6] Furthermore, the EPA requires that a pesticide manufacture include on the pesticide labeling directions for use, the use classification, the sites of application, the target pests, and the dosage rate for each site and pest. 40 C.F.R. § 156.10(i)(2)(x)(B), (h)(2), (i)(1), (i)(2)(i). In registering Dyfonate and approving its product labeling, the EPA also concluded that Dyfonate, its testing and the labeling accompanying it were reasonable and appropriate when the product was used in accordance with \"widespread and commonly recognized practice.\" Id.\nPlaintiffs' assert in their claim for Breach of Express Warranty that \"on the label of each bag of [Dyfonate] [Zeneca] expressly warranted to the ultimate consumer that the insecticide was for the control of corn root-worm, conformed to the chemical description of the label and was `reasonably fit for use as directed thereon.'\" (Petition, Division III ¶ 2).\nFIFRA and its regulations require Zeneca to provide the labeling information which forms the basis for the portion of Plaintiffs' claim for breach of express warranty which is based on Zeneca's label. Thus, Zeneca's label statement regarding Dyfonate's use and its chemical description is a mandated disclosure under FIFRA, not a \"voluntarily undertaken\" promise. Welchert, 59 F.3d at 72 (citing Higgins v. Monsanto Co., 862 F. Supp. 751, 761 (N.D.N.Y.1994)); Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir.1993). As a result, to the extent Plaintiffs' claim for Breach of Express Warranty *788 is based on the labels of the Dyfonate, the claim is preempted.\nHowever, to the extent that the claim is based on allegations regarding warranties made through advertisements, sales literature, and Zeneca's trade name (Petition, Division III, ¶¶ 3, 4) the claim is not preempted by FIFRA.\n\n4. Strict Liability\nPlaintiffs' claim of strict liability is not label-based and is therefore not preempted by FIFRA.\n\nB. Recovery for Economic Loss Pursuant to Iowa Tort Law\nIn Division IV of their Petition, Plaintiffs allege a cause of action sounding in tort — strict liability. Under Iowa law, \"purely economic injuries without accompanying physical injury to the user or consumer or to the user or consumer's property are not recoverable under strict liability.\" Nelson v. Todd's Ltd., 426 N.W.2d 120, 123 (Iowa 1988).\nAs part of their strict liability claim, Plaintiffs allege that the Dyfonate that they purchased did not effectively control corn rootworms. Plaintiffs further allege that the proximate result of this ineffectiveness was that they have sustained the following damages: (1) the purchase price of the Dyfonate used and (2) loss of income resulting from yield loss due to the ineffectiveness of the Dyfonate. (Petition, Division IV ¶ 6).\nWhile contract law protects a purchaser's expectation interest that the product received will be fit for its intended use, the essence of products liability law is that the plaintiff has been exposed, through a dangerous product, to a risk of injury to his person or property. Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 107 (Iowa 1995). \"Defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.\" Id.\nIn Nelson v. Todd's Ltd., 426 N.W.2d 120 (Iowa 1988), the plaintiff brought a products liability claim against a meat curing product manufacturer because the meat curing product failed to work, resulting in spoiling of quantities of meat. Id. at 120. The Supreme Court of Iowa found that the \"harm occurred not because [the allegedly defective product] damaged the meat in some active way, but because it failed to work at all.\" Id. at 123. As a result, the loss related to the user's \"disappointed expectations due to deterioration, internal breakdown or non-accidental cause, the remedy lies in contract.\" Id. at 125.\nSimilar to Nelson, in the present case, \"the damage was the foreseeable result from an alleged failure of the product to work properly because of a defect or omission from the product.\" Id. The Court finds that Plaintiffs' claim that the defective Dyfonate caused significant yield reductions constitutes a loss that is cognizable by the law of contracts or commercial transactions rather than tort law. See Id. at 124-25; Tomka, 528 N.W.2d at 106-07 (damage caused by a product designed to promote growth in cattle which failed to so, gave rise to an contract-warranty cause of action rather than a tort action); Earl Brace & Sons v. Ciba-Geigy Corp., 708 F. Supp. 708, 711 (W.D.Pa.1989) (holding that a reduction in plaintiff's potato yield allegedly caused by herbicide ineffectiveness was the result of the failure of the herbicide to meet the economic expectations of the plaintiff and therefore not recoverable in tort); Monsanto Agricultural Products Co. v. Edenfield, 426 So. 2d 574, 576 (Fla.App. 1982) (holding that the purchaser of an allegedly ineffective herbicide could not recover in tort). As a result, Plaintiffs are precluded from recovering their economic injuries through a strict liability claim.\n\nC. Consequential Economic Loss Against a Non-Privity Seller\nUnder Iowa law, non-privity buyers cannot recover consequential economic loss damages under a theory of express or implied warranty. Tomka, 528 N.W.2d at 107-08 (citing Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309-10 (Iowa 1995)).\nWhether a party is \"in privity\" with another party depends on whether they are parties to a contract. If the parties have contracted with each other, they are in *789 privity.... If they have not, they are not in privity.... [A]n example of a non-privity plaintiff [is] one who purchases a product but does not buy it directly from the defendant.\nId. at 107. In the present case, part of the damages that Zeneca seeks to recover are consequential economic loss damages.[7] As a result, the Court must determine whether the Plaintiffs and Zeneca were in privity in order to determine whether Plaintiffs can recover the consequential economic loss damages under their warranty claims.\nIn 1992, Plaintiffs purchased the Dyfonate in question from two companies: J & N Fertilizer Company, Inc., Malvern Iowa (\"J & N\") and Benes Service Co., Valparaiso, Nebraska (\"Benes\"). Zeneca argues that it is not \"in privity\" with Plaintiffs because Plaintiffs purchased the Dyfonate from separate business entities rather than directly from Zeneca. Plaintiffs, on the other hand, argue that a principal-agency relationship existed between Zeneca and the dealers which sold its products. As a result of this principal-agent relationship, Plaintiffs assert that they were \"in privity\" with Zeneca when they purchased its products.\nAn agency relationship can be established by expressed, implied, or apparent authority. Smith v. Air Feeds, Inc., 519 N.W.2d 827, 831 (Iowa App.1994); see Clemens Graf Droste Zu Vischering v. Kading, 368 N.W.2d 702, 711 (Iowa 1985). The agency relationship may be proven by the words and conduct of the parties, together with all the circumstances of the particular case. Menzel v. Morse, 362 N.W.2d 465, 475 (Iowa 1985). The existence of an agency relationship is ordinarily a fact question, but there must be substantial evidence to generate a jury question. Chariton Feed and Grain, Inc. v. Harder, 369 N.W.2d 777, 779 (Iowa 1985); Anderson v. Boeke, 491 N.W.2d 182, 187 (Iowa App.1992). However, direct evidence is not required. Menzel, 362 N.W.2d at 475. The burden of proving the principal agent relationship is upon the party asserting such a relationship. Brockway v. Employment Appeal Bd., 469 N.W.2d 256, 257 (Iowa App.1991).\nThe principal's right to control the agent is the primary consideration in determining the existence of an agency relationship. Mermigis v. Servicemaster Industries, Inc., 437 N.W.2d 242, 246 (Iowa 1989). Although they are distributors for Zeneca's products, J & N and Benes are incorporated separately from Zeneca. Plaintiffs point to Zeneca's offer of various rebates, promotional gifts, contests and calibration of equipment through dealers such as J & N and Benes as evidence of a principal-agent relationship.[8]\nWhile J & N and Benes may have been authorized distributors of Zeneca's products, the activities mentioned by Plaintiffs are insufficient to demonstrate that Zeneca controlled the operations of J & N and Benes related to Dyfonate. See Connick v. Suzuki Motor Co., Ltd., 275 Ill.App.3d 705, 717-18, 212 Ill. Dec. 17, 27, 656 N.E.2d 170, 180 (1995) (fact that sale is made by authorized *790 dealer of manufacturer does not give rise to apparent authority or agency relationship on part of the dealer sufficient to establish privity between the manufacturer and the purchaser thus allowing recovery by the purchaser against the manufacturer based on a breach of express warranty claim). As a result, the Court concludes that the record fails to create a question of material fact regarding the existence of an principal-agency relationship between Zeneca and Plaintiffs. See State v. Hawkeye Oil Company, 253 Iowa 148, 110 N.W.2d 641, 644 (1961) (relationship of principal and agent did not exist between a fuel dealer and a distributor through whom the dealer made purchases because the dealer maintained and operated his station independently of distributor); Malone v. Nissan Motor Corp., 190 Wis. 2d 436, 526 N.W.2d 841, 842 (1994) (evidence did not establish that the dealer acted as the manufacturer's agent because the testimony indicated that the manufacturer did not supervise or control the dealer's daily activities); Malmberg v. American Honda Motor Co. Inc., 644 So. 2d 888, 890 (Ala.1994) (existence of agency relationship between manufacturer and dealer was not established where the dealer was required to maintain a place of business with sales, service, and parts departments, to develop public interest in manufacturer's products, and to expressly provide to customers that the manufacturer's warranty went with vehicle because the manufacturer did not provide day-to-day supervision, did not determine how the dealer was to comply with the agreement, and left the dealer in charge of determining how to conduct its business); Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn.1990) (agency relationship did not exist between a manufacturer of tractors and the tractor's distributor and seller where manufacturer had no right to control the manner of performance of the distributor and did not otherwise hold out the distributor or the seller as its agents, although the distributor used the manufacturer's name for promotional purposes and used the manufacturer's forms to record modifications and repairs); Hunter Min. Laboratories, Inc. v. Management Assistance, Inc., 104 Nev. 568, 763 P.2d 350, 351 (1988) (computer dealers were not the agents of the computer manufacturer as was required to hold the manufacturer liable for the dealer's breach of contracts with the computer buyer because the manufacturer did not control the day to day operative details of the dealer's businesses).\nTherefore, as non-privity buyers, Plaintiffs cannot recover consequential economic loss damages under their warranty claims.\n\nD. Disclaimer\nZeneca claims that it effectively disclaimed all implied warranties and limited recovery on any alleged breach of express warranty to direct damages — the cost of the Dyfonate. Plaintiffs counter that Zeneca's disclaimer of warranties was not conspicuous and that, as a result, under Iowa law, the disclaimer was ineffective.\nImplied or express warranties may be modified or excluded pursuant to Iowa Code § 554.2316.[9] Furthermore, \"the parties to a contract can agree to exclude consequential damages from one party's possible recovery upon a breach of that contract\" pursuant to Iowa Code § 554.2719.[10]Boone Valley Coop. Proc. Ass'n v. French Mill Mach. Co., 383 F. Supp. 606, 612 (N.D.Iowa 1974).\n\n1. Exclusion or Modification of Warranties\nIowa Code § 554.2316(2) permits a seller to exclude an implied warranty of merchantability if the disclaimer: (1) mentions *791 merchantability and (2) is conspicuous. Iowa Code § 554.2316(2). A seller may exclude an implied warranty of fitness if the disclaimer: (1) is in writing and (2) is conspicuous. Iowa Code § 554.2316(2). Zeneca's disclaimer in the present case is in writing and it mentions merchantability. Therefore, the Court must determine whether the disclaimer is conspicuous in order to determine whether Plaintiffs' claims of implied warranty of merchantability and implied warranty of fitness are excluded by Zeneca's disclaimer.[11]\nThe Iowa Code provides guidance in determining whether a term is conspicuous.\nA term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: \"Non-negotiable Bill of Lading\") is conspicuous. Language in the body of a form is \"conspicuous\" if it is in larger or other contrasting type or color....\nIowa Code § 554.1201(10). Zeneca's disclaimer is contained on a label on the bottom portion of the fifty pound bag of Dyfonate. The label is entitled in bold, capital letters \"CONDITIONS OF SALE AND LIMITED WARRANTY.\" It then states, \"IMPORTANT: Read the Directions for Use and Conditions of Sale and Warranty before using this product.\" The portion of the disclaimer which attempts to exclude claims for implied warranties of merchantability and fitness are in bold, capital letters.\nBecause the printed heading and language of the exclusion is in bold, capital letters, the Court finds that a reasonable person should have noticed it. See Adams v. American Cyanamid Co., 1 Neb.App. 337, 498 N.W.2d 577, 585 (1992) (label on herbicide disclaiming warranties was conspicuous even though disclaimer label appeared in owner's manual where disclaimer heading was displayed prominently and disclaimer was sufficiently set off from other materials); Duyck v. Northwest Chemical Corp., 94 Or.App. 111, 764 P.2d 943, 945 (1988) (notice of warranty that appeared in capital letters on face of a one page contract for sale, with critical portions in boldface, was conspicuous). Therefore, the Court determines that the disclaimer is conspicuous.\nPlaintiff David Bruce admits that he read the printed material that accompanied the pesticide which provided instructions for use and generally reviewed the bag for storage and disposal information but he denies that he actually read the disclaimer of warranties contained on the bag. However, even if Plaintiffs did not actually read the disclaimer, they are still bound by its terms. \"If a disclaimer is conspicuous, it is effective so long as the buyer receives the disclaimer and has a reasonable opportunity to read it.\" Adams v. American Cyanamid Co., 1 Neb. Ct. App. 337, 498 N.W.2d 577, 587 (1992); see Earl Brace & Sons v. Ciba-Geigy Corp., 708 F. Supp. 708, 710 (W.D.Pa.1989) (farmer who was presented disclaimer on box of herbicide but did not read it was bound by it); Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky.1970) (buyer of truck was bound by disclaimer where he was presented disclaimer on the contract but he did not read it before signing it).[12] In addition, Plaintiff David Bruce's previous extensive use of agricultural chemical products, including several other Zeneca products, which contained similar disclaimers to the one in question, demonstrates that he knew or should have known of the disclaimer.[13]See Iowa Code § 554.2316(3)(c) (\"[A]n implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.\"); Earl Brace, 708 F.Supp. at 710 (fact that plaintiff had used the product and read instructions previously demonstrates that he *792 knew or should have known of the disclaimer through course of performance).\nAs a result, Plaintiffs are precluded from bringing their claims of Breach of Implied Warranty of Fitness for a Particular Purpose (Division I) and Breach of Warranty of Merchantability (Division II).\n\n2. Limitation of Consequential Damages[14]\nZeneca expressly warranted Dyfonate and limited its liability for breach of that warranty to refund of the purchase price. Plaintiffs assert that the limitation on damages is unconscionable and therefore unenforceable. Iowa Code § 554.2719 allows a party to limit or exclude consequential damages unless such limitation or exclusion is unconscionable. Iowa Code § 554.2719(3). The determination of whether a limitation of liability is unconscionable is a question of law for the Court. Iowa Code § 554.2302.\n\"In considering a claim of unconscionability the court should examine the factors of assent, unfair surprise, notice, disparity of bargaining power, and substantive unfairness.\" Gentile v. Allied Energy Products, Inc., 479 N.W.2d 607, 609 (Iowa App.1991) (citing C & J Fertilizer v. Allied Mut. Ins. Co., 227 N.W.2d 169, 181 (Iowa 1975)). A bargain is unconscionable if it is \"such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.\" Lakeside Boating and Bathing, Inc. v. State, 402 N.W.2d 419, 422 (Iowa 1987) (citations omitted).\nPlaintiffs are experienced and sophisticated farmers who farm approximately 2,500 acres a year. Their farming operation generated between 1 million and 2 million dollars annually between 1990 and 1992. Plaintiffs have purchased 32 different agricultural chemical products which have all contained disclaimers of warranty and limitation of liability clauses between 1982 and 1993. In addition, as discussed previously, through their course of dealing with these agricultural products, including several Zeneca products, Plaintiffs knew of or should have known of such disclaimers and limitation of liability clauses on the products.\nThe Plaintiffs are not without recourse due to the limited liability provision on the Dyfonate label. Even though the Plaintiffs are precluded from seeking consequential economic loss damages, they are still able to seek a refund of the purchase price of the Dyfonate. The decision by Zeneca to limit damages, in the absence of other evidence, may be due to \"the uncertainties inherent in the agricultural business ... such as planting, cultivating, harvesting, and marketing decisions, [that] are uniquely within the control of the farmer....\" Lindemann v. Eli Lilly and Company, 816 F.2d 199, 204 (5th Cir.1987).\nBased on the foregoing, the Court concludes that Zeneca's limitation of liability clause contained on its label is not unconscionable. See Id. at 203-05 (herbicide manufacturer's exclusion of consequential damages was not unconscionable where farmers were commercially experienced, had course of dealing with the manufacturer for over 20 years, and the decision of the herbicide manufacturer to limit damages was a reasonable allocation of unknown or undetermined risks). As a result, based on the express terms of the limitation of liability clause, Plaintiffs cannot recover consequential damages pursuant to their Breach of Express Warranty claim. Rather, their recovery is limited to the price of the product.\n\nIV. CONCLUSION\nBased on the foregoing, Defendant's Motion for Summary Judgment is granted on Plaintiffs' claims for Breach of Implied Warranty of Fitness for a Particular Purpose (Division I), Breach of Warranty of Merchantability (Division II), and Strict Liability (Division IV). Plaintiffs are also precluded from seeking consequential damages based on the Breach of Express Warranty claim (Division III). Insofar as Zeneca's motion seeks further relief, it is denied.\nNOTES\n[1] The Amended and Substituted Petition states the following causes of action: Breach of Implied Warranty of Fitness for a Particular Purpose (Division I), Breach of Warranty of Merchantability (Division II), Breach of Express Warranty (Division III), Strict Liability (Division IV).\n[2] Plaintiffs farm approximately 2,500 acres a year. (Bruce depo. 6:15-20). In addition, during the period 1990-92, Plaintiffs raised 4,500 cattle every year. Plaintiffs also employ 2 fulltime employees, use a commercial accountant, and own an extensive amount of farming equipment.\n[3] In 1987, Zeneca, at that time known as ICI Americas, Inc., purchased Stauffer Chemical Co.\n[4] David Bruce read the Dyfonate label before applying it in 1985, 1986, 1987, 1990, and 1992.\n[5] In Cipollone the Supreme Court analyzed the preemption provision in the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-1340, which is substantially similar to the preemption provision in FIFRA. Welchert, 59 F.3d at 71. The preemption provision in the 1969 Cigarette Act provides:\n\nNo requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.\n15 U.S.C. § 1334(b).\n[6] The corresponding federal regulation provides in part that the EPA will approve an application under the criteria of FIFRA § 3(c)(5) only if:\n\nThe Agency has determined that the product is not misbranded as that term is defined in FIFRA sec. 2(q) and part 156 of this chapter, and its labeling and packaging comply with the applicable requirements of the Act, this part, and parts 156 and 157 of this chapter.\n40 C.F.R. § 152.112(f).\n[7] In their Petition Plaintiffs state:\n\nThe failure of [Dyfonate] to effectively control corn rootworm decrease[s] the yield of Plaintiffs' 1,253.50 acre corn crop by approximately 55.69 bushels per acre; whereby Plaintiffs have suffered a loss of income from Plaintiffs' crop in the amount of $139,555.41.\n(Petition, Division I ¶ 15; Division II ¶ 9); Division III ¶ 9). These damages constitute consequential economic loss damages. Beyond the Garden Gate, Inc., 526 N.W.2d at 309 (consequential economic loss damages include \"loss of profits resulting from the failure of the goods to function as warranted....\").\n[8] Specifically, Plaintiffs assert that the several parts of the record create a question of material fact regarding the existence of an agency relationship. In 1988/1989, Zeneca offered customers a Black & Decker dustbuster if they would purchase 500 pounds of Dyfonate. Zeneca participated with its dealers in giving away a Ford pickup and other prizes in the same year. In 1991, advertisements informed customers that they could contact either the dealer or the corporation for additional information on its products. In 1988, Zeneca offered mail-in refunds equal to $2.50 per bag of Dyfonate purchased. In 1989, Zeneca instituted a \"Tools for Success\" promotion in conjunction with its dealers, which included free valuable merchandise to be given away to customers. In 1990, Zeneca offered its customers free calibration of customer's planters to ensure proper application of Dyfonate. Finally, Zeneca has incorporated dealers' names in its radio ads to promote the sale and use of its product.\n[9] Section 554.2316(2) of the Iowa Code provides:\n\nSubject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by writing and conspicuous.....\nIowa Code § 554.2316(2).\n[10] Iowa Code § 554.2719(3) provides:\n\nConsequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima-facie unconscionable but limitation of damages where the loss is commercial is not.\nIowa Code § 554.2719(3).\n[11] \"Whether a term or clause is `conspicuous' or not is for decision by the court.\" Iowa Code § 554.1201(10).\n[12] This interpretation is consistent with Iowa Code § 554.1201(10) which provides that a term is \"conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.\" Iowa Code § 554.1201(10) (emphasis added).\n[13] David Bruce's generally reads every agricultural product label before applying it. Plaintiffs have purchased Zeneca products every year since 1983. These purchases have included Dyfonate, the product at issue in this case, in 1985, 1986, 1987, and 1990. David Bruce read the Dyfonate label before applying it in 1985, 1986, 1987, 1990, and 1992.\n[14] Even though the Court has determined that as non-privity buyers, Plaintiffs cannot recover consequential economic loss damages under their warranty claims, the Court will also address the issue of the disclaimer's limitation of liability.\n\n", "ocr": false, "opinion_id": 1742237 } ]

[ "2012 Ohio 669" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/4/2012/2012-ohio-669.pdf", "author_id": 8111, "opinion_text": "[Cite as Bell v. Turner, 2012-Ohio-669.]\n\n\n IN THE COURT OF APPEALS OF OHIO\n FOURTH APPELLATE DISTRICT\n HIGHLAND COUNTY\n\n\nRodney Bell, et al., :\n :\n Plaintiffs-Appellants, :\n : Case Nos. 10CA18 &\n v. : 10CA19\n :\nWilliam A. Turner, et al., :\n :\n Defendants-Appellees, :\n :\n and :\n : DECISION AND\nHarriett Fout, dba Fout Realty, : JUDGMENT ENTRY\n :\n Third-Party Defendant-Appellant. : Filed: February 13, 2012\n_____________________________________________________________________\n\n APPEARANCES:\n\nJon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Plaintiff-Appellant, Rodney Bell.\n\nConrad A. Curren, Greenfield, Ohio, for Defendant-Appellant, Harriet Fout, dba Fout\nRealty.\n\nJohn S. Porter, Rose & Dobyns,Co. L.P.A. Blanchester, Ohio, for Defendant-Appellee,\nStella Turner.\n\n_____________________________________________________________________\n\nKline, J.:\n\n{¶1} Rodney Bell and Shirley Diane Bell (hereinafter the “Bells”) appeal the\n\njudgment of the Highland County Court of Common Pleas granting rescission of a\n\ncontract for the sale of real estate to William and Stella Turner (hereinafter the\n\fHighland App. Nos. 10CA18 & 10CA19 2\n\n\n“Turners”).1 Harriet Fout, dba Fout Realty, (hereinafter “Fout”) also appeals the\n\njudgment of the trial court, which ordered her to disgorge her commission for the real\n\nestate sale.2 We recently remanded this case for lack of a final appealable order.\n\nFollowing our remand, the trial court issued a new judgment entry. We find, however,\n\nthat the new judgment entry did not cure the lack of finality. As a result, the trial court’s\n\norder is not a final appealable order. And therefore, we lack jurisdiction to consider the\n\nmerits of parties’ arguments. Accordingly, we dismiss this appeal.\n\n I.\n\n{¶2} This litigation is the product of a failed real estate transaction. This case has\n\nbeen before us on multiple occasions, and we have recounted the facts of this case in\n\nprevious opinions. See Bell v. Turner, 4th Dist. No. 05CA10, 2006-Ohio-704, ¶ 2-14;\n\nBell v. Turner, 172 Ohio App.3d 238, 2007-Ohio-3054, 874 N.E.2d 820 ¶ 3-13 (4th Dist.)\n\n(hereinafter “Bell II”); Bell v. Turner, 191 Ohio App.3d 49, 2010-Ohio-4506, 944 N.E.2d\n\n1179, ¶ 2-5 (4th Dist.) (hereinafter “Bell III”).\n\n{¶3} Following our remand of this case in Bell II, the trial court held a trial on the\n\nremedy of rescission. After trial, the trial court issued its July 6, 2009 Entry. The July 6,\n\n2009 Entry ordered Fout to disgorge the $6,500 real estate commission she had\n\nreceived as a result of the Bells and Turners’ failed real estate transaction.\n\n\n\n\n1\n The record indicates that, of the Bells, only Rodney Bell appealed. The record also\nindicates that William Turner is deceased and that Stella Turner is the executor of\nWilliam Turner’s estate. Nonetheless, we refer to the parties as the “Bells” and the\n“Turners” for expediency.\n2\n We note that this case is a consolidated appeal. The Bells are the plaintiffs below,\nand Fout is a third-party defendant. Both the Bells and Fout appeal from the same\njudgment entry.\n\fHighland App. Nos. 10CA18 & 10CA19 3\n\n\n{¶4} Both the Bells and Fout appealed the trial court’s July 6, 2009 Entry. We held\n\nthat, because the July 6, 2009 Entry did not determine the recipient of the disgorged\n\n$6,500 real estate commission, that entry was not a final appealable order. Bell III at ¶\n\n15. Therefore, we dismissed the appeal for lack of jurisdiction. Id.\n\n{¶5} Following our remand in Bell III, the trial court issued an entry on Nov. 24,\n\n2010. The Bells and Fout now appeal from the trial court’s Nov. 24, 2010 Entry. The\n\nBells assert the following assignments of error: I. “The Trial Court erred in its decree of\n\nrescission wherein the Defendant/Appellee incurred the real estate taxes and imposed\n\nthe delinquent taxes on Appellant.” And, II. “The Trial Court erred in placing the burden\n\nof restoration upon the Plaintiff/Appellants since it was the Defendant/Appellee Turners\n\nseeking rescission.” Fout asserts the following assignments of error: I. “The trial court\n\ndid not have jurisdiction to address the matter of Appellant Fout’s commission, as the\n\ndoctrine or [sic] res judicata bars all claims that have been previously litigated and any\n\norder relating to Appellant Fout was beyond the mandate of the Appellate Court’s\n\nremand.” And, II. “The trial court erred to the detriment of the Defendant/Appellant\n\nwhen it ordered Defendant/Appellant Fout to disgorge the commission, together with\n\nstatutory interest, as such order was in violation of the Appellate Court’s remand, which\n\nrequired the trial court to determine what steps are required to put the parties back in\n\ntheir pre-contract position.”\n\n II.\n\n{¶6} As we did in Bell III, we must address our jurisdiction before we address the\n\nmerits of the parties’ arguments. “Ohio law provides that appellate courts have\n\njurisdiction to review the final orders or judgments of inferior courts in their district.”\n\fHighland App. Nos. 10CA18 & 10CA19 4\n\n\nCaplinger v. Raines, 4th Dist. No. 02CA2683, 2003-Ohio-2586, ¶ 2, citing Ohio\n\nConstitution, Article IV, Section (3)(B)(2); R.C. 2505.02. “If an order is not final and\n\nappealable, then we have no jurisdiction to review the matter.” Saunders v. Grim, 4th\n\nDist. App. Nos. 08CA668 and 08CA669, 2009-Ohio-1900, ¶ 5. “In the event that this\n\njurisdictional issue is not raised by the parties involved with the appeal, then the\n\nappellate court must raise it sua sponte.” Caplinger at ¶ 2, citing Chef Italiano Corp. v.\n\nKent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus.\n\n{¶7} As indicated above, we dismissed the appeal in Bell III because the trial\n\ncourt’s July 6, 2009 Entry was not a final appealable order. That entry states as follows:\n\n“Defendant Harriet Fout dba Fout Realty is hereby ordered to immediately disgorge the\n\n$6,500.00 real estate commission paid to her on June 9, 1995 and pay that amount plus\n\naccrued statutory interest from March 12, 1996 (the date of the initial demand for\n\nrescission) to the Clerk of this Court. The Clerk shall hold said funds for future\n\ndisbursement on the motion of any party.” July 6, 2009 Entry at 1-2.\n\n{¶8} In finding that the July 6, 2009 Entry was not a final appealable order, we\n\nfound the following: “By leaving the issue of the $6,500 open, * * * sound judicial\n\nadministration does not support giving the parties the right to immediately appeal the\n\ntrial court’s order.” Bell III at ¶ 15. Instead, we found that the July 6, 2009 Entry was\n\nnot final and appealable because it “expressly reserved decision on the final destination\n\nof the $6,500.” Id.\n\n{¶9} Following our dismissal in Bell III, the trial court issued a new entry, which\n\nstates as follows:\n\fHighland App. Nos. 10CA18 & 10CA19 5\n\n\n Defendant Harriet Fout dba Fout Realty is hereby ordered to\n\n immediately disgorge the $6,500.00 real estate commission paid to her on\n\n June 9, 1995 and pay that amount plus accrued statutory interest from\n\n March 12, 1996 (the date of the initial demand for rescission) to the Clerk\n\n of this Court.\n\n Upon receipt of the disgorged real estate commission and accrued\n\n interest, the Clerk of Courts shall immediately notify all parties via their\n\n respective counsel that said funds are being held by the Court. Following\n\n receipt of said notice from the Clerk of Courts, Defendant Stella Turner\n\n (individually and in her capacity as Executrix of the Estate of William A.\n\n Turner) shall have fourteen (14) days to file an application for a\n\n disbursement from said funds held on deposit to effectuate the\n\n reimbursement to said Defendant of all closing costs paid on June 9, 1995\n\n as Ordered herein. Further, Plaintiffs shall also have fourteen (14) days to\n\n submit a similar application to the Court seeking disbursement from the\n\n funds held on deposit by the Clerk of Courts as an offset against the real\n\n estate taxes, interest, and penalties which have accrued since March 12,\n\n 1996 on the subject parcels as Ordered herein. In the event the\n\n application for disbursement of funds is not timely made by any party, the\n\n Clerk of Courts shall refund all amounts paid by Defendant Harriett Fout\n\n dba Fout Realty back to said Defendant. Nov. 24, 2010 Entry.\n\n{¶10} We conclude that the Nov. 24, 2010 Entry suffers from the same defect as the\n\nJuly 6, 2009 Entry. That is, the Nov. 24, 2010 Entry also reserves decision on the final\n\fHighland App. Nos. 10CA18 & 10CA19 6\n\n\ndestination of the $6,500. Here, the Nov. 24, 2010 Entry merely expands upon the\n\nprocedure to obtain the disgorged real estate commission. The Nov. 24, 2010 Entry\n\ndoes not, however, award the $6,500 to anyone in particular. Instead, under the order,\n\nboth the Turners and the Bells have fourteen days following receipt of notification from\n\nthe court to apply for the funds. Just as we found in Bell III, the issue of the $6,500\n\nremains “left open.” Therefore, based on our reasoning in Bell III, we find that the trial\n\ncourt’s Nov. 24, 2010 Entry is not a final appealable order.\n\n{¶11} Accordingly, we dismiss this appeal for lack of jurisdiction.\n\n APPEAL DISMISSED.\n\fHighland App. Nos. 10CA18 & 10CA19 7\n\n\n JUDGMENT ENTRY\n\n It is ordered that the APPEAL BE DISMISSED. Appellants and Appellees shall\npay equally the costs herein taxed.\n\n The Court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate issue out of this Court directing the\nHighland County Court of Common Pleas to carry this judgment into execution.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule\n27 of the Rules of Appellate Procedure. Exceptions.\n\nAbele, P.J. and Harsha, J.: Concur in Judgment and Opinion.\n\n\n\n\n For the Court\n\n\n BY:_____________________________\n Roger L. Kline, Judge\n\n\n\n\n NOTICE TO COUNSEL\n\n Pursuant to Local Rule No. 14, this document constitutes a final judgment\nentry and the time period for further appeal commences from the date of filing\nwith the clerk.\n\f", "ocr": false, "opinion_id": 2697755 } ]

[ "338 F. Supp. 2d 1257" ]

[ { "author_str": "Kimball", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1773, "opinion_text": "\n338 F. Supp. 2d 1257 (2004)\nJohn HAFEN and John Reed, Plaintiffs,\nv.\nSid STREBECK, Defendants.\nNo. 2:04 CV 507DAK.\nUnited States District Court, D. Utah, Central Division.\nOctober 4, 2004.\n*1258 Matthew N. Evans, Esq., Holme Roberts & Owen LLP, Salt Lake City, UT, for Plaintiffs.\nSean N. Egan, Esq., Kearns Bldg, Salt Lake City, UT, for Defendants.\n\nMEMORANDUM DECISION AND ORDER\nKIMBALL, District Judge.\nThis matter is before the court on Defendant Sid Strebeck's Motion to Dismiss. A hearing on the motion was held on September 22, 2004. At the hearing, Defendant was represented by Sean N. Egan and Plaintiffs were represented by Matthew N. Evans. The court took the matter under advisement. The court has considered carefully the memoranda submitted by the parties as well as the law and facts relating to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.\n\nBACKGROUND\nAccording to Plaintiffs' Complaint, the acts that form the basis of this action involve conversations made via telephone by Defendant Strebeck to Plaintiff Hafen, while Hafen resided in Utah, and correspondence sent by Strebeck to Hafen in Utah. Plaintiffs Hafen and Reed have an ownership interest in software marketed under the name EV4 (\"Software\"). Strebeck procured physical possession of the Software by foreclosing on assets of a company called Versidata. Versidata had previously acquired a license to use the Software from Hafen and Reed. Versidata owed Hafen and Reed in excess of $188,000 for the use of the Software.\nJohn Reed is a resident of Washington. John Hafen is a resident of Provo, Utah. However, it is unrebutted that at times relevant to this action, he also resided in *1259 the State of Washington. Strebeck is a resident of New Mexico, and the Software is physically located in Oklahoma.\nOn September 13, 2002, Strebeck telephoned Hafen, who was in Provo, Utah at the time, to talk about the Software. During this conversation, Strebeck allegedly represented that he had a million dollar deal with a company called Reynolds & Reynolds to further develop the Software. Strebeck also allegedly represented that he was going to get a $500,000 investment from Dealers Diversified for marketing the Software to car dealers across the country, which could generate millions of dollars in revenues. Plaintiffs allege that Strebeck made these representations in order to induce Hafen and Reed to forego repossessing the Software.\nIn addition, Plaintiffs claim that Strebeck told Hafen that he would either pay Plaintiffs in full the money owed by Versidata for use of the Software, cash them both out of their rights to the Software, and/or provide them with an interest in the profits obtained from the use of the Software. At that time, the Software had a value of approximately $1,000,000.\nIn reliance on Strebeck's alleged representations in the September 13, 2002 conversation, which were confirmed in a follow up letter from Strebeck to Hafen, Plaintiffs refrained from repossessing the Software and permitted Strebeck to continue to use the Software. Plaintiffs contend that they have since learned that Strebeck did not have a deal with Reynolds & Reynolds, he did not have a deal with Dealers Diversified, and he never intended to satisfy the obligations to them.\nPlaintiffs allege that in subsequent conversations directed to Hafen in Utah, Strebeck retracted his promises and refused to satisfy the obligations owed to them for the Software. Plaintiffs claim they have not received compensation from Strebeck for allowing him to use the Software. Plaintiffs further allege that because of the passage of time and the failure to update the Software, the Software has lost most of its value.\nPlaintiffs' Complaint alleges three causes of action against Strebeck: (1) intentional misrepresentation based upon Strebeck's knowingly false representations that induced Plaintiffs not to repossess their rights to the Software; (2) negligent misrepresentation based on Strebeck's reckless misrepresentations which caused Plaintiffs' not to exercise their rights; and (3) breach of fiduciary duty based on Strebeck's superior knowledge about the facts relating to the Software and his intended uses of the Software and his failure to act with reasonable care or in a manner that served the best interests of Plaintiff with regard to the Software.\n\nDISCUSSION\nStrebeck brings the present motion to dismiss arguing that this court lacks personal jurisdiction over him. Alternatively, if the court finds that it does have jurisdiction, Defendant moves for dismissal of each of Plaintiffs' claims, arguing: (1) Plaintiffs have not pled fraud with particularity under Rule 9(b) of the Federal Rules of Civil Procedure; (2) Plaintiffs have not adequately plead negligent misrepresentation and such claim is barred by the economic loss rule; and (3) Plaintiff's breach of fiduciary duty claim fails because Defendant has no such duty as a matter of Utah law.\nI. Personal Jurisdiction\nWhen a court's jurisdiction is contested, the plaintiff \"bears the burden of establishing personal jurisdiction over the defendant.\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998); Electronic Realty Assoc. v. Vaughan, 897 F. Supp. 521, 521 *1260 (D. Kan.1995) (citing McNutt v. General Motors, 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)). However, in the preliminary stages of litigation, the plaintiff's burden is only to establish a prima facie case that jurisdiction exists. Electronic Realty, 897 F.Supp. at 521. All factual disputes are resolved in favor of the plaintiff when determining the sufficiency of this showing. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).\nIt is well settled that \"[t]o obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.\" Soma Medical Int'l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir.1999). There is no claim in this case that there is general jurisdiction over Defendant in the State of Utah. Therefore, this court must determine whether specific jurisdiction exists over Defendant under the facts of this case.\n\"[T]he evaluation of specific jurisdiction in Utah mandates a three-part inquiry: '(1) the defendant's acts or contacts must implicate Utah under the Utah long-arm statute; (2) a `nexus' must exist between the plaintiff's claims and the defendant's acts or contacts; and (3) application of the Utah long-arm statute must satisfy the requirements of federal due process.'\" National Petroleum Mkt'g, Inc. v. Phoenix Fuel Co., 902 F. Supp. 1459, 1465 (D.Utah 1995) (citations omitted). Plaintiffs' Complaint alleges that Strebeck \"transacted business\" and \"caused an injury\" in Utah under Utah's long-arm statute based on Strebeck's telephone conversations with Hafen, who was in Provo, Utah at the time, and Strebeck's correspondence directed to Hafen in Utah. Utah Code Ann. § 78-27-24(1), (3) (2002 & Supp.2003). Utah's long-arm statute provides, in pertinent, part as follows:\nAny person ... who in person or through an agent does any of the following enumerated acts, submits himself ... to the jurisdiction of the courts of this state as to any claim arising out of or related to:\n(1) the transaction of any business within this state;\n\n. . . . .\n(3) the causing of any injury within this state whether tortious or by breach of warranty ...\nId.\nThe words \"transacting business\" means activities of a non-resident person in this state which \"affect persons or business within the state.\" Id. § 78-27-23(2) (2002). These words are liberally and expansively interpreted such that \"a person may transact business within the state despite an absence of physical presence in Utah.\" Nova Mud Corp. v. Fletcher, 648 F. Supp. 1123, 1126 (D.Utah 1986). In fact, the entire Utah long-arm statute is intended to be interpreted broadly \"so as to assert jurisdiction over nonresident defendants to the fullest extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution.\" Utah Code Ann. § 78-27-22; see also Starways, Inc. v. Curry, 980 P.2d 204, 206 (Utah 1999). Accordingly, the Utah Supreme Court \"frequently make[s] a due process analysis first because any set of circumstances that satisfies due process will also satisfy the long-arm statute.\" SII MegaDiamond, Inc. v. American Superabrasives Corp., 969 P.2d 430, 433 (Utah 1998). Therefore, the court will begin its analysis by determining whether the exercise of personal jurisdiction over Defendant under the facts of this case meets federal due process standards.\n*1261 Under due process standards, a \"court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum state.\" World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (citations omitted). The \"minimum contacts\" necessary for specific personal jurisdiction are established \"`if the defendant has \"purposefully directed\" his activities at residents of the forum and the litigation results from alleged injuries that \"arise out of or relate to\" those activities.'\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).\nStrebeck argues that his telephone calls and correspondence to Hafen in Utah are insufficient to establish the minimum contacts required under the Due Process Clause. \"It is well-established that phone calls and letters are not necessarily sufficient in themselves to establish minimum contacts.\" Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir.1995). However, \"telephone calls and letters may provide sufficient contacts for the exercise of personal jurisdiction. In proper circumstances, even a single letter or telephone call to the forum state may meet due process standards.\" Rambo v. American Southern In. Co., 839 F.2d 1415, 1418 (10th Cir.1988) (citations omitted). \"[T]he exercise of jurisdiction depends on the nature of those contacts.\" Id. \"The proper focus for analyzing these contacts is whether they represent an effort by the defendant to `purposefully avail [himself] of the privilege of conducting activities within the forum State.'\" Id. at 1419.\nThe cases make clear that it is the quality or nature of the communications that matter, not the quantity. In this case, Plaintiffs allege not only that there were several telephone calls between Strebeck and Hafen while Hafen was in Utah, but that the statements made during those telephone calls to Utah form the basis of their claims. Plaintiffs allege that Strebeck made intentional misrepresentations in his telephone conversations to Hafen that improperly induced Plaintiffs to forego repossessing their interests in the Software.\nIn Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1983), the Supreme Court held that a defendant's intentional tortious acts in Florida were sufficient to establish minimum contacts in California because the actions were aimed at California, and most of the harm to plaintiff's reputation and career occurred in California. Id. at 790, 104 S. Ct. 1482. However, cases since Calder have held that while an intentional tort suggests purposeful availment, it is only one factor in creating minimum contacts and \"the mere allegation of an intentional tort does not create jurisdiction in the plaintiff's home forum.\" Wallace v. Herron, 778 F.2d 391, 394-95 (7th Cir.1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986) (cited in Far West, 46 F.3d at 1079).\nThe Tenth Circuit has reviewed post-Calder decisions and concluded that \"the mere allegation that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that have allegedly injured a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts.\" Far West, 46 F.3d at 1079. In determining purposeful availment, the court must \"undertake a particularized inquiry\" and examine \"`prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing.'\" Id. The court should also \"examine the contacts created *1262 by the out-of-state defendant in committing the alleged tort.\" Id. at 1079-80.\nIn conducting the particularized inquiry for purposes of purposeful availment in this case, it is undisputed that there was no contract between the parties. It is unclear where the contract that the parties were negotiating would have been executed or performed. Plaintiffs do not dispute that Reed told Strebeck to contact Hafen. They also do not dispute that although some negotiations were obviously occurring between Hafen and Strebeck while Hafen was in Utah, negotiations were also taking place in other jurisdictions.\nStrebeck argues that even though he communicated with Hafen in Utah, the only contact with Utah is the fact that Hafen resides in the state and such a contact is mere happenstance. In Reynolds, the court recognized that the choice of a residence is a unilateral one that will not allow a plaintiff to establish jurisdiction over a non-forum defendant absent other availing factors. Id. at 1118-19. The Reynolds court, which was addressing the intentional tort of defamation, distinguished the defamation claim in its case from the defamatory publication in Calder because the alleged defamatory press release was not published or circulated in the forum state.\nUnlike the contacts in Reynolds, however, in this case, Plaintiffs' Complaint specifically identifies one allegedly fraudulent telephone call Strebeck placed to Hafen in Utah, states that Strebeck made other fraudulent calls to Hafen in Utah, and alleges that Strebeck sent a letter to Hafen in Utah confirming the alleged misrepresentations that he made in the telephone calls. These contacts form the basis of Plaintiffs claims.\nIn stating that courts should examine contacts created by the nonresident defendant in committing the alleged tort, the Tenth Circuit cited to several post-Calder cases which, although coming to different holdings, focused on the nature of the contacts. See, e.g., Reynolds v. International Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 423, 130 L. Ed. 2d 338 (1994); Coblentz GMC/Freightliner Inc. v. General Motors Corp., 724 F. Supp. 1364 (M.D.Ala.1989).\nIn Coblentz GMC/Freightliner Inc. v. General Motors Corp., 724 F. Supp. 1364 (M.D.Ala.1989), one of the cases cited by the Tenth Circuit, the court stated that \"when a defendant intentionally takes some action with the knowledge that the result will be harm to a specific victim in another state, the picture involves more than mere foreseeability or the likelihood that fortuitous and undirected conduct will have an effect in that state.\" Id. at 1368. The court further stated that \"[w]hen the conduct is intentional and is directed at a victim in another state, the defendant may be held to have expected its conduct to have an effect in that state, and further to have expected that the victim will bring suit for redress there.\" Id.\nConstruing the allegations of the Complaint in favor of Plaintiff as this court must do, although Strebeck may not have sought out Hafen in Utah, he knew when he made the alleged misrepresentations to Hafen in Utah that he was directing his conduct to a specific person in this state. He further knew that he was making alleged misrepresentations that would induce Hafen not to pursue his rightful remedies, and that such action would cause Hafen harm. Because Strebeck's representations in the telephone calls form the basis of Plaintiffs' claims, this court concludes that they establish the requisite minimum contacts to satisfy due process.\nIf the defendant's activities create sufficient minimum contacts, the court then considers \"whether the exercise of personal jurisdiction over the defendant offends *1263 `traditional notions of fair play and substantial justice.'\" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987)). Both the United States Supreme Court and the Utah Supreme Court have recognized that the central inquiry in making such a determination is \"the relationship of the defendant, the forum, and the litigation to each other.\" Mallory Eng'g v. Ted R. Brown & Assoc., 618 P.2d 1004, 1007 (1980); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 1478, 79 L. Ed. 2d 790 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)). \"In Keeton, the Court further indicated that the `fairness' of requiring a defendant who is not a resident of the forum state to appear in the forum depends in part on the expressed public policy interest of the forum state, noting the particular interest a forum state in connection with tort claims.\" Berrett v. Life Ins. Co. of Southwest, 623 F. Supp. 946, 951 (D.Utah 1985).\nStrebeck again argues that Utah's connection to the case is a mere fortuity and there is no indication that Utah played any role in the party's past dealing or that it would have any role in their continuing relationship had any deal come to fruition. Strebeck asserts it would not comport with notions of fair play to require him to defend himself in a forum in which he has only a slight connection. Plaintiffs, in contrast, argue that the balance of equities weigh in favor of finding jurisdiction over Defendant in Utah. Plaintiffs assert that Plaintiff is located in an adjoining state, has obtained counsel here, and Plaintiffs wrongful acts were directed to this state. Plaintiffs contend that Strebeck should not be allowed to make harmful misrepresentations to a Utah resident without the burden of answering for his wrongful acts in this state.\nIn assessing notions of fair play and substantial justice, this court recognizes that Utah residents should be afforded a full opportunity to address injuries perpetrated on them by out-of-state residents in Utah courts. There is a substantial and fundamental link between Plaintiff's claims and Strebeck's contacts with Utah. The claims arise directly out of his contacts with Hafen in Utah, wherein Strebeck allegedly made misrepresentations to Hafen in order to induce Plaintiffs to forego their right to foreclose on the Software. But for the fact of Strebeck's representations via telephone and letter to Utah, there would be no cause of action. Moreover, Strebeck was capable of conducting business with Hafen in Utah without undue hardship. Therefore, the court concludes that the exercise of jurisdiction over Defendant in this court comports with traditional notions of fair play and substantial justice. Based on the above reasoning, the court concludes that jurisdiction is proper in this court under due process standards and Utah's long-arm statute. Accordingly, Defendant's motion to dismiss for lack of personal jurisdiction is denied.\nIn the event that this court found jurisdiction over Strebeck, Strebeck also brought a motion to dismiss each of Plaintiffs' claims. The court will address each claim in turn.\nII. Claim 1: Intentional Misrepresentation\nStrebeck argues that Plaintiffs have not pled their fraud claim with the particularity required under Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) \"requires a plaintiff to identify the time, place, and content of each allegedly fraudulent representation or omission, to identify the particular defendant responsible for it, and to identify the consequence thereof.\" *1264 Karacand v. Edwards, 53 F. Supp. 2d 1236, 1241 (D.Utah 1999).\nStrebeck contends that Plaintiffs allegations do not specify a time, a place, or the content of any fraudulent representation or omission and that the consequences of Strebeck's alleged fraud are stated in only conclusory fashion. Strebeck also asserts that Plaintiffs have failed to clearly identify a presently existing material fact which Strebeck allegedly misrepresented or omitted. Therefore, Strebeck argues that Plaintiffs have failed to plead the necessary elements of a fraud claim. Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003).\nAlthough Plaintiffs have not listed all of the dates and times of each telephone call between the parties, they have alleged one date that Strebeck made a telephone call, that the call was made to Hafen, that the content of the calls included misrepresentations regarding deals that Strebeck had not really entered into, and that he made such representations to induce Plaintiffs not to foreclose on their rights to the Software. Plaintiffs also allege that their rights in the Software lost value because of the delay caused by Defendant's alleged misrepresentations. The allegation that Strebeck stated he had entered into deals with certain parties regarding the software when he allegedly had not is enough to state the misrepresentation of a presently existing fact.\nAlthough Plaintiffs state the time, place, and content for only one telephone call, it is enough to state a claim for fraud under Rule 9(b) with respect to that telephone call. To the extent that there is other conduct between the parties or other dealings related to the fraudulent representations made in that call, Plaintiffs need not plead it with particularity unless it contains additional fraudulent representations. If there are other fraudulent representations that Plaintiffs intend to rely upon in this case, they should timely amend their Complaint to provide Defendant notice. However, the court concludes that Plaintiffs' Complaint sets forth the time, place, and representations made by Strebeck sufficiently under Rule 9(b) to state a claim of fraud. Accordingly, Defendant's motion to dismiss Plaintiffs' first claim is denied.\nIII. Claim 2: Negligent Misrepresentation\nStrebeck contends that Plaintiffs have failed to allege the necessary elements of a negligent misrepresentation claim under Utah law and that the claim is barred by the economic loss rule. Utah acknowledges the tort of negligent misrepresentation, which \"provides that a party injured by reasonable reliance upon a second party's careless or negligent misrepresentation of a material fact may recover damages resulting from that injury when the second party had a pecuniary interest in the transaction, was in a superior position to know the material facts, and should have reasonably foreseen that the injured party was likely to rely upon the fact.\" Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986); Klinger v. Kightly, 889 P.2d 1372, 1378 (Utah App.1995).\nAlthough Plaintiffs have adequately pled many of these elements and some reasonableness determinations appear to be questions of fact that would be inappropriate to rule on at a motion to dismiss stage, the initial inquiry for this court to make is whether Strebeck owes a duty to Plaintiffs. In order to state any claim of negligence, the defendant must owe a duty to Plaintiff. Plaintiffs allege in their Complaint that Strebeck had a duty to refrain from making statements that he knew or should have known were not true.\n*1265 \"The issue of whether a duty exists is entirely a question of law to be determined by the court.\" Ferree v. State, 784 P.2d 149, 151 (Utah 1989). Courts consider many factors, none of which is dispositive, in determining when a duty runs between parties. See e.g., Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 60 (Utah 1986) (foreseeability); Christenson v. Commonwealth Land Title Ins. Co., 666 P.2d 302, 305 (Utah 1983) (privity of contract); Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382, 384-85 (1962) (statutory obligations); House v. Armour of Am., Inc., 886 P.2d 542, 549-50 (Utah App.1994) (whether user possesses special knowledge, sophistication, or expertise). Particularly in the realm of tort law, \"[t]he duty concept ... is a policy determination.\" DeBry, 835 P.2d at 1003-04 (\"Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.\") (citations omitted).\nThis case presents the issue of whether one commercial entity has a duty to refrain from making negligent misrepresentations to another in the negotiation of a contract. While Utah cases have discussed circumstances where certain defendants may owe a duty to refrain from making negligent misrepresentations to certain plaintiffs, this court has not found a case addressing negligent misrepresentation in the context of two commercial entities during negotiations of a contract.\nIn Safeco Insurance Co. v. Dain Bosworth, Inc., 531 N.W.2d 867, 870 (Minn.App.1995), the Minnesota Court of Appeals faced the same situations with regard to the state of the law in Minnesota. In looking to other jurisdictions for guidance, the court held that \"where adversarial parties negotiate at arm's length, there is no duty imposed such that a party could be liable for negligent representations. In these situations, the injured party's remedy is to sue either in contract or to sue for intentional misrepresentation.\" Id. The court concluded that the defendant did not owe Plaintiff a duty beyond the duty of honesty. Id. Therefore, although there is an inherent duty to be honest and not state intentional misrepresentations, there is no similar duty with respect to negligent misrepresentations when the parties are dealing at arm's length.\nThe Minnesota court relied on cases from the states of Iowa, Oregon, and Illinois. These cases \"distinguish misrepresentations made by persons engaged in the business or profession of supplying guidance to others from misrepresentations made during commercial transactions where the parties are dealing at arm's length.\" Id. (citing Freeman v. Ernst & Young, 516 N.W.2d 835, 838 (Iowa 1994); Onita Pac. Corp. v. Trustees of Bronson, 315 Or. 149, 843 P.2d 890, 896-97 (1992) (professionals such as attorneys, engineers, architects, real estate brokers, and primary insurers owe a duty for purposes of negligent misrepresentation, but \"adversarial parties negotiating at arm's length to further their own economic interests\" do not owe such a duty); Moorman Mfg. v. National Tank, 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443, 452 (1982) (limiting actions for negligent misrepresentation to situations where \"one who is in the business of supplying information for the guidance of others in their business transactions makes negligent misrepresentations\"); Alfred Hill, Damages for Innocent Misrepresentation, 73 Colum.L.Rev. 679, 685-86 (1973)). The Eighth Circuit Court of Appeals, applying Iowa law, has also concluded that parties to a business merger deal do not have a duty to one another for purposes of negligent misrepresentation. See Budget Mktg., Inc. v. Centronics Corp., 927 F.2d 421, 428-29 (8th Cir.1991).\n*1266 This court finds that Utah courts would adopt a similar approach. Therefore, the court concludes that because the parties were both commercial entities negotiating a deal at arm's length, Strebeck did not have a duty to Plaintiffs with respect to negligent misrepresentations, only intentional misrepresentations.\nStrebeck further argues that Plaintiffs' negligent misrepresentation claim is barred by the economic loss rule. Although the court has already concluded that Plaintiffs have not stated a claim of negligent misrepresentation, the court concludes that based on that lack of duty, the claim would also be precluded by the economic loss rule. The economic loss rule prevents a party from claiming economic damages \"`in negligence absent physical property damage or bodily injury.'\" SME Indus., Inc. v. Thompson, Ventulett, Stainback and Assoc., 28 P.3d 669, 680 (Utah 2001). The economic loss rule under Utah law is an evolving doctrine. \"The economic loss rule is a judicially created doctrine that marks the fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care.\" Id. The Utah Supreme Court has expressly adopted the interpretation of the economic loss rule provided by the Colorado Supreme Court in Grynberg v. Agric. Tech. Inc., 10 P.3d 1267, 1269 (Colo.2000), which states:\n\"The proper focus in an analysis under the economic loss rule is on the source of the duties alleged to have been breached. Thus, our formulation of the economic loss rule is that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.\"\nHermansen v. Tasulis, 48 P.3d 235, 240 (Utah 2002). Therefore, \"[w]hen an independent duty exists, the economic loss rule does not bar a tort claim `because the claim is based on a recognized independent duty of care and thus does not fall within the scope of the rule.'\" Id. (citation omitted).\nAlthough the rule appears to have begun as only a means to deter parties to a contract from seeking tort remedies in addition to the remedies available under their contract, cases from the Utah Supreme Court have also applied the economic loss rule to parties who were not parties to a contract. In American Towers Owners Ass'n v. CCI Mech., Inc., 930 P.2d 1182 (Utah 1996), the court barred condominium homeowners from collecting economic damages from contractors for faulty construction in the plumbing and mechanical systems of the building. Id. at 1192. The homeowners were not parties to any of the construction contracts and had no enforceable rights as third-party beneficiaries. Id. at 1187. However, the court barred their claim under the economic loss rule, finding that any other holding would \"impose the [homeowners'] economic expectations upon parties whom the [homeowners] did not know and with whom they did not deal and upon contracts to which they were not a party.\" Id. at 1192.\nIn Fennell v. Green, 77 P.3d 339, 344 (Utah Ct.App.2003), the Utah Court of Appeals barred a homeowner's claim against a developer for negligent misrepresentation. The homeowner did not have a contract with the developer, and the court found that \"the economic loss rule applies to prevent the imposition of `economic expectations' on non-contracting parties.\" Id. The Fennell court factually distinguished Hermansen on the grounds that the defendant in Hermansen had an independent *1267 duty to plaintiffs as real estate professionals.\nIn this case, there is no contract between the parties. Plaintiffs' negligent misrepresentation claim arises out of the parties' negotiations of a contract that was never executed. Plaintiffs allege in their Complaint that Strebeck had a duty to refrain from making statements that he knew or should have known were not true. As the court found above, however, there is no duty with respect to negligent misrepresentation when two commercial entities are engaged in arm's-length contract negotiations. Plaintiffs also allege a separate cause of action claiming that Defendant had a fiduciary duty to them. However, as will be discussed below, the court does not find that a fiduciary duty exists between parties negotiating a deal at arms-length. See Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1064 (Utah 1996). Because Strebeck had no independent duty to Plaintiffs, Plaintiffs negligent misrepresentation claim is also barred by the economic loss rule because it prevents the imposition of economic expectations on non-contracting parties. Therefore, the court grants Defendant's motion to dismiss Plaintiff's claim for negligent misrepresentation.\nIV. Claim 3: Fiduciary Duty\nStrebeck argues that he had no fiduciary duty as a matter of Utah law. A fiduciary or confidential relationship will be found under Utah law only \"when one party, having gained the trust and confidence of another, exercises extraordinary influence over the other party.\" Gold Standard Inc. v. Getty Oil Co., 915 P.2d 1060, 1064 (Utah 1996). When \"the parties deal at arm's length or in an adversarial relationship, no fiduciary relationship can be said to exist.\" Id.\nStrebeck contends that the nature of his relationship with Plaintiffs was only negotiations to enter into a contract. Plaintiffs argue that Strebeck's promise to them regarding an interest in the profits obtained from the use of the Software was, in essence, offering a joint venture arrangement. Plaintiffs contend that as a result of this relationship, Strebeck owed a duty to Plaintiffs to act with reasonable care, in good faith, and in a manner that would serve the interest of Plaintiffs with regard to the Software.\nTypically, \"fiduciary obligations inhere ... where two entities are engaged in a joint venture where they share profits and risks or where the entities jointly own or control assets.\" KBQ, Inc. v. du Pont, 6 F. Supp. 2d 94, 100 (D.Mass.1998). However, Plaintiffs acknowledge that the nature of the relationship was not contractual. Under Utah law, a joint venture requires the existence of an agreement. Bassett v. Baker, 530 P.2d 1, 2 (Utah 1974). It is undisputed that no agreement was ever reached between the parties. The parties were merely negotiating an agreement at arm's-length to become a joint venture. Therefore, the court concludes that no fiduciary relationship existed between the parties during the period of negotiations. Accordingly, Defendant's motion to dismiss Plaintiffs' claim for breach of fiduciary duty is granted.\n\nCONCLUSION\nFor the reasons stated above, Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Specifically, Defendant's motion to dismiss based on lack of personal jurisdiction is DENIED; Defendant's Motion to Dismiss Plaintiffs' intentional misrepresentation claim is DENIED; Defendant's Motion to Dismiss Plaintiffs' negligent misrepresentation claim is GRANTED; and Defendant's *1268 Motion to Dismiss Plaintiffs' breach of fiduciary duty is GRANTED.\n", "ocr": false, "opinion_id": 2333112 } ]

[ "317 F. Supp. 2d 1233" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 767, "opinion_text": "\n317 F. Supp. 2d 1233 (2004)\nStuart SANDERS, by and through his next friend and mother, Jeannine RAYL, Plaintiff,\nv.\nKANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Janet Schalansky, in her official capacity, Laura Howard, in her official capacity, and Robert Day, in his official capacity., Defendants.\nNo. 03-4075-SAC.\nUnited States District Court, D. Kansas.\nApril 29, 2004.\n*1234 *1235 *1236 *1237 James A. Passamano, Sufian & Passamano LLP, Houston, TX, Scott A. Letts, *1238 Kansas Advocacy & Protective Services, Inc., Topeka, KS, for Plaintiff.\nDanny J. Baumgartner, Carl W. Ossmann, Topeka, KS, for Defendant.\n\nMEMORANDUM AND ORDER\nCROW, District Senior Judge.\nThis case comes before the court on defendants' motion to dismiss the case for lack of standing, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted.\nPlaintiff is an adult male who has chronic progressive multiple sclerosis, quadriplegia, seizure disorder and pulmonary dysfunction, in addition to other physical conditions. Dk. 14, ¶ 10. This case had its genesis when the Kansas Department of Social and Rehabilitation Services (\"SRS\"), a Medicaid agency, denied plaintiff's request for a \"Vest Airway Clearance System\" (\"the Vest\").\nThereafter, plaintiff brought this suit, naming as defendants not only SRS, but also the following individuals in their official capacities: Janet Schalansky, the Secretary of SRS; Laura Howard, the Assistant Secretary of the Health Care Policy Division of SRS; and Robert Day, the Director of Medical Policy and Medicaid Director of Health Care Policy Division of SRS. The case alleges violations of the ADA, the Rehabilitation Act, the Medicaid Act, and 42 U.S.C. § 1983.\n\nI. BACKGROUND\nPlaintiff participates in the Kansas Medicaid Program, and in the home and community-based waiver services. See 42 U.S.C. § 1396n. Programs approved under this subsection are waived from many Medicaid strictures, id. § 1396n(c)(3), including that medical assistance be made available to all individuals equally, see id. § 1396a(a)(10)(B). Plaintiff's physician requested pre-authorization for Medicaid to cover the Vest, which the court understands to be a piece of medical equipment resembling a clothing vest which transmits rapid pulsations designed to mobilize secretions in one's chest. SRS, a Medicaid agency, denied the request. The basis for SRS's denial is disputed. Plaintiff alleges it was because he is not institutionalized, does not have cystic fibrosis, and is not under 21 years of age. Defendants allege it was because the Vest was not shown to be medically necessary.\nPlaintiff unsuccessfully requested reconsideration of the denial, then appealed the denial to the state administrative Hearing Officer, who affirmed. Plaintiff pursued a further appeal to the Kansas State Appeals Committee, which also affirmed the agency decision to deny payment for the Vest. See K.S.A. § 77-527(a)(2)(B); § 75-3306; K.A.R. 30-7-78. Plaintiff did not seek review in the district court of these administrative decisions, see K.S.A. § 77-601, choosing instead to file this case in federal court.\nPlaintiff alleges that defendants violated the Americans with Disabilities Act (\"ADA\"), 42 U.S.C. § 12101, et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796, the equal protection and due process clauses of the United States Constitution, and various provisions of the Medicaid Act alleged to be actionable via 42 U.S.C. § 1983.\n\nII. MOTION FOR ORAL ARGUMENT\nPlaintiff has moved the court to grant oral argument on defendants' motions to dismiss, alleging that the host of immunity issues \"require subtle distinctions that are more easily addressed in oral hearing.\" Dk. 26, p. 2. The court does not believe that oral argument would be of material assistance in deciding these motions, so denies plaintiff's motion for oral argument.\n\n\n*1239 III. NEXT FRIEND STANDING\nAs a threshold matter, the court must determine whether plaintiff's mother may assert the claims on behalf of her adult son as his next friend, as she attempts to do.\nFederal Rule of Civil Procedure 17(c) provides that \"an infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem....\" The parties agree that Stuart Sanders, whose amended complaint alleges that he is 51 years old, is not an infant. The sole issue is therefore whether he is an \"incompetent person\" within the meaning of that term in this rule.\nIt is uncontested that Stuart Sanders has not been adjudicated incompetent by a state court. Nonetheless, plaintiff contends that he is in fact incompetent, in stating:\nBecause of communication and physical impairments caused by his medical conditions, Stuart Sanders cannot independently represent his interests in this suit against the defendants. For this reason, this action is brought by Stuart Sanders through his next friend and mother, Jeannine Rayl. Stuart Sanders resides with Jeannine Rayl; she is familiar with his medical needs; and she is familiar with the factual issues involved in this suit.\nDk. 14, p. 3, ¶ 5. No other relevant facts are included in the record.\nDefendants Schalansky, Howard and Day assert that Jeannine Rayl cannot serve as \"next friend\" to her adult son because under Rule 17(c), an adult must be adjudicated incompetent by the relevant state court before a \"next friend\" may bring suit on his behalf.\nThe term \"incompetent person\" in Rule 17(c) refers to \"a person without the capacity to litigate.\" Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir.1990), aff'd, 32 F.3d 566 (5th Cir.1994), cert. denied, 513 U.S. 1167, 115 S. Ct. 1138, 130 L. Ed. 2d 1098 (1995). Next friends appear in court on behalf of persons who are unable to seek relief themselves, usually because of mental incompetence. Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990).\nThe court believes that its power to appoint under Rule 17(c) should not be used to circumvent the mandate in Rule 17(b) to observe state law. See Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 19 F. Supp. 2d 567, 575 (N.D.W.Va.1998) (directing plaintiffs to substitute the real parties in interest in lieu of the inappropriately named next friends); Wolfe by Hedges v. Bias, 601 F. Supp. 426, 427-28 (S.D.W.Va.1984). The court nonetheless recognizes that it is (not bound by state procedures for determining competency, and that there may be an occasion which compels a federal court to make a finding of incompetence, independent of a state court). See e.g., Thomas v. Humfield, 916 F.2d 1032, 1035 (5th Cir.1990); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1570, at 503 (2d ed.1990).\nThe court agrees that defendants' approach reflects the better practice because it avoids the risk of inconsistent federal and state court adjudications, assures the parties of the application of well-established and uniform procedural standards, and lends certainty to the process by which incompetence may be found. The court finds that plaintiff fails to satisfy the requirements of Rule 17(c) for suit by a next friend because the record before the court fails to show incompetence and plaintiff has never been adjudicated incompetent. Cf, Lichtenhahn v. Bureau of Land Management, 72 F.3d 138, 1995 WL 749704, *1 (10th Cir. Dec.19, 1995) (Table). *1240 The court would ordinarily direct the plaintiff to substitute the real party in interest in lieu of the inappropriately named next friend, but for the reasons set forth below, such an order would be futile.\n\nIV. JURISDICTIONAL ISSUES\nThe court next examines the host of jurisdictional issues raised by the parties. These include the Rooker-Feldman doctrine, the Younger abstention doctrine, failure to exhaust administrative remedies, and Eleventh Amendment immunity.\n\nRooker-Feldman doctrine\nThe court initially examines and rejects defendants' claim that plaintiff's case is barred by the Rooker-Feldman doctrine. That doctrine generally precludes federal court review of state court judgments.\nThe Tenth Circuit has recently reaffirmed that the Rooker-Feldman doctrine does not apply to decisions of administrative agencies. \"The Rooker-Feldman doctrine applies only to judicial proceedings. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).\" Woodard v. Jefferson County, 18 Fed.Appx. 706, 717, 2001 WL 997925, *10 (10th Cir. Aug.31, 2001). Because it is undisputed that no state court judgment has been reached on the issues presented to this court, this doctrine is inapplicable.\n\nYounger abstention\nDefendants additionally seek application of the Younger abstention doctrine.\nThe Younger doctrine, as developed, requires abstention when federal proceedings would (1) interfere with an ongoing state judicial proceeding (2) that implicates important state interests and (3) that affords an adequate opportunity to raise the federal claims. (citations omitted). A case warrants Younger abstention only if each of these three criteria are satisfied.\nJ.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir.1999). The court finds this doctrine inapplicable because there is no ongoing state judicial proceeding with which any proceedings in this court could potentially interfere.\n\nExhaustion of Administrative Remedies\nDefendants next contend that this suit is barred because plaintiff failed to seek judicial review in state court of SRS's final administrative action. See Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. § 77-601 et seq.[1] Defendants have not shown, however, that each cause of action asserted by plaintiff falls within the jurisdiction of the state agency or that judicial review pursuant to the KJRA is the exclusive remedy for the violations alleged in this case.\nDefendants additionally contend that plaintiff's failure to initially request the Vest from Medicare instead of from Medicaid bars this suit. Plaintiff counters by alleging that he did request the Vest from Medicare. This factual dispute is not properly decided on a motion to dismiss, and thus provides no basis for dismissal.\n\nEleventh Amendment immunity\nDefendants next claim the protection of Eleventh Amendment immunity from all of plaintiff's claims. This issue challenges the court's subject matter jurisdiction, and is generally considered as a Rule 12(b)(1) motion to dismiss. Burden of proof\nDefendants contend that plaintiff bears the burden to show defendants lack Eleventh Amendment immunity, as part of *1241 plaintiff's burden to establish the propriety of federal court jurisdiction. The court disagrees, and joins those courts holding that the defendant asserting Eleventh Amendment immunity bears the burden of proof on that issue. See Holt ex rel. Holt v. Wesley Medical Center, LLC, 2002 WL 1067677 (D.Kan. Mar 27, 2002); Teichgraeber v. Memorial Union Corp. of Emporia State University, 946 F. Supp. 900, 903 (D.Kan.1996) (finding that Eleventh Amendment immunity should be treated as an affirmative defense and must be proved by the party asserting it).\n\nGeneral Rule\nThe Eleventh Amendment grants the states absolute immunity from suits brought by individuals in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). It guarantees that \"nonconsenting States may not be sued by private individuals in federal court.\" Bd. of Trustees of Uni. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). When the state itself is a named defendant, the Eleventh Amendment bar operates regardless of the legal or equitable nature of the relief sought. Hensel v. Office of Chief Administrative Hearing Officer, 38 F.3d 505, 509 (10th Cir.1994). The same is true for suits against a state agency, regardless of the form of relief sought. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir.1998), cert. denied, 525 U.S. 1122, 119 S. Ct. 904, 142 L. Ed. 2d 902 (1999). Thus the Eleventh Amendment doctrine of sovereign immunity bars actions for damages against a State, its agencies and its officials acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-167, n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985); Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.1993).\n\nExceptions\nThere are, of course, exceptions to the general rule of immunity, as the Tenth Circuit has recently reviewed, in stating:\nAlthough States are generally immune from suit brought by private individuals, there are three well-established exceptions to the bar. First, the States may consent to suit, waiving immunity. Second, Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority. Finally, under the doctrine announced in Ex Parte Young, an individual seeking only prospective injunctive relief for ongoing violations of federal law may bring suit against state officials in federal court.\nChaffin v. Kansas State Fair Board, 348 F.3d 850, 866 (10th Cir.2003) (internal citations and quotations omitted). The court thus examines whether any of these exceptions applies.\n\nNo Waiver or Abrogation of Section 1983 claims\nAlthough 42 U.S.C. § 1983 immunity can be waived, the State of Kansas has not done so in this case, nor has its immunity been abrogated for § 1983 suits. See Bock Associates v. Chronister, 951 F. Supp. 969 (D.Kan.1996) (holding that Eleventh Amendment barred federal district court from hearing § 1983 suit against Secretary of Kansas SRS). See generally Elephant Butte Irr. Dist. v. Department of Interior, 160 F.3d 602, 607 (10th Cir.1998), cert. denied, 526 U.S. 1019, 119 S. Ct. 1255, 143 L. Ed. 2d 352 (1999).\n\nNo Waiver or Abrogation of ADA claims\nThe ADA's attempt to waive sovereign immunity has been rejected. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) (invalidating waiver of states' *1242 immunity under Title I of ADA). Nor has the state's immunity been abrogated for suits under Title II of the ADA. Thompson v. Colorado, 278 F.3d 1020, 1034 (10th Cir.2001) (finding Title II of ADA \"is not a valid abrogation of the states' Eleventh Amendment immunity\"), cert. denied, 535 U.S. 1077, 122 S. Ct. 1960, 152 L. Ed. 2d 1021 (2002); Buck v. Industrial Com'n of Utah, 51 Fed.Appx. 832, 835, 2002 WL 31516609, *2 (10th Cir. Nov.13, 2002).\n\nWaiver of Rehabilitation Act claims\nCongress has manifested a clear intent to condition participation in the programs funded under the Rehabilitation Act on a State's consent to waive its constitutional immunity. See 42 U.S.C. § 2000d-7(a)(1) (\"A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of section 504 of the Rehabilitation Act ...\"). The Tenth Circuit has recently held that \"by accepting federal financial assistance as specified in 42 U.S.C. § 2000d-7, states and state entities waive sovereign immunity from suit.\" Robinson v. Kansas, 295 F.3d 1183, 1190 (10th Cir.2002) (finding Kansas had so waived).\nDefendants allege that Robinson was decided in error because Congress did not have the power to abrogate a state's sovereign immunity through a power granted by Article I of the United States Constitution, such as the spending clause, citing Seminole Tribe v. Florida, 517 U.S. 44, 73, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). Robinson, however, was decided on the basis of a state's waiver of sovereign immunity, rather than on the basis of Congress's abrogation thereof, thus the court finds defendants' criticism misplaced.\nThe court notes, however, that the waiver applies solely to § 504 violations, and, contrary to plaintiff's assertions, does not waive immunity as to any other claims in the suit.[2]\nSee Lane v. Pena, 518 U.S. 187, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996). Additionally, although the statute specifies that legal and equitable remedies are available in such a suit \"to the same extent as ... in the suit against any public or private entity other than a State,\" such language does not reveal congressional intent to equalize remedies available against all defendants for Rehabilitation Act violations, so that states, like private entities, are subject to monetary damages for such violations. See Lane, 518 U.S. at 197-98, 116 S. Ct. 2092.\n\nEx parte Young exception to Eleventh Amendment immunity\nPlaintiff additionally invokes the Ex parte Young exception to Eleventh Amendment immunity. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).\nUnder this doctrine, \"the Eleventh Amendment generally does not bar a suit against a state official in federal court which seeks only prospective equitable relief for violations of federal law, even if the state is immune.\" Elephant Butte Irrigation Dist. of N.M. v. Department of the Interior, 160 F.3d 602, 607 (10th Cir.), cert. denied, 526 U.S. 1019, 119 S. Ct. 1255, 143 L. Ed. 2d 352 (1999). See Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. *1243 3099, 87 L. Ed. 2d 114 (1985). The reasoning behind the Ex Parte Young exception is that if an official has performed his duties in a way that contravenes either the Constitution or a federal law, he does so outside the cloak of state authority, thus a suit against him does not impact the State in its sovereign or governmental capacity. Chaffin, 348 F.3d at 866.\nThe Ex parte Young doctrine is narrow, applies only to prospective relief, and \"does not permit judgments against state officers declaring that they violated federal law in the past.\" Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993). See Roe No. 2 v. Ogden, 253 F.3d 1225, 1233 (10th Cir.2001); Clark v. Stovall, 158 F. Supp. 2d 1215 (D.Kan.2001), aff'd 2002 WL 798259 (10th Cir. Apr.30, 2002) (Table), cert. denied, 537 U.S. 948, 123 S. Ct. 412, 154 L. Ed. 2d 292 (2002).\n\nFour-part test\nThe Tenth Circuit follows a four-part test to determine whether the Ex Parte Young doctrine should be applied:\nFirst, we determine whether the action is against state officials or the state itself. Second, we look at whether the alleged conduct of the state officials constitutes a violation of federal law. Third, we assess whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages impacting the state treasury. Finally, we analyze whether the suit rises to the level of implicating \"special sovereignty interests.\"\nChaffin, 348 F.3d at 866, quoting Robinson v. Kansas, 295 F.3d 1183, 1191 (10th Cir.2002). See ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187-90 (10th Cir.1998) (analyzing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997) and Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)). The court finds it necessary to address only two related factors: the nature of the alleged violation, and the nature of the relief sought.\nThis doctrine requires that there \"be an ongoing violation of federal law\" and that it apply \"only to prospective relief\" and not \"to obtain a declaration that a state officer has violated a plaintiff's federal rights in the past.\" Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487, 495 (10th Cir.1998). The requirement that the relief sought be permissible prospective relief not analogous to a retroactive award of damages impacting the state treasury is \"not a game in semantics\"; rather, the \"overriding question is ... whether the relief will remedy future rather than past wrongs.\" Chaffin, 348 F.3d at 867, quoting Elephant Butte, 160 F.3d at 611.\nPlaintiff's amended complaint expressly seeks damages and retrospective relief against SRS, see e.g., Dk. 14, ¶¶ 31, 33, 44, 45, 47 and 50, but is careful to state only prospective equitable and declaratory relief against the individual defendants in their official capacities, see e.g., ¶ ¶ 28, 43, 45. It states:\nSanders seeks to enforce the Medicaid Act through prospective equitable and declaratory relief against Janet Schalansky, Laura Howard, and Robert Day, in their official capacities for their ongoing violation of federal law.\nDk. 14, para. 28.\nThis and similar recitations in the amended complaint include the proper terminology, yet lack substance. The court has searched in vain for some manner in which any alleged violation of law by defendants could be deemed to be ongoing. It is difficult to view this suit as one to remedy any future wrongs, and it does not appear that the circumstances which *1244 caused SRS to deny plaintiff's request will reoccur with any level of frequency, if at all. Compare Lewis v. New Mexico Dept. of Health, 94 F. Supp. 2d 1217 (D.N.M.2000) (finding plaintiffs sought to remedy future wrongs by seeking to enjoin state officials from further delay in the provision of waiver services).\nAlthough the effects of defendants' acts as they impact the plaintiff may be continuing, a continuing effect of a past violation is not sufficient to warrant prospective injunctive relief. See V-1 Oil Co. v. Utah State Dept. of Public Safety, 131 F.3d 1415, 1422 (10th Cir.1997) (Eleventh Amendment bars claims for \"retroactive monetary reimbursement for licensure and certification fees\" and for declaratory judgment that state officials had violated federal law in the past). The allegations in the complaint provide no indication that prospective injunctive relief would ameliorate the alleged violations, which have already occurred. See Calderon v. Kansas Dep't of Soc. and Rehab. Servs., 181 F.3d 1180, 1184-85 (10th Cir.1999) (finding Ex Parte Young inapplicable and dismissing claims under 11th Amendment where complaint gave no indication that plaintiff might be entitled to injunctive relief for ongoing federal constitutional violations by state officials). The court concludes that plaintiff has failed to state an ongoing federal constitutional violation which prospective injunctive relief could remedy.\nTherefore, the court finds the Ex parte Young exception to Eleventh Amendment immunity inapplicable to plaintiff's claims brought against the individual defendants in their official capacities. Accordingly, Eleventh Amendment immunity protects the defendants against all claims but plaintiff's § 504 claims, as to which the state has waived its immunity.\n\nV. FAILURE TO STATE A CLAIM\n\nA. § 504 claim\nPlaintiff claims that SRS, and not the individual defendants, violated § 504 of the Rehabilitation Act. Defendants contend that plaintiff's action fails to state a claim pursuant to § 504, and thus move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).\n\nStandards governing motions to dismiss\nA court may dismiss a complaint for \"failure to state a claim upon which relief can be granted.\" Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted \"unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,\" GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). \"The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.\" Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir.1991) (\"Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.\") (citations omitted). The Tenth Circuit has observed that the federal rules \"`erect a powerful presumption against rejecting pleadings for failure to state a claim.'\" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).\n*1245 Although a plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Put another way, \"`conclusory allegations without supporting allegations are insufficient to state a claim.'\" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir.2001) (quoting Hall, 935 F.2d at 1110), cert. denied, 535 U.S. 971, 122 S. Ct. 1438, 152 L. Ed. 2d 382 (2002). \"[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim.\" Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir.1990) (district court is not required to accept \"footless conclusions of law\" in deciding motion to dismiss). \"`It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'\" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir.1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986)).\nA court judges the sufficiency of the complaint accepting as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881, 119 S. Ct. 188, 142 L. Ed. 2d 154 (1998); see Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1262 (10th Cir.1998) (court \"need not accept ... conclusory allegations as true.\"). It is not the court's function \"to weigh potential evidence that the parties might present at trial.\" Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). These deferential rules, however, do not allow the court to assume that a plaintiff \"can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged.\" Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989).\n\nSubstance — § 504 claims\nSection 504 of this Act provides that \"[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....\" 29 U.S.C. § 794. This section generally prohibits discrimination against the disabled by recipients of federal funding, including private organizations. 29 U.S.C. § 794(b)(3).\nTo make a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show, among other elements, that he is \"otherwise qualified.\" Schrader v. Fred A. Ray, M.D., P.C. 296 F.3d 968, 971 (10th Cir.2002). See Robinson v. Kansas, 117 F. Supp. 2d 1124, 1144 (D.Kan.2000), aff'd, 295 F.3d 1183 (10th Cir.2002), cert. denied, 539 U.S. 926, 123 S. Ct. 2574, 156 L. Ed. 2d 603 (2002) (a prima facie case requires a plaintiff to prove: (1) he is handicapped under the Act; (2) he is \"otherwise qualified\" to participate in the program; *1246 (3) the program receives federal financial assistance; and (4) the program discriminated against him).\n\"Qualified handicapped person\" is defined, for services other than those with respect to employment or education, as: \"a handicapped person who meets the essential eligibility requirements for the receipt of such services.\" 45 C.F.R. § 84.3.(k). See 45 C.F.R. § 84.4(b)(1)(i). This definition applies to alleged discrimination by health, welfare and social services providers toward applicants attempting to obtain such services. Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768, 771-72 (8th Cir.1987), cert. denied, 485 U.S. 938, 108 S. Ct. 1116, 99 L. Ed. 2d 277 (1988). See generally, 45 C.F.R. § § 84.51, 84.52. This definition therefore governs the court's analysis in this case.\nPlaintiff does not contend that he meets the essential eligibility requirements for the receipt of the service he seeks. Rather, he alleges that the eligibility requirements for receipt of the Vest are erroneous and should be changed by this court. The allegations, taken in the light most favorable to plaintiff, fail to include that he is an \"otherwise qualified individual\" for purposes of this Act, warranting dismissal. See Alexander v. Choate, 469 U.S. 287, 303, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) (refusing to allow a claim under section 504 because the Medicaid Act, 42 U.S.C. § 1396a(a)(19), gives the states substantial discretion in defining the allocation of benefits); Frances J. by Murphy v. Bradley, 1992 WL 390875, * 7 (N.D.Ill.1992) (finding plaintiffs failed to state a claim under § 504 where plaintiffs asked the court to \"stretch the reach of section 504 to interfere in a state agency's discretionary decisionmaking regarding the disbursement of limited funds,\" and did not allege that services that were being provided to non-handicapped citizens were being denied to citizens with handicaps.); Duquette By and Through Duquette v. Dupuis, 582 F. Supp. 1365, 1373 (D.N.H.1984) (finding plaintiff failed to state a cognizable claim under § 504 because § 504 does not modify the funding conditions or medical assistance eligibility requirements of the Medicaid Act).\n\"There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons.\" Traynor v. Turnage, 485 U.S. 535, 549, 108 S. Ct. 1372, 99 L. Ed. 2d 618 (1988). The court defers to the institutional judgment of SRS in determining the appropriate level of benefits to be distributed in relation to the severity of an individual's handicap. See Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir.1987) (\"[t]o determine the scope of the term `otherwise qualified handicapped individual,' courts consider the eligibility requirements of the state program receiving federal funds\"); Doe v. New York University, 666 F.2d 761, 776 (2d Cir.1981) (holding that \"considerable judicial deference must be paid to the evaluation made by the institution itself\"). Because plaintiff does not contend that he meets the essential eligibility requirements for the receipt of the service he seeks, but alleges that the eligibility requirements should be changed, he fails to state a claim under § 504.\nThe court finds it unnecessary to address other issues relative to plaintiff's § 504 claim, including whether plaintiff has sufficiently alleged that any adverse action by SRS was based upon his disability. Although the court need not reach any other claims in this case, given its ruling on immunity, it nonetheless finds as follows, as an alternative basis for its decision.\n\nB. ADA claim\nPlaintiff's ADA claim against the individual defendants in their official capacities *1247 alleges that they are discriminating against him on the basis of his disability because they have refused and continue to refuse:\nA) to provide medically necessary medical treatment because of the plaintiff's particular disability and diagnosis;\nB) to provide airway clearance services that are sufficient in amount, duration and scope to reasonably achieve their medical purpose because of the plaintiff's particular disability and diagnosis;\nC) to provide medically necessary durable medical equipment because of the plaintiff's particular disability and diagnosis and because of his age; and\nD) to refrain from reducing the amount of services to Stuart Sanders solely because of his type of disability, illness or condition.\nDk. 14, p. 17.\nThe terms \"medically necessary medical treatment,\" \"airway clearance services,\" \"medically necessary durable medical equipment,\" and \"services,\" as used above in the amended complaint, are merely various references to the Vest. The essence of plaintiff's disability discrimination claim is that defendants discriminated against him by not providing him with the Vest, based upon the \"type\" of disability he has.\nSection 202 of the ADA prohibits discrimination against the disabled by public entities. It states:\nSubject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.\n42 U.S.C. § 12132. Plaintiff's claim under the ADA is identical in controlling aspects to his claim under the Rehabilitation Act. See Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 n. 7 (10th Cir.1998).\nPlaintiff must prove that (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir.1999); Pahulu v. University of Kansas, 897 F. Supp. 1387, 1389 (D.Kan.1995).\nSpurlock v. Simmons, 88 F. Supp. 2d 1189, 1195 (D.Kan.2000).\nThis claim fails for the same pleading deficiencies which doomed plaintiff's Rehabilitation Act claim. See generally 42 U.S.C. § 12131(2)(defining qualified individuals\" as persons with disabilities who, \"with or without reasonable modifications to rules, policies, or practices, ... mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.\"); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999) (finding the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual meets the essential eligibility requirements).\n\nC. Section 1983 claims\nSRS contends that plaintiff's action against it under § 1983 is subject to dismissal because the state is not a \"person\" for purposes of section 1983.[3]\n*1248 See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir.1995) (explaining that a state or state agency is not a person under § 1983 except to the extent that the plaintiff sues for prospective injunctive relief only). Plaintiff counters that because the state has waived its immunity under the Rehabilitation Act, it is deemed a \"person\" for purposes of § 1983.\nThe court agrees with SRS. The state's waiver of its Eleventh Amendment immunity in a § 504 action does not transform it into a \"person\" under § 1983, because the scope of eleventh amendment immunity and the scope of § 1983 are different issues. Will, 491 U.S. at 64-65, 109 S. Ct. 2304. See Bellamy v. Borders, 727 F. Supp. 247 (D.S.C.1989) (finding a state's waiver of eleventh amendment immunity irrelevant to the issue of whether a state is a person for purposes of § 1983).\n\"A state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'\" Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)). Accordingly, the court examines whether plaintiff's claims against the individual defendants in their official capacities, brought pursuant to § 1983, withstand defendant's motion to dismiss.\n\nMedicaid statutes\nPlaintiff alleges that the Medicaid statute creates a federal right to particular medical equipment which is enforceable under 42 U.S.C. § 1983 and which defendants violated. Specifically, plaintiff contends that the three official defendants \"fail[ed] to provide medically necessary durable medical equipment\" in violation of the Medicaid statutes stated below. Defendants counter that the alleged violations of the Medicaid statute cannot be enforced by Medicaid recipients by use of 42 U.S.C. § 1983.\nPlaintiff states his reliance upon the following Medicaid statutes as a basis for his cause of action under § 1983:\n42 U.S.C. § 1396a(a)(8)-A State plan for medical assistance must —\n(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals;\n42 U.S.C. § 1396a(a)(17) — A State plan for medical assistance must — (17) ... include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter ...\nFor purposes of convenience, the court shall refer to these as the \"reasonable promptness\" and the \"reasonable standards\" provisions, respectively.\nThe Tenth Circuit has not addressed whether the Medicaid statutes noted above create a federal right to particular medical equipment which is enforceable under 42 U.S.C. § 1983. Although the Tenth Circuit in Lewis found that a procedural due process claim under 42 U.S.C. § 1396a(a)(8) passed the \"wholly insubstantial or frivolous\" test, the Court did not decide the merits of that claim. See Lewis, 261 F.3d at 977 (noting plaintiff's argument that state officials failed to process their applications for waiver services in the manner required by federal law; *1249 \"they do not, quite wisely, argue that the Medicaid statutes create a substantive property interest in waiver services to which they are entitled.\")\nOther courts have found that the reasonable promptness provision of § 1396a(a)(8) provides a cause of action under § 1983. See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002)(finding a § 1983 cause of action arising from the \"reasonable promptness\" provision of 42 U.S.C. § 1396a(a)(8) under the state model waiver plan as approved, because the strictures of the statute \"should apply with no less force to opt-in plans such as the waiver program.\"); Doe v. Chiles, 136 F.3d 709, 714-15, 719 (11th Cir.1998) (upholding a § 1983 cause of action under § 1396a(a)(8) as applied to an optional program).\nHowever, in such cases, the essence of plaintiffs' claims was that state officials had failed to process their applications for waiver services in the timely manner required by federal law. See e.g., Bryson, 308 F.3d 79 (remanding to determine whether the state was \"reasonably prompt\" in filling empty slots in its Medicaid waiver program for individuals with acquired brain disorders); Doe, 136 F.3d 709 (affirming the district court's order which enjoined officials from failing to provide assistance within a \"reasonable\" time period, not to exceed 90 days). Plaintiff's claim in this case is that the Medicaid statutes create a substantive property interest in a specific piece of equipment to which he is allegedly entitled. Such a claim is different in kind than the claims asserted in the above cases. The court therefore finds no guidance in the cases noted above.\nThe court is aware that Section 1983, which prohibits persons who act under color of law from depriving individuals of \"any rights, privileges, or immunities secured by the Constitution and laws\" of the United States, creates a cause of action for federal statutory as well as constitutional rights, Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980), including, in some circumstances, violations of the Medicaid Act, Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 524, 110 S. Ct. 2510, 110 L.Ed.2d 455(1990). Where a right of action has been found, however, is has generally been based upon the three-part test in Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997), which provides:\nFirst, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so \"vague and amorphous\" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.\n520 U.S. at 340-41, 117 S. Ct. 1353 (citations omitted).\nThe Supreme Court in Gonzaga University v. Doe, 536 U.S. 273, 282, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002), rejected the notion that Blessing\"permit[s] anything short of an unambiguously conferred right to support a cause of action brought under § 1983.\" Specifically, Gonzaga stated that some courts interpreted Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied right of action. 536 U.S. at 283, 122 S. Ct. 2268. The Gonzaga Court stated that for a statute to confer a private right of action, the statutory language must be \"`phrased in *1250 terms of the persons benefited.'\" Id. at 284, 122 S. Ct. 2268 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 692 n. 13, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979)).\nThus, to support a cause of action under § 1983, the statute must contain rights-creating language unequivocally conferring an individual right. As an example of the kind of language that would pass this test, the Court cited Title IX, which states: \"No person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.\" Id. (quoting 20 U.S.C. § 1681(a)) (emphasis in original).\nPlaintiff does not contend that the authorizing provision of the Medicaid Act[4] passes the Gonzaga test, perhaps aware of the weight of authority to the contrary. See M.A.C. v. Betit., 284 F. Supp. 2d 1298, 1306 (D.Utah 2003) (finding the \"authorizing provision of the Medicaid Act does not contain rights-creating language unequivocally conferring an individual right to support a cause of action under § 1983\"); Sabree v. Houston, 245 F. Supp. 2d 653, 659 (E.D.Pa.2003).\nThe court therefore examines whether the two particular provisions[5] of the Medicaid Act relied upon by plaintiff pass the Gonzaga test. The first subsection requires that a State plan for medical assistance \"include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which are consistent with the objectives of this subchapter.\" 42 U.S.C. § 1396a(a)(17). Such language imposes only a duty on the State, and creates no rights in individuals, and thus does not support a right of action under § 1983.\nThe language of 42 U.S.C. § 1396a(a)(8) raises a closer question, in requiring a State plan for medical assistance to \"provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.\" This language creates a duty of the State to furnish \"medical assistance\" with reasonable promptness, but does not contain the explicit rights-creating language described in Gonzaga. See M.A.C. v. Betit, 284 F.Supp.2d at 1306 (D.Utah 2003) (finding the reasonable promptness provision merely places certain conditions upon a state seeking Medicaid funding). The court is not aware of any post-Gonzaga case which has held to the contrary.\nFurther, assuming, arguendo, that the State's duty noted above gives rise to a correlative right of an eligible individual to receive \"medical assistance\" in a reasonably prompt manner, plaintiff's argument nonetheless fails because the statutory reference to \"assistance\" appears to refer to \"financial assistance rather than to actual medical services.\" Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003) (finding \"what is required is a prompt determination of eligibility and prompt provision of funds to eligible individuals to enable them to obtain the covered medical services that they need, see 42 C.F.R. §§ 435.911(a), 435.930(a)-(b); a requirement of prompt treatment would amount to a direct regulation *1251 of medical services.\") See 42 U.S.C. § 1396d (\"The term `medical assistance' means payment of part or all of the cost of the following care and services ...\") The statute simply provides no support for plaintiff's claim that he has a right or entitlement to a specific piece of durable medical equipment.\nFor the reasons set forth above, the court finds no private right of action under the medicaid statutes alleged which is enforceable under 42 U.S.C. § 1983.\n\nEqual Protection clause\nPlaintiff additionally claims a violation of the equal protection clause by the individual defendants acting in their official capacities. The equal protection clause in Fourteenth Amendment to the United States Constitution declares that \"[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.\" This clause \"keeps governmental decision makers from treating differently persons who are in all relevant respects alike.\" Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).\nThe Equal Protection Clause does not generally require accommodations on behalf of the disabled by the states. See Garrett, 121 S.Ct. at 964; Thompson, 278 F.3d at 1031. The court's task in this case is limited to determining whether the challenged statute is rationally related to a legitimate legislative goal.\nIt is well established that for purposes of the equal protection analysis, the disabled do not constitute a suspect class. Welsh v. City of Tulsa, 977 F.2d 1415, 1420 (10th Cir.1992). Nor is there a fundamental constitutional right to receive Medicaid benefits. \"[W]hen reviewing class distinctions drawn in social legislation not pertaining to a fundamental right or a suspect class, our review is [therefore] limited to determining whether the statute is rationally related to legitimate legislative goals.\" Hassan v. Wright, 45 F.3d 1063, 1068 (7th Cir.1995) (internal quotation marks omitted).\nVaughn v. Sullivan, 906 F. Supp. 466 (S.D.Ind.1995). See generally, In Spragens v. Shalala, 36 F.3d 947 (10th Cir.1994) (finding Social Security regulations that distinguished between blind and non-blind disabled recipients did not violate the equal protection clause).\nPlaintiff's equal protection claim is that SRS had no rational basis for denying him the Vest because he has the same symptom as those who receive the Vest, although he lacks the same diagnosis. This claim, as expressed in his amended complaint, states:\nThe exclusion of [the Vest] for Stuart Sanders lacks a rational basis because the device is medically necessary and appropriate for Stuart Sander's multiple conditions and because other eligible Medicaid beneficiaries with the identical symptoms are able to obtain the device. There is no rational distinction between the mucus that accumulates in Stuart Sander's lungs due to his severe hyper-secretory condition that has developed as a result of multiple sclerosis and mucus that accumulates in patients with cystic fibrosis. Both conditions express the same symptom of thick mucus in the airways and both conditions require effective airway clearance.\nDk 14, ¶ -19.\nThe court finds that the relevant comparison in this analysis is not between the substance in plaintiff's lungs and the substance in the lungs of persons with cystic fibrosis. Rather, the proper inquiry is solely whether SRS's policy or regulation which led to its denial of plaintiff's request for the Vest is rationally related to a legitimate regulatory goal. The underlying federal purpose is to provide the service to *1252 those in greatest need of it. Ohlson v. Weil, 953 P.2d 939, 944 (Colo.App.1997). When matters of health and safety are at issue, great judicial deference is owed to the legislative judgment. Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S. Ct. 461, 99 L. Ed. 563 (1955). SRS's articulated policy is to determine payment for the Vest based on medical necessity. This policy is rationally related to the legitimate governmental interest in limiting the service to those in greatest need of it.\nBut even if SRS denied the Vest on the grounds claimed by plaintiff, no cause of action is stated. SRS could rationally determine that the hardships facing institutionalized persons who have cystic fibrosis and are under 21 years of age are more substantial than those facing persons otherwise disabled. At the very least, \"protecting the fisc provides a rational basis for [the state's] line drawing in this instance.\" Hassan, 45 F.3d at 1069; see also Cherry by Cherry v. Sullivan, 30 F.3d 73, 75 (7th Cir.1994) (states have \"a legitimate interest in controlling Medicaid expenditures and seeing that Medicaid dollars are allotted to only the truly needy recipients\"). Plaintiff thus fails to state a claim for relief under the equal protection clause.\n\nProcedural due process\nPlaintiff further contends that the individual defendants in their official capacities violated his \"substantive and procedural due process rights\" under the Fourteenth Amendment to the United States Constitution \"because the defendants have arbitrarily denied the Vest System without regard to his medical need for the equipment.\" Dk. 14, ¶ 19.\n\"To state a claim for a violation of due process, plaintiff must first establish that it has a protected ... interest and, second, that defendants' actions violated that interest. (Citation omitted).\" Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1216 (10th Cir.2003).\n... the Constitution does not protect procedure for procedure's sake. The Fourteenth Amendment, by its terms, does not guarantee due process; it protects against deprivations of life, liberty, or property without due process. Unless a person asserts some basis for contesting a governmental deprivation of life, liberty, or property, he is not injured by defective procedures he has no occasion to invoke.\nRector v. City and County of Denver, 348 F.3d 935, 943-44 (10th Cir.2003).\nPlaintiff's allegations, even when viewed in the light most favorable to plaintiff, fail to state a claim of a procedural due process violation. Plaintiff alleges no protected property interest in the Vest, i.e., that the procedures, if followed by SRS, would have required him to obtain the Vest. \"A property interest includes a `legitimate claim of entitlement' to some benefit created and defined by `existing rules or understandings that stem from an independent source such as state law.' \"Id., citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Nor does the amended complaint contend that plaintiff was deprived of any liberty interest, or was due any more process than he already received.\n\nSubstantive due process\nPlaintiff alleges that \"the defendants have arbitrarily denied the Vest System without regard to his medical need for the equipment.\" Dk. 14, ¶ 19. To state a substantive due process claim based upon a specific use of executive power, however, the complaint must allege that the decision is arbitrary, or shocking to the conscience. See Butler v. Rio Rancho Public Schools Bd. of Educ., 341 F.3d 1197, 1200 1201 (10th Cir.2003).\n*1253 This district has traditionally applied the \"shock the conscience\" test in examining claims of substantive due process.\n\"The Due Process Clause `is not a guarantee against incorrect or ill-advised [government] decisions.'\" Rather, the Due Process Clause \"was intended to prevent government `from abusing [its] power, or employing it as an instrument of oppression.' \"Accordingly, conduct that is arbitrary or conduct that \"shocks the conscience\" in a constitutional sense are the only governmental actions that can form the basis for a substantive due process claim.\nBecerra v. Unified Government of Wyandotte County/Kansas City, Kansas, 272 F. Supp. 2d 1223, 1229 (D.Kan.2003) (footnotes omitted). See Rector v. City and County of Denver, 348 F.3d 935 (10th Cir.2003).\nPlaintiff fails to allege facts which, if true, would suffice to demonstrate that the refusal to grant him a Vest violated the applicable standard. In short, nothing alleged in the complaint shocks the conscience of the court. Nor has plaintiff suggested that the Medicaid payment procedures implicate any historically protected fundamental rights.[6]\nAccordingly, the court finds that plaintiff's allegation of a due process violation fails to state a claim.\nIT IS THEREFORE ORDERED that defendants' motions to dismiss (Dk. 19 & 16) are granted, and that plaintiff's motion for oral argument (Dk.26) is denied.\nNOTES\n[1] Defendants do not contend that plaintiff failed to exhaust his administrative remedies the ADA or the Rehabilitation Act.\n[2] The statute provides that a State shall not be immune under the Eleventh Amendment from suit in Federal court for a violation of section 504 of the Rehabilitation Act, title IX, the Age Discrimination Act, title VI of the Civil Rights Act, \"or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.\" Plaintiff has not shown that the ADA, which prohibits discrimination by public and private entities, or § 1983, is among the federal statutes prohibiting discrimination \"by recipients of Federal financial assistance.\"\n[3] 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...\n[4] 42 U.S.C. § 1396.\n[5] Although plaintiff cites to a third provision, commonly known as the \"equal access\" provision, in his brief, his pleading contains no reference to that statute, 42 U.S.C. § 1396a(a)(3)(A), thus the court finds it unnecessary to address it herein. Had the court done so, however, it would have found no private right of action by virtue of its language, as measured against the requirements clarified in Gonzaga.\n[6] \"Executive policymaking actions or legislative acts constitute substantive due process violations only if plaintiffs objectively show that such rights are rooted in our nation's history and provide a careful description of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).\" Rector v. City and County of Denver, 348 F.3d 935, 948 (10th Cir.2003).\n\n", "ocr": false, "opinion_id": 2427282 } ]

[ "535 U.S. 1000" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/535/535.US.1000.01-8382.html", "author_id": null, "opinion_text": "535 U.S. 1000\n TOLBERTv.MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS.\n No. 01-8382.\n Supreme Court of the United States.\n April 15, 2002.\n \n 1\n C. A. 11th Cir. Certiorari denied.\n \n ", "ocr": false, "opinion_id": 119649 } ]

[ "119 U.S. 407", "7 S. Ct. 234", "30 L. Ed. 425", "1886 U.S. LEXIS 2006" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2258, "opinion_text": "\n119 U.S. 407 (1886)\nUNITED STATES\nv.\nRAUSCHER.\nSupreme Court of United States.\nSubmitted March 2, 1886.\nDecided December 6, 1886.\nCERTIFICATE OF DIVISION OF OPINION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.\n*408 Mr. Solicitor General Goode for the United States.\nMr. A.J. Dittenhoefer for Rauscher submitted on his brief.\nMR. JUSTICE MILLER delivered the opinion of the court.\n*409 This case comes before us on a certificate of division of opinion between the judges holding the Circuit Court of the United States for the Southern District of New York, arising after verdict of guilty, and before judgment, on a motion in 7 arrest of judgment.\nThe prisoner, William Rauscher, was indicted by a grand jury, for that, on the 9th day of October, 1884, on the high seas, out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction thereof, he, the said William Rauscher, being then and there second mate of the ship J.F. Chapman, unlawfully made an assault upon Janssen, one of the crew of the vessel of which he was an officer, and unlawfully inflicted upon said Janssen cruel and unusual punishment. This indictment was found under § 5347 of the Revised Statutes of the United States.\nThe statement of the division of opinion between the judges is in the following language:\n\"This cause coming on to be heard at this term, before judgment upon the verdict, on a motion in arrest of judgment, and also on a motion for a new trial before the two judges above mentioned, at such hearing the following questions occurred:\n\"First. The prisoner having been extradited upon a charge of murder on the high seas of one Janssen, under § 5339 Rev. Stat., had the Circuit Court of the Southern District of New York jurisdiction to put him to trial upon an indictment under § 5347 Rev. Stat., charging him with cruel and unusual punishment of the same man, he being one of the crew of an American vessel of which the defendant was an officer, and such punishment consisting of the identical acts proved in the extradition proceedings?\n\"Second. Did or not the prisoner, under the extradition treaty with Great Britain, having been surrendered upon a charge of murder, acquire a right to be exempt from prosecution upon the charge set forth in the indictment, without being first afforded an opportunity to return to Great Britain?\n\"Third. Was it error on the part of the trial judge to overrule a plea to the jurisdiction of the court to try the indictment *410 under § 5347 of the United States Revised Statutes, charging the accused with cruel and unusual punishment of one Janssen, one of the crew of a vessel of which accused was an officer, it having been established upon said plea that the accused was extradited under the extradition treaty with Great Britain, upon the charge of murder of the same Janssen, under § 5339 of the United States Revised Statutes?\n\"Fourth. Was it error on the part of the trial judge to refuse to direct a verdict of acquittal, after it had been proven that the accused was extradited under the extradition treaty with Great Britain, upon the charge of murder, it also appearing that in the proceedings preliminary to the warrant of extradition the same act was investigated, and the same witnesses examined, as at the trial?\n\"In respect to each of which questions the judges aforesaid were divided in opinion.\n\"Wherefore, at the same term, at the request of the United States attorney, they have caused the points above stated to be certified under the seal of this court, together with a copy of the indictment and an abstract of the record, to the Supreme Court of the United States for final decision according to law.\n \"WM. J. WALLACE.\n \"CHAS. L. BENEDICT.\"\nThe treaty with Great Britain, under which the defendant was surrendered by that government to ours upon a charge of murder, is that of August 9, 1842, styled \"A treaty to settle and define the boundaries between the territories of the United States and the possessions of Her Britannic Majesty in North America; for the final suppression of the African slave trade; and for the giving up of criminals, fugitive from justice, in certain cases.\" 8 Stat. 576.\nWith the exception of this caption, the tenth article of the treaty contains all that relates to the subject of extradition of criminals. That article is here copied, as follows:\n\"It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up *411 to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper Executive authority, that a warrant may issue for the surrender of such fugitive.\"\nNot only has the general subject of the extradition of persons charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late years by the executive departments and statesmen of the governments of the civilized portion of the world, by various publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country and in Great Britain.\nIt is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the States where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government with another. Prior to these treaties, and apart from them, *412 it may be stated as the general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law.\nWhether in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the States, and in the absence of any act of Congress upon the subject, a State can, through its own judiciary or executive, surrender him for trial to such foreign nation, is a question which has been under consideration by the courts of this country without any very conclusive result.\nIn the case of Daniel Washburn, 4 Johns. Ch. 106; S.C. 8 Am. Dec. 548, who was arrested on a charge of theft committed in Canada, and brought before Chancellor Kent upon a writ of habeas corpus, that distinguished jurist held that, irrespective of all treaties, it was the duty of a State to surrender fugitive criminals. The doctrine of this obligation was presented with great ability by that learned jurist; but shortly afterward Chief Justice Tilghman, in the case of Short v. Deacon, 10 S. & R. 125, in the Supreme Court of Pennsylvania, held the contrary opinion — that the delivery up of a fugitive was an affair of the executive branch of the national government, to which the demand of the foreign power must be addressed; that judges could not legally deliver up, nor could they command the executive to do so; and that no magistrate in Pennsylvania had the right to cause a person to be arrested in order to afford the President of the United States an opportunity to deliver him up, because the President had already declared he would not do so.\nIn the case of Holmes v. Jennison, 14 Pet. 540, on a writ of error to the Supreme Court of Vermont, it appears that application had been made to the President for the extradition of Holmes, a naturalized citizen of the United States, who was *413 charged with having committed murder in Lower Canada. There being then no extradition treaty between the two governments, the President declined to act, through an alleged want of power. Holmes having been arrested under authority from Governor Jennison, of Vermont, obtained a writ of habeas corpus from the Supreme Court of that State, and the sheriff returned that he was detained under an order of the governor, which commanded the sheriff to deliver him up to the authorities of Lower Canada, and the Supreme Court of the State held the return sufficient. On the writ of error from the Supreme Court of the United States two questions were presented, first, whether a writ of error would lie in such case from that court to the Supreme Court of the State; and, second, whether the judgment of the latter court was right. The eight judges who heard the case in this court were equally divided in opinion on the first of these questions, and therefore no authoritative decision of the principal question could be made. A very able and learned opinion in favor of the appellate jurisdiction of the Supreme Court of the United States, and against the right attempted to be exercised by the governor of Vermont, was delivered by Chief Justice Taney, with whom concurred Justices Story, McLean, and Wayne. Justices Thompson, Barbour, and Catron delivered separate opinions, denying the power of the Supreme Court of the United States to revise the judgment of the Supreme Court of Vermont. These latter, with whom concurred Justice Baldwin, did not express any clear opinion upon the power of the authorities of the State of Vermont, either executive or judicial, to deliver Holmes to the government of Canada; but, upon return of the case to the Supreme Court of that State, it seems that that court was satisfied by the arguments of the Chief Justice and those who concurred with him of the error of its position, and Holmes was discharged. In the final disposition of the case the court uses the following language:\n\"I am authorized by my brethren,\" says the Chief Justice, \"to say, that, on an examination of this case, as decided by the Supreme Court of the the United States, they think, if the return had been as it now is, a majority of that court would have *414 decided that Holmes was entitled to his discharge, and that the opinion of a majority of the Supreme Court of the United States was also adverse to the exercise of the power in question by any of the separate States of the Union. The judgment of the court therefore is, that Holmes be discharged from his imprisonment.\" Ex parte Holmes, 12 Vt. 631.\nThe Court of Appeals of New York, in the case of The People, &c. v. Curtis, 50 N.Y. 321, also decided that an act of the Legislature of that State authorizing the rendition to foreign States of fugitives from justice was in conflict with the Constitution of the United States. This was in 1872.\nThe question has not since arisen so as to be decided by this court, but there can be little doubt of the soundness of the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country, which has undoubtedly been conferred upon the Federal government; and that it is clearly included in the treaty making power and the corresponding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the states to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the state, as there is none why they should in their own name make demand upon foreign nations for the surrender of such fugitives.\nAt this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become the subject of negotiation between a state of this Union and a foreign government.\nFortunately, this question, with others which might arise in the absence of treaties or acts of Congress on the subject, is now of very little importance, since, with nearly all the nations of the world with whom our relations are such that fugitives from justice may be found within their dominions or within ours, we have treaties which govern the rights and conduct of *415 the parties in such cases. These treaties are also supplemented by acts of Congress, and both are in their nature exclusive.\nThe case we have under consideration arises under one of these treaties made between the United States and Great Britain, the country with which, on account of our intimate relations, the cases requiring extradition are likely to be most numerous. This treaty of 1842 is supplemented by the acts of Congress of August 12, 1848, 9 Stat. 302, and March 3, 1869, 15 Stat. 337, the provisions of which are embodied in §§ 5270, 5272, and 5275 of the Revised Statutes, under Title LXVI, Extradition.\nThe treaty itself, in reference to the very matter suggested in the questions certified by the judges of the Circuit Court, has been made the subject of diplomatic negotiation between the Executive Department of this country and the government of Great Britain in the cases of Winslow and Lawrence. Winslow, who was charged with forgery in the United States, had taken refuge in England, and, on demand being made for his extradition, the Foreign Office of that country required a preliminary pledge from our government that it would not try him for any other offence than the forgery for which he was demanded. To this Mr. Fish, the Secretary of State, did not accede, and was informed that the reason of the demand on the part of the British government was that one Lawrence, not long previously extradited under the same treaty, had been prosecuted in the courts of this country for a different offence from that for which he had been demanded from Great Britain, and for the trial of which he was delivered up by that government. Mr. Fish defended the right of the government or state in which the offence was committed to try a person extradited under this treaty for any other criminal offence, as well as for the one for which the extradition had been demanded; while Lord Derby, at the head of the Foreign Office in England, construed the treaty as requiring the government which had demanded the extradition of an offender against its laws for a prescribed offence, mentioned in the treaty and in the demand for his extradition, to try him for that offence and for no other. The correspondence is an able one upon both sides, *416 and presents the question which we are now required to decide, as to the construction of the treaty and the effect of the acts of Congress already cited, and of a statute of Great Britain of 1870 on the same subject. The negotiations between the two governments, however, on that subject were inconclusive in any other sense than that Winslow was not delivered up and Lawrence was never actually brought to judgment for any other offence than that for which his extradition was demanded.\nThe question was also discussed in the House of Lords, and Lord Derby stated and defended his views of the construction of the treaty with marked ability, while he conceded that the act of Parliament on that subject, which declared that the person extradited could be tried for no other offence than that for which he had been demanded, had no obligatory force upon the United States as one of the parties to the treaty. Foreign Relations of the United States, 1876-7, pp. 204-307.\nThe subject was also very fully discussed by Mr. William Beach Lawrence, a very learned authority on matters of international law living in this country, in several published articles. Albany Law Journal, vol. 14, p. 85; vol. 15, p. 224; vol. 16, p. 361. In these the author, with his usual ability, maintains the proposition, that a person delivered up under this treaty on a demand charging him with a specific offence, mentioned in it, can only be tried by the country to which he is delivered for that specific offence, and is entitled, unless found guilty of that, to be restored in safety to the country of his asylum at the time of his extradition.\nA very able article arising out of the same public discussion at that time, to wit, 1876, is found in the American Law Review, said to have been written by Judge Lowell, of the United States Court at Boston, in which, after an examination of the authorities upon the general rule, independent of treaties, as found in the continental writers on international law, he says, that rule is, that the person whose extradition has been granted, cannot be prosecuted and tried except for the crime for which his extradition has been obtained; and, entering upon the question of the construction of the treaty of 1842, he gives to it the same effect in regard to that matter. 10 Am. Law Review, 1875-6, p. 617.\n*417 Mr. David Dudley Field, in his draft of an outline for an international code, published about the same time, adopts the same principle. Field's International Code, § 237, p. 122. It is understood that the rule which he lays down represents as well what he understands to be existing law, as also what he supposes it should be.\nA very learned and careful work, published in this country by Mr. Spear, in 1879, and a second edition in 1884, after considering all the correspondence between our government and Great Britain upon the subject, the debate in the House of Lords, the articles of Mr. Lawrence and Judge Lowell, as well as the treatise of Mr. Clarke, an English writer, with a very exhaustive examination of all the decisions in this country relating to this matter, arrives at the same conclusion. This examination by Mr. Spear is so full and careful, that it leaves nothing to be desired in the way of presentation of authorities.\nThe only English work on the subject of extradition we have been able to find which discusses this subject is a small manual by Edward Clarke of Lincoln's Inn, published in 1867. He adopts the same view of the construction of this treaty and of the general principles of international law upon the subject which we have just indicated.\nTurning to seek in judicial decisions for authority upon the subject, as might be anticipated we meet with nothing in the English courts of much value, for the reason that treaties made by the Crown of Great Britain with other nations are not in those courts considered as part of the law of the land, but the rights and the duties growing out of those treaties are looked upon in that country as matters confided wholly for their execution and enforcement to the executive branch of the government. Speaking of the Ashburton treaty of 1842, which we are now construing, Mr. Clarke says, that, \"in England the common law being held not to permit the surrender of a criminal, this provision could not come into effect without an Act of Parliament, but in the United States a treaty is as binding as an Act of Congress.\" Clarke on Extradition, 38.\nThis difference between the judicial powers of the courts of Great Britain and of this country in regard to treaties is thus *418 alluded to by Chief Justice Marshall in the Supreme Court of the United States:\n\"A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.\" Foster v. Neilson, 2 Pet. 253, 314.\nThis whole subject is fully considered in the Head Money Cases, 112 U.S. 580, in which the effect of a treaty as a part of the law of the land, as distinguished from its aspect as a mere contract between independent nations, is expressed in the following language:\n\"A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or *419 inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress, by its declaration that `this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.' A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.\" pp. 598-9. See also Chew Heong v. United States, 112 U.S. 536, 540, 565.\nThe treaty of 1842 being, therefore, the supreme law of the land, which the courts are bound to take judicial notice of, and to enforce in any appropriate proceeding the rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as pertinent to the questions certified by the circuit judges, into the true construction of the treaty. We have already seen that, according to the doctrine of publicists and writers on international law, the country receiving the offender against its laws from another country had no right to proceed against him for any other offence than that for which he had been delivered up. This is a principle which commends itself as an appropriate adjunct to the discretionary exercise of the power of rendition, because it can hardly be supposed that a government which was under no treaty obligation nor any absolute obligation of public duty to seize a person who had found an asylum within its bosom and turn him over to another country for trial, would be willing to do this, unless a case was made of some specific offence of a character which justified the government in depriving the party of his asylum. It is unreasonable that the country of the asylum should be expected to deliver up such person to be dealt with by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party. In exercising its *420 discretion, it might be very willing to deliver up offenders against such laws as were essential to the protection of life, liberty, and person, while it would not be willing to do this on account of minor misdemeanors or of a certain class of political offences in which it would have no interest or sympathy. Accordingly, it has been the policy of all governments to grant an asylum to persons who have fled from their homes on account of political disturbances, and who might be there amenable to laws framed with regard to such subjects, and to the personal allegiance of the party. In many of the treaties of extradition between the civilized nations of the world, there is an express exclusion of the right to demand the extradition of offenders against such laws, and in none of them is this class of offences mentioned as being the foundation of extradition proceedings. Indeed, the enumeration of offences in most of these treaties, and especially in the treaty now under consideration, is so specific, and marked by such a clear line in regard to the magnitude and importance of those offences, that it is impossible to give any other interpretation to it than that of the exclusion of the right of extradition for any others.\nIt is, therefore, very clear that this treaty did not intend to depart in this respect from the recognized public law which had prevailed in the absence of treaties, and that it was not intended that this treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offences enumerated in the treaty. This is not only apparent from the general principle that the specific enumeration of certain matters and things implies the exclusion of all others, but the entire face of the treaty, including the processes by which it is to be carried into effect, confirms this view of the subject. It is unreasonable to suppose that any demand for rendition framed upon a general representation to the government of the asylum, (if we may use such an expression,) that the party for whom the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any particular offence with which he was charged, and even without specifying an offence mentioned in the treaty, would receive any serious attention; and yet such *421 is the effect of the construction that the party is properly liable to trial for any other offence than that for which he was demanded, and which is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offence in making the demand. But, so far from this being admissible, the treaty not only provides that the party shall be charged with one of the crimes mentioned, to wit, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, or the utterance of forged paper, but that evidence shall be produced to the judge or magistrate of the country of which such demand is made, of the commission of such an offence, and that this evidence shall be such as according to the law of that country would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the party is arrested in a country where he is peaceably and quietly living, and to the protection of whose laws he is entitled, are to have no influence in limiting the prosecution in the country where the offence is charged to have been committed, there is very little use for this particularity in charging a specific offence, requiring that offence to be one mentioned in the treaty, as well as sufficient evidence of the party's guilt to put him upon trial for it. Nor can it be said that, in the exercise of such a delicate power under a treaty so well guarded in every particular, its provisions are obligatory alone on the State which makes the surrender of the fugitive, and that that fugitive passes into the hands of the country which charges him with the offence, free from all the positive requirements and just implications of the treaty under which the transfer of his person takes place. A moment before he is under the protection of a government which has afforded him an asylum from which he can only be taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding was intended to secure.\nIf upon the face of this treaty it could be seen that its sole *422 object was to secure the transfer of an individual from the jurisdiction of one sovereignty to that of another, the argument might be sound; but as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.\nThe opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offence was committed to try the person for the crime alone for which he was extradited, and that once being within the jurisdiction of that country, no matter by what contrivance or fraud or by what pretence of establishing a charge provided for by the extradition treaty he may have been brought within the jurisdiction, he is, when here, liable to be tried for any offence against the laws as though arrested here originally. This proposition of the absence of express restriction in the treaty of the right to try him for other offences than that for which he was extradited, is met by the manifest scope and object of the treaty itself. The caption of the treaty, already quoted, declaring that its purpose is to settle the boundary line between the two governments; to provide for the final suppression of the African slave trade; adds, \"and for the giving up of criminals, fugitive from justice, in certain cases.\" The treaty, then, requires, as we have already said, that there shall be given up, upon requisitions respectively made by the two governments, all persons charged with any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribunal, in which, before he shall be delivered up on this demand, it must be shown that the offence for which *423 he is demanded is one of those enumerated, and that the proof is sufficient to satisfy the court or magistrate before whom this examination takes place that he is guilty, and such as the law of the State of the asylum requires to establish such guilt, leave no reason to doubt that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offence and for no other.\nIf there should remain any doubt upon this construction of the treaty itself, the language of two acts of Congress, heretofore cited, incorporated in the Revised Statutes, must set this question at rest. It is there declared, Rev. Stat. § 5272, the two preceding sections having provided for a demand upon this country and for the inquiry into the guilt of the party, that \"it shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so committed to be delivered to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly.\"\nFor the protection of persons brought into this country by extradition proceedings from a foreign country, § 5275 of the Revised Statues provides:\n\"Whenever any person is delivered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offences, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe keeping and protection of the accused.\"\nThe obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United *424 States, is that the party shall not be delivered up by this government to be tried for any other offence than that charged in the extradition proceedings; and that, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offence than that with which he was charged in those proceedings, until he shall have had a reasonable time to return unmolested to the country from which he was brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons brought from a foreign country into this under such proceedings.\nThat right, as we understand it, is that he shall be tried only for the offence with which he is charged in the extradition proceedings and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition.\nThis precise question has been frequently considered by courts of the highest respectability in this country. One of the earliest cases is that of United States v. Caldwell, 8 Blatchford, 131. Caldwell was extradited from Canada, in 1870, under the treaty of 1842 with Great Britain, charged with forgery. He was not tried for this offence, however, but was tried and convicted for bribing an officer of the United States — an offence not designated in that treaty. In the Circuit Court of the United States, held by Judge Benedict, Caldwell called the attention of the court to this fact, and claimed that under the treaty he could not be tried for any offence committed prior to his extradition other than the one charged in the proceedings. To this plea the government interposed a demurrer, which was sustained, and the prisoner was tried, convicted, and punished for the bribery. Judge Benedict said, that, \"while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such complaints *425 do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise... . But whether extradited in good faith or not, the prisoner, in point of fact, is within the jurisdiction of the court, charged with a crime therein committed; and I am at a loss for even a plausible reason for holding, upon such a plea as the present, that the court is without jurisdiction to try him... . And I cannot say that the fact that the defendant was brought within the jurisdiction by virtue of a warrant of extradition for the crime of forgery affords him a legal exemption from prosecution for other crimes by him committed.\"\nThe next case, tried before the same court, was that of United States v. Lawrence, 13 Blatchford, 295. Lawrence was extradicted from Ireland and brought into this country under the treaty of 1842 on a charge of a single and specific forgery. He was indicted and put upon his trial for other forgeries than that specified in the extradition proceedings. To his trial for any other forgery than that he objected by proper pleadings, on the ground that under the treaty with Great Britain he could not be so tried for other forgeries. Judge Benedict held that he could be so tried, and he was tried and a verdict of guilty was rendered. It appears, however, but not very clearly from any report of the case, that, though tried and convicted, and having pleaded guilty to the other offences of forgery, he was admitted to bail and no judgment was ever pronounced. Judge Benedict, adverting to the case of United States v. Caldwell, and to a decision of the Court of Appeals of New York in Adriance v. Lagrave, 59 N.Y. 110, proceeded to say:\n\"This ground of defence is, therefore, dismissed, with the remark that an offender against the justice of his country can acquire no rights by defrauding that justice. Between him and the justice he has offended, no rights accrue to the offender by flight. He remains at all times, and everywhere, liable to be called to answer to the law for his violations thereof, provided he comes within the reach of its arm.\"\nAnd in addition to the proposition urged in the Caldwell *426 case, that a question of that character arising on the treaty is exclusively for the consideration of the Executive Departments of the respective governments, he proceeds to say:\n\"It is true that it [the act of Congress] assumes, as well it may, that the offender will be tried for the offence upon which his surrender is asked, but there are no words indicating that he is to be protected from trial for all other offences. The absence of any provision indicating an intention to protect from prosecution for other offences, in a statute having no other object than the protection of extradited offenders, is sufficient to deprive of all force the suggestion that the act of 1869, as a legislative act, gives to the treaty of 1842 the construction contended for by the accused.\" There are perhaps two or three other cases in which the circuit or district judges of the United States have followed these decisions rendered by Judge Benedict.\nOn the other hand, Judge Hoffman, of the District Court of California, in the case of United States v. Watts, 8 Sawyer, 370, decided that the defendant, having been surrendered under the extradition treaty of 1842 by Great Britain, could not be tried for other offences than those enumerated in that treaty, and supported this view with a very learned and able opinion. Judge Deady, of the District Court of Oregon, in Ex parte Hibbs, 26 Fed. Rep. 421, 431, February 4, 1886, held, in regard to the treaty of 1842, that for a government to detain a person extradited under that treaty for any other charge than the one for which he had been surrendered, \"would be not only an infraction of the contract between the parties to the treaty, but also a violation of the supreme law of this land in a matter directly involving his personal rights. A right of person or property, secured or recognized by treaty, may be set up as a defence to a prosecution in disregard of either, with the same force and effect as if such right was secured by an act of Congress.\"\nBut perhaps the most important decisions on this question are to be found in the highest courts of the states.\nThe case of Adriance v. Lagrave, 59 N.Y. 110, has been cited as supporting the doctrine held by Judge Benedict, and *427 undoubtedly the language of the opinion delivered by Chief Justice Church, for the court, in that case, adopts the reasoning of Judge Benedict's opinion. Considering the high character of that court, it may be proper to make an observation or two on that case. First. It seems that while Lagrave was held for trial in this country under extradition proceedings, by which he was removed from France under the treaty of 1843 with that nation, being out on bail, he was arrested under a writ in a civil suit for debt, which issued from one of the courts of the State of New York. He made application by a writ of habeas corpus to be released from this arrest, on the ground that he was protected from it by the terms of the treaty under which he was surrendered, which, in that respect, are similar to those of the treaty of 1842 with Great Britain. The difference between serving process in a civil action brought by a private party, whether arrest be an incident to that process or not, and the indictment and prosecution of a person similarly situated for a crime not mentioned in the treaty of extradition under which the defendant was by force brought to this country, is too obvious to need comment. And while it is unnecessary to decide now whether he could be so served with process in civil proceedings, it does not follow that he would be equally liable to arrest, trial, and conviction for a crime, and especially a crime not enumerated in the extradition treaty, and committed before his removal. Second. The case of Adriance v. Lagrave was decided in the Supreme Court of the State by an order discharging Lagrave from arrest under the writ, and the writ was vacated. This judgment was the unanimous opinion of the court, in which sat three eminent judges of that State, to wit, Daniels, Davis, and Brady. In the Court of Appeals this judgment was reversed by a divided court, Judges Folger and Grover dissenting.\nWhile this is believed to be the only decision in the highest court of a state adopting that view of the law, there are three or four cases decided by appellate courts of other states, holding a directly opposite doctrine.\nThe first of these is Commonwealth v. Hawes, 13 Bush, 697. Hawes was demanded from the Dominion of Canada under *428 the treaty of 1842 on four indictments charging him with as many acts of forgery, and was delivered up on three of them. He was brought to trial on two of these indictments in the courts of Kentucky and acquitted, while the other two were dismissed on motion of the attorney for the commonwealth. There were, however, other indictments pending against him, charging him with embezzlement, and on one of these a motion was made to bring him to trial. Upon this motion the question was raised whether, under the circumstances in regard to the extradition, he could be tried for that offence. Judge Jackson, before whom the case was pending in the Kenton County Criminal Court, decided that he was bound to take judicial notice of the treaty of 1842 between the United States and Great Britain, and that the defendant could not be tried for any offence for which he was not extradited, although he was within the power of the court, as the treaty was the supreme law of the land. By the terms of that treaty he held that Hawes could be tried for no other offence, because that treaty provides only for extradition in certain cases, and under certain circumstances of proof, and that the right of asylum is to be held sacred as to anything for which the party was not and could not be extradited. He adds:\n\"I do not mean to say that he [Hawes] may not hereafter be tried; but what I mean to say is, that in the face of the treaty herein referred to, he is not to be tried until there is a reasonable time given him to return to the asylum from which he was taken.\"\nThe case was carried to the Court of Appeals of Kentucky, in which the whole matter was fully discussed, the opinion of the court, a very able one, being delivered by Chief Justice Lindsay, in 1878. The substance of the opinion is thus stated in the syllabus:\n\"1. Extradited criminals cannot be tried for offences not named in the treaty, or for offences not named in the warrant of extradition. A prisoner extradited from the Dominion of Canada under Art: 10 of the treaty of 1842 between the United States and Great Britain, cannot be proceeded against or tried in this State for any other offences than those mentioned in *429 the treaty, and for which he was extradited, without first being afforded an opportunity to return to Canada; and, after being acquitted on trials for the offences for which he was extradited, he cannot be lawfully held in custody to answer a charge for which he could not be put on trial.\"\n\"3. The right of one government to demand and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by, the provisions, express or implied, of the treaty.\"\nIn 1881 a case involving the same question came before the Texas Court of Appeals, Blandford v. State, 10 Tex. Ct. of App. 627, in which the same principles were asserted as in that of Hawes. The case seems to have been very well considered, and the authorities up to that date were fully examined.\nIn 1883 the same question came before the Supreme Court of Ohio, in State v. Vanderpool, 39 Ohio St. 273. Vanderpool and Jones having been delivered up under the treaty of 1842 by the Dominion of Canada for offences specified in that treaty, were tried, convicted, and sentenced to the penitentiary for the crimes for which they were extradited. They were afterwards indicted for other offences, to which they pleaded in abatement that by reason of the facts already stated they could not be tried for these latter offences until a reasonable time had elapsed after the expiration of their sentences for the crimes of which they had been convicted. The Supreme Court of Ohio, to which the case came on appeal from the judgment of the Court of Common Pleas, sustained this view, and this was done upon the same general reasoning, already stated, as to the construction to be placed upon the Ashburton treaty, of the obligations of that treaty as a law of the land; and of the rights conferred upon the party who was arrested and extradited under its provisions.\nUpon a review of these decisions of the Federal and State courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this *430 opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.\nTwo other observations remain to be made. One of these is, that the operation of this principle of the recognition of the rights of prisoners under such circumstances by the courts before whom they are brought for trial, relieves the relations between the Executive Department of the United States government and the courts of a state before whom such case may be pending, of a tension which has more than once become very delicate and very troublesome. Of course, the interference of the executive branch of the Federal government, when it may have been called upon by the nation which has delivered up a person to be tried for an offence against the laws of a state, with the proceedings of a state court in such case, is likely to be resented by such court, and yet, if the only mode of enforcing the obligations of the treaty is through the action of the respective national governments, it would seem that the government appealed to ought to have the right to see that the treaty is faithfully observed, and the rights of parties under it protected. In Great Britain the control of such matters would undoubtedly be recognized by any court to be in the Crown, but in this country such a proposition is, to say the least, not unaccompanied by serious embarrassments. The principle we have here laid down removes this difficulty, for under the doctrine that the treaty is the supreme law of the land, and is to be observed by all the courts, state and national, \"anything in the laws of the states to the contrary notwithstanding,\" if the state court should fail to give due effect to the rights of the party under the treaty, a remedy is found in the judicial branch of the Federal government, which has been *431 fully recognized. This remedy is by a writ of error from the Supreme Court of the United States to the state court which may have committed such an error. The case being thus removed into that court, the just effect and operation of the treaty upon the rights asserted by the prisoner would be there decided. If the party, however, is under arrest and desires a more speedy remedy in order to secure his release, a writ of habeas corpus from one of the Federal judges or Federal courts, issued on the ground that he is restrained of his liberty in violation of the Constitution or a law or a treaty of the United States, will bring him before a Federal tribunal, where the truth of that allegation can be inquired into, and, if it be well founded, he will be discharged. Ex parte Royall, 117 U.S. 241, 251. State courts also could issue such a writ, and thus the judicial remedy is complete, when the jurisdiction of the court is admitted. This is a complete answer to the proposition that the rights of persons extradited under the treaty cannot be enforced by the judicial branch of the government, and that they can only appeal to the executive branches of the treaty governments for redress.\nThe other observation we have to make regards an argument presented in this particular case; namely, that the prisoner was convicted on the same testimony which was produced before the magistrate who ordered his extradition. Although it is thus stated in the brief, the record affords no sufficient evidence of it. What is found on that subject in the fourth question certified to this court is as follows:\n\"Was it error on the part of the trial judge to refuse to direct a verdict of acquittal, after it had been proven that the accused was extradited under the extradition treaty with Great Britain, upon the charge of murder, it also appearing that in the proceedings preliminary to the warrant of extradition the same act was investigated, and the same witnesses examined, as at the trial?\"\nIt might be a sufficient answer to this argument to say that this does not prove that the evidence was the same upon the two trials. Although the act charged may have been the same and the witnesses may have been the same, yet the evidence *432 elicited on the last trial may have been very different from that obtained on the first. While the identity of facts investigated in the two trials is charged a little more specifically in the first question, we are of opinion that no importance should be attached to this matter, even if it were found that the party was convicted of inflicting cruel and unusual punishment on the seaman on the same evidence precisely upon which the committing magistrate in Great Britain delivered him up under a charge of murder. It may be very true that evidence which satisfied that officer that the prisoner was guilty of the crime of murder would also establish that he had inflicted cruel and unusual punishment on the person for whose murder he was charged; but, as the treaty only justified his delivery on the ground that he was proved to be guilty of murder before the committing magistrate, it does not follow at all that such magistrate would have delivered him on a charge, founded upon precisely the same evidence, of inflicting cruel and unusual punishment, an offence for which the treaty made no provision, and which was of a very unimportant character when compared with that of murder. If the party could be convicted on an indictment for inflicting cruel and unusual punishment where the grand jury would not have found an indictment for murder, the treaty could always be evaded by making a demand on account of the higher offence defined in the treaty, and then only seeking a trial and conviction for the minor offence not found in the treaty. We do not think the circumstance that the same evidence might be sufficient to convict for the minor offence which was produced before the committing magistrate to support the graver charge justifies this departure from the principles of the treaty.\nThis fourth question may also properly be treated as immaterial, for the question is, should the trial judge have directed a verdict of acquittal? As all the matters set up by the defendant are in the nature of pleas in abatement, going rather to the question of trial on that indictment at that time, and not denying that at some future time, when the defendant may have been properly brought within the jurisdiction of the court, or rightfully found within such jurisdiction he may *433 be then tried, it did not involve an issue on the question of guilty or not guilty on which the court, if it proceeded to try that question at all, could direct either an acquittal or a conviction. Under the views we have taken of the case the jurisdiction of the court to try such an offence, if the party himself was properly within its jurisdiction, is not denied, but the facts relied upon go to show that while the court did have jurisdiction to find the indictment, as well as of the questions involved in such indictment, it did not have jurisdiction of the person at that time, so as to subject him to trial. The question therefore is immaterial.\nThe result of these considerations is, that the first of the questions certified to us is answered in the negative; the second and third are answered in the affirmative; and it is ordered to be so certified to the judges of the Circuit Court.\nMR. JUSTICE GRAY concurring.\nI concur in the decision of the court, upon the single ground, that by the act of Congress of March 3, 1869, c. 141, § 1, (embodied in § 5275 of the Revised Statutes,) providing measures by which any person, delivered up by a foreign government for the purpose of being tried here for a crime of which he has been accused, may be secured against lawless violence \"until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offences, and for a reasonable time thereafter,\" the political department of the government has clearly manifested its will, in the form of an express law, (of which any person prosecuted in any court within the United States has the right to claim the protection,) that the accused shall be tried only for the crime specified in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States, before he can be arrested or detained for another offence.\nUpon the broader question whether, independently of any act of Congress, and in the absence of any affirmative restriction in the treaty, a man surrendered for one crime should *434 be tried for another, I express no opinion, because not satisfied that that is a question of law, within the cognizance of the judicial tribunals, as contradistinguished from a question of international comity and usage, within the domain of statesmanship and diplomacy.\nMR. CHIEF JUSTICE WAITE dissenting.\nI am unable to concur in the decision of this case. A fugitive from justice has no absolute right of asylum in a country to, which he flees, and if he can be got back within the jurisdiction of the country whose laws he has violated, he may be proceeded with precisely the same as if he had not fled, unless there is something in the laws of the country where he is to be tried, or in the way in which he was got back, to prevent. I do not understand this to be denied. All, therefore, depends in this case on the treaty with Great Britain under which this extradition was effected, and § 5275 of the Revised Statutes. I concede that the treaty is as much a part of the law of the United States as is a statute; and if there is anything in it which forbids a trial for any other offence than that for which the extradition was made, the accused may use it as a defence to a prosecution on any other charge until a reasonable time has elapsed after his release from custody on account of the crime for which he was sent back. But I have been unable to find any such provision. The treaty requires a delivery up to justice, on demand, of those accused of certain crimes, but says nothing about what shall be done with them after the delivery has been made. It might have provided that they should not be tried for any other offences than those for which they were surrendered, but it has not. Consequently, as it seems to me, the accused has acquired no new rights under the treaty. He fled from the justice of the country whose laws he violated, and has been got back. The treaty under which he was surrendered has granted him no immunity, and therefore it has not provided him with any new defence. This seems to have been the view taken by the English government during the time of the controversy growing out of the demand made *435 for the extradition of Winslow; for, in the debate in the House of Lords, the Lord Chancellor (Cairns), while supporting the English view of the matter, and referring to the cases which had been cited against it, said: \"In that class of cases ... the prisoners, who had been surrendered on one charge, and who were being tried upon another, themselves attempted to raise the defence that they could not be tried for an offence different from that for which they had been surrendered. Such cases certainly have no application whatever to the present question, because nothing can be more clear than that a prisoner himself has no right to raise such a defence. Even in France, where ... the law and practice of extradition goes far beyond that which prevails in this country and in the United States, a prisoner is not permitted to set up such a defence, for the clear reason that he is within the jurisdiction of the court, which has the authority to try him for the offence of which he is charged, and that whether he ought to be tried for an offence other than that for which he has been surrendered is a matter of diplomacy between the two countries, and not a question between the prisoner and the court before which he is being tried.\" Foreign Relations of the United States, 1876, 291.\nThis is, I think, the true rule, and it is in full accord with the principles applied by this court in The Richmond, 9 Cranch, 102, where it was insisted upon by way of defence that a vessel proceeded against for a violation of the non-intercourse act had been seized within the territorial jurisdiction of Spain. As to this Chief Justice Marshall said, in delivering the opinion of the court: \"The seizure of an American vessel within the territorial jurisdiction of a foreign power is certainly an offence against that power, which must be adjusted between the two governments. This court can take no cognizance of it; and the majority of the court is of opinion that the law does not connect that trespass, if it be one, with the subsequent seizure by the civil authority, under the process of the District Court, so as to annul the proceedings of that court against the vessel.\" If either country should use its privileges under the treaty to obtain a surrender of a fugitive on the *436 pretence of trying him for an offence for which extradition could be claimed, so as to try him for one for which it could not, it might furnish just cause of complaint on the part of the country which had been deceived, but it would be a matter entirely for adjustment between the two countries, and which could in no way enure to the benefit of the accused except through the instrumentality of the government that had been induced to give him up.\nAs to § 5275 of the Revised Statutes I have only to say that, in my opinion, it neither adds to the rights of the accused nor changes the effect of the treaty as a part of the law of the United States. The accused was surrendered by Great Britain to the United States, and the United States are alone responsible to that country for whatever may be done with him in consequence of his surrender. He was delivered into the possession of the United States, and, in my opinion, that possession may at any time be regained by the United States under this statute from the State, or its authorities, so long as the accused remains in custody, if it should be necessary in order to enable them to keep their faith with Great Britain in respect to the surrender.\nI do not care to elaborate the argument on either of these questions. My only purpose is to state generally the grounds of my dissent.\n", "ocr": false, "opinion_id": 91771 }, { "author_str": "Milleb", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMe. Justice Milleb\ndelivered the opinion of the court.\n*409. This base comes before us on a certificate-of division of opinion between the judges holding the Circuit Court bf the United States for the Southern District of New York, arising after-. verdict.of guilty, and before judgment, on a motion in arrest bf judgment.\nThe .prisoner, \"William Kauscher, was indicted by á grand, jury, for that, on the 9th day of October, 1884, on the high seas, -out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction thereof, he, the said William Kauscher, being then and there second mate of the-ship J. F. Chapman, unlawfully made , an assault upon Janssen, one of the crew of the vessel of which he was an ofiicer, and unlawfully inflicted upon said Janssen ■ bruel and uñusual punishment. This indictment was found undér § 5347 of the Kevised Statutes of the United States.'\n, The statement of the division of opinion between the judges is in the following language:\n“This cause coming on to be heard at this term, before', judgment upon the verdict, on a motion in arrest'of judgment, and also on a motion for a new trial before the two judges ab.ove. mentioned, at such hearing the following questions-occurred: .\n“ First. The prisoner, having been extradited upon a' charge of murder on the high seas of one Janssen, under' § 5339 Rev. Stat., had the Circuit Court of the Southern District of New York jurisdiction to put him to trial upon an indictment under ■ § 5347 Kev. Stat., charging him with cruel and unusual punishment of the, same man, he being one of the crew of an American vessel of which the defendant was an officer, and such punishment consisting of the identical acts proved in the .extradition proceedings?\n“Second. Did or not the prisoner, under the extradition treaty with Great Britain, having been surrendered upon a charge of murder, acquire a right to be exempt from prosecution upon the charge set forth in the indictment, without being first afforded an opportunity to return to Great Britain ?\n“ Third. \"Was it error on the part of the trial judge to overrule a plea to the jurisdiction of the court to try the indictment *410under § 534V of the .United States Bevised Statutes, charging the accused with cruel and unusual punishment of one Janssen, one of the crew of a vessel of which accused was afi. officer, it having been established upon said plea that the accused' Was extradited under the extradition treaty with Great Britain, upon the charge of murder of, the same Janssen, under § 5339 of the United States Bevised Statutes ? .\n'• “Fourth. .Was it error on the part of the trial judge to refuse, to direct a verdict of acquittal, after it had been proven that the accused was extradited under the extradition treaty with Great Britain, upon the charge of murder, it also appearing that in. the proceedings preliminary to the warrant of extradition the' same act was investigated, and the same witnesses examined, as at the trial ?\n“ In respect to each of which questions the judges aforesaid were divided.in opinion., -\n• “ Wherefore, at the same term, at the request of the United States attorney, they have caused the points above stated to be certified under the seal of this court, together with a copy the indictment and an abstract of the record, to the Supreme Court of the United States for final decision according to law.\n“WM. J. Wallace.\n“ Chas. . L. Benedict.”\n■ The treaty with Great Britain, under which the defendant was surrendered by that government to ours upon a charge' of murder, is that of August 9, 1842, styled “ A treaty to settle and define the boundaries between the territories of the United States and the possessions of Her Britannic Majesty in North America; for the final suppression of the1 African • slave trade; and for the-giving up of criminals, fugitive from justice, in certain cases.” 8 Stat. 576.\nWith the exception of this caption, the tenth article of the treaty contains all that relates to the subject of extradition of criminals. That article is here copied, as follows :\n“ It is agreed that the United States and Her Britannic Majesty shall, upor. mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up *411to- justice all persons who, being charged with the crime murder, or assault with intent to- commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek’ an asylum, or shall be found, within the territories of the other: provided; that tins shall only bo done, upon such evi-' dence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would' ■justify-his apprehension and commitment for trial, if the crime or offence had there been committed; and■ the ■■ respective judges and other magistrates of the two Governments shall, have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the. proper Executive authority, that a warrant may issue, for the surrender of such fugitive.”\nNot only has the general subject of the extradition of per- ■ sons charged with crime in one country, who have fled to and sought refuge in another, been .matter of much consideration of late years by the executive departments and statesmen of the governments of the civilized portion of the world, by vari-, ous publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial' tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country and in Great Britain.\nIt is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the States where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government-with another. Prior to these treaties, and apart from them,' *412it may be stated as ■ the general result _ of the ,writers. upon international law,'that there was no well-defined obligation oh. one country to deliver up such fugitives to another, and though 'such delivery was often made, it was upon the principle óf comity, and within the discretion of the goyemnient whose action was invoked;' and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law.\nWhether in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the States, and in the absence of any act of Congress upon the subject, a State can, through its own judiciary or executive, surrender him for trial to such foreign nation,-is a question which has been under consideration by the courts of this country without any very conclusive result.\n. In the case of Daniel Washburn, 4 Johns. Ch. 106; S. C. 8 Am. Dec. 548, who was arrested on a charge of theft committed in Canada, and brought before Chancellor Kent upon a writ of ' habeas corpus, that distinguished jurist held that, irrespective of ' all treaties, it was the duty of a State to surrender fugitive criminals. The doctrine of this obligation was presented with great ability by that learned jurist; but shortly afterward Chief Justice Tilghman, in the case of Short v. Deacon, 10 S. & R. 125, in the Supreme Court of Pennsylvania, held the contrary Opinion— that the delivery up of a fugitive was an affair of the executive branch of the national government, to which the demand of the foreign power must be addressed; that judges could not legally deliver up, nor could they command the executive to'do so; and that no magistrate in Pennsylvania had the right to cause a person to be arrested in order to afford the ■President of the United States an opportunity to deliver him up, because the President had already declared he would not do so.\nIn the case of Holmes v. Jennison, 14 Pet. 540, on a writ of error to the Supreme Court of Vermont, it appears that application had been made to the President for the extradition of Holmes, a naturalized citizen of thé United States, who was *413charged ■ with having committed murder in Lower Canada'. There'being then no extradition treaty between the two. governments, the President declined to act, through an alleged want of power. Holmes having been arrested under authority from Governor Jentiison,. of Vermont, obtained'a writ of-habeas corpus from the Supreme Court of that State, and the sheriff returned' that he was detained under an order of the governor, which commanded the sheriff to deliver him up-to-the authorities of Lower Canada, and the Supreme Court of the State held the return sufficient. On the writ of error from the Supreme Court of the United States two‘questions were presented, first, whether a writ of error would he in such cáse from that court to the Supreme Court of the State; and,second, whether the judgment of the latter court was right;' The eight judges who heard the case in this-court were equally .divided in opinion on the first of these questions, and therefore no authoritative decision of the principal question could be made.’ A very able and learned opinion in favor of the appellate .jurisdiction of the Supreme Court of the United States, -and against the right attempted to be exercised by the governor of Vermont, Avas delivered by Chief Justice Taney, Avith-Avhom concurred Justices Story, McLean, and Wayne. Justices Thompson, Barbour, and Catron delivered separate opinions; denying the power of the Supreme Court of the United States to revise the judgment of the Supreme Court of V er-mont. These latter, with whom concurred Justice Bahtwin, did not express any clear opinion upon the power of the authorities of the State of Vermont, either executive or judicial, to deliver Holmes to the government of Canada; -but,' upon return of the case to the Supreme Court of that State, it seems that that court Avas satisfied by the arguments of the Chief Justice and those who concurred Avith him of the error of its position, and Holmes Avas discharged. In the final disposition of the case the court uses the following language:.\n“ I am authorized by my brethren,” says the Chief Justice, “ to say, that, on an examination of this casé, as decided by the Supreme Court of the the United States, they think, if the return had been as it now is, a majority of that court Avould have *414decided that' Holmes was entitled to his discharge, and that, thn opinion of 4 majority pf the Supreme Court of the United States was also adverse to the exercise of the power in question by any of the separate States of the Union. The judg-' ..ment of the court therefore is, that Holmes be discharged from his imprisonment.” Ex parte Holmes, 12 Vt. 631.\nThe Court of Appeals of New York, in the case of The People, &c. v. Curtis, 50 N. Y. 321, also decided that an act of .the Legislature of that State authorizing the-rendition' to foreign States of fugitives from justice was -in ■ conflict with the Constitution of the United States. This was in 1872.\n' The question has not since arisen so as to be decided by this court, but there can be little doubt of the soundness of the opinion of Chief Justice Taney, .that the power exercised by the governor of Vermont is^a\"part of the foreign intercourse of this country, which has undoubtedly been conferred upon 'the Federal government; and that it is clearly included in the treaty, making power and the corresponding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the states to enter upon the relations with foreign nations which are necessarily implied ' in the extradition of fugitives from justice found within the limits of the state, as there is none why they should in their own name make demand upon foreign, nations 'for the surrender of such fugitives.\nAt .this time of day, and-after the repeated examinations Which have been made by this court into the powers of the--Federal government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition -of a fugitive from justice can become the subject of negotiation .-between a state of this Union and a foreign government.\nFortunately, this question, with others which might arise in ' the absence of treaties or acts of Congress on the subject, is bow of very little importance, since, With nearly all the nations of the world with whom our relations are such that fugitives ' from justice may be found within their dominions or within ours, we have treaties which govern the rights and conduct of *415tbe parties in such, cases. These treaties are also supplemented by acts of Congress, and both are in their nature exclusive.\nThe case we have Under consideration arises under one of' these treaties made bet#een the United States and Great ■ Britain, the country with s which, on account of our intimate - relations, the cases requiring extradition are likely to be most numerous. This treaty of 1842 is supplemented by-the-acts of Congress of August 12, 1848, 9 Stat. 302, and March 3, 1869, 15 Stat: 337, the provisions of which are embodied in §§ 5270, 5272, and 5275 of the Kevised Statutes, under Title LXVI, Extradition. '\nThe treaty itself, in reference to the very matter suggested.in the questions ceJ tied by the judges of the Circuit Court, has been made the subject of diplomatic negotiation between the Executive Department of this country and the government of Great Britain in the cases of \"Winslow and Lawrence. Win-slow, who was charged with forgery in the United States, had taken refuge in England, and, on demand being made for his. extradition, the'Foreign Office of that country required a preliminary pledge from our government that it would not try him for any other offence than the forgery for which he was demanded. To this Mr. Eish, the Secretary of State, did not accede, .and was informed that the reason of the demand on the part of the British government was that one Lawrence, not long previously extradited under the same treaty, had been prosecuted in the courts of this country for a different offence from that for which he had been demanded from Great Britain,' and for the trial of which he was delivered up by that government. Mr. Fish defended the right of the government or state in which the offence was committed to try a person,extradited under this treaty for any other criminal offence, as well as for the one for which the extradition had been, demanded;' while Lord Derby, at the head of the Foreign Office in-England, construed the treaty as requiring the government Avhich'' had demanded the extradition of an offender against its laws for a prescribed offence, mentioned in the' treaty- and in the demand for his extradition, to try him for that offence and-for no other. The correspondence is an able one upon both sides, *416, and presents the question which we are now; required to decide,'. ■as to the construction of the treaty, and the. effect off the acts' of Congress already cited, and of a .statute of Great Britain '.of 1870 on the same subject, ihe negotiations between the two. governments, however, on that subject were inconclusive in-any other sense than that Winslow was hot delivered up and Eawpence was never actually brought to judgment for any other offence than that for which his extradition was demanded.\nThe question was also discussed in th'e House of Lords, and Lord Derby stated and defended his views of the construction ' of the treaty with marked ability, while he conceded that the act of Parliament on that subject, which declared that'the •person extradited could be tried for no other offenCe than that for.which he had been demanded, had no obligatory force upon , the United States as one of the parties to the treaty. 'Foreign \"Relations of the United States, 1876-7, pp. 204-307.'\n'The subject was also very fully discussed by Mr. William. . Beach Lawrence, a very learned authority on matters of inter-nationál law1 living in this country, in several published arti-zóles. Albany Law Journal, vol. 14, p. 85; vol. ‘ 15, p. 2'24; vol. Í6, p. 361. In these the author, with.his usual ability, maintains the proposition, that a person delivered up under this treaty on a demand charging' him with a specific offence, mentioned ■ in it, can only be tried by'the country to which he is delivered for that specific offence, and is entitled, unless, found guilty of that, to be restored in safety to the country of his asylum at the time of his extradition.\nA'very able article arising out of the same public discussion at that time, to wit, 1876, is found in the American Law Review, said to have been written by Judge Lowell, of the. United States Court at Boston, in which, after an examination of' the • authorities upon the general rule, independent of treaties, as found in the continental writers'on international law, he says, that rule is, that the person whose extradition has been granted, cannot be prosecuted and tried except for the crime for which his extradition has been obtained; and, entering upon the question of the construction of the treaty of 1842, he gives to it the same effect in regard to that matter. 10 Am. Law Review, 1875-6, p. 617.\n*417Mr.- David Dudley: Field, in bis draft of an outline for an international code, published about the same time, adopts the same principle. Field’s International Code; § 237, p. 122. It ■ is understood that the rule which h’e lays down represents as well what he understands to be existing law, as also what he supposes it should be.\nA very learned and careful work, published in this country by'Mr. Spear, in 1879, and a second edition in 1884, after considering all the correspondence between our government and Great Britain upon the subject,. the debate in the House of 'Lords, the articles of Mr. Lawrence and Judge Lowell, as.well as the treatise of Mr. Clarke, an English writer, with a very exhaustive examination of all the decisions in this country, relating to this matter, arrives at the. same conclusion. ■ This examination, by Mr. Spear is so ’full and careful, that it leaves nothing to be desired in the way of presentation of authorities.\nThe only English work on the subject of extradition we have been able tó find which discusses this subject is a small manual by Edward Clarke of Lincoln’s Inn, published in 1867., He adopts the same view of the construction of this treaty and of the general principles of international law upon the subject which we have just indicated.\nTurning to seek in judicial decisions for authority upon the subject, as might- be anticipated we meet with nothing in the English courts of much value, for the-reason that treaties made by the Crown of Great Britain with other nations are. hot in those courts considered as part of the law of the land, but the rights and the duties growing out of those treaties are looked upon in that country as matters confided wholly for their execution and enforcement to the. executive branch of the government. Speaking of the Ashburton treaty of 1842, which we-are now construing, Mr. Clarke says, that-, “in England the-common law being held not to permit the surrender of a criminal, this provision could not come into effect without an Act of Parliament, but in the United States a treaty is as binding; as an Act of Congress.” Clarke on Extradition, 38.\nThis difference between the judicial powers of the courts of .Great Britain and of this country in regard to treaties is thus *418alluded to by Chief Justice Marshall 'in' the Supreme Court- of ■ the United States: •\n■ “ A treaty is in ’its nature a contract between two nations, not -a legislative act. It does not generally effect, of itself, the-object to be accomplished, especially so far as its operation -is infra-territórial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution' declares a treaty to be the law of the land. ' It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself ■to the' political, not the ’judicial department; and the legislature must execute the contract before it can become a rule for ,the court.” Foster v. Neilson, 2 Pet. 253, 314.\nThis whole, subject is fully considered in the Head Money Cases, 112 U. S. 580, in which the effect of a treaty as a part ■of the law of the land, as.distinguished from its aspect as.a mere contract between independent nations, is expressed in the following language:. *419inheritance, when, the-'individuáis concerned are aliens. The Constitution of the United States places such provisions as these*in the same category as other laws of Congress, by its declaration that ‘this Constitution and the laws made in pursuance thereof,' and all treaties made or which shall be made under authority of the United States, shall be. the supreme law of the land.’ A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private .citizen or subject maybe determined. And when such rights are of a nature to be enforced in a. court of justice, that court resorts to the treaty for-a rule of decision for the case before it as it would to a statute.” pp, 598-9. See also Chew Heong v. United States, 112. U. S. 536, 540, 565.\n*418“ A treaty is- primarily a compact between independent nations'. It depends for the enforcement of its provisions on the interest and the honor of the- governments which are parties to it. If these • fail, its infraction becomes the subject of international negotiations and reclamations, .so far as the injured party chooses to seek redress, which may .in the end. be enforced by actual war. It is obvious thart with all this the judicial courts have nothing to do ‘ and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of,one of the nations residing in the territorial limits of the other, which partake-of the nature of municipal law,- and which' are capable of enforcément as between private parties in the courts .of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or\n*419The-treaty of 1842 being, therefore, the supreme law of. the land, which the courts are bound to take judicial notice of, and to enforce in any appropriate proceeding the' rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as pertinent • to the questions certified by the circuit judges, into the true construction of’* the treaty. We have already seen that, according to the doctrine of. publicists and writers on international law, the country receiving the offender against its laws from another country, had no right to.‘proceed against him for any other offence than that' for which he had been delivered up. This is a principle which commends itself as an appropriate adjunct. to the discretionary- exercise of the power of rendition, be-' cause it can hardly be supposed that a. government which was. under no treaty obligation nor any absolute obligation-of public duty to seize a person who had found an asylum within its bosom and turn him over to another country for trial, would be. willing to do this, unless a case was made of some specific offence of a character which* justified-the government in depriving the party of his asylum. It is unreasonable. that the country of the asylum should be expected to deliver up . such person to be dealt with , by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party. In exercising its *420discretion, it might be very, willing Lo deliver up offenders against such laws as were essential to the protection of life, liberty, and person, while it would not be willing to do this on account of minor misdemeanors or of a certain class of political offences in which it would have no interest or sympathy. Accordingly, it has been-the'policy-of all governments to grant an' asylum to persons who have fled from their homes on account of political, disturbances, 'and who might be there amenable to laws framed with regard to such subjects, and to the personal allegiance of the party. In many of the treaties vof extradition between the civilized nations of the world, there is an express exclusion of the right to demand the extradition of offenders against such laws, and in none of them is this' class - of offences mentioned as being thé foundation of extradition proceedings. ' Indeed, the enumeration of offences in most of : 'these treaties, and especially in the treaty, now under consideration, is so specific, and marked by such-a -clear line in regard to the magnitude and importance of' those offences, that ■' it is impossible to give any other .interpretation to it than that of the exclusion Of the right of extradition for any others.\n. It is, therefore, very clear that this treaty did not intend to depart in this respect from the recognized public .law which had prevailed in the absence of treaties, and that it was not intended that this treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offences .enumerated in the treaty. This is not, only• apparent from the general principle that the specific enumeration of certain- matters and things implies the exclusion of all others, but the entire face of the treaty, including-the processes.by which it is to be carried into effect, confirms this view of the ■ subject. It is unreasonable to suppose, -that any demand for rendition framed upon a general representation to the government of the asylum, (if we may use such an exjtression,) that the party, for whom-the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any particular offence with which he was charged, and even without specifying an offence mentioned in the- treaty, would receive any serious attention; and yet such *421is the effect of the construction that the party is properly liable to trial for any other offence than that for which' he' was demanded, and which is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offence in making the demand.' But, so far from this being admissible, the treaty not only provides that the party shall be charged with one oí; 'the1 crimes mentioned, to wit, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, or the' utterance of forged paper, but that evidence shall be produced to the judge or magistrate of the country of which such demand is made, of the commission of such an offence,, and that this evidence shall be such as -according to the law of that country would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the .party is arrested in a .country where he is peaceably and ■ quietly living, and to the protection of whose laws he is en-. titled, are to have no influence in limiting the prosecution in the country where the offence is charged to have been committed, there is very little use for this particularity in changing a specific offence, requiring 'that offence to be one mentioned in the treaty, as well as sufficient evidence of the party’s guilt to put him upon trial for it. ’ Nor can it be said that, in the exercise of such a delicate power under a treaty so well' guarded in every particular, its provisions are obligatory alone on the State which makes the surrender of the fugitive, and that that fugitive passes into the hands of the country which charges him with the offence, free from all the positive requirements and just implications of the treaty under which the transfer of his person takes place. A moment before he is under the protection of a government which has afforded bim an asylum from which he can only be taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding was intended to secure.\nIf upon the face of this treaty it could be seen that its sole *422. object Was to secure the transfer of an individual from the jurisdiction of one sovereignty to tbat of another, the argument might be sound; but as this right of transfer, the right to demand it, the obligation to grant it;' the proceedings under which it takes place, all show; that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise.of jurisdiction in such a case.for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud.upon the rights of the party extradited, and of bad faith to the country which permitted 'his' extradition. No such view of solemn public, treaties-between, the great nations of the earth can be sustained by a tribunal called tipon to give judicial construction to them. ■\n■ The opposite view has been attempted id be inaintained in - this country upon the ground that there is no express limitation .in the treaty of the right of the country in which the-offencé was committed to try the person for the crime,-/alone for which \"he was extradited, and that once being within the jurisdiction of that country, no matter by what contrivance'or fraud or by what pretence of establishing a charge provided for- by. the extradition treaty he may have been brought within the jurisdiction, he is, when here, hable to be tried for any offence against the laws as though arrested here originally. This proposition of the absence of express restriction in-the treaty of the right to try him for other offences than that for which he was extradite'd, is met by the manifest scope and object of' the treaty itself. The caption of the.treaty, already quoted, declaring that its purpose' is to settle the boundary fine between the two governments; to provide for the final suppression of the African slave trade; adds, “ and for the giving up of criminals, fugitive from justice,-m certam cases.” The treaty, then, requires, as we have already said, that there shall be given up, upon requisitions respectively made by the two governments, all persons charged with any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribuna!, in which, before he shall be delivered up -on this demand,- it must be shown that the offence for which *423he.is demanded is one of those enumerated; and that the proof ' is sufficient to satisfy the court or magistrate before whom . this examination takes place that he is guilty; and such as the law of the State of the asylum requires to establish such guilty. ’ leave no reason to doubt that the fair purpose of the treaty ' is, that the person shall be delivered up to be tried for that ; offence and for no other.\nIf there should remain any doubt upon this, construction of., the treaty itself, the language of two acts of Congress, heretofore cited, incorporated-in the Revised Statutes, must set this question at rest. It is there declared, Rev. Stat. § 5272, the. two preceding sections having, provided for a- demand upon this country and for' the inquiry into' the guilt of the-party,' that it shall be lawful for the Secretary of State, under his-hand find seal of office, to order the person so committed 'tq be delivered to such person or persons as shall be authorized, in the name and on behalf Of such foreign government, to he tried for the crime of which such person shall he, so accused, ■ and such person shall\" be delivered up accordingly.”\n■ For the protection of persons brought-into this country by extradition proceedings from a foreign country, § 5215 of the Revised Statutes provides:\n“ Whenever any person is delivered -by any foreign govern- ■ ment to an agent of the United States, for the purpose of .being brought within the United States and tried for any, crime of which he is duly accused, the President, shall have ■ power to take all necessary measures for the transportation and safe keeping of such accused person, and for his seburity • against lawless violence, until the final conclusion of his trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account ,of such crimes or offences, and for a ' reasonable time thereafter, and may employ such portion of the, land or naval forces of the-United States, or of the militia thereof, as may be necessary for the safe keeping and protection of the accused.”\nThe obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United *424States, is that the party shall not be delivered up by this .' government to be tried for any other offence than that charged in' the extradition proceedings; and that, when brought into'this country upon similar proceedings, he shall not' be\" arrested or tried for any other offence than that with which he was ■ charged in those proceedings, until he shall have had a reasonable' time to return unmolested to the country from which he was brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is .conclusive upon the judiciary of the right conferred upon persons brought from a foreign country into this under such proceedings.\nThat right, as we understand it, is that he shall be tried only for thé offence with which he is charged in the extradition proceedings and for which ..he was delivered up, and that if not tried'for that, or after trial and acquittal, he shah have a reasonable time to leave the country before he is arrested- upon the charge of any other crime committed previous to his extradition.\nThis precise question has been frequently considered by courts of the highest respectability in this country. One of the earliest cases is that of United States v. Caldwell, 8 Blatcford, 131. Caldwell was extradited from Canada, in 1810, under the treaty of 1842 with Great Britain, charged with forgery.' He was not tried for this offence, however, but was ; tried and convicted for bribing an officer of the United States —■ an offence- not designated in that treaty. In the Circuit Court 'of the United States, held by Judge Benedict, Caldwell called the attention of the-court to this fact, and claimed that under the treaty he could not be tried for any offence committed prior to his extradition other ¡than the one charged in the proceedings. To this pléa the government interposed a . demurrer, which was sustained, and the prisoner was. tried, convicted, and punished for the bribery. . Judge Benedict said, .that, “while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such com*425plaints do' not form a .jproper subject oj.. mvestigation in the ■ courts, however muck those tribunals might regret that they 'should have been permitted to arise. . . . But whether extradited'in good faith or not, the prisoner, in point of fact, . is within the jurisdiction of the court, charged with a crime therein, committed; and I am at a loss'for even a plausiblereason -for holding, upon such a plea as the present, that the court is without jurisdiction to. try him; . . • ■. And I cannot say that the fact that the defendant was brought within tL} jurisdiction by virtue of a warrant of extradition for the crime of forgery affords him a legal exemption from prosecution for other crimes by him committed.”\nThe next case, tried before the same court, was that of United States v. Lawrence, 13 Blatchford, 295. Lawrence was extradicted from Ireland and brought into this country under the treaty,of 1842 on a charge of a single and specific forgery.. He was indicted and put upon his trial for other forgeries, than that specified in the extradition proceedings. .To his trial for any other forgery than that he objected by propér pleadings,- on the ground that under the treaty with Great Britain he could not be so tried for other forgeries.. Judge. Benedict held that he could be So tried, and he was tried- and a verdict of guilty was rendered. It appears, however, but not very clearly from any report of the case, that, though tried and convicted, and having pleaded guilty to the other offences of forgery, he was admitted to bail and no judgment was ever pronounced. Judge Benedict, adverting to the case of United States v. Caldwell, and to a decision of the Court- of Appeals of New York in Adriance v. Lograve, 59 N. Y. 110, proceeded to say:\n“ This ground, of defence is, therefore, dismissed, with the remark that an offender against the justice of his country can. acquire no rights by defrauding that justice. Between him and the justice he has offended, no rights accrue to the offender by flight. He remains at all times, and everywhere, liable to be called to answer to the law’ for his violations thereof, provided he comes within the reach of its arm.”\nAnd in addition to the proposition urged in the Caldwell *426case, that a question of'.that character arising on the treaty is exclusively for the consideration of the Executive Departments of the respective governments, he proceeds to say :\n“ It is true' that it [the act of Congress] assumes, as well it may, that the offender will be tried for the offence upon which his surrender is asked, but there are no words indicating that he is to be protected from trial for all other offences. The absence of any provision indicating an intention to- protect from prosecution for other offences, in a statute having no' other object than the protection of extradited offenders, is sufficient to deprive of all force the suggestion that the act of 1869, as a legislative act, gives to the treaty of 1842 the construction contended for .by the accused.” There are'perhaps two or three other cases in which the circuit or district judges of the United States have followed these decisions rendered by Judge. Benedict.\nOn the other hand, Judge Hoff mam, of the District Oourt of California, in the case of United States v. Watts, 8 Sawyer, 370, decided that the defendant, having been surrendered under the extradition treaty of 1842 by Great Britain, could not be tried for other offences thJn those enumerated in that treaty, and supported this view with a very learned and able opinion. Judge Deady, of the District Oourt of Oregon, in Ex parte Hills, 26 Fed. Rep. 421, 431, February 4,1886, held, in regard to the treaty of 1842, that for a government to detain a person extradited under that treaty for any other charge than the one for which he had been surrendered, “ would be not only an infraction of' the contract between the parties to the treaty, but also a violation of the supreme law of this land in a matter directly involving his' personal rights. A right of person or property, secured or recognized by treaty, may be set up as a defence to a prosecution in disregard of either, with the ■same force and effect as if such right was secured by an act of Congress.”\nBut perhaps the most important decisions on this question are to be found in the highest courts of the states.\nThe case of Adriance v. Lagrave, 59 N. Y. 110, has been cited as supporting the doctrine held by Judge Benedict, and *427undoubtedly the language of the opinion delivered by Chief Justice Church,.for the court, in that case, adopts the reasoning of Judge Benedict’s opinion. Considering the high character of that court, it may be proper to make an-observation or two on that case.- . First. It seems that while Lagrave was-held for trial in this country under extradition proceedings, by which he was removed from France under the treaty of 1843 with that nation, being out on bail, he was • arrested under a writ in a civil .suit for debt, which issued from' one of the courts of the State of New York. He made application -by a writ of habeas corpus to be released' from this arrest, on-the ground that he was protected from it by the terms of the-treaty under which he was surrendered, which, in that respect, are similar to those of the treaty of 1842 with Great Britain. - The difference between serving process in a civil action brought. by a private party, .whether arrest be an incident to that process or not, and the indictment and prosecution of a person similarly situated for a crime not mentioned in the treaty of extradition under which the defendant was by force brought to this country,- is too obvious to need comment. And while it is unnecessary to decide now whether he could be so served with process in civil proceedings, it does not follow that he would be equally hable to arrest, trial, and conviction fora crimej and especially- a crime not - enumerated in the extradition treaty, and committed before his removal. Second. The case of Adriance v. Lagrave was decided in the Supreme Court of the State by. an order discharging Lagrave from arrest under the writ, and the writ was vacated. This judgment was the unanimous opinion of the court, in which sat three eminent judges of that State, to wit, Daniels, Davis, and Brady. . In the Court of Appeals this judgment was reversed by a divided court, Judges Folger and Grover dissenting.\nWhile this is believed-to be the only decision in the highest' court of a state adopting that view of the law, there are three or four cases decided by appellate courts of other states, hold-. ing a directly .opposite doctrine.\nThe first of these is Commonwealth v. Hawes, 13 Bush, 697. Hawes was demanded from the DQminion of Canada under *428the treaty of 1842 on four indictments charging him with as many acts-of forgery, and. was delivered up on three of them. He was brought to trial on two of these indictments in the-' courts of Kentucky and acquitted, while the other two were dismissed on motion of the attorney for the commonwealth.. There were, however, other indictments pending against him, charging him with embezzlement, and on one of these á motion was made to bring him to trial. Upon this motion the question was raised whether, under the circumstances in regard Ito the extradition, he could be tried for that offence. Judge Jackson, before whom the case .was pending in the Kenton County Criminal Court, decided that he was bound to take judicial notice off the treaty of 1842 between the United States and. Great Britain’ and that the defendant could not be tried for any offence for which he was not extradited, although he was within the power of the court, as the treaty was the supreme law of the land. By the terms of that treaty he held that Hawes could be tried for no other \"offence, .because that treaty provide^ only for extradition in certain cases, and under certain circumstances of proof, and that the right of asyliun is ' to be held sacred as to anything for which the party was not .and'couldnot be extradited.' He-adds:\n' ' “ I do not mean to say that he [Hawes] may not hereafter 'be'tried; but what I mean to say is, that in the face of the treaty herein referred to, he is not to be tried until there is a reasonable time given him to return to the asylum from which ■he Was taken'.”\nv The case was carried to the Court of Appeals of Kentucky, fn' which the whole matter Ayas fully discussed, the opinion. of the' court, a very able one, being delivered by Chief Justice Lindsay, in 1878. The substance of the opinion is thus stated ■ in the syllabus:\n“1. Extradited criminals cannot be tried for offences not named in the treaty, or for offences not named in the warrant of extradition. A prisoner extradited from the Dominion of Canada under Art. 10 of the treaty of 1842 between the United States and,Great Britain, cannot be proceeded against or tried m this State for any other offences than those mentioned in *429hue treaty, and for which'be was extradited, without first being afforded an'opportunity to return to Canada; and,-after . . being acquitted on trials for the offence? for which hé was extradited, he cannot be lawfully held in custody to answer a charge for which he could not be put on trial.”\n• “ 3. The right of one government to demand' and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by, the provisions, express or implied, of the treaty.”\nIn-1881.a case involving the same question came before the' Texas Court of Appeals, Blandford v. State, 10 Tex. Ct. of App. 627, in which'the. same, principles were asserted as in that of Hawes: The case seems to have been very well considered, and the authorities úp to that date were fully'examined.\nIn 1883 the same question came before the Supreme- Court' of Ohio, in State v. Vanderpool, 39 Ohio St. 273. Yanderpool and Jones having been delivered up under the treaty of 1842 by .the Dominion of Canada for offences- specified in that treaty, were tried, convicted, and sentenced to the penitentiary for the crimes for which they were extradited. They were afterwards indicted for other offences, to which they pleaded in abatement that by reason, of the facts already stated they could not be tried for these latter offences until a reasonable time had elapsed after the expiration of their sentences for the crimes of which they had been- convicted. The Supreme Court of Ohio, to which tjie case came on appeal from the judgment of the Court of Common Pleas, sustained this view, and this was done upon the same general reasoning, already stated, as-to the construction to be placed upon the. Ashburton- treaty, of the obligations of that treaty as a law of the land; and'of the rights conferred upon the party who was arrested and extradited under its provisions.\nUpon a review of these decisions of the- Federal and State courts, to which may be added the opinions of the distin- ■ guished writers which we have cited in the earlier, part of this *430opinion, we feel .authorized to state that the weight of au-., thority and of sound principle are in favor of the proposition, that a person who has. been brought within the jurisdiction of ■the' court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty,. and for the offence with which he is charged in the proceedings for his extradition, until a reasonable timé and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum-he had been forcibly taken under those proceedings.\n' Two other observations remain to be made. One of these is, that the operation of this principle of the recognition of the rights of prisoners under such circumstances by the- courts before whom they are brought for trial, reheves the relations between the Executive Department of the United States government and the courts of a state before whom such case may be pending, of a tension which has more than once become very delicate and very troublesome. Of course, the interfer- ■ ence of the executive branch of the Federal government, when it may have been called upon by the nation which has delivered up a person to be tried for an offence against the laws of a state, with the proceedings of a state court in such case, is likely to be resented by such court, and yet, if the only mode of enforcing the obligations of the treaty is through, the action of the respective national governments, it would seem that the government appealed to ought to have the right to see that the treaty is faithfully observed, and the rights of parties under it protected. In Great Britain the control of such matters would undoubtedly be recognized by any court to be in the CroAvn, but in this country such a proposition is, to say the least, not unaccompanied by serious embarrassments. The principle we have here laid down removes this difficulty, for. under the doctrine that the treaty is the supreme law of the land, and is to be observed by all the courts, state and national, “ anything in the laws of the states to the contrary notwithstanding,” if the state court should fail to give due effect to the rights of the party under the treaty, a remedy is found in the judicial branch of-the -Federal government, which has been *431fully recognized. This, remedy is by a writ of error from the Supreme Court of the United States to the state court which may have committed such an error. The case being thus removed into that court, the just effect and operation of the treaty upon the rights asserted by the prisoner would be there decided. If the party, however, is under arrest and desires a more speedy remedy-in order to secure his release, a writ of habeas corpus from one of the Federal judges or Federal courts, issued on the ground that he is restrained of ■ his liberty in violation of the Constitution or a law ór a treaty of the United States, will bring him before a Federal tribunal, where the truth of that allegation can be inquired into,' and, if it be well founded, he will be discharged. Ex parte Royall, 117 U. S. 241, 251. State courts also could issue such a writ, and thus the judicial remedy is complete, when the jurisdiction of the court is. admitted. This is a complete answer to the proposition that the rights of persons extradited under'the treaty cannot be' enforced by the judicial branch of .the government, and that they can only appeal to the executive branches of the treaty governments for redress.\nThe other observation we have to make regards an argument presented in this particular, case; namely, that the prisoner was conviqted on the same testimony which was produced before the magistrate who- ordered his extradition. Although it is thus stated in the brief, the record affords no sufficient evidence of.it. WÍkat is found onfhat subject in the fourth question certified to this court is as follows:\n“Was'it error on the part of the trial judge to refuse to direct a verdict of acquittal, after it had been proven that the accused was extradited under the extradition treaty' with Great Britain, upon the charge of murder, it also appearing that in the proceedings preliminary to the,warrant of 'extradition the same act. Avas investigated, and the same witnesses examined, as at the trial ? ”\nIt might be a sufficient answer to this argument to say that this, does not prove that the evidence was the. same -upon the two trials. Although the act charged may have been the same and the witnesses may have been the same, yet the evi-*432deuce elicited on the last trial may have been, very different ■ from that obtained on the first. 'While the - identity of facts investigated in the twt> trials is charged a little more specifically in the first question, we are of opinion that no importance should be attached to this matter, even if it were found that the party was convicted of inflicting cruel and unusual punishment on the seaman on the\" same evidence precisely hpon.whicli the committing magistrate in Great Britain delivered him up under a charge of murder. It may be very true that evidence which satisfied that officer that the prisoner was guilty of the crime of murder would also establish that' he had inflicted cruel and unusual punishment on the person for whose murder lie was charged; but, as the treaty only justified his delivery on' the ground that he was proved to be guilty of murder before the committing magistrate, it does not follow at all that such magistrate would have delivered him on a -charge, founded upon precisely the same evidence, of inflicting cruel and -unusual punishment, an offence for which, the treaty made no provision, and which was of a very unimportant character; when compared with that of murder. If the party could be convicted on an indictment for inflicting cruel and unusual .punishment where the grand- jury would not have found an indictment for murder, the treaty could always be evaded by making a 'demand on account of the higher offence defined in the treaty, and then only seeking a trial and conviction for the minor offence not found in the treaty.. \"We do not think .the circumstance that the same evidence might be sufficient to convict for the minor offence which was produced before thé committing magistrate \"to support the graver charge justifies this departure from the principles of- the treaty.\nThis fourth question may also properly be treated as imma-, terial, for the question is, should the trial judge have- directed a verdict of acquittal? As all the matters set -up by the- defendant are in the nature of pleas in abatement, going rather to the question of trial on that indictment at that time, and not -denying that at some future time, when the defendant may have been properly brought within the jurisdiction of the court, or rightfully found within such jurisdiction,- ho may *433be then tried, it did not involve an issue on the question of guilty or not guilty on which the'court, if it proceeded to try. that question at all, could direct either an acquittal or a conviction. Under the views we have taken of the case the juris1 diction, of the court to try such an offence, if the party himself was.properly within its jurisdiction, is not denied, but the facts relied upon go to show that while the court did have jurisdic- • tion to find the indictment, as well as of the questions involved in such indictment, it did not have jurisdiction of the person at-that time, so as to subject him to trial. The question therefore is immaterial.\nThe result of these considerations is, that the- first of the questions certified tó us'is answered in the negative; the second and third are answered in the affirmative; and it is ordered to be so certified to the judges of the Circuit Court.\n", "ocr": false, "opinion_id": 9841738 }, { "author_str": "Geay", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n' Me. Justice Geay\nconcurring.\nI concur in the decision jef the court, upon the single ground, that by the act of Congress of March 3,. 1869, c. 141,,§ 1, (embodied in § 5275 of the Be vised Statutes,) providing measures by which any person, delivered up by a foreign govern-. ment for the purpose of being tried here for a crime of which he has been accused, may be secured against lawless violence “ until the final conclusion of his 'trial for the crimes or offences specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes, or offences, and for a reasonable time thereafter,” the political department of the government has clearly manifested its will, in the form of an express law, (of which any person prosecuted in any court within the United States has the right to claim the protection,) that the accused shall be tried only for the crime specified in the warrant of extradition, and shall be allowed a reasonable timé to depart out of the United States, before he can be arrested or detained for another offence.\nUpon the broader question whether, independently of any act of Congress, and in the absence of any affirmative restriction in the treaty, a man surrendered for one crime should *434be tried for another, I express no opinion, because not satisfied that that is a question of law, within the cognizance of the' judicial tribunals, as contradistinguished from a question of international comity and usage, within the domain of statesmanship and diplomacy. ■\n", "ocr": false, "opinion_id": 9841739 }, { "author_str": "Waite", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. Chief Justice Waite\ndissenting.\n, I am unable to concur in the decision of this case. A fugitive from justice has no absolute right of asylum in a country to which he flees, and if he can be got back within the jurisdiction i>f the country whose laws he has violated, he may be proceeded with precisely the same as if he had not fled, unless-there is something in the laws of the country where he is to be tried, or in the way in which he was got back, to prevent. I do not understand this to be denied. All, therefore, depends in this case on the treaty with Great Britain under which this extradition was effected, and§ 5275 of the Revised Statutes. I concede that the treaty is as much a part of the lav/ of th,e - United States as is a statute; and if there is anything in it which forbids a trial for any other offence than that for which the extradition was made, the accused may use it as a defence to a. prosecution on any other charge until a reasonable time has elapsed after his release ..from custody on account of the-crime for which he was sent back. 'But I have been unable to find any such provision. The treaty requires a delivery up to justice, on demand, of those accused of certain crimes, but says nothing about what shall be done with them after the delivery has been made. It might have provided that they should not be tried for any other offences than those for which they were surrendered, but it has- not. Consequently, afe it seems to me, the accused has acquired no new rights under the treaty. JEt'e fled from the justice of the country whose laws he violated, and has beer, got back. ' The treaty under which he was surrendered has granted him no immunity, and therefore it has not provided him with any new defence. This seems to have been the view taken by the English government during the time of the controversy growing out of the demand made *435for the extradition of Winslow; for, in the debate in the House of Lords, the- Lord Chancellor (Cairns), while supporting the English view of the matter, and referring to the cases ' Avhich had been cited against it, said: “ In that class of casés . . the prisoners, who had been surrendered on onp charge, and who were being tried upon another, themselves attempted to raise'the defence that they could not be tried for an offence different from that for Avhich they had been surrendered. Such cases certainly have no ■ application Avhatever to the present question, because nothing can be more clear than that a prisoner himself has no right to raise such a defence. Even in France, Avhere . . . the law and practice of extradition goes far beyond that which prevails in this country and in the United States, a prisoner is not permitted to set up such a defence, for the clear reason that he is Avithin the jurisdiction of the court, Avhich has the authority to try him for the offence of Avhich he is charged, and that Avhether he ought to be tried for an offence other than that for Avhich he has been surrendered is a matter of diplomacy betAveen the tAvo countries, and not a question between the prisoner and the court before which 'he is being tried.” Foreign ^Relations of the United States, 1876, 291.\nThis is, I think, the true rule, and it is in full accord Avith the principles applied by this court in The Richmond, 9 Cranch, 102, AArhere it Avas insisted upon by Avay of defence that a vessel proceeded against for a violation of the non-intercourse act had been seized within the. territorial jurisdiction of Spain.' As' to this,. Chief Justice Marshall said, in delivering the opinion of .the court: “ The seizure of an American vessel within the territorial jurisdiction of a foreign poAver is certainly an offence against that poAver, which must be adjusted between the two governments. This court can take no cognizance of it; and the majority of the court is of opinion that the law does not connect that trespass, if it be one, Avith the subsequent seizure by the civil authority, under the process of the District. Court, so as to annul the proceedings of that couit against the vessel.” If either country should use its privileges under the treaty to obtain a surrender of a fugitive on the *436pretence of trying him for an offence for which extradition could be claimed, so as to try him for one for which it could .not, it might furnish' just cause, of complaint on the part' of the country which had been .deceived, but it would be a matter entirely for adjustment between the two countries, and 'which could in no way enure to the benefit of the accused except' through the instrumentality' of the government that had been induced to give him. up.\nAs to § 5275,of the Revised Statutes I have only to say that, in my opinion, it neither' adds to the rights óf tjhe accused nor changes the effect of the treaty as a part- of the law of the United States. The accused was surrendered by Great Britain to the United States, and the United States are alone responsible to that country for whatever may be done with him in consequence of his surrender. He was delivered into the possession of the United States, and, in my opinion,, that possession may at any time be regained by the United States under this statute from the State, or its authorities, so long as the \"accused remains in custody, if it should be necessary in order to enable them to keep their faith with Great Britain in respect to the\" surrender.\nI do not care to elaborate the argument on either of these questions. My ofily purpose is to state generally the- grounds of my dissent.\n", "ocr": false, "opinion_id": 9841740 } ]

[ "536 U.S. 947" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/536/536.US.947.01-10220.html", "author_id": null, "opinion_text": "536 U.S. 947\n IHEKEv.UNITED STATES.\n No. 01-10220.\n Supreme Court of the United States.\n June 24, 2002.\n \n 1\n C. A. 11th Cir. Certiorari denied. Reported below: 277 F. 3d 1376.\n \n ", "ocr": false, "opinion_id": 121718 } ]

[ "684 P.2d 699", "102 Wash. 2d 140" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5996, "opinion_text": "\n102 Wash. 2d 140 (1984)\n684 P.2d 699\nTHE STATE OF WASHINGTON, Respondent,\nv.\nGORDON JAMES REED, Petitioner.\nNo. 49832-6.\nThe Supreme Court of Washington, En Banc.\nJune 28, 1984.\n*141 Don W. Taylor (of Fristoe, Taylor & Schultz, Ltd., P.S.), for petitioner.\nJeff Campiche, Prosecuting Attorney, and Jeremy Randolph, Special Appeals Deputy, for respondent.\nROSELLINI, J.\nOnce again this court confronts the difficult task of evaluating the effect that misconduct on the part of a young, zealous prosecutor has upon the rights of the defendant. Here, highly emotional appeals to jury prejudice, as well as improper expressions of personal belief, force us to reverse petitioner's conviction so that petitioner's unconditional right to a fair trial is preserved.\n\nI\nPetitioner, Gordon James Reed, stands convicted of first degree murder for the slaying of his wife. He has never denied committing the act but asserts that extreme intoxication, combined with borderline personality disorders, prevented him from forming a premeditated intent to kill his wife.\nThe basic facts of the crime are relatively undisputed. Petitioner and his wife, Anola Reed, led a seminomadic life for most of the time they were together. One, or both of them, drank frequently and worked less so. During these years, the couple had four children, the oldest of whom was 5 at the time of Anola's death.\nAt the time of the killing, the family was living in Raymond, Washington. Both Gordon and Anola were out of work. The record established that on at least two occasions, petitioner beat his wife. The last incident occurred on February 19, 1981. As a result of this incident, petitioner was charged with simple assault and ordered to stay away from the Reed residence. Anola commenced dissolution proceedings, and a male friend, Bill Templet, moved into the house. Anola and petitioner then reconciled and petitioner returned to the home. Prior to the reconciliation, however, *142 petitioner repeatedly made statements about killing Anola.\nOn April 23, 1981, Anola and her youngest child went to Aberdeen, met Bill Templet, and went to a minister. The three other children remained with petitioner, who spent the greater portion of that day drinking and playing pool. He testified that he expected Anola to return around 3 p.m. Anola returned home around 6 p.m.\nPetitioner was seen leaving the home at 6:30 p.m. and arrived at the downtown Seattle police station early the next morning, where he instructed his daughter, then 4 years old, to tell the police that he had killed her mother. After a confirming call to the Raymond police, petitioner was arrested. A blood alcohol test done at 3:10 a.m. on the 24th showed a blood alcohol reading of.05.\nAt trial, petitioner testified that immediately before the incident, his wife had told him that the minister advised her to \"go to Bill.\" Petitioner testified that the next thing he remembered after her telling him this was his son screaming \"killed Mommy.\" Petitioner testified that when he came to, he was covered with blood and his wife was dead.\nRegarding his intent, petitioner insisted that he at no time intended to kill or harm Anola.\nAt trial, a defense witness testified that petitioner would have to have had a minimum blood alcohol content of between .17 and .21 at the time of the crime, in order to have a .05 reading at 3:10 a.m. This testimony was consistent with the State's witness, who observed petitioner at 5:45 p.m. and noted that he was \"Extremely intoxicated. Could barely walk without holding on to some support.\" Report of Proceedings, at 244-45.\nThe defense also called two psychiatrists who, having examined petitioner, concluded that the combined effects of alcohol and petitioner's borderline personality disorders indicated that the petitioner did not plan to kill his wife. The State's rebuttal witness denied that petitioner had a personality disorder and denied that the consumption of alcohol \"in any way interfere[s] with your ability to intend *143 to do something\". Report of Proceedings, at 894.\nDuring closing arguments, the prosecutor, Jeff Campiche, attacked directly the diminished capacity defense. Among his comments are the following:\nMR. CAMPICHE: If it please the Court, members of the jury, Mr. Taylor said he was irritated, and I submit to you that he is eloquent. Mr. Taylor didn't irritate me. He educated me. It's quite an experience to try a case with a gentleman like Mr. Taylor, specially somebody as eloquent as he is. If I irritated him, it is probably because I had all the goods. It must be very difficult to represent somebody like Gordon Reed when you don't have anything. ... Let me do that again. Logic. You have A, and you take A and B and you get to C, a conclusion. The doctors have all their experience, their background. That's B. They asked Mr. Reed about the incident itself, and he tells him something. So you've got A, you've got B and you have got C, a conclusion. But since A is a liar, this guy couldn't tell the truth under torture. He has no idea what it is. ... In all their experience, they're gentlemen. They really are. Dr. Kaufman, I can't imagine spending a more pleasant afternoon with somebody. He looked very bad at the end of cross examination. I think a lot of his — his education and stuff — we've got education down here in the woods. I've got that many years of education and 3 more. But his (cleared throat) and he's been published a lot. In the Supreme Court, I've been published, but I'm not going to take your job away from you jurors. He has no more ability to tell you what Gordon Reed intended on the day of the crime than the detective.... Are you going to let a bunch of city lawyers come down here and make your decision? A bunch of city doctors who drive down here in their Mercedes Benz?\n\nMR. TAYLOR: I object to the comment and move it be stricken.\n...\nMR. CAMPICHE: If you think those comments are a little disparaging, it was done for a purpose. Just like much of all trial lawyers do — to shock you and make you think about that. Those doctors have to base what they say upon Gordon Reed, and he is a liar. He's a manipulator. We proved that beyond any doubt at *144 all.... All the stuff about who was a good housekeeper or not was designed for one purpose. To show you beyond any doubt, to convince you absolutely, that he's a liar. Let's assume she was a bad housekeeper and she was promiscuous. Who appointed this guy as executioner? Not this jury. Then, he suggests to you that when he did this heinous crime in front of his children, that proves it's manslaughter. We ought to re-enact the death penalty just for this guy for doing that.\n\n...\n... They're telling you what they thought, but based on the lies of Gordon Reed. ...\n...\n... How many times in 15 minutes did Gordon Reed form the intent to kill her? Premeditated. It says that any time, however long or short, that you form an intent to kill. If he had stopped stabbing her after he had stabbed her in the back, she'd be alive. How long is 5 minutes. Give him the complete benefit of doubt. I'm going to kill you, Anola. I want to kill you. I'm going to kill you. I'm going to punish you and kill you.\nMR. TAYLOR: I'm going to object —\nMR. CAMPICHE: I'm going to kill you —\nMR. TAYLOR: — to this —\nCOURT: The objection is overruled.\nMR. CAMPICHE: I'm going to kill you.\n...\n... Then, the final — the final insult to Anola Reed came from the eloquence of Don Taylor. The final insult to that poor woman, because Gordon Reed doesn't have her around any more, it should be manslaughter. Whew! That is like out of Captain Marvel. ... The kids told you he hit her with the chair, and then he stabbed her. He knowingly assaulted her with a weapon or instrument likely to cause harm. He's a cold murder two. It's cold. There is no question about murder two.\n\nMR. TAYLOR: I move to strike.\nCOURT: He is expressing an opinion and it's stricken.\n(Italics ours.) Report of Proceedings, at 979-88.\nDefense counsel repeatedly objected, moved to strike and for a mistrial. Each of the objections (except the one referring to \"I'm going to kill you\") were sustained but the motions for mistrial were denied.\n*145 The jury returned a verdict of first degree murder and petitioner appealed, alleging prosecutorial misconduct. In an unpublished opinion, Division Two agreed that the prosecutor had exceeded the proper bounds of argument, but concluded that the comments did not deny petitioner a fair trial. We granted review, and reverse. State v. Reed, 35 Wash. App. 1036 (July 29, 1983), review granted, 100 Wash. 2d 1017 (1983).\n\nII\nThe sole issue in this case is whether the comments of the prosecuting attorney denied petitioner a fair trial.\nTo answer this question, we must first determine that the comments are in fact improper. If they are improper, we must consider whether there was a \"substantial likelihood\" that the comments affected the jury; for, although the Sixth Amendment and Const. art. 1, § 22 grant defendants the right to trial by an \"impartial jury\", the right does not include a right to an error-free trial. State v. Latham, 100 Wash. 2d 59, 66, 667 P.2d 56 (1983).\nNo one, not even the prosecutor, questions the impropriety of these comments. The Code of Professional Responsibility, DR 7-106(C)(4), states unequivocally that an attorney shall not\nAssert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.\n[1] Applying the predecessor to this rule, this court has noted that it is just as reprehensible for one appearing as a public prosecutor to assert in argument his personal belief in the accused's guilt. State v. Case, 49 Wash. 2d 66, 298 P.2d 500 (1956). Here, the prosecutor clearly violated CPR DR 7-106(C)(4) by asserting his personal opinion of the credibility of the witness and the guilt or innocence of the accused. First, he called the petitioner a liar no less than four times. Next, the prosecutor stated that the defense *146 counsel did not have a case, and that the petitioner was clearly a \"murder two\". Finally, he implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars.\nThese statements suggest not the dispassionate proceedings of an American jury trial, but the impassioned arguments of a character from Camus' \"The Stranger\".[1]\nHaving made these statements — presumably to influence the jury — counsel now asserts that the comments are not as offensive as alleged and were not listened to by the jury. Respondent's novel theory of closing argument is reflected below:\nIt is important to place this issue in its proper context and step back and look at it realistically. Most seasoned trial lawyers will admit that arguments of counsel are more for the benefit of the person presenting the argument than the person listening. It would be nice if great arguments could affect jury verdicts, but that seldom, if ever, is the case in modern trials. Closing arguments serve primarily as a cathartic to counsel to give self assurance that they have done everything possible for their client.\nBrief of Respondent, at 3.\nRespondent's statements reflect, at best, a crude understanding of trial advocacy. At worst, these statements illuminate an inexcusable ignorance of a prosecutor's proper role in our legal system.\nIn State v. Case, supra at 70-71, we quoted with approval the following description of that role:\nThe responsibility of the prosecutor in the matter of a fair trial is referred to in People v. Fielding (1899), 158 N.Y. 542, 547, 53 N.E. 497, 46 L.R.A. 641, in these words:\n\"Language which might be permitted to counsel in summing up a civil action cannot with propriety be used *147 by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.\"\nOur view of a prosecutor's responsibilities is not of recent vintage. As early as 1909, Washington courts were characterizing it as the \"safeguards which the wisdom of ages has thrown around persons accused of crime\". State v. Montgomery, 56 Wash. 443, 447, 105 P. 1035 (1909). Prosecutors were reminded, then, as now, that they were public officers whose \"devotion to duty is not measured, like the prowess of the savage, by the number of their victims.\" Montgomery, at 447-48.\n[2] While the Court of Appeals recognized the clear impropriety of these comments, it concluded that no prejudice resulted from them. We disagree. Petitioner's sole defense theory was that he could not form the prerequisite, premeditated intent to kill his wife. The prosecutor's comments struck directly at the evidence which supported petitioner's theory by appealing to the hometown instincts of the jury. He emphasized the fact that petitioner's counsel and expert witnesses were outsiders, and that they drove expensive cars. Each of these statements was calculated to align the jury with the prosecutor and against the petitioner.\nMoreover, the State's evidence that petitioner deliberately intended to kill his wife was not, contrary to the State's assertion, overwhelming. Petitioner's admittedly severe intoxication, combined with psychiatric testimony of personality disorders, suggests a plausible theory that petitioner did not, at the time he committed the act, intend to kill his wife. We conclude, therefore, that there was a substantial likelihood that these comments affected the jury's *148 decision.\nBecause the prosecutor's comments reflect a grievous departure from the sentiments reflected above, and because there was a substantial likelihood that these comments affected the jury, we reverse.\nWILLIAMS, C.J., STAFFORD, BRACHTENBACH, DOLLIVER, DIMMICK, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur. UTTER, J. (concurring)\nI concur in the result reached by the majority and in the reasoning used to reach that result. I specially concur only to add that, based upon the comments of the prosecutor at oral argument, it is apparent he now appreciates the impropriety of his comments and that such conduct, in all probability, will not reoccur.\nNOTES\n[1] In \"The Stranger\", the hero is convicted of murder and sentenced to death, in part, because the prosecutor accused him of immorality because he did not cry at his mother's funeral. Although the dramatics of the prosecutor here were more relevant to the facts of the case, they were hardly less prejudicial.\n\n", "ocr": false, "opinion_id": 1434296 }, { "author_str": "Rosellini", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRosellini, J.\nOnce again this court confronts the difficult task of evaluating the effect that misconduct on the part of a young, zealous prosecutor has upon the rights of the defendant. Here, highly emotional appeals to jury prejudice, as well as improper expressions of personal belief, force us to reverse petitioner's conviction so that petitioner's unconditional right to a fair trial is preserved.\nI\nPetitioner, Gordon James Reed, stands convicted of first degree murder for the slaying of his wife. He has never denied committing the act but asserts that extreme intoxication, combined with borderline personality disorders, prevented him from forming a premeditated intent to kill his wife.\nThe basic facts of the crime are relatively undisputed. Petitioner and his wife, Anola Reed, led a seminomadic life for most of the time they were together. One, or both of them, drank frequently and worked less so. During these years, the couple had four children, the oldest of whom was 5 at the time of Anola's death.\nAt the time of the killing, the family was living in Raymond, Washington. Both Gordon and Anola were out of work. The record established that on at least two occasions, petitioner beat his wife. The last incident occurred on February 19, 1981. As a result of this incident, petitioner was charged with simple assault and ordered to stay away from the Reed residence. Anola commenced dissolution proceedings, and a male friend, Bill Templet, moved into the house. Anola and petitioner then reconciled and petitioner returned to the home. Prior to the reconciliation, however, *142petitioner repeatedly made statements about killing Anola.\nOn April 23, 1981, Anola and her youngest child went to Aberdeen, met Bill Templet, and went to a minister. The three other children remained with petitioner, who spent the greater portion of that day drinking and playing pool. He testified that he expected Anola to return around 3 p.m. Anola returned home around 6 p.m.\nPetitioner was seen leaving the home at 6:30 p.m. and arrived at the downtown Seattle police station early the next morning, where he instructed his daughter, then 4 years old, to tell the police that he had killed her mother. After a confirming call to the Raymond police, petitioner was arrested. A blood alcohol test done at 3:10 a.m. on the 24th showed a blood alcohol reading of .05.\nAt trial, petitioner testified that immediately before the incident, his wife had told him that the minister advised her to \"go to Bill.\" Petitioner testified that the next thing he remembered after her telling him this was his son screaming \"killed Mommy.\" Petitioner testified that when he came to, he was covered with blood and his wife was dead.\nRegarding his intent, petitioner insisted that he at no time intended to kill or harm Anola.\nAt trial, a defense witness testified that petitioner would have to have had a minimum blood alcohol content of between .17 and .21 at the time of the crime, in order to have a .05 reading at 3:10 a.m. This testimony was consistent with the State's witness, who observed petitioner at 5:45 p.m. and noted that he was \"Extremely intoxicated. Could barely walk without holding on to some support.\" Report of Proceedings, at 244-45.\nThe defense also called two psychiatrists who, having examined petitioner, concluded that the combined effects of alcohol and petitioner's borderline personality disorders indicated that the petitioner did not plan to kill his wife. The State's rebuttal witness denied that petitioner had a personality disorder and denied that the consumption of alcohol \"in any way interfere[s] with your ability to intend *143to do something\". Report of Proceedings, at 894.\nDuring closing arguments, the prosecutor, Jeff Campiche, attacked directly the diminished capacity defense. Among his comments are the following:\nMr. Campiche: If it please the Court, members of the jury, Mr. Taylor said he was irritated, and I submit to you that he is eloquent. Mr. Taylor didn't irritate me. He educated me. It's quite an experience to try a case with a gentleman like Mr. Taylor, specially somebody as eloquent as he is. If I irritated him, it is probably because I had all the goods. It must be very difficult to represent somebody like Gordon Reed when you don't have anything. . . . Let me do that again. Logic. You have A, and you take A and B and you get to C, a conclusion. The doctors have all their experience, their background. That's B. They asked Mr. Reed about the incident itself, and he tells him something. So you've got A, you've got B and you have got C, a conclusion. But since A is a liar, this guy couldn't tell the truth under torture. He has no idea what it is. .. . In all their experience, they're gentlemen. They really are. Dr. Kaufman, I can't imagine spending a more pleasant afternoon v/ith somebody. He looked very bad at the end of cross examination. I think a lot of his — his education and stuff — we've got education down here in the woods. I've got that many years of education and 3 more. But his (cleared throat) and he's been published a lot. In the Supreme Court, I've been published, but I'm not going to take your job away from you jurors. He has no more ability to tell you what Gordon Reed intended on the day of the crime than the detective. . . . Are you going to let a bunch of city lawyers come down here and make your decision? A bunch of city doctors who drive down here in their Mercedes Benz?\nMr. Taylor: I object to the comment and move it be stricken.\nMr. Campiche: If you think those comments are a little disparaging, it was done for a purpose. Just like much of all trial lawyers do — to shock you and make you think about that. Those doctors have to base what they say upon Gordon Reed, and he is a liar. He's a manipulator. We proved that beyond any doubt at *144all. . . . All the stuff about who was a good housekeeper or not was designed for one purpose. To show you beyond any doubt, to convince you absolutely, that he's a liar. Let's assume she was a bad housekeeper and she was promiscuous. Who appointed this guy as executioner? Not this jury. Then, he suggests to you that when he did this heinous crime in front of his children, that proves it's manslaughter. We ought to re-enact the death penalty just for this guy for doing that.\n\n. . . They're telling you what they thought, but based on the lies of Gordon Reed. . . .\n\n. . . How many times in 15 minutes did Gordon Reed form the intent to kill her? Premeditated. It says that any time, however long or short, that you form an intent to kill. If he had stopped stabbing her after he had stabbed her in the back, she'd be alive. How long is 5 minutes. Give him the complete benefit of doubt. I'm going to kill you, Anola. I want to kill you. I'm going to kill you. I'm going to punish you and kill you.\nMr. Taylor: I'm going to object—\nMr. Campiche: I'm going to kill you—\nMr. Taylor: —to this—\nCourt: The objection is overruled.\nMr. Campiche: I'm going to kill you.\n. . . Then, the final — the final insult to Anola Reed came from the eloquence of Don Taylor. The final insult to that poor woman, because Gordon Reed doesn't have her around any more, it should be manslaughter. Whew! That is like out of Captain Marvel. . . . The kids told you he hit her with the chair, and then he stabbed her. He knowingly assaulted her with a weapon or instrument likely to cause harm. He's a cold murder two. It's cold. There is no question about murder two.\nMr. Taylor: I move to strike.\nCourt: He is expressing an opinion and it's stricken. (Italics ours.) Report of Proceedings, at 979-88.\nDefense counsel repeatedly objected, moved to strike and for a mistrial. Each of the objections (except the one referring to \"I'm going to kill you\") were sustained but the motions for mistrial were denied.\n*145The jury returned a verdict of first degree murder and petitioner appealed, alleging prosecutorial misconduct. In an unpublished opinion, Division Two agreed that the prosecutor had exceeded the proper bounds of argument, but concluded that the comments did not deny petitioner a fair trial. We granted review, and reverse. State v. Reed, 35 Wn. App. 1036 (July 29, 1983), review granted, 100 Wn.2d 1017 (1983).\nII\nThe sole issue in this case is whether the comments of the prosecuting attorney denied petitioner a fair trial.\nTo answer this question, we must first determine that the comments are in fact improper. If they are improper, we must consider whether there was a \"substantial likelihood\" that the comments affected the jury; for, although the Sixth Amendment and Const. art. 1, § 22 grant defendants the right to trial by an \"impartial jury\", the right does not include a right to an error-free trial. State v. Latham, 100 Wn.2d 59, 66, 667 P.2d 56 (1983).\nNo one, not even the prosecutor, questions the impropriety of these comments. The Code of Professional Responsibility, DR 7-106 (C)(4), states unequivocally that an attorney shall not\nAssert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.\nApplying the predecessor to this rule, this court has noted that it is just as reprehensible for one appearing as a public prosecutor to assert in argument his personal belief in the accused's guilt. State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956). Here, the prosecutor clearly violated CPR DR 7-106(C)(4) by asserting his personal opinion of the credibility of the witness and the guilt or innocence of the accused. First, he called the petitioner a liar no less than four times. Next, the prosecutor stated that the defense *146counsel did not have a case, and that the petitioner was clearly a \"murder two\". Finally, he implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars.\nThese statements suggest not the dispassionate proceedings of an American jury trial, but the impassioned arguments of a character from Camus' \"The Stranger\".1\nHaving made these statements — presumably to influence the jury — counsel now asserts that the comments are not as offensive as alleged and were not listened to by the jury. Respondent's novel theory of closing argument is reflected below:\nIt is important to place this issue in its proper context and step back and look at it realistically. Most seasoned trial lawyers will admit that arguments of counsel are more for the benefit of the person presenting the argument than the person listening. It would be nice if great arguments could affect jury verdicts, but that seldom, if ever, is the case in modern trials. Closing arguments serve primarily as a cathartic to counsel to give self assurance that they have done everything possible for their client.\nBrief of Respondent, at 3.\nRespondent's statements reflect, at best, a crude understanding of trial advocacy. At worst, these statements illuminate an inexcusable ignorance of a prosecutor's proper role in our legal system.\nIn State v. Case, supra at 70-71, we quoted with approval the following description of that role:\nThe responsibility of the prosecutor in the matter of a fair trial is referred to in People v. Fielding (1899), 158 N. Y. 542, 547, 53 N. E. 497, 46 L. R. A. 641, in these words:\n\"Language which might be permitted to counsel in summing up a civil action cannot with propriety be used *147by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.\"\nOur view of a prosecutor's responsibilities is not of recent vintage. As early as 1909, Washington courts were characterizing it as the \"safeguards which the wisdom of ages has thrown around persons accused of crime\". State v. Montgomery, 56 Wash. 443, 447, 105 P. 1035 (1909). Prosecutors were reminded, then, as now, that they were public officers whose \"devotion to duty is not measured, like the prowess of the savage, by the number of their victims.\" Montgomery, at 447-48.\nWhile the Court of Appeals recognized the clear impropriety of these comments, it concluded that no prejudice resulted from them. We disagree. Petitioner's sole defense theory was that he could not form the prerequisite, premeditated intent to kill his wife. The prosecutor's comments struck directly at the evidence which supported petitioner's theory by appealing to the hometown instincts of the jury. He emphasized the fact that petitioner's counsel and expert witnesses were outsiders, and that they drove expensive cars. Each of these statements was calculated to align the jury with the prosecutor and against the petitioner.\nMoreover, the State's evidence that petitioner deliberately intended to kill his wife was not, contrary to the State's assertion, overwhelming. Petitioner's admittedly severe intoxication, combined with psychiatric testimony of personality disorders, suggests a plausible theory that petitioner did not, at the time he committed the act, intend to kill his wife. We conclude, therefore, that there was a substantial likelihood that these comments affected the jury's *148decision.\nBecause the prosecutor's comments reflect a grievous departure from the sentiments reflected above, and because there was a substantial likelihood that these comments affected the jury, we reverse.\nWilliams, C.J., Stafford, Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., and Cunningham, J. Pro Tern., concur.\n\nIn \"The Stranger\", the hero is convicted of murder and sentenced to death, in part, because the prosecutor accused him of immorality because he did not cry at his mother's funeral. Although the dramatics of the prosecutor here were more relevant to the facts of the case, they were hardly less prejudicial.\n\n", "ocr": false, "opinion_id": 9629075 }, { "author_str": "Utter", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nUtter, J.\n(concurring) — I concur in the result reached by the majority and in the reasoning used to reach that result. I specially concur only to add that, based upon the comments of the prosecutor at oral argument, it is apparent he now appreciates the impropriety of his comments and that such conduct, in all probability, will not reoccur.\n", "ocr": false, "opinion_id": 9629076 } ]

[ "468 F.3d 162" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/468/468.F3d.162.html", "author_id": null, "opinion_text": "468 F.3d 162\n HONEYWELL INTERNATIONAL, INC., Defendant-Appellant,v.PUROLATOR PRODUCTS CO., Motor Components, Bam Enterprises, Mark IV Industries, Inc., and Arvinmeritor, Inc., Third-Party Defendants,v.James LaForest, Henrietta LaFrinere, Robert Lintz, Ralph Miner, Laverne Spencer, and Irene Wesolowski, Plaintiffs-Appellees.Docket No. 06-0376-cv.\n United States Court of Appeals, Second Circuit.\n Argued: October 10, 2006.\n Decided: October 19, 2006.\n \n Tamsin J. Newman, Morgan, Lewis & Brockius LLP, New York, N.Y. (Joseph J. Costello, Morgan, Lewis & Brockius LLP, Philadelphia, PA, on the brief), for Appellant.\n William A. Wertheimer, Jr., Bingham Farms, MI, for Appellees.\n Before JACOBS, Chief Judge, WESLEY, HALL, Circuit Judges.\n DENNIS JACOBS, Chief Judge.\n \n \n 1\n Defendant Honeywell International, Inc. (\"Honeywell\") appeals from [i] the order of December 11, 2003, entered by the United States District Court for the Western District of New York (Telesca, J.) granting summary judgment in plaintiffs' favor on the issue of Honeywell's liability under the Employee Retirement Income Security Act (\"ERISA\"), 29 U.S.C. § 1132, and [ii] the district court's subsequent entry of a consent judgment pursuant to a settlement agreement on December 21, 2005. The only issue raised for appellate consideration is whether Honeywell can be compelled to pay attorneys' fees. A motion to compel payment of fees is pending in the district court. Honeywell appeals on the ground that the district court erroneously ruled—pre-settlement—that the case arises under ERISA; and Honeywell appeals now to assure that the ERISA ruling (which would be the predicate for a grant of attorneys' fees) is not later deemed the law of the case, or deemed forfeited or waived. For the following reasons, we dismiss the appeal for lack of appellate jurisdiction.\n \n BACKGROUND\n \n 2\n The underlying case—now settled—concerned Honeywell's liability to plaintiffs under a 1976 agreement in which Bendix Corporation, a company that was later succeeded by Honeywell, promised \"that certain retirees, vested employees, and surviving spouses would retain—for life—the level of health benefits in place at Bendix on April 1, 1976.\" LaForest v. Former Clean Air Holding Co. (\"LaForest I\"), 376 F.3d 48, 50 (2d Cir.2004). As a successor to Bendix Corporation, Honeywell is bound by the terms of the agreement. In LaForest I, we affirmed the district court's conclusion that, as a matter of law, Honeywell breached the 1976 agreement in violation of the Labor Management Relations Act (\"LMRA\") § 301, 29 U.S.C. § 185.\n \n \n 3\n On December 11, 2003, after the district court's decision regarding LMRA liability, but prior to our decision in LaForest I, the district court ruled as a matter of law that \"Honeywell breached its obligations under [an] employee welfare benefit plan, and is liable under ERISA for that breach.\" Following that decision, all parties to the litigation—plaintiffs, Honeywell, and third-party defendants—entered into a settlement agreement resolving all of plaintiffs' substantive claims against all parties. The settlement agreement explicitly preserved the issue of Honeywell's liability for attorneys' fees and costs pursuant to 29 U.S.C. § 1132(g)(1), which provides that a district court \"in its discretion may allow a reasonable attorney's fee and costs of action to either party\" in an ERISA action.\n \n \n 4\n On January 4, 2006, plaintiffs filed a motion for attorneys' fees and costs in the district court, a motion that is fully briefed and awaiting decision.\n \n DISCUSSION\n \n 5\n Under 28 U.S.C. § 1291, this Court may review a final decision of a district court regarding the merits of a claim despite the fact that a motion for attorneys' fees and costs remains pending in the district court. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Honeywell ostensibly appeals from the grant of summary judgment on the issue of ERISA liability. However, the parties' subsequent settlement mooted all issues other than plaintiffs' pending motion for attorneys' fees and costs. Accordingly, while Honeywell frames its appeal as a challenge to the ruling on liability, that determination remains vital only insofar as it exposes Honeywell to potential liability for fees and costs under 29 U.S.C. § 1132(g)(1).\n \n \n 6\n Honeywell's appeal therefore seeks review of a district court decision solely because it could serve as a predicate for an award of fees and costs. However, we have consistently held that an order awarding attorneys' fees and costs is not an appealable final order until the amount of fees and costs has been set by the district court. Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 86 (2d Cir.1998). Here, the district court has yet to exercise its discretion to determine whether fees or costs will be awarded at all; so a decision by the district court that a fee award is inappropriate in this case would moot the question raised on appeal. See In re Grand Jury Proceedings, 827 F.2d 868, 871 (2d Cir.1987) (stating that potential for mootness favors finding of non-finality). Even assuming that the district court's decision regarding Honeywell's ERISA liability was in error (a question we have not considered), the pending motion for fees and costs would provide the district court with an opportunity for \"self-correction.\" Id. (stating that opportunity for self-correction favors finding of non-finality).\n \n \n 7\n Honeywell cannot presently appeal the district court's grant of summary judgment on the issue of ERISA liability alone, because that ruling entailed no decision concerning the remedy for Honeywell's violation, a matter that was ultimately resolved or mooted by the settlement. \"An order adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own . . . .\" Taylor v. Bd. of Educ., 288 F.2d 600, 602 (2d Cir.1961). Accordingly, even were we to view Honeywell's appeal as Honeywell has framed it, it is not an appealable final order under 28 U.S.C. § 1291.\n \n CONCLUSION\n \n 8\n For the foregoing reasons, we dismiss the appeal for lack of appellate jurisdiction.\n \n ", "ocr": false, "opinion_id": 795940 } ]

[ "548 F. App'x 215" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\13/13-30173.0.pdf", "author_id": null, "opinion_text": " Case: 13-30173 Document: 00512465379 Page: 1 Date Filed: 12/09/2013\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 13-30173 December 9, 2013\n Summary Calendar\n Lyle W. Cayce\n Clerk\n\nGERALD BROWN,\n\n Petitioner-Appellant\n\nv.\n\nUNITED STATES OF AMERICA,\n\n Respondent-Appellee\n\n\n Appeal from the United States District Court\n for the Western District of Louisiana\n USDC No. 2:12-CV-674\n\n\nBefore DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.\nPER CURIAM: *\n Gerald Brown, federal prisoner # 33360-013, was convicted of drug-\ntrafficking in the District of Wyoming. He filed a purported habeas petition\nunder 28 U.S.C. § 2241 in the Western District of Louisiana where he was\nincarcerated. The district court construed the petition as a 28 U.S.C. § 2255\nmotion, dismissed it for lack of jurisdiction, denied Brown leave to appeal in\n\n\n\n\n * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not\nbe published and is not precedent except under the limited circumstances set forth in 5TH\nCIR. R. 47.5.4.\n\f Case: 13-30173 Document: 00512465379 Page: 2 Date Filed: 12/09/2013\n\n\n No. 13-30173\n\n\nforma pauperis (IFP), and certified that the appeal was not taken in good faith.\nBrown now moves for leave to appeal IFP.\n By moving for IFP, Brown challenges the district court’s certification\nthat the appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 202\n(5th Cir. 1997); FED. R. APP. P. 24(a)(3)(A). We ask only “whether the appeal\ninvolves legal points arguable on their merits (and therefore not frivolous).”\nHoward v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks\nand citation omitted). We may rule on the merits or dismiss the appeal “where\nthe merits are so intertwined with the certification decision as to constitute the\nsame issue.” Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.\n Relying on United States v. Booker, 543 U.S. 220 (2005), and related\nSupreme Court decisions, Brown contended that his sentence was unlawful.\nBecause he challenged his sentence, his petition was correctly construed as a\n§ 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).\nMoreover, Brown does not show that his claims could be brought in a § 2241\npetition under the savings clause of § 2255(e), because he does not establish\nthat any claim “‘is based on a retroactively applicable Supreme Court decision\nwhich establishes that the petitioner may have been convicted of a nonexistent\noffense’” and that the claim “‘was foreclosed by circuit law at the time when\nthe claim should have been raised.’” Padilla v. United States, 416 F.3d 424,\n426 (5th Cir. 2005) (quoting Reyes-Requena v. United States, 243 F.3d 893, 904\n(5th Cir. 2001)). The action was properly dismissed because the district court\nlacked jurisdiction over the § 2255 motion, which could have been filed, if at\nall, only in the district where Brown was convicted. See United States v.\nWeathersby, 958 F.2d 65, 66 (5th Cir. 1992).\n\n\n\n\n 2\n\f Case: 13-30173 Document: 00512465379 Page: 3 Date Filed: 12/09/2013\n\n\n No. 13-30173\n\n\n Brown identifies no non-frivolous issue for appeal. His IFP motion is\nDENIED and the appeal is DISMISSED. See Baugh, 117 F.3d at 202 & n.24;\n5TH CIR. R. 42.2.\n This is the second constructive § 2255 motion that Brown has incorrectly\npresented as a habeas petition and filed in a court without jurisdiction.\nMoreover, the Tenth Circuit rejected the underlying premise of his claims on\ndirect appeal years ago. United States v. Brown, 212 F. App’x 736, 741 (10th\nCir. 2007); see United States v. Brown, 556 F.3d 1108, 1109-11 & n.3 (10th Cir.\n2009). This appeal is frivolous. Brown is warned that further frivolous\nlitigation will result in the imposition of monetary sanctions and limits on his\naccess to federal courts.\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 2645370 } ]

[ "94 L. Ed. 2d 31", "70 S. Ct. 4", "338 U.S. 241", "1949 U.S. LEXIS 1735" ]

[ { "author_str": "Burton", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 479, "opinion_text": "\n338 U.S. 241 (1949)\nMcGRATH, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN,\nv.\nMANUFACTURERS TRUST CO.\nNO. 11.\nSupreme Court of United States.\nArgued October 12, 1949.\nDecided November 7, 1949.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.[*]*242 Joseph W. Bishop, Jr. argued the cause for the Attorney General. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and James L. Morrisson.\nLeonard G. Bisco argued the cause for the Manufacturers Trust Co. With him on the brief was Henry Landau.\nMR. JUSTICE BURTON delivered the opinion of the Court.\nNumbers 11 and 15 are cross appeals from Clark v. Manufacturers Trust Co., 169 F.2d 932 (C. A. 2d Cir.).[1] Certiorari was granted in No. 11, on petition of the Custodian,[2] to resolve a conflict between the judgment below and that in Clark v. Lavino & Co., 175 F.2d 897 (C. A. 3d *243 Cir.). The conflict is confined to the Custodian's claim to the allowance of interest, in his favor, in a summary proceeding under § 17 of the Trading with the Enemy Act.[3] He claims interest from the date that his Turnover Directive[4] was served upon the Manufacturers Trust Company, here referred to as the bank, and computes such interest upon the sum which he ordered turned over. For the reasons hereinafter stated, we agree with the judgment below in its denial of interest. We granted certiorari also on the cross appeal of the bank in No. 15. This was to enable us to reexamine the pleadings and, if they were found to permit it, to consider the bank's claim that the District Court lacked authority to order it to turn over to the Custodian the principal sum in question, in the face of the bank's denial of its indebtedness to the enemy creditor for that sum, its claim of a setoff in excess of the alleged debt, and its claim to a lien upon the proceeds of the debt. We find that the record does not permit us to reach that issue.\nFebruary 1, 1946, the Custodian issued his Vesting Order No. 5791, 11 Fed. Reg. 3005, under authority of *244 § 5 (b) of the Trading with the Enemy Act,[5] vesting himself with the following described \"property\":\n\"That certain debt or other obligation owing to Deutsche Reichsbank, by Manufacturers Trust Company, 55 Broad Street, New York, New York, arising out of a dollar account, entitled Reichsbank Direktorium Divisen Abteilung, and any and all rights to demand, enforce and collect the same, . . . .\"\nJanuary 30, 1947, the Custodian served on the bank his Turnover Directive based upon his Vesting Order and thereby directed that the sum of $25,581.49, \"together with all accumulations to and increments thereon, shall forthwith be turned over to the undersigned [the Custodian] to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States.\"\nOctober 29, 1947, the Custodian filed in the United States District Court for the Southern District of New York his petition against the bank seeking summary enforcement of his order under § 17 of the Act, supra. November 13, 1947, the bank answered.[6]\n*245 December 12, 1947, the District Court, without opinion, directed the bank to pay to the Custodian $25,581.49, plus interest at 6% per annum from January 30, 1947. The Court of Appeals for the Second Circuit struck out the interest but otherwise affirmed the judgment. One judge said he would have preferred to limit that court's holding to the point that the answer did not allege a sufficiently unequivocal claim to a setoff to raise that defense. Another dissented from the denial of interest. Petitions for certiorari were denied to both parties, January 17, 1949. 335 U.S. 910.\nJune 16, 1949, the Custodian asked leave to file a petition for rehearing and for a writ of certiorari on the ground that, on June 1, 1949, the Court of Appeals for the Third Circuit had decided Clark v. Lavino & Co., supra, in which it had expressly allowed interest to the Custodian under circumstances largely comparable to those in the case below. The bank asked leave to present its contentions *246 should the Custodian's petition for certiorari be granted. All applications were granted. 337 U.S. 953.\n\nI.\nThe Trading with the Enemy Act is a war measure.[7] It creates powerful and swift executive and summary procedures particularly for the seizure of the property of enemies by legal process as an effective alternative to seizure by military force. The Act expressly provides for the seizure of enemy-held claims to money owed on debts. Kohn v. Jacob & Josef Kohn, Inc., 264 F. 253 (S. D. N. Y.). Special proceedings are provided to try the merits of claims to property seized in such summary possessory procedures.[8] The present action is a summary *247 possessory proceeding under § 17.[9] Section 16, which has accompanied § 17 in the Act since 1917, prescribes fines, sentences and forfeitures as special sanctions to punish willful violations of vesting orders or turnover directives as follows:\n\"That whoever shall willfully violate any of the provisions of this Act or of any license, rule, or regulation issued thereunder, and whoever shall willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of this Act shall, upon conviction, be fined not more than $10,000, or, if a natural person, imprisoned for not more than ten years, or both; and the officer, director, or agent of any corporation who knowingly participates in such violation shall be punished by a like fine, imprisonment, or both, and any property, funds, securities, papers, or other articles or documents,. . . concerned in such violation shall be forfeited to the United States.\" 40 Stat. 425, 50 U.S. C. App. § 16.[10]\n*248 The Act makes no mention of interest charges in connection with the enforcement of these summary procedures. We recognize that, in the absence of express statutory provision for it, interest sometimes has been allowed in favor of the Government under other statutes when the Government's position has been primarily that of a creditor collecting from a debtor.[11] See Rodgers v. United States, 332 U.S. 371, 373, in which the rule was stated and interest disallowed. In the present case, however, we are not dealing with interest accruing to the Government upon contractual indebtedness or upon indebtedness such as that arising out of customs duties or taxes. We have here quite a different matter, the violation of a summary order of the Alien Property Custodian to turn over to him the physical possession of certain funds as a protective war measure. The Turnover Directive in the instant case is, in its essence, the same kind of an order as would have been issued to compel the delivery to the Custodian of the physical possession of a $25,000 bond owned by the Deutsche Reichsbank but held by the Manufacturers Trust Company in the latter's safe-deposit vaults. Statutory fines, sentences and forfeitures are prescribed for willful violation of such an order and, in the case of the bond, it is obvious that there would be no basis for the addition of an interest charge, computed at a statutory or judicially determined rate on the face or estimated value of the bond and running merely from the date of the Turnover Directive. Similarly, we find no basis for adding such an interest charge in the instant case.\n*249 No claim of the Custodian for any interest accruing under the terms of the agreement of deposit is before us. The Custodian, in his Turnover Directive and in his petition, called for the delivery to him of the $25,581.49 owing to Deutsche Reichsbank on the date of the Vesting Order, February 1, 1946, together with all accumulations and increments thereon since that date. He made no showing of a contractual basis for any additions to such principal sum and, accordingly, judgment was rendered for the delivery to him of precisely $25,581.49, and no claim is made here that such sum is not the correct total amount of the indebtedness. The District Court, however, also ordered the bank to turn over to the Custodian 6% interest on $25,581.49 from January 30, 1947. This additional item reflected no terms of the deposit agreement. Whatever those terms may have been, they had not changed since February 1, 1946, so that any possible basis for the 6% interest from January 30, 1947, must be sought in the Trading with the Enemy Act. We find no authority in that Act for a 6% rate or for any other rate of coercive interest to be added as an incident to a summary order for the transfer of possession of funds. Accordingly, in No. 11, we affirm the judgment of the Court of Appeals, which omitted the interest.\n\nII.\nIn No. 15, the parties have discussed several questions which would have been presented if the answer had contained a denial of the alleged debt, an unequivocal plea of setoff, or a claim of a lien upon the Deutsche Reichsbank's interest in the debt or in its proceeds. The answer, however, did not present those issues and we do not consider them. When read as a whole, the answer did not deny the existence of the credit balance of $25,581.49 which the Custodian claimed was on deposit and which was the subject of the Custodian's Vesting Order. Nor *250 did it unequivocally assert a setoff. Instead, the answering bank alleged, on information and belief, that an offsetting indebtedness of the Deutsche Reichsbank to it arose from the fact that the Deutsche Reichsbank was an instrumentality and part of the German Government, that the German Government had guaranteed to the answering bank the payment to it of the debts of various German banks, and that, on the date of the Vesting Order, the indebtedness of said German banks to the answering bank was in excess of $25,581.49. Those allegations did not state that the Deutsche Reichsbank was such an instrumentality and such a part of the German Government as would make the Reichsbank automatically the guarantor of the debts of other German banks to the answering bank.[12] The answer did not even allege the status of the guaranteed debts to be such as to entitle the answering bank to resort to the alleged guaranty of their payment by the Deutsche Reichsbank.[13] The bank's claim to a lien upon the deposit depended, likewise, upon the inadequately alleged indebtedness of the Deutsche Reichsbank to it.\n*251 For the foregoing reasons the judgment in No. 11 is affirmed, and the judgment in No. 15 is vacated so as to permit such amendments of the pleadings or further proceedings as shall be consistent with this opinion.\nIt is so ordered.\nMR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the consideration or decision of either of these cases.\nNOTES\n[*] Together with No. 15, Manufacturers Trust Co. v. McGrath, Attorney General, as Successor to the Alien Property Custodian, also on certiorari to the United States Court of Appeals for the Second Circuit.\n[1] J. Howard McGrath was substituted for Tom C. Clark, as Attorney General, 338 U.S. 807.\n[2] The term \"Custodian\" is used to refer either to the Alien Property Custodian or to the Attorney General who succeeded to the powers and duties of the Alien Property Custodian under Executive Order No. 9788, effective October 15, 1946, 1 C. F. R. 1946 Supp. 169.\n[3] \"SEC. 17. That the district courts of the United States are hereby given jurisdiction to make and enter all such rules as to notice and otherwise, and all such orders and decrees, and to issue such process as may be necessary and proper in the premises to enforce the provisions of this Act, with a right of appeal from the final order or decree of such court as provided in sections one hundred and twenty-eight and two hundred and thirty-eight of the Act of March third, nineteen hundred and eleven, entitled `An Act to codify, revise, and amend the laws relating to the judiciary.' \" 40 Stat. 425, 50 U.S. C. App. § 17.\n[4] Issued under § 7 (c), 40 Stat. 418, as amended, 40 Stat. 1020, 50 U.S. C. App. § 7 (c), and Executive Order No. 9193, 1 C. F. R. Cum. Supp. 1174, as amended by Executive Order No. 9567, 1 C. F. R. 1945 Supp. 77.\n[5] § 5 (b), 40 Stat. 415, as amended, 55 Stat. 839, 50 U.S. C. App. § 5 (b), and Executive Order No. 9095, 1 C. F. R. Cum. Supp. 1121.\n[6] The following parts of the answer are especially material to our decision in No. 15:\n\n\"7. Furthermore, by a vesting order the Alien Property Custodian can only vest property or a debt which was in existence at the time of the issuance of the Vesting Order. Manufacturers Trust Company did not hold any property for or on behalf of the Deutsche Reichsbank. The relationship between Manufacturers Trust Company as a depository and the Deutsche Reichsbank as a depositor of Manufacturers Trust Company is a debtor and creditor relationship. The existence of a debt from Manufacturers Trust Company to the Deutsche Reichsbank can not be predicated upon the status of a particular account. Manufacturers Trust Company can not be a debtor of the Deutsche Reichsbank unless the total of their mutual credits exceeds the total of their mutual debits. At the time of the issuance of the Vesting Order No. 5791, Deutsche Reichsbank's indebtedness to Manufacturers Trust Company was in excess of $25,581.49 and therefore there was no debt owing from Manufacturers Trust Company to Deutsche Reichsbank arising out of the Reichsbank Direktorium Divisen Ab[t]eilung account. The indebtedness of the Deutsche Reichsbank arose from the fact that Deutsche Reichsbank was upon information and belief, an instrumentality and part of the German Government. The German Government guaranteed to Manufacturers Trust Company the payment of debts of various German Banks to Manufacturers Trust Company. On June 1st, 1940 and June 14th, 1941, the indebtedness of the said banks to Manufacturers Trust Company, was in excess of $25,581.49.\n\"8. In addition to the foregoing, Manufacturers Trust Company is advised by counsel that a lien of a bank on a depositor's balance for the amount of depositor's indebtedness to the bank is well recognized by law. Manufacturers Trust Company is further advised by counsel that Section 8 of the Trading with the Enemy Act recognizes the lien of any person who is not an enemy or an ally of an enemy and the lienor's right to realize thereon in satisfaction of the lienor's claims.\" (Emphasis supplied.)\n[7] \"The Trading with the Enemy Act, whether taken as originally enacted, October 6, 1917, . . . or as since amended, March 28, 1918, . . . November 4, 1918, . . . July 11, 1919, . . . June 5, 1920,. . . is strictly a war measure and finds its sanction in the constitutional provision, Art. I, § 8, cl. 11, empowering Congress `to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' . . .\n\n\"It is with parts of the act which relate to captures on land that we now are concerned. . . . [After discussing particularly §§ 7 (c), 9, and 12]:\n\"That Congress in time of war may authorize and provide for the seizure and sequestration through executive channels of property believed to be enemy-owned, if adequate provision be made for a return in case of mistake, is not debatable. . . . There is no warrant for saying that the enemy ownership must be determined judicially before the property can be seized; and the practice has been the other way. The present act commits the determination of that question to the President, or the representative through whom he acts, but it does not make his action final.\" Stoehr v. Wallace, 255 U.S. 239, 241-242, 245-246. See also, Central Trust Co. v. Garvan, 254 U.S. 554, 568; Rubin, \"Inviolability\" of Enemy Private Property, 11 Law and Contemp. Prob. 166 (1945).\n[8] Section 9 (a) of the Act, 42 Stat. 1511, 50 U.S. C. App. § 9 (a), provides for the administrative consideration and allowance of claims to property transferred to the Custodian. A claimant also may sue in a District Court for an adjudication of the validity of his claim. Section 32, 60 Stat. 50, as amended, 60 Stat. 930, 50 U.S. C. App. § 32, authorizes the administrative recognition of claims to property in the possession of the Custodian and § 34, 60 Stat. 925, 50 U.S. C. App. § 34, authorizes a procedure for the allowance, and payment to claimants, of debts owed by the person whose property has been seized by the Custodian. See also, Central Trust Co. v. Garvan, 254 U.S. 554, 568; Garvan v. $20,000 Bonds, 265 F. 477 (C. A. 2d Cir.); Simon v. Miller, 298 F. 520, 524 (S. D. N. Y.); Kahn v. Garvan, 263 F. 909, 916 (S. D. N. Y.).\n[9] Petition filed October 29, 1947. Order to show cause issued that day. Answer filed November 13. Case heard and decided that day. Judgment entered December 12.\n[10] See also, penalties for willful violation added to § 5, 48 Stat. 1, 50 U.S. C. App. § 5 (b) (3). The Custodian may make the required Presidential determinations under § 7 (c). \"In short, a personal determination by the President is not required; he may act through the Custodian, and a determination by the latter is in effect the act of the President.\" Stoehr v. Wallace, 255 U.S. 239, 245; and see Central Trust Co. v. Garvan, 254 U.S. 554, 567.\n[11] E. g., Royal Indemnity Co. v. United States, 313 U.S. 289, 296; Billings v. United States, 232 U.S. 261; see also, Board of Commissioners v. United States, 308 U.S. 343, 350, 352.\n[12] For a description of the contemporary monetary and banking system of Germany and of the part played in it by the Deutsche Reichsbank, see Military Government Handbook, Germany, Section 5: Money and Banking, Army Service Forces Manual M356-5 Revised (March 1945), pp. 4, 66-73. For examples of differences between the liabilities of foreign public or semipublic corporations and those of the foreign governments to which they are related, see United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199 (S. D. N. Y.) and Coale v. Societe Co-op., 21 F.2d 180 (S. D. N. Y.).\n[13] 5 Michie, Banks and Banking (Perm. Ed.) §§ 126-128, and cases cited; 7 Zollmann, Banks and Banking (Perm. Ed.) §§ 4392, 4563, 4590. See also, restrictions on assertion, without a federal license, of any right of setoff which did not exist before June 14, 1941. Executive Order No. 8785, §§ 1. A. and 1. E., 1 C. F. R. Cum. Supp. 948, and see Propper v. Clark, 337 U.S. 472.\n\n", "ocr": false, "opinion_id": 104722 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.4dca.org/opinions/July 2014/07-16-14/4D14-403.op.pdf", "author_id": null, "opinion_text": " DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA\n FOURTH DISTRICT\n July Term 2014\n\n C.C-R., the mother,\n Appellant,\n\n v.\n\n DEPARTMENT OF CHILDREN & FAMILIES,\n Appellee.\n\n No. 4D14-403\n\n [July 16, 2014]\n\n Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.\nLucie County; Larry Schack, Judge; L.T. Case No. 562011DP145.\n\n Ana Gomez-Mallada, Fort Lauderdale, for appellant.\n\n Karla Perkins, Appellate Counsel, Department of Children & Families,\nMiami, for appellee.\n\n Laura E. Lawson, Sanford, for Guardian Ad Litem Program.\n\nPER CURIAM.\n\n Affirmed. See In re: S.V.B., 93 So. 3d 340 (Fla. 2d DCA 2012).\n\nGROSS, GERBER and CONNER, JJ., concur.\n\n\n * * *\n\n Not final until disposition of timely filed motion for rehearing.\n\f", "ocr": false, "opinion_id": 2689281 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 13, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/974/knappj.pdf", "author_id": null, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n\n AT JACKSON\n\n MAY 1997 SESSION\n FILED\n December 10, 1997\nSTATE OF TENNESSEE, * C.C.A. # 02C01-9608-CR-00282\n Cecil Crowson, Jr.\n Appellee, * SHELBY COUNTY Appellate C ourt Clerk\n\n\nVS. * Hon. W. Fred Axley, Judge\n\nJOHN KNAPP, * (Attempted Second Degree Murder)\n\n Appellant. *\n\n\n\n\nFor Appellant: For Appellee:\n\nCharles R. Curbo, Attorney John Knox Walkup\n109 Madison Avenue Attorney General & Reporter\nMemphis, TN 38103\n Kenneth W. Rucker\n Assistant Attorney General\n 450 James Robertson Parkway\n Nashville, TN 37243-0493\n\n Alanda Horne\n Assistant District Attorney General\n Criminal Justice Center, Third Floor\n 201 Poplar Avenue\n Memphis, TN 38103\n\n\n\nOPINION FILED:_____________________\n\n\n\n\nAFFIRMED\n\n\n\n\nGARY R. WADE, JUDGE\n\f OPINION\n\n The defendant, John Knapp, was convicted of attempted second\n\nmurder. The trial court imposed a Range I, ten-year sentence. In this appeal of\n\nright, the defendant claims an entitlement to a new trial on several grounds,\n\nincluding that the trial judge precluded an effective cross-examination of the victim\n\nand improperly commented on the evidence. Although counsel for the defendant\n\nfailed to enumerate other grounds in his appellate brief, there are references to\n\npossible other issues; included is an alleged violation of the rule of sequestration of\n\nwitnesses.\n\n\n\n We affirm the judgment of the trial court.\n\n\n\n In 1994, the defendant vacated a residence at 1609 Stribling in\n\nMemphis and the victim, Kevin Newburn, moved into the same residence. The\n\ndefendant and the victim had been friends and the defendant left the refrigerator for\n\nthe victim's use. Later, however, a dispute arose and the defendant gave notice to\n\nthe victim that he intended to regain possession of the item. Over a period of time,\n\nthe relationship between the defendant and the victim deteriorated to the point that\n\nthe defendant had to arrange for Ronnie Jackson, who lived near the victim, to help\n\nhim re-obtain the refrigerator.\n\n\n\n On February 6, 1995, Jackson and his stepson, Phillip, moved the\n\nrefrigerator from the victim's residence. Once the refrigerator was outside, the\n\ndefendant joined in the effort to move it into the Jackson residence. As the\n\nrefrigerator was maneuvered up a step, however, the door opened and several\n\nitems of spoiled food fell out. The defendant then threw the spoiled food over a\n\nfence into the victim's front yard. The victim heard the noise, walked outside his\n\n\n 2\n\fresidence, and observed dents in his vehicle which was parked near where the food\n\nwas thrown. The victim then picked up the garbage and threw it back. The victim\n\ntestified that when he returned to his residence, he heard a \"loud boom\" and so he\n\n\"came back outside and ... shot [his own weapon] up in the air.\" Otherwise, the\n\nvictim denied having made any threats toward the defendant at that point. Shortly\n\nafter this episode, two police cars arrived next door to talk to the defendant. They\n\nleft, however, without making any arrests.\n\n\n\n On the next day, the victim, who worked for a security company in\n\naddition to his duties with the United Parcel Service, was assigned to the apartment\n\ncomplex where the defendant lived. The victim, dressed in a security guard uniform,\n\nwas unarmed as he patrolled his vehicle through the apartment complex. Shortly\n\nbefore noon, the victim saw the defendant's sister, Melissa Montgomery, as she was\n\nleaving the apartments. The victim testified that he asked Ms. Montgomery \"what\n\nwas up\" with the defendant and his behavior the day before. According to the\n\nvictim, Ms. Montgomery answered that the defendant was \"crazy\" and that the victim\n\njust needed \"to leave him alone.\"\n\n\n\n The victim testified that a short while later he observed the defendant\n\ndrive through the apartment complex. He recalled that he refused a demand by the\n\ndefendant that he roll down his car window. What happened thereafter is best\n\nreflected in the victim's testimony:\n\n So I just ... looked over there and when I looked back, ...\n I saw the infrared beam and I saw him pointing that gun\n at me. And I was just sitting.... [W]hen I saw that beam\n ... it just froze me. I didn't know [if] this guy [was] going\n to pull this trigger or ... not.... [I]t hit my head and came\n down. After [it] hit the bottom of my eye, I ... just kind of\n ... closed my eyes and heard a boom.... I went over into\n the seat and blood ... was just running profusely out of\n my mouth and I couldn't stop it, so I just drove off. I just\n hit the gas. I didn't know what to do because he took off\n\n 3\n\f real fast.... So I started blowing the horn because I felt\n myself getting weak and I just knew I was going to pass\n out and I wouldn't make it to the office or make it\n anywhere. As I looked to my left, he had come back\n around beside me and it was like he was either waving\n that gun or waving his hand at me.... [I] drove to the\n leasing office, got out, and I walked to the door and told\n her, ... \"call 911, I've been shot.\" Blood [was] just\n running like a water faucet.\n\n\n\n The defendant testified that on the day before the shooting, he had\n\ncomplained to the police about the victim having thrown the garbage back into the\n\nJacksons' yard. He contended that the victim caused damages to his vehicle of\n\nalmost $1,000.00. On the day of the shooting, the defendant attempted to take out\n\na vandalism warrant against the victim. When he told officers that the damage to\n\nhis vehicle was over $500.00, however, he learned that more information would be\n\nrequired because the charge would be a felony rather than a misdemeanor. A short\n\nwhile later, the defendant learned that his sister, whom he described as \"hysterical,\"\n\nhad talked to the victim. He claimed that she suggested that he needed to \"go and\n\ncheck\" on the victim. The defendant then drove to his apartment complex \"to check\n\nand make sure somebody was not breaking into my apartment to steal my stereo\n\nequipment.\"\n\n\n\n The defendant testified that when he arrived, he saw the victim and\n\nasked, \"[W]hat the hell [are you] doing in my apartment complex?\" The victim\n\nanswered that he was a security guard. According to the defendant, the victim then\n\ninstructed him not to come into the neighborhood, else \"he would make it so I was\n\nunable to walk.\" The defendant claimed that the victim then said, \"Boy, I ought to go\n\nahead and take care of you now\" and then picked up a gun. The defendant, still\n\ninside his vehicle, testified that he leaned over, saw a gun on his floorboard, put a\n\nbullet in the chamber, hurriedly fired his weapon, and then drove away. The\n\n\n 4\n\fdefendant explained that he thought the victim \"was going to shoot me.\" Afterward,\n\nthe defendant drove to his place of employment, informed his boss what had taken\n\nplace, and then drove to the \"East Precinct\" of the police department.\n\n\n\n No weapon other than that of the defendant was discovered by police.\n\nThe victim's car window was shattered as he was struck in the chin by a bullet. A\n\nspent cartridge was later located on the window wiper of the defendant's car. Expert\n\ntestimony on the firearm indicated that the gun was being held outside the car\n\nwindow at the time the shot was fired.\n\n\n\n The defendant makes no challenge to the sufficiency of the evidence.\n\nSecond degree murder, a Class A felony, is \"a knowing killing of another.\" Tenn.\n\nCode Ann. § 39-13-210. Because the victim survived the shooting, the crime was\n\none of attempt. Tenn. Code Ann. § 39-12-101. The felony grade, Class B, is one\n\ndegree lower. Tenn. Code Ann. § 39-12-107. Certainly, it is our view that the\n\nrecorded evidence is sufficient to support the jury's verdict.\n\n\n\n In this appeal, the defendant contends that the trial court made a\n\nnumber of errors; however, he has failed to categorize his arguments. He\n\ncomplains that the trial judge ridiculed and threatened his defense counsel, thwarted\n\nthe cross-examination of the victim, and generally precluded the presentation of a\n\nproper defense.\n\n\n\n The defendant cites as the most egregious example of this the\n\ninstructions made by the trial court to the jury after defense counsel attempted to\n\ncross-examine the victim about the nature of earlier statements made for worker's\n\ncompensation and victims to crimes compensation purposes. When the issue was\n\n\n 5\n\fraised, the trial court charged the jury as follows:\n\n There is an attempt to impeach a witness on a prior\n inconsistent statement. When I charge you, ... I'll explain\n to you what that means. But in order for the witness to\n be impeached on a prior inconsistent statement, the\n lawyer trying to do that must have in his hand the\n statement.\n\n The court ... just learned that they don't have it, but will\n have it sometime today, within an hour is what I was told.\n So you cannot consider this line of questioning until the\n examining lawyer ... has that statement in their\n possession.\n\nAfter further discussions with counsel in connection to the worker's compensation\n\nclaim of the victim, the trial court instructed the jury a second time:\n\n [Y]esterday, there was an objection by the state that\n [defense counsel] was asking questions of [the victim]\n about a CIGNA insurance company worker's\n compensation claim ... and about statements that [the\n victim] had made to the ... company. You may recall that\n [the victim] stated that the ... hospital filed a claim and\n not him. I did not rule on the objection because the court\n was advised by defense counsel that this would be linked\n up by information that he had. I am advised today that\n he does not have that information and it is not available\n to him. The objection is sustained. In other words, I am\n ruling for the state. You may disregard the questions\n asked by defense counsel with regard to statements [the\n victim] made to CIGNA Insurance Company.\n\nThe defendant claims that this instruction was made in \"an extremely sarcastic tone\n\nof voice\" with an emphasis so as to indicate that his defense counsel was \"a liar.\"\n\nThe defendant contends that it was perfectly clear to the trial judge that defense\n\ncounsel never had a copy of the statement, only information as to its content.\n\n\n\n The defendant also refers to a violation of the rule requiring\n\nsequestration of witnesses. He contends that the victim, who had testified for the\n\nstate, should not have been permitted to stay in the courtroom after his testimony.\n\nThe defendant asserts that the trial judge violated the state constitution by\n\ncommenting favorably upon the credibility of the victim and indicating a belief in the\n\n\n 6\n\fguilt of the defendant. (See Tenn. Const., art. VI, § 9, providing that \"judges shall\n\nnot charge juries with respect to matters of fact, but may state and declare the law.\")\n\nThe defendant also argues that the trial judge's reference to Kevin Newburn as the\n\n\"victim\" was erroneous. He also complains that a transcript of the preliminary\n\nhearing was introduced at trial without redaction, including the opinion of the general\n\nsessions judge that there was \"probable cause.\" He also submits that the trial court\n\n\"smirked at defense counsel, would roll his eyes when [counsel] asked questions\n\nthat appeared to be making headway, and generally used every type of body\n\nlanguage possible to demean defense counsel.\" The defendant insists that the trial\n\njudge erroneously allowed the state's witnesses to handle the weapon used in the\n\nshooting but precluded the defense from doing so.\n\n\n\n I\n\n The victim filed a claim for criminal injuries compensation and the\n\nhospital where he was treated filed a claim for worker's compensation.1 The victim\n\nadmitted that he made a statement in support of his worker's compensation claim\n\nbut denied having made any statement regarding his claim as a victim of a criminal\n\nact.2 He explained that his attorney had prepared the statement regarding the claim\n\n 1\n In an out-o f-court s tatem ent discu ssion, the trial judge told d efense couns el that he ha d to\nshow knowledge of the contents of the statement made by the victim, which was apparently never\ntranscribed. Defense counsel could not pinpoint the source of his information. A witness from CIGNA\nInsuran ce Co mpa ny, Attorney B ruce W illiams of M emp his, had b een su bpoen aed by bo th the state\nand the defense. The state asked to excuse the insurance com pany representative but the court\nrefuse d to do so on the ba sis that de fense c ounse l had a right to call the repr esenta tive as a witne ss.\nW hile th e jury w as ou t, the w itnes s sa id the re wa s no w ritten f orm of the state me nt, on ly a tape in\nRichmond, Virginia. The witness claimed that he had not been subpoenaed by defense counsel and\nchos e to ap pear o nly after c onsu ltation w ith the pr osec ution. T he ex tent of M r. W illiams 's\nrepresentation was in providing advice to the insurance company as to how to respond to a faxed\nsubpo ena by the defens e ma de the da y before trial.\n\n 2\n Def ens e cou nse l rece ived a copy o f a fax from the C rim inal In juries Com pen satio n Cla ims\nDep artm ent o f the S tate th at ha d bee n filed by the victim . In a he aring out o f the p rese nce of the jury,\ndefens e coun sel read a portion of th e statem ent:\n\n On February 6, 1995, Mr. Newburn and his neighbor had an\n argument over a refrigerator which resulted in Mr. Newburn calling\n the police who removed the offender from the premises. On\n February 7, 1995, the offender went back to Mr. Newburn's job and\n shot him in the face .\n\n 7\n\ffor victim compensation. The trial court refused to allow use of the information in\n\neither claim as grounds to impeach the victim during cross-examination.\n\n\n\n Generally speaking, the right to an effective cross-examination\n\ninvolves the fundamental right to a fair trial. Yet the propriety, scope, and manner of\n\ncross-examination for the purposes of impeachment are within the discretion of the\n\ntrial court. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App. 1980); Tenn. R.\n\nEvid. 611(a).\n\n\n\n Here, the victim was questioned about the statement he had made in\n\nsupport of the worker's compensation claim. He was, however, unable to remember\n\nmuch of the content other than it was \"pretty much exactly the same thing I have\n\nalready said....\" Because defense counsel did not have a copy of the statement, the\n\ntrial court would not allow defense counsel to \"refresh the victim's memory\" by\n\nsuggesting the content.\n\n\n\n The state concedes that the trial court's assertion that \"in order for the\n\nwitness to be impeached on a prior inconsistent statement, the lawyer trying to do\n\nthat must have in his hand the statement,\" is not a correct statement of the law.\n\nTenn. R. Evid. 613. The state argues, however, that because defense counsel's\n\nonly knowledge of the statement was through discussions with clerical employees of\n\nthe insurance agency, the trial court properly precluded any reference to the\n\nstatement.\n\n\n\n\nThe vic tim den ied ma king the statem ent and th e trial court ru led that the d efenda nt was \"s tuck w ith\nthe ans wer\" and could no t introduce the faxe d statem ent.\n\n\n\n\n 8\n\f As to the criminal injuries claim, the victim recognized only the first and\n\nlast pages of the document, denied having ever read an attached police report, and\n\ncontended that he did not make the statement defense counsel sought to use for\n\nimpeachment. The trial court ruled that it would have been admissible only if\n\ncounsel could qualify the extrinsic evidence. The primary aim of the cross-\n\nexamination was to attack the credibility of the victim by showing that the victim had\n\nmade a false claim of ownership of the refrigerator. A second objective was to call\n\ninto question whether the victim had contacted police about the dispute.\n\n\n\n The victim could not recall the details of the his injury claim. When\n\ndefense counsel tried to refresh his memory, despite having only a general idea\n\nbased on conversations with another as to the content of the document, the purpose\n\nof the cross-examination was frustrated regardless of the intervention by the trial\n\ncourt. While the subject matter was clearly collateral to the central issue, it had\n\nsome relevance to the credibility of the victim. In context of the entire record,\n\nhowever, it is our view that the error was harmless; while defense counsel may have\n\nhad some basis to consider his colloquy with the court as a personal affront, it is our\n\nopinion that the ruling had no effect on the results of the trial. Tenn. R. App. P.\n\n36(b); Wilson v. State, 109 Tenn. 167, 70 S.W.2d 57 (1902).\n\n\n\n II\n\n Rule 615, Tenn. R. Evid., provides that witnesses, upon request of\n\neither counsel, must be excluded from the courtroom except during their testimony\n\nand prevented from disclosing the content of their proof. Here, the victim was called\n\nas a witness for the state. Because defense counsel indicated that he might recall\n\nthe victim during defense proof, the trial court declined to honor counsel's request\n\nfor continued sequestration. The state concedes that the trial court committed error\n\n\n 9\n\fby failing to recognize that the rule of sequestration includes rebuttal witnesses. Yet\n\nthe state argues that any error in the failure to exclude the victim as a witness was\n\nharmless. Tenn. R. App. P. 36(b).\n\n\n\n A history of the rule of sequestration of witnesses appears in State v.\n\nAnthony, 836 S.W .2d 600 (Tenn. Crim. App. 1992). Traditionally, trial judges have\n\nbeen afforded wide discretion in determining whether to impose the sanctions of\n\nexcluding the evidence of the witness suspected of violating \"the rule\" or declaring a\n\nmistrial. State v. Moffett, 729 S.W.2d 679, 681 (Tenn. Crim. App. 1986);\n\nTennessee Law of Evidence, Neil P. Cohen, et al., § 615.4 (3d ed. 1995).\n\n\n\n \"The rule\" was included in the Tennessee Rules of Evidence:\n\n At the request of a party the court shall order\n witnesses, including rebuttal witnesses, excluded at trial\n or other adjudicatory hearing. Sequestration shall be\n effective before voir dire or opening statements if\n requested. The court shall order all persons not to\n disclose by any means to excluded witnesses any live\n trial testimony or exhibits created in the courtroom by a\n witness. This rule does not authorize exclusion of (1) a\n party who is a natural person, or (2) an officer or\n employee of a party which is not a natural person\n designated as its representative by its attorney, or (3) a\n person whose presence is shown by a party to be\n essential to the presentation of the party's cause.\n\nTenn. R. Evid. 615. Prior to January 1, 1990, the effective date of the Rules of\n\nEvidence, \"the rule\" did not apply to rebuttal witnesses. Rule 615, however,\n\nprovides that upon request, \"the court shall order witnesses, including rebuttal\n\nwitnesses, excluded at trial or other adjudicatory hearing....\" The new rule does vest\n\ntrial courts with some discretion in that it does not apply to \"a person whose\n\npresence is shown by a party to be essential....\" Tenn. R. Evid. 615. The Advisory\n\nCommission Comment to this rule provides as follows:\n\n If a witness inadvertently and unintentionally hears some\n trial testimony, the sense of the rule would permit the\n\n 10\n\f judge to allow the witness to testify if fair under the\n circumstances.\n\nIn this case, the victim, after testifying for the state and retained by the defense as a\n\npossible witness, was never recalled to the stand. Neither was he recalled to testify\n\nagain for the state. Under these circumstances, it cannot be said that the state\n\ngained any advantage by the violation. Thus, any error was clearly harmless. State\n\nv. George Corbit Wallace, Jr., No. 01C01-9106-CC-00189 (Tenn. Crim. App., at\n\nNashville, Feb. 20, 1992).\n\n\n\n III\n\n The defendant asserts that the trial judge made an improper comment\n\non the evidence by referring to Newburn as a \"victim,\" by permitting the general\n\nsessions transcript into evidence, by prohibiting the defendant from handling the\n\nweapon during his testimony, and by making sarcastic remarks and exhibiting\n\nunfavorable body language.\n\n\n\n As to the reference to Newburn as victim, the trial court provided a\n\ncurative instruction as suggested by the defense. Because the trial court instructed\n\nthe jury to disregard his use of the word \"victim\" because it was in no way intended\n\nto express an opinion that Newburn was, in fact, a victim, the error was cured. It is\n\npresumed that a jury will follow the instructions of the court in such a situation. State\n\nv. Johnson, 762 S.W.2d 110, 116 (Tenn. 1988).\n\n\n\n On at least two separate occasions during the course of the trial,\n\ndefense counsel agreed to allow the entire general sessions court transcript to be\n\nread to the jury. Thus, the defense failed to take steps to prevent any alleged error\n\nby the admission of the transcript. Tenn. R. App. P. 36(a). Moreover, the trial court\n\ncorrectly instructed the jury on the presumption of innocence and properly charged\n\n 11\n\fthat the burden of proof was on the state beyond a reasonable doubt. It is unlikely,\n\nunder these circumstances, that any probable cause determination at the general\n\nsessions court level (a process repeated by the grand jury indictment) would have\n\nprejudiced the jury.\n\n\n\n It is difficult to assess allegations regarding body language and\n\nsarcasm. The written record rarely provides an accurate reflection of any such\n\nbehavior. That is the case here as well. A reference to the trial judge's laughter\n\nafter one exchange was, in our view, clearly inconsequential in the entire context of\n\nthe trial. Tenn. R. App. P. 36(b). During the course of the trial, the trial court\n\ninstructed the jury to determine the facts from the testimony of the witnesses. The\n\nlaw presumes that the jury adhered to those instructions.\n\n\n\n Finally, the only witness who was permitted to handle the weapon had\n\nbeen qualified as an expert on \"how nine millimeter weapons eject spent shells.\"\n\nWitnesses other than the court officer, whether called by the state or defense, were\n\nnot allowed to do so. In answer to the question by defense counsel for permission\n\nto \"approach the witness and pass him the weapon,\" the trial court answered, \"The\n\ndeputy can show it to him, that's his job.\" When defense counsel complained that\n\nthe state's attorney had been allowed to handle the weapon, the trial court\n\nresponded, \"You're welcome to ... but I cannot let you ... hand that weapon to this\n\nwitness....\"3 The rule of the trial court precluding the actual handling of weapons by\n\nwitnesses other than experts is reasonable. Because the rule applied to both the\n\nstate and the defense, the incident did not, in our view, affect the results of the trial.\n\n\n\n\n 3\n This exchange appears to have taken place in a bench conference although the record is not\nclear on th at point.\n\n 12\n\f Accordingly, the judgment is affirmed.\n\n\n\n __________________________________\n Gary R. Wade, Judge\n\nCONCUR:\n\n\n\n______________________________\nJohn H. Peay, Judge\n\n\n\n_______________________________\nThomas T. Woodall, Judge\n\n\n\n\n 13\n\f", "ocr": false, "opinion_id": 1083174 } ]

[ "2014 Ohio 1408" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2014/2014-ohio-1408.pdf", "author_id": 8086, "opinion_text": "[Cite as State v. Saenz, 2014-Ohio-1408.]\n\n\n COURT OF APPEALS\n LICKING COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n\n\n\nSTATE OF OHIO : JUDGES:\n : Hon. William B. Hoffman, P.J.\n Plaintiff-Appellee : Hon. Sheila G. Farmer, J.\n : Hon. Patricia A. Delaney, J.\n-vs- :\n :\nMICHAEL SAENZ : Case No. 13-CA-70\n :\n Defendant-Appellant : OPINION\n\n\n\n\nCHARACTER OF PROCEEDING: Appeal from the Court of Common\n Pleas, Case No. 12 CR 00642\n\n\n\nJUDGMENT: Affirmed\n\n\n\n\nDATE OF JUDGMENT: March 26, 2014\n\n\n\n\nAPPEARANCES:\n\nFor Plaintiff-Appellee For Defendant-Appellee\n\nBRIAN T. WALTZ THOMAS S. GORDON\n20 South Second Street 8026 Woodstream Drive, NW\n4th Floor Canal Winchester, OH 43110\nNewark, OH 43055\n\fLicking County, Case No. 13-CA-70 2\n\nFarmer, J.\n\n {¶1} On December 12, 2012, a search warrant was executed on the home of\n\nappellant, Michael Saenz. A large marijuana growing operation was discovered.\n\n {¶2} On December 21, 2012, the Licking County Grand Jury indicted appellant\n\non one count of possessing marijuana in violation of R.C. 2925.11 and one count of\n\ncultivating marijuana in violation of R.C. 2925.04. Each count carried a forfeiture\n\nspecification on numerous items, including appellant's residence.\n\n {¶3} On April 5, 2013, appellant filed a memorandum contra to the forfeiture\n\nspecification.\n\n {¶4} On July 2, 2013, appellant pled guilty as charged. Following the plea, the\n\ntrial court held a hearing on the forfeiture specification. By judgment entry filed July 5,\n\n2013, the trial court merged the marijuana counts and sentenced appellant to four years\n\nin prison and imposed a $7,500.00 fine. The trial court also found appellant's residence\n\nwas an instrumentality of the cultivation offense, and granted forfeiture of the items\n\nlisted in the indictment, including appellant's residence.\n\n {¶5} Appellant filed an appeal and this matter is now before this court for\n\nconsideration. Assignments of error are as follows:\n\n I\n\n {¶6} \"INSUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT THE\n\nTRIAL COURT'S FORFEITURE ORDER.\"\n\n II\n\n {¶7} \"THE FORFEITURE OF THE HOME IS EXCESSIVE IN PROPORTION\n\nTO THE AMOUNT OF THE MANDATORY FINE LEVIED ON THE APPELLANT.\"\n\fLicking County, Case No. 13-CA-70 3\n\n\n I\n\n {¶8} Appellant claims the forfeiture of his residence was against the sufficiency\n\nof the evidence. We disagree.\n\n {¶9} Appellant also argues the forfeiture of weapons and military equipment\n\nwas unwarranted. We note during the forfeiture hearing, appellant objected to the\n\nforfeiture of only his residence (T. at 25-26):\n\n\n\n MS. BURKETT: Your Honor, I believe that our legal argument is set\n\n forth in the memorandum contra, and the issue - - the only factual issue\n\n that we are disputing is whether or not the house was specifically\n\n designed to be used for marijuana.\n\n THE COURT: Okay.\n\n MS. BURKETT: I'm not sure that the Court finds that an element\n\n that it would consider in making its decision, but I'm prepared to offer\n\n evidence in that regard if it does.\n\n And I should not say the only. The second issue is how much\n\n income he actually derived from that, it that's an important issue for the\n\n Court in making a determination. Those are the two issues that Mr. Saenz\n\n would testify to.\n\n\n\n {¶10} In closing argument, defense counsel stated the following: \"So I would ask\n\nthat the Court not grant the forfeiture as it is related to the home. We didn't put on any\n\fLicking County, Case No. 13-CA-70 4\n\n\ntestimony specifically about the forfeiture of the weapons and are not specifically\n\narguing that those are not subject to forfeiture. Thank you.\" T. at 58.\n\n {¶11} In his memorandum contra filed April 5, 2013, appellant stated the\n\nfollowing:\n\n\n\n Now comes the defendant, by and through counsel, and\n\n respectfully moves this Honorable Court to deny the State of Ohio request\n\n that Mr. Saenz's residence be forfeited as a penalty herein. It is the\n\n position of Mr. Saenz that the forfeiture now sought is unconstitutional\n\n and, therefore, must be denied. Support for this position is provided in the\n\n memorandum below.\n\n\n\n {¶12} Although this assignment is worded to include other items, the only issue\n\nvia appellant's memorandum contra and the statements and arguments made during\n\nthe hearing is the forfeiture of the residence.\n\n {¶13} R.C. 2981.05(A) authorizes the seizure of property that is subject to\n\nforfeiture under R.C. 2981.02(A) which states the following in pertinent part:\n\n\n\n (A) The following property is subject to forfeiture to the state or a\n\n political subdivision under either the criminal or delinquency process in\n\n section 2981.04 of the Revised Code or the civil process in section\n\n 2981.05 of the Revised Code:\n\fLicking County, Case No. 13-CA-70 5\n\n\n (3) An instrumentality that is used in or intended to be used in the\n\n commission or facilitation of any of the following offenses when the use or\n\n intended use, consistent with division (B) of this section, is sufficient to\n\n warrant forfeiture under this chapter:\n\n (a) A felony.\n\n\n\n {¶14} R.C. 2981.02(B) mandates the following:\n\n\n\n (B) In determining whether an alleged instrumentality was used in\n\n or was intended to be used in the commission or facilitation of an offense\n\n or an attempt, complicity, or conspiracy to commit an offense in a manner\n\n sufficient to warrant its forfeiture, the trier of fact shall consider the\n\n following factors the trier of fact determines are relevant:\n\n (1) Whether the offense could not have been committed or\n\n attempted but for the presence of the instrumentality;\n\n (2) Whether the primary purpose in using the instrumentality was to\n\n commit or attempt to commit the offense;\n\n (3) The extent to which the instrumentality furthered the\n\n commission of, or attempt to commit, the offense.\n\n\n\n {¶15} Forfeiture is restricted to a proportionality test [R.C. 2981.09(A), (C) and\n\n(D)]:\n\fLicking County, Case No. 13-CA-70 6\n\n\n (A) Property may not be forfeited as an instrumentality under this\n\n chapter to the extent that the amount or value of the property is\n\n disproportionate to the severity of the offense. The owner of the property\n\n shall have the burden of going forward with the evidence and the burden\n\n to prove by a preponderance of the evidence that the amount or value of\n\n the property subject to forfeiture is disproportionate to the severity of the\n\n offense.\n\n (C) In determining the severity of the offense for purposes of\n\n forfeiture of an instrumentality, the court shall consider all relevant factors\n\n including, but not limited to, the following:\n\n (1) The seriousness of the offense and its impact on the\n\n community, including the duration of the activity and the harm caused or\n\n intended by the person whose property is subject to forfeiture;\n\n (2) The extent to which the person whose property is subject to\n\n forfeiture participated in the offense;\n\n (3) Whether the offense was completed or attempted.\n\n (D) In determining the value of the property that is an\n\n instrumentality and that is subject to forfeiture, the court shall consider\n\n relevant factors including, but not limited to, the following:\n\n (1) The fair market value of the property;\n\n (2) The value of the property to the person whose property is\n\n subject to forfeiture, including hardship to the person or to innocent\n\n persons if the property were forfeited.\n\fLicking County, Case No. 13-CA-70 7\n\n\n\n\n {¶16} In its judgment entry filed July 5, 2013, the trial court went into great detail\n\nabout its reasoning in ordering the forfeiture:\n\n\n\n By defendant's admission in 2012, he should have generated in\n\n excess of $38,000.00 of profit from his cultivation operation. The\n\n defendant pleaded guilty to a second degree offense of cultivation which\n\n carries with it a mandatory fine of $7,500.00 and a maximum fine of\n\n $15,000.\n\n The defendant was charged and plead guilty to having over 16\n\n pounds of marijuana in his basement.\n\n The Court finds that the house at 1158 Louada Drive in Heath, Ohio\n\n was an instrumentality of the cultivation offense. It was modified to permit\n\n the growing operation. It was, by virtue of the crawl space dug out\n\n underneath the house, that instrumentality that hid the operation from the\n\n public and provided a safe place in which to conduct the cultivation\n\n operation. The plumbing system had been modified to provide for the\n\n cultivation operation and ventilation had been attached to the sewer to\n\n further hide the operation. The upstairs of the home had extra tubing,\n\n brand new and never yet used in order to either replace the existing tubing\n\n or to expand the cultivation operation. The Court has considered the\n\n factors set out in State v. Adams, 213-OH-1603, such as whether the\n\n offense could not have been committed but for the presence of the house,\n\fLicking County, Case No. 13-CA-70 8\n\n\n whether the primary purpose in using the offense and the extent to which\n\n the house furthered the commission of the offense.\n\n The Court finds the offense could not have been committed without\n\n the home and the opportunity for the crawl space to have been dug out\n\n and that this home and crawl space facilitated and furthered the\n\n commission of the offense. The primary purpose of the home may not\n\n have been to commit the offense, but given the extent of the income\n\n generated and the extra equipment in the bedrooms and the bathroom, it\n\n was becoming the primary purpose of the home. No one else resided\n\n there other than the defendant.\n\n Based on the amount of income generated through the sales for\n\n one year, let alone prior years, and the proportionality of those sales as\n\n well as the maximum fine of $15,000.00 to the value of the house, the\n\n Court cannot find that it is disproportionate not to forfeit the home. Earlier\n\n cases, such as State v. Adams, supra, or State v. Ziepfel, 107 App. 3d\n\n 646 (1995) upheld forfeitures where the proportionate value of sales or\n\n fines related to the value of the object forfeited were much greater. Other\n\n cases in Ohio have permitted the forfeiture of homes ranging in values of\n\n approximately $30,000.00 on the basis of a sale of merely $250. In the\n\n present case, the defendant was illegally producing 30% of the value of\n\n the asset annually.\n\n The Court finds the house was the basis of operations for the\n\n cultivation operation which was used to conceal his trafficking operations.\n\fLicking County, Case No. 13-CA-70 9\n\n\n His home was used as his shop to create the marijuana and was\n\n obviously the base of operations for the cultivation.\n\n\n\n {¶17} Despite this reasoning, appellant argues the forfeiture of his residence\n\nfails under the \"but for\" language of R.C. 2981.02(B)(1). Appellant argues there were\n\nmany other places to grow marijuana other than the dug out crawl space of his\n\nresidence i.e., a backyard, woods, farmers' fields, parks, etc. Appellant's Brief at 11.\n\n {¶18} Appellant testified the crawl space was originally used for storage, but\n\nafter he took ownership of the residence, he ran water pipes to the space to facilitate\n\ncultivation and grew \"anything\" including marijuana. T. at 28-29. He was experimenting\n\nwith \"hydroponics.\" T. at 29. He specifically designed the tubing and piping in the crawl\n\nspace to grow marijuana, and he installed a dehumidifier to facilitate the growth of\n\nplants. T. at 33-34, 38.\n\n {¶19} Appellant had very little means of support in regular employment. T. at\n\n31-33. Appellant admitted his primary source of income was from marijuana that he\n\ngrew, and he sold approximately four ounces of marijuana from his plants every week.\n\nT. at 35-37.\n\n {¶20} In contrast to appellant's testimony, Newark Police Detective George\n\nRomano, Jr. described the crawl space as follows (T. at 44-46):\n\n\n\n The crawl space access was through the master bedroom closet,\n\n approximately 24-by-24 square, covered with carpet, had its own door.\n\n When you enter down into the crawl space, the first area that you come to\n\fLicking County, Case No. 13-CA-70 10\n\n\n appeared to be what we would call a cutting room, table set up, chairs set\n\n up where you could harvest the plants, if you will, in a separate area.\n\n There was additionally five-gallon buckets of soil. It appeared as if\n\n an expansion process was going on as opposed to a wall, I couldn't say,\n\n but there was buckets of soil. Looked like they were ready to go back to\n\n the crawl space and outside.\n\n There was two or three, depending upon how you looked at it,\n\n separate grow rooms modified in homemade walls, if you will, 2-by-4\n\n plywood, styrofoam-type construction with a white plastic covering over\n\n the ceiling area, if you will, watering system within a hydroponic system.\n\n He did have a recirculating system more along the lines for the chemicals\n\n flowing through each of the watering tubes.\n\n Not all the rooms were tied together, each room kind of controlled\n\n itself; however, it appeared that the water that was going with the\n\n chemicals was coming from a water line underneath the house there and\n\n in a \"T\"-type fashion. What also appeared to us is that there was a\n\n ventilation system to bring the odor and some of the heat off of the grow\n\n room into the sewer system, so it was tied together in two parts there.\n\n Approximately a half of the underneath of that had been dug out,\n\n and the rest of it was traditional crawl space. Several cinder blocks that\n\n appeared to be originally support structure for the residence had been\n\n moved and stacked up. It did look as if there was going to be an\n\n expansion in that not only with the soil coming out, upstairs there was the\n\fLicking County, Case No. 13-CA-70 11\n\n\n master bedroom, two bedrooms and a bathroom all that contained grow\n\n equipment. In the current state that the downstairs was, the upstairs\n\n tubes and the grow equipment was either replacements if something\n\n broke, or to be used for another operation or an expansion.\n\n\n\n {¶21} Appellant admitted to Detective Romano that he had been growing\n\nmarijuana since 2007 and lived on the profits from the growing operation. T. at 48-49.\n\n {¶22} The trier of fact accepted the description of the residence, the amount of\n\nmarijuana seized, and appellant's admissions to the detective. The weight to be given\n\nto the evidence and the credibility of the witnesses are issues for the trier of fact. State\n\nv. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact \"has the best opportunity to view\n\nthe demeanor, attitude, and credibility of each witness, something that does not\n\ntranslate well on the written page.\" Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-\n\nOhio-260.\n\n {¶23} Although appellant argues he could have grown marijuana elsewhere, the\n\nevidence supports the finding that the total manufacture and design of the hidden crawl\n\nspace was for appellant's income producing product, marijuana. We find the forfeiture\n\ndoes not fail the \"but for\" test. In addition, there is no evidence in the record of the\n\nvalue of the residence. Appellant's only attempt at valuation was denied by the trial\n\ncourt via an objection. T. at 42.\n\n {¶24} Upon review, we find the trial court did not err in ordering the forfeiture of\n\nthe residence.\n\n {¶25} Assignment of Error I is denied.\n\fLicking County, Case No. 13-CA-70 12\n\n\n II\n\n {¶26} Appellant claims the forfeiture of his residence was excessive in\n\nproportion to the amount of the mandatory fine. We disagree.\n\n {¶27} The relevant portions of the proportionality statute, R.C. 2981.09, are cited\n\nabove.\n\n {¶28} Appellant argues the maximum fine was $15,000.00, he was ordered to\n\npay $7,500.00, and the value of his residence exceeded $100,000.00. However, as\n\nnoted above, there is no evidence in the record of the value of the residence. T. at 42.\n\n {¶29} As explained by our brethren from the Eleventh District in State v. Adams,\n\n11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶ 68:\n\n\n\n In determining the proportionality of a forfeiture, many factors have\n\n been applied. \"[A] lower court's proportionality analysis ' * * * must\n\n necessarily accommodate the facts of the case and weigh the seriousness\n\n of the offense, including the moral gravity of the crime measured in terms\n\n of the magnitude and nature of its harmful reach, against the severity of\n\n the criminal sanction.' \" State v. Scheibelhoffer, 11th Dist. No. 98–L–039,\n\n 1999 Ohio App. LEXIS 3094, *9, 1999 WL 476106 (June 30, 1999),\n\n quoting Hill at 33–34, 635 N.E.2d 1248. This same proportionality\n\n analysis has been applied following the amendment of the forfeiture law in\n\n 2007. See State v. Luong, 12th Dist. No. CA2011–06–110, 2012–Ohio–\n\n 4520, ¶ 53. Similarly, pursuant to R.C. 2981.09, \"[i]n determining the\n\n severity of the offense for purposes of forfeiture of an instrumentality, the\n\fLicking County, Case No. 13-CA-70 13\n\n\n court shall consider all relevant factors including, but not limited to, * * *\n\n [t]he seriousness of the offense and its impact on the community,\n\n including the duration of the activity and the harm caused or intended by\n\n the person whose property is subject to forfeiture; * * * [t]he extent to\n\n which the person whose property is subject to forfeiture participated in the\n\n offense;* * * [and] [w]hether the offense was completed or attempted.\"\n\n\n\n {¶30} It is appellant's burden to establish a disproportionate sentence. R.C.\n\n2981.09(A). Appellant admitted to Detective Romano that he had been growing\n\nmarijuana since 2007, and the cultivation of marijuana was his sole source of income\n\nand support. T. at 48-49.\n\n {¶31} Upon review, we find nothing in the record to establish a punitive or\n\ndisproportionate taking. The only fine imposed was the $7,500.00 mandatory fine.\n\n {¶32} Assignment of Error II is denied.\n\fLicking County, Case No. 13-CA-70 14\n\n\n {¶33} The judgment of the Court of Common Pleas of Licking County, Ohio is\n\nhereby affirmed.\n\nBy Farmer, J.\n\nHoffman, P.J. and\n\nDelaney, J. concur.\n\n\n\nSGF/sg 303\n\f", "ocr": false, "opinion_id": 2698273 } ]

[ "541 A.2d 629" ]

[ { "author_str": "McKUSICK", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n541 A.2d 629 (1988)\nPaul J. PHILLIPS et al.\nv.\nDavid B. FULLER.\nSupreme Judicial Court of Maine.\nArgued March 10, 1988.\nDecided May 26, 1988.\nKenneth W. Hovermale (orally), Bornstein & Hovermale, Portland, for plaintiffs.\nE. Allen Hunter, Thomas J. Pelletier (orally), Solman, Page & Hunter, Caribou, for defendant.\nBefore McKUSICK, C.J., and NICHOLS, ROBERTS, GLASSMAN, SCOLNIK and CLIFFORD, JJ.\nMcKUSICK, Chief Justice.\nIn this personal injury action, on remand following an earlier appeal from a dismissal of the action, Phillips v. Fuller, 524 A.2d 1221 (Me.1987), the Superior Court (Aroostook County) entertained a motion by defendant David B. Fuller for the enforcement of a settlement agreement. Counsel for plaintiffs Paul J. and Catherine D. Phillips had allegedly entered into that settlement agreement with defendant's counsel on the eve of the scheduled trial of the personal injury action in 1985. See id. at 1222. With plaintiffs' full acquiescence, and in keeping with the way both parties presented their positions on defendant's latest motion, the justice who heard defendant's motion to enforce the settlement agreement treated defendant as having filed both a motion to amend his answer to add an \"affirmative defense\"[1] and a motion for summary judgment. The justice then denied defendant's motion for summary judgment, finding that genuine issues of material fact relating to the enforceability of the alleged settlement agreement remained to be tried. Defendant has appealed.\nBy well-established law, the denial of a motion for summary judgment is an interlocutory ruling and is not appealable. See Olson v. Albert, 523 A.2d 585, 589 (Me. 1987); Bigney v. Blanchard, 430 A.2d 839, 841 (Me.1981); General Elec. Credit Corp. v. Smith, 230 A.2d 414, 414 (Me.1967). Accordingly, the entry is:\nAppeal dismissed.\nAll concurring.\nNOTES\n[1] Defendant's claim seeks to enforce an executory settlement agreement. That contract claim could be asserted by a complaint commencing a separate action under M.R.Civ.P. 3 or by a permissive counterclaim filed under M.R. Civ.P. 13(b) in the pending action that defendant alleges has been settled. What the motion justice and the parties called an \"affirmative defense\" is the functional equivalent of a counterclaim in the circumstances of this case. Before trial of the facts defendant should amend his answer to set forth his contract counterclaim fully and clearly. The Superior Court might well consider trying the contract counterclaim separately from, and in advance of, any trial of the personal injury action. See M.R.Civ. P. 13(i), 42(b).\n\n", "ocr": false, "opinion_id": 1919510 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 17, "download_url": "http://www.tsc.state.tn.us/sites/default/files/state_of_tennesse_v_james_alton_walton.pdf", "author_id": null, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n Assigned on Briefs September 14, 2010\n\n STATE OF TENNESSEE v. JAMES ALTON WALTON\n\n Direct Appeal from the Circuit Court for Dyer County\n No. 08-CR-352 Lee Moore, Judge\n\n\n\n\n No. W2009-02100-CCA-R3-CD - Filed May 23, 2011\n\n\nA jury convicted the defendant, James Alton Walton, of aggravated burglary, a Class C\nfelony, and theft of property $500 or less, a Class A misdemeanor. The trial court sentenced\nhim to an effective ten-year sentence. On appeal, the defendant argues that the evidence was\ninsufficient to sustain his convictions and that the trial court erred in sentencing the\ndefendant. After reviewing the record, the parties’ briefs, and applicable law, we affirm the\njudgments of the trial court.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed\n\nJ.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY\nT HOMAS, J R., JJ., joined.\n\nJames E. Lanier, District Public Defender; Patrick McGill (on appeal and at trial) and Christy\nCooper (at trial), Assistant Public Defenders, for the appellant, James Alton Walton.\n\nRobert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney\nGeneral; C. Phillip Bivens, District Attorney General; and Renee Creasy and Karen Burns,\nAssistant District Attorneys General, for the appellee, State of Tennessee.\n\n OPINION\n\n Background\n\n A Dyer County grand jury indicted the defendant, James Alton Walton, for one count\nof aggravated burglary, a Class C felony, and theft of property more than $1,000, a Class D\n\ffelony. The trial court held a jury trial on July 23-24, 2009, and the parties presented the\nfollowing evidence.\n\n State’s Proof\n Michael Shawn Gilbreth testified that he lived in Dyersburg, which was in Dyer\nCounty, Tennessee. Gilbreth identified the defendant and said that he knew him because he\nwas the son of his next door neighbor, James Walton, Sr. He said that the defendant was not\nhis neighbor at the time of the trial, but he had lived in the rental property on the other side\nof his trailer home from the Fall of 2007 through the Spring of 2009. Gilbreth stated that he\nmet the defendant “shortly after [he] bought the home when [the defendant] came to [his]\nfront door and asked [him] if [he] wanted to buy a woman’s ring[,] and [he] told [the\ndefendant that he] did not want to buy a woman’s ring from him . . . .”\n\n Gilbreth recalled that on June 29, 2008, he and his then girlfriend, Melissa Bedwell,\nleft his home to go to church around 10:15 a.m. He stated that he locked his bedroom, back,\nand front doors with a shackle and hasp latch, which was his “routine.” Gilbreth said that\nhe began this routine because he had “been the victim of repeated, unresolved burglaries.”\nHe initially locked only his exterior doors, but he began to lock his interior bedroom door\nafter someone burglarized his home during April 2008.\n\n Gilbreth said that on June 29, he\n\n walked out the back door, locked the door, walked back around, locked the\n door from the inside with the deadbolt as well, locked the bedroom door,\n secured . . . what [he called his] valuables in that bedroom and exited out the\n front door and locked that door along with [Bedwell] and [they] departed for\n church that morning.\n\nThey went directly home after church and arrived there a little before noon.\n\n Gilbreth stated that when he entered his home he noticed that his home was “way too\nquiet.” The temperature outside was in the mid 90’s, but his air conditioner was not running.\nHe said that he did not hear the compressors for his deep freezer or refrigerator because they\nwere not running either. He assumed that his power was off, which was common, and not\nhaving power did not immediately disturb him.\n\n Gilbreth began walking toward his bedroom, which was in the back of the home, and\nheard a noise outside his back door. He was unable to exit the back door because he had\nlocked it from the outside that morning, so he exited from the front door and walked around\nhis trailer to the backyard. When Gilbreth exited the front door and walked to the backyard,\n\n -2-\n\fBedwell was still in the front driveway. He believed she was sitting in his truck smoking a\ncigarette. When he got to the backyard, he saw the defendant walking along the “fence line.”\nHe said that the defendant used a board that was at the fence as a ladder and climbed the\nfence. When the defendant got to the top, Gilbreth yelled his name, and the defendant\n“turned around and looked at [him] as he fell over the fence.” He said that the defendant was\nwearing a “dark colored jersey glove as he was climbing the fence . . . .”\n\n Gilbreth walked over to the defendant’s property and saw the defendant standing on\nthe back porch. Gilbreth asked the defendant why he was in his backyard and jumped the\nfence, and the defendant told him that he was looking for his puppy. According to Gilbreth,\nthe defendant told him that he “better get out of his yard before he called the law on [him],\nbut [Gilbreth] was telling [the defendant] that he did not need . . . to be jumping [his] fence,\nlet alone, to be in [his] [backyard] at all.” By that time, Bedwell had joined the men in the\nbackyard, and she asked the defendant what was on his porch. Gilbreth looked down and\nsaw the defendant “fiddling with a rug with his foot.”\n\n Gilbreth testified that he followed Bedwell as she walked toward the defendant. She\npulled back the rug, and they saw “her laptop inside its case, [Gilbreth’s] laptop[,] and cedar\nlock box that [Gilbreth’s] uncle had made for [him] . . . .” Gilbreth said that he could\nrecognize his laptop because it had a Tennessee Titans helmet sticker on the front. He said\nthat the defendant denied that he had taken the items, and the defendant told Gilbreth that he\n“wasn’t [going to] pin this on him; that there was this tall guy that [Gilbreth] needed to go\nafter right now and that he was just getting the things for . . . safekeeping.”\n\n Gilbreth testified that he did not believe the defendant. Bedwell called the authorities\nwhile Gilbreth stayed with the defendant. Gilbreth followed the defendant when he took the\nitems to his front door. According to Gilbreth, the defendant was “being hostile and\nthreatening toward [him,] but [Gilbreth] told him [that he] was not [going to] let those items\nout of [his] sight . . . .” He stated that the defendant opened his front door, and the puppy,\nfor which the defendant claimed he had been looking, came outside and went back inside the\ndefendant’s home. He further stated that the defendant got a black trash bag from inside his\nhome, placed the computers and the lock box in the bag, and began walking toward his\nparents’ home. Gilbreth followed the defendant into the defendant’s parents’ backyard. He\nsaid the defendant knocked on his parents’ back door and “became extremely threatening at\nthat point.” Gilbreth testified that the defendant told him that “if [he] didn’t get out of there\n. . . his daddy’s 380 would make [him].”\n\n The defendant’s parents did not open the door, and by this time, Bedwell had reached\nthe gate to the defendant’s parents’ yard. Bedwell did not enter the backyard, but she was\nwithin speaking distance and tried to convince the defendant to return her and Gilbreth’s\n\n -3-\n\fitems. Gilbreth said that the defendant eventually gave him the bag and left. Gilbreth\nbrought the bag to his yard and left it there. He said that he did not open the bag until the\nauthorities arrived. He and the defendant did not have any further contact that day.\n\n Gilbreth went to the back of his home and\n\n saw the hinges to [his] door laying on the deck, saw the screwdriver with the\n small diameter that would fit inside the hinge, noticed the hammer in the\n second bedroom that [he] knew wasn’t [his], saw the lock off the bedroom\n door that was broken off inside there, saw the electric box outside that was\n open and switched turned off.\n\nGilbreth identified the hammer that he found in his bedroom and said that he had never seen\nthe hammer before June 29, 2008. Gilbreth stated that his parents were the only other people\nwho had keys to his lock. He said that he had never given the defendant permission to enter\nhis home or to take anything from his home.\n\n When the authorities arrived, Gilbreth went through the trash bag that the defendant\nhad given him. Gilbreth said that he recovered his laptop and cedar lock box from the bag.\nBefore he retrieved his laptop from the bag, Gilbreth had last seen it when he placed it under\nhis bed a few hours before. He said that when he purchased the laptop it cost $700. Gilbreth\ndescribed his cedar lock box as a “roughly ten to eleven inch[] square, [that had] a hinged lid\nand also [had] a shackle and hasp and small lock . . . .” He said that the box did not contain\nany valuables. He had last seen the box before church when he placed it on a shelf under his\ntelevision in his bedroom. He stated that the box was homemade and had sentimental value.\nHe estimated that the materials used to make the box cost $20. Besides the laptop and cedar\nlock box, Gilbreth noticed that his Swiss Army watch with a leather band was missing, which\ncost $50 new. He last saw the watch on his night stand before he went to church.\n\n On cross-examination, Gilbreth testified that characterizing his relations with the\ndefendant as enemies would not be fair. He denied pulling a gun on the defendant’s parents\nand going to court for doing so. He later testified that he did go to court for allegedly pulling\na gun on the defendant’s parents, but he said that the court dismissed the case. He said that\nhe and the defendant’s parents had disputes regarding the boundary lines to their properties.\nHe stated that the defendant’s parents did not want him to mow the grass on the “two feet\nmarked along their fence line. They wanted to come into [his] backyard and mow it.”\n\n Gilbreth did not recall arguing with the defendant. However, he remembered an\nincident when the defendant asked him if he had told a neighbor that he and the defendant\n“were into it.” Gilbreth stated that before this burglary, he had called the police to his home\n\n -4-\n\fabout three or four times regarding burglaries. A couple of days after the June 29 incident\nwith the defendant, Gilbreth asked the defendant’s mother why she was upset with him.\nGilbreth did not understand why the defendant’s parents were angry with him because “[he\nwas] the victim here.”\n\n On redirect examination, Gilbreth testified that the case regarding him pulling a gun\non the defendant’s parents occurred after the incident with the defendant. He said that he\nbelieved that the animosity had grown on their part, but he tried “not to be that kind of\nperson.” He also said that he just wanted to live in his home without anyone stealing from\nhim or throwing trash in his yard. Gilbreth stated that he was anxious and nervous during\nthe incident with the defendant. He explained that he had repeatedly been burglarized, but\nhe had never witnessed someone burglarizing his home.\n\n On recross-examination, Gilbreth testified that he had a gun the day that the\ndefendant’s parents accused him of pulling a gun on them. He said that he had it to his side,\nbut did not pull it out on the defendant’s parents or anyone else. Gilbreth stated that he “was\nscared half to death” because the defendant walked in front of his home repeatedly and was\nbeing verbally abusive. Gilbreth said that he feared for his life.\n\n Melissa Bedwell testified that she used to date Gilbreth. She accompanied him to\nchurch the morning of June 29, 2008. She had spent the previous night at Gilbreth’s home,\nand they left for church around 10:00 a.m. that morning. Bedwell said that when they left\nfor church, she left some of her items in a duffel bag on the bed in Gilbreth’s spare bedroom.\nGilbreth put her laptop under the bed in his room with his laptop so that he could lock them\nin the room. Bedwell said that she saw the locked bedroom door.\n\n Bedwell said that she and Gilbreth went straight to his home after church. When they\narrived, Gilbreth exited his truck and began to unlock the door to his home while she smoked\noutside. She said that shortly after Gilbreth unlocked the door, he ran to the back of his\nhome. She asked him what was wrong, but he did not answer her. When he came back to\nthe front of the home, he told her that the defendant had jumped the fence. Bedwell went to\nthe back of Gilbreth’s home while Gilbreth went to the defendant’s home. While in\nGilbreth’s backyard, Bedwell observed the defendant bending over and picking up her\nlaptop, which was in a black bag, and Gilbreth’s laptop. She said that after the defendant\npicked up the laptop he walked toward his porch. While the defendant was walking toward\nhis porch, Bedwell was “hollering for [Gilbreth] to let him know that [the defendant] had\n[their] laptops.” Bedwell removed her high heel shoes and ran around Gilbreth’s house\ntoward Gilbreth, who was in the defendant’s backyard. When she reached the defendant’s\nbackyard, Bedwell removed her jacket, gave it to Gilbreth, and told him that the defendant\nhad their laptops. She saw that the laptops were on the porch and approached the defendant\n\n -5-\n\fto retrieve them after she saw him pull a rug over them. She stopped approaching the\ndefendant, however, when he became “a little hostile” toward her. Bedwell then retrieved\nher cell phone from Gilbreth’s truck and used it to call the police.\n\n While she was still on the phone with the police dispatcher, Bedwell went to the front\nof the defendant’s trailer home where the defendant and Gilbreth were standing. She noticed\nthat the defendant had a black bag and told Gilbreth that their belongings were in the bag.\nThe defendant began walking toward his parents’ home, and she and Gilbreth followed him\nto keep an eye on their belongings. The defendant and Gilbreth went into the defendant’s\nparents’ fenced-in backyard, but Bedwell stayed on the other side of the fence. She was no\nlonger on the phone with the police dispatcher, and she and Gilbreth tried to convince the\ndefendant to return their belongings. She said that the defendant said that “it was too late,\n[she] had already called, [and] that he was going to get charged with it anyways.” The\ndefendant eventually gave them the bag, and they took it to Gilbreth’s home and left it on the\nground until the police arrived.\n\n Bedwell stated that the defendant took a HP laptop from her that day. She had last\nseen the laptop in the living room by the couch, but she said that Gilbreth later placed it\nunder his bed. She estimated that the value of the laptop was $900. The last time she saw\nthe laptop was when they retrieved the bag from the defendant. Bedwell also stated that the\ndefendant took a diamond ring from her. She saw the ring before church in her duffel bag\nthat was in the defendant’s spare bedroom. She said the value of the ring, which was never\nrecovered, was about $200. She also claimed the defendant took her gold and diamond\ntennis bracelet, which was also in the duffel bag. She last saw the bracelet Saturday evening.\nShe never recovered the bracelet, which she valued at $60. She denied giving the defendant\npermission to take her laptop, ring, or bracelet.\n\n Bedwell had gotten herself ready for church in Gilbreth’s spare bedroom and said that\nshe did not notice any tools laying out in the bedroom that morning. When she later went in\nthe bedroom, she saw a hammer on the dresser. She identified the hammer for the court and\nsaid that it did not belong to her and that she had never seen it before that day. Bedwell\nidentified the defendant and said that she had seen him before the June 29 incident. She\nstated, however, that she did not have a relationship with the defendant or his parents before\nthe incident.\n\n On cross-examination, Bedwell testified that before June 29, she had stayed at\nGilbreth’s home a total of two to three weeks. She said that she had met the defendant’s\nparents and seen them on their property before June 29 but did not have any “dealings” with\nthem. Besides the jewelry, Bedwell also had clothes, shoes, and a pair of costume jewelry\nearrings in her duffel bag.\n\n -6-\n\f Bedwell said that when she was in Gilbreth’s backyard, she was about “two to four\nhundred yards” from the fence between Gilbreth’s and the defendant’s property. She saw the\ndefendant pick up their laptops through the cracks in the approximately six feet tall wooden\nfence. She said her laptop bag was distinguishable because “[t]he little thing that’s on the\nfront of the laptop bag [was] . . . missing and it doesn’t have it on there and the bag that he\npicked up also did not have it on there.” She stated that when she tried to retrieve the bags,\nthe defendant was hollering and saying that he did not have anything.\n\n Bedwell said that when she called the police, she told them that “someone had\nbroke[n] in, had [their] things, [and] they needed to send a police officer.” The dispatcher\nadvised her that the police were on their way and told her to call back if she had further\ntrouble. Bedwell stated that she was on the phone with the police “a good while” before they\ndisconnected their call. Bedwell was on the defendant’s property the entire time she was\nspeaking with the police dispatcher, and she saw the defendant with a black garbage bag in\nhis hand. She could not hear what the defendant and Gilbreth were saying while she was\ntalking to the dispatcher.\n\n When Bedwell finished her conversation with the dispatcher, Gilbreth told her that\nthe defendant, who was walking down the street, had their property in the black garbage bag.\nShe followed the defendant and Gilbreth to the defendant’s parents’ yard. She said that the\ndefendant was standing on his parents’ back steps and knocking on their door. Gilbreth was\nstanding inside the defendant’s parents’ metal gate, and Bedwell was standing on the outside.\nShe said that when the defendant said that he was not going to give them the bag because\nthey would charge him anyway, she told him that they would consider dropping the charges\nand not having the police arrest him. The defendant surrendered the bag to them, and they\nplaced it beside Gilbreth’s steps. Bedwell stated that she never saw anyone put anything in\nthe bag and did not see what was in the bag until they had retrieved it from the defendant.\n\n On redirect examination, Bedwell testified that she did not see anyone else in the\ndefendant’s yard while she was looking through the fence or while she was in the defendant’s\nbackyard confronting him. She further testified that she did not see any other person come\nout of the defendant’s home or yard while she was at the truck getting her cell phone or while\nshe was following the defendant and Gilbreth down the street.\n\n Deputy Rick Gregory, with the Dyer County Sheriff’s Department, testified that he\nresponded to Bedwell’s call. He recalled that Gilbreth and Bedwell were in the yard close\nto the driveway and their vehicle. He asked them what the problem was, and they told him\nwhat had happened. The officers went inside Gilbreth’s home to make sure no one was\n\n\n\n -7-\n\finside. After he checked Gilbreth’s home, Deputy Gregory went back outside and took\nBedwell and Gilbreth’s statements.\n\n Deputy Gregory identified the defendant and said that after he got the victims’\nstatements, he went to the defendant’s home. He stated that he knocked on the door for\nabout five minutes before the defendant came to the door. He said that the defendant was\non his cell phone when he answered the door. The defendant came outside, sat, and\ncontinued to talk on his cell phone. After the defendant got off his cell phone, he\nimmediately told Deputy Gregory that “he had just seen a white, skinny dude run out of the\nback of [Gilbreth’s] house.” He said the defendant told him that the man “threw something\nin the back of [his] yard and then he ran into the woods behind Mr. Gilbreth’s house.”\nDuring his investigation, Deputy Gregory looked at Gilbreth’s yard. He described it as\n“fairly clean . . . and clear.” He stated that the backyard did not open to anything, such as\nanother backyard. He further stated that Gilbreth had a “hill” in his yard that one could not\nclimb without the assistance of a rope or other type of climbing equipment.\n\n Deputy Gregory testified that when the defendant finished telling him what had\nhappened, he looked at the defendant’s clothing and noticed he was wearing the same thing\nthat Gilbreth and Bedwell had told him that the suspect whom they had seen climbing the\nfence was wearing. Based on the defendant’s, Gilbreth’s, and Bedwell’s statements, Deputy\nGregory took the defendant into custody. Deputy Gregory and the other officers on the scene\nsearched the area for additional evidence after officers transported the defendant away from\nthe property.\n\n While searching the defendant’s property, Deputy Gregory saw an area rug hanging\nover the defendant’s back deck. At the time, the rug did not have any significance to Deputy\nGregory. He also found a single “brown jersey glove” on the back deck. At Gilbreth’s\nhome, Deputy Gregory noticed that the back door “was not your standard mobile home type\ndoor. It looked like it had been replaced by a residential type door. . . . Most mobile home\ndoors are pin and hinge type doors. [Gilbreth’s] had three hinges.” He stated that the hinges\nwere outside Gilbreth’s home, and he found a small screwdriver and two hinge pins on the\ndeck. He further stated that the screwdriver was four inches and could “knock a pin out.”\n\n Deputy Gregory stated that Gilbreth told him about the lack of power in his home.\nWhen he investigated, Deputy Gregory saw that the utility panel was open and the main\nbreaker was off. He said that it was hot inside Gilbreth’s home. Deputy Gregory saw the\nlock, which was missing some parts of the hasp, on Gilbreth’s bedroom door. He said that\nthe lock “looked like somebody struck it with something and pretty much destroyed it.” He\nidentified the hammer, which he recovered from a desk in Gilbreth’s spare bedroom, and the\nstate entered it into evidence. Deputy Gregory said that when “CID” arrived at the scene,\n\n -8-\n\fthey went through the black bag. He recalled that the bag contained two laptops, one of\nwhich was in a laptop bag, and a small wooden box. Deputy Gregory searched the area\naround where the defendant had jumped over the fence and the defendant’s home in an\nattempt to find other items that they did not recover from the bag. Deputy Gregory did not\nrecover the remaining items.\n\n On cross-examination, Deputy Gregory testified that at approximately 12:08 p.m. he\nreceived the call to investigate the incident. He further testified that he did not work in the\nDyer County Jail and could not say whether their intake sheet, which listed the defendant’s\ntime of arrest as 12:08 p.m., was incorrect. He stated that 12:08 may have been the time that\nDeputy Goff, who was at the scene of the incident, transported the defendant. Deputy\nGregory said that he did not see Deputy Goff speak to Gilbreth. He also said that he did not\nhear Gilbreth mention that the defendant had scratched his arms while climbing the fence,\nnor did he see any scratches on the defendant. Deputy Gregory recalled that Lori Walton,\nthe defendant’s wife, cooperated with him and allowed him to search the defendant’s home.\nDeputy Gregory did not take fingerprint or DNA evidence. He stated that the only evidence\nhe collected was the hammer, and he released the computers and the lock box back to their\nowners.\n\n On redirect examination, Deputy Gregory testified that he was not certified to take\nfingerprints and officers do not take them in every case. He said that he helped in making\nassessments whether officers needed to take fingerprint or DNA evidence, and he did not\nthink that this case warranted fingerprinting or DNA testing.\n\n Defendant’s Proof\n Bicki McCollum, the records clerk at the Dyer County Sheriff’s department, identified\nthe Dyer County Sheriff’s Department Intake Sheet for the defendant, and the defense\nentered it into evidence. McCollum testified that the intake sheet listed the defendant’s time\nof arrest as 12:08 p.m. She also identified the complaint card for the call to the police\ndepartment and the incident report for this case.\n\n On cross-examination, McCollum testified that as records clerk she entered\ninformation about the call into the computer, read and coded each report, and retrieved\nreports for people who wanted one. She stated that she did not create the reports, and she\n“merely” managed them. She further stated that she did not dictate the intake and arrest\ntimes for the report and relied on the officers for the information. She had no personal\nknowledge of the arrest times and did not know whether the times were exact because she\nwas never on the scene of the incidents.\n\n\n\n\n -9-\n\f The defendant’s father, James Walton Sr., recalled when authorities arrested the\ndefendant. He stated that he had just had both of his knees replaced and was bedridden. He\nsaid that his wife was at church so the defendant was at his home the morning of June 29\nhelping him. He said that the defendant left shortly after 12:00 p.m. He did not see the\ndefendant again that day and did not hear anyone knock on his door.\n\n On cross-examination, James1 testified that he was taking Hydrocodone every six\nhours for the pain associated with his surgery. He had been taking Hydrocodone for a while\nand said that the pills did not make him sleepy, and he was “very alert.” He said that the\ndefendant’s helping him was convenient because the defendant lived down the street. He\nsaid that he loved the defendant, but he was not going to lie for him. James said that he had\nnever been convicted of a felony or convicted for a “worthless check,” but he did serve time\nin jail when he was sixteen years old.\n\n Lori Walton, the defendant’s wife, testified that she and the defendant had been\ntogether for eight and a half years and married for almost one year. She lived with the\ndefendant on Walton Road on June 29, 2008. She said that a disturbance woke her that\nmorning. She thought that the defendant just had the television too loud and got up to “fuss\nat him.” Lori said that the defendant and Gilbreth were in the kitchen “having words.”\nAccording to Lori, the defendant “was telling [Gilbreth] to get the heck out of the house.”\nLori was wearing her nightgown and went to change into clothes. She said that before the\ndisturbance the defendant had been at his parents’ home helping his father. She further said\nthat the defendant did not leave their home after Gilbreth left, and the police arrived shortly\nafter. Lori stated that she did not see the defendant with any items that did not belong to\nthem nor did she see him with a black bag.\n\n Lori spoke with a couple of the police officers who arrived at the scene and allowed\nthem to search her home. She said that the officers were looking for a ring and a watch so\nshe showed them where she and the defendant kept their jewelry. She said that she was\nsitting on her front porch and an investigator asked her whether the hammer the officers had\nfound looked familiar. She told the investigator that she did not recognize the stickers on the\nhammer’s handle. Lori showed the investigators the drawer in which she and the defendant\nkept their hammer, but the hammer was not in the drawer. She said that the investigator told\nher that the defendant used the hammer to break into Gilbreth’s home. She did not remember\nat the time of the defendant’s arrest, but Lori later remembered that the defendant was\nbuilding shelves in their computer room. Lori said that, to her knowledge, the officers did\nnot retrieve any items from her and the defendant’s home.\n\n\n 1\n Several witnesses have the last name W alton. W e will refer to them by their first names to avoid confusion\nand do not intend any disrespect.\n\n -10-\n\f Lori did not know Bedwell and did not speak with Bedwell or Gilbreth during the\nincident. She also did not speak with the defendant much before the police arrested him.\nShe recalled, though, that the defendant said that he “was being accused of breaking into this\nman’s house,” but she did not know anything about the incident. According to Lori, the\ndefendant and Gilbreth had problems and did not get along.\n\n On cross-examination, Lori said that she married the defendant on July 18, 2008. She\nsaid that she was crying while she spoke with the investigators because the police had\narrested her husband. She denied she was crying because she thought he had broken into\nGilbreth’s home. She also denied that she told the officers that the hammer appeared to look\nlike the defendant’s hammer. She said that she did not want to see the defendant get in\ntrouble for the burglary of Gilbreth’s home because she loved him.\n\n Nancy Walton, the defendant’s mother, testified that she was at church the day that\nauthorities arrested the defendant for burglarizing Gilbreth’s home. The day after the\ndefendant’s arrest, she encountered Gilbreth while working in her front yard. She said that\nGilbreth called her name, and when she looked to the side, she saw Gilbreth approaching her.\nShe said that he came into her yard and asked if she was okay. She asked him why he was\nspeaking to her. She said they then had the following exchange:\n\n [I] said, “Why do you care if I’m okay?” I said, “How do you think I feel?\n My son was just arrested.” And he said, “Well, he robbed my house.” I said,\n “How do you know he robbed [your] house? He was with his father.” And he\n said, “Well, when we came home, my girlfriend and I went in the house [and]\n we noticed that . . . the house was messy, you know, like someone had been in\n there so we started looking around.” He said then his girlfriend finally said,\n “Well, I’m gonna [sic] call the police anyway.” He said he started down the\n hall and he noticed his back door was messed up. So he went toward the door\n and he said he heard a sound and when he opened it he saw my son climbing\n over that nine foot privacy fence.\n ....\n And I said, “You saw my 230 pound son climbing over that fence[?]” He said,\n “Well yeah, he had a little trouble at first but finally got over,[”] and he said\n [“H]e put his arm like this, and when he did he put a big gash right here . . . in\n his arm.” Well, I told him I knew where my son was and my son didn’t do\n that. And I said, “You’re never nice to my son anyway or anybody here.” And\n he said, “Well, I don’t speak to [the defendant].”\n\n ....\n\n -11-\n\f And I said, “Well, why?” And he said, “Because I don’t like him.”\n\nAt that point, Nancy decided to end the conversation. She said that “the first thing [she] was\ngonna [sic] do when [she] saw [the defendant] that Friday was to make him show [her] his\narms because [she] knew if there was a mark on his arm [she] would never be back at that\njail.” She also said that she would not have testified for him if he had a mark on his arm.\nNancy explained that she loved the defendant, but she also loved God. She said that she\nvisited him in jail, and he showed her his arms, which did not have scratches on them. She\ntold the defendant to have police officers check his body to verify that he did not have any\nscratches or marks on him.\n\n On cross-examination, Nancy testified that she was not present when the defendant\nallegedly jumped over the fence and did not have independent knowledge of how he may\nhave done so. She said that she loved the defendant and did not want to see anything happen\nto any of her children. She stated that she did not want the jury to find the defendant guilty\nbecause he was innocent. When asked whether she liked Gilbreth she answered, “Right now\nI’m scared to death of him. I’d never really disliked him but I’m scared of him. I have to\nsleep next door to him and he came at me with a gun and my window’s right there. I don’t\ntrust him.” Regarding Gilbreth pulling a gun on her and James, she said that she filed a\npolice report in which she stated that she thought the gun was a stick and James noticed it\nwas a gun. They pressed charges against Gilbreth for the gun incident, but the judge\ndismissed the case for lack of evidence.\n\n The defendant, James Alton Walton, Jr., testified that he had previous convictions for\nfraud, forgery, and obtaining a controlled substance by fraud. He denied that he and Gilbreth\nwere acquaintances and said that they “just [did] not get along.” The defendant said that he\nhad never gotten along with Gilbreth and that Gilbreth had altercations with his parents\nbefore the defendant moved into his home next door to Gilbreth.\n\n He said that Gilbreth was cruel toward animals and that there were incidents between\nGilbreth and his dog. He also said that he and Gilbreth had verbal disputes about their\nproperty, that Gilbreth called his landlord, and that he talked about him to their neighbors.\nHe admitted that he had threatened to “beat [Gilbreth] up” several times.\n\n The morning of June 29, 2008, the defendant was at his parents’ home with his father\nand uncle. He said that he and his uncle decided to leave around 12:00 p.m. because his\nmother would be home shortly. The defendant walked his uncle outside, said goodbye, and\nwalked to his home. The defendant had to walk past Gilbreth’s home to get to his home. He\nsaid that as he was walking up his driveway toward the back of his home, Gilbreth was\n\n -12-\n\frunning down his driveway calling the defendant’s name and accusing the defendant of\nrobbing his home. He told Gilbreth to get out of his yard or he “was gonna [sic] put him out\nof [his] yard.” The defendant said that he walked to the back of his home. Lori was inside\ntheir home sleeping, and he wanted her present in case he and Gilbreth had an altercation.\nHe said that when he walked through his back door, Gilbreth followed him inside “in a\nthreatening manner.” He said that he told Gilbreth to leave his home or he would shoot him.\nThe defendant said that he did not have a gun, but he “was willing to say whatever it took to\nget Gilbreth to leave [his] home.” He said that Gilbreth replied, “‘What are you gonna [sic]\ndo shoot me with my own gun? I know you’ve done [sic] robbed me four or five times.’”\nThe defendant told Gilbreth that he had never robbed him. The defendant’s wife came to the\ndoor and asked what was going on, and at the point, Gilbreth left.\n\n The defendant testified that he did not know Bedwell personally but had seen her at\nGilbreth’s home a couple days before the incident. He said that he saw her on Gilbreth’s\nporch the day of the incident. The defendant denied committing any offense on June 29 and\nsaid that he “just want[ed] Gilbreth to leave [his] family alone.”\n\n On cross-examination, the defendant testified that he told the police that he saw\n“‘[s]ome tall skinny guy running’” because he had seen a man who fit that description near\ntheir homes. According to the defendant, his neighbors had seen someone in their yard\nbefore June 29. He stated that, before the day of the incident, he and his wife had also seen\na man cutting through their yard and on the hill bank above their home. The defendant told\nthe police officers that his neighbors had a photograph of the man “tampering around their\nhouse as well.”\n\n After hearing the evidence, the jury convicted the defendant of aggravated burglary,\na Class C felony, and theft of property $500 or less, a Class A misdemeanor. On August 25,\n2009, the trial court sentenced the defendant as a persistent offender to ten years for the\naggravated burglary and eleven months and twenty-nine days for the theft of property $500\nor less. The court ordered that the defendant serve the sentences in this case concurrent with\neach other but consecutive to his sentences he had been serving on probation in case numbers\nC05-125 and C05-219. The defendant timely appealed his convictions and sentences.\n\n Analysis\n\n Sufficiency\n The defendant argues that the evidence was insufficient to support his convictions.\nSpecifically, he argues that when viewing his convictions under the totality of the\ncircumstances, “no objective trier of fact could have convicted him.” He asserts that no\nobjective trier of fact could have convicted him because (1) the timeline of events that the\n\n -13-\n\fstate presented was impossible; (2) Gilbreth made false statements; (3) the police did not\nrecover all of the allegedly stolen items; (4) Gilbreth and Bedwell gave conflicting testimony;\nand (5) the state did not use any scientific evidence to corroborate the victims’ allegations.\n\n Our review begins with the well-established rule that once a jury finds a defendant\nguilty, his or her presumption of innocence is removed and replaced with a presumption of\nguilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the\nconvicted defendant has the burden of demonstrating to this court why the evidence will not\nsupport the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State\nv. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must\nestablish that no “rational trier of fact” could have found the essential elements of the crime\nbeyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans,\n108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict\napproved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor\nof the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the\nstrongest legitimate view of the evidence and all reasonable inferences that may be drawn\nfrom that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions\nconcerning the credibility of the witnesses, conflicts in trial testimony, the weight and value\nto be given the evidence, and all factual issues raised by the evidence are resolved by the trier\nof fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not\nattempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.\n2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn\nfrom the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d\n581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.\n\n A defendant may be convicted on the basis of direct or circumstantial evidence or a\ncombination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see\nalso State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact,\ncircumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726\nS.W.2d 896, 899-900 (Tenn. 1987). Moreover, the state does not have the duty to exclude\nevery other hypothesis except that of guilt. See State v. Dorantes, 331 S.W.3d 370 (Tenn.\n2011) (adopting the United States Supreme Court standard that the jury is only required to\nweigh evidence, whether direct or circumstantial, against the reasonable doubt standard); see\nalso State v. James, 315 S.W.3d 440, 455 n. 14 (Tenn. 2010) (noting that federal courts have\nrejected the notion that the government has a duty to exclude every other hypothesis save that\nof the defendant’s guilt). “Circumstantial evidence in this respect is intrinsically no different\nfrom testimonial evidence.” Holland v. United States, 348 U.S. 121, 140 (1954). Therefore,\nwhen considering the sufficiency of evidence, we treat direct and circumstantial evidence the\nsame.\n\n\n\n -14-\n\f The jury convicted the defendant of aggravated burglary and theft of property less\nthan $500. Tennessee Code Annotated defines aggravated burglary, in relevant part, as\nentering a habitation without the effective consent of the owner and with the intent to commit\na felony, theft, or assault. Tenn. Code Ann. § 39-14-402(a)(1), -403(a). A habitation is\ndefined as “any structure . . . which is designed or adapted for the overnight accommodation\nof persons[.]” Id. § 39-14-401(1)(A). “A person commits theft of property if, with intent to\ndeprive the owner of property, the person knowingly obtains or exercises control over the\nproperty without the owner’s effective consent.” Id. at § 39-14-103.\n\n Viewed in the light most favorable to the state, the evidence showed that Gilbreth and\nBedwell saw the defendant leaving Gilbreth’s property with their laptops. When confronted\nby the victims, the defendant attempted to hide the property under a rug and later placed it\nin a black garbage bag. Gilbreth’s back door was unhinged, and the lock to his bedroom door\nwas broken. Gilbreth did not give the defendant permission to enter his home and take his\nlaptop and cedar lock box. Likewise, Bedwell did not give the defendant permission to take\nher laptop. Gilbreth and Bedwell testified that their laptops cost $700 and $900, respectively.\nThe defendant’s arguments regarding the sufficiency of evidence essentially amount to an\nattack on the state witnesses’ credibility. However, by convicting the defendant, the jury\nobviously rejected the testimony of the defense witnesses and accredited the testimony of the\nstate’s witnesses. We will not re-weigh or re-evaluate the evidence. See Reid, 91 S.W.3d\nat 277. Accordingly, we conclude that the evidence was sufficient to sustain the defendant’s\nconvictions for aggravated burglary and theft of property $500 or less.\n\n Sentencing\n Next, the defendant contends that the trial court erred when it ordered him to serve his\nsentences consecutively to his probation violations in case numbers C05-125 and C05-126.\nHe asserts that the trial court did not consider the seven factors listed in Tennessee Code\nAnnotated section 40-35-115, and thus, we should reverse the trial court’s imposition of\nconsecutive sentencing. We disagree.\n\n This court’s review of the sentence imposed by the trial court is de novo with a\npresumption of correctness. Tenn. Code Ann. § 40-35-401(d). “This presumption is\n‘conditioned upon an affirmative showing in the record that the trial [judge] considered the\nsentencing principles and all relevant facts and circumstances.’” State v. Pettus, 986 S.W.2d\n540, 543 (Tenn. 1999) (quoting State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997)). If the\ntrial court fails to comply with the statutory directives, “there is no presumption of\ncorrectness and our review is de novo.” State v. Poole, 945 S.W.2d 93, 96 (Tenn.1997).\n\n The burden is upon the appealing party to show that the sentence is improper. Tenn.\nCode Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review,\n\n -15-\n\fwe are required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the\nfollowing factors in sentencing:\n\n (1) [t]he evidence, if any, received at the trial and the sentencing hearing;\n (2) [t]he presentence report;\n (3) [t]he principles of sentencing and arguments as to sentencing alternatives;\n (4) [t]he nature and characteristics of the criminal conduct involved;\n (5) [e]vidence and information offered by the parties on the mitigating and\n enhancement factors in §§ 40-35-113 and 40-35-114;\n (6) [a]ny statistical information provided by the administrative office of the\n courts as to sentencing practices for similar offenses in Tennessee; and\n (7) [a]ny statement the defendant wishes to make in the defendant’s own\n behalf about sentencing.\n\n If our review reflects that the trial court followed the statutory sentencing procedure,\nimposed a lawful sentence after giving due consideration and proper weight to the factors and\nprinciples set out under sentencing law, and the trial court’s findings of fact are adequately\nsupported by the record, then we may not modify the sentence even if we would have\npreferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).\n\n Generally, it is within the discretion of the trial court to impose consecutive sentences\nif it finds by a preponderance of the evidence that at least one of the following statutory\ncriteria applies:\n\n (1) [t]he defendant is a professional criminal who has knowingly devoted the\n defendant’s life to criminal acts as a major source of livelihood;\n (2) [t]he defendant is an offender whose record of criminal activity is\n extensive;\n (3) [t]he defendant is a dangerous mentally abnormal person so declared by a\n competent psychiatrist who concludes as a result of an investigation prior to\n sentencing that the defendant’s criminal conduct has been characterized by a\n pattern of repetitive or compulsive behavior with heedless indifference to\n consequences;\n (4) [t]he defendant is a dangerous offender whose behavior indicates little or\n no regard for human life, and no hesitation about committing a crime in which\n the risk to human life is high;\n (5) [t]he defendant is convicted of two (2) or more statutory offenses involving\n sexual abuse of a minor with consideration of the aggravating circumstances\n arising from the relationship between the defendant and victim or victims, the\n time span of defendant’s undetected sexual activity, the nature and scope of the\n\n -16-\n\f sexual acts and the extent of the residual, physical and mental damage to the\n victim or victims;\n (6) [t]he defendant is sentenced for an offense committed while on probation;\n or\n (7) [t]he defendant is sentenced for criminal contempt.\n\nTenn. Code Ann. § 40-35-115(b).\n\n When ordering that the defendant serve his sentences consecutively the trial judge\nadvised the defendant, “because of these convictions, your probation in Case Nos. C05-125,\nC05-129, C05-219, . . . is revoked. Those sentences are reinstated, and you are sentenced to\n10 years in the Tennessee Department of Correction in this particular case. The sentences\nwill run consecutive.” While the trial court did not go into great detail regarding the\nimposition of consecutive sentences, it is clear from the record that the court was sentencing\nthe defendant for offenses committed while he was on probation. The record reflects that on\nJuly 12, 2005, the trial court sentenced the defendant to four years probation in case number\nC05-219 and one year in the county jail followed by three years of probation in case number\nC05-125. The defendant committed the underlying offenses on June 29, 2008. Because the\ntrial court found at least one statutory criteria to support consecutive sentencing - it sentenced\nthe defendant for an offense committed while on probation - the trial court’s imposition of\nconsecutive sentencing in the defendant’s case was justified. See Tenn. Code Ann. §\n40-35-115(b)(6). The defendant is not entitled to relief on this issue.\n\n Conclusion\n\n Based on the foregoing and the record as a whole, we affirm the judgments of the trial\ncourt.\n\n\n ___________________________________\n J.C. McLIN, JUDGE\n\n\n\n\n -17-\n\f", "ocr": false, "opinion_id": 1048799 } ]

[ "424 N.E.2d 491", "384 Mass. 293" ]

[ { "author_str": "Hennessey", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4735, "opinion_text": "\n384 Mass. 293 (1981)\n424 N.E.2d 491\nCOMMONWEALTH\nvs.\nALLEN L. JARABEK & another.[1]\nSupreme Judicial Court of Massachusetts, Bristol.\nApril 7, 1981.\nAugust 5, 1981.\nPresent: HENNESSEY, C.J., BRAUCHER, WILKINS, LIACOS, & NOLAN, JJ.\nPhillip Rivard-Raposa, Assistant District Attorney, for the Commonwealth.\nJohn J. Harrington for Allen L. Jarabek.\n*294 John J. Droney, District Attorney, for the Northern District, amicus curiae, Deborah M. Cerullo, Legal Assistant to the District Attorney, & Robert M. Raciti, Assistant District Attorney, submitted a brief.\nHENNESSEY, C.J.\nThis case comes before us on an interlocutory appeal by the Commonwealth from the decision of a Superior Court judge allowing the defendants' motion to suppress evidence of certain recorded conversations as having been obtained in violation of the Massachusetts interception statute, G.L.c. 272, § 99. The judge ordered the suppression not merely of the taped recordings of the conversations, but also of live testimony regarding the conversations. We conclude that G.L.c. 272, § 99, requires the suppression of the unlawfully intercepted recordings and of any evidence derived therefrom but does not preclude the introduction in evidence of live testimony concerning the conversations.\nWe summarize the findings of fact from the judge's memorandum and order. The defendants, Allen L. Jarabek and Thomas E. Alecrim, have been charged with violating or conspiring to violate G.L.c. 268A, §§ 2 (b), 3 (b), which prohibit the soliciting or accepting of a bribe or gratuity. At the time of the alleged offenses, Jarabek was an elected member of the Fall River school committee, and Alecrim was assistant superintendent of the Fall River public schools. The government alleges that the target of the improper solicitation and the source of the illicit payments was Richard Miara, president and controlling stockholder of a corporation that had contracted to install a security fence at the B.M.C. Durfee High School in Fall River.\nIn late September, 1979, Miara told his attorney that Alecrim had suggested to Miara that problems his company was having in connection with completing the contract satisfactorily could be resolved if Miara would contribute $2,000 to Jarabek's campaign for reelection to the school committee. Miara also conveyed to his attorney his belief that his company would not be able to continue on the project unless he made the contribution. Miara said he wished to cooperate *295 with the authorities. His attorney telephoned the office of the Bristol county district attorney, and an assistant district attorney from that office invited Miara to participate in a conference with law enforcement authorities.\nPresent at the conference at Miara's office were that assistant district attorney, a Massachusetts State trooper assigned to the district attorney's office, an assistant United States attorney, a special agent of the Federal Bureau of Investigation (bureau), and Miara. Miara agreed to participate in additional investigation (a) by permitting a recording device to be placed on his business telephone; (b) by permitting his body to be fitted with devices to record and transmit the contents of any face-to-face conversations he might have with Alecrim and Jarabek; (c) by resuming discussion with Alecrim and Jarabek concerning the proposed payments; and (d) by paying Alecrim or Jarabek the money they were said to have requested. The Bristol county district attorney's office, through the State police trooper who attended the meeting, agreed to reimburse Miara for any money paid by him.\nThe judge found that, although the Federal agency was to furnish the recording equipment, the ultimate decision to record any conversations rested with the district attorney. No credible evidence was presented that either the district attorney or the Federal employees believed the prospective offense to be other than an attempt by Alecrim and Jarabek to extort or cajole an unlawful bribe, payment, or kickback from Miara. In seeking the necessary approval to record from the United States Department of Justice, The Federal employees stated their belief that the facts reported by Miara could constitute a violation of 18 U.S.C. § 1951(a) (1976). The judge found, however, that the purpose of the entire investigation, including the recordings, was at all times the obtaining of evidence to be used in a State, rather than a Federal, prosecution.\nUsing equipment supplied by the bureau, Miara recorded five face-to-face conversations with Alecrim and Jarabek, as well as numerous telephone conversations with Alecrim. *296 Neither Alecrim nor Jarabek knew of, or authorized, the recording of any of these conversations. Miara gave the recordings of each conversation to the bureau. The contents of each conversation also were revealed to the district attorney during or shortly after the recording.\nThe recordings were made without any prior judicial approval, State or Federal, although nothing precluded the application for a warrant.\nThe motion judge concluded that the warrantless interception violated G.L.c. 272, § 99, rejecting the Commonwealth's contentions that the interception was valid under G.L.c. 272, § 99 B 4, and § 99D 1 c.\n1. The Organized Crime Requirement of G.L.c. 272, § 99.\nIn Commonwealth v. Thorpe, ante 271 (1981), we discussed the § 99 B 4 exception to the statutory warrant requirement for conversations intercepted by law enforcement officers with the consent of one of the conversants, when the officer is investigating a designated offense \"in connection with organized crime as defined in the preamble.\" G.L.c. 272, § 99 B 4, § 99 B 7. The requirement of a designated offense in connection with organized crime applies whether or not a warrant is obtained prior to the interception. G.L.c. 272, § 99 E 2.[2] The motion judge correctly determined, as we decided in Thorpe, supra at 281, that the relevant definition of organized crime is \"a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.\" G.L.c. 272, § 99A. The judge found no evidence of a continuing conspiracy by such a group, concluding that the statutory definition did not include a scheme by two municipal officials to extort a kickback from a single contractor. We find no error. See Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980) (judge's findings of fact on motion to suppress are accepted by this court \"absent clear error\").\n*297 2. The § 99 D 1 c Exception.\nThe Commonwealth argues that the recordings were made by Federal agents pursuant to Federal law, and thus are not subject to suppression under c. 272, § 99 P, as unlawful interceptions. In support of this argument, the Commonwealth refers to c. 272, § 99 D 1 c, which states that \"[i]t shall not be a violation of [§ 99] for [Federal] investigative and law enforcement officers ... to violate the provisions of [§ 99] if acting pursuant to authority of the laws of the United States and within the scope of their authority.\"\nWe agree with the motion judge's conclusion that despite the heavy Federal presence the investigation was State-oriented. At the outset, Miara's attorney turned to State, not Federal, authorities. The State authorities contacted Miara and supplied the necessary funds. The State authorities retained a veto over the making of the recordings and participated in recording expeditions. The recorded conversations resulted in State prosecutions.\nThe recordings thus appear to be the fruit of a combined enterprise between State and Federal officials. In such a combined operation, if the State regulatory scheme imposes a stricter standard, it is by that standard that the validity of official conduct is to be judged for purposes of a motion to suppress under c. 272, § 99 P. See Commonwealth v. Vitello, 367 Mass. 224, 247 (1975). The Federal officer exemption contained in § 99 D 1 c allows Federal officials to conduct their own investigations in accordance with Federal law, free of the statute's criminal and civil penalties. The exemption does not render the Federal interceptions automatically admissible in a State prosecution. Where, as here, the interception was unlawful for not having been obtained in the course of an investigation in connection with organized crime, the § 99 D 1 c exemption affords no independent basis for admissibility.\n3. The Admissibility of Miara's Live Testimony.\nThe judge concluded that the Commonwealth's failure to follow the statute required suppression not merely of the recordings *298 of the conversations between Miara and the defendants, but also of Miara's testimony about the conversations. While recognizing the severity of this ruling, the judge considered it compelled by the language of the statute. We disagree.\nThe statutory suppression provision authorizes suppression of the \"contents\" of any unlawfully intercepted communication. G.L.c. 272, § 99 P. \"Contents\" is defined as \"any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.\" G.L.c. 272, § 99 B 5. No constitutional impediment appears to exist to the admissibility of the live testimony of a party to a conversation that was unlawfully recorded,[3] and the defendants do not argue otherwise. The admissibility of the testimony, therefore, must turn not on the judicially fashioned exclusionary rule but on the legislative intent expressed in the statute. See Commonwealth v. Vitello, supra at 269. Cf. Lopez v. United States, 373 U.S. 427, 440 (1963).\nAlthough the bare language of the statutory definition of \"contents\" reasonably may be read to include the live testimony, from memory, of a party to a conversation, the definition is not without ambiguity. It could mean simply that not only must the recording of an unlawfully intercepted conversation be suppressed, but also any evidence that the conversation was recorded: for example, any transcripts or summaries of, or references to, the recording; or the testimony of a third person (not a party to the conversation) who either monitored the conversation at the time it took place or listened to a recording of it later. What the Legislature deemed offensive to individual privacy, and thus sought to regulate, was the secret interception of communications, and not other uses of subterfuge in the course of criminal investigations. See Commonwealth v. Jackson, 370 Mass. *299 502, 505 (1976); Commonwealth v. Vitello, supra at 231-232. Given this focus, we think the Legislature intended to tailor its statutory remedy of suppression to the evil of unauthorized interceptions, by ensuring that no evidence of the existence of the interception comes to the attention of the fact finder.[4]\nThe legislative history indicates that the communications interception statute was designed largely to reflect the Fourth Amendment requirements established by the United States Supreme Court.[5] Even those Supreme Court Justices most adamantly opposed to warrantless surveillance have agreed that the exclusionary rule would not extend to live testimony of a participant in an unlawfully recorded conversation. See Osborn v. United States, 385 U.S. 323, 352 (1966) (Douglas, J., dissenting); Lopez v. United States, supra at 464-465 (Brennan, J., dissenting).[6] Similarly, State courts that have excluded from evidence illegally obtained accounts of conversations have refused to exclude testimony by the participant as to statements spoken to him directly, when that testimony was in no way the fruit of the statutorily or constitutionally infirm action. E.g. People v. Beavers, 393 Mich. 554, 567 (1975); State v. Smith, 72 Wis. 2d 711, 714 (1976). See State v. Glass, 583 P.2d 872, 879, 882 (Alas. 1978).\nIf live testimony is not the product of an unauthorized interception but is independent of it, its suppression would go beyond the policy of deterring law enforcement officers from committing unauthorized interceptions. We think that if the Legislature had meant to take the unusual step of suppressing *300 the untainted and independent live testimony of a party to a conversation,[7] it would have spoken more clearly.[8]\n4. Conclusion.\nWe affirm the judge's suppression of the illegally obtained tape recordings and all evidence derived from them. We reverse the order in so far as it prohibits Miara from testifying about the conversations.\nSo ordered.\nNOTES\n[1] Thomas E. Alecrim.\n[2] Before a warrant may issue, the applicant must show, inter alia, \"probable cause to believe that a designated offense has been, is being, or is about to be committed\" (emphasis added). G.L.c. 272, § 99 E 2. \"Designated offense\" is defined in § 99 B 7 to include certain offenses \"in connection with organized crime as defined in the preamble.\"\n[3] See United States v. White, 401 U.S. 745, 751-753 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302-303 (1966); Lopez v. United States, 373 U.S. 427, 437-438 (1963).\n[4] To implement this legislative intent in jury-waived trials, a judge who suppresses evidence derived from unauthorized interceptions should disqualify himself from sitting on the trial on the merits, or at least make it known on the record that he is disregarding all knowledge of the interceptions.\n[5] See Report of the Special Commission on Electronic Eavesdropping, 1968 Senate Doc. No. 1132, at 5-6, 7-8, 10-11.\n[6] See also the opinions cited in note 3, supra.\n[7] Whether the witness's testimony is indeed independent of, and not derived from, the unlawful interception is a proper issue for determination at the motion to suppress. The statute authorizes suppression not only of the contents of an unlawfully intercepted communication, but also of \"evidence derived therefrom.\" G.L.c. 272, § 99 P. If a witness's testimony is based not on his memory of a conversation in which he participated, but on his listening to the unlawfully obtained recording of that conversation, his testimony should be suppressed as \"evidence derived\" from the unlawful interception.\n[8] We note that the definition of contents contained in the State statute corresponds almost exactly with that in the Federal wiretap statute, the only difference being the Federal statute's omission of the word \"contents\" in the definition. See 18 U.S.C. § 2510(8) (1976). We have been unable to find any Federal case in which independent live testimony was ordered suppressed along with the illegally taped or monitored communication.\n\n", "ocr": false, "opinion_id": 2075131 } ]

[ "987 F. Supp. 884" ]

[ { "author_str": "Rushfelt", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n987 F. Supp. 884 (1997)\nRhonda Sue WESLEY, Plaintiff,\nv.\nDON STEIN BUICK, INC. et al., Defendants.\nNo. Civ. A. 97-2271-JWL.\nUnited States District Court, D. Kansas.\nNovember 18, 1997.\nRhonda Sue Wesley, Kansas City, MO, pro se.\nLawrence L. Ferree, III, Kirk Thomas Ridgway, Ferree, Bunn & O'Grady, Chtd., Overland Park, KS, for Don Stein Buick, Inc., Don Stein, Jerry Kaplan, Multiple Unnamed Sales Agents of Don Stein Buick-Isuzu, Inc., American Isuzu Motors, Inc.\nRobert J. Harrop, David C. Vogel, Lathrop & Gage L.C., Kansas City, MO, for General Motors Corp.\nMichael R. Santos, City of Overland Park, Legal Dept., Overland Park, KS, Daniel B. Denk, Michael M. Shultz, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for T.A. Stovall, One Unnamed Desk Clerk, John M. Douglas, City of Overland Park Police Dept., City of Overland Park, KS.\nJanice M. Karlin, Office of U.S. Attorney, Kansas City, KS, for Frederick S. Hillman, Special Agent of F.B.I., William M. Chornyak, Supervisory Special Agent, of F.B.I., F.B.I., Louis J. Freeh, Director of F.B.I., U.S. Postal Service, Marvin Runyon, U.S.P.S, Postmaster General.\n\n\n*885 MEMORANDUM AND ORDER\n\nRUSHFELT, United States Magistrate Judge.\nThe court has before it a Motion to Disclose Status (doc. 70) and a Motion for Order of Disclosure (doc. 72), both filed by some of the defendants. They ask the court to compel the plaintiff pro se to disclose the following information about herself: whether she is or has been a licensed attorney in any jurisdiction within the United States or otherwise legally trained; and whether she is receiving legal assistance in the drafting of her pleadings or in the presentation of her claims. Plaintiff opposes both motions.\nIn support of their motions, defendants assert that plaintiff in opposing their own pending motions to dismiss, has requested the court to construe her pleadings liberally and with some indulgence in light of her status as a pro se litigant. They imply that the court should not apply such liberality or indulgence, if indeed plaintiff may herself be an attorney or may have legal training or if she has received the assistance of a lawyer in preparing her pleadings and prosecuting this case. Defendants have noted documents upon which plaintiff has added to her name the designation \"Esq.\"\nOpposing the motions, plaintiff recites no substantive reason against disclosure of the requested information. She instead eschews any responsibility to provide it. She proposes to \"proffer this advice to the defendants. If you wish to know if a party is an attorney, do the research.\" Reply Opposition and Memorandum in Opposition to Motion to Disclose Status (doc. 76), at 2. Plaintiff then recites her own research to reveal the dates defense counsel were admitted to the bars of Kansas or Missouri. She would thus have the motions denied \"for the reasons that the defendants seek disclosure of information that is readily available in public record.\" Id.\nThe court infers from the latter assertion that plaintiff indeed is an attorney. A public record in the form of the roster of attorneys admitted to practice before a court of general jurisdiction in Kansas or Missouri makes such information readily available. The complaint indicates plaintiff is domiciled in Missouri. Consequently, her status as an attorney should be \"readily available\" from examining the records of state and federal courts of Missouri and perhaps Kansas. Were plaintiff not an attorney, such negative fact would hardly be \"readily available\" from any one public record. To determine it would require defendants to review the rosters or registers of many courts of general jurisdiction, If plaintiff is obtaining legal assistance from an attorney, moreover, that fact is hardly available from a public record.\nAs a legal basis for their request, defendants apparently want the court to exercise its inherent discretion in managing litigation before it. They otherwise cite no specific authority for an order to compel plaintiff to disclose the requested information about herself and the possibility of an unidentified attorney who may be assisting her. Fed. R.Civ.P. 26 et seq, of course, provide the many possibilities for discovery of relevant information without engaging the court, at least at the outset. None of the parties has addressed whether or not the requested information may be within the scope of disclosures or discovery authorized by the Rules.\nDefendants cite cases, however, which express both legal and ethical concerns about the practice of \"ghostwriting.\" This refers to the conduct of an attorney who prepares pleadings and provides substantial legal assistance to a pro se litigant, but does not enter appearance or otherwise identify himself or herself in the litigation. Such practice creates a legal concern. Absent information to the contrary, courts generally assume that a pro se litigant has neither substantial legal training nor the assistance of an attorney. Accordingly, courts have often accorded to such litigants some liberality and leniency. Johnson v. Bd. of County Com'rs County of Fremont, 868 F. Supp. 1226 (D.Colo.1994) describes concerns about the interpretation of pleadings, as well as the impact of Fed. R.Civ.P. 11:\nIt is elementary that pleadings filed pro se are to be interpreted liberally. (Cited case omitted.) Cheek's pleadings seemingly filed pro se but drafted by an attorney would give him the unwarranted advantage *886 of having a liberal pleading standard applied whilst holding the plaintiffs to a more demanding scrutiny. Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party.\nMoreover, ghost-writing has been condemned as a deliberate evasion of the responsibilities imposed on counsel by Rule 11, Fed.R.Civ.P.\nWhat we fear is that in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by FED.R.CIV.P.11, but which exists in all cases, criminal as well as civil, of representing to the court that there is good ground to support the assertions made. We cannot approve of such a practice. If a brief is prepared in any substantial part by a member of the bar, it must be signed by him. We reserve the right, where a brief gives occasion to believe that the petitioner has had some legal assistance, to require such signature, if such, indeed, is the fact.\n(Cited cases omitted.) Such an evasion of the obligations imposed upon counsel by statute, code and rule is ipso facto lacking in candor.\nId. at 1231, 1232.\nThe practice of \"ghostwriting\" may also involve violations of professional ethics and contempt of court. Johnson also addresses that concern:\nThe ABA Standing Committee on Ethics and Professional Responsibility has stated that an undisclosed counsel who renders extensive assistance to a pro se litigant is involved in the litigant's misrepresentation contrary to Model Code of Professional Responsibility DR 1-102(A)(4), which provides: \"A lawyer shall not: ... (4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\" ABA Comm. On Ethics and Professional Responsibility, Informal Op. 1414 (1978). Similarly, such conduct will not be countenanced because it is contrary to Colorado Rule of Professional Conduct 1.2(d) which provides \"[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.\"\nHaving a litigant appear to be pro se when in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous to say the least; it is far below the level of candor which must be met by the members of the bar.\nId. at 1232. D. Kan. Rule 83.6.1 adopts the Model Rules of Professional Conduct for attorneys who practice before this court. Rule 1.2(d) of the Model Rules contains the same provision as Colorado Rule of Professional Conduct 1.2(d), cited in Johnson.\nAnother case warns of the risks of violating professional ethics and Rule 11 which ghost-writing by an attorney may create:\nNotably, the true author of plaintiff's putatively pro se pleadings and supporting documents appears to have had formal legal training. Ghost-writing by an attorney of a \"pro se\" plaintiff's pleadings has been condemned as both unethical and a deliberate evasion of the responsibilities imposed on attorneys. (Cited authorities omitted.) Thus, if in fact an attorney has ghost-written plaintiff's pleadings in the instant case, this opinion serves as a warning to that attorney that this action may be both unethical and contemptuous. Johnson, 868 F.Supp. at 1232.\nClarke v. U.S., 955 F. Supp. 593, 598 (E.D.Va. 1997).\nIn opposing the pending motions to dismiss, plaintiff has suggested that the court consider her status pro se in construing them and her pleadings. She thus seeks the consideration which the court may well accord to a party who is not an attorney and has none to assist her. The court has reviewed both her pleadings and the other documents filed in this case. They reflect a sophisticated *887 level of legal training or experience on the part of whoever drafted them. They are reasonably well organized and articulate, reflect substantial legal research and analysis, and for the most part address the relevant issues. They do not reflect a confusion about the case or its issues. In opposing the motions to compel the disclosures plaintiff warns, \"The obvious revelation to these defendants should be that the plaintiff knows how to litigate.\" Reply Opposition and Memorandum in Opposition to Motion to Disclose Status, Doc. 76 at 4.\nPlaintiff argues that she has a legal fight to proceed pro se, whether or not she is an attorney. She also argues against any \"unlawful intrusion into privileged information.\" Id at 3. The court has no quarrel or disagreement with these propositions. But they miss the point. The court does not propose to deny plaintiff the right to proceed pro se. Nor does it propose the invasion of privileged information. In this instance, however, plaintiff has sought to invoke the leniency of the court when she may not have a right to assert her pro se status for that purpose. Both the court and the parties, moreover, have a legitimate concern that an attorney who substantially participates in a case at least be identified and recognize the possibility that he or she may be required to enter appearance as counsel of record and thereby accept accountability for his or her participation, pursuant to Rule 11 and the rules of professional conduct applicable to attorneys. The grounds urged by plaintiff to deny the requested information do not trump the valid reasons for providing it on the record.\nFor all the foregoing reasons the court finds that the motions to disclose the requested information should be sustained. Both the pleadings and the other submissions filed by plaintiff reflect a likelihood either that she herself is an attorney or that an attorney is serving as a ghost-writer. She has requested, on the other hand, that the court treat her as a conventional pro se party. She should clarify the record. Within 15 days of the date of this Memorandum and Order plaintiff shall serve and file with the clerk of the court a memorandum which shall state the following information: (1) whether or not she is or has been licensed to practice law in any jurisdiction in the United States of America; (2) whether or not she has had legal training; (3) and whether or not she has received or is receiving substantial legal assistance in the drafting of her pleadings or in the presentation of her claims in this lawsuit.\nIT IS SO ORDERED.\n", "ocr": false, "opinion_id": 1804678 } ]

[ "288 N.E.2d 523", "7 Ill. App. 3d 678" ]

[ { "author_str": "Simkins", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n7 Ill. App. 3d 678 (1972)\n288 N.E.2d 523\nSTATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, Counterdefendant-Appellant, and Cross-Appellee — (MARVIN D. BLANTON, Counterdefendant-Appellant and Cross-Appellee,)\nv.\nCONNIE SUE HANSON et al., Defendants, Counterplaintiffs-Appellees, and Cross-Appellants.\nNo. 11616.\nIllinois Appellate Court — Fourth District.\nOctober 17, 1972.\n*679 Philips, Phebus, Tummelson & Bryan, of Urbana, (Hurshal C. Tummelson and George G. Bryan, of counsel,) for appellants.\nRichard K. Bates, Austin W. Buchanan, and Edward Litak, all of Danville, for appellees.\nJudgment affirmed.\nMr. JUSTICE SIMKINS delivered the opinion of the court:\nOn the 4th day of September, 1967, Cheryl Christine Hanson was operating her automobile in Warren County Kentucky with her sister, Connie Sue Hanson, as a passenger when she was involved in a collision with an automobile driven by Jerry Wayne Sloan. Connie Hanson subsequently filed suit against Sloan in Kentucky for her personal injuries and he in turn filed a third party complaint against Cheryl Hanson for her alleged negligence. A second lawsuit was instituted in Vermilion County by Connie Hanson for her personal injuries and was directed against her sister Cheryl.\nAt the time of the collision Cheryl was insured under a policy of automobile liability insurance issued by State Farm Mutual Automobile Insurance Company. Under Coverage A of its policy, State Farm agreed to pay, on behalf of Cheryl, all sums she became legally obligated to pay as damages for bodily injuries sustained by other persons. However, the policy contained the following exclusion, commonly referred to as a \"household exclusion\":\n\"This insurance does not apply under:\n* * *\n(i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured; * * *.\"\n*680 State Farm filed the present lawsuit in the Circuit Court of Vermilion County for a declaration that it was not obligated to defend Cheryl Hanson under the terms of its policy or pay any judgments rendered against her in the pending litigation because of the household exclusion. By virtue of the provisions of the Declaratory Judgment Act this suit was directed against Cheryl Hanson, Connie Hanson, and Jerry Wayne Sloan. All three defendants responded to the complaint and filed identical counterclaims. These counterclaims sought to reform the policy of insurance issued by State Farm by striking the household exclusion, and also sought recovery against State Farm and its agent, Marvin D. Blanton, for their alleged negligence in issuing the policy.\nThe case was tried without a jury, and at the end of all the evidence the trial court entered an order denying the relief sought by State Farm on its complaint. The lower court also held that there was no negligence on the part of State Farm or its agent, Blanton. However, the court did grant the reformation requested by the counterclaims and reformed the policy by deleting the household exclusion, and providing that State Farm was obligated to provide coverage under the policy to Cheryl Hanson for the claim brought against her by Jerry Wayne Sloan and Connie Sue Hanson as a result of the September 4, 1967, collision. State Farm has appealed from that portion of the order granting reformation and the defendants have appealed from that portion of the order declaring that there was no negligence on the part of State Farm in the initial issuance of the policy. We shall first consider the action of the trial court in granting the reformation sought by the defendants.\n• 1-3 \"The law is well settled that a court * * * may reform an insurance policy where the contracting parties make a mistake and the policy fails to express the real contract between them.\" (New York Life Insurance Co. v. Rak (1961), 30 Ill. App. 2d 86, 93, 173 N.E.2d 603, aff'd (1962), 24 Ill. 2d 128, 180 N.E.2d 470.) Furthermore, to reform an insurance contract on the ground of mutual mistake the party seeking the reformation must establish a mutual mistake of fact, not of law, which was common to both parties to the contract and was in existence at the time the contract was executed. The party attempting reformation must prove, in essence, that both parties to the instrument intended to say a certain thing but because of mutual factual mistake said something different. (Wilcox v. Natural Gas Storage Co. (1962), 24 Ill. 2d 509, 512, 182, N.E.2d 158; Ambarann Corp. v. Old Ben Coal Corp. (1946), 395 Ill. 154, 166, 69 N.E.2d 835; Sedlacek v. Sedlacek (1969), 107 Ill. App. 2d 334, 337, 246 N.E.2d 6; Michigan Mutual Liability Co. v. Type & Press Co. (1965), 62 Ill. App. 2d 364, 370-71, 210 N.E.2d 787.) Thus, in Hyman-Michaels Co. v. Massachusetts Bonding and Insurance Co. (1956), 9 Ill. App. 2d 13, *681 20, 132 N.E.2d 347, a suit to reform a contract of insurance, the court wrote:\n\"In analyzing the evidence we have in mind that in a suit to reform a written contract, a plaintiff is not merely seeking to rescind or avoid the contract but is seeking to enforce a contract different from that which he has signed. He must therefore be able to point to the contract he intended to make. Moreover, he must prove a like intention on the part of the defendant. In other words, both defendant and plaintiff must have had the intention to make the same contract, but failed to do so by each making the same mistake.\"\n• 4, 5 In an action to reform a written contract the plaintiff has a higher burden of proof than in an ordinary civil lawsuit. Although an older Supreme Court decision often cited in reformation cases suggested that \"the evidence must leave no reasonable doubt as to the mutual intention of the parties\" (Ambarann Corp. v. Old Ben Coal Corp. (1946), 395 Ill. 154, 166, 69 N.E.2d 835), a review of the decisions discloses that the burden a plaintiff must sustain is to prove his case by very strong, clear and convincing evidence. (Sedlacek v. Sedlacek, supra; Michigan Mutual Liability Co. v. Type & Press Co., (1965), 62 Ill. App. 2d 364, 371, 210 N.E.2d 787; New York Life Insurance Co. v. Rak (1961), 30 Ill. App. 2d 86, 92, 173 N.E.2d 603, aff'd, 24 Ill. 2d 128, 180 N.E.2d 470 (1962); Hyman-Michaels Co. v. Massachusetts Bonding and Insurance Co. (1956), 9 Ill. App. 2d 13, 20-21, 132 N.E.2d 347.) It is clear that we are not warranted in reversing the holding of the trial court where the decision rests upon a disputed question of fact unless that decision is contrary to the manifest weight of the evidence. Michigan Mutual Liability Co., supra; Hyman-Michaels Co., supra at 21; Stoltz v. National Indemn. Co. (1952), 345 Ill. App. 495, 502, 104 N.E.2d 320.\n• 6, 7 The various defendants have suggested that the household exclusion set forth above was ambiguous and, therefore, should be construed in favor of the insured, Cheryl Hanson. In conjunction with this argument the defendants also argue that Connie Hanson was not a \"member of the family of the insured\", Cheryl Hanson, at the time of the collision. Neither of these contentions is well founded. First, a reading of the exclusion discloses that it is written in clear and concise language. Second, the evidence establishes that Connie and Cheryl Hanson were sisters who were living with each other in a household presided over by their mother at the time of the accident in question. Surely this constitutes a \"family\" in the commonly accepted meaning of that word. Accordingly, under the household exclusion of its policy State Farm would be under no obligation to defend Cheryl Hanson for any lawsuits *682 arising out of the September 7, 1967, accident insofar as they relate to injuries sustained by her sister unless the trial court was correct in its determination that the policy must be reformed to omit the household exclusion.\nThe crucial testimony on the question of reformation was elicited from the insured, Cheryl Hanson, and the agent who took her application for the policy, Marvin D. Blanton. Miss Hanson testified that the first time she contacted Mr. Blanton for insurance was in the summer of 1966 when she went to his office and applied for a policy of insurance to cover a 1960 Buick automobile she had recently purchased. On that occasion Miss Hanson testified that she told Mr. Blanton that she wanted \"full coverage\". If reformation were premised on this basis alone it would have to be denied since the term \"full coverage\" is so nebulous and subjective as to be meaningless. For example, if the term \"full coverage\" was carried to its logical extreme then the policy issued by State Farm would have to be reformed to omit all exclusions not just the household exclusion. Clearly, this was not contemplated by the parties.\nHowever, Miss Hanson went on to testify that in the course of her conversation with Mr. Blanton she asked him if she would be protected from lawsuits by injured passengers and he replied that she would indeed have such protection. She stated that Mr. Blanton also asked her who were her most frequent passengers and she replied that her brothers and sisters often rode with her. On direct examination, Miss Hanson testified that she went to Blanton's office and had the following conversation with him:\n\"Q. What did you tell him?\nA. I told him that I'd just gotten a car and would like to have insurance on it.\nQ. Did you tell him what you wanted from him?\nA. Well, I told him I needed some kind of insurance.\nQ. Did you tell him what kind of insurance you wanted? * * *\nA. Well, I told him that I would like to have full coverage insurance.\nQ. And did you discuss the term \"full coverage\"?\nA. Yes, we did.\nQ. What was said with regard to that?\nA. He explained to me what full coverage insurance was.\nQ. Now you say full coverage — now what was actually said?\nA. Well, he told me that when somebody comes in for insurance the first time, they usually get full coverage.\nQ. Now, did he say what full coverage means? What it would do for you if somebody sues you? Did he tell you things like that?\n\n*683 A. Well, he said it would cover me on road service, and collision, and liability, and medical, and —\nQ. Did he explain what liability was?\nA. Yes, he did.\nQ. What did he say?\nA. He said that if somebody were injured, that my insurance would cover it.\n\nQ. Now did you ask him what would happen if a passenger were injured?\nA. Yes, I asked him if I would be in a wreck and any of my passengers were injured or somebody in the other car was injured, if I was sued, would I be covered, and he said `yes'.\n\n* * *. (Emphasis supplied.)\nQ. Tell us your discussion with regard to passengers.\nA. Well, he wanted to know who my most frequent passengers were.\nQ. What did you tell him?\nA. Well, usually my sisters and brother.\nQ. Did you mention your sisters by name?\nA. I don't believe so.\nQ. Did you tell him what use you were making of the automobile?\nA. Yes, I did.\nQ. What did you tell him?\nA. I told him back and forth to work and to the store and home again.\nQ. Did you mention anything about taking anybody to school or out socially?\nA. I told him we usually made trips — you know, long distance trips.\nQ. Did you tell him who you would travel with on those occasions?\nA. No, I didn't.\nQ. Did he ask anything further about your trips or travel or use of the automobile?\nA. No, he didn't.\nQ. Now, Cheryl, I show you what is marked Joint Exhibit Number One. This is an insurance policy that was issued in 1967.\nA. Yes.\nQ. Did you ever read this policy?\nA. I've glanced through it.\nQ. Did you read the various paragraphs at length?\n\n*684 A. Not word for word, no.\nQ. Have you had any training or experience in the interpretation of insurance policies?\nA. No.\"\nOn cross-examination by counsel for State Farm, Miss Hanson acknowledged that when she received the policy in the mail she \"glanced through it\" and saw the household exclusion. However, it is unclear whether or not she specifically read the actual exclusion word-for-word:\n\"Q. Now you received a policy of insurance, didn't you?\nA. Yes, I did.\nQ. Did you look at the policy?\nA. I glanced through it.\nQ. You understood that when you got that policy of insurance, that this was your insurance, didn't you?\nA. Yes, I did.\nQ. Did you look at the policy and read it to find out the answers to some of the things you say you asked Mr. Blanton?\nA. I didn't read it word for word, no.\nQ. Did you read it with that idea in mind when you talked to\nMr. Blanton in 1966?\nA. Yes.\nQ. Did you see the household exclusion in the policy which is the subject of this lawsuit?\nA. Yes.\nQ. This policy does not apply to bodily injury to any person residing in the same household as the insured. Did you read that?\nA. I glanced at it.\nQ. You glanced at it for the purpose of understanding it and reading it, didn't you, Cheryl?\nA. I read the heavy type that was on the policy.\nQ. When did you read that?\nA. The day after I received it in the mail.\nQ. The policy, that is?\nA. Yes.\"\nMr. Blanton stated that he \"vaguely\" remembered the conversation he had with Miss Hanson in the summer of 1966. With respect to this conversation, Mr. Blanton testified as follows:\n\"Q. What did you say and what did she say, as near as you can remember?\nA. As near as I can remember, I first explained that she had liability coverage, property damage, medical pay, comprehensive, *685 collision deductible, road service. I am not sure at that time, maybe uninsured motorist.\nQ. Did Cheryl Hanson at any time say to you, in substance, anything about her brothers and sisters being in the car and being injured and making claim against her?\nA. No, she did not.\nQ. Did you, at any time, say anything to her about claims which might be made by her brothers and sisters against her and whether or not such claims would or would not be covered?\nA. No, I did not.\nQ. Now at that time, the policy which State Farm issued and which you had issued all along contained the family household exclusion, did it not?\nA. That's correct.\nQ. Is there any occasion that you discussed that specifically with Cheryl Hanson?\nA. No, I did not.\nQ. When you say you discussed the policy with Miss Hanson, at that time did you discuss every provision in the policy in detail?\nA. No, I did not.\nQ. Did you discuss these coverages in general, Mr. Blanton?\nA. Just a general statement, yes.\nQ. Did she ask you any questions that you are able to remember concerning anything that you said to her?\nA. None that I can remember.\"\nIn June of 1967, Miss Hanson changed automobiles and purchased a 1963 Chevrolet. At that time she visited Mr. Blanton and obtained the policy of insurance in question. This policy is identical with the policy issued by State Farm to Miss Hanson in 1966. When she obtained the 1967 policy, Miss Hanson stated that she inquired as to whether or not her coverage would remain the same and she was informed that it would.\n• 8 We are mindful of the fact that one family member has sued another and then both have sought to reform an insurance contract to afford coverage for the initial lawsuit. The circumstances are, to say the least, suspect. We are not permitted, however, to substitute our judgment for that of the trial judge unless we are prepared to declare that his decision was contrary to the manifest weight of the evidence. After a thorough review of the record we cannot say that the trial court's holding was against the manifest weight of the evidence. As we have noted, the determination of whether or not reformation should be granted turned on the credibility of two parties, Cheryl Hanson and *686 Marvin Blanton. The testimony of Miss Hanson, if believed, established a mutual mistake of fact common to both parties at the inception of the contract. She informed Mr. Blanton that she wanted protection against the claims of both third persons and her passengers. She also informed him that her brothers and sisters were her most frequent passengers. According to Miss Hanson, Mr. Blanton assured her that \"if somebody were injured\" her insurance would cover it and that she would be protected in a suit brought by one of her passengers. A situation was created, therefore, where reformation was in order. Stoltz v. National Indemn. Co. (1952), 345 Ill. App. 495, 104 N.E.2d 320; Swan v. Allstate Insurance Co. (1967), 89 Ill. App. 2d 205, 232 N.E.2d 491.\n• 9 State Farm has suggested that because Miss Hanson's conversation with Mr. Blanton had taken place four years prior to the trial, her testimony was inherently improbable. However, we note that while Miss Hanson testified to the specific details of this conversation, Mr. Blanton could only remember it \"vaguely\". The credibility of each witness was for the trial judge to determine.\nState Farm has also urged that reformation should be denied because Miss Hanson read the policy in 1966, was aware of the household exclusion, and yet never questioned Mr. Blanton about it when the policy was renewed in 1967. A careful examination of the record does not disclose that Miss Hanson specifically understood the nature of this exclusion. It is also unclear as to whether or not she actually read the exclusion word for word. Again, we cannot hold on the basis of this record that the trial court's decision was against the manifest weight of the evidence.\nBecause of the decision we have reached on the question of reformation we feel it unnecessary to consider in detail the contention of the defendants that the court below erred in failing to hold State Farm and its agent guilty of negligence. We have examined the record and can find no basis upon which a finding of negligence could be predicated.\nJudgment affirmed.\nCRAVEN, P.J., and SMITH, J., concur\n", "ocr": false, "opinion_id": 2201444 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.tsc.state.tn.us/sites/default/files/state_of_tennessee_v_erika_y_johnson.pdf", "author_id": 8291, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n February 8, 2011 Session\n\n STATE OF TENNESSEE v. ERIKA Y. JOHNSON\n\n Appeal from the Circuit Court for Williamson County\n No. I-CR013149-B Jeffrey S. Bivins, Judge\n\n\n No. M2010-01176-CCA-R3-CD - Filed May 11, 2011\n\n\n\n\nThe Defendant, Erika Y. Johnson, appeals as of right from the Williamson County Circuit\nCourt’s revocation of her probation and order that she serve the remainder of her sentence\nin confinement. The Defendant contends that the trial court erred by ordering her to serve\nthe remainder of her sentence in confinement. Following our review, we affirm the judgment\nof the trial court.\n\n Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.\n\nD. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT\nW ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.\n\nErika Y. Johnson, Madison, Tennessee, pro se.\n\nRobert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;\nKim R. Helper, District Attorney General; and Sean Bernard Duddy, Assistant District\nAttorney General, for the appellee, State of Tennessee.\n\n OPINION\n\n On January 14, 2008, the Defendant was indicted on one count of simple possession\nof marijuana. The Defendant subsequently pled guilty to the charge on September 4, 2008,\nand was sentenced to 11 months and 29 days to be served on probation. On November 1,\n2008, a probation violation complaint was issued against the Defendant alleging that she had\nfailed to pay court costs and failed a drug test. The Defendant admitted the violation and the\ntrial court revoked and reinstated the probation for 11 months and 29 days with the\nrequirement that the Defendant serve 20 days in the county jail. On December 21, 2009, a\nsecond probation violation complaint was issued against the Defendant alleging that she had\n\ffailed to pay court costs and tested positive for marijuana and benzodiazepines. The\nDefendant again admitted the violation but requested a hearing regarding her sentence.\nFollowing the hearing, the trial court ordered the Defendant to serve the remainder of her\nsentence in confinement.\n\n The Defendant contends that the trial court erred by ordering her to serve the\nremainder of her sentence in confinement. The Defendant argues that being “incarcerated\nis inappropriate and unnecessary” for her because she regularly reports to her probation\nofficer, “has passed recent drug screens,” and “[i]n two years of probation” she “has been out\nof trouble with the law.” The State responds that the Defendant has waived this issue by\nfailing to provide a complete record for appeal. Alternatively, the State responds that the trial\ncourt did not err by ordering the Defendant to serve the remainder of her sentence in\nconfinement.\n\n The record on appeal contains only the “technical record” and does not include a\ntranscript of the probation revocation hearing. Without a transcript of the hearing, we cannot\nconclude that the trial court erred by ordering the Defendant to serve the remainder of her\nsentence in confinement. It is the Defendant’s duty to prepare the record “as is necessary to\nconvey a fair, accurate and complete account of what transpired with respect to those issues\nwhich are the bases of appeal.” Tenn. R. App. P. 24(b). A record that “is incomplete and\ndoes not contain a transcript of the proceedings relevant to an issue presented for review, or\nportions of the record upon which the party relies” precludes an appellate court from\nconsidering the issue. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993) (citing State\nv. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). When a party fails to provide\nan adequate record on appeal “this court must presume that the trial court’s rulings were\nsupported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.\n1991) (citing Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)). The\nDefendant has failed to properly preserve this issue for appeal. Accordingly, we affirm the\njudgment of the trial court.\n\n In consideration of the foregoing and the record as a whole, the judgment of the trial\ncourt is affirmed.\n\n _________________________________\n D. KELLY THOMAS, JR., JUDGE\n\n\n\n\n -2-\n\f", "ocr": false, "opinion_id": 1048829 } ]

[ "516 F.3d 1198" ]

[ { "author_str": "Hartz", "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "http://www.ca10.uscourts.gov/opinions/06/06-9588.pdf", "author_id": null, "opinion_text": "\n516 F.3d 1198 (2008)\nNaief ISMAIEL, Petitioner,\nv.\nMichael MUKASEY[1], United States Attorney General, Respondent.\nNo. 06-9588.\nUnited States Court of Appeals, Tenth Circuit.\nFebruary 22, 2008.\n*1199 Jayne E. Fleming, Reed Smith LLP, Oakland, CA, for Petitioner.\nLinda S. Wernery, Assistant Director, (Angela N. Liang, Trial Attorney, with her on the brief), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.\n*1200 Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.\nHARTZ, Circuit Judge.\nA native and citizen of Syria, Petitioner Naief Ismaiel claims that he will be persecuted on account of his political opinion if he is returned to his home country. He seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of the denial by an immigration judge (IJ) of his application for asylum and restriction on removal[2] under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et seq., and for relief under the Convention Against Torture (CAT).[3] Both the IJ and BIA disbelieved his testimony that he had been tortured in Syria because he had not mentioned the torture in his typed application or in letters submitted two weeks before his testimony. Mr. Ismaiel does not challenge the denial of asylum but argues that (1) the BIA erred as a matter of law in ruling that an adverse-credibility finding can be based on omissions in his asylum application; (2) the BIA erred as a matter of law in ruling that an adverse-credibility finding is sufficient to preclude a claim under the CAT; and (3) this court should remand for further proceedings because the IJ and BIA failed to consider his claim that the Syrian government believes him to be a supporter of the Muslim Brotherhood and routinely imprisons and tortures members of that group.\nWe have jurisdiction under 8 U.S.C. § 1252(a) and affirm. As to the first two arguments, we hold that the BIA could properly find that Mr. Ismaiel had failed to satisfy his burden of persuasion that he faced persecution or torture in Syria. In particular, we reject his argument that the BIA and IJ must follow rigid rules contrary to common sense in making credibility findings. We hold that he forfeited his third argument by failing to present it to the BIA.\nI. BACKGROUND\nMr. Ismaiel entered the United States on a six-month tourist visa on December 2, 1999. He exceeded his authorized stay but was granted an extension to June 1, 2001. After he stayed beyond that deadline, the Immigration and Naturalization Service (INS) sent him on February 6, 2003, a notice to appear stating that he was subject to removal for remaining in this country without authorization.\nThe initial hearing was conducted on July 3, 2003. Mr. Ismaiel was represented by counsel throughout the removal proceedings. At the initial hearing he admitted removability but the proceeding was continued to September 17, 2003, when he stated that he would seek asylum and restriction on removal to Syria. At the September hearing Mr. Ismaiel submitted a typed Form 1-589 application for asylum, restriction on removal, and relief under the *1201 CAT. The form includes a series of questions asking the applicant to explain whether he has ever been harmed in his home country. In response to the question whether \"you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone,\" R. at 130, Mr. Ismaiel stated: \"My brother, Alaam [sic], was imprisoned for criticizing the government.\" Id. In response to the question, \"Have you or your family members ever been accused, charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned in any country other than the United States,\" id. at 131, he stated: \"My brother, Alaam [sic], was imprisoned for criticizing the government.\" Id. The IJ accepted the application and set the hearing for June 30, 2005.\nOn June 14, 2005, two weeks before the hearing on the application, Mr. Ismaiel supplemented his application with letters from his former coworker, Hussien Ibrahim; his brother, Allaam Ismaiel; and\" himself. The former coworker stated that, despite being a man of \"integrity\" and \"high morals,\" Mr. Ismaiel was \"arrested many times by the secret security service for questioning. . . .\" Id. at 211. His brother stated that he himself had been arrested by the \"secret security service,\" \"subjected to a great deal of torture,\" and imprisoned for five years, id. at 213, and that Mr. Ismaiel had been arrested by the secret security service but was warned by a friend in the service that he should \"leave the country because if ever he gets arrested again while he [the friend] is not there, [he] will be put in prison for life.\" Id. In his own letter Mr. Ismaiel described an incident in which he encountered a friend when he reported to the Intelligence Office:\n[W]hen I went to the Intelligence Office, I found that the interrogator there was my friend. I knew this guy for a long time, and he said, \"You have good luck I'm here. If I was not here you would be in the prison for the rest of your life, and this is a secret just between us. Now you have to leave the country immediately. Go to any country in the world.\"\nId. at 217.\nApparently for the purpose of establishing that Syrian officials torture individuals accused of membership in the Muslim Brotherhood, Mr. Ismaiel submitted (1) United States State Department reports from 2002 to 2004 on human rights practices in Syria and (2) Amnesty International reports on Syria for 2002 to 2004. None of the supplemental materials include evidence that Mr. Ismaiel was harmed by the Syrian government.\nAt the hearing before the IJ on June 30, 2005, Mr. Ismaiel claimed that in Syria he had been called into the Intelligence Office on three occasions. He asserted for the first time that during two of those occasions he had been tortured by Syrian officials. We quote the relevant portions of Mr. Ismaiel's testimony during direct examination by his counsel:\nQ: Why did you want to come to the U.S.?\nA: In my country I was exposed to a lot of sufferings through a lot of torture and insulting, and every now and then I was used to be called by the Intelligence Office to torture me.\nQ: The Intelligence Office would randomly call you or did they have specific reasons they gave you?\nA: In our country there is no regular exiting system, everything goes randomly. They could call me at night, during the day, at their request.\nQ: Did this happen throughout your life or did it start at a certain time?\n\n*1202 A: It actually happened before I came to the United States of America, maybe two to three years before I came here.\nQ: What happened exactly?\nA: The first time it happened when they called me to the branch of the Intelligence Office in the country and they began in a very harassing way to interrogate and investigate with me, they asked me whether I didn't like the current government system. Of course if you say the truth you will be completely destroyed and messed up, so I denied the truth.\nQ: That was the first time they called you?\nA: Yes, that was the first time.\nQ: How many more times did they interrogate you?\nA: That was the first time. That was the second time when—the second time when I was called again they began to interrogate in a very harassing way, and you know in our country there is a lot of torture and they are used to put you down.\nQ: Do you remember the dates when this happened?\nA: I do recall the last time. What I recall it was around two months before I came to America here.\nQ: You've indicated in your letter that you had problems with purchasing a home.\nA: Yes, I applied actually for to purchase a house and I put, a down payment the amount of 10,000 (indiscernible), and I still was used to pay monthly payments for the house, that was at the Housing Department in 1975. Now it's over 50, I haven't got a house yet.\nQ: During the interrogation did they question you about your home as well?\nA: They did ask me about the house issue and I answered them that I was applying for a house about 30 years ago and since that time I haven't got a house and I was just telling the truth. And as you know in our country you cannot say the truth, you can't go straightforward. After that I was recalled and to report to them the second time.\nQ: During the interrogation what type of questions or what type of harm did you receive?\nA: In our country while holding the interrogation and the investigation they are used to use all different types of torture including electric shocking, including beating with the sticks. This is what they are used to do.\nQ: Did those—did the electric shock and the beating with the sticks happen to you?\nA: Yes.\nQ: Did it happen at every interrogation you went to?\nA: That happened during the first time, it happened during the second time. The third, which was the last time, I by chance met with an officer whom I knew since I was a long time ago who recommended—he was working at the branch of that Intelligence Office and who recommended he told me if he were not there I would be imprisoned for life, and he said if I were in your situation I would go outside the country.\nId. at 88-91.\nOn cross-examination the government asked Mr. Ismaiel why he had failed to mention the torture incidents in his application. Mr. Ismaiel explained, \"Because by our lives (indiscernible) as you know I'm very much confused and I'm feeling, suffering a lot of pain, and I don't know *1203 exactly how things are going.\" Id. at 106. Later the IJ questioned Mr. Ismaiel on the matter:\nQ: On your asylum application the question, one of the questions ask you to explain in detail any harm or mistreatment that you suffered. The only thing you mentioned was that your brother was imprisoned for criticizing the government. Why didn't you mention that you had been beaten during interrogation on two occasions?\nA: In fact if it would happen to explain in details about the current deteriorating situations and conditions in my country, (indiscernible) mistreatment is about 20 pages long would not be enough to do that.\nQ: Why didn't you do that? The question asks you to do that.\nA. As to brief the letter I had to send.\nQ: The letter that you did send doesn't mention that you were beaten on two occasions. Do you know why that is?\nA: As you know I am an old person and I frequently forget too much things. This is why I didn't mention.\nQ: You forget that you had been beaten on two occasions?\nA: I thought during that time that I was prepared to talk in details in the Court in front of the Judge about my general condition and my general situation.\nId. at 118-119.\nIn his oral decision at the June 30 hearing, the IJ denied Mr. Ismaiel's application for asylum because he had failed to file an asylum application within one year of the date of his arrival in the United States. As to the claims for restriction on removal and relief under the CAT, the IJ determined that Mr. Ismaiel's testimony regarding the torture incidents was not credible because the asylum application did not mention anything about Mr. Ismaiel's having been interrogated and beaten on two occasions in Syria and his supplemental letters did not indicate that he had been harmed when called into the Intelligence Office. The IJ concluded that Mr. Ismaiel \"either fabricated these incidents or ha[d] seriously embellished them.\" Id. at 58. In addition, the IJ found unpersuasive Mr. Ismaiel's explanation for why he would be targeted in Syria:\n[Mr. Ismaiel] alleges that he had applied for some form of public housing and had waited a significant length of time and was not granted the house, and [he] testified that because he complained about that he was targeted for mistreatment by the government. It seems unlikely that [Mr. Ismaiel] would have been targeted for serious mistreatment because of complaining about his failure to obtain some public housing. As [he] explained, public services and other. items are in short supply in Syria and it's common to wait for long periods of time. [He] explained that it took him 12 years to obtain a telephone line, it took him 13 years to obtain a car. Accordingly, the Court finds that [Mr. Ismaiel] has not shown by reliable evidence any reason why he would be targeted by the government of Syria. As he pointed out in his testimony he has never publicly expressed any political opinion in any form and it seems extremely unlikely that [he] would be targeted for mistreatment on account of his political opinion as he claims.\nId. at 58-59. The IJ found that Mr. Ismaiel had not satisfied his burden of proving a probability that he would be persecuted or tortured if returned to Syria. It denied restriction-on-removal and relief under the CAT, but granted voluntary departure for August 29, 2005. See 8 U.S.C. 1229c (Attorney General may permit alien *1204 to depart voluntarily at alien's expense rather than be deported.)\nMr. Ismaiel timely appealed to the BIA. The BIA dismissed Mr. Ismaiel's appeal, determining that \"major omissions and contradictions in the evidence\" supported the IJ's adverse credibility ruling. The BIA also noted that Mr. Ismaiel's adult children and brother remain in Syria, apparently without being harmed, and \"[a] claim to fear of future persecution is diminished when family members remain behind and have not experienced persecution.\" R. at 3.\nII. DISCUSSION\nA. Restriction on Removal and Relief Under the CAT\nAs we stated in Wiransane:\nAn alien who fears persecution if returned to a particular country has two possible means of relief under the INA: asylum and restriction on removal. A grant of asylum permits the alien to remain in this country; a restriction on removal forbids removal of the alien to the country where persecution may occur.\n366 F.3d at 892-93 (footnote and citation omitted). Although a grant of asylum is in the discretion of the Attorney General, restriction on removal is granted to qualified aliens as a matter of right. See id. at 893, An additional avenue for relief is protection under the CAT, which prohibits removal to a country where an alien would probably face torture, See Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004). Relief under the CAT is mandatory if the convention's criteria are satisfied. See 8 C.F.R. § 1208.16(c)(4) (an alien meeting the CAT's criteria \"shall be granted\" withholding of removal or, at a minimum, deferral of removal). Because Mr. Ismaiel does not challenge denial of asylum, we limit our review to the denial of restriction on removal and relief under the CAT.\nTo obtain a restriction on removal, an applicant must show that his \"life or freedom would be threatened in [the proposed country of removal] because of [his] race, religion, nationality, membership in a particular, social group, or political opinion.\" 8 U.S.C. § 1231(b)(3)(A); see 8 C.F.R. § 1208.16(b). If an applicant has suffered past persecution for any of the stated reasons, \"it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original claim.\" 8 C.F.R. § 1208.16(b)(1)(I); see Niang, 422 F.3d at 1195-96. Protection under the CAT does not depend on a showing that mistreatment would be based on any particular characteristic such as race or political opinion. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir.2005). Rather, an alien seeking such relief must show that \"it is more likely than not that he or she would be tortured if removed to the proposed country of removal.\" 8 C.F.R. § 1208.16(c)(2).[4]\nB. Standard of Review\n\"The agency's findings of fact are conclusive unless the record demonstrates that `any reasonable adjudicator would be compelled to conclude to the contrary.'\" *1205 Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).[5] We have stated that \"our duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.\" Elzour, 378 F.3d at 1150. We do not question credibility findings that are \"substantially reasonable.\" Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir.2001). But \"[b]ecause an alien's testimony alone may support an application for withholding of removal or asylum, 8 C.F.R. § 208.13(a), the IJ must give specific, cogent reasons for disbelieving it.\" Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004) (internal quotation marks omitted). \"An IJ's finding that an applicant's testimony is implausible may not be based upon speculation, conjecture, or unsupported personal opinion.\" Chaib v. Ashcroft, 397 F.3d 1273, 1278 (10th Cir. 2005) (internal quotation marks omitted).\nThe BIA's affirmance of the IJ's decision was in an opinion by a single member of the Board. See 8 C.F.R. § 1003.1(e)(5). In that circumstance we \"will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.\" Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006). But \"when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds.\" Id. at 1204.\nC. Mr. Ismaiel's Claims\n\n1. Denial of Restriction on Removal\nWe believe that the IJ's credibility determination was eminently reasonable. If the torture on which Mr. Ismaiel bases his claim had actually occurred, it would defy common sense for Mr. Ismaiel, who was assisted by counsel, to omit any mention of it on his application and supplemental letters, particularly when the application explicitly asked for such information.\nMr. Ismaiel, however, argues that an omission on an application, without more, cannot serve as the basis for an adverse credibility finding, especially when the applicant's testimony does not contradict the information set forth in the application. To support this argument, he relies on decisions by the Second and Ninth Circuits that may be read as distinguishing between (1) false statements and omissions that involve the \"heart of the asylum claim\" and (2) false statements and omissions relating only to \"incidental\" matters, and then rejecting adverse-credibility findings based on the latter. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003); Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.1999).\nThis court, however, has not adopted that approach. In our view, the significance of an omission must be determined by the context, and rigid rules cannot substitute for common sense. Experienced litigators do not limit their challenges to adverse testimony to matters at the heart of the case. Cross-examination often seeks to undermine the witness's credibility by probing into inconsistencies and improbabilities regarding \"incidental\" matters. A witness who claims to have had a conversation with a particular person may be disbelieved if he cannot describe the house where the conversation allegedly occurred. Defense counsel regularly confront law-enforcement officers with omissions *1206 of information in their reports that do not concern the gist of the alleged offense. We assume that these practices continue because jurors are sometimes persuaded by the challenges. To be sure, one must be sensitive to the pressures bearing on persons seeking to escape persecution and make allowances for omissions of detail in, their early accounts of what befell them. The amount of leeway to grant, however, must depend on the specific circumstances. Here, for example, the omissions are in a typed form prepared with the assistance of counsel almost four years after Mr. Ismaiel entered this country and in letters submitted almost two years after that. The time elapsed since the alleged trauma and the assistance of counsel should reduce the number of omitted items later elicited in testimony. The circumstances of this case readily support an adverse credibility finding. (We also note the congressional directive that credibility determinations should be based on considerations of \"the totality of the circumstances without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim,\" 8 U.S.C. §§ 1158(b)(1)(B)(iii) and 1229a(c)(4)(C); see 1231(b)(3)(C), although that directive applies only to applications filed more recently than Mr. Ismaiel's[6])\n\n2. Denial of Protection Under the CAT\nNext, Mr. Ismaiel claims that the BIA erred in ruling that the adverse credibility determination was sufficient to preclude his claim under the CAT. Although he did not challenge the CAT determination in his appeal to the BIA, the BIA sua sponte ruled on the claim, so we have jurisdiction to decide the issue. See Sidabutar v. Gonzales, 503 F.3d 1116, 1118-21 (10th Cir.2007).\nOur analysis follows our analysis of the restriction-on-removal issue. Simply put, the IJ and BIA could reasonably refuse to believe Mr. Ismaiel's claims of past torture and, reviewing all the evidence, remain unpersuaded that Mr. Ismaiel had satisfied his burden of proving that he would probably be tortured if returned to Syria. See Niang, 422 F.3d at 1202.\n\n3. Membership in the Muslim Brotherhood\nMr., Ismaiel contends that this court should remand the case for further proceedings because the BIA and IJ failed to consider his claim that, if deported, he will be imprisoned or tortured by the Syrian government on the mistaken belief that he is a member of the Muslim Brotherhood. *1207 He further argues that the BIA and IJ failed to consider documentary evidence of systematic torture of members of the Muslim Brotherhood in Syria.\nMr. Ismaiel failed to present these issues in his appeal to the BIA, so we lack jurisdiction over them. See Nguyen v. INS, 991 F.2d 621, 623 n. 3 (10th Cir.1993). Mr. Ismaiel argues that he \"has consistently maintained that the agency failed to fully and fairly evaluate his claims based on the evidence in the record as a whole,\" and that \"[t]hat legal argument encompasses the argument that the agency failed to consider evidence supporting a particular theory.\" Aplt. Reply Br. at 11 n. 1. But his notice of appeal to the BIA, and his brief to the BIA, failed to mention the Muslim Brotherhood. And even if we had jurisdiction, we discern no error. The BIA is not required to \"`write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.'\" Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir.1984)). That standard was satisfied.\nIII. CONCLUSION\nWe AFFIRM the BIA's dismissal of Mr. Ismaiel's appeal of the IJ's decision.\nNOTES\n[1] Mr. Michael Musasey has been substituted for Alberto Gonzales per Fed. R.App. 43(c)(2).\n[2] Restriction on removal was known as withholding of removal before amendments to the INA made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 100 Stat. 3009. The regulations under the INA, however, retain the former term withholding of removal, see, e.g., 8 C.F.R. § 208.16(b), and both the IT and the BIA have referred to withholding of removal. Nevertheless, we use the statutory term restriction on removal. See Wiransane v. Ashcroft, 366 F.3d 889, 892 n. 1 (10th Cir. 2004).\n[3] \"The Convention Against Torture is formally referred to as The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The United States implemented the Convention Against Torture through the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681 (1998).\" Niang v. Gonzales, 422 F.3d 1187, 1191 n. 2 (10th Cir.2005).\n[4] Torture is defined as \"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.\" 8 C.F.R. § 1208.18(a)(1) (1999).\n[5] The Real ID Act of 2005 has supplemented § 1252(b)(4)(B) by limiting circuit-court review of credibility findings. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C), 1231(b)(3)(C); Yan, 438 F.3d at 1251 n. 3. The 2005 amendments do not govern this case, however, because they apply only to applications for asylum and other relief filed after May 11, 2005. See Yan, 438 F.3d at 1252 n. 3.\n[6] 8 U.S.C. §§ 1158(b)(1)(B)(iii) and 1229a(c)(4)(C) both state (except that § 1229(c)(4)(C) uses the term the immigration judge rather than a trier of fact ):\n\nConsidering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.\n(emphasis added). See id. at § 1231(b)(3)(C). Regarding the effective date of this provision, see note 5, supra.\n\n", "ocr": false, "opinion_id": 170345 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.tsc.state.tn.us/sites/default/files/state_of_tennessee_v_leonard_lamont_currie.pdf", "author_id": 8284, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n Assigned on Briefs February 1, 2011\n\n STATE OF TENNESSEE v. LEONARD LAMONT CURRIE\n\n Direct Appeal from the Circuit Court for Tipton County\n No. 6477 Joe H. Walker, Judge\n\n\n No. W2010-01702-CCA-R3-CD - Filed April 13, 2011\n\n\nThe defendant, Leonard Lamont Currie, was convicted of voluntary manslaughter, a Class\nC felony, and sentenced as a Range II, multiple offender to eight years in the Department of\nCorrection. On appeal, he argues that the evidence was insufficient to support the jury’s\nrejection of his claim of self-defense. Following our review, we affirm the judgment of the\ntrial court.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed\n\nA LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA\nM CG EE O GLE, JJ., joined.\n\nDavid S. Stockton (on appeal and at trial); Parker Dixon and Lyle Jones (at trial), Assistant\nPublic Defenders, for the appellant, Leonard Lamont Currie.\n\nRobert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; D.\nMichael Dunavant, District Attorney General; and James Walter Freeland, Jr. and Billy G.\nBurk, Assistant District Attorneys General, for the appellee, State of Tennessee.\n\n OPINION\n\n FACTS\n\n In November 2009, the Tipton County Grand Jury returned an indictment charging\nthe defendant with the second degree murder of his former girlfriend’s boyfriend, Torrance\nPeete. Following a jury trial in May 2010, he was convicted of the lesser-included offense\nof voluntary manslaughter.\n\f State’s Proof\n\n Latonya Evans testified that she and the defendant had a seven-year-old child. She\nacknowledged that, during their relationship, she and the defendant had violent\ndisagreements, some of which resulted in her eyes being blackened and a knife being held\nat her throat. She admitted that she previously had created a disturbance at the defendant’s\nresidence and that the police made her leave. Evans said that she had been evicted from a\nprevious residence because the defendant kicked in a door. At the time of the victim’s death\nin July 2009, she was no longer involved with the defendant and was six months pregnant\nwith the victim’s child.\n\n Evans said that, on the night of July 14, 2009, the victim was helping her move an air\nconditioner into her new residence when a car pulled up outside. Evans walked toward the\ncar, realized the uninvited defendant was in it, and walked back toward her house. The\ndefendant got out of the car and began cursing at her. The victim asked the defendant to\nleave, and the two started arguing. The defendant told the victim, “You ain’t got shit to do\nwith this. This my motherfucking baby mama.” The victim replied, “That’s my\nmotherfucking baby mama. She asked you to leave.” The defendant told the victim, “I\nwhipped your ass once, and I’ll whip your ass again.” The victim responded, “Well, whip\nmy ass then, right now,” and the two started “doing the stuff like they was going to fight,”\nbut some of the defendant’s family arrived and pulled him back. The victim then asked\nEvans to take him home, but she took him to her mother’s house instead because she “wanted\nhim to calm down.” The victim later asked Evans’ brother, Eric Davis, to take him home.\nDavis told the victim to wait, but the victim refused to do so and started walking, saying he\nwas going home.\n\n About forty-five minutes after the victim left, someone called Evans and told her that\nthe victim and the defendant were arguing “over there in the Tatlock [Apartments].” As\nEvans was getting ready to leave, someone called her again, saying, “You need to hurry up\nand get over there. I don’t know what happened. . . . [The victim] is over there and he laid\ndown, and I think [the defendant] just stabbed [the victim].” When Evans arrived at the\nscene, she saw the victim “laying there, and [saw] blood and everything.”\n\n Officer Gary Hatcher of the Covington Police Department testified that he was called\nto the Tatlock Apartments at approximately 11:16 p.m. on July 14, 2009. When he arrived,\nhe observed the victim lying facedown in a pool of blood on the parking lot. The defendant\nwalked out of an apartment and told Officer Hatcher, “Yeah, I did it. I did it. I killed the\nmotherfucker.” He took the defendant into custody and, during a pat-down, discovered a\nknife handle in the defendant’s left pocket. Officer Hatcher found the knife’s missing blade\non the ground approximately seven to eight feet from the victim’s body. He did not notice\n\n -2-\n\fany injuries on the defendant’s person. Officer Hatcher observed blood spatter on the\ndriver’s side of a blue vehicle parked on the east side of the apartment building. A white,\nfour-door vehicle was parked near the doorway of the defendant’s apartment. Officer\nHatcher estimated that the two vehicles were about seventeen to twenty feet apart and were\nnot pointed in the same direction.\n\n Nakia Jackson testified that she had known the victim for over six years and that on\nthe night of July 14, 2009, she picked him up in her white, two-door Trans Am. They\nsubsequently drove to the Tatlock Apartments, which they frequented on a regular basis\nbecause some of the victim’s family lived there. When they were about two doors down\nfrom the defendant’s apartment, the defendant came running outside. While the car was still\nrolling and near the apartment next-door to the defendant’s, the victim jumped out of the car.\nThe defendant and the victim “met up face to face” and started arguing “about what\nhappened before.” The defendant pulled up his shirt and told the victim, “I ain’t got no gun.\nI ain’t got no knife. . . . Why is you at my house?” The victim told the defendant, “[W]hat’s\nup with all this shit . . . the bull shit you been doing . . . . I’m coming to you like a man.\nFight me.” The defendant then went inside, and the victim turned to get in the car to leave.\nThe defendant ran back out of the house with a butcher knife behind his back and “got in [the\nvictim’s] face,” saying, “What’s up, bitch? . . . I’m fixing to call the police on you.” The\nvictim asked the defendant to step to the side and pulled up his pants to “square off to fight.”\nThe defendant “passed the first lick,” and the defendant and the victim tussled toward the\ngarbage dumpster. Jackson then heard the defendant call for his teenaged son to “come\nhere.” Jackson told the defendant’s son that the fight had nothing to do with him. She\nrelated what happened next: “[The victim] broke to run out from Tatlock or whatever, but\nhe bust a U running towards the car, calling my name. I done made a couple of steps going\ntowards him, and he fell to my feet. He was dead.”\n\n Dr. Lisa Funte, a medical examiner at the Shelby County Regional Forensic Center,\ntestified that she performed the autopsy on the victim and determined that the cause of death\nwas a stab wound to the neck. She said that the victim’s height on the autopsy table was 6'1\"\nand his weight was 235 pounds. Dr. Funte said that the trajectory of the victim’s stab wound\nwas “from the left side of the neck toward the right side, downward, and slightly front to\nback,” but she was unable to determine whether the wound was inflicted from the front or\nthe back. The depth of the wound was five and one-quarter inches. The victim had a fresh\nabrasion on the back of his right shoulder, a laceration on one of his wrists, and abrasions on\nhis knees, arms, and hands. A toxicology report on the victim revealed an alcohol level of\n.04% in the postmortem blood specimen.\n\n\n\n\n -3-\n\f Defendant’s Proof\n\n David Weathers testified that he knew both the defendant and the victim. He\ndescribed the victim as “a big guy” and “a beast.” He recalled past occasions when the\nvictim was drinking and became angry “over females.”\n\n Candice Fleming, the defendant’s girlfriend, testified she was living with the\ndefendant in the Tatlock Apartments on July 14, 2009. That night, the victim and “a young\nlady” came to the apartments, and the defendant told Fleming to call the police and went\noutside. Fleming heard arguing, looked out the window, and saw the victim hit the\ndefendant. She looked for her cell phone to call the police but could not find it. The\ndefendant called the police, using Xavier Peat’s phone. After the police arrived, Fleming\nstepped outside and saw the victim on the ground.\n\n Travis Smith testified that he had known both the defendant and the victim all his life.\nHe said that he had told the defendant about an incident he had with the victim when the\nvictim discovered that he was talking to the victim’s girlfriend. Smith said that the victim\nwas angry but “never did put his hands on [him].”\n\n The defendant elected not to testify.\n\n ANALYSIS\n\n The defendant argues that the evidence was insufficient to support his conviction for\nvoluntary manslaughter and the jury’s rejection of his claim of self-defense.\n\n In considering this issue, we apply the rule that where sufficiency of the convicting\nevidence is challenged, the relevant question of the reviewing court is “whether, after\nviewing the evidence in the light most favorable to the prosecution, any rational trier of fact\ncould have found the essential elements of the crime beyond a reasonable doubt.” Jackson\nv. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in\ncriminal actions whether by the trial court or jury shall be set aside if the evidence is\ninsufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);\nState v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,\n604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the\nweight and value to be given the evidence, and all factual issues are resolved by the trier of\nfact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict\nby the jury, approved by the trial judge, accredits the testimony of the witnesses for the State\nand resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d\n474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:\n\n -4-\n\f This well-settled rule rests on a sound foundation. The trial judge and\n the jury see the witnesses face to face, hear their testimony and observe their\n demeanor on the stand. Thus the trial judge and jury are the primary\n instrumentality of justice to determine the weight and credibility to be given\n to the testimony of witnesses. In the trial forum alone is there human\n atmosphere and the totality of the evidence cannot be reproduced with a\n written record in this Court.\n\nBolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212\nTenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of\ninnocence with which a defendant is initially cloaked and replaces it with one of guilt, so that\non appeal a convicted defendant has the burden of demonstrating that the evidence is\ninsufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).\n\n Voluntary manslaughter is defined as “the intentional or knowing killing of another\nin a state of passion produced by adequate provocation sufficient to lead a reasonable person\nto act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). At the time of the offense,\nthe self-defense statute provided:\n\n A person is justified in threatening or using force against another person\n when, and to the degree, the person reasonably believes the force is\n immediately necessary to protect against the other's use or attempted use of\n unlawful force. The person must have a reasonable belief that there is an\n imminent danger of death or serious bodily injury. The danger creating the\n belief of imminent death or serious bodily injury must be real, or honestly\n believed to be real at the time, and must be founded upon reasonable grounds.\n There is no duty to retreat before a person threatens or uses force.\n\nTenn. Code Ann. § 39-11-611(a) (2006). A person is not justified in threatening or using\nforce against another person if that person provoked the other’s use or attempted use of\nunlawful force, unless the original provoker abandons the encounter or clearly communicates\nhis intent to abandon the encounter and the other person nevertheless continues or attempts\nto use unlawful force. Id. § 39-11-611(d)(1).\n\n When the defense of self-defense is fairly raised by the evidence, the State carries the\nburden of proof to negate the defense beyond a reasonable doubt. See id. § 39-11-201(a)(3);\nState v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). However, whether a\ndefendant acted in self-defense is a question of fact for the jury to determine. See State v.\nGoode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727\n(Tenn. Crim. App. 1993). “Encompassed within that determination is whether the\n\n -5-\n\fdefendant’s belief in imminent danger was reasonable, whether the force used was\nreasonable, and whether the defendant was without fault.” State v. Thomas Eugene Lester,\nNo. 03C01-9702-CR-00069, 1998 WL 334394, at *2 (Tenn. Crim. App. June 25, 1998),\nperm. to appeal denied (Tenn. Feb. 1, 1999) (citing State v. Renner, 912 S.W.2d 701, 704\n(Tenn. 1995)). It is within the prerogative of the jury to reject a claim of self-defense. See\nGoode, 956 S.W.2d at 527.\n\n The defendant argues that because the confrontation occurred immediately outside the\nfront door of his residence, within the curtilage surrounding it, he had a reasonable belief of\nimminent death or serious bodily injury. “Curtilage” is defined as “the area surrounding a\ndwelling that is necessary, convenient and habitually used for family purposes and for those\nactivities associated with the sanctity of a person’s home.” Tenn. Code Ann. § 39-11-\n611(a)(2) (2010).\n\n Viewed in the light most favorable to the State, the proof at trial established that the\ndefendant went, uninvited, to the new residence of his former girlfriend where he and the\nvictim argued and he told the victim, “I whipped your ass once, and I’ll whip your ass again.”\nLater that same evening, the victim went to the defendant’s apartment complex where they\nargued again, and as the victim was getting in the car to leave, the defendant, armed with a\nbutcher knife, stabbed and killed the victim. By finding the defendant guilty of the lesser-\nincluded offense of voluntary manslaughter, the jury obviously determined that the defendant\nacted in a state of passion produced by adequate provocation but rejected his claim that he\nkilled the victim in self-defense. It is not the province of this court to second-guess factual\ndeterminations made by the jury. Therefore, we conclude that the evidence was sufficient\nto convict the defendant of voluntary manslaughter.\n\n CONCLUSION\n\n Based upon the foregoing authorities and reasoning, the judgment of the trial court\nis affirmed.\n\n _________________________________\n ALAN E. GLENN, JUDGE\n\n\n\n\n -6-\n\f", "ocr": false, "opinion_id": 1048901 } ]

[ "612 F. Supp. 2d 67" ]

[ { "author_str": "Roberts", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2740, "opinion_text": "\n612 F.Supp.2d 67 (2009)\nLinda CRUZ-PACKER, Plaintiff,\nv.\nMichael CHERTOFF, Defendant.\nCivil Action No. 07-1235 (RWR).\nUnited States District Court, District of Columbia.\nMay 6, 2009.\n*68 Linda Cruz-Packer, Clinton, MD, pro se.\nWyneva Johnson, U.S. Attorney's Office for D.C., Washington, DC, for Defendant.\n\nMEMORANDUM OPINION\nRICHARD W. ROBERTS, District Judge.\nPro se plaintiff Linda Cruz-Packer filed a complaint alleging that her federal employer, the Transportation Security Administration (\"TSA\"), terminated her employment in violation of Title VII of the Civil Rights Act of 1964 and defamed her. TSA has moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint for lack of jurisdiction. Because Cruz-Packer has not demonstrated that this court has jurisdiction over her claims, the motion to dismiss will be granted.[1]\n\n\n*69 BACKGROUND\n\nTSA hired Cruz-Packer in June 2002 as a Transportation Security Specialist.[2] (Am. Compl. ¶¶ 1-2, 14.) Shortly after she was hired, Cruz-Packer was assigned to a criminal investigator position. (Id. at ¶¶ 2, 17.) TSA alleges that her position required her to have a Top Secret security clearance enabling her to have access to national security information, something Cruz-Packer says she had not been told. (See Def.'s Mem. in Supp. of Mot. to Dismiss (\"Def.'s Mem.\") at 1-2; id., Ex. 1 at ¶ 2; Pl.'s Mem. of Points and Authorities Denying Def.'s Mot. to Dismiss (\"Pl.'s Mem.\") at 8-9.) In March 2003, Cruz-Packer completed at TSA's request an \"SF-86\" security questionnaire which started her background investigation. (Am. Compl. at ¶¶ 16, 18.) The background investigation revealed that a prior employer had terminated Cruz-Packer for misconduct, a fact she had failed to disclose on her SF-86 form. (Def.'s Mem., Ex. 1 at ¶ 2.) TSA claims that her lack of candor prevented her from receiving the required security clearance. (Id.) TSA initially suspended Cruz-Packer and then fired her for unsuitability on November 18, 2004. (Am. Compl. at ¶¶ 22-23.)\nCruz-Packer alleges in her amended complaint that her termination constituted discrimination on the basis of sex, sexual harassment, and retaliation (Counts I-III), and that TSA defamed her by posting at the front entranceway of the building in which she worked a notice stating that she was not allowed to enter the building (Count IV).[3] (Am. Compl. at ¶¶ 28-38; Pl.'s Mem. at 1-2.) TSA maintains in a declaration signed by a TSA official that the reason Cruz-Packer was terminated was that she could not obtain a security clearance. (Def.'s Mem., Ex. 1 at ¶ 2.) It has moved under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of jurisdiction, arguing that the decision to deny security clearances is not subject to judicial review. (Def.'s Mem. at 1-2.) Cruz-Packer opposes the motion, arguing that the defendant's stated grounds for her termination are a pretext because the defendant did not indicate to her in writing that maintaining a security clearance was a necessary condition of Cruz-Packer's employment, and because other criminal investigators with negative events in their backgrounds were not dismissed or denied security clearances. (Pl.'s Mem. at 3-8.)\n\nDISCUSSION\n\"On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden *70 of establishing that the court has subject-matter jurisdiction.\" Shuler v. United States, 448 F.Supp.2d 13, 17 (D.D.C.2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). While factual allegations contained in the complaint must be accepted as true when reviewing a motion to dismiss under Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), a court may consider material outside of the pleadings when determining whether a plaintiff has established jurisdiction to hear the case. See Venetian Casino Resort v. EEOC, 409 F.3d 359, 366 (D.C.Cir.2005) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C.Cir.1997)).\n\"Title VII prohibits the federal government from discriminating in employment on grounds of race or sex, 42 U.S.C. § 2000e-16, and from retaliating against employees for engaging in activity protected by Title VII.\" Montgomery v. Chao, 546 F.3d 703, 706 (D.C.Cir.2008). Proof in a circumstantial Title VII case such as this one often unfolds following familiar steps. Where a plaintiff presents prima facie evidence of discrimination or retaliation and the defendant responds with a legitimate, nondiscriminatory reason for its actions, the sole remaining issue is whether the adverse employment decision was made for a discriminatory or retaliatory reason. Id. at 706 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C.Cir.2008)).\nTSA argues that this court lacks subject matter jurisdiction to entertain Cruz-Packer's Title VII claims because the litigation would necessarily question the reason for the decision to deny the security clearance, which is prohibited by 42 U.S.C. § 2000e-2(g). Section 2000e-2(g) provides, in relevant part, that it is not unlawful to terminate an employee if\nthe occupancy of such position ... is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President ... [and] such individual has not fulfilled or has ceased to fulfill that requirement.\nCourts have found jurisdiction lacking in cases implicating security clearance determinations. The Supreme Court held that the Merit Systems Protection Board, the administrative body empowered to adjudicate challenges to federal personnel actions, could not \"review the substance of an underlying decision [by an agency] to deny or revoke a security clearance in the course of reviewing an adverse [employment] action.\" Dept. of Navy v. Egan, 484 U.S. 518, 520, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). The D.C. Circuit later found that Egan's reasoning also applied \"in a Title VII action to preclude a `nonexpert body'—whether administrative or judicial—from resolving a discrimination claim based on an adverse employment action resulting from an agency security clearance decision.\" Ryan v. Reno, 168 F.3d 520, 523 (D.C.Cir.1999). The court stated that proof in that Title VII case could not follow the usual steps\nwithout running smack up against Egan. The nondiscriminatory reason proffered below for withdrawing the employment offers was that the applicants' long residence abroad prevented DOJ from conducting an adequate security clearance background investigation. The appellants could not challenge the proffered *71 reason's authenticity without also challenging its validity.\nId. at 524. Therefore, \"because the district court ... could not proceed with the appellants' discrimination action without reviewing the merits of DOJ's decision not to grant a clearance, the court was foreclosed from proceeding at all.\" Id.\nMore recently, in a case that is factually similar to this case, the court of appeals upheld the district court's decision dismissing a complaint for lack of jurisdiction based upon § 2000e-2(g). In Bennett v. Chertoff, 425 F.3d 999 (D.C.Cir.2005), the plaintiff was employed as a criminal investigator with the TSA. During its investigation into Bennett's background, the TSA determined that she lied on her Declaration for Federal Employment. The TSA informed Bennett that her employment was being terminated \"based on her unsuitability for the position,\" and in its official notification, the TSA stated that it was terminating Bennett because of a \"negative suitability determination.\" Id. at 1000-01. Bennett filed a complaint alleging that TSA's stated reason for terminating her was a pretext and that the real reasons were discrimination and retaliation against her for filing an administrative complaint. As happened with Cruz-Packer, TSA provided a sworn statement from a TSA official stating that the plaintiff's termination was \"due to her inability to sustain a security clearance.\" Id. at 1001, 1003 (internal quotation and citation omitted).\nCruz-Packer argues, as did Bennett, that the district court has jurisdiction to hear these claims because the TSA termination was for a \"negative suitability determination,\" not for a denied security clearance. (Pl.'s Mem. at 29, 32-34.) However, Bennett determined that \"lack of `suitability' in ordinary language can encompass lack of suitability because of ineligibility for a security clearance[.]\" Id. at 1002. That meant that the letter that Bennett received informing her that she was terminated for a negative suitability determination was \"not inconsistent with termination on the basis that Bennett could not sustain a security clearance.\" Id. at 1002-03. Cruz-Packer also argues, as did Bennett, that the TSA's security clearance explanation was pretextual, but Bennett determined that courts could not \"adjudicate the credibility of that claim\" because such an adjudication would \"require the trier of fact to evaluate the validity of the agency's security determination.\" Id. at 1004. While Cruz-Packer argues the merits of the decision not to grant her a security clearance and claims that the decision was a pretext, she acknowledges that the judicial branch lacks the power to review decisions by the executive branch about whether to grant security clearances.[4] (See Pl.'s Mem. at 33-34.) Cruz-Packer has not established subject matter jurisdiction over her claims of discrimination.\n\nCONCLUSION\nBecause this court lacks jurisdiction over claims implicating the merits of a decision to deny a security clearance, and over defamation claims against the federal government, TSA's motion to dismiss will be granted. A final Order accompanies this Memorandum Opinion.\nNOTES\n[1] Cruz-Packer has also moved under Local Civil Rule 83.11(b)(3) for appointment of counsel to assist her with this civil claim. A plaintiff in a civil case typically does not have a right to counsel. See Willis v. FBI, 274 F.3d 531, 532 (D.C.Cir.2001). \"Appointment of counsel calls for exceptional circumstances and `is wholly unwarranted when [the movant] has not demonstrated any likelihood of success on the merits.'\" Kidd v. Howard Univ. School of Law, Civil Action No. 06-1853(RBW), 2007 WL 1821159, at *2 (D.D.C. June 25, 2007) (quoting Nichols v. Mosbacher, 959 F.2d 1101 (D.C.Cir.1992)). Because Cruz-Packer has not shown that the nature or complexity of her case, the potential merit of her claim, or the interests of justice warrant appointment of counsel, her motion for appointment of counsel will be denied.\n[2] TSA is now a component of the Department of Homeland Security. At the time Cruz-Packer was terminated, TSA was a component of the Department of Transportation. (See Def.'s Mem. in Support of Mot. to Dismiss at 1.)\n[3] Defamation claims are specifically exempted under the Federal Tort Claims Act, 28 U.S.C. § 2680(h), from the torts for which the government may be sued. The federal government has not waived sovereign immunity from defamation claims, and Cruz-Packer cannot proceed against the TSA on Count IV. See Council on Am. Islamic Rels. v. Ballenger, 444 F.3d 659, 666 (D.C.Cir.2006); Banks v. Lappin, 539 F.Supp.2d 228, 240-41 (D.D.C. 2008).\n[4] Bennett notes that Executive Order 12,968, § 5.2(a), 60 Fed.Reg. at 40,252, provides procedural protections, including the right of appeal within the agency, to individuals who are denied security clearances. 425 F.3d at 1002, 1004.\n\n", "ocr": false, "opinion_id": 1575504 } ]

[ "2014 Ohio 3363" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/6/2014/2014-ohio-3363.pdf", "author_id": 8121, "opinion_text": "[Cite as State v. Trevino, 2014-Ohio-3363.]\n\n\n\n\n IN THE COURT OF APPEALS OF OHIO\n SIXTH APPELLATE DISTRICT\n ERIE COUNTY\n\n\nState of Ohio Court of Appeals No. E-13-042\n\n Appellee Trial Court No. 2012-CR-063\n\nv.\n\nPablo Trevino DECISION AND JUDGMENT\n\n Appellant Decided: August 1, 2014\n\n *****\n\n Kevin J. Baxter, Erie County Prosecuting Attorney,\n Mary Ann Barylski and Frank Romeo Zeleznikar, Assistant\n Prosecuting Attorneys, for appellee.\n\n Geoffrey L. Oglesby, for appellant.\n\n *****\n\n OSOWIK, J.\n\n {¶ 1} This is an appeal from a June 27, 2013 sentencing judgment of the Erie\n\nCounty Court of Common Pleas, which found appellant guilty of four counts of sexual\n\nbattery against his two minor stepdaughters. On February 8, 2012, appellant, Pablo\n\nTrevino, was indicted by the Erie County Grand Jury in a six-count indictment.\n\f {¶ 2} Count 1 charged appellant with rape, in violation of R.C. 2907.02(A)(1)(b),\n\na felony of the first degree. Count 2 charged appellant with rape, in violation of R.C.\n\n2907.02(A)(2), a felony of the first degree. Count 3 charged appellant with disseminating\n\nmaterial harmful to juveniles, in violation of R.C. 2907.31(A)(1), a felony of the fourth\n\ndegree. Count 4 charged appellant with rape, in violation of R.C. 2907.02(A)(1)(b), a\n\nfelony of the first degree. Count 5 charged appellant with gross sexual imposition, in\n\nviolation of R.C. 2907.05(A)(4), a felony of the third degree. Count 6 charged appellant\n\nwith rape, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. Counts 1\n\nand 2 pertained to appellant’s older stepdaughter. Counts 3, 4, 5, and 6 pertained to\n\nappellant’s younger stepdaughter.\n\n {¶ 3} On April 25, 2013, pursuant to a plea agreement, appellant pled guilty to\n\nfour reduced counts of sexual battery, in violation of R.C. 2907.03(A)(5), felonies of the\n\nthird degree. In exchange, the remaining two charges were dismissed. On June 28, 2013,\n\nappellant was sentenced to a five-year term of incarceration on each count, ordered to be\n\nserved consecutively, for a total term of incarceration of 20 years. Given these\n\nconvictions, appellant was classified as a Tier III sexual offender. For the reasons set\n\nforth below, this court affirms the judgment of the trial court.\n\n {¶ 4} Appellant sets forth the following two assignments of error:\n\n I. The trial court erred by running Counts 1 and 2 consecutive with\n\n Count 1 is subsumed into Count 2 and all the Defendant’s acts in Counts 4\n\n and 6 and subsumed into one act.\n\n\n\n\n2.\n\f II. The Trial Court Erred by Running all the Counts Consecutive\n\n when the Court improperly applied and violated the spirit of R.C.\n\n 2929.14I [sic] (4).\n\n {¶ 5} The following undisputed facts are relevant to this appeal. This case arises\n\nfrom appellant’s unlawful sexual interactions over many years with his two young\n\nstepdaughters. Appellant initiated the conduct with the two girls when each reached\n\napproximately eight years of age.\n\n {¶ 6} Appellant’s older stepdaughter ultimately disclosed the illicit conduct to her\n\nmother some years later. Subsequently, the victim conveyed to the police that when she\n\nwas around eight years of age, appellant would come into her bedroom during the night\n\nand perform oral sex upon her. Appellant admonished his stepdaughter not to tell her\n\nmother about the incidents. The victim unsuccessfully attempted to resist appellant’s\n\nnighttime visits. She further stated that these incidents always occurred when her mother\n\nwas not at home.\n\n {¶ 7} When the victim reached approximately 12 or 13 years of age, appellant\n\nbegan forcing her to perform oral sex upon him in addition to performing oral sex upon\n\nher. As he escalated the scope of his unlawful conduct, appellant attempted vaginal\n\nintercourse with the victim. She resisted and warned him she was going to tell her\n\nmother if that occurred. The sexual abuse lasted for approximately seven years.\n\n {¶ 8} Appellant’s younger stepdaughter similarly disclosed during the\n\ninvestigation underlying this matter that when she was approximately eight years of age\n\n\n\n\n3.\n\fappellant encouraged her to watch pornographic movies with him. Notably, appellant\n\nwould force the younger sister to watch as her older sister performed oral sex upon\n\nappellant. The younger sister also stated that appellant vaginally raped her when she was\n\nabout 12 years of age. Appellant would come into her bedroom during the night, wake\n\nher up, and force her to engage in intercourse. After this had occurred on approximately\n\neight to ten occasions, she threatened to tell her mother. Following this, the conduct\n\nceased.\n\n {¶ 9} On April 25, 2013, appellant pled guilty to four reduced counts of sexual\n\nbattery, in violation of R.C. 2907.03(A)(5), felonies of the third degree. The remaining\n\ntwo charges, disseminating matter harmful to juveniles and gross sexual imposition, were\n\ndismissed. On June 28, 2013, appellant was sentenced to a five-year term of\n\nincarceration on each count, ordered to be served consecutively, for a total term of\n\nincarceration of 20 years. Given these convictions, appellant was classified as a Tier III\n\nsexual offender. This appeal ensued.\n\n {¶ 10} In the first assignment of error, the crux of appellant’s contention is that the\n\ntrial court committed plain error in failing to merge the sexual battery offenses for both\n\nvictims. We are not persuaded. We note that the issue of allied offenses and merger was\n\nnot raised before the trial court. Of greater relevance, the offenses stemmed from\n\ncompletely different incidents covering separate time periods.\n\n\n\n\n4.\n\f {¶ 11} R.C. 2941.25 provides:\n\n (A) Where the same conduct by defendant can be construed to\n\n constitute two or more allied offenses of similar import, the indictment or\n\n information may contain counts for all such offenses, but the defendant\n\n may be convicted of only one.\n\n (B) Where the defendant’s conduct constitutes two or more offenses\n\n of dissimilar import, or where his conduct results in two or more offenses\n\n of the same or similar kind committed separately or with a separate animus\n\n as to each, the indictment or information may contain counts for all such\n\n offenses, and the defendant may be convicted of all of them.\n\n {¶ 12} Appellant’s failure to raise a claim that the sexual battery offenses are\n\nallied offenses of similar import before the trial court operates as a waiver of appellant’s\n\nright to raise the issue on appeal. State v. Edwards, 6th Dist. Lucas No. L-08-1408,\n\n2010-Ohio-2582, ¶ 8 (citations omitted). Thus, “[a]n error not raised in the trial court\n\nmust be plain error in order for an appellate court to reverse.” Id., citing State v. Long, 53\n\nOhio St.2d 91, 372 N.E.2d 804 (1978).\n\n {¶ 13} To be considered plain error, appellant bears the burden of demonstrating\n\nthat the outcome of the trial clearly would have been different but for the error and taken\n\nwith the utmost caution, under exceptional circumstances and only to prevent a manifest\n\nmiscarriage of justice. Id.\n\n\n\n\n5.\n\f {¶ 14} In State v. Johnson, the Supreme Court of Ohio stated if multiple “offenses\n\nare committed separately, or if the defendant has a separate animus for each offense,\n\nthen, according to R.C. 2941.25(B), the offenses will not merge.” State v. Johnson, 128\n\nOhio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48.\n\n {¶ 15} Importantly, as applied to the present case, the multiple rape offenses do\n\nnot merge because the record shows that appellant possessed a separate specific intent to\n\ncommit each offense and because each of the two victims suffered a separate risk of harm\n\nfrom each rape. See also State v. Davic, 10th Dist. Franklin No. 11AP-555, 2012-Ohio-\n\n952, ¶ 16 (holding multiple rape offenses do not merge when the appellant was\n\nalternating between cunnilingus and digital penetration because each required a separate\n\nspecific intent and the victim suffered a separate risk of harm from each rape).\n\n {¶ 16} Here, an intervening act separated each of appellant’s multiple rapes\n\nbecause he was alternating between forcing his performance of cunnilingus upon the\n\nvictims, forcing the victims to perform oral sex on him, and also forcing one of the two\n\nvictims to engage in vaginal intercourse with him. Thus, each rape count constituted a\n\nseparate offense committed with a separate specific intent and causing separate harm to\n\neach of the victims.\n\n {¶ 17} Accordingly, we find that the trial court did not err in its treatment of the\n\nseparate counts for sentencing purposes. Wherefore, we find appellant’s first assignment\n\nof error to be not well-taken.\n\n\n\n\n6.\n\f {¶ 18} In the second assignment of error, appellant asserts that the trial court failed\n\nto make necessary findings pursuant to R.C. 2929.14(C)(4). This court recently set forth\n\nthe proper parameters of felony sentence review on appeal. We noted that R.C.\n\n2953.08(G)(2) “directly defines and establishes the proper appellate standard of review in\n\nfelony sentencing cases.” State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-\n\nOhio-425, ¶ 11.\n\n {¶ 19} R.C. 2953.08(G)(2) establishes that, “[t]he appellant court’s standard of\n\nreview is not whether the sentencing court abused its discretion.” Id. As stated in\n\nTammerine:\n\n An appellate court may increase, reduce, modify, or vacate and\n\n remand a dispute[d] sentence if it clearly and convincingly finds either of\n\n the following:\n\n (a) That the record does not support the sentencing court’s findings\n\n under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of\n\n section 2929.14, or division (I) of section 2929.20 of the Revised Code,\n\n whichever, if any, is relevant;\n\n (b) That the sentence is otherwise contrary to law.\n\nTammerine at ¶ 11, quoting R.C. 2953.08(G)(2).\n\n {¶ 20} However, the approach articulated in State v. Kalish can be used in the\n\ncontext of determining whether a sentence is “clearly and convincingly contrary to law”\n\n\n\n\n7.\n\fand thus “outside the permissible statutory range.” State v. Kalish, 120 Ohio St.3d 23,\n\n2008-Ohio-4912, 896 N.E.2d 124, ¶ 15.\n\n {¶ 21} In applying the controlling R.C. 2953.08(G)(2) parameters to the propriety\n\nof the disputed sentence in this case, we first note that the permissible statutory\n\nsentencing range for sexual battery, a felony of the third degree, ranges between 12 and\n\n60 months. R.C. 2929.14(A)(3)(a). Thus, the five-year disputed term of incarceration\n\nimposed for the sexual battery charge clearly falls within the permissible statutory range.\n\n {¶ 22} In conjunction with the above, the record also reflects that the trial court\n\nproperly considered the record, oral statements and sentencing report, as well as the\n\nprinciples and purposes of sentencing under R.C. 2929.11, and has balanced the\n\nseriousness and recidivism factors under R.C. 2929.12. Accordingly, appellant’s\n\nsentence was not excessive, unreasonable, or contrary to law.\n\n {¶ 23} Next, in connection to consideration of any R.C. 2953.08(G)(2) statutory\n\nfindings potentially relevant to our review of this case, appellant suggests that R.C.\n\n2929.14(C)(4) (governing imposition of consecutive sentences) is of relevance in the\n\ninstant case.\n\n {¶ 24} We review the imposition of consecutive sentences using the standard of\n\nreview set forth in R.C. 2953.08. State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-\n\nOhio-1000, ¶ 10. “Under R.C. 2953.08(G)(2), we may either increase, reduce, or\n\notherwise modify a sentence, or vacate the sentence and remand the matter for\n\nresentencing where we clearly and convincingly find that either the record does not\n\n\n\n\n8.\n\fsupport the trial court’s findings under 2929.14(C)(4), or the sentence is otherwise\n\ncontrary to law.” State v. Washington, 6th Dist. Lucas No. L-13-1201, 2014-Ohio-2565,\n\n¶ 6.\n\n {¶ 25} R.C. 2929.14(C)(4) states:\n\n If multiple prison terms are imposed on an offender for convictions\n\n of multiple offenses, the court may require the offender to serve the prison\n\n terms consecutively if the court finds that the consecutive service is\n\n necessary to protect the public from future crime or to punish the offender\n\n and that consecutive sentences are not disproportionate to the seriousness of\n\n the offender’s conduct and to the danger the offender poses to the public,\n\n and if the court also finds any of the following:\n\n (a) The offender committed one or more of the multiple offenses\n\n while the offender was awaiting trial or sentencing, was under a sanction\n\n imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised\n\n Code, or was under post-release control for a prior offense.\n\n (b) At least two of the multiple offenses were committed as part of\n\n one or more courses of conduct, and the harm caused by two or more of the\n\n multiple offenses so committed was so great or unusual that no single\n\n prison term for any of the offenses committed as part of any of the courses\n\n of conduct adequately reflects the seriousness of the offender’s conduct.\n\n\n\n\n9.\n\f (c) The offender’s history of criminal conduct demonstrates that\n\n consecutive sentences are necessary to protect the public from future crime\n\n by the offender.\n\n {¶ 26} The trial court “is not required to recite any ‘magic’ or ‘talismanic’ words\n\nwhen imposing consecutive sentences provided it is ‘clear from the record that the trial\n\ncourt engaged in the appropriate analysis.’” State v. Wright, 6th Dist. Lucas Nos. L-13-\n\n1056, L-13-1057, L-13-1058, 2013-Ohio-5903, ¶ 33, quoting State v. Murrin, 8th Dist.\n\nCuyahoga No. 83714, 2004-Ohio-3962, ¶ 12. “While the trial court need not quote the\n\nstatute verbatim, [the R.C. 2929.14(C)(4)] findings must be made in the sentencing\n\nentry.” State v. Jude, 6th Dist. Wood No. WD-13-055, 2014-Ohio-2437, ¶ 10.\n\n“Furthermore, the findings that the trial court makes in its sentencing entry must be\n\nsupported by the record from the sentencing hearing.” Id.; R.C. 2953.08(G)(2)(a).\n\n {¶ 27} Thus, R.C. 2929.14(C)(4) requires the trial court to make the following\n\nfindings: (1) that the consecutive sentence is necessary to protect the public from future\n\ncrime or to punish the offender, (2) that consecutive sentences are not disproportionate to\n\nthe seriousness of the offender’s conduct, and (3) that one of the circumstances listed in\n\nR.C. 2929.14(C)(4)(a)-(c) applies. Here, the trial court’s entry makes each finding.\n\n {¶ 28} As to the first required statutory finding for consecutive sentences, the\n\njudgment entry states that the trial court “considered and weighed the principles and\n\npurposes of sentencing (O.R.C. 2929.11 / §2929.21 et.. seq..).” R.C. 2929.11 provides\n\nthat the overriding principles and purposes of sentencing are to “protect the public from\n\n\n\n\n10.\n\ffuture crime by the offender and others and to punish the offender.” Thus, the record\n\nshows that the court found that consecutive sentences were necessary to protect the\n\npublic from future crime and to punish appellant. The first required finding for\n\nconsecutive sentencing is satisfied.\n\n {¶ 29} As to the second required statutory finding for consecutive sentencing, the\n\njudgment entry expressly states that the trial court “considered, weighed, and made\n\nfindings for * * * Consecutive sentence[s] (O.R.C. §2929.12 / §2929.13 / 2929.14 et..\n\nseq..).” The second required finding for consecutive sentencing is satisfied.\n\n {¶ 30} With respect to the third statutory requirement for consecutive sentencing,\n\nthe trial court expressly found at sentencing pursuant R.C. 2929.14(C)(4)(b), “two or\n\nmore of these offenses were committed as part of a continuing course of conduct and the\n\nharm caused by these two offenses was so great and so unusual that a single prison term\n\nwouldn’t be sufficient.” The trial court went on to enumerate in the accompanying entry,\n\n“This court considered, weighed and made findings for * * * Consecutive sentence[s]\n\n(O.R.C. §2929.12 / §2929.13 / 2929.14 et.. seq..),” thereby satisfying the third required\n\nfinding for consecutive sentencing.\n\n {¶ 31} Contrary to appellant’s contention that his sentence is improper, the record\n\nshows the disputed sentence to be wholly lawful and in compliance with the statutory\n\nrequirements as part of R.C. 2929.14(C)(4). Appellant’s second assignment of error is\n\nfound not well-taken.\n\n\n\n\n11.\n\f {¶ 32} Wherefore, we find that substantial justice has been done in this matter.\n\nThe judgment of the Erie County Court of Common Pleas is hereby affirmed. Appellant\n\nis ordered to pay the costs of this appeal pursuant to App.R. 24.\n\n\n Judgment affirmed.\n\n\n\n\n A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.\nSee also 6th Dist.Loc.App.R. 4.\n\n\n\n\nMark L. Pietrykowski, J. _______________________________\n JUDGE\nArlene Singer, J.\n _______________________________\nThomas J. Osowik, J. JUDGE\nCONCUR.\n _______________________________\n JUDGE\n\n\n This decision is subject to further editing by the Supreme Court of\n Ohio’s Reporter of Decisions. Parties interested in viewing the final reported\n version are advised to visit the Ohio Supreme Court’s web site at:\n http://www.sconet.state.oh.us/rod/newpdf/?source=6.\n\n\n\n\n12.\n\f", "ocr": false, "opinion_id": 2689488 } ]

[ "2014 Ohio 2601" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/7/2014/2014-ohio-2601.pdf", "author_id": 8146, "opinion_text": "[Cite as State v. Mendez, 2014-Ohio-2601.]\n STATE OF OHIO, MAHONING COUNTY\n\n IN THE COURT OF APPEALS\n\n SEVENTH DISTRICT\n\n\nSTATE OF OHIO ) CASE NO. 13 MA 86\n )\n PLAINTIFF-APPELLEE )\n )\nVS. ) OPINION\n )\nYVETTE MENDEZ )\n )\n DEFENDANT-APPELLANT )\n\nCHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of\n Common Pleas of Mahoning County,\n Ohio\n Case No. 11 CR 578\n\nJUDGMENT: Affirmed in Part. Vacated in Part.\n Remanded.\n\nAPPEARANCES:\n\nFor Plaintiff-Appellee: Atty. Paul J. Gains\n Mahoning County Prosecutor\n Atty. Ralph M. Rivera\n Assistant Prosecuting Attorney\n 21 West Boardman Street, 6th Floor\n Youngstown, Ohio 44503\n\nFor Defendant-Appellant: Atty. James E. Lanzo\n 4126 Youngstown-Poland Rd.\n Youngstown, Ohio 44514\n\n\nJUDGES:\n\nHon. Cheryl L. Waite\nHon. Gene Donofrio\nHon. Joseph J. Vukovich\n Dated: June 13, 2014\n\f[Cite as State v. Mendez, 2014-Ohio-2601.]\nWAITE, J.\n\n\n {¶1} Appellant Yvette Mendez pleaded guilty to felony theft and possession\n\nof criminal tools. As part of the sentence, the trial court ordered Appellant to pay\n\nrestitution to the victim in the amount of $53,000. On appeal, Appellant argues that\n\nthe court could only order restitution up to the amount of the theft charge, which\n\nwould have been $4,999 under the law in effect at the time of the crime. The Ohio\n\nSupreme Court rejected this theory in State v. Lalain, 136 Ohio St.3d 248, 2013-\n\nOhio-3093. Under Lalain, the total amount of victim's economic loss may be ordered\n\nas restitution. Appellant also argues that the court should have held a restitution\n\nhearing under R.C. 2929.18(A)(1) because she disputed the amount of restitution at\n\nsentencing. Appellant is correct. The record reflects that she disputed the amount at\n\nsentencing and thought restitution may only be in the range of $1,500-$1,700.\n\nFinally, Appellant argues that the court should have considered her inability to pay\n\nsuch a fine, since her indigency was a matter of record. This assignment of error is\n\nmoot because the matter will be remanded for hearing on the amount of restitution.\n\nAppellant's first and third assignments of error are overruled, the second is sustained\n\nand the case is remanded for further proceedings.\n\n Case History\n\n {¶2} On April 26, 2011, Appellant was arrested at Peskin Sign Company in\n\nBoardman, Ohio. She and two others were found cutting and removing large steel\n\ncolumns from the premises and loading them on a truck. On June 23, 2011,\n\nAppellant was indicted on one count of fifth degree felony theft, R.C. 2913.02(A)(1),\n\nand one count of possession of criminal tools, R.C. 2923.24(A). On July 6, 2011, the\n\f -2-\n\ncourt determined that Appellant was indigent and counsel was appointed. On\n\nNovember 8, 2011, a change of plea hearing was held and Appellant entered a\n\nwritten guilty plea to the charges. A sentencing hearing was held on January 10,\n\n2012. At the hearing, the victim, Mr. Gerald Peskin, testified that he suffered a loss\n\nof $53,000 from the crime. Appellant's attorney objected to the amount and stated “I\n\nthought that the agreement that was brought to us * * * was between $1,500 and\n\n$1,700. * * * Again, we thought that the restitution was going to be a lot less.”\n\n(1/10/12 Tr., pp. 4-5.) Appellant's attorney also objected to the amount of restitution\n\nbecause her client was indigent. The trial court sentenced Appellant to five years of\n\ncommunity control sanctions, and $53,000 in restitution. The judgment entry of\n\nconviction and sentence was filed January 11, 2012.\n\n {¶3} Appellant filed a delayed appeal on June 4, 2013. We accepted the\n\ndelayed appeal on June 17, 2013.\n\n ASSIGNMENT OF ERROR NO. 1\n\n THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING\n\n RESTITUTION IN AN AMOUNT EXCEEDING THE MAXIMUM\n\n AMOUNT THAT IS AN ELEMENT OF THE THEFT OFFENSE FOR\n\n WHICH THE DEFENDANT WAS CONVICTED.\n\n {¶4} Appellant argues that the trial court could not order restitution in an\n\namount that exceeded the amount designated as an element of the theft offense. In\n\nthis case, the offense at the time the crime was committed was a fifth degree felony\n\ntheft, which meant a theft in the amount of at least $500 but less than $5,000.\n\f -3-\n\nFormer R.C. 2913.02(B)(2). Appellant argues that restitution cannot exceed the\n\nmonetary limit of the degree of the theft offense as defined by statute.\n\n {¶5} A trial court's decision to impose financial sanctions as part of a\n\nsentence is reviewed for an abuse of discretion. State v. Downie, 7th Dist. No. 07\n\nMA 214, 2009-Ohio-4643, ¶30. An abuse of discretion is more than an error of\n\njudgment; “it implies that the court's attitude is unreasonable, arbitrary or\n\nunconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).\n\nIt is an abuse of discretion for a trial court to order restitution in an amount that does\n\nnot bear a reasonable relationship to the actual loss suffered. State v. Schandel, 7th\n\nDist. No. 07CA848, 2008-Ohio-6359, ¶154.\n\n {¶6} R.C. 2929.18(A)(1) requires the trial court to calculate the amount of\n\nrestitution based on the economic loss to the victim as a result of the crime.\n\nAppellant cites State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d\n\n425 (2d Dist.), for the proposition that, unless the plea agreement states otherwise,\n\nthe order of restitution for a theft offense cannot exceed the amount listed in the\n\nelement of the offense that establishes the degree of the theft. Since Appellant was\n\nalso convicted of possession of criminal tools, it is not clear that restitution is solely\n\nrelated to the theft offense and could have been ordered regardless of the degree of\n\nthe theft. Assuming arguendo that the restitution order was based solely on the theft\n\nconviction, Appellant's argument is still incorrect.\n\n {¶7} Ratliff was overturned on July 17, 2013, in State v. Lalain, supra, which\n\nheld that: “A trial court has discretion to order restitution in an appropriate case and\n\f -4-\n\nmay base the amount it orders on a recommendation of the victim, the offender, a\n\npresentence investigation report, estimates or receipts indicating the cost of repairing\n\nor replacing property, and other information, but the amount ordered cannot be\n\ngreater than the amount of economic loss suffered as a direct and proximate result of\n\nthe commission of the offense.” Id. at paragraph one of the syllabus. Lalain further\n\nheld that: “The statute contains no statement about incorporating restitution into plea\n\nagreements, so that is not a statutory mandate. Rather, the statute vests the trial\n\ncourt with discretion to impose restitution and to base it on listed statutory factors and\n\nother information[.] * * * In addition, we recognize that the amount of restitution is not\n\ncorrelated to the degree of the theft offense.” Id. at ¶23-24. Based on the holdings in\n\nLalain, Appellant's first assignment of error is without merit.\n\n ASSIGNMENT OF ERROR NO. 2\n\n THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING\n\n RESTITUTION WITHOUT HOLDING A HEARING.\n\n {¶8} Appellant argues that she was entitled to a separate hearing on\n\nrestitution because her attorney questioned the amount of restitution at sentencing.\n\nR.C. 2929.18(A)(1) states: “If the court decides to impose restitution, the court shall\n\nhold a hearing on restitution if the offender, victim, or survivor disputes the amount.”\n\nThe statutory requirement to hold a hearing, if there is an objection to the amount of\n\nrestitution, is mandatory. Lalain at ¶22; Downie at ¶30. At the sentencing hearing,\n\nAppellant's counsel disputed the amount of restitution, stating that she “thought that\n\nthe agreement that was brought to us * * * was between $1,500 and $1,700. * * *\n\f -5-\n\nAgain, we thought that the restitution was going to be a lot less.” (1/10/12 Tr., pp. 4-\n\n5.) This was a specific objection to the amount of restitution, and the court should\n\nhave ordered a hearing on this issue. Appellant's assignment of error has merit and\n\nthe case is remanded so that a restitution hearing can be ordered.\n\n ASSIGNMENT OF ERROR NO. 3\n\n THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED\n\n PLAIN ERROR BY ORDERING APPELLANT TO PAY RESTITUTION\n\n WITHOUT CONSIDERING HER PRESENT AND FUTURE ABILITY TO\n\n PAY, AS REQUIRED BY R.C. 2929.19(B)(6).\n\n {¶9} Appellant argues that the trial court failed to take into account her\n\nindigence and inability to pay when it ordered $53,000 in restitution as part of her\n\nsentence. R.C. 2929.19(B)(5) states: “Before imposing a financial sanction under\n\nsection 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised\n\nCode, the court shall consider the offender's present and future ability to pay the\n\namount of the sanction or fine.”\n\n {¶10} This assignment of error is moot because the matter is remanded for a\n\nrestitution hearing and Appellant can raise the argument at that time. We do note\n\nthat there is no indication from the record that the trial court ignored or was unaware\n\nof her indigency. In fact, the judge was obviously aware that she was indigent when\n\nhe appointed counsel for Appellant in the initial stages of the case. An initial\n\ndetermination of indigency does not prevent a trial judge from imposing restitution as\n\npart of the sentence. As we have stated a number of times: “[A] determination that a\n\f -6-\n\ncriminal defendant is indigent for purposes of receiving appointed counsel does not\n\nprohibit the trial court from imposing a financial sanction pursuant to R.C. 2929.18.\n\nThis is because the ability to pay a fine over a period of time is not equivalent to the\n\nability to pay legal counsel a retainer fee at the onset of criminal proceedings.” State\n\nv. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶16; accord, State v. Gabriel,\n\n7th Dist. No. 09 MA 108, 2010-Ohio-3151, ¶20.\n\n {¶11} “The test for imposing restitution is not indigency in general, but it is\n\nwhether the offender is able to pay the financial sanction or is likely to be able to pay\n\nit in the future. See R.C. 2929.18(E). Thus, before imposing a financial sanction\n\nsuch as restitution, the court shall consider the offender's present and future ability to\n\npay the amount of the sanction. R.C. 2929.19(B)(6), citing R.C. 2929.18.” Id. at ¶33.\n\n“[A]n offender who does not raise his ability to pay a financial sanction at the time the\n\nsanction is imposed waives any argument concerning his ability to pay on direct\n\nappeal.” State v. Potts, 7th Dist. No. 07 HA 4, 2008-Ohio-643, ¶7. Because the\n\nsanction of restitution will be revisited by the trial court on remand, Appellant will have\n\nthe opportunity to raise, or waive, any of these arguments at that time. Appellant's\n\nthird assignment of error is overruled.\n\n Conclusion\n\n {¶12} Appellant is challenging three aspects of the trial court's decision\n\nordering her to pay $53,000 in restitution as part of her sentence for felony theft and\n\npossession of criminal tools. She is incorrect that the maximum restitution order can\n\nonly be as high as the maximum amount of the element of the theft charge that\n\f -7-\n\ndetermines the degree of the crime. The Ohio Supreme Court overturned the case\n\nAppellant relies on for this argument. Appellant is correct, however, that she was\n\nentitled to a hearing on restitution because she objected to the amount. Her last\n\nargument regarding whether the trial court considered her ability to pay restitution is\n\nmoot because the case is remanded for a restitution hearing. Appellant's first and\n\nthird assignments of error are overruled, the second is sustained, and the portion of\n\nthe sentencing entry regarding restitution is vacated. The trial court must conduct a\n\nhearing to determine the amount of restitution. Judgment affirmed in part, vacated in\n\npart, and remanded for further proceedings.\n\n\nDonofrio, J., concurs.\n\nVukovich, J., concurs.\n\f", "ocr": false, "opinion_id": 2689537 } ]

[ "735 N.W.2d 234" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20070730_S133950_63_133950_2007-07-30_or.pdf", "author_id": null, "opinion_text": "\n735 N.W.2d 234 (2007)\nPEOPLE of the State of Michigan, Plaintiff-Appellee,\nv.\nRobert RAMSEY, Defendant-Appellant.\nDocket No. 133950. COA No. 266371.\nSupreme Court of Michigan.\nJuly 30, 2007.\nOn order of the Court, the application for leave to appeal the April 17, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.\n", "ocr": false, "opinion_id": 842297 } ]

[ "263 N.E.2d 49", "46 Ill. 2d 238" ]

[ { "author_str": "Underwood", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4262, "opinion_text": "\n46 Ill. 2d 238 (1970)\n263 N.E.2d 49\nINTERNATIONAL HARVESTER COMPANY, Appellant,\nv.\nTHE INDUSTRIAL COMMISSION et al. — (EDWARD H. HOEKENDORF, Appellee.)\nNo. 42642.\nSupreme Court of Illinois.\nOpinion filed September 29, 1970.\n*239 GIFFORD, RODDY, POWER & DETUNO, of Chicago, for appellant.\nFRANK S. KANELOS and JOHN SULLIVAN, both of Chicago, (CHARLES WOLFF, of counsel,) for appellee.\nJudgment affirmed as modified.\nMr. CHIEF JUSTICE UNDERWOOD delivered the opinion of the court:\nEdward Hoekendorf was awarded workmen's compensation benefits for permanent total disability, plus certain medical expenses, due to a condition of traumatic neurosis attributed to an accident occurring on March 1, 1961. The employer, International Harvester Company, appeals, following affirmance of the arbitrator's award by the Industrial Commission and the circuit court of Cook County. The company does not dispute that Hoekendorf sustained a compensable injury in the 1961 accident, nor is the fact of present disability challenged; the company's primary contention is that claimant's disability is due to an independent intervening cause. A subsidiary question relates to reimbursement for medical payments by claimant to his own physician.\n*240 In the accident, Hoekendorf was struck on the head by a heavy tractor part dropped by a fellow employee. He was attended by a company doctor, who applied ice packs to reduce the swelling. That evening, he suffered from dizziness, with sharp pains and a burning feeling on his head. He worked the next week-and-a-half, with the same symptoms, seeing the company doctors several times. On the 10th of March, he felt faint at work and was taken by ambulance to the dispensary, which was 1/2 mile away. He stayed home on Monday, the 13th, and saw Dr. Micaletti, his own doctor. He saw Dr. Slive, the company's chief physician, the next day, and was instructed to enter the hospital, which he did on March 15. He remained in the hospital until April 3; the hospital records included as the \"primary observation\" the notation, \"observation following minor head injury, obsessive compulsive behavior disorder.\" Dr. Mackay, who attended claimant, confirmed the diagnosis at the time of discharge from the hospital.\nHoekendorf remained at home until June 14, 1961, seeing the company doctors several times, and Dr. Micaletti twice. When he returned to work, he still suffered from a burning feeling, a feeling of numbness, headaches, dizziness, and the sensation of bugs crawling upon his head and face. The symptoms persisted over the next year, during which time he saw both Dr. Micaletti and Dr. Slive on several occasions. In February, of 1962, as Hoekendorf returned to work after being off about a week, Dr. Slive noted \"psychotic manifestations.\" Claimant was off work again in October of 1962, and Dr. Slive diagnosed \"psychotic disorder — paranoid reaction. Complains of weakness, dizziness, pain and headache, sensation of `bugs crawling' on the scalp and burning sensation of scalp. * * * No objective abnormalities.\" When he returned to work, he was disapproved by the medical department for a position as driver of a hoist truck, due to his \"history of cerebral contusion with occasional headaches.\" Over a period of the next 2 1/2 *241 years he reported to the dispensary only a few times with headaches or weakness and missed only a few days from work. However, he continued to see Dr. Micaletti on a monthly basis, and his symptoms persisted.\nIn March of 1965, Hoekendorf's wife suffered a breakdown which required medical care and subsequent commitment; she apparently flailed about, striking claimant around the eye. Severe swelling and pain developed, and Hoekendorf was off work for a month. When he returned, he was placed in a job which required climbing about on tractor frames and bending down. He told the foreman that he still had dizzy spells, and the foreman rejected him for the job, suggesting that Dr. Slive would have to see him and then perhaps the union could find something else for him to do. When Dr. Slive saw claimant a week later, he noted \"marked mental changes\", and decided there was no job suitable for him. It is agreed that he has been totally disabled since that time with a traumatic neurosis; the dispute centers on the cause of the neurosis. The claimant contends that the 1961 accident caused the symptoms which have persisted and have rendered him totally disabled since then, while the employer argues that he had recovered completely from the effects of that accident and now suffers from the effects of the 1965 incident.\nThe medical testimony conflicted as to Hoekendorf's condition prior to 1965, and as to the cause of present disability. Dr. Micaletti had treated claimant regularly since 1961, and testified that between 1961 and 1965, \"his complaints were causing disability, but in spite of that the patient was trying to work.\" Explaining the basis for his opinion that claimant was presently unable to work, Dr. Micaletti stated, \"The basis are on the findings, subjective findings and the composite picture of seeing Mr. Hoekendorf over a period of five years where he continues to complain of head pain and bug-crawling feeling in the head, pressure in the head, visual disturbances and complaints, symptoms *242 or complaints as mentioned before which — which are still present of course.\" Dr. Jackman, a specialist in neurology and psychiatry, had examined Hoekendorf three times in 1963, confirming the diagnosis of traumatic neurosis at that time. His analysis of claimant's condition as of 1963 was that \"He is extremely anxious and tense, and I feel that he has suffered quite a severe degree of emotional damage as a result of the accident. This is the result of threat to life that occurred at the time, which apparently caused tremendous impression on him. He has a great deal of conversion symptoms and should be treated for the neurosis aside from the organic features.\" He felt that Hoekendorf \"was really not employable\" in 1963. He agreed that the 1965 incident could aggravate a neurosis; but when asked to assume that the symptoms before and after the incident were essentially the same, he said that the incident would have no significance.\nDr. Slive felt that Hoekendorf was only disabled for a few months by the accident in 1961. \"The patient in my opinion was disabled from work between March the 1st and June the 12th, 1961, because of an emotional disorder, and was certainly able to return to work and did after June the 12th, 1961.\" He stated that a person might have a psychotic disorder which is not disabling until aggravated. Upon Hoekendorf's return to work following the 1965 incident, he noted \"marked mental changes\" and diagnosed \"psychotic disorder\" with \"nervous complaints, mind goes blank, dizziness, weakness of legs, burning and squeezing sensation in head. There is no job available at Tractor Works he can possibly perform.\" He explained the basis for his finding of marked mental changes. \"I meant in comparison with the previous examinations the patient appeared — the patient's mental condition appeared worse to me. He appeared more nervous, more tense, more emotionally disturbed, more bizarre complaints, dizziness on leaning over. This was a new sort of symptom. His whole emotional — *243 his whole emotional makeup seemed deteriorated.\" Dr. Schlan, a specialist in neuropsychiatry, examined claimant in March of 1966. He found that Hoekendorf \"has suffered from and continues to suffer from a personality pattern and disturbance which was intensified by his injury in 1961. However, emotional trauma in 1965 resulted in his present functional responses which disabled him.\" In answer to a hypothetical question incorporating inter alia claimant's work record and the findings of Doctors Micaletti and Jackman, Dr. Schlan answered \"There is no relationship between the alleged injury to the hypothetical man in '61 and the disability in '65.\" He explained that \"The condition here is one of an obsessive compulsive neurosis and personality disorder. In this hypothetical case the incident in 1961 set off a series of clinical incidents which in turn resolved. So that the individual then was functionally well in '63 and '64, losing only negligible numbers of days until '65, at which time a separate emotional trauma existed, social, that is, which then created the disability of 1965.\"\nThe employer contends that Hoekendorf's own complaints after 1965 reveal that his condition did change as a result of the incident at home, and that his incapacity for work is directly due to that change in his condition. In March of 1966, Hoekendorf told Dr. Schlan that \"I want to go back to work,. but I have to get a job where there is no bending, so I have to get a job sitting, but even sitting is no good; sitting, walking, standing, is all the same.\" He testified before the Commission in 1968 at the hearing on review, and stated, \"I get dizzy spells. I walk and topple over and I stand and topple over. * * * When I speak I have wrong words and my sentences and words skip when I speak. * * * My right jaw bone goes out of place at times when I chew or speak. * * * I get vision, my vision, I see reddish lines about 6 to 8 inches long. * * * My mind goes blank for awhile. I don't know how long, and whatever I do at a time when my mind goes blank, I don't *244 know. * * *. I get weak. I still get weak like I am going to faint at times no matter where I am at.\"\nThe conflict in the medical testimony is clear, and evaluation of the facts in such a case is peculiarly within the province of the Industrial Commission. As we have repeatedly said, the Commission's findings on the issue of medical causation will not be disturbed on review unless contrary to the manifest weight of the evidence. (Proctor Community Hospital v. Industrial Com., 41 Ill. 2d 537, 541.) While Hoekendorf did return to work for several years following the work-related injury, this fact alone does not establish that he had recovered from that accident. (Jewel Tea Co. v. Industrial Com., 39 Ill. 2d 180; City of Collinsville v. Industrial Com., 36 Ill. 2d 425; Grey v. Industrial Com., 35 Ill. 2d 462; cf. Bethlehem Steel Corp. v. Industrial Com., 41 Ill. 2d 40.) Claimant argues that there was sufficient medical testimony from which the Commission could find that Hoekendorf was totally disabled throughout the period between 1961 and 1965 due to a condition caused by the accident at work, and that he remained totally disabled as a consequence of that accident alone.\nThe employer urges that claimant had recovered from his 1961 disability and that recovery is manifested by the fact that claimant performed his work satisfactorily for at least two years preceding 1965. The case of Bunge Brothers Coal Co. v. Industrial Com., 306 Ill. 582, is cited as authority that an employee can recover only for a disability caused entirely by the accident occurring in his employment, and the employer is not responsible for any degree of disability attributable to an independent cause intervening after the original accident. In the Bunge Brothers case, the employee suffered from a venereal disease which flared up some months after his injury and aggravated his condition. This court remanded the case for determination of the portion of disability resulting solely from the accident. A subsequent decision cited the Bunge Brothers case, and reversed *245 an award where disability from pneumonia was not medically related to the employee's work injury, but rather stemmed from a cold bath taken over three weeks later. (Perry County Coal Corp. v. Industrial Com., 311 Ill. 266.) Notwithstanding the \"rule\" derived from the Bunge Brothers case, the Illinois law relating to medical causation and the \"independent intervening cause\" is unclear. Specifically, it appears unclear whether full compensation for a condition of disability may rest on a showing that the work-related accident was a contributing factor without which the disability would not have occurred, or only upon a showing that the accident was the sole cause of disability.\nAn \"independent intervening cause\" has been held to be one which breaks the chain of causation between a work-related injury and an ensuing disability or injury. (Shell Oil Co. v. Industrial Com., 2 Ill. 2d 590, 595.) Where the work injury itself causes a subsequent injury, however, the chain of causation is not broken. (Harper v. Industrial Com., 24 Ill. 2d 103, 108.) In this context, the cases have applied a \"but for\" test, basing compensability for an ultimate injury or disability upon a finding that it was caused by an event which would not have occurred had it not been for the original injury. (See Harper v. Industrial Com., 24 Ill. 2d 103, 108; Shell Oil Co. v. Industrial Com., 2 Ill. 2d 590, 595.) Clear illustrations of this chain of causation relationship are cases where a second injury occurs due to treatment for the first (Shell Oil Co. v. Industrial Com., 2 Ill. 2d 590; Lincoln Park Coal and Brick Co. v. Industrial Com., 317 Ill. 302,) or where a suicidal act is caused by the effects of an original injury. (Harper v. Industrial Com., 24 Ill. 2d 103.) The \"but for\" rationale has also been extended to cases where the event immediately causing the second injury was not itself caused by the first injury, yet but for the first injury, the second event would not have been injurious. Thus a broken leg may be a compensable injury where it breaks upon stepping out of bed or off a *246 curb, if the break is due to bone weakness caused by the original injury. (Hammond Co. v. Industrial Com., 288 Ill. 262; Bailey v. Industrial Com., 286 Ill. 623.) The injury, followed by infection and amputation of a finger, has been found to have lowered claimant's resistance to tubercle bacilli which caused death, and the causal connection sustained an award of death benefits. Chicago, Wilmington & Franklin Coal Co. v. Industrial Com., 400 Ill. 60.\nA somewhat similar application of the \"but for\" rationale is made in heart attack cases, where the causal connection between employment activity and an ensuing injury — the heart attack — is at issue. \"To come within the statute the employee must prove that some act or phase of the employment was a causative factor in the ensuing injury. He need not prove it was the sole causative factor nor even that it was the principal causative factor, but only that it was a causative factor in the resulting injury.\" (Republic Steel Corp. v. Industrial Com., 26 Ill. 2d 32, 45.) This \"a causative factor\" test has been applied as well to the causal connection between a compensable injury and a subsequent heart attack (Proctor Community Hosp. v. Industrial Com., 41 Ill. 2d 537; see also Gudeman Co. v. Industrial Com., 399 Ill. 279), and has been alluded to as the proper test of causal connection between a compensable injury and ensuing disability in a nonheart case. A.O. Smith Corp. v. Industrial Com., 33 Ill. 2d 510, 513.\nThe \"but for\" or \"a causative factor\" test has thus been employed in a variety of instances as the measure of causal connection between compensable injuries and subsequent injuries and disabilities. While other language has been used in many cases (see, e.g., \"proximate cause\", Boland v. Industrial Com., 34 Ill. 2d 422, 423, American Smelting and Refining Co. v. Industrial Com., 353 Ill. 324, 328, Harrisburg Coal Mining Co. v. Industrial Com., 315 Ill. 377, 378; \"causal connection\", Livingston Service Co. v. Industrial Com., 42 Ill. 2d 313, 317-18, Gudeman Co. v. *247 Industrial Com., 399 Ill. 279, 280; \"directly traceable\", Shell Oil Co. v. Industrial Com., 2 Ill. 2d 590, 595; \"results from\", Douglass and Co. v. Industrial Com., 35 Ill. 2d 100, 104; \"arising out of\", Postal Telegraph Cable Co. v. Industrial Com., 345 Ill. 349, 352), and some cases do not articulate any standard, we believe that the rationale of the \"a causative factor\" test has been generally applied. Thus, if a nonemployment-related factor is a contributing cause, with the compensable injury, in an ensuing injury or disability, it does not constitute an \"independent intervening cause\" breaking the causal connection where it is not brought about by claimant's intentional or negligent misconduct. (See 1 Larson, Workmen's Compensation Law (1968 ed.) § 13.00 et seq.) This proposition squares with a reasonable interpretation of the Bunge Brothers case, where the unrelated causative factor was apparently the sole cause of claimant's disability. To the extent the case suggests that compensation must be apportioned to cover only the proportion of a single disability deemed to be due solely to the work injury, where another factor has aggravated the condition without claimant's fault, we disapprove of the case.\nIn our judgment compensation for subsequent injury or disability is properly awardable whenever, but only whenever, the existing employment-connected condition is a causative factor in producing either the subsequent injury or the subsequent disability. In this case the Commission could reasonably infer from the testimony before it that claimant was suffering from a continuing condition of traumatic neurosis resulting from the 1961 accident, and that the existence of this condition was a causative factor in the total and permanent disability following the 1965 injury.\nAn additional point requires consideration: Hoekendorf was awarded $235 for medical expenses incurred in visits to his own physician, Dr. Micaletti, beginning March 13, 1961. The only evidence upon which it can be found that claimant *248 became entitled to procure treatment on his own at the employer's expense was a remark made to claimant by one of employer's physicians, on October 23, 1961, to the effect that he could do nothing more to help claimant. Hoekendorf's privately incurred medical expenses prior to that remark are thus improperly included in the award.\nThe judgment of the circuit court of Cook County affirming the award for total permanent disability is affirmed; the award of medical expenses is modified to exclude the $235 nonreimbursable medical expenses and, as so modified, the judgment is affirmed.\nJudgment affirmed as modified.\n", "ocr": false, "opinion_id": 2195784 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/973/mcadams.pdf", "author_id": null, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n\n AT NASHVILLE FILED\n JANUARY SESSION, 1997\n September 30, 1997\n\n Cecil W. Crowson\nSTATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00134\n Appellate Court Clerk\n )\n Appellee, )\n )\n ) RUTHERFORD COUNTY\nVS. )\n ) HON. JAMES K. CLAYTON, JR.\nRICHARD MCADAMS, ) JUDGE\n )\n Appellant. ) (Direct Appeal)\n\n\n\n\nFOR THE APPELLANT: FOR THE APPELLEE:\n\nGUY R. DOTSON, JR. JOHN KNOX WALKUP\n102 South Maple Street Attorney General and Reporter\nMurfreesboro, TN 37130\n LISA A. NAYLOR\n Assistant Attorney General\n 450 James Robertson Parkway\n Nashville, TN 37243-0493\n\n BILL WHITESELL\n District Attorney General\n\n JOHN W. PRICE, III\n Assistant District Attorney\n 303 Rutherford County Judicial Bldg.\n Murfreesboro, TN 37130\n\n\n\nOPINION FILED ________________________\n\nAFFIRMED\n\nJERRY L. SMITH, JUDGE\n\f OPINION\n\n Appellant Richard McAdams entered a plea of guilty in the Rutherford County\n\nCircuit Court to one count of possession of marijuana for resale. As a Range I standard\n\noffender, the Appellant received a sentence of one year and six months of incarceration\n\nwith the Tennessee Department of Correction, all of which was suspended with the\n\nexception of 35 days to be served in the Rutherford County Workhouse. Appellant also\n\nreceived a fine of $2,000. While in the workhouse Appellant was placed on work\n\nrelease status. On April 18, 1995, a probation revocation warrant issued for Appellant.\n\nAppellant allegedly violated workhouse rules in that he endeavored to bring contraband\n\ninto the workhouse upon returning to that facility from work. Following a probation\n\nrevocation hearing, Appellant was removed from work release and ordered to serve 45\n\ndays of straight incarceration at the Rutherford County Jail beginning January 8, 1996,\n\nand to serve the remainder of his sentence on supervised probation. In this direct\n\nappeal, Appellant contends that there was insufficient evidence to support the trial\n\ncourt's ruling revoking Appellant's probation.\n\n\n\n After a review of the record, we affirm the judgment of the trial court.\n\n\n\n I. FACTUAL BACKGROUND\n\n The proof shows that on March 4, 1994 officers of the LaVergne Police\n\nDepartment arrested Appellant for possession of marijuana for resale. During a search\n\nof Appellant's vehicle, the police recovered a plastic bottle containing Xanax and a set\n\nof triple beam scales.\n\n On September 6, 1994, a Rutherford County Grand Jury indicted Appellant for\n\npossession of a Schedule VI controlled substance (marijuana) with intent to sell or\n\ndeliver in violation of Tennessee Code Annotated Section 39-17-417. Appellant was\n\nalso indicted for possession of a Schedule IV controlled substance in violation of\n\n\n -2-\n\fTennessee Code Annotated Section 39-17-417. Finally, Appellant was indicted for\n\npossession of drug paraphernalia in violation of Tennessee Code Annotated 49-17-425.\n\nOn February 28, 1995, Appellant pleaded guilty to the reduced charge of possession\n\nof a Schedule VI controlled substance with intent to sell or deliver. The second and\n\nthird counts of the indictment were dismissed. As part of a plea agreement dated\n\nFebruary 28, 1995, Appellant received a sentence of 35 days in the Rutherford County\n\nWorkhouse and a suspended sentence of one year and six months. Appellant was\n\nfurther ordered to pay a fine of $2,000. Following a hearing on Appellant’s alleged\n\nviolation of workhouse rules, the Rutherford County Circuit Court revoked Appellant's\n\nsuspended sentence and ordered Appellant to serve 45 days in the county workhouse\n\nand to serve the remainder of the sentence on supervised probation.1\n\n\n\n II. REVOCATION OF PROBATION: SUFFICIENCY OF THE EVIDENCE\n\n\n\n Tennessee Code Annotated Section 40-35-310 authorizes the trial judge to\n\nrevoke a defendant's suspended sentence whenever that judge determines that the\n\ndefendant has violated the conditions of his probation. Evidence of a probation\n\nviolation need not be demonstrated beyond a reasonable doubt. Rather, it is sufficient\n\nto prove the existence of a violation by a preponderance of the evidence. Tenn. Code\n\nAnn. § 40-35-311(d) (1990); State v. Wall, 909 S.W.2d 8, 9 (Tenn. Crim. App. 1994).\n\nMoreover, all that the evidence need show is that the trial judge acted conscientiously,\n\nrather than arbitrarily, in determining whether or not to revoke the defendant's\n\nprobation. Wall, 909 S.W.2d at 10; Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim.\n\n\n\n 1\n The original order issued by the Rutherford County Circuit Court filed on February 28, 1995\nstates that App ellant is sente nce d to serve 35 days in the Ruthe rford County W ork hou se.\nHow ever, the court iss ued an am ended order dated March 31, 1995 which sta tes that Ap pellant is\nsen tenc ed to 40 days in the co unty work hou se. In the brief for the Sta te of T enn ess ee, the Sta te\nrefers to the March 31 order sentencing Appellant to 40 days but notes that Appellant utilizes the\nMarch 31 order sentencing Appellant to 45 days. Finally, following his probation revocation\nhearing, the order issued on November 20, 1995 sentenced Appellant to 45 days in the\nRu therford C oun ty W ork House .\n\n -3-\n\fApp. 1980). On review, the conclusions of the trial judge in a probation revocation\n\nproceeding are accorded the weight of a jury verdict. Wall, 909 S.W.2d at 10; Stamps,\n\n614 S.W.2d at 73 (citing Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)).\n\nThis Court employs an abuse of discretion standard when reviewing the decision of a\n\ntrial court revoking probation or a suspended sentence. State v. Harkins, 811 S.W.2d\n\n79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.\n\n1981)). \"For this Court to find an abuse of discretion by the trial court in a probation\n\nrevocation case, a defendant must demonstrate `that the record contains no substantial\n\nevidence to support the conclusion of the trial judge that a violation of the conditions\n\nof probation has occurred.'\" Wall, 909 S.W.2d at 10 (quoting State v. Delp, 614 S.W.2d\n\n395, 398 (Tenn. Crim. App. 1980)).\n\n\n\n The record is replete with testimony and discussion regarding several instances\n\nwhere Appellant allegedly returned to the Rutherford County Workhouse in an\n\nintoxicated condition. However, because the probation violation warrant does not\n\nallege a violation of probation based on alleged intoxication, this Court cannot condone\n\nthe trial court's decision to revoke Appellant's probation insofar as that decision is\n\npremised on evidence of Appellant's alleged intoxication. See Practy v. State, 525\n\nS.W.2d 677, 680, 682 (Tenn. Crim. App. 1974).\n\n In Practy, this Court enunciated the constitutionally-mandated procedural due\n\nprocess standards as applied to a probation revocation proceeding. Id. at 679-80\n\n(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) and\n\nMorrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). The Practy\n\n\n\n\n -4-\n\fCourt then enumerated the \"`minimum requirements of due process'\" as first set forth\n\nby the United States Supreme Court in Morrissey:\n\n `(a) written notice of the claimed violations of [probation or] parole;\n (b) disclosure to the [probationer or] parolee of evidence against\n him; (c) opportunity to be heard in person and to present\n witnesses and documentary evidence; (d) the right to confront and\n cross-examine adverse witnesses (unless the hearing officer\n specifically finds good cause for not allowing confrontation); (e) a\n \"neutral and detached\" hearing body such as a traditional parole\n board, members of which need not be judicial officers or lawyers;\n and (f) a written statement by the factfinders as to the evidence\n relied upon and reasons for revoking [probation or] parole.'\n\nId. at 680 (quoting Morrissey, 92 S. Ct. 2604)\n\n Since the probation violation warrant fails to give notice that alleged intoxication\n\nis a basis upon which probation revocation is sought, due process prohibits the use of\n\nevidence of intoxication as a basis for revocation.2\n\n In the probation revocation warrant, Appellant did receive adequate notice of his\n\nalleged violation of workhouse rules in the attempt to bring contraband into the facility.\n\nThe trial court found that on at least two occasions, Appellant endeavored to bring\n\ncontraband (cigarettes) into the Rutherford County Workhouse. The record amply\n\nbuttresses this conclusion. On March 22, 1995, Appellant entered the workhouse while\n\nsmoking a cigarette. Additionally, on that same date, Appellant surrendered a pack of\n\ncigarettes to the officers searching him upon his return to the workhouse. Id. On\n\nMarch 31, Appellant again attempted to bring three packs of cigarettes into the\n\nworkhouse by concealing them in his socks and shirt. We, therefore, affirm the\n\n\n\n\n 2\n This arrest warrant further avers that Appellant has violated the terms of his probation by\nfailing to p ay his fine on A pril 1, 1995. T his refers to a $2 ,000 fine which the trial co urt ord ered to\nbe paid by Appellant in two installments of $1,000 each and which were due on April 1 and May 1,\n199 5. Ultim ately, Appellant paid the $2 ,000 fine on M ay 26 o f that sam e year.\n\n -5-\n\fjudgment of the trial court revoking Appellant's suspended sentence with respect to\n\nAppellant's violation of the workhouse rules prohibiting the bringing of cigarettes into\n\nthe facility.\n\n\n\n ____________________________________\n JERRY L. SMITH, JUDGE\n\n\n\nCONCUR:\n\n\n\n___________________________________\nDAVID H. WELLES, JUDGE\n\n\n___________________________________\nJOE G. RILEY, JUDGE\n\n\n\n\n -6-\n\f", "ocr": false, "opinion_id": 1083330 } ]

[ "590 F. Supp. 731" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1933, "opinion_text": "\n590 F.Supp. 731 (1984)\nST. LOUIS COUNTY, MO., Gene McNary, Co. Executive, James Kuenzle, Sandra Rea, Ernestine Beckman, Jan Costello, Gladys Wade, Plaintiffs,\nv.\nThe CITY OF TOWN AND COUNTRY, The City of Eureka, The City of Creve Coeur, The City of St. Charles, The City of Overland, The City of Olivette, The Village of Twin Oaks, Richard King, Dir. of Revenue, State of Missouri, Defendants.\nNo. 83-2552C(5).\nUnited States District Court, E.D. Missouri, E.D.\nJune 29, 1984.\n*732 *733 Thomas W. Wehrle, Co. Counselor, Andrew J. Minardi, Assoc. Co. Counselor, Robert E. Britt, St. Louis, Mo., for plaintiffs.\nJ. Leonard Walther, Clayton, Mo., George A. Weible, City Atty., St. Charles, Mo., Robert L. Hartzog, Clayton, Mo., Gerard F. Hempstead, Jerome Wallach, St. Louis, Mo., Edward D. Robertson, Phillip K. Gebhardt, Jefferson City, Mo., Shulamith Simon, Robbye E. Hill, Thomas M. Utterback, St. Louis, Mo., for defendants.\n\nMEMORANDUM\nLIMBAUGH, District Judge.\nThe matters before the Court are the joint motion to dismiss of the defendant municipalities, the motion to dismiss of defendant Richard King and the State of Missouri, the motion to dismiss of defendant City of Town and Country, and the motion to dismiss of defendant City of Eureka. All of the parties have submitted memoranda in support of their positions. The American Planning Association was also given leave to file an amicus curiae brief on behalf of the plaintiffs. This action will be dismissed because the complaint fails to state a claim upon which relief may be granted.\nPlaintiff St. Louis County is a first-class county operating under a charter form of government pursuant to Article VI, Section 18 of the Missouri constitution. Within the County are ninety cities, towns and villages, which are referred to by the parties as the incorporated area. The remainder of the County is unincorporated. Because of its charter county status, the County government provides a number of municipal services within the unincorporated area. These services include police protection, health and community services, planning and zoning (including a comprehensive development plan), public works, parks and recreation, and road and highway planning, development and maintenance. The County is authorized to provide these services by its charter and by Article VI, Section 18(c) of the Missouri Constitution. Gene McNary, the County Executive, is also a plaintiff. The other five plaintiffs are registered voters who reside within the unincorporated area of the County. The plaintiffs are challenging the constitutionality of the election provisions in two Missouri annexation statutes, §§ 71.015 and 71.870, R.S.Mo.Cum.Supp.1983.\nAmong the defendants are seven municipalities, six of which are located within the County. These six include the City of Town and Country and the City of Eureka, the two defendant cities mentioned previously. The seventh municipality, St. Charles, is outside of and adjacent to the County. Each of these municipalities has annexed or is in the process of annexing unincorporated territory located within the County. Each of the six municipalities within the County has held or will hold an annexation election pursuant to § 71.870 (or a similar predecessor statute), which sets forth the procedure for annexation elections held by County municipalities. St. Charles also has held an annexation election, but did so pursuant to a different statute, § 71.015, as St. Charles is located outside the County. Section 71.870 applies only to elections held by municipalities within a first class charter county whose population exceeds 500,000; § 71.015 governs elections by municipalities in the rest of the state.\nAlthough §§ 71.870 and 71.015 are somewhat different, they may be treated as identical for the purpose of this lawsuit, as the relevant provisions establish similar methods of holding annexation elections. In an annexation election, the annexation must be approved by a majority of those voting who reside in the annexing municipality and by a separate majority of those *734 voting who reside in the unincorporated territory to be annexed. See §§ 71.015, .870. These two groups of residents are the only individuals allowed to vote in the annexation election. Significantly, residents of the unincorporated area of the County are not allowed to vote, unless they are among the few who reside in the unincorporated territory to be annexed. The five plaintiff registered voters reside in the unincorporated area of the County, do not reside in any of the territories to be annexed, and therefore are not able to vote in any of the annexation elections. The plaintiffs contend that this disenfranchisement of the residents of the unincorporated area of the County is a denial of the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment.\nBesides the municipalities, the State of Missouri and Richard King, Director of Revenue of the State of Missouri, are named as defendants. King is a defendant because he must distribute certain revenues pursuant to § 66.620, R.S.Mo.Cum. Supp.1983, and his distribution of those revenues is affected by the boundary changes resulting from the annexations.\nThis lawsuit follows the Missouri Supreme Court decision in City of Town and Country v. St. Louis County, 657 S.W.2d 598 (Mo. banc 1983). Missouri law provides for judicial review of municipal annexations. § 71.015, R.S.Mo.Cum.Supp.1983. City of Town and Country was such a judicial review proceeding. It concerned the same annexations by the City of Town and Country which are under attack in this lawsuit. Prior cases, such as City of Olivette v. Graeler, 369 S.W.2d 85 (Mo.1963), had held that the reviewing court must consider the interests of the County as a whole in determining the reasonableness of a proposed intra-County annexation. City of Town and Country significantly circumscribed this standard of review. In light of this, the plaintiffs believe that their interests are no longer adequately protected in state proceedings, so they seek enfranchisement of all residents of the unincorporated area in order to protect the interests of the County as a whole.\n\nI.\nBefore reaching the merits of the plaintiffs' claims, several preliminary matters need to be addressed. First, the defendants contend that the County and McNary lack standing to sue. The main standing issue is that both plaintiffs are raising the constitutional rights of third parties: the plaintiffs' case is based on voting rights, but neither the County nor McNary is asserting a personal right to vote. The standing of the other five plaintiffs is not challenged, however, and these five voters meet all of the jurisdictional and prudential requirements of standing set forth in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-75, 102 S.Ct. 752, 757-60, 70 L.Ed.2d 700 (1982). As some of the plaintiffs have standing and this action is being dismissed in its entirety, it is unnecessary to decide if the County and McNary also have standing. Cf. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977). If this action were not being dismissed, it would be necessary to decide if the County and McNary had standing in order to determine whether they could participate in further proceedings. See School District of Kansas City v. State of Missouri, 460 F.Supp. 421, 437 (W.D.Mo.1978), in which this was done.\nThe State of Missouri has also moved to dismiss on the separate ground that it is not a proper party defendant. The State will be dismissed because it is not subject to suit. The Eleventh Amendment bars suit directly against a state in federal court unless the state has consented to suit or Congress has abrogated state immunity by a statute enacted to enforce the Fourteenth Amendment. Pennhurst State School and Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 906-908, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). No consent has been shown. The *735 plaintiffs seem to argue that the State may be sued under 28 U.S.C. § 1331, but § 1331 does not override state immunity. Neither does 42 U.S.C. § 1983, another statute under which this suit is brought. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Only \"person[s]\" may be sued under § 1983 and a state is not a \"person\". Id. (by implication); Seltzer v. Ashcroft, 675 F.2d 184, 185 (8th Cir.1982); Aubuchon v. State of Missouri, 631 F.2d 581 (8th Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1358, 67 L.Ed.2d 341 (1981).\nThe defendants also contend that the claims of the County and McNary are barred by res judicata. As stated earlier, Missouri law provides for judicial review of annexations. State court proceedings have been held regarding the annexations of defendants City of Town and Country and City of Eureka. In those proceedings, the County unsuccessfully challenged these two cities' annexations on state law grounds, but did not raise the constitutional issues now litigated. The defendants argue that the failure to raise the constitutional questions, at the first opportunity, bars the claims of the County (and therefore also its Executive, McNary). But it is unnecessary to decide this point because the defendants do not contend that the other five plaintiffs' claims are barred by res judicata and this action will be dismissed in its entirety on other grounds.\nBy a separate motion to dismiss, the City of Town and Country argues that all of the plaintiffs' claims are barred by the applicable statute of limitations. There being no relevant federal statute of limitations, the applicable statute is the most appropriate one under Missouri law, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), which in turn is the statute governing actions most analogous to the plaintiffs' claim. See, e.g., Weston v. Bachman, 682 F.2d 202 (8th Cir.1982), cert. denied, ___ U.S. ___, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); Garmon v. Foust, 668 F.2d 400 (8th Cir.1982) (en banc), cert. denied, 456 U.S. 998, 102 S.Ct. 2283, 73 L.Ed.2d 1294 (1982). The parties agree that for a voting rights claim against a municipality under 42 U.S.C. § 1983, the applicable statute is § 516.120(4), R.S.Mo.1978, which establishes a five year limitations period for \"[a]n action for ... any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated.\"\nThe alleged constitutional violation here is a denial of the right to vote. Town and Country held its annexation election on April 5, 1977, at which time the plaintiffs' cause of action accrued. More than five years having passed since that date, the plaintiffs' claims against Town and Country are barred by the statute of limitations.\nThe defendant municipalities also argue that comity precludes this Court from hearing the plaintiffs' claims and that the plaintiffs should raise their claims in state court. Initially, the municipalities rely on Fair Assessment in Real Estate Association v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1982). McNary held that a § 1983 action may not be used to challenge the validity of a state tax system in federal district court, at least if state remedies are adequate. 454 U.S. at 116, 102 S.Ct. at 186. This holding was based on the need to avoid federal disruption of state tax systems, the administration of which is a matter of special concern to state and local governments. Citing Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), which established that states have considerable discretion in creating different political subdivisions, the defendant municipalities contend that annexations are also a matter of special concern to local governments, so McNary should be extended to preclude federal court suits challenging annexation voting laws.\nThe plaintiffs do not dispute that their constitutional claims could be raised in a Missouri court. Instead, they argue that McNary does not apply to their voting rights claim, and this contention is correct. McNary is based in part on longstanding restrictions on federal interference with state tax proceedings. In contrast, federal *736 courts have heard numerous voting rights claims. The plaintiffs are not attacking the validity of a tax, but are instead asserting a right to vote. Comity does not prevent them from bringing this suit. Cf. Town of Lockport v. Citizens for Community Action, 430 U.S. 259, 264 n. 8, 97 S.Ct. 1047, 1051 n. 8, 51 L.Ed.2d 313 (1977).\nWith respect to the case of Hunter v. Pittsburgh, several cases have considered it in connection with a different issue, justiciability. Because Hunter holds that states have broad discretion in establishing local boundary lines, some have argued that challenges to annexation voting laws present a non-justiciable political question. But it is now well established that voting rights claims are justiciable. See, e.g., Town of Lockport, supra, at 264, 97 S.Ct. at 1051. Accordingly, courts have held that annexation voting rights claims are justiciable as well. See, e.g., Adams v. City of Colorado Springs, 308 F.Supp. 1397, 1400-1401 (D.Colo.1970), aff'd, 399 U.S. 901, 90 S.Ct. 2197, 26 L.Ed.2d 555 (1970); Moorman v. Wood, 504 F.Supp. 467, 471-73 (E.D.Ky.1980). Cf. Baldwin v. City of Winston-Salem, 710 F.2d 132, 135 (4th Cir.1983). The plaintiffs' voting rights claims are justiciable.\n\nII.\n\nA.\nTurning to the merits of the plaintiffs' Equal Protection claims, the first step is to determine the applicable standard of review. At issue here is a geographic residence voting restriction. Such a restriction generally need not \"promote a compelling state interest in order to survive constitutional attack\". Hill v. Stone, 421 U.S. 289, 294, 295, 297, 95 S.Ct. 1637, 1641, 1642, 1643, 44 L.Ed.2d 172 (1975). Thus, the defendants argue that the challenged statutes need only have a rational basis. The plaintiffs, however, assert that a compelling state interest must be shown for not allowing the residents of the unincorporated area of the County to vote in the annexation elections.\nThe plaintiffs rely primarily on Little Thunder v. State of South Dakota, 518 F.2d 1253 (8th Cir.1975), which involved the following statutory scheme. South Dakota was divided into organized and unorganized counties. Residents of each organized county voted for various county officials. These officials then administered the affairs of their organized county and any adjacent unorganized county. The officials performed a number of important governmental functions. Residents of the unorganized counties were not allowed to vote in the elections for county officials. The Court of Appeals held that this disenfranchisement violated the Equal Protection Clause of the Fourteenth Amendment. The residents of the unorganized counties had a right to vote in the elections for county officials because they had a \"substantial interest\" in the outcome of those elections. A compelling state interest was therefore necessary to justify the disenfranchisement of the residents of the unorganized counties. The holding of Little Thunder was reaffirmed in United States v. State of South Dakota, 636 F.2d 241, 244-45 (8th Cir.1980), cert. denied, 452 U.S. 939, 101 S.Ct. 3082, 69 L.Ed.2d 953 (1981).\nThe plaintiffs argue that all the residents of the unincorporated area of the County have substantial interests at stake in the annexation elections and therefore have a right to vote in those elections unless a compelling state interest is shown. The argument runs as follows. The defendant municipalities are annexing important areas of land within the County. These areas of land contain significant commercial, industrial and residential development. The areas are a major source of County government revenue. As each area is annexed, the County government loses the area's tax revenues, which instead are paid to the annexing municipality. Because of the cumulative effect of the annexations, the revenue loss will cause the County to curtail the municipal services it now provides to residents of the unincorporated area and will hinder the County's ability to function as a first-class charter county. Furthermore, *737 the annexations are haphazard and disrupt orderly planning and development in the County. For these reasons all residents of the unincorporated area of the County allegedly are substantially, directly and adversely affected by the defendant municipalities' annexations, thus entitling all to vote unless a compelling state interest to the contrary is shown.\nBut the circumstances here are quite different from those in Little Thunder. The disenfranchised County residents do not have \"substantial interests\" at stake, as that phrase was applied in Little Thunder. There, the disenfranchised residents of the unorganized counties possessed a substantial interest in county elections because the officials chosen in those elections governed their affairs. United States v. State of South Dakota, supra, 636 F.2d at 244-45, citing Little Thunder, supra, at 1256. Those officials \"exercise[d] general governmental functions\" over the disenfranchised individuals. 636 F.2d at 245.\nIn contrast, the annexation elections here have only a limited purpose: changing boundaries. The broad range of other governmental policy decisions will be made by officials chosen in other elections or will be determined by the results of other referenda — elections in which all County voters will participate on an equal basis. This is not a situation in which those who are allowed to vote are exercising general governmental powers over those who are disenfranchised. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70, 72 n. 8, 99 S.Ct. 383, 389, 390 n. 8, 58 L.Ed.2d 292 (1978). Holt Civic Club held that a municipality may exercise some direct extraterritorial control over the residents of a surrounding area, even though those living in the surrounding area are not allowed to vote in municipal elections. But here, we do not even have a direct exercise of governmental authority by the voters over the non-voters. Those who are allowed to vote in the annexation elections are not exercising the type of control over non-voting County residents such as to give the latter a constitutional right to vote.\nIt is true, as the plaintiffs contend, that those who can vote on the annexations are making decisions which will affect those who are not allowed to vote. But impact alone is not enough to give the latter a right to vote. Just as the residents of a municipality may take actions which affect those residing outside the municipality, even though the latter are not allowed to vote, id. at 69, 99 S.Ct. at 389, so may the residents of the geographic area allowed to vote here approve annexations which affect those who reside in surrounding areas of the County.\nThe plaintiffs' argument implicitly recognizes that impact alone is insufficient to require enfranchisement. Presumably, all County residents are affected in varying degrees by annexations which allegedly weaken the County government. Nonetheless, the plaintiffs have not argued that all County residents have a right to vote; rather, they merely wish to extend the franchise to residents of the unincorporated area of the County. The residents of the many incorporated municipalities still would not be allowed to vote on any of the annexations, unless they happened to reside in an annexing municipality.\nThe preceding discussion establishes that it is not necessary to show a compelling state interest for limiting the franchise to residents of the annexing municipality and the area to be annexed. A compelling state interest is necessary only to justify the infringement of a fundamental right or the creation of a suspect classification. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Here the alleged fundamental right is the right to vote guaranteed by the Equal Protection Clause of the Fourteenth Amendment. But this right to vote is only a \"right to participate in elections on an equal basis with other citizens in the jurisdiction.\" Id. at 34 n. 74, 93 S.Ct. at 1297 n. 74 (emphasis added). See also Holt Civic Club, supra, 439 U.S. at 66-70, 99 S.Ct. at 387-390. The jurisdiction chosen by the State of Missouri here consists of the annexing municipality and the *738 area to be annexed. That choice is valid under the principles set forth in Little Thunder and Holt Civic Club. Although the State could have chosen a more limited area for a jurisdiction, as suggested by the annexation cases discussed immediately below, or could have extended the franchise to a larger area, the fact remains that the State did not do so. Those who reside outside the jurisdiction here do not have constitutional right to vote, so a compelling state interest need not be shown for not allowing them to vote. Cf. Holt Civic Club, 439 U.S. at 66-70, 99 S.Ct. at 387-390 (rejecting the appellants' argument that a compelling state interest must be shown, because the appellants were non-residents and therefore did not have a right to vote.) No fundamental right being abridged, a compelling state interest need not be shown. The only remaining inquiry is whether or not the challenged statutes have a rational basis.\nThis conclusion is consistent with several federal court decisions that have dealt specifically with annexation elections. These decisions hold that a state may legitimately restrict voting in an annexation election to the residents of certain geographic areas. Such cases have exercised a low standard of review and have required no more than a rational basis for the state's choice of geographic areas allowed to vote. \"As applied to annexation elections, ... the franchise may even be granted to one area and denied to another if a rational basis exists for so providing.\" Moorman v. Wood, supra, at 473, 474 n. 29 (franchise may be limited to residents of area to be annexed). See also Adams v. City of Colorado Springs, supra, at 1402-1404, aff'd, 399 U.S. 901, 90 S.Ct. 2197, 26 L.Ed.2d 555 (franchise may be limited to some areas to be annexed); Thompson v. Whitley, 344 F.Supp. 480 (E.D.N.C.1972) (same); Murphy v. Kansas City, 347 F.Supp. 837 (W.D. Mo.1972) (franchise may be limited to residents of annexing municipality). In effect, these cases imply that in an annexation election, the relevant jurisdiction consists of the geographic areas to which the state has chosen to extend the franchise, as long as there is a rational basis for the state's choice. Those residing outside that jurisdiction do not have a constitutional right to vote.\nThese annexation election cases have required no more than a rational basis for one or more of several reasons. First, under Hunter v. Pittsburgh, supra, states have considerable discretion in structuring political subdivisions, and annexation elections are part of the process for determining boundaries. Second, annexation elections serve only a limited purpose, the alteration of boundaries, thus leaving other governmental decisions to be made at other times. Third, geographic residence restrictions in annexation elections are not invidious discrimination (at least if a rational basis exists), for such restrictions are not based on an extraneous condition such as race, wealth, tax status and the like. These reasons are equally applicable here. Only a rational basis need be shown for limiting the franchise as §§ 71.015 and 71.870 do.\n\nB.\nFor the challenged voting restrictions to have a rational basis, all that is required is that the restrictions \"bear some rational relationship to a legitimate state purpose.... [T]he Equal Protection Clause is offended only if the state's classification rests on grounds wholly irrelevant to the achievement of the State's objective.\" Holt Civic Club, supra, 439 U.S. at 70-71, 99 S.Ct. at 390-391. The question here is whether \"any state of facts reasonably may be conceived to justify\" the limitations on the franchise in §§ 71.015 and 71.870. Salyer Land Co. v. Tulare Water District, 410 U.S. 719, 732, 93 S.Ct. 1224, 1231, 35 L.Ed.2d 659 (1973).\nSuch a rational basis exists. The Missouri General Assembly limited the franchise to residents of the annexing municipality and the area to be annexed because the legislature believed that residents of those areas would be most directly affected by any proposed annexation. City *739 of Town and Country v. St. Louis County, supra, at 605. It is a legitimate purpose for Missouri to distinguish between the different interests of the geographic areas involved in annexations. Cf. Town of Lockport, supra, 430 U.S. at 271, 97 S.Ct. at 1055; Moorman, supra, at 473 (\"residence is a legitimate criterion\"). The legislature could have rationally determined that residents of the annexing municipality and the area to be annexed are most directly affected by an annexation. The former will have to absorb new territory and provide services for it. The latter will become part of the municipality. In brief, the General Assembly has limited the franchise to those who will reside within the proposed city limits, and that is a rational classification under the lenient standards set forth in Holt Civic Club and Salyer Land Co., supra.\nNotwithstanding this, the plaintiffs argue that §§ 71.015 and 71.870 are irrational for various reasons. The annexations are eroding the County tax base, thereby hindering the County's ability to provide services and threatening its future as a charter county. The annexations are destroying the existence of the unincorporated County area as a \"community\". The statutes encourage unplanned annexations which interfere with orderly development and planning and zoning. Essentially, the plaintiffs argue that the statutory voting scheme is irrational because it encourages irrational annexations.\nBut such arguments should be made to the General Assembly, not this Court. As the Supreme Court stated in Hunter v. Pittsburgh, supra,\n\"Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them.... The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state.... The state, therefore, at its pleasure, may modify or withdraw all such powers, ... expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all those respects the state is supreme, and its legislative body, conforming its action to the State Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from those injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it.\" 207 U.S. at 178-79, 28 S.Ct. at 46-47.\nAlthough the broad language of Hunter has been qualified by later Supreme Court cases, it \"continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that states have in creating various types of political subdivisions and conferring authority upon them.\" Holt Civic Club, supra, 439 U.S. at 71, 99 S.Ct. at 390.\nIn order to determine whether the statutes are irrational because they encourage irrational annexations, it would be necessary to examine the proposed annexations one by one to determine which, if any, are irrational and which are not. Such an analysis would be improper under Hunter. See Baldwin v. City of Winston-Salem, supra, at 135 n. 3.\nThis entire controversy is well suited for legislative resolution. There are a number of conflicting interests and difficult problems involved in annexations within the County. Just as local governments need *740 \"flexibility in municipal arrangements\", Sailors v. Board of Education, 387 U.S. 105, 110, 87 S.Ct. 1549, 1553, 18 L.Ed.2d 650 (1967), so too Missouri needs flexibility in devising mechanisms to accommodate these various interests and to resolve the different problems. The plaintiffs, however, are asking for this Court to impose a single, rigid solution, thus depriving the General Assembly of the flexibility it needs.\nAnd the Constitution does not require the solution urged by the plaintiffs. The residents of the unincorporated area of the County are not denied equal protection because they cannot vote in the annexation elections, for they do not have a right to vote and a rational basis exists for limiting the franchise as provided in §§ 71.015 and 71.870. This action will therefore be dismissed.\nThe defendant municipalities have also requested leave to file a motion for an award of attorneys' fees under 42 U.S.C. § 1988. Under that statute, an award of attorneys' fees to a prevailing defendant (as opposed to a prevailing plaintiff) is proper only if the \"`[plaintiffs'] action was frivolous, unreasonable, or without foundation.'\" R.W.T. v. Dalton, 712 F.2d 1225, 1235 (8th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). That is not the case here. Each party will bear its own attorneys' fees.\n\nORDER\nPursuant to the Memorandum filed herein today,\nIT IS HEREBY ORDERED that,\n1) the defendant municipalities' joint motion to dismiss be and is GRANTED;\n2) the separate motion to dismiss of defendant City of Town and Country be and is GRANTED;\n3) the supplemental motion to dismiss of defendant City of Eureka be and is MOOT, it not being necessary to consider the issues raised by the motion;\n4) the motion to dismiss of defendants Richard King and the State of Missouri be and is GRANTED;\n5) the plaintiffs' motion to stay and motion to strike be and are MOOT.\nIT IS FURTHER ORDERED that this action be and is dismissed with prejudice, each party to bear its own costs and attorneys' fees.\n", "ocr": false, "opinion_id": 2247584 } ]

[ "2013 Ohio 4659" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-4659.pdf", "author_id": 8076, "opinion_text": "[Cite as Wells Fargo Bank NA v. Arlington, 2013-Ohio-4659.]\n\n\n COURT OF APPEALS\n DELAWARE COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n\nWELLS FARGO BANK NA : JUDGES:\n :\n : Hon. William B. Hoffman, P.J.\n Plaintiff-Appellee : Hon. Sheila G. Farmer, J.\n : Hon. Patricia A. Delaney, J.\n-vs- :\n : Case No. 13CAE030016\n :\nDEAN ARLINGTON, ET AL. :\n :\n :\n Defendant-Appellant : OPINION\n\n\nCHARACTER OF PROCEEDING: Appeal from the Delaware County Court\n of Common Pleas, Case No. 2008 CVE\n 01 0048\n\n\n\nJUDGMENT: AFFIRMED\n\n\n\n\nDATE OF JUDGMENT ENTRY: October 16, 2013\n\n\n\n\nAPPEARANCES:\n\nFor Plaintiff-Appellee: For Defendant-Appellant:\n\nSCOTT A. KING BRUCE M. BROYLES\nJASON P. BICHSEL 5815 Market St., Suite 2\nAustin Landing I Boardman, OH 44512\n10050 Innovation Drive, Suite 400\nMiamisburg, OH 45342\n\fDelaware County, Case No. 13CAE030016 2\n\nDelaney, J.\n\n {¶1} Defendant-Appellant Dean Arlington appeals the March 7, 2013 judgment\n\nentry of the Delaware County Court of Common Pleas.\n\n FACTS AND PROCEDURAL HISTORY\n\n {¶2} On March 3, 2006, Defendant-Appellant Dean Arlington executed a Note\n\nin favor of Taylor, Bean & Whitaker Mortgage Corp (“TBW”). To secure repayment on\n\nthe Note, Arlington executed a Mortgage in favor of Mortgage Electronic Registration\n\nSystems, Inc. (“MERS”), as nominee for TBW and its successors and assigns. On\n\nMarch 20, 2007, MERS assigned the Mortgage to Plaintiff-Appellee Wells Fargo Bank,\n\nN.A. The Assignment of Mortgage stated, “Mortgage Electronic Registration Systems,\n\nInc. * * * does hereby sell, assign, transfer and set over unto Wells Fargo Bank, N.A. * *\n\n* a certain mortgage from Dean E. Arlington * * *.” The Assignment of Mortgage was\n\nrecorded on March 26, 2007.\n\n {¶3} On January 11, 2008, Plaintiff-Appellee Wells Fargo Bank, N.A. filed a\n\ncomplaint in foreclosure against Arlington seeking to recover the balance due on the\n\nNote and to foreclose on the Mortgage. The complaint alleged Wells Fargo was the\n\nholder of the Note. Attached to the complaint was a copy of the Note signed by\n\nArlington. The Note contained two indorsements: (1) a special indorsement from TBW\n\nto Wells Fargo and (2) a blank indorsement from Wells Fargo. Also attached to the\n\ncomplaint were copies of the original Mortgage and the Assignment of Mortgage.\n\n {¶4} Arlington filed an answer on August 29, 2008.\n\n {¶5} Wells Fargo filed a motion for summary judgment, which the trial court\n\ndenied on October 14, 2008. The trial court found there existed a genuine issue of\n\fDelaware County, Case No. 13CAE030016 3\n\n\nmaterial fact whether Arlington received notice from Wells Fargo of the default on the\n\nMortgage.\n\n {¶6} The case was stayed due to bankruptcy notice.\n\n {¶7} On July 20, 2010, Wells Fargo executed a corrective Assignment of\n\nMortgage, which was recorded on July 30, 2010. The correction changed the name of\n\nthe assignor: “Mortgage Electronic Registration Systems, Inc., as nominee for Taylor,\n\nBean & Whitaker Mortgage Corp., its successors and assigns.” Wells Fargo did not\n\nsupplement the trial court record with the corrective Assignment of Mortgage.\n\n {¶8} After the bankruptcy stay was lifted, Wells Fargo filed a second motion for\n\nsummary judgment on March 24, 2011. The supporting affidavit and exhibits referred to\n\nthe original Assignment of Mortgage. Arlington responded to the motion for summary\n\njudgment. In his response, Arlington did not raise the issue of Wells Fargo’s standing to\n\nbring the foreclosure action.\n\n {¶9} The trial court granted the motion for summary judgment on June 10,\n\n2011. The trial court entered the decree of foreclosure on June 21, 2011.\n\n {¶10} Arlington filed a notice of appeal of the June 21, 2011 judgment. Arlington\n\nvoluntarily dismissed his appeal on November 3, 2011.\n\n {¶11} On October 3, 2011, Arlington filed an Emergency Motion for Relief from\n\nJudgment pursuant to Civ.R. 60(B). In the motion, Arlington argued the trial court\n\nshould vacate the decree in foreclosure because Wells Fargo did not have standing to\n\nbring the foreclosure action. Arlington referenced the original Assignment of Mortgage\n\nand corrective Assignment of Mortgage in his motion.\n\fDelaware County, Case No. 13CAE030016 4\n\n\n {¶12} The trial court denied the motion on October 4, 2011. Arlington did not\n\nappeal the judgment.\n\n {¶13} The Ohio Supreme Court issued Fed. Home Loan Mortg. Corp. v.\n\nSchwartzwald, 134 Ohio St.3d 13, 2013-Ohio-5017, 979 N.E.2d 1214, on October 31,\n\n2012.\n\n {¶14} On January 29, 2013, Arlington filed a Motion to Vacate the June 10, 2011\n\nJudgment Entry. Arlington cited to Schwartzwald to argue Wells Fargo did not have\n\nstanding when it filed the complaint in foreclosure.\n\n {¶15} The trial court denied the motion to vacate on March 7, 2013. It is from\n\nthis judgment Arlington now appeals.\n\n ASSIGNMENTS OF ERROR\n\n {¶16} Arlington raises two Assignments of Error:\n\n {¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE\n\nMOTION TO VACATE.\n\n {¶18} “II. A MOTION TO VACATE A VOID JUDGMENT PRESENTS A\n\nQUESTION OF LAW WHICH SHOULD BE DETERMINED PURSUANT TO A DE\n\nNOVO REVIEW. IN THE ALTERNATIVE, WHILE THE TRIAL COURT MAY NOT\n\nHAVE “ABUSED ITS DISCRETION” IN DENYING THE MOTION TO VACATE, THE\n\nISSUE OF WHETHER A JUDGMENT IS VOID FOR LACK OF JURISDICTION CAN BE\n\nRAISED AT ANY TIME AND THIS COURT SHOULD DETERMINE WHETHER THE\n\nJUDGMENT IS VOID DE NOVO.”\n\fDelaware County, Case No. 13CAE030016 5\n\n\n ANALYSIS\n\n I. and II.\n\n {¶19} We consider the first and second Assignments of Error together to fully\n\nanalyze the issues presented. Arlington argues in his first Assignment of Error the trial\n\ncourt abused its discretion in denying his motion to vacate. He argues in his second\n\nAssignment of Error this court should use a de novo standard of review because issues\n\nof law are presented. Under either standard of review, we overrule Arlington’s\n\nAssignments of Error.\n\n {¶20} Arlington stylized his January 29, 2013 motion as a common law motion to\n\nvacate. In the motion, Arlington argued the trial court’s decree in foreclosure was a void\n\njudgment because Wells Fargo lacked standing at the time it filed the foreclosure\n\ncomplaint, as evidenced by the original Assignment of Mortgage and corrective\n\nAssignment of Mortgage. A common law motion to vacate, instead of Civ.R. 60(B), is\n\nutilized to vacate a void judgment. “A party should not file a Civ.R. 60(B) motion for\n\nrelief from judgment in order to have the void judgment vacated or set aside, since\n\nCiv.R. 60(B) motions apply only to judgments that are voidable rather than void.” State\n\nex rel. DeWine v. 9150 Group, L.P., 2012-Ohio-3339, 977 N.E.2d 112, ¶ 7 (9th Dist.)\n\nquoting Beachler v. Beachler, 10th Dist. Franklin No. CA2006–03–007, 2007-Ohio-\n\n1220, ¶ 18. This is because “[t]he power to vacate a void judgment does not arise from\n\nCiv.R. 60(B), but rather, from an inherent power possessed by the courts in this state.”\n\nThomas v. Fick, 9th Dist. Summit No. 19595, 2000 WL 727531, *2 (June 7, 2000),\n\nquoting Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of\n\nthe syllabus.\n\fDelaware County, Case No. 13CAE030016 6\n\n\n {¶21} A trial court's decision to deny a motion to vacate judgment is reviewed on\n\nappeal for an abuse of discretion whether that motion is made pursuant to Civ.R. 60(B)\n\nor to the court's inherent power at common law to vacate a void judgment. Spotsylvania\n\nMall Co. v. Nobahar, 7th Dist. Mahoning No. 11 MA 82, 2013-Ohio-1280, ¶ 14 citing\n\nGTE Automatic Elec., Inc., v. ARC Industries, Inc., 47 Ohio St.2d 146, 150, 351 N.E.2d\n\n113 (1976). Determining whether a trial court has subject matter jurisdiction is reviewed\n\nde novo. Wells Fargo Bank, National Assoc. v. Elliot, 5th Dist. No. 13 CAE 03 0012,\n\n2013-Ohio-3690\n\n Standing and Subject Matter Jurisdiction\n\n {¶22} Arlington states that because Wells Fargo lacked standing to bring the\n\ncomplaint, the lack of standing rendered the trial court without subject matter jurisdiction\n\nto hear the complaint. His motion to vacate is based on the trial court’s allegedly void\n\njudgment granting foreclosure. Because his argument is jurisdictional, Arlington argues\n\nhe may raise it at any time. This court recently addressed the issue of standing and\n\nsubject matter jurisdiction in Wells Fargo Bank, National Assoc. v. Elliot, 5th Dist. No. 13\n\nCAE 03 0012, 2013-Ohio-3690.\n\n {¶23} In Elliot, the defendant filed a motion to dismiss a complaint in foreclosure\n\npursuant to Civ.R. 12(B)(1). The defendant argued in the motion to dismiss the trial\n\ncourt lacked subject matter jurisdiction to hear the complaint in foreclosure because the\n\nplaintiff bank did not have standing at the time it filed the complaint. We explained the\n\nnuances of standing and subject matter jurisdiction:\n\n Jurisdiction is the trial court's “statutory or constitutional power to\n\n adjudicate the case.” Steel Co. v. Citizens for a Better Environment, 523\n\fDelaware County, Case No. 13CAE030016 7\n\n U.S. 83, 89, 118 S.Ct. 1003 (1998); Morrison v. Steiner, 32 Ohio St.2d 86,\n\n 87, 290 N.E.2d 841 (1972). The term jurisdiction “encompasses\n\n jurisdiction over the subject matter and over the person.” State v. Parker,\n\n 95 Ohio St.3d 524, 769 N.E.2d 846 (2002). Subject matter jurisdiction is\n\n defined as a court's power to hear and decide cases. Pratts v. Hurley,\n\n 102 Ohio St.3d 81, 806 N.E.2d 992 (2004). Because subject matter\n\n jurisdiction goes to the power of the court to adjudicate the merits of a\n\n case, it can never be waived and may be challenged at any time. U.S. v.\n\n Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781 (2002); State ex rel. Tubbs\n\n Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998).\n\n Separate from the requirement of subject matter jurisdiction in a\n\n case is the requirement of standing. Standing is defined as “[a] party's\n\n right to make a legal claim or seek judicial enforcement of a duty or right.”\n\n Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 875\n\n N.E.2d 550 (2007), quoting Black's Law Dictionary (8th Ed.2004).\n\n Standing depends on “whether the party has alleged such a personal\n\n stake in the outcome of the controversy* * * as to ensure that the dispute\n\n sought to be adjudicated will be presented in an adversary context and in\n\n a form historically viewed as capable of judicial resolution.” Id., quoting\n\n State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio\n\n St.2d 176, 178–179, 298 N.E.2d 515 (1973). In order to establish\n\n standing, a plaintiff must show they suffered “(1) an injury that is (2) fairly\n\n traceable to the defendant's allegedly unlawful conduct, and (3) likely to\n\fDelaware County, Case No. 13CAE030016 8\n\n be redressed by the requested relief.” Lujan v. Defenders of Wildlife, 504\n\n U.S. 555, 560–561, 119 L.Ed.3d 351 (1992). “These three factors—injury,\n\n causation, and redressability—constitute the irreducible constitutional\n\n minimum of standing.” Id.\n\n There is a clear distinction between the requirements of subject\n\n matter jurisdiction and standing. Standing focuses on injury, causation,\n\n and redressability between a plaintiff and defendant in a case, while\n\n subject matter jurisdiction focuses on the court's power and ability to hear\n\n and decide a case. A lack of standing argument challenges the capacity\n\n of a party to bring an action, not the court's statutory or constitutional\n\n power to adjudicate the case and thus is distinguishable from a lack of\n\n subject matter jurisdiction argument. PNC Bank, N.A. v. Botts, 10th Dist.\n\n No. 12AP256, 2012–Ohio–5383 (stating standing and capacity to sue do\n\n not challenge the subject matter jurisdiction of a court); See also Country\n\n Club Townhouses–North Condominium Unit Assn v. Slates, 9th Dist. No.\n\n 17299, 1996 WL 28003 (stating lack of standing challenges the capacity\n\n of a party to bring an action, not the subject matter jurisdiction of the\n\n court); Wells Fargo Bank, N.A. v. Brandle, 2d Dist. No.2012–CA–0002,\n\n 2012–Ohio–3492 (finding lack of standing does not deprive a court of\n\n subject matter jurisdiction).\n\nId. at ¶ 9-11.\n\fDelaware County, Case No. 13CAE030016 9\n\n\n {¶24} We held Civ.R. 12(B)(1) permits the dismissal of a complaint for lack of\n\nsubject matter jurisdiction, but the rule of procedure did not provide for dismissal based\n\non lack of standing or capacity to sue. Elliot at ¶ 12.\n\n {¶25} In Fed. Home Loan Mort. Corp. v. Schwartzwald, 134 Ohio St.3d 13,\n\n2012-Ohio-5017, 979 N.E.2d 1214, the Ohio Supreme Court addressed the issue of\n\nstanding in a foreclosure action. The Supreme Court determined that a plaintiff in a\n\nforeclosure action must have standing at the time the complaint is filed in order to\n\ninvoke the jurisdiction of the common pleas court. Id. at ¶ 24–25. “It is an elementary\n\nconcept of law that a party lacks standing to invoke the jurisdiction of the court unless\n\nhe has, in an individual or representative capacity, some real interest in the subject\n\nmatter of the action.” (Emphasis sic.) Id. at ¶ 22. The Court in Schwartzwald also\n\nfound that a lack of standing cannot be cured by “post-filing events” that supply\n\nstanding. Id. at ¶ 26. Moreover, a lack of standing “cannot be cured by receipt of an\n\nassignment of the claim or by substitution of the real party in interest.” Id. at ¶ 41.\n\n Standing of Wells Fargo\n\n {¶26} Standing in a foreclosure case requires the lender to establish “an interest\n\nin the note or mortgage at the time it filed the suit.” Elliot at ¶ 18 quoting Schwartzwald,\n\n134 Ohio St.3d 13, ¶ 28. The current holder of the note and mortgage is the real party\n\nin interest in a foreclosure action. Elliot at ¶ 18 citing U.S. Bank Natl. Assoc. v. Marcino,\n\n181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (7th Dist.).\n\n {¶27} In the present case, Wells Fargo attached a copy of the Note signed by\n\nArlington to the complaint in foreclosure. The Note contained two indorsements: (1) a\n\nspecial indorsement from TBW to Wells Fargo and (2) a blank indorsement from Wells\n\fDelaware County, Case No. 13CAE030016 10\n\n\nFargo. R.C. 1303.25(B) reads, “‘Blank indorsement’ means an indorsement that is\n\nmade by the holder of the instrument and that is not a special indorsement. When an\n\ninstrument is indorsed in blank, the instrument becomes payable to bearer and may be\n\nnegotiated by transfer of possession alone until specially indorsed.” Because the note\n\nis payable to the bearer, negotiation of the note is accomplished by transfer of\n\npossession alone. R.C. 1303.21(B). Arlington does not dispute Wells Fargo was the\n\nholder of the Note when it filed the complaint in foreclosure.\n\n {¶28} Arlington argued in his motion to vacate Wells Fargo was not the holder of\n\nthe Mortgage at the time the complaint was filed due to the differences in the original\n\nAssignment of Mortgage filed with the complaint and the corrective Assignment of\n\nMortgage recorded on July 30, 2010, after the commencement of the suit.\n\n {¶29} This Court has previously addressed the matter of standing in a\n\nforeclosure action when the holder of the note is not the holder of the mortgage in Cent.\n\nMtge. Co. v. Webster, 2012-Ohio-4478, 978 N.E.2d 962 (5th Dist.). In Central\n\nMortgage, we reiterated the holding of Kuck v. Sommers, 59 Ohio Law Abs. 400, 100\n\nN.E.2d 68, 75 (3rd Dist.1950), that states:\n\n [w]here a note secured by a mortgage is transferred so as to vest the legal\n\n title to the note in the transferee, such transfer operates as an equitable\n\n assignment of the mortgage, even though the mortgage is not assigned or\n\n delivered.\n\n {¶30} This Court has consistently relied on Kuck v. Sommers to find the holder\n\nof the note is the real party in interest entitled to pursue its rights under the note and\n\nmortgage. See Bank of New York v. Dobbs, 5th Dist. No. 2009–CA–000002, 2009-\n\fDelaware County, Case No. 13CAE030016 11\n\nOhio-4742, 2009 WL 2894601; Duetsche Bank Natl. Trust Co. v. Hansen, 5th Dist. No.\n\n2010 CA 00001, 2011-Ohio-1223, 2011 WL 899625; 2010–1 CRE Venture, LLC v.\n\nCostanzo, 5th Dist. No. 11 CAE 01 003, 2011-Ohio-3530, 2011 WL 2767592.\n\n {¶31} The Lender in this case was Taylor, Bean & Whitaker Mortgage Corp.\n\nThe Mortgage states, “[t]his Security Instrument is given to Mortgage Electronic\n\nRegistration Systems, Inc. (‘MERS’) (solely as nominee for Lender, as hereinafter\n\ndefined, and Lender’s successors and assigns), as beneficiary.” The Mortgage further\n\nstates, “[t]his debt is evidenced by Borrower’s note dated the same date as this Security\n\nInstrument (‘Note’) * * *.” Both Note and Mortgage are dated March 3, 2006.\n\n {¶32} On March 20, 2007, MERS assigned the Mortgage to Wells Fargo. The\n\noriginal Assignment of Mortgage stated, “Mortgage Electronic Registration Systems,\n\nInc. * * * does hereby sell, assign, transfer and set over unto Wells Fargo Bank, N.A. * *\n\n* a certain mortgage from Dean E. Arlington * * *.” The Assignment of Mortgage was\n\nrecorded on March 26, 2007. On July 20, 2010, Wells Fargo executed a corrective\n\nAssignment of Mortgage, which was recorded on July 30, 2010. The correction\n\nchanged the name of the assignor to: “Mortgage Electronic Registration Systems, Inc.,\n\nas nominee for Taylor, Bean & Whitaker Mortgage Corp., its successors and assigns.”\n\n {¶33} Arlington argues Bank of New York Mellon v. Roarty, 7th Dist. Mahoning\n\nNo. 10-MA-42, 2012-Ohio-1471 abrogates our holding in Central Mortgage. In Roarty,\n\nthe appellee bank was the holder of the note indorsed in blank. At the time the appellee\n\nbank filed the complaint in foreclosure, the mortgage securing the note had not been\n\nassigned to appellee bank. The mortgage was assigned after the complaint in\n\nforeclosure was filed. The court of appeals found there was a genuine issue of material\n\fDelaware County, Case No. 13CAE030016 12\n\n\nfact whether the appellee bank was the real party in interest because there could be no\n\npresumption the mortgage followed the note.\n\n {¶34} We find the facts of the present case are inapposite to Roarty. A reading\n\nof the Mortgage and the Assignment of Mortgage shows that MERS, as nominee for\n\nTBW, assigned the Mortgage to Wells Fargo prior to the filing of the complaint in\n\nforeclosure.\n\n {¶35} Upon review of the motion to vacate, the trial court concluded\n\nSchwartzwald did not apply to the facts of the case. We agree. Wells Fargo, as holder\n\nof the Note and Mortgage, had standing to invoke the jurisdiction of the trial court when\n\nit filed the complaint in foreclosure.\n\n Res Judicata\n\n {¶36} The trial court concluded and Wells Fargo argues on appeal Arlington’s\n\nclaims as to standing are barred by res judicata. The trial court granted Wells Fargo’s\n\nmotion for summary judgment on June 10, 2011. The trial court entered the decree of\n\nforeclosure on June 21, 2011. Arlington appealed the final judgment, but voluntarily\n\ndismissed his appeal.\n\n {¶37} On October 3, 2011, Arlington filed an Emergency Motion for Relief from\n\nJudgment pursuant to Civ.R. 60(B). In the motion, Arlington argued the trial court\n\nshould vacate the decree in foreclosure because Wells Fargo did not have standing to\n\nbring the foreclosure action. Arlington referenced the original Assignment of Mortgage\n\nand corrective Assignment of Mortgage in his motion.\n\n {¶38} The trial court denied the motion on October 4, 2011. Arlington did not\n\nappeal the judgment.\n\fDelaware County, Case No. 13CAE030016 13\n\n\n {¶39} Arlington argues that, regardless of his failure to appeal, he may raise the\n\nissue at any time because the issue presented raises the question of the trial court’s\n\njurisdiction.\n\n {¶40} Schwartzwald referred to the timing of the question of standing. The Court\n\nstated: “the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at\n\nany time during the pendency of the proceedings.” 132 Ohio St.3d 13, 2012-Ohio-5017,\n\n979 N.E.2d 1214, at ¶ 22 (citation omitted). (Emphasis added.) In Elliot, we noted the\n\nOhio Supreme Court held subsequent to the issuance of Schwartzwald that, after a\n\njudgment entry grants a decree of foreclosure and order of sale, the matter is no longer\n\npending. Elliot at ¶ 14 citing Countrywide Home Loans Servicing v. Nichpor, 136 Ohio\n\nSt.3d 55, 2013-Ohio-2083 990 N.E.2d 565, at syllabus.\n\n {¶41} Pursuant to Elliot and this Court’s interpretation of Schwartzwald, we find\n\nArlington’s time to appeal the issue of standing was through direct appeal of the decree\n\nin foreclosure or an appeal of the denial of Arlington’s original Civ.R. 60(B) motion. As\n\nsuch, Arlington’s claims raised in the subsequent motion to vacate are barred by res\n\njudicata.1\n\n\n\n\n 1\n The Ohio Supreme Court has certified a conflict between the Ninth and Tenth Districts on the\nfollowing question: “When a defendant fails to appeal from a trial court's judgment in a foreclosure action,\ncan a lack of standing be raised as part of a motion for relief from judgment?” See Bank of Am. v.\nKuchta, 135 Ohio St.3d 1430, 986 N.E.2d 1020, 2013–Ohio–1857.\n\fDelaware County, Case No. 13CAE030016 14\n\n\n CONCLUSION\n\n {¶42} Pursuant to the above analysis, we overrule the two Assignments of Error\n\nof Defendant-Appellant Dean Arlington.\n\n {¶43} The judgment of the Delaware County Court of Common Pleas is affirmed.\n\nBy: Delaney, J.,\n\nHoffman, P.J. and\n\nFarmer, J., concur.\n\n\n\n HON. PATRICIA A. DELANEY\n\n\n\n\n HON. WILLIAM B. HOFFMAN\n\n\n\n HON. SHEILA G. FARMER\n\f", "ocr": false, "opinion_id": 2698543 } ]

[ "535 U.S. 1016" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/535/535.US.1016.01-9311.html", "author_id": null, "opinion_text": "535 U.S. 1016\n IN RE BEAUMONT.\n No. 01-9311.\n Supreme Court of the United States.\n April 22, 2002.\n \n 1\n Petitions for writs of habeas corpus denied.\n \n ", "ocr": false, "opinion_id": 119868 } ]

[ "948 F.2d 1282" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/948/948.F2d.1282.91-6133.html", "author_id": null, "opinion_text": "948 F.2d 1282\n NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Robert Wayne ROBINSON, Petitioner-Appellant,v.Larry W. HUFFMAN; Mary Sue Terry, Respondents-Appellees.\n No. 91-6133.\n United States Court of Appeals, Fourth Circuit.\n Submitted Oct. 28, 1991.Decided Nov. 13, 1991.\n \n Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-90-1175-AM)\n Robert Wayne Robinson, appellant pro se.\n E.D.Va.\n DISMISSED.\n Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and CHAPMAN, Senior Circuit Judge.\n OPINION\n PER CURIAM:\n \n \n 1\n Robert Wayne Robinson seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Robinson v. Huffman, No. CA-90-1175-AM (E.D.Va. Aug. 7, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.\n \n \n 2\n DISMISSED.\n \n ", "ocr": false, "opinion_id": 571734 } ]

[ "2013 Ohio 163" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2013/2013-ohio-163.pdf", "author_id": 8130, "opinion_text": "[Cite as State v. Banks, 2013-Ohio-163.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 97084\n\n\n STATE OF OHIO\n PLAINTIFF-APPELLEE\n\n vs.\n\n JUAN BANKS\n DEFENDANT-APPELLANT\n\n\n\n JUDGMENT:\n APPLICATION DENIED\n\n\n Cuyahoga County Common Pleas Court\n Case No. CR-546456\n Application for Reopening\n Motion No. 458344\n\n RELEASE DATE: January 23, 2013\n\n -i-\n\fFOR APPELLANT\n\nJuan Banks, pro se\nInmate No. 603-214\nSouthern Ohio Correctional Facility\nP.O. Box 45699\nLucasville, Ohio 45699\n\n\nATTORNEYS FOR APPELLEE\n\nTimothy J. McGinty\nCuyahoga County Prosecutor\nBy: Scott Zarzycki\n Mary H. McGrath\nAssistant County Prosecutors\n8th Floor Justice Center\n1200 Ontario Street\nCleveland, Ohio 44113\n\fKENNETH A. ROCCO, J.:\n\n {¶1} Juan Banks has filed an application for reopening pursuant to App.R. 26(B).\n\nBanks is attempting to reopen the appellate judgment, as rendered in State v. Banks, 8th\n\nDist. No. 97084, 2012-Ohio-2495, which affirmed his conviction for the offense of\n\nmurder with firearm specifications. We decline to reopen Banks’s appeal.\n\n {¶2} App.R. 26(B)(2)(b) requires that Banks establish “a showing of good cause\n\nfor untimely filing if the application is filed more than 90 days after journalization of the\n\nappellate judgment,” which is subject to reopening. The Supreme Court of Ohio, with\n\nregard to the 90-day deadline as provided by App.R. 26(B)(2)(b), has established that:\n\n * * * Consistent enforcement of the rule’s deadline by the appellate courts\n in Ohio protects on the one hand the state’s legitimate interest in the finality\n of its judgments and ensures on the other hand that any claims of ineffective\n assistance of appellate counsel are promptly examined and resolved.\n\n Ohio and other states “may erect reasonable procedural requirements for\n triggering the right to an adjudication,” Logan v. Zimmerman Brush Co.\n (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265, and that is what\n Ohio has done by creating a 90- day deadline for the filing of applications\n to reopen. * * *\n\n * * * The 90-day requirement in the rule is applicable to all appellants, State\n v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and [the\n applicant] offers no sound reason why he — unlike so many other Ohio\n criminal defendants — could not comply with that fundamental aspect of\n the rule. (Emphasis added.)\n\nState v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶ 7-8, 10. See\n\nalso State v. Lamar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v.\n\fCooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio\n\nSt.3d 88, 1995-Ohio-248, 647 N.E.2d 784.\n\n {¶3} Herein, Banks is attempting to reopen the appellate judgment that was\n\njournalized on June 7, 2012. The application for reopening was not filed until\n\nSeptember 6, 2012, more than 90 days after journalization of the appellate judgment in\n\nBanks. Banks has failed to establish “a showing of good cause” for the untimely filing\n\nof his application for reopening. In fact, Banks has not attempted to address the issue of\n\n“good cause” vis-a-vis the untimely filing of his application for reopening. Thus, the\n\napplication for reopening fails on its face. State v. Klein, 8th Dist. No. 58389, 1991\n\nOhio App. LEXIS 1346 (Mar. 28, 1991), reopening disallowed, Motion No. 49260 (Mar.\n\n15, 1994), aff’d, 69 Ohio St.3d 1481, 634 N.E.2d 1027 (1994); State v. Trammell, 8th\n\nDist. No. 67834, Ohio App. LEXIS (July 13, 1995), reopening disallowed, Motion No.\n\n70493 (Apr. 22, 1996); State v. Travis, 8th Dist. No. 56825, 1990 Ohio App. LEXIS (Apr.\n\n5, 1990), reopening disallowed, Motion No. 51073 (Nov. 2, 1994), aff’d, 72 Ohio St.3d\n\n317, 1995-Ohio-152, 649 N.E.2d 1226. See also State v. Gaston, 8th Dist. No. 79626,\n\n2007 Ohio App. LEXIS 147 (Jan. 17, 2007); State v. Torres, 8th Dist. No. 86530,\n\n2007-Ohio-9.\n\n\n\n\n {¶4} Accordingly, the application for reopening is denied.\n\f_____________________________________\nKENNETH A. ROCCO, JUDGE\n\nMELODY J. STEWART, A.J., and\nMARY J. BOYLE, J., CONCUR\n\f", "ocr": false, "opinion_id": 2702907 } ]

[ "669 P.2d 768" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n669 P.2d 768 (1983)\nMarvin D. MANN, Appellee,\nv.\nSTATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.\nSTATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner,\nv.\nHonorable Ronald N. RICKETTS, Judge of the District Court of Tulsa County, Fourteenth Judicial District, Oklahoma, and, Marvin D. Mann, Respondents.\nNos. 52672, 53770.\nSupreme Court of Oklahoma.\nSeptember 13, 1983.\nThomas L. Palmer, Tulsa, for appellant State Farm.\nJohn L. Osmond, Whitten, McDaniel, Osmond, Goree & Davies, Tulsa, for appellee.\nPatrick E. Carr, Carr & Carr, Tulsa, for respondents.\n*769 PER CURIAM:\nState Farm Mutual Insurance Company (hereafter defendant or insurer) appeals from a judgment entered for appellee Marvin Mann (the plaintiff below and hereafter designated as plaintiff) in the sum of *770 $8,822.00 for breach of an insurance contract. In a companion case defendant applies for a writ of prohibition to prevent the trial court from further proceedings on the issue of tortious breach until the appeal is decided. We consolidate these two actions for disposition of the original proceedings.\nBefore considering the question of our jurisdiction to hear the appeal, we review the pertinent facts. Plaintiff sued State Farm Mutual Insurance Company for recovery under an insurance policy because of the alleged theft of his vehicle. Defendant insurer admitted the existence of a contract of insurance but denied coverage, alleging plaintiff had sold the car, put the buyer in possession, and delivered the keys and bill of sale in return for a personal check (later returned because of insufficient funds). Defendant argued that such a transaction did not constitute a theft under the policy, and in fact, was specifically excluded as a conditional sale or sales agreement. Plaintiff later amended his petition, adding a second \"cause of action\" against defendant for bad faith refusal to pay.\nThe trial court granted plaintiff's motion for partial summary judgment as to liability, determining that the loss was a theft under the policy. On its own motion the court went on to try the issue of plaintiff's damages under the contract and entered judgment.\nIn presenting an appeal from a judgment which resolves fewer than all issues in the case below, defendant insurer requires us to consider whether this judgment is final and therefore ripe for appeal. Further, we must determine whether it is appropriate for our Court to prohibit the trial court from determining the issue of bad faith refusal to compensate its insured until the appeal has been decided on the merits. We stress at the outset that because this case arose before the new civil procedure rules were promulgated, effective January 1982, our decision rests on prior case law and the former Rule 13 of the Rules for the District Courts of Oklahoma, 12 Ohio St. 1971, Ch. 2, app.\nThe problem of what constitutes a final judgment or order has been a perplexing one both in federal and state courts. See, e.g., Kasishke v. Baker, 144 F.2d 384 (10th Cir.1944). Justice Black's complaint about the ambiguity in the federal rules is equally applicable to state rules of civil procedure: \"[whether a ruling is final] is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and ... it is impossible to devise a formula to resolve all marginal error coming within what might well be called the `twilight zone' of finality. Because of that difficulty this court has held that the requirement of finality is to be given a `practical rather than a technical construction.'\" Gillespie v. U.S. Steel Corp., 379 U.S. 148, 149, 85 S. Ct. 308, 309, 13 L. Ed. 2d 199 (1964).\nBecause of the judiciary's concern for practicality, many inroads have been made towards changing the rule at common law which allowed no appeal except from a final judgment. At common law a final judgment was defined as one disposing of all of the issues as to all of the parties. Green, Basic Civil Procedure; Collins v. Miller, 252 U.S. 364, 40 S. Ct. 347, 64 L. Ed. 616 (1920); Reams v. Tulsa Cable Television, Okl., 604 P.2d 373 (1979). The advantage of the common law rule was expressed by Justice Frankfurter in Cobbledick v. U.S., 309 U.S. 323, 325, 60 S. Ct. 540, 541, 84 L. Ed. 783 (1940): \"To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.\"\nYet while federal and state rules of civil procedure reflect an awareness of Justice Frankfurter's concern over piecemeal litigation, they also provide for practical exceptions to the harshness of the common law rule. The federal rules, for example, did not relax the final judgment rule but they did achieve a kind of compromise between the Black and Frankfurter views of establishing the individual claim as the unit of litigation for appellate purposes rather than the entire lawsuit. Fed.R.Civ.P. 54(b); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S. Ct. 895, 100 L. Ed. 1297 (1956).\n*771 In Reams v. Tulsa Cable Television, Inc., supra, we discussed the Oklahoma exceptions to the general rule that summary adjudication of less than all issues is beyond the reach of review: (1) interlocutory orders appealable by right [12 Ohio St. 1981, § 952(b), (a) and § 993; Part II(a) and II(c) Rules on Perfecting a Civil Appeal, 12 Ohio St. 1981, Ch. 15, App. 2]; (2) orders certified for appeal[1] by the trial court in advance of final judgment [12 Ohio St. 1981, § 952(b); Part II(b), Rules on Perfecting a Civil Appeal, 12 Ohio St. 1981, Ch. 15, App. 2].[2]Reams' primary concern was whether a partial summary judgment (in Reams a determination of the issue of agency in an action over an automobile collision) could be appealed. We determined that such a summary disposition of a portion of a cause of action could not properly be appealed.\nIt should be emphasized at this point that the disposition of but a portion of a single cause of action is not a judgment at all[3] but an interlocutory summary adjudication, a limitation on the issues to be tired.[4], subject to alteration or modification by the trial court before final judgment. In using the order the trial court retains full power to make one complete judgment as to all facets of the action. An interlocutory summary adjudication does not constitute an appealable order.[5] Thus, an order or \"judgment\" that disposes merely of a portion of a cause of action is not appealable unless it falls within one of the statutory exceptions discussed in Reams.\nThough the term is generally misused, the partial summary judgment does exist. A partial summary judgment is akin to a true judgment, i.e., it disposes of an entire cause of action and is therefore appealable.[6]\nIn deciding our jurisdiction, then, we must examine whether the judgment appealed from (denominated by the parties and the trial court as a partial summary judgment) is a final judgment as to an entire cause of action, and thus immediately appealable, or simply an order specifying that the issue of breach of the insurance contract was not in controversy, and thus an interlocutory, non-appealable order.\nIn order to resolve whether the trial court determined an entire cause of action[7] or simply a portion thereof, it is necessary to look to the case where our Court established the existence of an action in tort for breach of an insurance contract. Christian *772 v. American Home Assurance Co., Okl., 577 P.2d 899 (1977)[8]. Christian, in creating an action in tort for a bad faith refusal to compensate the insured, did not hold that simple breach of an insurance contract and bad faith breach are separate causes of action which may be brought separately. Rather, Christian held that under the unique circumstances of the case, i.e., the existence of fraudulent concealment, the defendant was estopped by his own conduct from relying upon a former judgment as a bar to an action for tortious breach. Christian, then, while adopting the tort in Oklahoma, also suggested that except in situations where fraud, deception, or wrongful concealment has occurred, the actions must be brought together.\n\"It is an elementary rule that a cause of action cannot be split or divided and made the subject of several suits, but that plaintiff must include in one action all the various items of damage he has suffered from defendant's wrong. [citations omitted]\n\"This rule exists primarily to protect defendant from vexatious litigation. As the rule is for the defendant's protection, he may waive its benefits, either expressly or impliedly. Empire Oil & Refining Co. v. Chapman, 182 Okl. 639, 79 P.2d 608 (1938). Aetna Cas. & Surety Co. v. Associates Transports, Inc., Okl., 512 P.2d 137 (1973).\" p. 905.\nChristian contemplated that as a general rule the action in tort and the actions in contract would be brought together, arising as they do from the same transaction. Oklahoma has adopted the general rule that a cause of action includes all theories of recovery or types of damages stemming from one occurrence or transaction (in the instant case the refusal of defendant insurer to pay plaintiff). Retherford v. Halliburton Company, Okl., 572 P.2d 966 (1977).\nWe subscribe to the general rule that an appeal will not lie from the trial court's determination of breach of an insurance contract when the rest of the cause of action has not yet been tried. Despite our belief that adherence to this rule will result in guarding against piecemeal litigation, under the circumstances of this case the general rule is not applicable. In the instant case, the trial court did not simply determine the issue of liability, it went on to determine damages (aspects of which were controverted) and to enter judgment:\n\"IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that plaintiff have judgment in his favor and against State Farm Automobile Insurance Company, in the sum of EIGHT THOUSAND EIGHT HUNDRED TWENTY-TWO DOLLARS ($8,822.00), together with interest and costs.\"\nWe believe our decision to allow this appeal is consistent with our holding in Reams, supra. In Reams we noted that \"An appeal may in some cases be from an interlocutory summary adjudication if it can be treated as final.\"[9] The exception Reams contemplated is before us here. The trial judge treated the \"partial summary judgment\" as final, even though in its motion plaintiff asked for decision only as to liability and asked for damages to be submitted to jury; execution could have been levied on the judgment. The trial court's action, then, must be distinguished from the situation where mere liability is determined[10] or where the trial court dismisses fewer than all causes of action.[11]\n*773 The crucial consideration in determining whether a technically interlocutory adjudication qualifies as an exception to the general rule is not its form or its name, but its effect. In Kasishke v. Baker, supra, the Tenth Circuit discussed this exception:\n\"It is certain that an order is final and appealable if it is of a character which settles substantial rights; which makes no reservation as to its effect; which is designed to be operative in a way affecting such rights at once and before or irrespective of the final decree in the main litigation.\"\nState courts have recognized this exception: Smith v. Hanover Ins. Co., La. App., 363 So. 2d 719 (1978); Jefferson v. Spenard Builder's Supply, Inc., Alaska, 366 P.2d 714 (1961).\nBecause the trial judge entered a final judgment as to liability and damages under the contract, we assume jurisdiction and Issue a writ of prohibition directing the trial court to refrain from further proceedings in Case No. 53,770 until this Court has determined the merits of the appeal. We direct the parties to brief the issues in the petition in error in Case No. 52,672.\nBARNES, C.J., SIMMS, V.C.J., and HODGES, LAVENDER, DOOLIN, and HARGRAVE, JJ., concur.\nIRWIN, OPALA and WILSON, JJ., dissent.\nOPALA, Justice, dissenting:\nThe court holds that: (1) in an action to recover for the insurer's bad faith refusal to pay a claim an appealable disposition is effected once the insurer's liability for the loss in suit has been decided and its amount ascertained by application of ex contractu standards, even though the wrongful character of the insurer's breach and damages from it, if any, were issues expressly left pending for determination at a later time; and (2) the trial court cannot try the remaining issues in the case until the insurer's appeal on the liability-for-loss question has been decided. Because I regard the court's holding as a substantial and unwise departure from precedent, I must recede from today's aberrational pronouncement.\nOne who brings an action to recover for an insured loss has but a single cause of action, if the loss, whatever its nature or extent, stems from one occurrence or episode. Although numerous items of damage may be claimed from one loss, a single fire, flood or theft will give rise to but one cause of action. This much is axiomatic in our law.[1] The principle, as I view it, remains unchanged by the introduction of a new theory which now allows recovery for the insurer's bad faith refusal to pay a claim.[2]\nOne who seeks to recover for a single insured loss may now allege his one cause of action under at least two alternative theories of liability[3] — one based on a breach of policy obligation and the other on a bad faith breach of duty to pay a claim. Each of these separate theories will, of course, support a different category of damages. But these separate theories cannot be treated as distinct causes of action.[4]\n*774 The plaintiff in this case sued for a single loss by theft. He had but one cause of action which should be treated as having been plead under two different theories of recovery. The trial court decided only the issues tendered by one of two alternative theories. The other theory remains unexplored and undetermined.\nWhen the court disposes of but a portion of the issues raised by a petition which declares one's claim upon a single cause of action, there can be no judgment in the case. A judgment must resolve all the issues in the action and leave nothing further to be done except to carry it into execution.[5] A decision made in advance of a judgment may not be appealed unless it falls within a class of interlocutory orders declared by the legislature to be appealable by right[6] or unless it is certified by the trial court for immediate review because it \"affects a substantial part of the merits of the controversy\".[7] A different rule applies when the trial court's action determines all of the parties' rights in one or more but not all of several causes of action separately stated. From that class of decisions an appeal may be brought at once and the aggrieved litigant need not wait until final disposition is effected of all the causes of action in litigation.[8]\nThe decision before us is neither a judgment nor a final order.[9] It does not fall within that class of interlocutory orders which are appealable by right. Nor has it been certified to us for an early review that would, in the opinion of the trial judge, \"advance the ultimate termination of the litigation\".\nThis appeal, brought here from a partial adjudication of the alternative theories tendered below, is premature.[10] I would dismiss it and deny the insurer's plea for a writ of prohibition. This would set the trial court free to terminate the litigation by deciding the unresolved issues under the alternative theory of a bad faith breach of insurer's duty to pay.\nI am authorized to state that IRWIN and WILSON, JJ., concur in these views.\nNOTES\n[1] Our Court has the discretionary power to refuse to hear the appeal.\n[2] For a discussion of further exceptions to the general rule as to the appealability of final orders and judgments see, Brief Observations on Appealable Orders, 53 OBJ 1015 (April 24, 1982).\n[3] See James and Hazard, Civil Procedure: \"It is more accurate to call it a summary determination rather than a summary judgment, because granting the motion does not terminate the action or result in an order that may be appealed.\" (p. 222, fn. 8)\n[4] The purpose of the summary adjudication was to speed up litigation by eliminating matters not in controversy and by confining trial to disputed issues. Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Daniels v. Beryllium Corp., 211 F. Supp. 452 (E.D.Pa. 1962).\n[5] The most recent version of Rule 13 of the Rules for District Courts of Oklahoma, 12 Ohio St. 1981, Ch. 2, App., clarifies that an adjudication of this type is interlocutory: \"If the court finds that there is no substantial controversy as to certain facts or issues it shall make an order specifying the lack of issues which are not in controversy and direct that the action proceed for a determination of the remaining facts or issues, and such order is interlocutory and is not reviewable on appeal prior to final judgment.\" [E.A.]\n[6] See Fraser, Judgment Where Facts Not Controverted, 36 OBJ 723, 727 (1965): \"Where there are several distinct causes of action and the court determines that one does not involve any substantial questions of fact but that the others must be tried, the time to appeal depends on the action taken by the court. If judgment is immediately rendered on the one cause of action, the unsuccessful party must immediately appeal.\" Note: This rule does not apply if separate theories are stated as causes of action, as is the situation at hand. LaVelle v. Fair, Okl., 388 P.2d 13 (1963).\n[7] For a discussion of the various theories used in determining what constitutes a cause of action, see, Fraser, One Form of Action: Pleading Alternate Facts, Theories and Remedies, 14 Okl.L.Rev. 125 (1961).\n[8] Also see Stone v. Beneficial Standard Life Ins. Co., 273 Or. 594, 542 P.2d 892 (1975).\n[9] 604 F.2d at 376, fn. 16. See Wynn v. Reconstruction Finance Corp., 212 F.2d 953, 956 (9th Cir.1954).\n[10] See Maybury v. City of Seattle, 53 Wash.2d 716, 336 P.2d 878 (1959); Tridyn Industries v. American Mut. Ins. Co., 296 N.C. 486, 251 S.E.2d 443 (1979).\n[11] See Frontier Autorama, Inc. v. Frontier City Amusements, Okl.App., 570 P.2d 634 (1977) where the order was not appealable because it neither granted relief nor determined the rights of the parties.\n[1] Retherford v. Halliburton Co., Okl., 572 P.2d 966, 969 [1978]; Aetna Casualty & S. Co. v. Associates Transports Inc., Okl., 512 P.2d 137, 142 [1973]; Stone v. Case, 34 Okl. 5, 124 P. 960 [1912].\n[2] Christian v. American Home Assurance Company, Okl., 577 P.2d 899, 905 [1978].\n[3] See Underside v. Lathrop, Okl., 645 P.2d 514 [1982].\n[4] The terms of 12 Ohio St. 1981 § 264.1 provide in pertinent part:\n\n\"A party may rely on two or more legal theories for relief ... in the alternative regardless of consistency ... and he shall not be required to elect the theory on which he will rely. Where a party relies on two or more theories ... he may state the facts which support his theories in one count ... or in separate counts ...\" [Emphasis added].\nFor an explanation of the distinction between pleading separate causes of action and stating alternative theories of recovery in support of a single claim having its foundation in one occurrence or transaction see Fraser, One Form of Action: Pleading Alternative Facts, Theories and Remedies, 14 Okla.L.Rev. 125 [1961].\n[5] 12 Ohio St. 1971 § 681; Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147 [1942]; Foreman v. Riley, 88 Okl. 75, 211 P. 495 [1923]; Loy v. McDowell, 85 Okl. 286, 205 P. 1089 [1922]; Wells v. Shriver, 81 Okl. 108, 197 P. 460 [1921].\n[6] 12 Ohio St. 1971 §§ 952(b)2 and 993; Part II(a) and Part II(c), Rules on Perfecting a Civil Appeal, 12 Ohio St. 1971 Ch. 15, App. 2.\n[7] 12 Ohio St. 1971 § 952(b); Part II(b), Rules on Perfecting a Civil Appeal, 12 Ohio St. 1971 Ch. 15, App. 2.\n[8] Oklahomans for Life, Inc. v. State Fair of Oklahoma, Okl., 634 P.2d 704, 706 [1981]; Cox v. Butts, 48 Okl. 147, 149 P. 1090 [1915]; but see cautionary note in Fraser, Judgment Where Facts Not Controverted, 36 OBJ 723, 730, footnote 67 [1965].\n[9] Final order is defined in 12 Ohio St. 1971 O.S. 1971 § 953.\n[10] A partial adjudication does not trigger an appealable event. Reams v. Tulsa Cable Tele., Inc., Okl., 604 P.2d 373 [1979].\n\n", "ocr": false, "opinion_id": 1177240 }, { "author_str": "Per Curiam", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM:\nState Farm Mutual Insurance Company (hereafter defendant or insurer) appeals from a judgment entered for appellee Marvin Mann (the plaintiff below and hereafter designated as plaintiff) in the sum of *770$8,822.00 for breach of an insurance contract. In a companion case defendant applies fot a writ of prohibition to prevent the trial court from further proceedings on the issue of tortious breach until the appeal is decided. We consolidate these two actions for disposition of the original proceedings.\nBefore considering the question of our jurisdiction to hear the appeal, we review the pertinent facts. Plaintiff sued State Farm Mutual Insurance Company for recovery under an insurance policy because of the alleged theft of his vehicle. Defendant insurer admitted the existence of a contract of insurance but denied coverage, alleging plaintiff had sold the car, put the buyer in possession, and delivered the keys and bill of sale in return for a personal check (later returned because of insufficient funds). Defendant argued that such a transaction did not constitute a theft under the policy, and in fact, was specifically excluded as a conditional sale or sales agreement. Plaintiff later amended his petition, adding a second “cause of action” against defendant for bad faith refusal to pay.\nThe trial court granted plaintiffs motion for partial summary judgment as to liability, determining that the loss was a theft under the policy. On its own motion the court went on to try the issue of plaintiff's damages under the contract and entered judgment.\nIn presenting an appeal from a judgment which resolves fewer than all issues in the case below, defendant insurer requires us to consider whether this judgment is final and therefore ripe for appeal. Further, we must determine whether it is appropriate for our Court to prohibit the trial court from determining the issue of bad faith refusal to compensate its insured until the appeal has been decided on the merits. We stress at the outset that because this case arose before the new civil procedure rules were promulgated, effective January 1982, our decision rests on prior case law and the former Rule 13 of the Rules for the District Courts of Oklahoma, 12 O.S.1971, Ch. 2, app.\nThe problem of what constitutes a final judgment or order has been a perplexing one both in federal and state courts. See, e.g., Kasishke v. Baker, 144 F.2d 384 (10th Cir.1944). Justice Black’s complaint about the ambiguity in the federal rules is equally applicable to state rules of civil procedure: “[whether a ruling is final] is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and ... it is impossible to devise a formula to resolve all marginal error coming within what might well be called the ‘twilight zone’ of finality. Because of that difficulty this court has held that the requirement of finality is to be given a ‘practical rather than a technical construction.’ ” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 149, 85 S.Ct. 308, 309,13 L.Ed.2d 199 (1964).\nBecause of the judiciary’s concern for practicality, many inroads have been made towards changing the rule at common law which allowed no appeal fexcept from a final judgment. At common law a final judgment was defined as one disposing of all of the issues as to all of the parties. Green, Basic Civil Procedure; Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616 (1920); Reams v. Tulsa Cable Television, Okl., 604 P.2d 373 (1979). The advantage of the common law rule was expressed by Justice Frankfurter in Cobbledick v. U.S., 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940): “To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.”\nYet while federal and state rules of civil procedure reflect an awareness of Justice Frankfurter’s concern over piecemeal litigation, they also provide for practical exceptions to the harshness of the common law rule. The federal rules, for example, did not relax the final judgment rule but they did achieve a kind of compromise between the Black and Frankfurter views of establishing the individual claim as the unit of litigation for appellate purposes rather than the entire lawsuit. Fed.R.Civ.P. 54(b); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).\n*771In Reams v. Tulsa Cable Television, Inc., supra, we discussed the Oklahoma exceptions to the general rule that summary adjudication of less than all issues is beyond the reach of review: (1) interlocutory orders appealable by right [12 O.S.1981, § 952(b), (a) and § 993; Part 11(a) and 11(c) Rules on Perfecting a Civil Appeal, 12 O.S. 1981, Ch. 15, App. 2]; (2) orders certified for appeal1 by the trial court in advance of final judgment [12 O.S.1981, § 952(b); Part 11(b), Rules on Perfecting a Civil Appeal, 12 O.S.1981, Ch. 15, App. 2].2 Reams’ primary concern was whether a partial summary judgment (in Reams a determination of the issue of agency in an action over an automobile collision) could be appealed. We determined that such a summary disposition of a portion of a cause of action could not properly be appealed.\nIt should be emphasized at this point that the disposition of but a portion of a single cause of action is not a judgment at all3 but an interlocutory summary adjudication, a limitation on the issues to be tried4, subject to alteration or modification by the trial court before final judgment. In using the order the trial court retains full power to make one complete judgment as to all facets of the action. An interlocutory summary adjudication does not constitute an appealable order.5 Thus, an order or “judgment” that disposes merely of a portion of a cause of action is not appeala-ble unless it falls within one of the statutory exceptions discussed in Reams.\nThough the term is generally misused, the partial summary judgment does exist. A partial summary judgment is akin to a true judgment, i.e., it disposes of an entire cause of action and is therefore appealable.6\nIn deciding our jurisdiction, then, we must examine whether the judgment appealed from (denominated by the parties and the trial court as a partial summary judgment) is a final judgment as to an entire cause of action, and thus immediately appealable, or simply an order specifying that the issue of breach of the insurance contract was not in controversy, and thus an interlocutory, non-appealable order.\nIn order to resolve whether the trial court determined an entire cause of action7 or simply a portion thereof, it is necessary to look to the case where our Court established the existence of an action in tort for breach of an insurance contract. Christian *772v. American Home Assurance Co., Okl., 577 P.2d 899 (1977)8. Christian, in creating an action in tort for a bad faith refusal to compensate the insured, did not hold that simple breach of an insurance contract and bad faith breach are separate causes of action which may be brought separately. Rather, Christian held that under the unique circumstances of the case, i.e., the existence of fraudulent concealment, the defendant was estopped by his own conduct from relying upon a former judgment as a bar to an action for tortious breach. Christian, then, while adopting the tort in Oklahoma, also suggested that except in situations where fraud, deception, or wrongful concealment has occurred, the actions must be brought together.\n“It is an elementary rule that a cause of action cannot be split or divided and made the subject of several suits, but that plaintiff must include in one action all the various items of damage he has suffered from defendant’s wrong, [citations omitted]\n“This rule exists primarily to protect defendant from vexatious litigation. As the rule is for the defendant’s protection, he may waive its benefits, either expressly or impliedly. Empire Oil & Refining Co. v. Chapman, 182 Okl. 639, 79 P.2d 608 (1938). Aetna Cas. & Surety Co. v. Associates Transports, Inc., Okl., 512 P.2d 137 (1973).” p. 905.\nChristian contemplated that as a general rule the action in tort and the actions in contract would be brought together, arising as they do from the same transaction. Oklahoma has adopted the general rule that a cause of action includes all theories of recovery or types of damages stemming from one occurrence or transaction (in the instant case the refusal of defendant insurer to pay plaintiff). Retherford v. Halliburton Company, Okl., 572 P.2d 966 (1977).\nWe subscribe to the general rule that an appeal will not lie from the trial court’s determination of breach of an insurance contract when the rest of the cause of action has not yet been tried. Despite our belief that adherence to this rule will result in guarding against piecemeal litigation, under the circumstances of this case the general rule is not applicable. In the instant case, the trial court did not simply determine the issue of liability, it went on to determine damages (aspects of which were controverted) and to enter judgment:\n“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that plaintiff have judgement in his favor and against State Farm Automobile Insurance Company, in the sum of EIGHT THOUSAND EIGHT HUNDRED TWENTY-TWO DOLLARS ($8,822.00), together with interest and costs.”\nWe believe our decision to allow this appeal is consistent with our holding in Reams, supra. In Reams we noted that “An appeal may in some cases be from an interlocutory summary adjudication if it can be treated as final.”9 The exception Reams contemplated is before us here. The trial judge treated the “partial summary judgment” as final, even though in its motion plaintiff asked for decision only as to liability and asked for damages to be submitted to jury; execution could have been levied on the judgment. The trial court’s action, then, must be distinguished from the situation where mere liability is determined 10 or where the trial court dismisses fewer than all causes of action.11\n*773The crucial consideration in determining whether a technically interlocutory adjudication qualifies as an exception to the general rule is not its form or its name, but its effect. In Kasishke v. Baker, supra, the Tenth Circuit discussed this exception:\n“It is certain that an order is final and appealable if it is of a character which settles substantial rights; which makes no reservation as to its effect; which is designed to be operative in a way affecting such rights at once and before or irrespective of the final decree in the main litigation.”\nState courts have recognized this exception: Smith v. Hanover Ins. Co., La.App., 363 So.2d 719 (1978); Jefferson v. Spenard Builder’s Supply, Inc., Alaska, 366 P.2d 714 (1961).\nBecause the trial judge entered a final judgment as to liability and damages under the contract, we assume jurisdiction and Issue a writ of prohibition directing the trial court to refrain from further proceedings in Case No. 53,770 until this Court has determined the merits of the appeal. We direct the parties to brief the issues in the petition in error in Case No. 52,672.\nBARNES, C.J., SIMMS, V.C.J., and HODGES, LAVENDER, DOOLIN, and HARGRAVE, JJ., concur.\nIRWIN, OPALA and WILSON, JJ., dissent.\n\n. Our Court has the discretionary power to refuse to hear the appeal.\n\n\n. For a discussion of further exceptions to the general rule as to the appealability of final orders and judgments see, Brief Observations on Appealable Orders, 53 OBJ 1015 (April 24, 1982).\n\n\n. See James and Hazard, Civil Procedure: “It is more accurate to call it a summary determination rather than a summary judgment, because granting the motion does not terminate the action or result in an order that may be appealed.” (p. 222, fn. 8)\n\n\n. The purpose of the summary adjudication was to speed up litigation by eliminating matters not in controversy and by confining trial to disputed issues. Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Daniels v. Beryllium Corp., 211 F.Supp. 452 (E.D.Pa.1962).\n\n\n. The most recent version of Rule 13 of the Rules for District Courts of Oklahoma, 12 O.S. 1981, Ch. 2, App., clarifies that an adjudication of this type is interlocutory: “If the court finds that there is no substantial controversy as to certain facts or issues it shall make an order specifying the lack of issues which are not in controversy and direct that the action proceed for a determination of the remaining facts or issues, and such order is interlocutory and is not reviewable on appeal prior to final judgment.” [E.A.]\n\n\n. See Fraser, Judgment Where Facts Not Controverted, 36 OBJ 723, 727 (1965): “Where there are several distinct causes of action and the court determines that one does not involve any substantial questions of fact but that the others must be tried, the time to appeal depends on the action taken by the court. If judgment is immediately rendered on the one cause of action, the unsuccessful party must immediately appeal.” Note: This rule does not apply if separate theories are stated as causes of action, as is the situation at hand. LaVelle v. Fair, Okl., 388 P.2d 13 (1963).\n\n\n. For a discussion of the various theories used in determining what constitutes a cause of action, see, Fraser, One Form of Action: Pleading Alternate Facts, Theories and Remedies, 14 Okl.L.Rev. 125 (1961).\n\n\n. Also see Stone v. Beneficial Standard Life Ins. Co., 273 Or. 594, 542 P.2d 892 (1975).\n\n\n. 604 F.2d at 376, fn. 16. See Wynn v. Reconstruction Finance Corp., 212 F.2d 953, 956 (9th Cir.1954).\n\n\n. See Maybury v. City of Seattle, 53 Wash.2d 716, 336 P.2d 878 (1959); Tridyn Industries v. American Mut. Ins. Co., 296 N.C. 486, 251 S.E.2d 443 (1979).\n\n\n. See Frontier Autorama, Inc. v. Frontier City Amusements, Okl.App., 570 P.2d 634 (1977) where the order was not appealable because it neither granted relief nor determined the rights of the parties.\n\n", "ocr": false, "opinion_id": 9549039 }, { "author_str": "Ala", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOP ALA, Justice,\ndissenting:\nThe court holds that: (1) in an action to recover for the insurer’s bad faith refusal to pay a claim an appealable disposition is effected once the insurer’s liability for the loss in suit has been decided and its amount ascertained by application of ex contractu standards, even though the wrongful character of the insurer’s breach and damages from it, if any, were issues expressly left pending for determination at a later time; and (2) the trial court cannot try the remaining issues in the case until the insurer’s appeal on the liability-for-loss question has been decided. Because I regard the court’s holding as a substantial and unwise departure from precedent, I must recede from today’s aberrational pronouncement.\nOne who brings an action to recover for an insured loss has but a single cause of action, if the loss, whatever its nature or extent, stems from one occurrence or episode. Although numerous items of damage may be claimed from one loss, a single fire, flood or theft will give rise to but one cause of action. This much is axiomatic in our law.1 The principle, as I view it, remains unchanged by the introduction of a new theory which now allows recovery for the insurer’s bad faith refusal to pay a claim.2\nOne who seeks to recover for a single insured loss may now allege his one cause of action under at least two alternative theories of liability3 — one based on a breach of policy obligation and the other on a bad faith breach of duty to pay a claim. Each of these separate theories will, of course, support a different category of damages. But these separate theories cannot be treated as distinct causes of action.4\n*774The plaintiff in this case sued for a single loss by theft. He had but one cause of action which should be treated as having been plead under two different theories of recovery. The trial court decided only the issues tendered by one of two alternative theories. The other theory remains unexplored and undetermined.\nWhen the court disposes of but a portion of the issues raised by a petition which declares one’s claim upon a single cause of action, there can be no judgment in the case. A judgment must resolve all the issues in the action and leave nothing further to be done except to carry it into execution.5 A decision made in advance of a judgment may not be appealed unless it falls within a class of interlocutory orders declared by the legislature to be appealable by right6 or unless it is certified by the trial court for immediate review because it “affects a substantial part of the merits of the controversy”.7 A different rule applies when the trial court’s action determines all of the parties’ rights in one or more but not all of several causes of action separately stated. From that class of decisions an appeal may be brought at once and the aggrieved litigant need not wait until final disposition is effected of all the causes of action in litigation.8\nThe decision before us is neither a judgment nor a final order.9 It does not fall within that class of interlocutory orders which are appealable by right. Nor has it been certified to us for an early review that would, in the opinion of the trial judge, “advance the ultimate termination of the litigation”.\nThis appeal, brought here from a partial adjudication of the alternative theories tendered below, is premature.10 I would dismiss it and deny the insurer’s plea for a writ of prohibition. This would set the trial court free to terminate the litigation by deciding the unresolved issues under the alternative theory of a bad faith breach of insurer’s, duty to pay.\nI am authorized to state that IRWIN and WILSON, JJ., concur in these views.\n\n. Retherford v. Halliburton Co., Okl., 572 P.2d 966, 969 [1978]; Aetna Casualty & S. Co. v. Associates Transports Inc., Okl., 512 P.2d 137, 142 [1973]; Stone v. Case, 34 Okl. 5, 124 P. 960 [1912].\n\n\n. Christian v. American Home Assurance Company, Okl., 577 P.2d 899, 905 [1978],\n\n\n. See Underside v. Lathrop, Okl., 645 P.2d 514 [1982].\n\n\n. The terms of 12 O.S.1981 § 264.1 provide in pertinent part:\n“A party may rely on two or more legal theories for relief ... in the alternative regardless of consistency ... and he shall not be required to elect the theory on which he will rely. Where a party relies on two or more theories ... he may state the facts which support his theories in one count ... or in separate counts ...” [Emphasis added].\nFor an explanation of the distinction between pleading separate causes of action and stating alternative theories of recovery in support of a single claim having its foundation in one occurrence or transaction see Fraser, One Form of Action: Pleading Alternative Facts, Theories and Remedies, 14 Okla.L.Rev. 125 [1961],\n\n\n. 12 O.S.1971 § 681; Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147 [1942]; Foreman v. Riley, 88 Okl. 75, 211 P. 495 [1923]; Loy v. McDowell, 85 Okl. 286, 205 P. 1089 [1922]; Wells v. Shriver, 81 Okl. 108, 197 P. 460 [1921].\n\n\n. 12 O.S.1971 §§ 952(b)2 and 993; Part 11(a) and Part 11(c), Rules on Perfecting a Civil Appeal, 12 O.S.1971 Ch. 15, App. 2.\n\n\n. 12- O.S.1971 § 952(b); Part 11(b), Rules on Perfecting a Civil Appeal, 12 O.S.1971 Ch. 15, App. 2.\n\n\n. Oklahomans for Life, Inc. v. State Fair of Oklahoma, Okl., 634 P.2d 704, 706 [1981]; Cox v. Butts, 48 Okl. 147, 149 P. 1090 [1915]; but see cautionary note in Fraser, Judgment Where Facts Not Controverted, 36 OBJ 723, 730, footnote 67 [1965],\n\n\n. Final order is defined in 12 O.S.1971 § 953.\n\n\n. A partial adjudication does not trigger an appealable event. Reams v. Tulsa Cable Tele., Inc., Okl., 604 P.2d 373 [1979].\n\n", "ocr": false, "opinion_id": 9549040 } ]

[ "2013 Ohio 3439" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-3439.pdf", "author_id": null, "opinion_text": "[Cite as State v. Carpenter, 2013-Ohio-3439.]\n\n\n COURT OF APPEALS\n DELAWARE COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n\nSTATE OF OHIO : JUDGES:\n :\n : Hon. W. Scott Gwin, P.J.\n Plaintiff - Appellee : Hon. Patricia A. Delaney, J.\n : Hon. Craig R. Baldwin, J.\n :\n-vs- :\n :\nSEAN CARPENTER : Case No. 12 CAC 12 0087\n :\n :\n Defendant - Appellant : OPINION\n\n\n\nCHARACTER OF PROCEEDING: Appeal from the Delaware Municpal\n Court, Case No. 12-CRB-01985 and\n 12-CRB-02229\n\n\n\nJUDGMENT: Vacated and Remanded\n\n\n\n\nDATE OF JUDGMENT: August 6, 2013\n\n\n\n\nAPPEARANCES:\n\nFor Plaintiff-Appellee For Defendant-Appellant\n\nDANIEL J. BREYER SAMUEL H. SHAMANSKY\nSenior Assistant Attorney General DONALD L. REGENSBURGER\n1600 Carew Tower COLIN E. PETERS\n441 Vine Street KRYSTIN N. MARTIN\nCincinnati, OH 45202 523 South Third Street\n Columbus, OH 43215\n\fDelaware County, Case No.12 CAC 12 0087 2\n\nBaldwin, J.\n\n {¶1} Appellant Sean Carpenter appeals a judgment of the Delaware Municipal\n\nCourt convicting him of two counts of dereliction of duty in violation of R.C.\n\n2921.44(A)(2) and fining him $500 on each count. Appellee is the State of Ohio.\n\n STATEMENT OF FACTS AND CASE\n\n {¶2} At approximately 9:00 p.m. on July 28, 2012, a number of travelers on\n\nInterstate 71 in Delaware County notified local law enforcement agencies of a reckless\n\ndriver they believed to be intoxicated. The vehicle was a gray Ford F150 pickup truck.\n\nThe truck was later determined to be driven by Uriel Juarez-Popoca, but it was not\n\nregistered to Popoca.\n\n {¶3} Derek Beggs, a deputy with the Delaware County Sherriff’s Department,\n\narrived on the scene with his coworker, Deputy Christopher Hughes. Appellant, a\n\ntrooper with the Ohio State Highway Patrol, later arrived on the scene, after Popoca\n\nwas out of the car. The truck was lodged between the guardrail and the guardwires in\n\nthe median strip, apparently after the driver attempted a U-turn. There were multiple\n\nlicense plates in the vehicle and beer cans in the passenger compartment. The keys\n\nwere in the ignition. Popoca was alone in the vehicle, and spoke little English. Beggs\n\ncommented to appellant that Popoca was so drunk that when he hit Popoca with the\n\nlight, Popoca looked at him “like, I’m so drunk, I don’t know who you are.”\n\n {¶4} The officers did not identify Popoca at the scene. The deputies\n\ntransmitted information to the dispatcher that the incident was a disabled vehicle, not a\n\nDUI case. A translator had been dispatched from the highway patrol, but appellant\n\ncalled off the translator, stating that the county deputies were handling the situation. A\n\fDelaware County, Case No.12 CAC 12 0087 3\n\n\ncorrections officer with the Sherriff’s Department who minored in Spanish in college\n\nspoke to Popoca by telephone. He communicated to Popoca that he needed to find a\n\nride because he was not allowed to drive. Popoca had a friend named Christy who he\n\ncould call for a ride. Deputy Hughes then transported Popoca to a nearby Taco Bell\n\nrestaurant to await his ride. Beggs radioed that Hughes would be transporting his “new\n\namigo” to Taco Bell. Shortly after Popoca was dropped off at Taco Bell, dispatch\n\nreceived a call from the manager that an intoxicated man was at the restaurant\n\nattempting to get someone to give him a ride to his truck on Interstate 71. The manager\n\ncould smell alcohol on Popoca. Because a teenager was working the front counter, the\n\nmanager left her position on the food line and attempted to get Popoca out of the\n\nrestaurant. Although he did not disturb people in the restaurant, the manager was\n\nconcerned about his presence and locked the lobby early to keep him outside so he\n\nwould not disrupt customers.\n\n {¶5} Popoca left the Taco Bell and walked across the street to a Wendy’s\n\nrestaurant. When Deputy Hughes arrived at Taco Bell, the manager told him that\n\nPopoca went to the Wendy’s across the street. She saw Hughes go to Wendy’s for\n\napproximately fifteen minutes, then he left and drove in the direction of the patrol\n\nstation.\n\n {¶6} Popoca was later struck and killed by a motorist on Route 36/37, after\n\nwalking a little over a mile from Wendy’s. His blood alcohol level after his death was\n\ndetermined to be .23. The next day, appellant told Sgt. Marcus Pirrone that he did not\n\nget close enough to Popoca to determine if he was drunk, and the deputies took him\n\nand dropped him off at Taco Bell.\n\fDelaware County, Case No.12 CAC 12 0087 4\n\n\n {¶7} Appellant was charged with two counts of dereliction of duty in violation of\n\nR.C. 2921.44(A)(2). Deputies Hughes and Beggs were also charged with dereliction of\n\nduty. Hughes pled guilty prior to trial. Appellant and Beggs were jointly tried before a\n\njury. Appellant was convicted of both counts and fined $500 on each count. He assigns\n\nthe following errors on appeal:\n\n {¶8} “I. APPELLANT WAS CONVICTED OF VIOLATING A STATUTE THAT\n\nIS VAGUE IN BOTH ITS TERMS AND MEANING IN VIOLATION OF HIS RIGHTS AS\n\nGUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED\n\nSTATES CONSTITUTION.\n\n {¶9} “II. THE TRIAL COURT ERRED BY JOINING APPELLANT’S CASES\n\nWITH THOSE OF HIS CO-DEFENDANT IN VIOLATION OF HIS RIGHTS AS\n\nGUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED\n\nSTATES CONSTITUTION.\n\n {¶10} “III. THE TRIAL COURT’S FAILURE TO COMPLY WITH THE OHIO\n\nRULES OF EVIDENCE VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS\n\nGUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED\n\nSTATES CONSTITUTION.\n\n {¶11} “IV. APPELLANT WAS CONVICTED IN THE ABSENCE OF EVIDENCE\n\nSUFFICIENT TO SUPPORT A FINDING OF GUILTY IN VIOLATION OF HIS RIGHTS\n\nAS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE\n\nUNITED STATES CONSTITUTION.\n\n {¶12} “V. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST\n\nWEIGHT OF THE EVIDENCE IN VIOLATION OF HIS RIGHT TO DUE PROCESS AS\n\fDelaware County, Case No.12 CAC 12 0087 5\n\n\nGUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED\n\nSTATES CONSTITUTION.\n\n {¶13} “VI. THE TRIAL COURT FAILED TO PROPERLY AND COMPLETELY\n\nINSTRUCT THE JURY AS TO THE APPLICABLE LAW IN APPELLANT’S CASE IN\n\nVIOLATION OF HIS RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEENTH\n\nAMENDMENTS TO THE UNITED STATES CONSTITUTION.\n\n {¶14} “VII. APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO\n\nPROSECUTORIAL MISCONDUCT IN VIOLATION OF HIS RIGHT TO DUE PROCESS\n\nAS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE\n\nUNITED STATES CONSTITUTION.\n\n {¶15} “VIII. APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE\n\nCUMULATIVE ERRORS MADE BY THE TRIAL COURT IN VIOLATION OF HIS RIGHT\n\nTO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH\n\nAMENDMENTS TO THE UNITED STATES CONSTITUTION.”\n\n I.\n\n {¶16} In his first assignment of error, appellant argues that R.C. 2921.44(A)(2) is\n\nvoid for vagueness. He argues that the words prevent, apprehend, offender and power\n\nare not defined in the Ohio Revised Code. He argues that these “nebulous” words form\n\na statute that is impossible for a reasonably intelligent person to understand.\n\n {¶17} R.C. 2921.44(A)(2) provides:\n\n {¶18} “(A) No law enforcement officer shall negligently do any of the following:\n\fDelaware County, Case No.12 CAC 12 0087 6\n\n\n {¶19} “(2) Fail to prevent or halt the commission of an offense or to apprehend\n\nan offender, when it is in the law enforcement officer's power to do so alone or with\n\navailable assistance.”\n\n {¶20} In State v. Phipp, 58 Ohio St.2d 271, 273, 389, 389 N.E.2d 1128, 1130\n\n(1979), and State v. Young, 62 Ohio St.2d, 370, 372, 406 N.E.2d 499, 501 (1980), the\n\nOhio Supreme Court recognized that the legal test for determining whether a statute is\n\nunconstitutionally vague was set forth by the United States Supreme Court in Connally\n\nv. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), and\n\nGrayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). It has\n\nlong been established that a statute, especially a criminal statute, is unconstitutional on\n\nits face if its provisions are so vague and imprecise that persons of ordinary intelligence\n\nmust guess at its meaning and differ as to its application. Connally, 269 U.S. at 391;\n\nGrayned, 408 U.S. at 108-09; Young, 62 Ohio St.2d at 372-73, 406 N.E.2d at 501. All\n\nstatutes designed to promote the public health, safety and welfare enjoy a strong\n\npresumption of constitutionality. State v. Anderson, 57 Ohio St. 3d 168, 171, 566\n\nN.E.2d 1224 (1991). The party alleging that a statute is unconstitutionally vague must\n\nprove that assertion beyond a reasonable doubt. Id.\n\n {¶21} Appellant has not demonstrated beyond a reasonable doubt that R.C.\n\n2921.44(A)(2) is unconstitutionally vague. We agree with the reasoning of the trial court\n\nin finding the statute is not unconstitutionally vague:\n\n {¶22} “In the statute in question, I do not find any of the terms to be\n\nunconstitutionally vague. The term ‘law enforcement officer’ is defined in R.C.\n\n2901.01(A)(11), and the concept of criminal negligence is likewise spelled out clearly in\n\fDelaware County, Case No.12 CAC 12 0087 7\n\n\nOhio’s standard jury instructions. And I do not find the terms ‘prevent,’ ‘halt,’\n\n‘apprehend,’ or ‘power’ to be so rare or confusing that a person of ordinary intelligence\n\nwould be baffled by their meaning. I think a reasonable reader of the statute would\n\nunderstand ‘prevent’ to mean avoid or stop; ‘halt’ to refer to causing an event in\n\nprogress to end; ‘apprehend’ to mean capture or seize; and ‘power’ to mean legal\n\nauthority and, depending on the circumstances, physical proximity. And of course the\n\nlegal authority of the highway-patrol officers is spelled out in R.C. 5503.02, while the\n\nauthority of law-enforcement officers in general is listed in R.C. 2935.03.\n\n {¶23} “In my view, the defendant has not met his heavy burden of showing that\n\nthe dereliction-of-duty statute is impermissibly vague. A person of ordinary intelligence\n\ncan understand what conduct is prohibited and what is not. The fact that some\n\nviolations of the statute may be difficult to prove does not compel a finding that the\n\nstatute itself is unconstitutionally vague.” Judgment Entry, December 7, 2012.\n\n {¶24} The first assignment of error is overruled.\n\n IV.\n\n {¶25} We address appellant’s fourth assignment of error next, as our resolution\n\nof this assignment renders the remaining issues before this Court moot.\n\n {¶26} Appellant argues that the evidence is insufficient to support a conviction of\n\ntwo counts R.C. 2921.44(A)(2), which provides:\n\n {¶27} “(A) No law enforcement officer shall negligently do any of the following:\n\n {¶28} “(2) Fail to prevent or halt the commission of an offense or to apprehend\n\nan offender, when it is in the law enforcement officer's power to do so alone or with\n\navailable assistance.”\n\fDelaware County, Case No.12 CAC 12 0087 8\n\n\n {¶29} Criminal negligence is defined by R.C. 2901.22(D):\n\n {¶30} “(D) A person acts negligently when, because of a substantial lapse from\n\ndue care, he fails to perceive or avoid a risk that his conduct may cause a certain result\n\nor may be of a certain nature. A person is negligent with respect to circumstances\n\nwhen, because of a substantial lapse from due care, he fails to perceive or avoid a risk\n\nthat such circumstances may exist.”\n\n {¶31} An appellate court's function when reviewing the sufficiency of the\n\nevidence is to determine whether, after viewing the evidence in a light most favorable to\n\nthe prosecution, any rational trier of fact could have found the essential elements of the\n\ncrime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574\n\nN.E.2d 492, paragraph two of the syllabus (1991). Where there is insufficient evidence\n\nto support a conviction, the remedy is reversal with instructions to discharge the\n\ndefendant; no retrial is available. State v. Freed, 10th Franklin No. 06AP-700, 2006-\n\nOhio-6746, ¶27.\n\n {¶32} In the instant case, viewing the evidence in a light most favorable to the\n\nprosecution, we find that no rational trier of fact could have found that appellant acted\n\nnegligently in failing to apprehend Popoca or in failing to halt the commission of\n\ndisorderly conduct by Popoca in Taco Bell. State’s Exhibit 41, the video recording from\n\nappellant’s cruiser, establishes that appellant had been given an incorrect mile marker\n\nby his dispatcher. By the time appellant arrived on the scene, Beggs and Hughes had\n\nPopoca out of the vehicle and in their custody. While the State characterizes the\n\ndecision to take Popoca to Taco Bell as a joint decision, the tape demonstrates that\n\nappellant did not contribute to the decision-making process. Beggs and Hughes made\n\fDelaware County, Case No.12 CAC 12 0087 9\n\n\nthe decision to not charge Popoca with driving while intoxicated, to let him call for a ride,\n\nand to take him to Taco Bell to await a ride before appellant arrived on the scene.\n\nBeggs merely informed appellant as to the decisions already made by the deputies; the\n\nscene was in the control of the deputies before appellant arrived. Appellant did not\n\ninteract with Popoca. Appellant did not act negligently in failing to investigate a scene\n\nand personally apprehend Popoca when he was already under the control of two\n\nsheriff’s deputies. Appellant had no reason to believe that Popoca did not actually have\n\na ride and did not understand the translator. He further had no reason to believe that\n\nPopoca was going to be left at Taco Bell by Hughes without supervision given his state\n\nof intoxication and difficulty with the English language. Appellant did not act negligently,\n\nbased on the information he received at the traffic stop, in allowing the deputies to\n\nmaintain control of the scene.\n\n {¶33} The fourth assignment of error is sustained.\n\n {¶34} Appellant’s second, third, fifth, sixth, seventh and eighth assignments of\n\nerror are rendered moot by our decision in the fourth assignment of error.\n\fDelaware County, Case No.12 CAC 12 0087 10\n\n\n {¶35} The judgment of conviction and sentence of the Delaware Municipal Court\n\nis vacated. This cause is remanded to that court with instructions to discharge\n\nappellant. Costs assessed to appellee.\n\n\n\nBy: Baldwin, J.\n\nGwin, P. J. and\n\nDelaney, J. concur.\n\n\n\n\n HON. CRAIG R. BALDWIN\n\n\n\n HON. W. SCOTT GWIN\n\n\n\n HON. PATRICIA A. DELANEY\n\n\n\n\nCRB/rad\n\f[Cite as State v. Carpenter, 2013-Ohio-3439.]\n\n\n IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO\n\n FIFTH APPELLATE DISTRICT\n\n\nSTATE OF OHIO :\n :\n Plaintiff - Appellee :\n :\n-vs- : JUDGMENT ENTRY\n :\nSEAN CARPENTER :\n :\n Defendant - Appellant : CASE NO. 12 CAC 12 0087\n\n\n For the reasons stated in our accompanying Memorandum-Opinion, the\n\njudgment of the Delaware Municipal Court is vacated and remanded. Costs assessed to\n\nappellee.\n\n\n\n\n HON. CRAIG R. BALDWIN\n\n\n\n HON. W. SCOTT GWIN\n\n\n\n HON. PATRICIA A. DELANEY\n\f", "ocr": false, "opinion_id": 2698654 } ]

[ "2012 Ohio 2212" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2012/2012-ohio-2212.pdf", "author_id": 8055, "opinion_text": "[Cite as Brownlee v. Cleveland Clinic Found. , 2012-Ohio-2212.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 97707\n\n\n JOHN D. BROWNLEE, M.D.\n PLAINTIFF-APPELLANT\n\n vs.\n\n\n CLEVELAND CLINIC FOUNDATION, ET AL.\n\n DEFENDANTS-APPELLEES\n\n\n\n JUDGMENT:\n AFFIRMED\n\n\n Civil Appeal from the\n Cuyahoga County Common Pleas Court\n Case No. CV-753739\n\n BEFORE: Boyle, J., Stewart, P.J., and Rocco, J.\n\n RELEASED AND JOURNALIZED: May 17, 2012\n\fATTORNEYS FOR APPELLANT\n\nCaryn M. Groedel\nChastity L. Christy\nMatthew M. Ries\nCaryn Groedel & Associates Co., LPA\n31340 Solon Road\nSuite 27\nSolon, Ohio 44139\n\n\nATTORNEYS FOR APPELLEES\n\nRobert I. Koury\nRobert M. Wolff\nLittler Mendelson, P.C.\n1100 Superior Avenue\n20th Floor\nCleveland, Ohio 44114\n\fMARY J. BOYLE, J.:\n\n {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.\n\n11.1 and Loc.R. 11.1.\n\n {¶2} Plaintiff-appellant, John Brownlee, M.D., appeals the trial court’s decision\n\ngranting the motion to stay proceedings pending arbitration filed by\n\ndefendants-appellees, Cleveland Clinic Foundation and Dr. Gus Kious (collectively\n\n“CCF”). Finding no merit to the appeal, we affirm.\n\n {¶3} In July 2011, Brownlee filed an amended complaint against CCF, asserting\n\neleven causes of action. The claims arose out of Brownlee’s former employment with\n\nCCF and a Settlement Agreement executed between the parties in August 2010,\n\nfollowing the severing of Brownlee’s relationship with CCF. The Settlement\n\nAgreement contained the following arbitration provision:\n\nIn the event of any controversy, dispute, disagreement or claim arising out of, relating to,\nin connection with or concerning this Agreement, and upon written notice by the party\nasserting any such controversy, dispute, disagreement or claim, the parties agree to\nconfer in good faith and attempt to resolve the controversy, dispute, disagreement or\nclaim informally. If such controversy, dispute, disagreement or claim is not resolved\nwithin thirty (30) days, the controversy, dispute, disagreement or claim shall be\nsubmitted to binding arbitration in Cleveland, Ohio under the rules of the American\nArbitration Association then in effect. The parties shall appoint a single arbitrator\nselected mutually or selected according to the procedures of the Cleveland Office of the\nAmerican Arbitration [sic] then in effect. The arbitrator’s decision is final and binding\nupon [the] parties. Each party shall pay one-half of the fees and expenses of the\narbitrator. Any ambiguity regarding the arbitrability of any dispute shall be resolved in\nfavor of arbitrability * * *.\n\f {¶4} Relying on the above arbitration provision contained in the parties’ Settlement\n\nAgreement, CCF filed a motion to stay proceedings pending arbitration pursuant to R.C. 2711.02.\n\nBrownlee opposed the motion, arguing that enforcing the arbitration clause “violates the principles of\n\nequity and conscionability” because the Settlement Agreement was fraudulently induced. According\n\nto Brownlee, the consideration for obtaining his consent to the Settlement Agreement was CCF’s\n\npromise to keep the circumstances surrounding his exit from CCF confidential and to report only what\n\nwas required by law — a promise that CCF never kept. He further argued that CCF failed to\n\nestablish that it would suffer hardship if the proceedings were not stayed.\n\n {¶5} The trial court subsequently granted CCF’s motion to stay the proceedings pending\n\narbitration. Brownlee appeals, raising two assignments of error:\n\n {¶6} “[I.] The trial court erred in issuing an order compelling the parties to arbitrate without\n\nfirst conducting an evidentiary hearing.\n\n {¶7} “[II.] The trial court erred in granting appellees’ motion to stay the\n\n proceedings pending arbitration without affording the parties a reasonable opportunity to\n\n conduct discovery regarding the enforceability of the arbitration clause.”\n\n Standard of Review\n\n {¶8} The parties dispute the applicable standard of review governing this case,\n\n both citing to decisions of this court with varying holdings in the area. This court,\n\n however, has recently addressed this dispute, explaining that the appropriate standard of\n\n review depends on “the type of questions raised challenging the applicability of the\n\n arbitration provision.” McCaskey v. Sanford-Brown College, 8th Dist. No. 97261,\n\f2012-Ohio-1543, ¶ 7. Generally, an abuse of discretion standard applies in limited\n\ncircumstances, such as a determination that a party has waived its right to arbitrate a\n\ngiven dispute. Id., citing Milling Away, L.L.C. v. UGP Properties, L.L.C., 8th Dist. No.\n\n95751, 2011-Ohio-1103, ¶ 8. But the issue of whether a party has agreed to submit an\n\nissue to arbitration or questions of unconscionability are reviewed under a de novo\n\nstandard of review. See Shumaker v. Saks Inc., 163 Ohio App.3d 173,\n\n2005-Ohio-4391, 837 N.E.2d 393 (8th Dist.); Taylor Bldg. Corp. Of Am. v. Benfield, 117\n\nOhio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12.\n\n {¶9} In this case, where we are reviewing a trial court’s decision to grant a motion\n\nto stay after finding that the claims are subject to arbitration and there is no issue of\n\nwaiver, we apply a de novo standard of review. Indeed, “[t]he abuse of discretion\n\nstandard of review has no application in the context of the court deciding to stay\n\nproceedings pending the outcome of arbitration because a stay in such circumstances is\n\nmandatory, not discretionary.” N. Park Retirement Community Ctr., Inc. v. Sovran\n\nCos., Ltd., 8th Dist. No. 96376, 2011-Ohio-5179, ¶ 7 (recognizing that R.C. 2711.02(B)\n\nimposes a mandatory duty to stay the proceedings, leaving no discretion for the trial\n\ncourt upon being satisfied that the matter was subject to arbitration); see also McCaskey\n\nat ¶ 9. Under a de novo standard of review, we give no deference to a trial court’s\n\ndecision. Akron v. Frazier, 142 Ohio App.3d 718, 721, 756 N.E.2d 1258 (9th\n\nDist.2001).\n\n Evidentiary Hearing\n\f {¶10} In his first assignment of error, Brownlee argues that the trial court erred in\n\ngranting CCF’s motion to stay without first holding an evidentiary hearing.\n\n {¶11} The Ohio Arbitration Act, contained within R.C. Chapter 2711, provides\n\ntwo different mechanisms by which a party may enforce an arbitration provision. In\n\naccordance with R.C. 2711.02, a party may apply to the trial court to “stay the trial of\n\n[an] action [pending before the court] until arbitration of the issue has been had in\n\naccordance with the agreement.” R.C. 2711.02(B). Alternatively, under R.C. 2711.03,\n\na party may file a motion to compel arbitration, petitioning the court “for an order\n\ndirecting that the arbitration proceed in the manner provided for in the written\n\nagreement.” R.C. 2711.03(A).\n\n {¶12} Although these provisions each require a trial court to determine whether\n\nan arbitration provision is enforceable, “the statutes are separate and distinct provisions\n\nand serve different purposes.” Maestle v. Best Buy Co., 100 Ohio St.3d 330,\n\n2003-Ohio-6465, 800 N.E.2d 7. And while R.C. 2711.03 contains a requirement for a\n\nhearing, R.C. 2711.02 does not. Id. at ¶ 19. As stated by the Ohio Supreme court in\n\nMaestle:\n\n While it is within a trial court’s discretion to hold a hearing when\n considering whether a R.C. 2711.02 stay is warranted, that statute does not\n on its face require a hearing, and it is not appropriate to read an implicit\n requirement into the statute. Id.\n\n {¶13} Despite acknowledging that CCF filed a motion to stay under R.C. 2711.02,\n\nwhich does not have an express hearing requirement, Brownlee argues that an\n\nevidentiary hearing was still required because (1) the trial court granted the remedy\n\fprovided under R.C. 2711.03, ordering the parties to submit the claims to arbitration; and\n\n(2) there was an issue regarding the enforceability of the arbitration provision as being\n\nunconscionable and fraudulently induced, which required the consideration of evidence\n\nto resolve. We find these arguments unpersuasive.\n\n {¶14} Despite his argument on appeal, Brownlee never requested an oral hearing\n\nin opposing CCF’s motion to stay. Further, it is undisputed that CCF’s motion solely\n\nsought an order to stay the proceedings consistent with R.C. 2711.02, which does not\n\nrequire the trial court to hold a hearing. To the extent that the trial court’s journal entry\n\ngranting the motion to stay further stated that “the parties are hereby ordered to\n\narbitration,” we do not find this grounds for reversal. Indeed, the logical consequence\n\nof CCF obtaining a stay of the proceedings pending arbitration is that the parties will\n\nsubmit the matter to arbitration.\n\n {¶15} The record further reveals that the Brownlee’s challenge of the arbitration\n\nprovision could be resolved as a matter of law. Brownlee never disputed that he\n\nentered into a Settlement Agreement that contains an arbitration provision. Nor did he\n\ndispute that his claims fell within the scope of the arbitration provision. Brownlee\n\nchallenged the arbitration provision as being unenforceable because it is contained in a\n\nsettlement agreement that was “fraudulently induced” and signed “under duress.”1\n\n 1\n Although Brownlee made a blanket statement in his brief in opposition to CCF’s motion to\nstay that “the arbitration clause was fraudulently induced,” his argument was premised on the clause\nbeing part of a larger agreement that was fraudulently induced. Indeed, while Brownlee’s amended\ncomplaint challenges the Settlement Agreement as a whole, it contains no mention of the arbitration\nprovision.\n\f {¶16} But it is well settled that “to defeat a motion to stay brought pursuant to\n\nR.C. 2711.02, a party must demonstrate that the arbitration provision itself * * * and not\n\nmerely the contract in general” is invalid. ABM Farms, Inc. v. Woods, 81 Ohio St.3d\n\n498, 502, 692 N.E.2d 574 (1998). “Because the arbitration clause is a separate entity *\n\n* * an alleged failure of the contract in which it is contained does not affect the provision\n\nitself.” Id. Thus, when a party opposing a motion to stay proceedings under R.C.\n\n2711.02 challenges the contract as a whole, the motion to stay should be granted and the\n\n“general challenge to the entire contract, including the arbitration clause, must be\n\nsubmitted to the arbitrator to determine the validity of the entire contract.” Garber v.\n\nBuckeye Chrysler-Jeep Dodge of Shelby, 5th Dist. No. 2007-CA-0121, 2008-Ohio-3533,\n\n¶ 16. This court has consistently held the same; a challenge to an agreement allegedly\n\nprocured by fraud does not defeat a motion to stay proceedings pending arbitration when\n\nthere is no separate claim that the arbitration clause itself contained in the agreement was\n\nfraudulent induced. See, e.g., Mak v. Silberman, 8th Dist. No. 95590, 2011-Ohio-854;\n\nShort v. Resources Title Agency, 8th Dist. No. 95839, 2011-Ohio-1577; Coble v. Toyota\n\nof Bedford, 8th Dist. No. 83089, 2004-Ohio-238.\n\n {¶17} Accordingly, we find no error in the trial court granting CCF’s motion to\n\nstay without holding an evidentiary hearing. The first assignment of error is overruled.\n\n Discovery\n\n {¶18} In his second assignment of error, Brownlee argues that the trial court erred\n\nin deciding the motion to stay without affording him a reasonable opportunity to conduct\n\fdiscovery regarding the enforceability of the arbitration provision. But the record\n\nreveals that from the time the lawsuit was filed on April 22, 2011, until the time the trial\n\ncourt stayed the proceedings on November 18, 2011, Brownlee never once attempted to\n\nconduct discovery regarding the enforceability of the arbitration provision. To the\n\nextent that Brownlee served written discovery requests on CCF on November 7, 2011,\n\nthese requests were unrelated to the arbitration provision. Thus, it appears that\n\nBrownlee could have obtained discovery earlier if he wanted.\n\n {¶19} Further, Brownlee’s challenge to the arbitration provision was based on the\n\nSettlement Agreement as a whole, not the arbitration provision itself — an argument that\n\nwould not overcome a motion to stay. Thus, because Brownlee’s arguments did not\n\nevidence a need for discovery, the trial court was not required to allow for it. See Melia\n\nv. OfficeMax N. Am., Inc., 8th Dist. No. 87249, 2006-Ohio-4765, ¶ 38.\n\n {¶20} The second assignment of error is overruled.\n\n {¶21} Judgment affirmed.\n\n It is ordered that appellees recover from appellant costs herein taxed.\n\n The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate be sent to said court to carry this judgment\n\ninto execution.\n\f A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\n\nMARY J. BOYLE, JUDGE\n\nKENNETH A. ROCCO, J., CONCURS;\nMELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY\n\f", "ocr": false, "opinion_id": 2703545 } ]

[ "638 F.2d 1190" ]

[ { "author_str": "Choy", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/638/638.F2d.1190.78-3612.html", "author_id": null, "opinion_text": "638 F.2d 1190\n UNITED STATES of America, Plaintiff-Appellee,v.Patricia Campbell HEARST, Defendant-Appellant.\n No. 78-3612.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted March 10, 1980.Decided Oct. 17, 1980.Rehearing Denied Jan. 15, 1981.\n \n George C. Martinez, San Francisco, Cal., for defendant-appellant.\n Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., argued for plaintiff-appellee; Edward P. Davis, Jr., Asst. U.S. Atty., San Francisco, Cal., on brief.\n Appeal from the United States District Court for the Northern District of California.\n Before CHOY and GOODWIN, Circuit Judges, and THOMPSON,* District Judge.\n CHOY, Circuit Judge:\n \n \n 1\n Hearst appeals the district court's denial, without discovery or a hearing, of her motion for \"habeas corpus,\" 28 U.S.C. § 2255. We affirm in part and vacate in part, and remand for further proceedings.\n \n I. Introduction\n \n 2\n Hearst was arrested in September 1975 for bank robbery. Soon after, she made incriminating statements, which were captured by jail officials on the \"Tobin tape,\" in a jailhouse interview with her friend Tobin. F. Lee Bailey and his associate J. Albert Johnson entered the case on October 2 as Hearst's counsel and prepared a defense based on a coercion theory. They did not move for a change of venue or for a continuance on the ground of pretrial publicity, choosing instead to rely on the voir dire of the prospective jurors. Their motion to suppress the Tobin tape was denied. Trial began in February 1976. Bailey put Hearst on the witness stand; she took the Fifth Amendment in the presence of the jury. Hearst was convicted on March 20. Her motions for a new trial were denied. She took an unsuccessful appeal, and certiorari was denied. 563 F.2d 1331 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978). Bailey and Johnson were fired, and through present counsel Hearst filed a § 2255 motion, which Judge Orrick denied without a hearing. 466 F. Supp. 1068 (N.D.Cal.1978). While the appeal from this ruling was pending, President Carter commuted Hearst's sentence.1\n \n \n 3\n Most of the above is well known, for Hearst's case was a cause celebre. We now know, in addition, that during the course of the proceedings Bailey contracted to write a book about the trial, thus raising questions of potential or actual conflict of interest.\n \n Bailey has admitted by affidavit that\n \n 4\n In February of 1976, I had received several offers to publish a book concerning the Hearst trial. A contract was eventually signed with G. P. Putnam, however, that contract was made contingent upon Ms. Hearst agreeing not to write about her experiences for a period of eighteen months subsequent to the publication. I indicated to Putnam that I would not submit any agreement on this subject to Ms. Hearst while the matter was still being litigated and the contract thus remained contingent upon Ms. Hearst's approval.\n \n \n 5\n On March 22, 1976, Hearst signed the following covenant:\n \n March 22, 1976\n \n 6\n Putnam/Berkley Publishing Corp.\n \n New York, New York\n Gentlemen:\n \n 7\n I understand that F. Lee Bailey is writing a book about my trial and life story as it pertains to the trial for which he will contract with you for publication in the United States and Canada.\n \n \n 8\n As an inducement for you to publish this book, I hereby agree not to publish any account of my experiences in book, magazine, or any other form, prior to 18 months from your initial (hardcover) publication of Mr. Bailey's book, and I further agree to cooperate fully and exclusively with Mr. Bailey in his preparation and writing of the book in any manner he requires.\n \n \n 9\n Very truly yours,\n \n \n 10\n /s/ Patricia C. Hearst\n \n Patricia Campbell Hearst\n PCH.sm\n \n 11\n Randolph Hearst, appellant's father, declared by affidavit that in September 1975 he discussed with Bailey the possibility of a book, and did not rule out the possibility. Mr. Hearst declared that he did not consider book rights to be part of the fee arrangement for the trial. He declared further that \"after . . . trial\" Johnson told him that Bailey wanted to write a book about Ms. Hearst's trial, that this would be part of the fee arrangement for the appeal, and that Ms. Hearst would have to sign a covenant not to publish anything for eighteen months after the trial. Mr. Hearst, not knowing that Bailey had negotiated or contracted during the trial to write a book, told Johnson to tell Ms. Hearst that he had no objection to the arrangement Johnson had described.\n \n \n 12\n Ms. Hearst declared by affidavit that before trial Johnson told her that Bailey would write a book about her, that the book rights were part of the fee arrangement her parents had made, that she had to agree to the arrangement but was not to discuss it, and that Johnson would someday ask her to sign a paper relating to it. She further declared that on March 22, two days after her conviction, Johnson brought her the covenant and said, \"Remember the paper I would be bringing you to sign one day; well this is it\"; that she did not have independent counsel, feel a sense of free will, or understand the effect of the covenant; and that it was never her desire that Bailey write a book about her or the trial.2II. Hearst's Contentions\n \n \n 13\n Hearst makes the following contentions on appeal:\n \n \n 14\n A. Her Sixth Amendment right to the assistance of counsel was violated when Bailey pursued his own interest in publication rights, rather than her interest in acquittal, by (1) failing to seek a continuance; (2) failing to seek a change of venue; (3) putting Hearst on the witness stand; (4) failing to investigate the Tobin tape issue; and (5) failing to investigate the possibility that involuntary ingestion of hallucinogens overcame Hearst's will.\n \n \n 15\n B. Aside from any conflict of interest, Bailey's failure to pursue the defense based on the involuntary ingestion of hallucinogens was incompetence that violated the Sixth Amendment.\n \n \n 16\n C. Aside from any conflict of interest, Bailey's failure to succeed in suppressing the Tobin tape was incompetence that violated the Sixth Amendment.\n \n \n 17\n D. In any event, the Constitution forbade the introduction of the Tobin tape.\n \n \n 18\n E. Because pretrial publicity made a fair trial impossible, the conviction was obtained without due process of law.\n \n \n 19\n We vacate and remand for hearings under § 2255 on contentions (A)(1), (2), and (3). We affirm the district court's other rulings.\n \n A. Conflict of Interest\n \n 20\n Hearst claims that Bailey's book contract created a conflict of interest that deprived her of her Sixth Amendment right to the assistance of counsel. This alleged conflict was not total, for surely the salability of Bailey's book would have been enhanced had he gained an acquittal for Hearst. Nonetheless, Hearst charges that Bailey (1) failed to seek a continuance, so public interest would not cool and competing authors would not get the jump on him; (2) failed to seek a change of venue, because publicity would be maximized by a trial in San Francisco, a media center and the home of the Hearst family; and (3) put her on the witness stand, so her story would go on the public record and he would not be constrained by the attorney-client confidentiality rules. These decisions prejudiced Hearst, she says, because the case came to trial in the full heat of prejudicial publicity, and she was forced to plead the Fifth forty-two times in the presence of the jury.\n \n \n 21\n The Government and Bailey denied that Bailey's book interest played any role in these tactical decisions, and advanced plausible reasons why he made those decisions.\n \n \n 22\n The district court denied relief, on the grounds that counsel's reasonable tactical decisions could not be challenged, and that Hearst had not shown actual prejudice. 466 F. Supp. at 1075-76, 1083, 1087.\n \n \n 23\n We hold that the district court erred in denying Hearst a hearing on these issues.3 On remand, the district court should conduct a hearing and apply to the facts the law recently laid down by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).\n \n 1. The Cuyler v. Sullivan Test\n \n 24\n In Cuyler v. Sullivan, a decision of which the district court did not have the benefit, the Supreme Court considered a claim that retained counsel's conflict of interest violated the client's Sixth Amendment right to the assistance of counsel. Sullivan sought federal habeas corpus relief from a state conviction, whereas Hearst's conviction was federal; Sullivan's lawyer's conflict was based on multiple representation, whereas Hearst's was based on private financial interests. These differences are immaterial. We consider the rules laid down in Sullivan to be directly applicable to the present case, and they should govern the case on remand.\n \n \n 25\n The Sullivan Court held that counsel's mere potential conflict of interest does not entitle a convict to relief. \"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.\" Id. at 348, 100 S. Ct. at 1718. But \"a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.\" Id.\n \n \n 26\n We read Sullivan to define an actual, as opposed to a potential, conflict as one which in fact adversely affects the lawyer's performance. But the requirement that the petitioner show this adverse effect is not the same as the requirement of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 793 (1979), that the petitioner show that counsel's incompetent assistance resulted in actual prejudice. For example, overwhelming evidence of guilt might (as in Cooper itself) make almost impossible a showing that a relatively minor error resulted in actual prejudice. But such evidence would be completely irrelevant to an inquiry whether the same error, if caused by an actual conflict of interest, showed an adverse effect on counsel's performance.\n \n 2. Requirement of a Hearing\n \n 27\n When a § 2255 motion is made, \"(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon.\" 28 U.S.C. § 2255. The standard is essentially whether the movant has \"stated a claim on which relief could be granted,\" Moore v. United States, 571 F.2d 179, 184 (3rd Cir. 1978)--or, where affidavits have been submitted, whether summary judgment for the government is proper. See also Fed.R.Civ.P. 12(b), 56. Under the standard established by the statute and the cases interpreting it, the district court should not have denied Hearst's conflict-based claims without a hearing.\n \n \n 28\n The Ninth Circuit's rule is that \"merely conclusionary statements in a § 2255 motion are not enough to require a hearing.\" Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). This does not, however, \"mean that the moving party must detail his evidence. It means only that he must make factual allegations, as (movant) has done.\" Id.\n \n \n 29\n On the other hand, in certain cases the \"factual allegations\" are so \"palpably incredible,\" so \"patently frivolous or false,\" see Blackledge v. Allison, 431 U.S. 63, 76, 97 S. Ct. 1621, 1632, 52 L. Ed. 2d 136 (1977), that it is clear the movant is not entitled to relief or even to a hearing. \"The court may appraise a petition by what is reasonably credible.\" Cassidy v. United States, 457 F.2d 813 (9th Cir.) (per curiam), cert. denied, 409 U.S. 1026, 93 S. Ct. 472, 34 L. Ed. 2d 318 (1972).\n \n \n 30\n These principles are well illustrated by Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). There, the movant's § 2255 motion and affidavit made detailed factual allegations, which were countered by an affidavit introduced by the Government. The district judge concluded without a hearing that the allegations were false, and denied relief. The Supreme Court vacated and remanded, saying,\n \n \n 31\n This was not a case where the issues raised by the motion were conclusively determined either by the motion itself or by the \"files and records\" in the trial court. The factual allegations contained in the petitioner's motion and affidavit, and put in issue by the affidavit filed with the Government's response, related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection.\n \n \n 32\n We cannot agree with the Government that a hearing in this case would be futile because of the apparent lack of any eyewitnesses to the occurrences alleged, .... \"... The Government's contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard.\" (Citation.)\n \n \n 33\n There will always be marginal cases, and this case is not far from the line. But the specific and detailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U.S.C. § 2255 can be served in this case only by affording the hearing which its provisions require.\n \n \n 34\n Id. at 494-96, 82 S.Ct. at 514.\n \n \n 35\n In this case, the district court could not properly rely on the apparent regularity of the record and of Bailey's \"tactical\" decisions, 466 F. Supp. at 1075, 1083, to \"conclusively show\" that Hearst was entitled to no relief, because her motion was based on a circumstance, not appearing on the record, that allegedly affected Bailey's judgment. See Sanders v. United States, 373 U.S. 1, 19-20, 83 S. Ct. 1068, 1079, 10 L. Ed. 2d 148 (1963) (hearing must be granted on § 2255 claim that apparently regular guilty plea was invalid because defendant was under influence of narcotics). Bailey's potential conflict of interest is virtually admitted, and Hearst has alleged an actual conflict and adverse effect in sufficient and not implausible detail.\n \n \n 36\n We conclude that Hearst is entitled to a hearing on the truth of her allegations.4\n \n 3. Discovery\n \n 37\n Hearst alleged that Bailey was negotiating with publishers before the trial, when certain challenged decisions were made; she offered to prove it through depositions and discovery from Bailey's publisher and its editor-in-chief.\n \n \n 38\n In § 2255 cases, \"A party may invoke the processes of discovery . . . if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.\" Rule 6 (following § 2255); see Argo v. United States, 473 F.2d 1315, 1317 (9th Cir.), cert. denied, 412 U.S. 906, 93 S. Ct. 2298, 36 L. Ed. 2d 972 (1973). The district court, because of its belief that Hearst's § 2255 motion was meritless, refused to allow Hearst to take discovery under Rule 6. On remand, the district court should again consider the question of discovery.\n \n B. Ingestion of Drugs-Attorney Incompetence\n \n 39\n The district court correctly found that Hearst had no possibility of demonstrating that Bailey's representation was incompetent to the extent that he failed to investigate fully the possibility that involuntary ingestion of hallucinogens overcame Hearst's will. 466 F. Supp. at 1086-87. The only evidence of this ingestion, besides Hearst's vague assertion that she had experienced drug-type sensations, was a double hearsay account of Donald DeFreeze's unfocused statement of future possibilities.5 No psychiatric report suggested that hallucinogens had affected Hearst's behavior, and several psychiatrists told Bailey that the symptoms she reported could have been a normal reaction to light after one has been blindfolded. If this drug defense had been unsuccessfully proffered the credibility of Hearst's entire defense might have been destroyed. Bailey acted well within the scope of \"reasonably competent and effective representation,\" Cooper v. Fitzharris, 586 F.2d at 1327, when he devoted his energies to other aspects of Hearst's defense. Even in the unlikely event that this decision was a mistake, there was still no constitutional dereliction. See id. at 1330.\n \n C. The Tobin Tape-Attorney Incompetence\n \n 40\n As the district court found, the record demonstrates that Bailey and his co-counsel made satisfactory, if not brilliant, investigation and presentation of the facts and law that might have resulted in the suppression of the Tobin tape. 466 F. Supp. at 1078, 1079 n.17, 1086. Thus the court did not err by ruling, without a hearing, that Hearst could not demonstrate that Bailey's representation on this issue fell below the \"reasonably competent and effective\" level. See 586 F.2d at 1327.\n \n D. The Tobin Tape-Fourth Amendment\n \n 41\n Hearst claims that the Tobin tape was the fruit of a Fourth Amendment violation and should have been suppressed. The Government provided her a full and fair opportunity to raise this issue on direct appeal; therefore, it cannot be raised on collateral review. Tisnado v. United States, 547 F.2d 452, 456 (9th Cir. 1976); see Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976). If the provided opportunity has been squandered due to defense counsel's incompetence or misconduct, a convict's only option on collateral review is a Sixth Amendment claim based on inadequate assistance of counsel. See Canary v. Bland, 583 F.2d 887, 890 (6th Cir. 1978). We held in Part II.C, supra, that Hearst received adequate assistance of counsel on the Tobin tape issue.\n \n E. Pretrial Publicity-Due Process\n \n 42\n Hearst claims that the huge amount of prejudicial pretrial publicity made it impossible for her to receive the fair trial guaranteed by the Fifth Amendment's Due Process Clause. Bailey did not make this claim at trial or on direct appeal, nor did he move for a continuance or change of venue to alleviate the problem; instead, he relied on the voir dire to obtain unbiased jurors. The § 2255 court held that this constituted a waiver of Hearst's due process/fair trial objection, and no \"cause\" was alleged or \"prejudice\" shown, see Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), to justify permitting the waived objection to be litigated collaterally. 466 F. Supp. at 1073-76.\n \n \n 43\n In federal criminal cases, all defenses and objections based on defects in the institution of the prosecution or non-jurisdictional defects in the indictment or information must be raised before trial, or else are waived (although \"the court for cause shown may grant relief from the waiver\"). Fed.R.Crim.P. 12(b) (1)-(2), (f). A waived challenge of the grand jury cannot be litigated collaterally. Davis v. United States, 411 U.S. 233, 242, 93 S. Ct. 1577, 1582, 36 L. Ed. 2d 216 (1973). Challenges of the petit jury are treated the same as challenges of the grand jury. Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 362, 83 S. Ct. 448, 460, 9 L. Ed. 2d 357 (1963). It follows that Hearst's due process/fair trial objection was waived.\n \n \n 44\n Although Hearst did not explicitly identify Bailey's conflict of interest as the \"cause\" for this waiver, her allegations that this conflict induced Bailey to fail to move for a continuance or a change of venue sufficiently raised a claim of Sykes and Rule 12(f) \"cause\" before the § 2255 district court. But we note that Hearst's allegations in contentions (A)(1) and (2), that Bailey's failure to make these motions violated her Sixth Amendment rights, are substantively identical to her allegation of \"cause.\" If she can establish actual conflict of interest and a Sixth Amendment violation, she establishes \"cause\"; by the same token, she cannot show \"cause\" without showing an actual conflict.\n \n \n 45\n Once Hearst established an actual conflict of interest with adverse effect on her counsel's performance, she would be entitled to relief on contentions (A) (1) and (2) even if no prejudice to her chance of acquittal at trial appeared. Therefore, if Hearst is entitled to relief on contentions (A)(1) and (2) she will gain the relief she seeks through contention (E); yet if she is not entitled to relief on the former contentions, she could not be entitled to relief on the later contention (because she would not have established \"cause\"). Since the district court's decision on contentions (A)(1) and (2), which we have remanded for a hearing, will effectively moot contention (E), we see no reason to disturb the district court's decision on that issue.\n \n III. Attorney Discipline\n A. Standards of Conduct\n \n 46\n Under Federal Rule of Appellate Procedure 46, a Court of Appeals can discipline any attorney who practices before it for \"conduct unbecoming a member of the bar.\" See In re Chandler, 450 F.2d 813 (9th Cir. 1971). This language is not unconstitutionally vague. It refers to the legal profession's \"code of behavior\" and \"lore,\" of which all attorneys are charged with knowledge and of which the American Bar Association Code of Professional Responsibility (ABA CPR) is an illustration. In re Bithoney, 486 F.2d 319, 324 & n.7 (1st Cir. 1973). In addition, members pro hac vice of the bar of the United States District Court for the Northern District of California are charged with knowledge of the disciplinary rules of the State Bar of California, as well as those of their home jurisdiction.\n \n B. Bailey's Conduct\n \n 47\n The allegations and admissions in the record of the present case raise serious questions as to whether Bailey and, to the extent of his participation, Johnson have been guilty of conduct unbecoming members of the bar.\n \n 1. The Book Contract\n \n 48\n Bailey's book contract created a potential conflict of interest; this case tests whether it ripened into an actual conflict of interest. Therefore, Bailey may have violated ABA CPR Disciplinary Rule 5-101(A), which reads:\n \n \n 49\n Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.\n \n \n 50\n The obvious reason for this rule is well expressed in ABA CPR Ethical Consideration 5-1:\n \n \n 51\n The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.\n \n \n 52\n Bailey's book contract might not fall within ABA CPR Disciplinary Rule 5-104(B), see infra, because the contract itself was not an acquisition from the client of an interest in publication rights. Nonetheless, Rule 5-104(B) recognizes the dangers inherent in simultaneous lawyering and authoring.6 Moreover, all courts before which the issue has been raised have disapproved the practice of attorneys arranging to benefit from the publication of their clients' stories. See Ray v. Rose, 491 F.2d 285, 289 (6th Cir.), cert. denied, 417 U.S. 936, 94 S. Ct. 2650, 41 L. Ed. 2d 240 (1974); Ray v. Rose, 535 F.2d 966, 974 (6th Cir.), cert. denied, 429 U.S. 1026, 97 S. Ct. 648, 50 L. Ed. 2d 629 (1976); Wojtowicz v. United States, 550 F.2d 786, 793 (2d Cir.), cert. denied, 431 U.S. 972, 97 S. Ct. 2938, 53 L. Ed. 2d 1071 (1977); People v. Corona, 80 Cal. App. 3d 684, 720-21, 727, 145 Cal. Rptr. 894, 915-16, 920 (1978); Maxwell v. Superior Court, 101 Cal. App. 3d 736, 161 Cal. Rptr. 849, 854-56, 861 (1980) hearing granted March 20, 1980.\n \n \n 53\n In light of Rule 5-101(A), Bailey's decision to enter into a book contract during the course of the trial was most unfortunate. Potential and actual conflicts of interest always bring disrepute upon the bar, the court, and the law. They do so to an even greater degree when the case is a cause cEelebre and the attorney has the reputation of being an outstanding lawyer. Moreover, Bailey is in no position to claim that the book contract was necessary to finance his fee.\n \n 2. The Covenant\n ABA CPR Disciplinary Rule 5-104(B) reads:\n \n 54\n Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.\n \n \n 55\n Even though Bailey's book contract itself technically might not violate this Rule, Hearst's March 22 covenant to cooperate exclusively with Bailey and not to publish on her own was obtained pursuant to his representation and, we believe, constituted an \"interest in publication rights.\" Although Hearst's trial had ended on March 22, Bailey's representation of Hearst had not. He continued to represent her through a motion for new trial, a second motion for new trial, sentencing, a direct appeal to this Court, a petition for rehearing en banc, a petition for certiorari, a motion to vacate a concurrent sentence, and a Rule 35 motion to reduce sentence. Thus, Bailey was apparently in violation of ABA CPR Disciplinary Rule 5-104(B) from March 22, 1976, onward.\n \n 3. The Fraud on the Client\n \n 56\n Bailey admits the book contract; the covenant is in the record. The allegations suggesting fraud are not so well established. However, if proved, they would tend to show that Bailey and Johnson misled Randolph Hearst and appellant regarding the finality of the agreement for a book, the subject of the book, the duration of the covenant, the application of the proceeds, and appellant's obligation to sign the covenant. The allegations regarding the background, manner and timing of the presentation of the covenant to appellant for signing indicate overreaching.\n \n \n 57\n If all this is true, Bailey and Johnson may have violated ABA CPR Disciplinary Rule 1-102(A)(4):\n \n \n 58\n A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.\n \n \n 59\n Other Disciplinary Rules might also be involved. Attention should also be directed to California Rule of Professional Conduct 5-101:A member of the State Bar shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless (1) the transaction and terms in which the member of the State Bar acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in manner and terms which should have reasonably been understood by the client, (2) the client is given a reasonable opportunity to seek the advice of independent counsel of the client's choice on the transaction, and (3) the client consents in writing thereto.\n \n C. Disciplinary Proceedings\n \n 60\n We suggest that the district court, on remand, might find it advisable to issue to Bailey (and perhaps to Johnson as well) an order to show cause why he should not be disciplined, on the grounds noted above, in his capacity as a member pro hac vice of the bar of the United States District Court for the Northern District of California.7\n \n IV. Conclusion\n \n 61\n As to Hearst's contentions that Bailey suffered from an actual conflict of interest that adversely affected his performance, in that it caused him to fail to seek a continuance, to fail to seek a change of venue, and to put Hearst on the witness stand, the district court's denial of the motion for relief is VACATED, and the case REMANDED for reconsideration of Hearst's discovery request, and for a hearing.\n \n \n 62\n As to all other matters, the judgment of the district court is AFFIRMED.\n \n \n \n *\n The Honorable Bruce R. Thompson, Senior United States District Judge for the District of Nevada, sitting by designation\n \n \n 1\n Although Hearst is no longer in federal custody, this case is not moot. Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973). The district court on remand will have the power under § 2255 to vacate Hearst's conviction, if it finds such relief appropriate\n \n \n 2\n Hearst alleged that Bailey's book contract called for a $70,000 advance and a total of $225,000; that the advance was paid; that Bailey had a ghostwriter write \"The Trial of Patty Hearst\"; and that the publisher rejected the manuscript. Hearst declared by affidavit that on August 1, 1977, Bailey wrote her that since the book had not been published yet, there was no need for the covenant and she could consider it null and void\n \n \n 3\n Hearst's implausible arguments that Bailey's book conflict hamstrung his investigation of the Tobin tape issue and influenced him not to pursue a defense based on her involuntary ingestion of hallucinogens were not raised below; we will not consider them on appeal\n \n \n 4\n The Supreme Court has noted that although the standards for disposing without a hearing of habeas corpus petitions by state and federal prisoners are theoretically \"exactly commensurate,\" in practice\n a motion under § 2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion, even though he could not similarly dispose of a habeas corpus petition challenging a state conviction but presenting identical allegations. . . . To this extent, the standard may be administered in a somewhat different fashion.\n Blackledge v. Allison, 431 U.S. 63, 74 n.4, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977).\n Since Judge Orrick's decision to deny a hearing was based on his reading of the trial record, however, not on his personal recollection of the trial, the standard must be administered strictly here. Although Judge Orrick presided at Hearst's sentencing and considered the § 2255 motion which is the subject of this appeal, the late Judge Oliver J. Carter presided at Hearst's trial.\n \n \n 5\n DeFreeze was a leader of the Symbionese Liberation Army, the group which kidnapped Hearst\n \n \n 6\n This recognition becomes even more explicit in Rule 1.9(d) of the Discussion Draft of the ABA Model Rules of Professional Conduct, Reprinted in 48 U.S.L.W., No. 32, at 8 (Feb. 19, 1980):\n Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary rights to a matter arising from the representation.\n The Comment to that proposed Rule reads in part:\n An agreement by which a lawyer acquires literary rights concerning the subject matter of the representation involves incompatible standards for the lawyer's performance, one being effectiveness in representing the client and the other being performance that has literary value. Even after conclusion of representation, a lawyer may make use of information about a client in an account of professional experience only to the extent permitted by Rule 1.7.\n The proposed Rule, if in effect at the time, would explicitly have prohibited Bailey's book contract.\n \n \n 7\n We choose not, at this time, to issue to Bailey an order to show cause why he should not be disciplined by the United States Court of Appeals for the Ninth Circuit. We will await the findings made in the district court's disciplinary proceedings, and do what appears necessary thereafter\n \n \n ", "ocr": false, "opinion_id": 386114 } ]

[ "2013 Ohio 3442" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 29, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-3442.pdf", "author_id": null, "opinion_text": "[Cite as State v. Wetherby, 2013-Ohio-3442.]\n\n\n COURT OF APPEALS\n LICKING COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n JUDGES:\nSTATE OF OHIO : Hon. W. Scott Gwin, P.J.\n : Hon. Sheila G. Farmer, J.\n Plaintiff-Appellee : Hon. Craig R. Baldwin, J.\n :\n-vs- :\n : Case No. 12-CA-69\nKARL C. WETHERBY :\n :\n Defendant-Appellant : OPINION\n\n\n\n\nCHARACTER OF PROCEEDING: Criminal appeal from the Licking County\n Court of Common Pleas, Case No.\n 10CR00616\n\nJUDGMENT: Affirmed in part; reversed in part; and\n Remanded\n\n\n\nDATE OF JUDGMENT ENTRY: August 1, 2013\n\nAPPEARANCES:\n\nFor Plaintiff-Appellee For Defendant-Appellant\n\nKENNETH OSWALT DAVID SAMS\n29 S. 2nd Street Box 40\nNewark, OH 43055 W. Jefferson, OH 43162\n\f[Cite as State v. Wetherby, 2013-Ohio-3442.]\n\n\nGwin, P.J.\n\n {¶1} Appellant, Karl C. Wetherby [“Wetherby”], appeals a judgment of the\n\nLicking County Common Pleas Court convicting him of obstructing official business\n\n(R.C. 2921.31(A)) with a firearm specification (R.C. 2929.14(D), R.C. 2941.145),\n\ninducing panic with a firearm specification (R.C. 2917.31(A)(3)(4)((a). R.C. 2941.145),\n\nand aggravated menacing (R.C. 2903.21(A).\n\n Facts and Procedural History\n\n {¶2} On September 23, 2010, officers from the Licking County Sheriff's\n\nDepartment went to Jason Lee's home at 9151 Linville Road, Newark, Ohio, to serve a\n\nwrit of possession1. Deputies spoke to Lee and explained that his property had been\n\nsold at sheriff's sale and he needed to make arrangements to vacate. They agreed on\n\nOctober 11, 2010 as the date by which Lee would vacate, but Lee stated that he was\n\ngoing to hire an attorney to have the sale set aside. Wetherby is a friend of Lee’s who\n\nwas staying on the property in a camper in the driveway. (1T. at 244).\n\n {¶3} Deputies did not return on October 11, 2010, because a court action was\n\npending to review the propriety of the sale. However, on October 20, 2010, the court\n\ndenied a stay on the writ of possession. Deputies again spoke with Lee at his home on\n\nOctober 25, 2010, and told him he needed to vacate on October 27, 2010.\n\n {¶4} At about 9:30 a.m. on October 27, deputies arrived at Lee's home. Lee\n\nwas standing on the front sidewalk. He yelled something to the officers about having\n\nsold his house to someone else and told them to leave. Lee then ran in the front door of\n\n\n\n 1\n See, State v. Lee, 5th Dist. No. 11-CA-0076, 2012-Ohio-2856.\n\fLicking County, Case No. 12-CA-69 3\n\n\nthe home. Officers followed Lee to the front porch but Lee would not come out or let\n\nthem in the house. He yelled through the front door that he was not coming out.\n\n {¶5} Deputies returned to their vehicle to telephone Lee’s attorney, and called\n\ntheir supervisor, Captain Bruce Myers. Deputy Tim Caldwell went around to the back\n\ndoor to attempt to talk to Lee. The blinds covering the French doors on the back porch\n\nflew open and the faces of Lee and another man, later identified as Wetherby, appeared\n\nagainst the window. The two men began yelling and screaming at Deputy Caldwell. The\n\ncorners of their mouths were “full of white stuff” from yelling and screaming and they\n\nwere spitting on the window.\n\n {¶6} When Captain Bruce Myers arrived, he went to the back door to speak\n\nwith the pair. He advised Lee through the door that Lee's attorney was on his way.\n\nCaptain Myers saw an arm and a hand come around the side of the blinds covering the\n\ndoor. The hand was holding a pistol.\n\n {¶7} Much of the staff of the Sheriff's Department had been dispatched to an\n\nincident involving a van, containing a pipe bomb, which crashed into a church following\n\na pursuit earlier that morning. At least 25 employees of the Sheriff's Department and fire\n\ndepartment were dispatched to Lee's home, including the SWAT team and the hostage\n\nnegotiating team.\n\n {¶8} Lee would not speak to the hostage negotiators through a “throw phone,”\n\nwhich is the preferred method of communicating so that all communications can be\n\nmonitored by the police. However, he agreed to speak to Misty Van Balen through a cell\n\nphone.\n\fLicking County, Case No. 12-CA-69 4\n\n\n {¶9} Lee repeatedly told her that he wanted to die, that he was going to kill\n\nwhoever entered the residence first and then kill himself. He also told her that he and\n\nWetherby had a plan to kill each other. He told her that he could see the officers through\n\nthe window and could take them out. He intended to die and take out as many people\n\nas he could. Lee would speak calmly with her for a while, then start yelling and hang up.\n\nDuring the telephone negotiations, Wetherby can be heard yelling in the background.\n\nWetherby is speaking so loudly that the deputy told Lee to “tell him to shut up. I can’t\n\nhear you.” (1T. at 244-245). Throughout the negotiations, Lee was asking Wetherby for\n\nhis advice. Several times Lee halted the discussions in order to seek Wetherby’s\n\nadvice. (1T. at 245).\n\n {¶10} Lee and Wetherby informed the negotiating deputies that they wanted to\n\nspeak to the news media. Accordingly, a meeting was arranged with a local news team.\n\nLee was afraid to leave the residence. At about 4:15 p.m., Wetherby agreed to come\n\nout unarmed and speak to the media. Wetherby was taken into custody without incident\n\nat the conclusion of the interview with the news team. Lee came out of the house at\n\n6:30 p.m.\n\n {¶11} During a subsequent search of the house, officers found three firearms in\n\na cabinet in a basement office, a loaded firearm in a garage, a revolver in the first floor\n\ndining room, a rifle leaning against an end table in the living room, and a rifle in the\n\ncorner of a first floor bathroom.\n\n {¶12} The jury convicted Wetherby on all counts. At sentencing, the trial court\n\nmerged the firearm specifications. The court further merged the Obstructing Official\n\nBusiness contained in count one with the Inducing Panic charge found in count two. The\n\fLicking County, Case No. 12-CA-69 5\n\n\nstate elected to proceed on count one for sentencing. The court sentenced Wetherby to\n\nan aggregate sentence of three years and six months.\n\n Assignments of Error\n\n {¶13} Wetherby raises four assignments of error:\n\n {¶14} “I. THE CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE\n\nAND WERE OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE\n\nCONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.\n\n {¶15} “II. APPELLANT'S ACTIONS WERE PRIVILEGED UNDER OHIO LAW\n\nAND THE STATE AND FEDERAL CONSTITUTIONS AND THUS COULD NOT FORM\n\nTHE BASIS FOR CRIMINAL LIABILITY THEREUNDER.\n\n {¶16} “III. THE JURY INSTRUCTIONS WERE PREJUDICIALLY INSUFFICIENT\n\nUNDER OHIO LAW AND THE STATE & FEDERAL CONSTITUTIONS.\n\n {¶17} “IV. APPELLANT WAS PREJUDICIALLY DENIED THE EFFECTIVE\n\nASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL\n\nCONSTITUTIONS.”\n\n I.\n\n {¶18} In his first assignment of error, Wetherby argues the jury’s findings of\n\nguilty are against the manifest weight of the evidence and was not supported by\n\nsufficient evidence.\n\n {¶19} Our review of the constitutional sufficiency of evidence to support a\n\ncriminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.\n\n2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether\n\n“after viewing the evidence in the light most favorable to the prosecution, any rational\n\fLicking County, Case No. 12-CA-69 6\n\n\ntrier of fact could have found the essential elements of the crime beyond a reasonable\n\ndoubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d\n\n582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d\n\n1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,\n\n2010–Ohio–2720, ¶ 68.\n\n {¶20} Weight of the evidence addresses the evidence's effect of inducing belief.\n\nState v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded\n\nby constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio\n\nSt.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the\n\ninclination of the greater amount of credible evidence, offered in a trial, to support one\n\nside of the issue rather than the other. It indicates clearly to the jury that the party\n\nhaving the burden of proof will be entitled to their verdict, if, on weighing the evidence in\n\ntheir minds, they shall find the greater amount of credible evidence sustains the issue\n\nwhich is to be established before them. Weight is not a question of mathematics, but\n\ndepends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,\n\nquoting Black's Law Dictionary (6th Ed. 1990) at 1594.\n\n {¶21} When a court of appeals reverses a judgment of a trial court on the basis\n\nthat the verdict is against the weight of the evidence, the appellate court sits as a\n\n“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting\n\ntestimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102\n\nS.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely\n\nsubstitute its view for that of the jury, but must find that “‘the jury clearly lost its way and\n\ncreated such a manifest miscarriage of justice that the conviction must be reversed and\n\fLicking County, Case No. 12-CA-69 7\n\na new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.\n\nMartin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).\n\nAccordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case\n\nin which the evidence weighs heavily against the conviction.’” Id.\n\n “[I]n determining whether the judgment below is manifestly against\n\n the weight of the evidence, every reasonable intendment and every\n\n reasonable presumption must be made in favor of the judgment and the\n\n finding of facts. * * *\n\n “If the evidence is susceptible of more than one construction, the\n\n reviewing court is bound to give it that interpretation which is consistent\n\n with the verdict and judgment, most favorable to sustaining the verdict and\n\n judgment.”\n\nSeasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.\n\n3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).\n\n 1. Obstructing Official Business.\n\n {¶22} R.C. 2921.31, Obstructing Official Business provides,\n\n (A) No person, without privilege to do so and with purpose to\n\n prevent, obstruct, or delay the performance by a public official of any\n\n authorized act within the public official's official capacity, shall do any act\n\n that hampers or impedes a public official in the performance of the public\n\n official's lawful duties.\n\n {¶23} In the case at bar, Licking County Sheriff s officers were attempting to\n\nenforce a Writ of Possession resulting from a foreclosure action. No evidence was\n\fLicking County, Case No. 12-CA-69 8\n\n\npresented during trial that Wetherby had an ownership interest in the subject property.\n\nNo evidence was presented that Wetherby had any cognizable interest in the property\n\npursuant to any written agreement. The only evidence presented is that Lee permitted\n\nWetherby to stay in a camper on the property. No evidence was presented as to the\n\nownership of the camper. Thus, the evidence presented during trial indicates that\n\nWetherby was no more than a guest of Lee.\n\n {¶24} In the case at bar, Lee was to vacate the premises taking whatever he\n\nwould like. The new owners gave Lee and additional thirty days to remove the\n\nremainder of his property. (1T. at 116). Further, Lee was aware that his application for a\n\nstay had been denied. (Id. at 120 -121). The evidence in this case included copies of the\n\nWrit of Possession as well as the civil court's judgment entry refusing to stay that Writ.\n\nThose documents clearly show that Lee was a party to that foreclosure action.\n\nAccordingly, Wetherby as a mere guest was not privileged to use force or threaten the\n\nuse of force to resist the Licking County Sheriff’s officers from enforcing a Writ of\n\nPossession resulting from a foreclosure action.\n\n {¶25} In the case at bar, the state presented evidence that, at the very least,\n\nWetherby aided and abetted Lee in preventing the deputies from the performance of\n\ntheir lawful duties.\n\n {¶26} Generally, a criminal defendant has aided or abetted an offense if he has\n\nsupported, assisted, encouraged, cooperated with, advised, or incited another person to\n\ncommit the offense. See, State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001),\n\nsyllabus. “‘Participation in criminal intent may be inferred from presence, companionship\n\nand conduct before and after the offense is committed.'\" State v. Mendoza, 137 Ohio\n\fLicking County, Case No. 12-CA-69 9\n\nApp.3d 336, 342, 738 N.E.2d 822 (2000), quoting State v. Stepp, 117 Ohio App.3d 561,\n\n568-569, 690 N.E.2d 1342 (1997).\n\n {¶27} R.C. 2923.03 provides:\n\n (A) No person, acting with the kind of culpability required for the\n\n commission of an offense, shall do any of the following:\n\n ***\n\n (2) Aid or abet another in committing the offense.\n\n {¶28} R.C. 2923.03(F) states, \"A charge of complicity may be stated in terms of\n\nthis section, or in terms of the principal offense.\"\n\n The Supreme Court of Ohio clarified Ohio's position on the issue of\n\n complicity in State v. Perryman (1976), 49 Ohio St. 2d 14, vacated in part\n\n on other grounds sub nom, Perryman v. Ohio (1978), 438 U.S. 911. The\n\n court unequivocally approved of the practice of charging a jury regarding\n\n aiding and abetting even if the defendant was charged in the indictment as\n\n a principal. Id. The court held that the indictment as principal performed\n\n the function of giving legal notice of the charge to the defendant. Id.\n\n Therefore, if the facts at trial reasonably supported the jury instruction on\n\n aiding and abetting, it is proper for the trial judge to give that charge.\n\n Perryman, supra at 27, 28.\n\nState v. Payton, 8th Dist. Nos. 58292, 58346, 1990 WL 48952(Apr. 19, 1990).\n\n {¶29} R.C. 2923.03(F) adequately notifies defendants that the jury may be\n\ninstructed on complicity, even when the charge is drawn in terms of the principal\n\noffense. United States v. McGee 529 F.3d 691, 695 (6th Cir 2008); State v. Herring, 94\n\fLicking County, Case No. 12-CA-69 10\n\nOhio St.3d 246, 251 762 N.E.2d 940, 949(2002); State v. Keenan, 81 Ohio St.3d 133,\n\n151, 689 N.E.2d 929, 946(1998); State v. Templeton, 5th Dist. No. 2006-CA-33, 2007-\n\nOhio-1148, ¶ 63.\n\n {¶30} In this case, while inside the home, Lee displayed a firearm to the officers\n\noutside. The pair further made threats to shoot the officers and themselves. The\n\ndeputies remained on the scene from 9:30 a.m. to at least 6:30 p.m.\n\n {¶31} Viewing the evidence in a light most favorable to the prosecution, we\n\nconclude that a reasonable person could have found beyond a reasonable doubt that, at\n\nthe very least, Wetherby aided and abetted Lee in committing the crime of obstructing\n\nofficial business. We hold, therefore, that the state met its burden of production\n\nregarding each element of the crimes and, accordingly, there was sufficient evidence to\n\nsupport Wetherby’s conviction.\n\n 2. Inducing Panic.\n\n {¶32} R.C. 2917.31 Inducing Panic, provides,\n\n (A) No person shall cause the evacuation of any public place, or\n\n otherwise cause serious public inconvenience or alarm, by doing any of\n\n the following:\n\n (1) Initiating or circulating a report or warning of an alleged or\n\n impending fire, explosion, crime, or other catastrophe, knowing that such\n\n report or warning is false;\n\n (2) Threatening to commit any offense of violence;\n\n (3) Committing any offense, with reckless disregard of the likelihood\n\n that its commission will cause serious public inconvenience or alarm.\n\fLicking County, Case No. 12-CA-69 11\n\n\n {¶33} At the time of the offense, a violation of this section that results in\n\neconomic harm of $500.00 or more but less than $5,000.00 inducing panic was\n\nclassified as a fifth degree felony. R.C. 2917.31(C)(4).2\n\n {¶34} R.C. 2917.31(E)(1)(b) specifically includes within \"economic harm\", \"All\n\ncosts incurred by the state or any political subdivision as a result of, or in making any\n\nresponse to, the criminal conduct that constituted the violation of this section or section\n\n2917.32 of the Revised Code, including, but not limited to, all costs so incurred by any\n\nlaw enforcement officers, firefighters, rescue personnel, or emergency medical services\n\npersonnel of the state or the political subdivision.\"\n\n {¶35} Officer Jay Cook testified that the total cost to respond to the situation that\n\nLee and Wetherby brought about was over $7,000. (1T. at 323.) This figure was\n\ndocumented in an accounting of overtime for 29 officers who were involved in some\n\ncapacity or another with this matter, as well as jail personnel who had to be called in to\n\n\"cover\" for jail deputies that were on the SWAT Team or had additional duties\n\nassociated with this 10-hour standoff.\n\n {¶36} In State v. Kristofferson, 1st Dist. Hamilton App. No. C-010322, 2002-\n\nOhio-712, the defendant appealed his R.C. 2917.31(A)(3) inducing panic conviction and\n\nargued that the evidence was insufficient to show the serious public inconvenience or\n\nalarm element. In Kristofferson, the defendant and his wife had argued and he stated\n\nthat he would be better off dead. He then retrieved a handgun and locked himself in a\n\nbedroom. His wife and son left the home and called the police. The police requested the\n\n\n\n\n 2\n This statue was amended September 30, 2011 to increase the amounts to $1,000.00 and\n$7,500.00, respectively.\n\fLicking County, Case No. 12-CA-69 12\n\n\ndefendant to come outside and after a brief two or three minute exchange, the\n\ndefendant surrendered.\n\n {¶37} The appellate court concluded that the evidence failed to show that the\n\ndefendant's conduct caused serious public inconvenience or alarm. Instead, “[h]is\n\nconduct involved his family and occurred within the privacy of his own home. It was not\n\nthe kind of conduct that the inducing-panic statute was intended to prohibit, such as\n\ncausing an airport terminal or other public place to be evacuated by sending the\n\ncustomers to scurry for the exits.” The court further determined that “[t]he officers, acting\n\nin their official capacity, * * * could not have been inconvenienced within the\n\ncontemplation of R.C. 2917.31(A), simply because they had responded to his residence\n\nas their duties required them to do.”\n\n {¶38} In State v. Campbell, 195 Ohio App.3d 9, 2011-Ohio- 3458, 958 N.E.2d\n\n622(1st Dist.), although eight police officers were required to respond to a domestic\n\ndispute when the defendant refused to open the door to his apartment, there was no\n\nevidence the other tenants in the building were stirred, and the police officers could not\n\nbe inconvenienced as they were acting in their official capacity.\n\n {¶39} In State v. Isham, 1st. Dist. Hamilton App. No. C-020065, 2002-Ohio-\n\n5815, the First District reversed the trial court's judgment of conviction on an inducing-\n\npanic charge against the defendant because the state had not presented sufficient\n\nevidence to support the elements of inducing panic. The court explained that there had\n\nbeen no evidence of an alleged offense of violence since there was no evidence that\n\nthe defendant had threatened anyone or pointed the gun at anyone. In addition, the\n\ncourt went on to state that there had likewise been no evidence that any offense of\n\fLicking County, Case No. 12-CA-69 13\n\n\nviolence (if there had been one) caused the evacuation of the building, because the\n\nalleged offense of violence occurred after the building had already been evacuated.\n\nAccord, In re J.C. 11th Dist. Lake App. No. 2012-L-083, 2013-Ohio-1292(Mar. 29,\n\n2013), ¶20 (“mere public awareness of an event is not sufficient to satisfy the element of\n\nserious public inconvenience or alarm; there must be some type of disruption,\n\ndiscomfort, distress, or fear caused by one or more of the three predicate actions found\n\nin R.C. 2917.31(A)(1)-(A)(3).”).\n\n {¶40} In the case at bar, there is no evidence that Wetherby’s actions in concert\n\nwith Lee or alone caused serious public inconvenience or alarm. Officers acting in their\n\nofficial capacity could not have been inconvenienced within the contemplation of R.C.\n\n2917.31(A), simply because they had responded to the residence, as their duties\n\nrequired them to do.\n\n {¶41} We hold, therefore, that the state failed to meet its burden of production\n\nregarding each element of the crimes and, accordingly, there was insufficient evidence\n\nto support Wetherby’s conviction for inducing panic.\n\n {¶42} Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 2953.07, give\n\nan appellate court the power to affirm, reverse, or modify the judgment of an inferior\n\ncourt. Accordingly, the conviction and sentence on Counts Two, Inducing Panic is\n\nreversed, and this case is remanded for proceedings in accordance with our opinion\n\nand the law.\n\n 3. Aggravated Menacing.\n\n {¶43} Wetherby was also convicted of aggravated menacing. R.C. 2903.21,\n\naggravated menacing provides,\n\fLicking County, Case No. 12-CA-69 14\n\n\n (A) No person shall knowingly cause another to believe that the\n\n offender will cause serious physical harm to the person or property of the\n\n other person, the other person's unborn, or a member of the other\n\n person's immediate family.\n\n {¶44} The crime of aggravated menacing is triggered by a threat that intimidates\n\nor causes fear or apprehension by the recipient. State v. Schwartz, 77 Ohio App.3d 484,\n\n602 N.E.2d 671(12th Dist. 1991). Such threats are not among the class of utterances\n\nthat are protected by the First Amendment. Mozzochi v. Borden, 959 F.2d 1174 2nd Cir.\n\n1992); United States v. Khorrami, 895 F.2d 1186(7th Cir. 1990); United States v.\n\nBellrichard, 994 F.2d 1318(8th Cir. 1993).\n\n {¶45} In State v. Millikin, 1st Dist. Hamilton App. Nos. C030825, C-030826,\n\n2004-Ohio-4507, the defendant was angry that motorists would move and drive around\n\nthe barricades placed in front of his home because of road construction. The defendant\n\nparked his and another person's vehicles in front of his house, blocking the street. The\n\npolice were called, and the defendant was told to move the vehicles. The defendant was\n\nangry that the police were not enforcing the closing of the road. The state presented\n\nevidence that when the police arrived for the second time, the defendant appeared at\n\nthe front door of his house, angry and intoxicated, carrying a shotgun and having a\n\nhandgun tucked in the waistband of his pants. The appellate court upheld the\n\ndefendant's conviction for aggravated menacing, stating that “Even though Millikin never\n\npointed a gun at the police officers and did not verbally threaten them, in the entire\n\ncontext of the evening, it was reasonable to conclude that the police officers felt\n\fLicking County, Case No. 12-CA-69 15\n\n\nthreatened and were fearful that Millikin would attempt to cause serious physical harm\n\nto them.” Id. at ¶23.\n\n {¶46} In State v. Terzo, 12th Dist. Butler App. No. CA2002-08-194, 2003-Ohio-\n\n5983, a Fairfield police officer responded to a report that a female was brandishing a\n\nfirearm and trying to set fire to clothing she had thrown in the street. When the officer\n\narrived, he observed the female sitting on the front porch holding a shotgun. The officer\n\ntestified that the female raised the shotgun and aimed it at the officer. He testified that\n\nhe drew his service revolver, fearing that the female intended to shoot. The female went\n\nback inside the house, put the gun down, and surrendered herself immediately. The\n\nappellate court upheld Terzo's conviction for aggravated menacing, stating that “The\n\nthreat need not be verbalized; rather, the threat can be implied by the offender's actions.\n\nCity of Niles v. Holloway (Oct. 3, 1997), Trumbull App. No. 96-T-5533, 1997 Ohio App.\n\nLEXIS 4517, 1997 WL 665974 citing State v. Hoaglin (Mar. 25, 1993), Van Wert App.\n\nNo. 15-92-15, 1993 Ohio App. LEXIS 1718, 1993 WL 85643. And finally, while appellant\n\n[Terzo] also argues that she would have been unable to carry out the threat because\n\nthe gun was not loaded, neither the intent nor the ability to carry out the threat is an\n\nelement of the offense. Dayton v. Dunnigan (1995), 103 Ohio App.3d 67, 658 N.E.2d\n\n806.” Id. at ¶18.\n\n {¶47} In the case at bar, evidence was presented that the deputies had\n\nconcerns for their safety. First, officers retreated from the front of the home where they\n\nwere exposed when co-defendant Lee brandished a firearm. The officer who observed\n\nthe gun being brandished retreated to a \"safer location.” He also yelled to his fellow\n\nofficer that he saw a gun and told him to get off the porch. Moreover, a tactical, or\n\fLicking County, Case No. 12-CA-69 16\n\n\nSWAT team, was called in and a squad/medic was kept on stand-by throughout the\n\nordeal.\n\n {¶48} Viewing the evidence in a light most favorable to the prosecution, we\n\nconclude that a reasonable person could have found beyond a reasonable doubt that, at\n\nthe very least, Wetherby aided and abetted Lee in committing the crime of aggravated\n\nmenacing. We hold, therefore, that the state met its burden of production regarding\n\neach element of the crimes and, accordingly, there was sufficient evidence to support\n\nWetherby’s conviction.\n\n {¶49} Ultimately, “the reviewing court must determine whether the appellant or\n\nthe appellee provided the more believable evidence, but must not completely substitute\n\nits judgment for that of the original trier of fact ‘unless it is patently apparent that the fact\n\nfinder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,\n\nquoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.\n\nIn other words, “[w]hen there exist two fairly reasonable views of the evidence or two\n\nconflicting versions of events, neither of which is unbelievable, it is not our province to\n\nchoose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,\n\nat ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.\n\n {¶50} The weight to be given to the evidence and the credibility of the witnesses\n\nare issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d\n\n212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-\n\nOhio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,\n\n62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.\n\n843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the\n\fLicking County, Case No. 12-CA-69 17\n\n\nevidence offered by the parties and assess the witness’s credibility. \"While the jury may\n\ntake note of the inconsistencies and resolve or discount them accordingly * * * such\n\ninconsistencies do not render defendant's conviction against the manifest weight or\n\nsufficiency of the evidence\". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752\n\n(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714\n\n(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may\n\naccept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-\n\nOhio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State\n\nv. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79\n\nOhio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have\n\nbeen circumstantial, we note that circumstantial evidence has the same probative value\n\nas direct evidence. State v. Jenks, supra.\n\n “[I]n determining whether the judgment below is manifestly against\n\n the weight of the evidence, every reasonable intendment and every\n\n reasonable presumption must be made in favor of the judgment and the\n\n finding of facts. * * *\n\n “If the evidence is susceptible of more than one construction, the\n\n reviewing court is bound to give it that interpretation which is consistent\n\n with the verdict and judgment, most favorable to sustaining the verdict and\n\n judgment.”\n\nSeasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.\n\n3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).\n\fLicking County, Case No. 12-CA-69 18\n\n {¶51} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the\n\nSupreme Court further cautioned,\n\n The mere number of witnesses, who may support a claim of one or\n\n the other of the parties to an action, is not to be taken as a basis for\n\n resolving disputed facts. The degree of proof required is determined by\n\n the impression which the testimony of the witnesses makes upon the trier\n\n of facts, and the character of the testimony itself. Credibility, intelligence,\n\n freedom from bias or prejudice, opportunity to be informed, the disposition\n\n to tell the truth or otherwise, and the probability or improbability of the\n\n statements made, are all tests of testimonial value. Where the evidence is\n\n in conflict, the trier of facts may determine what should be accepted as the\n\n truth and what should be rejected as false. See Rice v. City of Cleveland,\n\n 114 Ohio St. 299, 58 N.E.2d 768.\n\n161 Ohio St. at 477-478. (Emphasis added).\n\n {¶52} We find that this is not an “‘exceptional case in which the evidence weighs\n\nheavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d\n\n541 quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best\n\nposition to evaluate this competent, credible evidence, and we will not substitute our\n\njudgment for that of the trier of fact. The jury neither lost their way nor created a\n\nmiscarriage of justice in convicting Wetherby of the charges of obstructing official\n\nbusiness with a firearm specification and aggravated menacing.\n\n II.\n\fLicking County, Case No. 12-CA-69 19\n\n\n {¶53} In his second assignment of error, Wetherby incorporates the arguments\n\nhe previously made with respect to this first assignment of error. He contends in this\n\nassignment of error that his conduct was \"privileged.\"\n\n {¶54} Wetherby's claim is essentially one of defense of property. Ohio law does\n\nnot provide appellant the right to defend his property by threatening to shoot police\n\nofficers who are there to execute a writ of possession issued by a court of law simply\n\nbecause he believes there were errors made in the civil proceeding that led to the\n\nsheriff's sale of his property. State v. Lee, 5th Dist. No. 11-CA-0076, 2012-Ohio-2856, ¶\n\n43.\n\n {¶55} In State v. Burns, 2nd Dist. No. 22674, 2010–Ohio–2831, the appellant\n\nargued that her conviction for obstructing official business was against the manifest\n\nweight of the evidence because the officer whom she impeded in his efforts to search\n\nher mother's home was there unlawfully, without a search warrant. The court rejected\n\nthis argument, holding:\n\n Appellant contests that Officer Wolpert was performing “lawful\n\n duties” when he entered her mother's house prior to obtaining a search\n\n warrant. Although an unlawful entry may result in the exclusion of\n\n evidence, “absent bad faith on the part of a law enforcement officer, an\n\n occupant cannot obstruct the officer in the discharge of his duty, whether\n\n or not the officer's actions are lawful under the circumstances.” State v.\n\n Stevens, Morgan App. No. 07–CA–0004, 2008–Ohio–6027, ¶ 37, quoting\n\n State v. Paumbaur (1984), 9 Ohio St.3d 136, 138. There is no evidence of\n\n “bad faith” on the part of Officer Wolpert. He explained that his reason for\n\fLicking County, Case No. 12-CA-69 20\n\n\n entering the home was to ensure the safety of all concerned and to ensure\n\n that evidence could not be removed or destroyed. Even if Officer Wolpert's\n\n entry had been unlawful under these particular circumstances, absent\n\n evidence of bad faith, Appellant was not justified in obstructing his efforts\n\n to secure the residence.” Id. at ¶ 19.\n\n {¶56} In the case at bar, there is absolutely no evidence that any of the officers\n\nacted in bad faith. To the contrary, the evidence unequivocally established that the\n\nsheriff's department had a writ of possession and a judgment of the court, dated\n\nOctober 20, 2010, denying Lee's motion for a stay on the writ of possession. Further,\n\nwhile a homeowner may say almost anything to officers in an attempt to persuade them\n\nnot to enter, the Fourth Amendment does not grant a homeowner the right to use deadly\n\nforce to resist an unlawful entry. State v. McCoy, 2nd Dist. No. 22479, 2008–Ohio–\n\n5648, ¶ 19. In the instant case, Wetherby's right to resist entry, even if the police were\n\nacting in bad faith, did not extend to a threat of deadly force and show of a firearm. Lee,\n\nsupra at ¶ 47.\n\n {¶57} Wetherby’s second assignment of error is overruled.\n\n III.\n\n {¶58} In his third assignment of error, Wetherby claims the trial court erred in not\n\ngiving complete jury instructions. Specifically, Wetherby contends that it was plain error\n\nfor the court not to instruct the jury on privilege, self-defense and imminent fear of\n\nserious physical harm with respect to aggravated menacing.\n\n {¶59} The giving of jury instructions is within the sound discretion of the trial\n\ncourt and will not be disturbed on appeal absent an abuse of discretion. State v.\n\fLicking County, Case No. 12-CA-69 21\n\nMartens, 90 Ohio App.3d 338, 629 N.E.2d 462(3rd Dist. 1993). In order to find an abuse\n\nof that discretion, we must determine the trial court's decision was unreasonable,\n\narbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.\n\nBlakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983) Jury instructions must be\n\nreviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).\n\n {¶60} Crim.R. 30(A) governs instructions and states as follows:\n\n At the close of the evidence or at such earlier time during the trial as\n\n the court reasonably directs, any party may file written requests that the\n\n court instruct the jury on the law as set forth in the requests. Copies shall\n\n be furnished to all other parties at the time of making the requests. The\n\n court shall inform counsel of its proposed action on the requests prior to\n\n counsel's arguments to the jury and shall give the jury complete\n\n instructions after the arguments are completed. The court also may give\n\n some or all of its instructions to the jury prior to counsel's arguments. The\n\n court need not reduce its instructions to writing.\n\n On appeal, a party may not assign as error the giving or the failure\n\n to give any instructions unless the party objects before the jury retires to\n\n consider its verdict, stating specifically the matter objected to and the\n\n grounds of the objection. Opportunity shall be given to make the objection\n\n out of the hearing of the jury.\n\n {¶61} Wetherby did not file a written request for specific jury instructions, and did\n\nnot object to the trial court's jury instructions. Based upon his failure to proffer\n\ninstructions or object to the instructions and bring the issue to the trial court's attention\n\fLicking County, Case No. 12-CA-69 22\n\n\nfor consideration, we must address this assignment under the plain error doctrine.\n\nTherefore, for this court to reverse Wetherby’s convictions, we must find that the trial\n\ncourt's procedure regarding its jury instructions was prejudicial. Crim.R. 52(B).\n\n [A]n appellate court may, in its discretion, correct an error not\n\n raised at trial only where the appellant demonstrates that (1) there is an\n\n error; (2) the error is clear or obvious, rather than subject to reasonable\n\n dispute; (3) the error affected the appellant’s substantial rights, which in\n\n the ordinary case means it affected the outcome of the district court\n\n proceedings; and (4) the error seriously affect[s] the fairness, integrity or\n\n public reputation of judicial proceedings.\n\nUnited States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012\n\n(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently\n\naddressed when structural error analysis should be used in State v. Perry,\n\n We emphasize that both this court and the United States Supreme\n\n Court have cautioned against applying a structural-error analysis where,\n\n as here, the case would be otherwise governed by Crim.R. 52(B) because\n\n the defendant did not raise the error in the trial court. See Hill, 92 Ohio\n\n St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,\n\n 137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an\n\n error is structural even when the defendant does not bring the error to the\n\n attention of the trial court would be to encourage defendants to remain\n\n silent at trial only later to raise the error on appeal where the conviction\n\n would be automatically reversed. We believe that our holdings should\n\fLicking County, Case No. 12-CA-69 23\n\n\n foster rather than thwart judicial economy by providing incentives (and not\n\n disincentives) for the defendant to raise all errors in the trial court-where,\n\n in many cases, such errors can be easily corrected.\n\n101 Ohio St.3d 118, 802 N.E.2d 643, 2004-Ohio-297, ¶23. Thus, the defendant bears\n\nthe burden of demonstrating that a plain error affected his substantial rights and, in\n\naddition that the error seriously affect[s] the fairness, integrity or public reputation of\n\njudicial proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123\n\nL.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d at 120, 802 N.E.2d 643. Even if the\n\ndefendant satisfies this burden, an appellate court has discretion to disregard the error.\n\nState v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); State v. Long, 53 Ohio\n\nSt.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus; Perry, supra, at 118,\n\n802 N.E.2d at 646.\n\n {¶62} Under the circumstances of the case at bar, there is nothing in the record\n\nto show that Wetherby was prejudiced. As we discussed in our disposition of\n\nWetherby’s second assignment of error, neither Wetherby nor Lee’s actions were\n\nprivileged and neither was entitled to use force.\n\n {¶63} Aggravated menacing does not require an imminent fear of serious\n\nphysical harm as suggested by Wetherby. Neither the intent of a defendant to carry out\n\nhis threat nor his ability to do so are elements of the offense of aggravated menacing.\n\nDayton v. Dunnigan, 103 Ohio App.3d 67, 71, 658 N.E.2d 806(2nd Dist. 1995). Even a\n\nconditional threat can constitute a violation of the menacing laws. State v. Collie, 108\n\nOhio App.3d 580, 582, 671 N.E.2d 338(1st Dist. 1996). What is necessary to establish\n\nthe offense of menacing is the victim's subjective belief that the defendant can cause\n\fLicking County, Case No. 12-CA-69 24\n\nphysical harm to herself, her immediate family, or her property. State v. Klempa, 7th\n\nDist. Belmont App. No. 01-BA-63, 2003-Ohio-3482, ¶ 24.\n\n {¶64} Wetherby’s third assignment of error is overruled.\n\n IV.\n\n {¶65} In his fourth assignment of error, Wetherby argues that he was denied\n\neffective assistance of counsel. Specifically, Wetherby claims his trial counsel was\n\nineffective for failing to request jury instructions on privilege and failing to argue that the\n\nevidence was insufficient.\n\n {¶66} A claim of ineffective assistance of counsel requires a two-prong analysis.\n\nThe first inquiry in whether counsel's performance fell below an objective standard of\n\nreasonable representation involving a substantial violation of any of defense counsel's\n\nessential duties to appellant. The second prong is whether the appellant was prejudiced\n\nby counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122\n\nL.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d\n\n674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).\n\n {¶67} In determining whether counsel's representation fell below an objective\n\nstandard of reasonableness, judicial scrutiny of counsel's performance must be highly\n\ndeferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in\n\ndetermining whether effective assistance of counsel was rendered in any given case, a\n\nstrong presumption exists that counsel's conduct fell within the wide range of\n\nreasonable, professional assistance. Id.\n\n {¶68} In order to warrant a reversal, the appellant must additionally show he was\n\nprejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that\n\fLicking County, Case No. 12-CA-69 25\n\n\n\"there is a reasonable probability that, but for counsel's unprofessional errors, the result\n\nof the proceedings would have been different.” Strickland, 466 U.S. at 694. A court\n\nmaking the prejudice inquiry must ask if the defendant has met the burden of showing\n\nthat the decision reached would \"reasonably likely been different\" absent the errors.\n\nStrickland, 466 U. S. 695, 696. A reasonable probability is a probability sufficient to\n\nundermine confidence in the outcome. Strickland, supra; Bradley, supra.\n\n {¶69} The claims raised by Wetherby do not rise to the level of prejudicial error\n\nnecessary to find that he was deprived of a fair trial. Having reviewed the record that\n\nWetherby cites in support of his claim that he was denied effective assistance of\n\ncounsel, we find Wetherby was not prejudiced by defense counsel’s representation of\n\nhim. The result of the trial was not unreliable nor were the proceedings fundamentally\n\nunfair because of the performance of defense counsel. Wetherby has failed to\n\ndemonstrate that there exists a reasonable probability that, had trial counsel requested\n\na jury instruction on privilege and argued insufficient evidence as he has suggested the\n\nresult of the trial would have changed. As we have noted, any error in the procedure\n\nemployed by trial counsel was harmless beyond a reasonable doubt.\n\n {¶70} Wetherby’s fourth assignment of error is overruled.\n\fLicking County, Case No. 12-CA-69 26\n\n\n {¶71} The judgment of the Licking County Court of Common Pleas is affirmed in\n\npart and reversed in part, and this case is remanded for proceedings in accordance with\n\nour opinion and the law.\n\nBy Gwin, P.J., and\n\nBaldwin, J., concur;\n\nFarmer, J., dissents\n\n\n\n _________________________________\n HON. W. SCOTT GWIN\n\n\n _________________________________\n HON. SHEILA G. FARMER\n\n\n _________________________________\n HON. CRAIG R. BALDWIN\nWSG:clw0722\n\fLicking County, Case No. 12-CA-69 27\n\nFarmer, J., dissenting\n\n {¶72} I respectfully dissent from the majority's view in Assignment of Error I as\n\nto the lack of evidence that appellant violated R.C. 2917.31, inducing panic.\n\n {¶73} I would conclude that the jury, as the trier of facts, had sufficient evidence\n\nto determine that appellant's actions violated R.C. 2917.31. Deputy Misty Van Balen\n\ntestified while she was speaking to Lee on the cell phone, appellant was yelling in the\n\nbackground and \"that person's, you know, yelling the same thing***'this isn't going to\n\nend well.' \" T. at 244. Deputy Van Balen explained that at times she spoke directly to\n\nappellant on the cell phone. T. at 245-246. She testified to the following (T. at 246):\n\n \"they [appellant and Lee] would tell us that we needed to leave, and if they\n\n didn't leave, that somebody was going to die. They intended to die that\n\n day; that if the case didn't - - if we didn't close things the way they\n\n intended, then they weren't leaving the house except for in body bags.\n\n Repeatedly told us that they were, exceptionally, that they were going to\n\n kill the first officers through the door, and then they were going to kill each\n\n other or they were going to kill themselves. Mr. Wetherby told me at one\n\n point in time during the conversation he would rather see Mr. Lee dead\n\n than leave the house.\n\n {¶74} Deputy Van Balen further testified (T. at 247-248):\n\n They would tell me that they could, at various times, they could see\n\n persons that were stationed on the perimeter, and they had told me that\n\n they were well armed, and that they intended to shoot the first three\n\n officers through the door and then they were going to shoot themselves.\n\fLicking County, Case No. 12-CA-69 28\n\n\n They told me if we gassed the house, they were going to just start\n\n shooting at random, and then they were going to shoot themselves. They\n\n told me, at one time, that they had a plan to shoot each other. That was\n\n going to be their suicide pact, and they just kept reiterating that people\n\n were going to die, and they were going to take as many as they could.\n\n\n\n {¶75} Deputy Randy Thorp testified to \"the instability of the scene and the\n\ndanger that it presented to the public in that area along Linnville Road and so forth.\" T.\n\nat 173.\n\n {¶76} I would find appellant's actions, coupled with the presence of weapons in\n\nappellant's possession, to be sufficient to meet the quantum of proof necessary for a\n\nconviction of R.C. 2917.31.\n\n {¶77} In addition, there was ample evidence of the economic harm under R.C.\n\n2917.31(E)(1)(b). T. at 322-323; State's Exhibit 14.\n\n {¶78} I would affirm appellant's conviction for inducing panic.\n\n\n\n\n ___________________________________\n HON. SHEILA G. FARMER\n\f[Cite as State v. Wetherby, 2013-Ohio-3442.]\n\n\n IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO\n\n FIFTH APPELLATE DISTRICT\n\n\nSTATE OF OHIO :\n :\n Plaintiff-Appellee :\n :\n :\n-vs- : JUDGMENT ENTRY\n :\nKARL C. WETHERBY :\n :\n :\n Defendant-Appellant : CASE NO. 12-CA-69\n\n\n\n\n For the reasons stated in our accompanying Memorandum-Opinion, the judgment of\n\nthe Licking County Court of Common Pleas is affirmed in part and reversed in part, and\n\nthis case is remanded for proceedings in accordance with our opinion and the law.\n\nCosts divided equally between the parties.\n\n\n\n\n _________________________________\n HON. W. SCOTT GWIN\n\n\n _________________________________\n HON. SHEILA G. FARMER\n\n\n _________________________________\n HON. CRAIG R. BALDWIN\n\f", "ocr": false, "opinion_id": 2698667 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/973/willmson.pdf", "author_id": null, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n\n AT KNOXVILLE FILED\n JULY 1997 SESSION\n September 18, 1997\n\n Cecil Crowson, Jr.\n Appellate C ourt Clerk\nSTATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00011\n )\n Appellee ) JOHNSON COUNTY\n )\nv. ) HON. LYNN W. BROWN,\n ) JUDGE\nCECIL WILLIAMSON, )\n ) Introduction of contraband in a penal\n Appellant ) institution\n\n\n\n\nFOR THE APPELLANT FOR THE APPELLEE\n\nDavid F. Bautista John Knox Walkup\nDistrict Public Defender Attorney General & Reporter\n\nGerald L. Gulley, Jr. Michael J. Fahey, II\nContract Appellate Attorney Assistant Attorney General\nP.O. Box 1708 450 James Robertson Parkway\nKnoxville, TN 37901-1708 Nashville, TN 37243-0493\n(on appeal)\n David E. Crockett\n Robert Y. Oaks District Attorney\nGeneral\nAssistant Public Defender\nMain Courthouse Lisa Nidiffer Rice\nElizabethron, TN 37643-3328 Assistant District Attorney General\n(at trial) Rte. 19 Box 99\n Johnson City, TN 37601\n\n\n\n\nOPINION FILED\n\n\nAFFIRMED\n\n\nJOHN K. BYERS\nSENIOR JUDGE\n\f OPINION\n\n The defendant was convicted of introducing marijuana into a penal\n\ninstitution in violation of T.C.A. § 39-16-201 and was sentenced to serve six years.\n\n The defendant raises the following issues:\n\n\n I. The “punitive segregation” and other sanctions\n applied to the appellant for possessing contraband\n narcotics within a penal institution, and which are\n described as “punishments” by the Tennessee\n Department of Corrections, preclude subsequent\n indictment and trial for the same offense on grounds of\n double jeopardy.\n\n II. The process by which prisoners who violate prison\n rules against possession of illegal contraband are\n selected for prosecution in state court is a selective\n enforcement that is devoid of any rational basis, and\n therefore a violation of the equal protection and due\n process rights of the appellant.\n\n III. The trial judge erred as a matter of law by denying\n the motions for judgment of acquittal and a new trial,\n where there was not sufficient evidence to sustain a\n conviction of the appellant.\n\n\n We affirm the judgment of the trial court.\n\n The evidence introduced by the state, unrefuted by the defendant,\n\naccredited by the jury and approved by the trial judge, shows:\n\n On February 25, 1995, the defendant was working the child care\n\nvisitor’s center, where he had access to the visitation gallery, which would bring him\n\nin contact with persons from outside the prison.\n\n The defendant entered a toilet which was adjacent to the gallery and\n\nwhich was under surveillance by guards. A guard observed the defendant putting\n\nsomething into his rectum. The defendant was accosted by the guard and a search\n\nrevealed a string protruding from the defendant’s rectum. The defendant was\n\nplaced in a cell where any bowel movement he had could not be disposed of.\n\nWithin 24 hours, the defendant passed a package which contained marijuana.\n\n\n -2-\n\f The defendant told the prison officials he was “muling” [delivering] the\n\nmarijuana to another inmate whom he would not name.\n\n The defendant claims the evidence is insufficient to convict him of\n\nintroducing marijuana into the prison because there is no direct evidence of how he\n\ngot possession of the marijuana.\n\n The defendant relies upon the case of State v. Hicks, 835 S.W.2d 32\n\n(Tenn. Crim. App. 1992) to support his argument. We believe Hicks is\n\ndistinguishable from this case because, in Hicks, the evidence clearly showed the\n\naccused in that case was not involved in the introduction of the banned substance\n\n(whiskey) into the prison but only moved the whiskey within the institution after it had\n\nbeen deposited within the prison by others, unaided by the accused. Id. at 38.\n\n The evidence in this case shows the defendant was in contact with\n\npeople who came into the prison where the defendant was working. The defendant\n\ninserted the marijuana into his rectum in a bathroom adjacent to the place of contact\n\nwith people from outside the prison. The most reasonable conclusion to be drawn\n\nfrom this is that the defendant, with the aid of someone outside the prison, was\n\ninvolved in the introduction of the marijuana into the prison.\n\n The trial judge properly instructed the jury on the law as it applies to\n\naiding and abetting the comission of a crime and in the requirements of the law\n\nregarding convictions based on circumstantial evidence.\n\n There is sufficient circumstantial evidence in the case to exclude any\n\nother reasonable hypothesis than the guilt of the defendant of the offense charged,\n\nand there is sufficient evidence for a reasonable trier of fact to find guilt beyond a\n\nreasonable doubt.\n\n The defendant may not prevail on the double jeopardy claim. In Ray v.\n\nState, 577 S.W.2d 681 (Tenn. Crim. App. 1978), the Court held that the imposition\n\nof prison discipline for the purposes of institutional control does not bar prosecution\n\nfor the criminal offense which gave rise to the prison discipline. We find no relevant\n\ncases holding otherwise.\n\n\n\n\n -3-\n\f The defendant claims the practice of the prison officials in referring\n\nsome, but not all, prisoners who commit crimes while incarcerated, denies him equal\n\nprotection of the law and violates his due process rights.\n\n State officials may selectively prosecute some who commit crime and\n\nnot prosecute others who commit crime without violating equal protection or due\n\nprocess rights of an accused. Yearwood v. State, 455 S.W.2d 612 (Tenn. Crim.\n\nApp. 1970); United States v. Allen, 954 F.2d 1160 (6th Cir. 1992).\n\n Selective enforcement is unconstitutional when the selection process\n\nis based upon arbitrary calssification of those to be prosecuted. Oyler v. Boles, 368\n\nU.S. 448, 82 S. Ct. 501 (1962).\n\n The defendant does not show that there is an arbitrary classification of\n\nthe state for which prosecution is reserved or that he is the member of any class\n\narbitrarily selected for prosecution. He, therefore, has failed to show any basis for\n\nthe dismissal of the indictment in this case.\n\n The judgment of the trial court is affirmed.\n\n\n\n\n John K. Byers, Senior Judge\n\nCONCUR:\n\n\n\n\nDavid H. Welles, Judge\n\n\n\n\nThomas T. Woodall, Judge\n\n\n\n\n -4-\n\f", "ocr": false, "opinion_id": 1083377 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.nmcompcomm.us/nmcases/nmca/slips/CA31,571.pdf", "author_id": null, "opinion_text": " IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\n\nOpinion Number: _______________\n\nFiling Date: December 5, 2013\n\nDocket No. 31,571\n\nCARMEN ARIAS,\n\n Plaintiff/Counter-Defendant/Appellee,\n\nv.\n\nPHOENIX INDEMNITY\nINSURANCE COMPANY,\n\n Defendant/Counter-Plaintiff/Appellant.\n\nAPPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY\nTed C. Baca, District Judge\n\nCarter & Valle Law Firm, P.C.\nRichard J. Valle\nKathryn L. Eaton\nAlbuquerque, NM\n\nfor Appellee\n\nThe Law Offices of Bruce S. McDonald\nBruce S. McDonald\nDaniel P. Ulibarri\nLaura K. Vega\nAlbuquerque, NM\n\nfor Appellant\n\n OPINION\n\nKENNEDY, Chief Judge.\n\n{1} “The term ‘stacking’ refers to an insured’s attempt to recover damages in aggregate\nunder . . . one policy covering more than one vehicle.” State Farm Mut. Auto. Ins. Co. v.\nSafeco Ins. Co., 2013-NMSC-006, ¶ 8, 298 P.3d 452 (internal quotation marks and citation\n\n 1\n\fomitted). Plaintiff attempts to impose intra-policy stacking of uninsured/underinsured\nmotorist (UM/UIM) coverage into an insurance policy we previously reformed, owing to the\nimperfect handling of her rejection of UM/UIM coverage. See Arias v. Phoenix Indem. Ins.\nCo., 2009-NMCA-100, 147 N.M. 14, 216 P.3d 264. In Arias, we held that her rejection of\nUM/UIM coverage was legally deficient and required judicial intervention to read the\ncoverage into the policy. Id. ¶ 18. On similar grounds, we hold that she is also entitled to\nhave her coverage stacked under our Supreme Court’s opinion in Montano v. Allstate Indem.\nCo., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255. We affirm the district court and\nremand.\n\nI. BACKGROUND\n\n{2} Carmen Arias (Plaintiff), having settled for policy limits with the insurance company\nof a tortfeasor whose vehicle struck hers, attempted to pursue UM/UIM benefits under an\ninsurance policy that she had purchased from Phoenix Indemnity Insurance Company\n(Defendant). This policy covered her liability up to the statutory minimum and covered two\nvehicles but, at the time of its purchase, she rejected UM/UIM coverage. In a previous\nappeal in this case, we held that, because her rejection of UM/UIM coverage was legally\ninvalid, she was entitled to UM/UIM coverage as a matter of law. See Arias,\n2009-NMCA-100, ¶ 12. The issue of whether the coverage “stacked” because two vehicles\nwere covered under the policy had not been addressed by the district court, and we remanded\nwith instructions to consider and rule on the stacking issue. Id. ¶ 19.\n\n{3} On remand, the district court resolved the stacking issue on summary judgment.\nPlaintiff’s judicially-minted UM/UIM coverage would apply to her damages, and the\ncoverage would be stacked, reflecting the two vehicles covered under the policy. In doing\nso, the district court first determined that reasonable expectations of an insured in the terms\nof a policy are irrelevant once it was determined by this Court that Defendant had failed to\nobtain a valid rejection of UM/UIM coverage from Plaintiff. Second, interpreting the arc\nof New Mexico’s common law holdings that read UM/UIM coverage into a policy in\namounts equal to the full extent of its liability limits, the district court determined that, in the\nabsence of any valid rejection of UM/UIM coverage in a multiple-vehicle policy, the full\ncoverage due is properly established by multiplying the available liability limits of the policy\nby the number of vehicles insured, rather than the number of premiums paid by an insured.\nThe district court stated that UM/UIM coverage had been read into the policy as a result of\nDefendant entirely failing to obtain a valid rejection of coverage, and the reformation of the\npolicy should include reading in stacking as well. From this judgment, Defendant now\nappeals. We agree with the district court.\n\nII. DISCUSSION\n\n{4} The facts of this case are not in issue and discussed fully in our previous opinion.\nThe question is solely one involving interpretations of law, which we review de novo.\nJordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 14, 149 N.M. 162, 245 P.3d 1214; City of\n\n 2\n\fAlbuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213\nP.3d 1146 (holding that, in such a situation, we apply de novo review and are not required\nto view the appeal in the light most favorable to the party opposing summary judgment).\n\n{5} In Romero v. Dairyland Insurance Co., our Supreme Court observed that unless\nrejection is accomplished in a manner consistent with the requirements imposed by the\nstatute and regulations, UM/UIM coverage will be read into the policy “regardless of the\nintent of the parties.” 1990-NMSC-111, ¶ 1, 111 N.M. 154, 803 P.2d 243. Our Supreme\nCourt further stated that the UM/UIM statute “embodies a public policy of New Mexico to\nmake uninsured motorist coverage a part of every automobile liability insurance policy\nissued in this state,” and “[t]he statute was intended to expand insurance coverage and to\nprotect individual members of the public against the hazard of culpable uninsured motorists.”\nId. ¶ 6. Finally, our Supreme Court stated that the statute should be liberally interpreted in\norder to implement its remedial purpose, and the language in the statute that provides for an\nexception to UM/UIM coverage should be construed strictly to protect the insured. Id.;\nFarmers Ins. Co. of Ariz. v. Chen, 2010-NMCA-031, ¶ 25, 148 N.M. 151, 231 P.3d 607.\n\n{6} Our courts have a continuing interest in implementing the legislative goal to direct\nNew Mexicans to insure for damages caused by uninsured and underinsured motorists. In\nArias, we followed Romero to implement the strong expansive legislative and public policy\nin New Mexico favoring insurance coverage to protect members of the public against losses\ncaused by uninsured and underinsured motorists. Arias, 2009-NMCA-100, ¶ 7. We\nrecognize that the Legislature enacted NMSA 1978, Section 66-5-301(A) and (C) (1983) to\nprovide that every insurance policy in the state is to include UM coverage and, if the insured\ndoes not want the coverage, it should be specifically rejected in writing. Marckstadt v.\nLockheed Martin Corp., 2010-NMSC-001, ¶¶ 16-17, 25-26, 147 N.M. 678, 228 P.3d 462\n(expressing the written rejection and attached notification requirements). Under our law, the\ninsurer offers the maximum amount of UM/UIM coverage to the insured based on the\nliability limits of the policy and, in no event, less than the statutory minimum. Progressive\nNw. Ins. Co. v. Weed Warrior Servs., 2010-NMSC-050, ¶ 12, 149 N.M. 157, 245 P.3d 1209;\nRomero v. Progressive Nw. Ins. Co., 2010-NMCA-024, ¶ 16, 148 N.M. 97, 230 P.3d 844.\nSuch coverage may only be foregone by an insured’s express and legally satisfactory\nrejection of it.\n\n{7} The history of our case law considering the offer and rejection of UM/UIM coverage\nis extensive. See Weed Warrior, 2010-NMSC-050, ¶ 4 (listing cases that constitute the\nevolution of jurisprudence in this area). The default position of our courts is that any\nrejection of coverage that is found to be invalid under Section 66-5-301 results in courts\nreforming the insurance policy in question by reading into it UM/UIM coverage as if it was\nfully provided at the level of policy limits to the insured in the first instance. Romero, 2010-\nNMCA-024, ¶ 16; see Jordan, 2010-NMSC-051, ¶ 2. “Where a valid rejection of UM/UIM\ncoverage has not been obtained by the insurer, New Mexico law requires UM/UIM coverage\nto be read into the policy at the liability limits, regardless of the intent of the parties or the\nfact that a premium has not been paid.” Chen, 2010-NMCA-031, ¶ 27 (noting that the de-\n\n 3\n\femphasis on premium payment becomes significant when dealing with an invalid rejection\nof both coverage and stacking).\n\n{8} We have already reformed Plaintiff’s insurance contract to include UM/UIM\ncoverage to the liability limits of her policy because Section 66-5-301 and 13.12.3.9 NMAC\n(5/14/2004) provide that automobile liability policies shall contain UM/UIM coverage in the\nabsence of an appropriate rejection. Arias, 2009-NMCA-100, ¶ 15. Now that the district\ncourt on remand has separately considered whether Plaintiff’s two insured vehicles’\ncoverage should be stacked, we review this remaining question.\n\nA. Insufficient Rejections of Coverage Result in Reading in UM/UIM Coverage to\n Policy Limits\n\n{9} There is no question that, in the absence of a valid rejection of UM/UIM coverage,\nsuch coverage will be read into the insured’s coverage as if there was no rejection at all.\nThat is the law of the case here. Id. ¶ 12. The invalid rejection of partial UM/UIM stacking,\nor the ambiguous subjecting of a policy to a limitation on stacking, was similarly held in\nMontano to be no rejection at all, resulting in stacking to the policy limits for each covered\nvehicle being read into the policy. The question here is simply whether a complete reading\nof UM/UIM coverage where none had been before also requires the reading in of stacking\nof coverage if multiple vehicles are insured.\n\n{10} Plaintiff insured two vehicles under her policy. By our earlier decision in Arias, she\nis entitled to UM/UIM coverage to the limits of her liability under the policy irrespective of\nher intention to reject coverage or whether separate premiums were paid. Chen, 2010-\nNMCA-031, ¶ 27. To begin answering the question of whether stacking applies here, we\nwill first assess the circumstances under which common law imposition of stacking upon\ninsurance policies has occurred.\n\nB. Stacking in New Mexico\n\n{11} Montano holds that insurers must obtain written rejections of stacking to avoid\nliability. 2004-NMSC-020, ¶ 1. UM/UIM coverage as required by statute is a mandatory\ncomponent of an insurance policy. In Montano, the policy provided for some, but not all,\ncovered vehicles’ coverage to be stacked. As a result, our Supreme Court’s pronouncements\nin Montano treated the stacking issue as a “judicially-created doctrine, which thus far has\nnot met the disapproval of the Legislature[,]” id. ¶ 17, but also something that had been\npredicated on the insured’s payment of “a separate premium for the uninsured motorist\ncoverage on each car insured under the policy[,]” id. ¶ 12 (internal quotation marks and\ncitation omitted). Given that the Montano policy had stacked coverage subject to a separate\npremium, this language does not apply well to our case, where all UM/UIM coverage was\njudicially created. In the present case, there was a single policy, but no premium paid at all\nfor UM/UIM coverage owing to our reading it into the policy. Following Montano, our\nSupreme Court was providing UM/UIM coverage up to liability limits, they were silent on\n\n 4\n\fwhether this judicially-created coverage was to be stacked. Jordan, 2010-NMSC-051. We\nfirst conclude that the rationale expressed in Chen that payment of any premium is irrelevant\nto our reading coverage into a policy in general should be extended to the question of\nstacking where the policy itself was silent, but coverage is read in the contract by the courts.\n\n{12} Despite Montano’s discussion of stacking as “extra coverage for which the parties\nhave contracted,” it is clear that, absent the execution of a sufficient rejection of each and\nevery possible combination of stacking, stacking is something “to which the insured is\nentitled by default[.]” 2004-NMSC-020, ¶ 18 (internal quotation marks and citation\nomitted). Defendant’s attempts to rely on Montano to limit stacking only to where “those\nwho want stacked coverage pay for it, and those who don’t want it don’t pay for it” is\ninapposite. Id. (internal quotation marks and citation omitted). Separate premiums are\nextraneous to Montano’s strong dicta indicating a preference for policies to treat vehicles\nindividually and, hence, requiring a policyholder’s specific rejection of stacked coverage for\neach and every vehicle owned before stacking is validly rejected. Id. ¶ 19. Montano dealt\nwith a policy that specifically sought to limit stacking by its terms, but wound up having\nthose limitations struck down and full per-vehicle stacking imposed on the policy when an\nambiguity resulted in an invalid rejection of stacking. In the absence of any such terms or\npremiums to be paid for stacking in this case, Montano demonstrates that, when invalid\nrejection of stacking exists, our courts favor and extend stacking to all vehicles covered by\nthe policy. See id. ¶ 1.\n\n{13} This returns us to the expansive policy perspective of the Legislature as to this issue\nand our common law that no liability policy may issue, except that it provides “any vehicle\nregistered or . . . garaged in New Mexico” is to be covered by UM coverage. Id. ¶ 19; § 66-\n5-301(A). Stacking must then be a default entitlement with regard to all individual vehicles\ncovered under a policy where no sufficient rejection of stacking exists. Although Montano\nindicates the possible propriety of a stacking exclusion when under a policy only a single\npremium is paid and a specific rejection is properly executed, that is not the case here.\nMontano clearly requires an unambiguous rejection to defeat stacking as well and, in this\ncase, we have neither a rejection of coverage or stacking as a matter of law. The lack of a\nvalid rejection of UM/UIM coverage in this case led us to read coverage into the insurance\ncontract. It appears we must now do the same with stacking of coverage as it would apply\nto each covered vehicle. The judicial imposition of stacking, like imposing coverage when\nan insured did not validly reject it, must inure exclusively to the benefit of the insured as a\ndefault position. Montano, 2004-NMSC-020, ¶ 19 (stating that the statute required each\nvehicle covered under a policy be covered by one minimum coverage, together with the\nrequirement of written rejection of UM/UIM coverage combine to defeat an insurance\ncompany’s attempt to limit liability by avoiding stacking). Unless a policy “notif[ies] the\ninsured that only one premium has been charged for one insurance coverage[,]” full stacking\nis read into the policy. Id. ¶ 27 (internal quotation marks and citation omitted). Where\ncourts confer UM/UIM coverage where a policy is silent on the matter, it follows that each\nvehicle covered also acquires coverage, and those coverages are to be stacked.\n\n\n 5\n\f{14} Our opinion in Arias left the stacking issue open as to the coverage we imposed on\nthe insurance contract between the parties. We acknowledge that, by creating the coverage\nwithout reference to stacking, we created a legal ambiguity as to the extent of that coverage\nthat also has implications for the question of whether to order stacking. “A court may find\nthat an ambiguity exists if separate sections of the policy conflict, if the language may have\nmore than one meaning, if the structure of the contract is not logical, or if a relevant matter\nof coverage is not explicitly addressed in the policy.” Bird v. State Farm Mut. Auto. Ins.\nCo., 2007-NMCA-088, ¶ 11, 142 N.M. 346, 165 P.3d 343. Bird held that, in the absence of\nsuch terms, coverage is to be read into the policy by our courts. We hold that, as much as\ncoverage itself to the maximum limit of liability must be read into her policy, stacking of\ncoverage for each of the two vehicles thus insured must now follow suit absent valid\nrejection, and we affirm the district court.\n\nC. Failing to Adequately Reject Stacking Results in the Imposition of Stacking\n\n{15} Thus, we conclude that as we inject UM/UIM coverage into a policy as a matter of\nlaw for failure of any rejection of coverage, the law also requires the imposition of a per-\nvehicle stacking of coverage into a single policy. In this case, ambiguities arose in Arias’s\npolicy’s language, owing first to the defective rejection of coverage requiring that coverage\nbe read into the policy. Second, the requirement noted above that coverage applies to any\nvehicle demands stacking of coverage in the absence of indications to the contrary. Having\nextended to her the availability of UM/UIM coverage as a matter of law, we also include per-\nvehicle stacking. We believe that, in the absence of a rejection of coverage altogether, the\ncoverage that must be extended is the full measure accorded her by the default positions\nafforded by law. This includes UM/UIM coverage generally, specifically to be stacked as\nto each of her insured vehicles.\n\nIII. CONCLUSION\n\n{16} We hold that the district court was correct as a matter of law and affirm its grant of\nsummary judgment to Plaintiff and remand for resumption of proceedings in accordance with\nour ruling today.\n\n{17} IT IS SO ORDERED.\n\n ____________________________________\n RODERICK T. KENNEDY, Chief Judge\n\nWE CONCUR:\n\n____________________________________\nJONATHAN B. SUTIN, Judge\n\n____________________________________\n\n 6\n\fJ. MILES HANISEE, Judge\n\n\n\n\n 7\n\f", "ocr": false, "opinion_id": 2645723 } ]

[ "542 F. App'x 603" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/10/17/12-35216.pdf", "author_id": null, "opinion_text": " FILED\n NOT FOR PUBLICATION OCT 17 2013\n\n MOLLY C. DWYER, CLERK\n UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS\n\n\n\n FOR THE NINTH CIRCUIT\n\n\nBI RONG LI, No. 12-35216\n\n Plaintiff - Appellant, D.C. No. 2:11-cv-00150-RSM\n\n v.\n MEMORANDUM*\nERIC H. HOLDER, Jr., Attorney General;\nJENNY ANNE DURKAN, U.S.Attorney\nfor the Western District of Washington;\nRONALD C MACHEN, U.S. Attorney for\nthe District of Columbia,\n\n Defendants - Appellees.\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Ricardo S. Martinez, District Judge, Presiding\n\n Submitted October 8, 2013**\n Seattle, Washington\n\nBefore: TASHIMA, GRABER, and MURGUIA, Circuit Judges.\n\n\n\n\n *\n This disposition is not appropriate for publication and is not precedent\nexcept as provided by 9th Cir. R. 36-3.\n **\n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\f Bi Rong Li petitioned for judicial review of an order upholding the denial of\n\nher application for a U nonimmigrant visa. The district court granted the\n\ndefendants’ cross-motion for summary judgment, concluding that Li’s failure to\n\nsubmit a Form I-918, Supplement B certification with her visa application made\n\nher ineligible for the visa. Li appeals, and we review de novo the district court’s\n\nruling on the parties’ cross-motions for summary judgment. Guatay Christian\n\nFellowship v. Cnty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011), cert. denied,\n\n133 S. Ct. 423 (2012). We affirm.\n\n On review and on appeal, Li concedes that she did not file a Form I-918,\n\nSupplement B certification. She argues, however, that the form should not have\n\nbeen required because the Supplement B requirement is contrary to Congress’s\n\nintent in enacting the Victims of Trafficking and Violence Protection Act of 2000\n\n(“VTVPA”), under which the U nonimmigrant visa classification was established.\n\nSpecifically, she asserts that the “broad and liberal” wording of the VTVPA,\n\nwhich, among other things, requires that the applicant must have “been helpful, is\n\nbeing helpful, or is likely to be helpful to [law enforcement or local authorities]\n\ninvestigating or prosecuting [qualifying] criminal activity,” 8 U.S.C. §\n\n1101(a)(15)(U)(i)(III), makes the certification requirement contrary to the\n\nVTVPA’s text and purpose. Alternatively, Li argues that even though she did not\n\n\n 2\n\fsubmit the certification, she nonetheless complied with the statutory requirement\n\nbecause simply by submitting her U visa application she was putting the\n\ngovernment on notice of qualifying criminal conduct and therefore was “being\n\nhelpful” to law enforcement in a future investigation.\n\n Li’s arguments ignore the unambiguous text of 8 U.S.C. § 1184(p)(1), which\n\nsets forth an additional requirement for U nonimmigrant visa applications. That\n\nsubsection states that the application “shall contain a certification from [law\n\nenforcement or local authorities] investigating [the qualifying] criminal activity.”\n\nId. (emphasis added). In light of that text, which makes clear that some form of\n\ncertification is required, we reject Li’s argument that the Supplement B\n\nrequirement is contrary to Congress’s intent. See Perlman v. Catapult Entm’t, Inc.\n\n(In re Catapult Entm’t, Inc.), 165 F.3d 747, 753-54 (9th Cir. 1999) (citing Davis v.\n\nMich. Dep’t of Treasury, 489 U.S. 803, 808 n.3 (1989)) (noting that the Court need\n\nnot turn to other evidence of Congress’s intent when the statute’s text is\n\nunambiguous). We likewise reject Li’s alternative argument, because it assumes\n\nthat no certification is required by law.\n\n AFFIRMED.\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 1085722 } ]

[ "2013 Ohio 3103" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 18, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2013/2013-ohio-3103.pdf", "author_id": null, "opinion_text": "[Cite as Dicken v. Statutory Agent for Allstate Ins. Co., 2013-Ohio-3103.]\n\n\n COURT OF APPEALS\n FAIRFIELD COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n JUDGES:\nELLEN C. DICKEN : Hon. W. Scott Gwin, P.J.\n : Hon. William B. Hoffman, J.\n Plaintiff-Appellant : Hon. Sheila G. Farmer, J.\n :\n-vs- :\n : Case No. 12-CA-127\nSTATUTORY AGENT FOR :\nALLSTATE INSURANCE CO., ET AL :\n : OPINION\n Defendants-Appellees\n\n\n\n\nCHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court\n of Common Pleas, Case No. 2010 CV\n 01400\n\nJUDGMENT: Affirmed\n\nDATE OF JUDGMENT ENTRY: July 12, 2013\n\nAPPEARANCES:\n\nFor Plaintiff-Appellant For Defendants-Appellees\n\nDANIEL FRUTH RICK MARSH\nCHARLES M. ELSEA Lane, Alton & Horst, LLC\n109 N. Broad Street, Suite 200 Two Miranova Place, Suite 500\nBox 130 Columbus, OH 43215\nLancaster, OH 43130-0130\n\f[Cite as Dicken v. Statutory Agent for Allstate Ins. Co., 2013-Ohio-3103.]\n\n\nGwin, P.J.\n\n {¶1} Appellant appeals the August 31, 2011 judgment entry of the Fairfield\n\nCounty Common Pleas Court denying her motion for summary judgment and the\n\nOctober 25, 2012 judgment entry finding appellee was not in breach of contract and\n\nfinding for appellee on an estoppel claim.\n\n Facts & Procedural History\n\n {¶2} In May of 2005, appellant Ellen Dicken f.k.a. Hamilton and her husband\n\nRick, who subsequently passed away in 2008, procured a homeowner’s insurance\n\npolicy with appellee Allstate Insurance Company (“Allstate”) through her local agent\n\nRutter Insurance Company. The policy had an initial period of May 5, 2005 to May 5,\n\n2006. The named insured on the policy was listed as Rick Hamilton and the location of\n\nthe property was listed as 8060 State Route 312, Logan, Ohio. AMC Mortgage\n\nServices, Inc. (“AMC Mortgage”) was listed as the mortgagee on the insurance policy.\n\nAppellant testified she paid the insurance on a monthly basis and paid the monthly\n\npremium in person either by cash or check. When she would bring the payment in each\n\nmonth, an employee at the local agency would write her a handwritten receipt.\n\nAppellant testified she had previously been late on her insurance payments, but always\n\npaid the bill within the grace period when she received the cancellation notice stating it\n\nhad to be paid by a certain date.\n\n {¶3} Appellant’s payment for her October 2006 coverage on the homeowner’s\n\ninsurance policy was due on September 5, 2006. On September 15, 2006, appellee\n\nissued appellant a Homeowner’s Policy Cancellation Notice. The notice stated, in\n\npertinent part, “If you want your insurance to continue and do not want it to cancel,\n\fFairfield County, Case No. 12-CA-127 3\n\n\nplease make sure we receive the Minimum Amount Due by the end of the day\n\n(midnight) on October 4, 2006 or your policy will cancel at 12:01 a.m. Standard Time on\n\nOctober 5, 2006.” The minimum amount due was stated at $107.93 and the “pay in full”\n\namount was $407.13 to pay the full balance due on the May 5, 2006 to May 5, 2007\n\npolicy period. Appellant testified she never received the notice of cancellation, though\n\nshe had no problems getting her mail and the notice was addressed correctly.\n\nAppellant stated she received all correspondence from appellee except for the\n\nSeptember 15, 2006 notice of cancellation. Kathy Collard (“Collard”), a senior field\n\nsupport representative for Allstate and an Allstate employee for thirty-five years,\n\nreviewed the records in appellee’s account to determine if the notice of cancellation had\n\nbeen returned to Allstate. The notice had not been returned to them.\n\n {¶4} On October 12, 2006, appellant’s home and personal belongings were\n\ndestroyed in an accidental fire caused by an unattended kerosene heater. Appellant\n\ntestified she knew she had made the September 2006 homeowner’s insurance\n\npayment. Appellant stated she called appellee’s claims reporting number the night of\n\nthe fire and that she called her local insurance agent, Marla Rutter (“Mrs. Rutter”), the\n\nmorning of October 13, 2006. Mrs. Rutter disputes appellant called her the morning of\n\nOctober 13th and indicates the first she knew of the fire was when appellant showed up\n\nat her office the day after the fire and attempted to make the overdue premium\n\npayment. Mrs. Rutter testified when she attempted to put the payment into the system,\n\nshe noticed it was an overdue payment and the policy had canceled. Mrs. Rutter stated\n\nafter she attempted to put the payment into the system, appellant informed her about\n\nthe fire and asked her for the Allstate claims reporting phone number. Mrs. Rutter told\n\fFairfield County, Case No. 12-CA-127 4\n\n\nappellant she would have to check with the district manager to see if she could accept\n\nthe late payment. Appellee told Mrs. Rutter to refuse to accept the late payment. Mrs.\n\nRutter testified she later mailed the check to appellant after appellant refused to take it\n\nback on October 13th and that she did not give appellant a receipt on October 13th.\n\nAppellant testified Mrs. Rutter accepted the check and gave her a handwritten receipt\n\nfor the check. Appellant again attempted to pay the premium on October 26, 2006, but\n\nMrs. Rutter refused the check.\n\n {¶5} Collard testified it is appellee’s policy to allow a lienholder to protect their\n\ninterest in the property by giving them a window of opportunity to pay the premium so\n\nthe lienholder’s interest is protected even after the policy is canceled as to the\n\nhomeowner. Accordingly, on October 10, 2006, appellee issued a Homeowner’s Policy\n\nCancellation Notice to the lienholder on appellee’s home, AMC Mortgage. The notice\n\nstated, in pertinent part, “If you want your insurance to continue and do not want it to\n\ncancel, please make sure we receive the Minimum Amount Due by the end of the day\n\n(midnight) on October 29, 2006 or your policy will cancel at 12:01 a.m. Standard Time\n\non October 30, 2006.” Again the minimum payment was stated at $107.93 and with a\n\n“pay in full” amount of $407.13. AMC Mortgage made a payment to appellee on\n\nOctober 26, 2006 in the amount of $407.13. Collard testified the mortgage holder has\n\nan interest in the property to the extent of the mortgage only. She further stated that, at\n\nthe time of the fire, appellee’s policy was not in effect as to appellant because it had\n\nlapsed on October 5, 2006.\n\n {¶6} Appellee issued a Reinstatement Notice on October 31, 2006 to AMC\n\nMortgage with a copy to appellant that stated:\n\fFairfield County, Case No. 12-CA-127 5\n\n\n “Your policy was cancelled effective at 12:01 a.m. Standard Time\n\n on October 5, 2006. Your policy was reinstated at 12:01 a.m.\n\n Standard Time on October 30, 2006. A payment was credited to\n\n your policy in the amount of $407.13. If this payment was by\n\n check, draft, or other remittance which is not honored upon\n\n presentation to your financial institution, this notice is void, and your\n\n policy cancelled as of 12:01 a.m. Standard Time on October 5,\n\n 2006.”\n\n {¶7} Jimmy Rutter (“Mr. Rutter”), the local insurance agent, testified about the\n\nprinciple of insurable interest and stated for there to be an insurable interest, a home\n\nhas to actually exist. In this case, once the home burned down, there was nothing left\n\nof the structure to insure after October 12, 2006. Mr. Rutter went through all the receipt\n\nbooks in the office after the fire and determined appellant had not paid the premium due\n\nSeptember 5, 2006.\n\n {¶8} Appellant proffered a claim to appellee and appellee refused the claim.\n\nAMC Mortgage did not make a claim under appellee’s policy. Appellant testified that\n\nafter the fire, SafeCo. Insurance Company notified her there was a blanket insurance\n\npolicy on the loan that would pay off the property. Appellant learned that AMC\n\nMortgage took out their own policy on appellant’s property and this policy, held by\n\nSafeCo., paid off appellant’s mortgage of $78,000. In addition, SafeCo. issued\n\nappellant a check for $38,000. On November 15, 2006, appellee refunded to appellant\n\nthe amount of $39.00, an amount Collard testified was a lapsed credit which\n\fFairfield County, Case No. 12-CA-127 6\n\n\nrepresented the portion of the premium when the policy lapsed from October 5, 2006 to\n\nOctober 30, 2006.\n\n {¶9} Appellant filed a complaint on November 5, 2010 against appellee alleging\n\nbreach of contract, declaratory judgment, promissory estoppel, and bad faith. Appellant\n\nalleged appellee insured her losses related to the fire per hazard insurance contract.\n\nAppellee maintained it did not owe coverage to appellant because she did not pay her\n\npremium and her policy was canceled as to her interest at the time of the fire. Both\n\nappellant and appellee filed motions for summary judgment. The trial court denied both\n\nappellant and appellee’s motions for summary judgment. Appellee’s motion to bifurcate\n\nthe claims of bad faith and punitive damages was granted by the trial court. A trial to\n\nthe court was held on January 24, 2012. On March 31, 2012, the trial court issued a\n\njudgment entry finding in favor of appellee, concluding the insurance policy was not in\n\neffect at the time of the fire and thus appellee was not in breach of contract. After this\n\ncourt dismissed appellant’s first appeal because the entries at issue were not final\n\nappealable orders, the trial court issued a judgment entry on October 25, 2012,\n\ndisposing of all claims and finding that appellee was entitled to judgment in its favor on\n\nthe claim of breach of contract, bad faith, the declaratory judgment action, and estoppel.\n\n {¶10} Appellant appeals the August 31, 2011 entry denying her motion for\n\nsummary judgment and the October 25, 2012 judgment entry finding appellee was not\n\nin breach of contract and finding for appellee on her estoppel claim. She raises the\n\nfollowing assignments of error on appeal:\n\fFairfield County, Case No. 12-CA-127 7\n\n\n {¶11} “I.THE TRIAL COURT ERRED AS A MATTER OF LAW, IN DENYING\n\nPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, VIA ITS JUDGMENT ENTRY\n\nFILED AUGUST 31, 2011.\n\n {¶12} “II. THE TRIAL COURT ERRED BY GRANTING JUDGMENT IN FAVOR\n\nOF DEFENDANT/APPELLEE ALLSTATE INSURANCE CO. AND AGAINST\n\nPLAINTIFF/APPELLANT, ELLEN C. DICKEN VIA ITS JUDGMENT ENTRY FILED\n\nOCTOBER 25, 2012 ON HER CLAIM FOR BREACH OF CONTRACT.\n\n {¶13} “III. THE TRIAL COURT ERRED BY GRANTING JUDGMENT IN FAVOR\n\nOF DEFENDANT/APPELLEE ALLSTATE INSURANCE CO. AND AGAINST\n\nPLAINTIFF/APPELLANT ELLEN C. DICKEN VIA ITS JUDGMENT ENTRY FILED\n\nOCTOBER 25, 2012 ON HER CLAIM FOR PROMISSORY ESTOPPEL.”\n\n I.\n\n {¶14} Civ.R. 56 states, in pertinent part:\n\n “Summary judgment shall be rendered forthwith if the pleadings,\n\n depositions, answers to interrogatories, written admissions, affidavits,\n\n transcripts of evidence, and written stipulations of fact, if any, timely filed\n\n in the action, show that there is no genuine issue of material fact and that\n\n the moving party is entitled to judgment as a matter of law. No evidence or\n\n stipulation may be considered except as stated in this rule. A summary\n\n judgment shall not be rendered unless it appears from the evidence or\n\n stipulation, and only from the evidence or stipulation, that reasonable\n\n minds can come to but one conclusion and that conclusion is adverse to\n\n the party against whom the motion for summary judgment is made, that\n\fFairfield County, Case No. 12-CA-127 8\n\n\n party being entitled to have the evidence or stipulation construed mostly\n\n strongly in the party’s favor. A summary judgment, interlocutory in\n\n character, may be rendered on the issue of liability alone although there is\n\n a genuine issue as to the amount of damages.”\n\n {¶15} A trial court should not enter a summary judgment if it appears a material\n\nfact is genuinely disputed, nor if, construing the allegations most favorably towards the\n\nnon-moving party, reasonable minds could draw different conclusions from the\n\nundisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311\n\n(1981). The court may not resolve any ambiguities in the evidence presented. Inland\n\nRefuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474\n\nN.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the\n\napplicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,\n\n733 N.E.2d 1186 (6th Dist. 1999).\n\n {¶16} When reviewing a trial court’s decision to grant summary judgment, an\n\nappellate court applies the same standard used by the trial court. Smiddy v. The\n\nWedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review\n\nthe matter de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d\n\n1243.\n\n {¶17} The party moving for summary judgment bears the initial burden of\n\ninforming the trial court of the basis of the motion and identifying the portions of the\n\nrecord which demonstrates absence of a genuine issue of fact on a material element of\n\nthe non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264\n\n(1996). Once the moving party meets its initial burden, the burden shifts to the non-\n\fFairfield County, Case No. 12-CA-127 9\n\n\nmoving party to set forth specific facts demonstrating a genuine issue of material fact\n\ndoes exist. Id. The non-moving party may not rest upon the allegations and denials in\n\nthe pleadings, but instead must submit some evidentiary materials showing a genuine\n\ndispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791\n\n(12th Dist. 1991).\n\n {¶18} Appellant argues the trial court erred in denying her motion for summary\n\njudgment. We disagree. Appellant contends it was an “undisputed fact” that the policy\n\nwas paid in full by appellant and accepted in full by appellee. However, when the trial\n\ncourt denied the motion for summary judgment, several disputed facts existed\n\nsurrounding the payment and potential lapse of the policy. For example, while appellant\n\ntestified in her deposition that the policy didn’t lapse, Mrs. Rutter testified in her\n\ndeposition the policy did lapse for the period between the cancellation date and the\n\npayment by AMC. In addition, appellant testified in her deposition she did not receive\n\nthe cancellation notice and had in fact paid the premium while Mrs. Rutter stated in her\n\ndeposition appellant had not paid the premium due September 5th. Accordingly,\n\ngenuine issues of material fact were disputed and summary judgment on behalf of\n\nappellant was not warranted pursuant to Civil Rule 56.\n\n {¶19} Further, a majority of the arguments advanced by appellant in support of\n\nher argument that the trial court erred in denying her motion for summary judgment\n\nrelated to the trial testimony of Collard and appellant. However, this testimony was not\n\nRule 56 evidence before the trial court at the time the trial court ruled on the motions for\n\nsummary judgment and thus the trial court did not err in not considering this testimony\n\nat the time it ruled on the motions for summary judgment.\n\fFairfield County, Case No. 12-CA-127 10\n\n\n {¶20} Appellant’s first assignment of error is overruled.\n\n II.\n\n {¶21} The trial court conducted a bench trial in this case. As an appellate court,\n\nwe are not fact finders; we neither weigh the evidence nor the credibility of witnesses.\n\nOur role is to determine whether there is relevant, competent, and credible evidence\n\nupon which the fact finder could base his or her judgment. Peterson v. Peterson, 5th\n\nDist. No. CT2003-0049, 2004-Ohio-4714, citing Cross Truck v. Jeffries, 5th Dist. No.\n\nCA-5758, 1982 WL 2911 (Feb. 10, 1982). Questions of law are reviewed de novo. Erie\n\nIns. Co. v. Paradise, 5th Dist. No. 2008CA00084, 2009-Ohio-4005, ¶ 12.\n\n {¶22} Appellant argues the trial court erred in finding appellee did not breach its\n\ninsurance contract with appellant. We disagree.\n\n {¶23} Pursuant to the terms of the policy, appellee had a right to cancel the\n\npolicy for non-payment by mailing a Notice of Cancellation to appellant at her mailing\n\naddress (“Our mailing the notice of cancellation to you will be deemed proof of notice”)\n\nand appellee was required to give appellant ten (10) days notice before canceling the\n\npolicy pursuant to the language in the policy stating if cancellation is for “non-payment\n\nof premium, we will give you at least ten (10) days notice.”\n\n {¶24} Despite appellant’s assertion that she never received the notice of\n\ncancellation and made her September 2006 payment, the trial court found appellant did\n\nnot make the payment due in September of 2006 and that a notice of cancellation was\n\nsent out by appellee canceling appellant’s policy for non-payment of premium as of\n\nOctober 5, 2006. Based on appellant’s testimony that she received all correspondence\n\nfrom appellee except the notice of cancellation, Collard’s testimony that appellee’s\n\fFairfield County, Case No. 12-CA-127 11\n\n\nrecords did not show any mail returned to them for non-delivery, Collard’s testimony that\n\nappellee’s records did not show a payment for September of 2006, Mrs. Rutter’s\n\ntestimony that the September 2006 premium was not paid when appellant came into her\n\noffice on October 13, 2006, and Mr. Rutter’s testimony that he went through the receipt\n\nbooks and could find no record of appellant’s September 2006 payment, we find there is\n\nrelevant, competent, and credible evidence to support the trial court’s finding that\n\nappellant did not pay the September 2006 premium and that appellee sent appellant a\n\nnotice of cancellation on September 15, 2006.\n\n {¶25} The notice of cancellation clearly states the policy would be canceled at\n\n12:01 a.m. Standard Time on October 5, 2006 if appellee did not receive a minimum\n\npayment of $107.33 by this date. Appellee did not receive the minimum payment by\n\nOctober 5, 2006. Thus, pursuant to the cancellation provision in the policy, the policy\n\nwas canceled on October 5, 2006 and was not in effect as to any interest of appellant\n\non October 12, 2006, the date of the fire. Further, appellant’s attempts to tender the\n\nminimum payment after the October 12, 2006 date do not provide coverage for the loss\n\nas the policy specifically states in the Conditional Reinstatement portion:\n\n “If we mail a cancellation notice because you did not pay the required\n\n premium when due and you then tender payment by check, draft, or other\n\n remittance which is not honored upon presentation, your policy will\n\n terminate on the date and time shown on the cancellation notice and any\n\n notice we issue which waives the cancellation or reinstates coverage is\n\n void. This means Allstate will not be liable under this policy for claims or\n\n damages after the date and time indicated on the cancellation notice.”\n\fFairfield County, Case No. 12-CA-127 12\n\n\n {¶26} Appellant asserts the October 26, 2006 payment by AMC Mortgage to\n\nappellee of the full policy premium of $407.13 kept the policy in effect on the date of the\n\nfire as to both AMC Mortgage and appellant.\n\n {¶27} “It is well established that to recover under an insurance policy for fire loss\n\nto property, an insured must have an insurable interest in the property at the time of the\n\nloss.” Patteron-Leitch Co. v. Ins. Co. of North Am., 366 F.Supp. 749, 752 (N.D. Ohio\n\n1973), citing Stauder v. Assoc. Gen. Fire Co., 105 Ohio App. 105, 151 N.E.2d 583 (9th\n\nDist. 1957). An insurable interest in property arises when a person “would profit by or\n\ngain some advantage by its continued existence and suffer some loss or disadvantage\n\nby its destruction.” Auto-Owners Mut. Ins. Co. v. Mohammed, 195 Ohio App.3d 224 at ¶\n\n42, 2011-Ohio-4009, 959 N.E.2d 568 (2d Dist. 2011). If one does not have an insurable\n\ninterest in the subject matter of the insurance, the policy is void. Phillips v. Cincinnati\n\nIns. Co., 60 Ohio St.2d 180, 181, 398 N.E.2d 564.\n\n {¶28} Per appellee’s standard procedure, they issued a notice of cancellation to\n\nAMC Mortgage on October 10, 2006, prior to the fire, stating if they wanted the\n\ninsurance to continue, the minimum amount was due by midnight on October 29, 2006,\n\nor the policy would cancel. AMC Mortgage made the payment on October 26 in an\n\nattempt to keep the coverage in effect to protect their interest in the property, i.e. their\n\nmortgage. The reinstatement notice by appellee states the policy was “cancelled\n\neffective at 12:01 a.m. Standard Time on October 5, 2006 and reinstated on October\n\n30, 2006.” The Ohio Supreme Court has stated that “when an insurance policy provides\n\nthat acceptance of a delinquent payment will reinstate the policy, the acceptance of the\n\nlate payment does not revive the original policy. State Farm Mut. Auto Ins. Co. v. Ingle,\n\fFairfield County, Case No. 12-CA-127 13\n\n\n180 Ohio App.3d 201 at 207. Thus, the policy was canceled October 5, 2006 and was\n\nnot in effect at the time of the fire on October 12, 2006.\n\n {¶29} Further, at the time AMC Mortgage made the payment on October 26,\n\n2006 and the policy was reinstated on October 30, 2006, AMC Mortgage was divested\n\nof any pecuniary interest in the property because the fire destroyed the home on\n\nOctober 12, 2006. Since the home was destroyed by the fire, AMC Mortgage would\n\nnot, on October 26 or October 30, profit or gain some advantage by its continued\n\nexistence and would not suffer any loss by the property’s destruction because there was\n\nnothing left of the structure to insure after October 12, 2006. For AMC Mortgage to\n\nhave an insurable interest on the date of payment or reinstatement, the home would\n\nhave had to physically exist. Accordingly, any insurable interest AMC Mortgage had in\n\nthe home was extinguished at the time of the fire and appellant cannot, through their\n\npayment, recover under insurance policy because “if one does not have an insurable\n\ninterest in the subject matter of the insurance, the policy is void.” Phillips v. Cincinnati\n\nIns. Co., 60 Ohio St.20 180, 181, 398 N.E.2d 564.\n\n {¶30} We find the insurance policy was not in effect as to any interest of\n\nappellant on October 12, 2006. Further AMC Mortgage’s attempt to reinstate the policy\n\nwas void because they had no insurable interest at the time they tendered payment.\n\nAccordingly, appellee did not breach its contract and the trial court did not err in\n\nrendering judgment for appellee on appellant’s breach of contract claim. Appellant’s\n\nsecond assignment of error is overruled.\n\fFairfield County, Case No. 12-CA-127 14\n\n\n III.\n\n {¶31} Appellant argues the trial court erred in finding for appellee on appellant’s\n\nclaim for promissory estoppel and wavier because appellee induced, accepted, and\n\ncredited payment in full on appellant’s policy from AMC Mortgage with knowledge of the\n\nloss. We disagree.\n\n {¶32} Promissory estoppel is an equitable doctrine for preventing the harm\n\nresulting from reasonable reliance upon false representations. GGJ, Inc. v. Tuscarawas\n\nCty. Bd. of Commrs., 5th Dist. No. 2005AP070047, 2006-Ohio-2527, citing Karnes v.\n\nDoctors Hosp., 51 Ohio St.3d 139, 142, 555 N.E.2d 280 (1990). The party asserting\n\npromissory estoppel bears the burden of proving, by clear and convincing evidence, all\n\nof the elements of the claim. In re Estate of Popov, 4th Dist. No. 02CA26, 2003-Ohio-\n\n4556. The elements necessary to establish a claim for estoppel are: (1) a promise clear\n\nand unambiguous in its terms; (2) reliance by the party to whom the promise is made;\n\n(3) the reliance must be reasonable and foreseeable; and (4) the party claiming\n\nestoppel must be injured by the reliance. Schepflin v. Sprint-United Telephone of Ohio,\n\n5th Dist. No. 96-CA-62-2, 1997 WL 1102026 (April 29, 1997), citing Stull v. Combustion\n\nEng.,Inc., 72 Ohio App.3d 553, 557, 595 N.E.2d 504 (3d Dist. 1991).\n\n {¶33} Acceptance of late premiums by the insurer may constitute waiver.\n\nStarcher v. Reserve Ins. Co., 68 Ohio App.2d 176, 428 N.E.2d 461, citing Ohio Farmers\n\nIns. Co. v. Wilson, 70 Ohio St. 354, 359, 72 N.E. 715 (1904). Waiver is the voluntary\n\nand intentional relinquishment of a known right, claim, or privilege. State Farm Mut.\n\nAuto Ins. v. Ingle, 68 Ohio App.2d 176 at 179-180. However, “acceptance of a late\n\npayment after loss does not, by itself, result in waiver. Rather, the conduct of the\n\fFairfield County, Case No. 12-CA-127 15\n\n\ninsurer must indicate that it intended to waive the lateness of the payment. Such\n\nconduct might include retention of the portion of the premium for the period of time that\n\nthe policy had been cancelled.” State Farm Mut. Auto Ins. v. Ingle, 180 Ohio App.3d\n\n201 at 208.\n\n {¶34} Appellant argues appellee induced AMC Mortgage and/or appellant to pay\n\nthe balance of the policy premium for their promise to continue coverage with the\n\nnotices of cancellation sent to appellant and AMC Mortgage. Both notices of\n\ncancellation were sent prior to the fire of October 12, 2006. Further, appellant did not\n\nattempt to tender payment on either the balance or the minimum payment until after the\n\npolicy expired on October 5, 2006. Therefore, appellee did not induce appellant into\n\npaying the balance of the premium and no promise of continued coverage after October\n\n5, 2006 was made to appellant. In fact, appellee refunded to appellant the $39.00\n\namount of the overdue premium that would have been used to cover the time period\n\nwhen the policy had been canceled and the balance paid by AMC Mortgage was not\n\napplied retroactively to avoid a gap in coverage.\n\n {¶35} The entity that actually paid the balance of the premium was AMC\n\nMortgage. AMC Mortgage is not a plaintiff in this case and makes no argument that\n\nappellee is estopped from denying them payment on the policy or that appellee waived\n\nthe late payment by accepting their October 26th payment.\n\n {¶36} Accordingly, the trial court did not err in granting judgment for appellee on\n\nappellant’s claim for promissory estoppel. Appellant’s third assignment of error is\n\noverruled.\n\fFairfield County, Case No. 12-CA-127 16\n\n\n {¶37} Based on the foregoing, Appellants Assignments of Error I, II, and III are\n\noverruled and the judgment of the Fairfield County Court of Common Pleas is affirmed.\n\n\n\nBy Gwin, P.J., and\n\nFarmer, J., concur;\n\nHoffman, J., concurs separately\n\n _________________________________\n HON. W. SCOTT GWIN\n\n\n _________________________________\n HON. WILLIAM B. HOFFMAN\n\n\n _________________________________\n HON. SHEILA G. FARMER\n\n\n\n\nWSG:clw 0613\n\fFairfield County, Case No. 12-CA-127 17\n\n\nHoffman, J., concurring\n\n {¶38} I concur in the majority’s analysis and disposition of Appellant’s first and\n\nthird assignments of error.1\n\n {¶39} I further concur in the majority’s disposition of Appellants second\n\nassignment of error. My only disagreement is with the majority’s conclusion AMC\n\nMortgage did not have an insurable interest in the property on the date of payment.\n\n {¶40} At the time Appellee sent AMC Mortgage the Mortgage Notice of\n\nCancellation, the fire had not yet occurred. That notice provided coverage would\n\n“continue”, as opposed to being reinstated, if payment was received before October 30,\n\n2006, I find the intervening fire does not operate to divest AMC Mortgage of an\n\ninsurable interest because its subsequent payment caused the policy to continue in\n\neffect, rather than lapse and then become reinstated.\n\n {¶41} Nonetheless, I concur in the decision to overrule Appellant’s second\n\nassignment of error because the notice to AMC Mortgage does not inure to the benefit\n\nof Appellant. The fact the insured receive a copy of the notice sent to AMC Mortgage\n\ndoes not continue his policy covering the property, which the majority finds terminated\n\non October 5, 2006.\n\n\n\n ________________________________\n HON. WILLIAM B. HOFFMAN\n\n\n\n\n1\n My only disagreement, with the majority’s discussion of the first assignment of error is\nits statement the parties disagreement as to whether the policy lapsed is an example of\na disputed fact. I find the example represents a dispute of law, not a dispute of fact, and\ndoes not prevent summary judgment on that limited basis.\n\f[Cite as Dicken v. Statutory Agent for Allstate Ins. Co., 2013-Ohio-3103.]\n\n\n IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO\n\n FIFTH APPELLATE DISTRICT\n\n\nELLEN C. DICKEN :\n :\n Plaintiff-Appellant :\n :\n :\n-vs- : JUDGMENT ENTRY\n :\nSTATUTORY AGENT FOR :\nALLSTATE INSURANCE CO., ET AL :\n :\n :\n Defendants-Appellees : CASE NO. 12-CA-127\n\n\n\n\n For the reasons stated in our accompanying Memorandum-Opinion, the judgment of\n\nthe Fairfield County Court of Common Pleas is affirmed. Costs to appellant.\n\n\n\n\n _________________________________\n HON. W. SCOTT GWIN\n\n\n _________________________________\n HON. WILLIAM B. HOFFMAN\n\n\n _________________________________\n HON. SHEILA G. FARMER\n\f", "ocr": false, "opinion_id": 2698714 } ]

[ "795 F.2d 1008" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/795/795.F2d.1008.85-4685.html", "author_id": null, "opinion_text": "795 F.2d 1008\n U.S.v.Stevens\n 85-4685\n United States Court of Appeals,Fifth Circuit.\n 7/23/86\n \n 1\n W.D.La.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 473237 } ]

[ "763 F.2d 507" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/763/763.F2d.507.84-5121.85-5007.85-5005.794.html", "author_id": null, "opinion_text": "763 F.2d 507\n 2 Fed.R.Serv.3d 396, Bankr. L. Rep. P 70,560\n In re COSMOPOLITAN AVIATION CORP., Debtor.COSMOPOLITAN AVIATION CORP., Debtor-Appellant,Flushing Savings Bank, Intervenor, Appellee Cross-Appellant,v.NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Appellee,Appellant Cross-Appellee.\n No. 794, Dockets 84-5121, 85-5005 and 85-5007.\n United States Court of Appeals,Second Circuit.\n Argued Jan. 23, 1985.Decided May 24, 1985.\n \n Bruce O. Karp, New York City (Abraham Backenroth, Harvis & Zeichner, New York City, of counsel), for appellant Cosmopolitan Aviation Corp.\n Julian Kaplan, Mineola, N.Y. (Jessel Rothman, Lisa J. Rinaldi, Mineola, N.Y., of counsel), for intervenor Flushing Sav. Bank.\n Barrie L. Goldstein, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., Richard G. Liskov, Asst. Atty. Gen., State of N.Y., New York City, of counsel), for appellee New York State Dept. of Transp.\n Before VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.\n MESKILL, Circuit Judge:\n Cosmopolitan Aviation Corporation (Cosmopolitan) and Flushing Savings Bank (Flushing) appeal from an order entered in the United States District Court for the Eastern District of New York, Mishler, J., which affirmed an order of the United States Bankruptcy Court for the Eastern District of New York, Parente, J., directing Cosmopolitan to turn over possession of certain premises at Republic Airport in Farmingdale, New York to the New York State Department of Transportation (State). The State appeals from an order entered in the United States District Court for the Eastern District of New York, Altimari, J., which extended the time, pursuant to Fed.R.App.P. 4(a)(5), for Flushing to file a notice of appeal from Judge Mishler's order.\n \n \n 1\n We hold that Cosmopolitan is without standing to appeal the bankruptcy court order. We also hold that the trial judge abused his discretion in granting Flushing an extension and, therefore, that Flushing failed to file a timely notice of appeal. Accordingly, we reverse the order granting Flushing an extension and we dismiss this appeal as to both Cosmopolitan and Flushing. Furthermore, the frivolous and vexatious character of the appeal brought by Cosmopolitan and Flushing warrants the imposition of sanctions in the form of double costs and attorneys' fees against them as well as against their attorneys. We intend the award of fees in favor of the State to be in the nature of compensatory damages. Therefore, we remand this action to the district court and instruct that court to ascertain the amount of the State's reasonable attorneys' fees and to assess that amount jointly and severally against Flushing and its attorneys and jointly and severally against Cosmopolitan and its attorneys to compensate the State for the cost of defending against this action in the federal courts.\n \n BACKGROUND\n \n 2\n This case began as a simple dispute between the State as landlord, and its tenant, Cosmopolitan.1 It has, however, been inordinately complicated by the combined machinations of Cosmopolitan and Flushing. The dispute and the legal issues raised do not warrant the space necessary to convey adequately the truly remarkable bad faith evidenced by Cosmopolitan and Flushing throughout this litigation. During the course of these proceedings, Cosmopolitan, Flushing and their attorneys have continually mischaracterized facts, prior proceedings and the law. It has been no mean task to pick through the voluminous record only to find that the State's presentation has been essentially and consistently unbiased and balanced, in complete contrast to the actions of Cosmopolitan and Flushing.\n \n \n 3\n In October 1975, Cosmopolitan entered into a lease under which it took possession of approximately forty acres at Republic Airport, a general aviation facility in Farmingdale owned by the State. The lease was for a term of fifteen years, from October 1975 to October 1990, with an option to renew for ten years. In addition to requiring monthly payment of a base rent and a percentage of revenue, the lease obligated Cosmopolitan, inter alia, to construct a hangar within a specified time limit and in accordance with plans approved in advance by the State, to request and receive written approval prior to conducting air taxi or charter operations, to keep and maintain accurate books and records of its operations at the airport and to make those books and records as well as certified financial statements, exerternal audits and income tax returns available to the State.\n \n \n 4\n The lease also provided that if Cosmopolitan were to continue in default of any or all of its obligations for thirty days after written notice of default from the lessor, the State could terminate the agreement on five days written notice. In the event of such termination, the lessor was obligated to pay to Cosmopolitan, after deducting all amounts due to the State as lessor, an amount equal to the cost of improvements made by the lessee in accordance with the terms and conditions of the lease (the buy-back provision).\n \n \n 5\n In or about September 1976, the State consented in writing to Cosmopolitan's mortgage and assignment of its interest in the lease to Flushing. The consent outlined the conditions Flushing would have to satisfy before it would be entitled to take possession of the premises: it would have to cure any defaults; it would have to do so within the period permitted under the lease, i.e., within thirty days following notice of default, and it would have to obtain the consent of the State which would not unreasonably be withheld.\n \n \n 6\n In late 1977 and 1978, Cosmopolitan defaulted on all of its previously listed obligations. Attempts at informal resolution having proved unavailing, the State served on Cosmopolitan, with a copy to Flushing, a notice of default dated June 11, 1979. The defaults remained uncured. Flushing took no timely action to satisfy any of the conditions required before it could take possession of the premises. In August 1979, the State notified Cosmopolitan in writing, with a copy to Flushing, that the lease would terminate on September 5, 1979 and that Cosmopolitan should surrender the premises on that date. Cosmopolitan refused to comply. Consequently, the State instituted a summary proceeding in the state District Court of the County of Suffolk, Second District to recover possession. The State did not notify Flushing of the suit.\n \n \n 7\n Trial began in June 1981 and progressed slowly and sporadically. Nine trial days later, in August 1981, Cosmopolitan began its defense case. On August 11, 1981, Cosmopolitan filed a Chapter 11 petition in the United States Bankruptcy Court for the Eastern District of New York, which automatically stayed the state court litigation. The State moved successfully in the bankruptcy court to vacate the stay. The bankruptcy court order, however, also prohibited the State from enforcing any favorable state court judgment absent a further order from the bankruptcy court. The state court trial resumed, progressing even more slowly than before. Post-trial briefs were finally submitted in late April 1982.\n \n \n 8\n Although never formally notified, Flushing had been aware of the State's summary dispossess proceedings since at least December 1981. Flushing sought no involvement of any kind, however, until March 1982. At that time it sued the State for declaratory and monetary relief pursuant to the buy-back provision of Cosmopolitan's lease. At no time during this critical period did Flushing assert a right to possession of the premises either in this action or in the underlying possession proceeding. The State removed Flushing's action to the bankruptcy court where the suit has remained dormant.\n \n \n 9\n The state trial court handed down its decision in the summary proceeding in May 1982. Finding that Cosmopolitan had failed to cure eight material defaults under the lease--only one of which related to nonpayment of rent--the court held that the lease had terminated on September 5, 1979 and that Cosmopolitan had thereafter wrongfully remained in possession. Final judgment was entered on June 2, 1982 adjudging the State to be entitled to possession, ordering the issuance of a warrant of eviction against Cosmopolitan, its personnel and affiliates and awarding the State $176,426.44 but not precluding it from seeking any additional amounts later found to be owing.\n \n \n 10\n Armed with its unequivocal state court judgment, the State returned to the bankruptcy court on June 3, 1982 seeking to have Cosmopolitan liquidated, to have the proceeding converted from a Chapter 11 to a Chapter 7 action and to have a trustee appointed to oversee the liquidation, to conduct an audit and to restore possession to the State. By order dated June 24, the bankruptcy court appointed an operating trustee but, on Flushing's request, refused to convert the action. Flushing informed the court that it was engaged in negotiating a potential refinancing deal with Cosmopolitan.\n \n \n 11\n On or about June 12, 1982, with the trustee's approval, Cosmopolitan appealed the trial court decision to the New York Supreme Court, Appellate Term. While aware of the appeal, Flushing did not attempt to intervene during the ten month period of the appeal's pendency.\n \n \n 12\n In November 1982, the bankruptcy court sua sponte issued an order to show cause why it should not convert the Chapter 11 proceeding to a Chapter 7 proceeding or dismiss pursuant to 11 U.S.C. Sec. 1112(b) (1982). At the January 25, 1983 hearing, Cosmopolitan and the trustee argued that the bankruptcy court should not act until the appellate term decided Cosmopolitan's appeal. The bankruptcy court acquiesced but also ordered that a rehabilitation or liquidation plan be filed by March 1, 1983. The court acknowledged that the lease, if reinstated, would constitute a valuable asset. But it was becoming increasingly evident that even with the lease, Cosmopolitan would be in very dire financial straits.\n \n \n 13\n In April 1983, the appellate term affirmed the trial court judgment and Cosmopolitan appealed to the New York Supreme Court, Appellate Division. In early November 1983, the trustee informed the bankruptcy court that Cosmopolitan was unable to meet its current operating expenses, incapable of settling its pre-petition obligations and incapable of curing its defaults--even if the lease was resurrected. A full evidentiary hearing was held in the bankruptcy court on December 12, 1983, approximately two and one-half years after Cosmopolitan filed its petition and a year and one-half after the State filed its initial motion to convert. Flushing participated, appearing through one of its attorneys, and urged the court to again forestall action and to await the imminent decision of the appellate division, hinting that Flushing might be interested in putting together a plan with Cosmopolitan if the lease was reinstated.\n \n \n 14\n It became clear at the December 12 hearing, if indeed it had not been before, that Cosmopolitan had failed to seriously attempt to rehabilitate, despite a time frame that had been extended well beyond the norm. Moreover, it was obvious that, even given the opportunity, Cosmopolitan could not cure its lease defaults. Furthermore, testimony revealed a veritable web of closely related corporations as well as some plainly suspicious corporate shuffling, including the transfer of certain operations to a newly created Delaware corporation owned and controlled by Peter Garrambone, who with George Garrambone owned and controlled Cosmopolitan and its affiliates. Evasive testimony and oblique legal arguments combined to imbue the transcript with a palpable aura of bad faith.\n \n \n 15\n From the bench at the close of argument in the bankruptcy court, the court ordered that Cosmopolitan be continued as a Chapter 11 debtor, that operations cease the following day, December 13, and that the trustee take all steps necessary to liquidate the company and to marshal the assets. Considerations of time and money dictated the court's decision not to convert the proceeding to a Chapter 7. Conversion, which would have required the appointment of a new trustee, would have produced further delays and would have placed an additional drain on the estate's remaining assets.\n \n \n 16\n The judge's written order, filed December 22, 1983, reiterated the state court holding that the lease had expired on September 5, 1979 and stated that, in any event, Cosmopolitan could not cure its substantial defaults and was not reasonably likely to rehabilitate. The court ordered the estate continued for the sole purpose of liquidating its assets and not for the purpose of continuing the debtor as an operating entity. It ordered that Cosmopolitan's business operations should cease on December 13.\n \n \n 17\n The bankruptcy court's December 1983 order was never appealed. In fact it seems to have been completely ignored. When we heard oral argument in this case on January 23, 1985, Cosmopolitan was still operating at Republic Airport.\n \n \n 18\n The trustee exhibited no discernible inclination to liquidate Cosmopolitan. In late February 1984, the State applied for an order to compel the trustee to at least halt Cosmopolitan's commercial flight operations. At about the same time, the appellate division affirmed the judgment holding that the lease had expired. At the suggestion of the bankruptcy court, the State moved to completely vacate the modified stay and obtain possession. Because the motion addressed only the State's right to possession, Flushing was not served. Flushing's attorney concedes, however, that Flushing had actual notice.\n \n \n 19\n At the hearing on March 15, the court expressed its displeasure with the trustee's performance, characterized the entire proceeding as an abuse of process and made clear its intention to finally end the litigation. By an unfortunate twist of fate, the court signed Cosmopolitan's rather than the State's proposed order, vacating the stay but sending the parties back to litigate in the state courts.\n \n \n 20\n The State applied for resettlement, urging the court to order the trustee to surrender the premises directly to the State. Describing the action as \"tantamount to excessive, vexatious litigation,\" J.App. at 169, the bankruptcy court granted the State's application and, by order dated April 10, 1984, directed that possession of the premises be turned over to the State no later than April 20, 1984. The court refused to stay its order pending appeal. Flushing had actual notice of the court's determination prior to final entry of the order but it entered no objection.\n \n \n 21\n Cosmopolitan alone filed a notice of appeal from the April 10 order. Purporting to represent the interests of the trustee and Flushing as well as its own, Cosmopolitan sought a stay on the ground that it was seeking to appeal the state court decision to the New York Court of Appeals. Expressing grave misgivings as to Cosmopolitan's standing to appeal and a strong suspicion of bad faith, Judge Mishler, by order dated April 16, 1984, stayed the bankruptcy court order. Judge Mishler's order was specifically conditioned on the deposit of $100,000 on behalf of Cosmopolitan to cover post-petition rent due as well as any damages, costs and attorneys' fees that might later be \"assessed against Cosmopolitan and its attorneys pursuant to 28 U.S.C. Sec. 1927 upon a determination that Cosmopolitan has engaged in dilatory or vexatious litigation in this matter.\" J.App. at 537-38.\n \n \n 22\n On April 27, the State asked the district court to modify its order to halt the flight operations of Cosmopolitan and its affiliated companies. Reiterating its doubts about Cosmopolitan's standing, the court again expressed its uneasiness with the proceedings generally, noting that the action appeared to be a misuse of the bankruptcy court. Standing by its decision to maintain the status quo, however, the district court refused to halt the unauthorized flights. The court concluded that the State had failed to show either irreparable harm or that the balance of hardships tipped in its direction. We affirmed the May 23, 1984 ruling by unpublished order. In re Cosmopolitan Aviation Corp., 751 F.2d 368 (2d Cir.1984). Meanwhile, on May 16, the appellate division had granted Cosmopolitan leave to appeal to the New York Court of Appeals.\n \n \n 23\n Several months earlier, Flushing had begun a somewhat curious and certainly belated campaign to collaterally attack the bankruptcy court's liquidation order. In December 1983, Flushing moved in the appellate division to intervene in Cosmopolitan's appeal claiming that as an interested party its rights could be adversely affected by the June 1982 state district court judgment. The appellate division denied Flushing's application. In March 1984, Flushing moved to intervene in the state district court to set aside the June 1982 judgment. That application was denied in May 1984. Flushing appealed to the appellate term and that appeal is apparently still pending. Flushing then moved to intervene before the New York Court of Appeals where Cosmopolitan's appeal was awaiting decision. In July 1984, that application was also denied.\n \n \n 24\n In November 1984, the New York Court of Appeals affirmed the June 1982 judgment of the state district court. By order to show cause, the State requested vacatur of the federal district court's April 16 stay. When Flushing and Cosmopolitan appeared before the district court on December 7, 1984, Flushing for the first time claimed a right to possession of the premises and alleged that its appeal then pending before the appellate term could ultimately result in a reversal of the June 1982 decision and the revival of the lease. Unconvinced, Judge Mishler by order dated that same day affirmed the April 10 order of the bankruptcy court, dismissed Cosmopolitan's appeal and ordered Cosmopolitan and all other parties claiming a right to possession to turn over possession on or before December 14, 1984.\n \n \n 25\n Cosmopolitan filed its notice of appeal of Judge Mishler's order on December 12, 1984. It also moved to stay enforcement of the district court order pending appeal. Flushing did not at that time file a notice of appeal. It did, however, file a motion to intervene in the district court which Judge Altimari granted on December 14. Both Cosmopolitan and Flushing appeared before us to argue for a stay. We, mistakenly as it turns out, granted a stay on December 20, 1984 and expedited the appeal.\n \n \n 26\n On January 18, 1985, Flushing filed a notice of appeal of Judge Mishler's December 7 order. It also filed a motion seeking an extension of time in which to file a notice of appeal pursuant to Fed.R.App.P. 4(a)(5). Judge Altimari granted the motion and the State immediately appealed. That appeal was also expedited and consolidated with Cosmopolitan and Flushing's appeal.\n \n \n 27\n We heard argument on January 23. Relying completely on Flushing, Cosmopolitan neither submitted a separate brief nor favored us with an oral presentation. Indeed, counsel for Cosmopolitan was totally unprepared to respond to our questions. At the close of argument, we vacated our previous stay of the December 7 district court order. We also directed the parties to file supplemental briefs addressing both the extent of our power to award sanctions against Cosmopolitan, Flushing and their attorneys for bad faith litigation and the best method for calculating the amount.\n \n DISCUSSION\n \n 28\n For the reasons articulated below, we dismiss Cosmopolitan's appeal for lack of standing and we dismiss Flushing's appeal for failure to file a timely notice of appeal. Having determined that we lack jurisdiction to decide the merits of this case, we address them solely to explain why we believe that sanctions against Cosmopolitan, Flushing and their attorneys are appropriate. See Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 897-98 (2d Cir.1982).\n \n A. Cosmopolitan's Lack of Standing\n \n 29\n The Bankruptcy Code of 1978, 11 U.S.C. Sec. 101 et seq. (1982 & Supp. I 1983), does not contain an explicit limitation on appellate standing. Thus, relying on pre-Code law, a number of courts have adopted a standard that requires an appellant to show that he is a \"person aggrieved,\" that he is \"directly and adversely affected pecuniarily by\" the challenged order of the bankruptcy court. In re Fondiller, 707 F.2d 441, 442, 443 (9th Cir.1983); In re Goodwin's Discount Furniture, 16 B.R. 885, 888-89 (Bkrtcy.App. 1st Cir.1982); In re Jewel Terrace Corp., 10 B.R. 1008, 1011 n. 3 (E.D.N.Y.1981); see also 1 Collier on Bankruptcy p 3.03 at 3-118 to -119 (15th ed. 1985). We believe that this rule sets a reasonable and practical threshold for standing and we join the courts that have adopted it.\n \n \n 30\n Under this rule, Cosmopolitan clearly lacks standing to appeal the December 7 order of the district court affirming the April 10 order of the bankruptcy court which directed the liquidating trustee to turn over possession to the State. The impact on Cosmopolitan of the order appealed from must be evaluated in light of the December 1983 bankruptcy court order. The latter order, which was never appealed, in essence stated that the outcome of Cosmopolitan's state court appeals was immaterial given Cosmopolitan's dismal economic position. According to the bankruptcy court's unchallenged reasoning, even if some state appellate court ruled in Cosmopolitan's favor, Cosmopolitan's position would not be improved because the corporation could not cure its defaults. Further, the court found, and no one may now dispute, that Cosmopolitan was hopelessly insolvent with no likelihood of rehabilitation. Cosmopolitan's continued existence and operation was in complete derogation of the bankruptcy court's liquidation order.\n \n \n 31\n We must also consider the New York Court of Appeals' November 1984 affirmance of the judgment which held that the lease had expired in September 1979. In light of the foregoing, Cosmopolitan has not shown, indeed could not show, that it had any right of possession as of April 1984. Therefore, Cosmopolitan was not directly and adversely affected pecuniarily by the April 10 bankruptcy court order or by the December 7 district court order. Accordingly, we dismiss Cosmopolitan's appeal for lack of standing.\n \n \n 32\n B. Flushing's Failure to File a Timely Notice of Appeal\n \n \n 33\n Under Fed.R.App.P. 4(a)(1), a notice of appeal in a civil case, except where the United States is a party, must be filed within thirty days after entry of the judgment or order from which appeal is taken. This time limit is \"mandatory and jurisdictional.\" Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982); Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960); Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir.1975); see also Guido v. Ball, 367 F.2d 882, 882-83 (2d Cir.1966). This limitation is applicable to appeals involving bankruptcy orders. Fed.R.App.P. 4 advisory committee notes; 9 Moore's Federal Practice p 204.08 at 4-32 (2d ed. 1985). The rule is not as draconian as it first appears: \"The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).\" Fed.R.App.P. 4(a)(5).\n \n \n 34\n The good cause standard applies to requests for extensions filed prior to the expiration of the initial thirty days. To procure an extension after those first thirty days, the movant must show excusable neglect. Fed.R.App.P. 4 advisory committee notes; 9 Moore's Federal Practice p 204.13[1.-1] at 4-89. The excusable neglect standard was intended to be a strict one, and to meet it, the moving party must show unique and compelling circumstances. Fase v. Seafarers Welfare & Pension Plan, 574 F.2d 72, 76 (2d Cir.1978). Mindful of the purpose of the rules of appellate procedure \"to bring litigation to an end and to discourage dilatory tactics,\" In re Orbitec Corp., 520 F.2d 358, 362 (2d Cir.1975), courts should find excusable neglect only in the most extraordinary and unusual situations. State of Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (9th Cir.1982); Airline Pilots v. Executive Airlines, 569 F.2d 1174, 1175 (1st Cir.1978).\n \n \n 35\n As a general rule, we accord great deference to a district court's finding of excusable neglect. Fase, 574 F.2d at 77. We will overturn an extension granted under Rule 4(a)(5) only for abuse of discretion. Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir.1979); In re Estate of Butler's Tire & Battery Co., 592 F.2d 1028, 1032 (9th Cir.1979); Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 277 (1974); see also Mennen Co. v. Gillette Co., 719 F.2d 568, 571 (2d Cir.1983).\n \n \n 36\n The excusable neglect standard will generally be satisfied where a party acting in good faith was entitled to and did rely on actions of the district court or its officers and consequently misses the Rule 4 deadline. E.g., Mennen Co., 719 F.2d at 571. Similarly, given the appropriate circumstances, failure to hear that judgment has entered may be the basis for a finding of excusable neglect, as may uncontrollable delays in mail delivery, unpredictable events affecting the feasibility of appeal and plausible misconstructions but not mere ignorance of the law or rules. 9 Moore's Federal Practice p 204.13[1.-3] at 4-94 to -97.\n \n \n 37\n In support of its request for an extension, Flushing presented two arguments to the district court. First, Flushing's attorney claimed that he believed that United States District Judge Altimari's December 14 order, permitting Flushing to intervene, constituted leave to intervene in Cosmopolitan's appeal which was already before us. Thus, he claimed, he thought it was unnecessary for Flushing to file a separate notice of appeal. He further informs us that it would be inequitable for us to dismiss Flushing as an appellant because he, his associates and Flushing have devoted so much time to this appeal. Second, Flushing argued that it should be entitled to fourteen additional days under Rule 4(a)(3) because Cosmopolitan filed a notice of appeal.\n \n \n 38\n Not surprisingly, Flushing was unable to support these arguments. We find it implausible that experienced counsel could actually believe that the district court has authority to allow a person to intervene in an appeal pending before the court of appeals. Neither can we accept that experienced trial counsel did not realize that every appellant must file its own notice of appeal.\n \n \n 39\n Flushing's second argument is tantamount to a direct affront. The language of Rule 4(a)(3) could hardly be more clear:\n \n \n 40\n If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.\n \n \n 41\n The fourteen day period following the date on which Cosmopolitan filed its notice of appeal ended on December 26, 1984. The thirty day period following entry of the order appealed from ended on January 7, 1985. Flushing filed its notice of appeal on January 18.\n \n \n 42\n The excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules. Flushing did not establish excusable neglect. Thus there was no basis on which the district court could grant an extension pursuant to Rule 4. The order granting Flushing an extension is reversed for abuse of discretion.2 Consequently, Flushing has not filed a timely notice of appeal and we are, therefore, without jurisdiction to decide the merits of its appeal. We must dismiss.\n \n C. The Merits\n \n 43\n We reemphasize that our sole reason for discussing the merits--or lack thereof--is to make clear the underpinning of our decision to award sanctions. Our foray is accordingly brief.\n \n \n 44\n We note at the outset that our December 20 stay in no way should be considered a justification for Cosmopolitan and Flushing's continued prosecution of this appeal. We believe that an objective review of the record reasonably and unequivocally suggests that the stay would not have been granted had Cosmopolitan and particularly Flushing not completely obfuscated the factual and legal issues. The unnecessary complexity created by Flushing, Cosmopolitan and their attorneys, augmented by mischaracterizations and omissions, misled the panel that granted the stay. We will not permit the wrongdoers to profit from their contemptible conduct. The December 20 stay cannot buffer them from the consequences of their bad faith.\n \n \n 45\n As previously noted, all of the arguments on appeal were advanced by Flushing; Cosmopolitan simply joined with Flushing. The first claim, which actually also underlies the remaining arguments, is that Flushing has a right of possession in the premises. Flushing maintains that some state court may yet allow it to intervene in the state court proceeding against Cosmopolitan and that the state courts might then overturn the now venerable ruling, affirmed by the New York Court of Appeals, that the lease expired on September 5, 1979. Flushing's right, as a secured creditor, to participate in a holdover proceeding for possession is dubious at best--even if one ignores Flushing's utter lack of response to the notice of default. Nevertheless, if allowed to intervene, Flushing alleges, it will be able to exercise its right of redemption under New York law, cure the lease defaults and assume possession of the premises or sell the lease. Disregarding for the sake of discussion the mindboggling odds against the lease being reinstated, we note that Flushing has neither a right of redemption nor--unless it has a time machine--the ability to cure the lease defaults.\n \n \n 46\n Under the mortgage and assignment between Cosmopolitan and Flushing, Flushing was entitled to possession only on satisfaction of certain conditions. After receiving a copy of the notice of default, Flushing gave no indication to the State that it had any interest in curing Cosmopolitan's defaults. Any inchoate right to possession which Flushing may once have had has long since expired.\n \n \n 47\n The state right of redemption to which Flushing alludes is not available under the circumstances of this case. Flushing concedes that the right alleged, which derives from N.Y. Real Prop. Acts. Law Sec. 751 (McKinney 1979), belongs to Cosmopolitan, not to Flushing, and arises by its terms only in summary proceedings for nonpayment of rent. Flushing's characterization of the State's summary proceedings as \"in essence a nonpayment proceeding,\" Br. of Intervenor-Appellant at 21, is pure fabrication. Of the eight material defaults which the trial court identified, only one concerned nonpayment of rent.\n \n \n 48\n Moreover, section 751 explicitly applies only before a warrant is issued. Flushing attempts to circumvent this limitation by arguing that the issuance of the warrant violated the August 21, 1981 bankruptcy court order and, therefore, was invalid. Even if Flushing had raised this argument below, instead of for the first time in this appeal, the argument would be unavailing. Under N.Y. Real Prop. Acts. Law Sec. 749, the state court was required to issue the warrant at the time it issued final judgment for the State. Further, the August 21, 1981 order of the bankruptcy court merely precluded the State from actually executing on a favorable judgment without the approval of the bankruptcy court. The State and the state court were in compliance with the August 21 order. Cosmopolitan's repeated, bold defiance of court orders lends a certain irony to Flushing's argument. Flushing's redemption claim is completely frivolous.\n \n \n 49\n Flushing's second major theme posits that the bankruptcy court abused its discretion in ordering Cosmopolitan to turn over possession to the State. This argument rests on alternative grounds. First, Flushing claims that the bankruptcy court could not issue the order pursuant to 11 U.S.C. Sec. 105(a) (1982) because 28 U.S.C. Sec. 1481 (1982), omitted by Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, Sec. 113, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 343, prohibits the bankruptcy court from enjoining another court. The State aptly described this argument as bizarre. The April 10 order does not purport by its terms to enjoin any court. And Flushing has failed to show that the effect, nonetheless, is injunctive. Second, Flushing cites case law to support the proposition that an order awarding possession of leased premises to the landlord should only be granted pursuant to 11 U.S.C. Sec. 105(a) under the most extraordinary and compelling circumstances. We have no trouble accepting this proposition for the sake of argument. But we fail to see how it aids Flushing's cause. By the time the April 10 order was filed, the New York courts at every level had agreed that the lease expired on September 7, 1979; Cosmopolitan had been ordered liquidated and adjudged incapable of rehabilitation and of curing its defaults; Flushing had been aware of or involved in the proceedings at all stages, beginning with the State's notice of default; Cosmopolitan had refused to cease operations or, indeed, to comply with any of the orders issued by the courts and the bankruptcy court had expressed its belief that the entire proceeding constituted an abuse of process. These circumstances certainly appear to us to be extraordinary and compelling.\n \n \n 50\n Flushing's final argument3 is that it has been deprived of an interest in real property. Specifically, Flushing claims that the bankruptcy court violated its due process rights because Flushing was not made a party to the motion which led to the April 10 order. We note first that Flushing has been unable to convince any court so far that it has a possessory interest in the premises. Flushing is still batting zero. At most, and we do not decide this question, Flushing could be entitled to a monetary settlement under the buy-back provision of the expired lease. This right, assuming it exists, is in no way diminished by the April 10 order. Moreover, Flushing had actual notice of and participated in the relevant bankruptcy and district court proceedings. Based on fabrication and fantasy, Flushing's due process arguments evaporate when exposed to the light of reason.\n \n D. Sanctions\n \n 51\n Our power to award sanctions in this case derives from several sources. Fed.R.App.P. 38 permits us in our discretion to award damages and double costs for the prosecution of a frivolous appeal. The advisory committee note to the rule explains that damages in such a case should be awarded \"as a matter of justice to the appellee and as a penalty against appellant.\" Similarly, 28 U.S.C. Sec. 1912 (1982) gives us the discretion to award to a prevailing party damages for delay and double costs. Under 28 U.S.C. Sec. 1927 (1982), \"[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.\" Finally, where a losing litigant has acted vexatiously or in bad faith, it is within our inherent powers to award attorneys' fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). And if we find willful abuse of process, we may exercise our inherent power to assess attorneys' fees against counsel. Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980).\n \n \n 52\n The appeal brought by Cosmopolitan and Flushing is entirely frivolous. It can only have been brought for the purpose of delay. Cosmopolitan, Flushing and their attorneys have acted vexatiously and in bad faith. The attorneys representing Cosmopolitan and Flushing have unreasonably multiplied the proceedings in this case and are guilty of willful abuse of process. The parties and their attorneys should be penalized for unnecessarily wasting our time and resources and the State should be compensated for having been put to the expense of answering these wholly frivolous appeals. Fluoro Electric Corp. v. Branford Associates, 489 F.2d 320, 326 (2d Cir.1973). This Court has been used, as were the bankruptcy court and the district court, to frustrate the rights of the State and the execution of a state court judgment. Cf. Overmyer v. Fidelity & Deposit Co. of Maryland, 554 F.2d 539, 543 (2d Cir.1977) (double costs and attorneys fees assessed for using court to frustrate collection of state court judgment).\n \n \n 53\n We assess double costs against Cosmopolitan and Flushing. We award reasonable attorneys fees against Cosmopolitan, Flushing and their attorneys. We remand this case to the district court and instruct that court to determine the attorneys' fees reasonably incurred by the State in this appeal and to assess that amount jointly and severally against Flushing and its attorneys and jointly and severally against Cosmopolitan and its attorneys.\n \n \n 54\n The appeal of Judge Mishler's order is dismissed as to both Cosmopolitan and Flushing. Judge Altimari's order extending the time for Flushing to file a notice of appeal is reversed. The State is awarded double costs and attorneys' fees and the case is remanded to the district court for the calculation of sanctions. Nothing in this opinion should be interpreted to preclude the State from moving for nor the district court from awarding attorneys' fees for all of the multitudinous and vexatious proceedings in which Flushing and Cosmopolitan were involved in the federal system.\n \n \n \n 1\n The original lessor was the New York Metropolitan Transportation Authority (MTA). In June 1982, the New York legislature transferred ownership of Republic from the MTA to the New York Department of Transportation. The identity of the actual owner/lessor at any particular time is of no consequence to this appeal. Hence we refer to the State throughout as the lessor\n \n \n 2\n We can well appreciate what we assume was Judge Altimari's motivation in granting Flushing's motion for an extension. Cognizant that briefs had been filed and that oral argument was only days away, Judge Altimari no doubt sought to avoid the potential risk of further complicating or delaying this litigation\n \n \n 3\n There are actually a few more but they are equally meritless. We think our actions are sufficiently supported; we hesitate to assault the reader further\n \n \n ", "ocr": false, "opinion_id": 453186 } ]

[ "235 F.2d 760" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/235/235.F2d.760.266.23857.html", "author_id": null, "opinion_text": "235 F.2d 760\n Rudolph KRAFT, Libellant-Appellant,v.SMITH & JOHNSON STEAMSHIP CORP., and T. J. Hammill & Co.,Respondents-Appellees, and Siemund Marine, Inc.,Respondent-Impleaded-Appellee.\n No. 266, Docket 23857.\n United States Court of Appeals Second Circuit.\n Argued Feb. 17, 1956.Decided July 31, 1956.\n \n John J. Robinson, Paul C. Matthews, Edwin M. Bourke and Paul C. Matthews, Jr., New York City, for libellant-appellant.\n J. Ward O'Neill, Haight, Gardner, Poor & Havens, New York City, for respondent-appellee, Smith & Johnson Steamship Corp.\n Edward Ash, Alexander & Ash, New York City, for respondent-appellee, T. J. Hammill & Co.\n Raymond C. Green, Bernard Katzen, Harry Schechter, and William H. Stieglitz, New York City, for respondent-impleaded-appellee, Siemund Marine, Inc.\n The opinion and findings below were not reported. The findings of fact were as follows:\n Findings of Fact.\n '1. On February 26, 1948 libelant, Rudolph Kraft, was employed as a machinist by Siemund Marine, Inc. and was performing the work of covering up suction boxes at the bottom of deep tanks on the S.S. Potus H. Ross at Pier 52, Brooklyn, N.Y.\n '2. The vessel was then under bareboat charter to Smith-Johnson Steamship Corp. and was undergoing repairs in order to carry grain in its lower hold.\n '3. Libelant's employer, Siemund Marine, Inc. was engaged in machinists work, sealing up 'bilge' or 'suction' boxes in the vessel's lower hold, and T. J. Hammill & Co. was engaged in carpentry work, installing grain fittings and wooden bulkheads in the lower hold.\n '4. On February 26, 1948 libelant had completed certain work with a fellow employee, McCarthy, in the No. 2 port tank in the No. 1 hold, and at about 2 P.M. began to transfer tools to the No. 2 tank on the starboard side of the No. 1 hold. While McCarthy went up for more material, libelant lowered a drill into the No. 2 starboard tank and transferred some small tools to the starboard side of the No. 1 hold.\n '5. There was a cluster of light above the two starboard tanks, and an electric wire ran from this light to a receptacle up on the ship's deck.\n '6. Libelant intended to go down an iron ladder into the No. 2 starboard tank, and he proceeded to walk aft in a narrow passage, approximately two feet wide, formed by the coaming on the side of the tank and a wooden bulkhead which ran fore and aft in the center of the hold. Before libelant reached the ladder, the cluster light suddenly went out, and libelant fell into the tank sustaining injuries.\n '7. Libelant's foreman, Callahan, had obtained the cluster light from the ship's stores and had plugged it in a receptacle up on deck and had arranged the light in the lower hold.\n '8. This cluster light was lit before Callahan sent his men into the hold, and each time he made his rounds to see that the work was being done the light was burning.\n '9. Shortly before Callahan was told that libelant had fallen into the tank, he was making his rounds and discovered that the cluster light was out.\n '10. On inspecting the receptacle upon deck he found that the plug on the light his men had been using had been removed from its original socket and put into a 'dead' socket. He also found that the original socket his men had been using was occupied by a plug attached to a light cord which led to a light being used by the carpenters, i.e. the employees of T. J. Hammill & Co., with whom he had an argument concerning the incident.\n '11. None of the ship's crew was present or had any work to do in the No. 1 hold on the day of the accident. There was only a skeleton crew aboard the vessel at the time, and the vessel's crew was signed on the day after the accident.\n '12. No part of the ship's deck or equipment in the lower hold was defective or unsafe.\n '13. The cluster light furnished by the ship was in good condition.\n '14. There was no electric power failure aboard the vessel during the time in question.\n '15. There were eight electrical outlets on the forward mast house on deck, all of which were available for the No. 1 hold where the accident occurred. These outlets were tested with a test light by the vessel's Chief Engineer prior to the commencement of the work and were found to be in good condition, and there were no complaints made by anyone to the vessel's Chief Mate and Engineer concerning them.\n '16. Libelant fell immediately upon the cluster light going out, and there was no interval of time between the extinguishment of the light and libelant's fall.\n '17. Smith-Johnson Steamship Corp. furnished libelant with a safe place to work, and the sole cause of the accident was the intervening negligent act of some unknown person in removing libelant's light plug from its socket, without warning to libelant. The accident was not caused by the insertion of the plug into an allegedly 'dead' socket.\n '18. The tortious act of removing libelant's plug cannot be attributed to the ship's personnel or to the employees of T. J. Hammill & Co.\n '19. T. J. Hammill's employees had no more control over the receptacles and plugs on deck than did libelant and his fellow workers.\n '20. There is no proof that T. J. Hammill's employees moved the plugs or that they had any difficulty with their lights or that they had any reason to change plugs.\n '21. The vessel was not unseaworthy at the time of the accident.'\n Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.\n HINCKS, Circuit Judge.\n \n \n 1\n To recover for his injuries the libellant-appellant brought a libel based both on negligence and unseaworthiness against the United States Maritime Commission, the owner of the S. S. Pontus H. Ross, Smith & Johnson, the bareboat charterer of the vessel, and T. J. Hammill & Co. which had a contract for the installation of grain fittings therein. Smith & Johnson, the charterer, impleaded libellant's employer, Siemund Marine, and cross-libeled Hammill, both of whom answered and participated in the trial. As to the United States Maritime Commission, the libel was dismissed by consent at the opening of the trial.\n \n \n 2\n Having made his findings as above set forth, the trial judge dismissed the libel, the cross-libel and the impleading petition against Siemund Marine. In addition to the libellant, both Hammill and Siemund Marine, obviously to protect their position in event of a reversal, also appealed.\n \n \n 3\n The Smith & Johnson Dismissal.\n \n \n 4\n The libellant pitches his appeal from the dismissal as to Smith & Johnson on a claim of unseaworthiness. The judge found that at the time of libellant's fall there was a dead electric socket amongst the eight outlets on the forward must house. Finding 10. The libellant contends that the evidence required a further finding, viz., that the dead socket was the cause of his fall. As to this, the judge found to the contrary. Findings 16 and 17. These findings were somewhat amplified by the judge's opinion wherein he said: 'It is also clear that the libelant fell immediately upon the light going out, and that there was no interval of time between the extinguishment of the light and his fall.' Thus in effect it was found that libellant's fall was caused by the act of some unknown person in disconnecting the cluster of lights which illumined the scene and had already occurred before the cord serving the cluster was plugged into the dead socket.\n \n \n 5\n Having examined the underlying transcript of testimony, including that of the libellant himself, we cannot say that the finding on the issue of the proximate cause was clearly erroneous. It was for the judge to interpret and evaluate the testimony and to determine whether the libellant had proved by a fair preponderance that the dead socket was the proximate cause. His negative conclusion on that issue, we think, is not shown to rest upon irrational inferences or in other respects conflict with the state of proofs.\n \n \n 6\n If, as we hold, this finding may not be set aside, it is unnecessary to consider whether the finding of seaworthiness was erroneous as conflicting with Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798; Poignant v. United States, 2 Cir., 225 F.2d 595; and Grillea v. United States, 2 Cir., 229 F.2d 687, rehearing denied 2 Cir., 232 F.2d 919.\n \n \n 7\n The T. J. Hammill & Co. Dismissal.\n \n \n 8\n The dismissal as to Hammill was predicated upon a finding that there was no proof that the Hammill employees had removed the plug serving the cluster lighting the libellant's place of work. On his appeal from this dismissal, libellant, who sought to hold Hammill on the ground of negligence, contends that there was 'a compelling inference that the light plugs were switched by a Hammill employee.' The basis for this inference is laid on the testimony of Callahan, libellant's foreman, that after the accident he found that Hammill's carpenters were using for their work a light connected with the very socket which prior to the accident was being used to light the libellant's place of work. It is argued that this fact 'compelled' an inference that the cord serving the appellant was switched into the dead socket by Hammill personnel.\n \n \n 9\n We think, however, that the force of the inference for which the libellant contends was largely negated by Callahan's testimony that shortly before the accident the Hammill carpenters were already served by a light and by the evidence that there had been no power failure to deprive them of that light. Thus the carpenters, so far as appears, had no incentive to divert to their own use the socket which had been serving the libellant. Especially in view of this lack of incentive, the probability of tortious action by the carpenters fell far short of a compelling inference. Viewing the entire record and having in mind the burden of proof which was on the libellant, we cannot say that the relevant findings were based on irrational inferences or that the state of the proofs was such as to compel a finding of negligence on the part of Hammill. In short, the finding of no negligence on the part of Hammill was not clearly erroneous.\n \n \n 10\n Since we must affirm on the libellant's appeal, it follows that the other appeals must also be affirmed.\n \n \n 11\n Affirmed.\n \n ", "ocr": false, "opinion_id": 240069 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\97/97-50310.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n\n No. 97-50310\n Summary Calendar\n\n\n\nRICHARD J. CARTER, JR.,\n\n Plaintiff-Appellant,\nversus\n\nKENNETH S. APFEL, COMMISSIONER\nOF SOCIAL SECURITY,\n\n Defendant-Appellee.\n\n - - - - - - - - - -\n Appeal from the United States District Court\n for the Western District of Texas\n USDC No. W-95-CV-99\n - - - - - - - - - -\n January 19, 1998\nBefore JOLLY, BENAVIDES and PARKER, Circuit Judges.\n\nPER CURIAM:*\n\n Richard J. Carter, Jr., appeals from the district court’s\n\njudgment affirming the denial of his application for disability\n\ninsurance benefits. He argues that substantial evidence did not\n\nexist to support the finding that he was not disabled and that\n\nthe appropriate legal standards were not applied. We have\n\nreviewed the record and find no reversible error. Accordingly,\n\nthe judgment is AFFIRMED for essentially the reasons stated by\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined\nthat this opinion should not be published and is not precedent\nexcept under the limited circumstances set forth in 5TH CIR.\nR. 47.5.4.\n\f No.\n -2-\n\nthe district court. See Carter v. Chater, No. W-95-CA-099 (W.D.\n\nTex. February 18, 1997).\n\n AFFIRMED; MOTION FOR SUMMARY JUDGMENT DENIED.\n\f", "ocr": false, "opinion_id": 13965 } ]

[ "815 F.2d 79" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/815/815.F2d.79.86-6162.html", "author_id": null, "opinion_text": "815 F.2d 79\n National Labor Relations Boardv.Little Mining, Inc.\n NO. 86-6162\n United States Court of Appeals,Sixth Circuit.\n FEB 17, 1987\n \n 1\n Appeal From: N.L.R.B.\n \n \n 2\n ORDER ENFORCED.\n \n ", "ocr": false, "opinion_id": 485536 } ]

[ "52 L. Ed. 2d 231", "97 S. Ct. 1823", "431 U.S. 174", "1977 U.S. LEXIS 88" ]

[ { "author_str": "Burger", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 464, "opinion_text": "\n431 U.S. 174 (1977)\nUNITED STATES\nv.\nWONG.\nNo. 74-635.\nSupreme Court of United States.\nArgued December 6, 1976.\nDecided May 23, 1977.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.\nWilliam F. Sheehan III argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Deputy Solicitor General Frey.\nAllan Brotsky argued the cause and filed a brief for respondent.\nMR. CHIEF JUSTICE BURGER delivered the opinion of the Court.\nWe granted certiorari to decide whether a witness who, while under investigation for possible criminal activity, is *175 called to testify before a grand jury and who is later indicted for perjury committed before the grand jury, is entitled to have the false testimony suppressed on the ground that no effective warning of the Fifth Amendment privilege to remain silent was given.[1]\n\n(1)\nRose Wong, the respondent, came to the United States from China in early childhood. She was educated in public schools in San Francisco, where she completed eight grades of elementary education. Because her husband does not speak English, respondent generally speaks in her native tongue in her household.\nIn September 1973 respondent was subpoenaed to testify before a federal grand jury in the Northern District of California. The grand jury was investigating illegal gambling and obstruction of state and local law enforcement in San Francisco. At the time of her grand jury appearance, the Government had received reports that respondent paid bribes to two undercover San Francisco police officers and agreed to make future payments to them. Before any interrogation began, respondent was advised of her Fifth Amendment privilege;[2] she then denied having given money *176 or gifts to police officers or having discussed gambling activities with them. It is undisputed that this testimony was false.\n\n(2)\nRespondent was indicted for perjury in violation of 18 U. S. C. § 1623. She moved to dismiss the indictment on the ground that, due to her limited command of English, she had not understood the warning of her right not to answer incriminating questions. At a suppression hearing, defense counsel called an interpreter and two language specialists as expert witnesses and persuaded the District Judge that respondent had not comprehended the prosecutor's explanation of the Fifth Amendment privilege;[3] the court accepted respondent's testimony that she had thought she was required to answer all questions. Based upon informal oral findings to this effect, the District Court ordered the testimony suppressed as evidence of perjury.\nAccepting the District Court's finding that respondent had not understood the warning, the Court of Appeals held that due process required suppression where \"the procedure employed by the government was fraught with the danger . . . of placing [respondent] in the position of either perjuring or incriminating herself.\" 553 F. 2d 576, 578 (CA9 1974). Absent *177 effective warnings of the right to remain silent, the court concluded, a witness suspected of criminal involvement by the Government will \"not understand the right to remain silent, and [will] be compelled by answering to subject himself to criminal liability.\" Ibid. In the Court of Appeals' view, the ineffectiveness of the prosecutor's warning meant that \"the unfairness of the procedure remained undissipated, and due process requires the testimony be suppressed.\" Id., at 579.\nFollowing our decision in United States v. Mandujano, 425 U. S. 564 (1976), we granted certiorari. 426 U. S. 905 (1976). We now reverse.\n\n(3)\nUnder findings which the Government does not challenge, respondent, in legal effect, was unwarned of her Fifth Amendment privilege. Resting on the finding that no effective warning was given, respondent contends that both the Fifth Amendment privilege and Fifth Amendment due process require suppression of her false testimony. As to her claim under the Fifth Amendment testimonial privilege, respondent argues that, without effective warnings, she was in effect forced by the Government to answer all questions, and that her choice was confined either to incriminating herself or lying under oath. From this premise, she contends that such testimony, even if knowingly false, is inadmissible against her as having been obtained in violation of the constitutional privilege. With respect to her due process claim, she contends, and the Court of Appeals held,[4] that, absent warnings, a witness is placed in the dilemma of engaging either in self-incrimination or perjury, a situation so inherently unfair as to *178 require suppression of perjured testimony. We reject both contentions.\nAs our holding in Mandujano makes clear, and indeed as the Court of Appeals recognized, the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it \"does not endow the person who testifies with a license to commit perjury.\" Glickstein v. United States, 222 U. S. 139, 142 (1911). The failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result. The contention is that warnings inform the witness of the availability of the privilege and thus eliminate the claimed dilemma of self-incrimination or perjury. Cf. Garner v. United States, 424 U. S. 648, 657-658 (1976). However, in United States v. Knox, 396 U. S. 77 (1969), the Court held that even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury. In that case, a taxpayer was charged with filing false information on a federal wagering tax return. At the time of the offense, federal law commanded the filing of a tax return even though the effect of that requirement, in some circumstances, was to make it a crime not to supply the requested information to the Government.[5] To justify the deliberate falsehood contained in his tax return, Knox, like respondent here, argued that the false statements were not made voluntarily, but were compelled by the tax laws and therefore violated the Fifth Amendment. The Court rejected that contention. Although it recognized that tax laws which compelled filing the returns injected an \"element of pressure into Knox's predicament at the time he filed the forms,\" id., at 82, the Court held that by answering falsely the taxpayer *179 took \"a course that the Fifth Amendment gave him no privilege to take.\" Ibid.\nIn this case respondent stands in no better position than Knox; her position, in fact, is weaker since her refusal to give inculpatory answers, unlike Knox, would not have constituted a crime. It follows that our holding in Mandujano, that the Fifth Amendment privilege does not protect perjury, is equally applicable to this case.\n\n(4)\nRespondent also relies on the Court of Appeals' holding that the failure to inform a prospective defendant of the constitutional privilege of silence at the time of a grand jury appearance is so fundamentally unfair as to violate due process. In the Court of Appeals' view, the Government's conduct in this case, although in good faith, so thwarted the adversary model of our criminal justice system as to require suppression of the testimony in any subsequent perjury case based on the falsity of the sworn statement.[6] We disagree.\nFirst, the \"unfairness\" urged by respondent was also present in the taxpayer's predicament in Knox, yet the Court there found no constitutional infirmity in the taxpayer's conviction for making false statements on his returns. Second, accepting, arguendo, respondent's argument as to the dilemma posed in the grand jury procedures here,[7] perjury is nevertheless not a permissible alternative. The \"unfairness\" perceived by respondent is not the act of calling a prospective defendant to testify before a grand jury[8] but rather the failure effectively *180 to inform a prospective defendant of the Fifth Amendment privilege. Thus, the core of respondent's due process argument, and of the Court of Appeals' holding, in reality relates to the protection of values served by the Fifth Amendment privilege, a privilege which does not protect perjury.\nFinally, to characterize these proceedings as \"unfair\" by virtue of inadequate Fifth Amendment warnings is essentially to say that the Government acted unfairly or oppressively by asking searching questions of a witness uninformed of the privilege. But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government's questions. \"Our legal system provides methods for challenging the Government's right to ask questions—lying is not one of them.\" (Footnote omitted.) Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Mandujano, 425 U. S., at 577, 585 (BRENNAN, J., concurring in judgment); id., at 609 (STEWART, J., concurring in judgment). Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v. Knox, supra, at 82-83. If the citizen answers the question, the answer must be truthful.\nThe judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nNOTES\n[1] In United States v. Mandujano, 425 U. S. 564 (1976), we held that false testimony by a grand jury witness suspected by federal prosecutors of criminal involvement was admissible in a subsequent perjury trial. Although the witness in Mandujano had been warned of the Fifth Amendment privilege, the Court of Appeals had mandated suppression of the perjurious testimony on the ground that the witness had not been provided with full Miranda warnings. In this Court, three separate opinions expressed varying reasons, but all eight participating Justices agreed that the perjured testimony was improperly suppressed.\n[2] The prosecutor gave respondent the following warnings:\n\n\"You . . . need not answer any question which you feel may . . . incriminate you. . . . [Y]ou [have] the right to refuse to answer any question which you feel might incriminate you. . . . [I]f you do give an answer, that answer may be used against you in a subsequent criminal prosecution, if in fact the Government should decide to prosecute you for any crime. . . . You also have the right to consult with an attorney prior to answering any question here today. . . . [I]f you cannot afford an attorney, . . . we would see that an attorney is afforded to represent you. . . . [I]f you do answer any questions and should you knowingly give any false testimony, or false answers to any questions, you would be subject to prosecution for the crime of perjury under the Federal Laws.\" 2 Tr. 52-53.\n[3] The District Court found, however, that respondent understood the oath and the consequences of giving false testimony, and that she understood the questions that were asked of her. Thus, no issue regarding the due process consequences, if any, of the absence of either factor was addressed by the District Court or the Court of Appeals.\n[4] The Court of Appeals rejected respondent's argument that the Fifth Amendment privilege required suppression. The court held:\n\n\"[T]he privilege against self-incrimination does not afford a defense to a witness under compulsion who, rather than refusing to answer (or, if improperly compelled to answer, giving incriminating answers), gives false testimony.\" 553 F. 2d 576, 577.\n[5] Knox filed the false return prior to this Court's decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968).\n[6] The Court of Appeals did not suggest why, assuming a due process violation had occurred, suppression of respondent's testimony was constitutionally required.\n[7] Cf. United States v. Mandujano, 425 U. S., at 594-598 (BRENNAN, J., concurring in judgment).\n[8] There is no constitutional prohibition against summoning potential defendants to testify before a grand jury. United States v. Dionisio, 410 U. S. 1, 10 n. 8 (1973); United States v. Mandujano, supra, at 584 n. 9, 594 (BRENNAN, J., concurring in judgment). The historic availability of the Fifth Amendment privilege in grand jury proceedings, Counselman v. Hitchcock, 142 U. S. 547 (1892), attests to the Court's recognition that potentially incriminating questions will frequently be asked of witnesses subpoenaed to testify before the grand jury; the very purpose of the inquiry is to ferret out criminal conduct, and sometimes potentially guilty persons are prime sources of information.\n\n", "ocr": false, "opinion_id": 109658 } ]

[ "2001 Ohio 6976", "94 Ohio St. 3d 14" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": 3, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-6976.pdf", "author_id": null, "opinion_text": "[Cite as Stark Cty. Bar Assn. v. Watkins, 94 Ohio St.3d 14, 2001-Ohio-6976.]\n\n\n\n\n STARK COUNTY BAR ASSOCIATION v. WATKINS.\n [Cite as Stark Cty. Bar Assn. v. Watkins (2001), 94 Ohio St.3d 14.]\nAttorneys at law — Misconduct — Indefinite suspension — Engaging in conduct\n involving dishonesty, fraud, deceit, or misrepresentation — Handling a\n legal matter not competent to handle — Handling a legal matter without\n adequate preparation — Neglect of an entrusted legal matter — Failing\n to seek the lawful objectives of a client — Neglecting or refusing to assist\n or testify in a disciplinary investigation or hearing.\n (No. 01-1206 — Submitted August 28, 2001 — Decided December 19, 2001.)\n ON CERTIFIED REPORT by the Board of Commissioners on Grievances and\n Discipline of the Supreme Court, No. 00-24.\n __________________\n Per Curiam. From September 1997 through the spring of 1998,\nrespondent, Timothy W. Watkins of North Canton, Ohio, Attorney Registration\nNo. 0041271, received retainers from clients in six separate matters and failed to\ntake action on their behalf. In September 1997, Jacqueline Cassel retained\nrespondent to collect back rent from an original lessor and from a sublessor who\nwas occupying a residence owned by her. Thereafter, respondent did not reply to\nCassel’s attempts to contact him and did not return her files. In October 1997,\nJennifer R. Greene retained respondent for representation in a medical\nmalpractice action. Afterwards, Greene could not contact respondent.\n Also in 1997, after respondent attended a hearing in a divorce action on\nbehalf of Teresa A. Day, in which she was awarded one-half of her ex-husband’s\nstock option plan, he failed to prepare a follow-up Qualified Domestic Relations\nOrder or return Day’s phone calls.\n\f SUPREME COURT OF OHIO\n\n\n\n\n Dena Metz paid respondent a $500 retainer in September 1997 to\nrepresent her in a divorce case. Although he appeared at the initial hearing,\nrespondent failed to keep in contact with Metz, did not appear at a scheduled\nhearing, and did not acknowledge Metz’s termination letter to him. He also failed\nto advise Metz of a show cause hearing for her failure to cooperate with discovery\nrequests, which respondent had not forwarded to her. As a result of her failure to\nappear, the court issued a warrant for Metz’s arrest. Ultimately, Metz retained\nanother attorney to complete her divorce proceeding, and respondent never\nrefunded the retainer that she had paid to him.\n In the spring of 1998, William Welker retained respondent to represent\nhim in a breach of contract action. On April 30, 1998, respondent dismissed the\ncase without prejudice. Throughout the remainder of 1998 and the first part of\n1999, Welker could not contact respondent.\n After Jennifer R. Greene complained to the Stark County Bar Association,\nrelator herein, that respondent had in January 1998 voluntarily dismissed without\nprejudice a malpractice action that he had filed for Greene and had refused to\ncontact her, respondent refiled the action against the three defendants. However,\nthe court issued summary judgment in favor of two defendants when respondent\nfailed to respond to those defendants’ motion. Respondent dismissed the action\nagainst the other defendant without prejudice. He did not advise Greene of either\nthe granting of the summary judgment or the dismissal.\n Based on grievances filed by these clients, relator filed a complaint\ncharging respondent with violating numerous provisions of the Code of\nProfessional Responsibility. Respondent answered, and the matter was heard by a\npanel of the Board of Commissioners on Grievances and Discipline (“board”).\nAfter a hearing during which the panel accepted stipulations and exhibits, the\npanel found the facts as set forth above. Respondent submitted no evidence of\nmitigation. Based on these facts, the panel concluded that respondent’s conduct\n\n\n\n\n 2\n\f January Term, 2001\n\n\n\n\nviolated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving\ndishonesty, fraud, deceit, or misrepresentation), 6-101(A)(1) (a lawyer shall not\nhandle a legal matter which he is not competent to handle), 6-101(A)(2) (a lawyer\nshall not attempt to handle a legal matter without preparation adequate in the\ncircumstances), 6-101(A)(3) (a lawyer shall not neglect an entrusted legal matter),\nand 7-101(A)(1) (a lawyer shall not intentionally fail to seek the lawful objectives\nof a client). The panel also concluded that in not responding fully and promptly\nto relator’s inquiries regarding these matters, respondent violated Gov.Bar R.\nV(4)(G) (no attorney shall neglect or refuse to assist or testify in a disciplinary\ninvestigation or hearing).\n The panel recommended that respondent be indefinitely suspended from\nthe practice of law. The board adopted the findings, conclusions, and\nrecommendation of the panel.\n Upon review, we adopt the findings, conclusions, and recommendation of\nthe board. Respondent is hereby indefinitely suspended from the practice of law\nin Ohio. Costs are taxed to respondent.\n Judgment accordingly.\n MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and\nLUNDBERG STRATTON, JJ., concur.\n __________________\n Timothy B. Saylor, Richard S. Milligan and John R. Giua, for relator.\n Timothy W. Watkins, pro se.\n __________________\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 2689843 } ]

[ "50 F.3d 18" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/50/50.F3d.18.94-35229.html", "author_id": null, "opinion_text": "50 F.3d 18\n NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.WESTERN RAILROAD BUILDERS CORPORATION, a Utah corporation,Plaintiff-Counter-Defendant-Appellant,v.CONDA PARTNERSHIPS, an Idaho general partnership; Nu-WestIndustries, Inc., a Delaware corporation; WesternCo-Operative Fertilizers (U.S.), Inc., a Delawarecorporation, Defendants-Counter-Claimants-Appellees.\n No. 94-35229.\n United States Court of Appeals, Ninth Circuit.\n Submitted March 7, 1995.*Decided March 9, 1995.\n \n Before: PREGERSON, KOZINSKI, and LEAVY, Circuit Judges.\n \n \n 1\n MEMORANDUM**\n \n \n 2\n Western contends that it either entered into a contract amendment with Conda or, in the alternative, modified the parties' existing agreement to cover the 1992 hauling season. Neither of these claims has merit. Even if the parties orally modified or agreed to amend the contract, these changes didn't set forth a new price, provide a formula from which to derive the price, or import the price provision of the original contract. The parties thus could not have formed a binding contract because their \"agreement\" lacked an essential term. Traylor v. Henkels & McCoy, Inc., 585 P.2d 970, 972 (Idaho 1978).\n \n \n 3\n AFFIRMED.\n \n \n \n *\n The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4\n \n \n **\n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3\n \n \n ", "ocr": false, "opinion_id": 691883 } ]

[ "41 Cal. App. 3d 530", "116 Cal. Rptr. 9" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n41 Cal. App. 3d 530 (1974)\n116 Cal. Rptr. 9\nBYRON C. PRITCHARD, Plaintiff and Appellant,\nv.\nDALE L. SHARP, Defendant and Respondent.\nDocket No. 32758.\nCourt of Appeals of California, First District, Division Two.\nSeptember 3, 1974.\n*531 COUNSEL\nKern, Vanlue & Holdrich and Larry F. Holdrich for Plaintiff and Appellant.\nJageman & McGraw and William E. Jageman for Defendant and Respondent.\nOPINION\nTHE COURT.\nThe sole question we are called upon to decide on this appeal is whether an action brought under section 3342 of the Civil Code, the \"dog bite statute,\" is governed by the one-year statute of limitations of subdivision 3 of section 340 of the Code of Civil Procedure, or the three-year statute of limitations of subdivision 1 of section 338 of the Code of Civil Procedure.\n(1) Section 3342 of the Civil Code was originally enacted in 1931. (Stats. 1931, ch. 503, p. 1095.) The statute merely changed the proof required under the common law action which preexisted the statute by deleting the requirement that to establish liability it must be alleged and proved that the dog was \"vicious.\"\nThe action is one for the recovery of damages for personal injuries. The controlling section is therefore subdivision 3 of section 340 of the Code of Civil Procedure. (Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal. 2d 785, 787-788 [264 P.2d 5, 41 A.L.R. 2d 1037]; Liberty Mutual Ins. Co. v. Fabian (1964) 228 Cal. App. 2d 427, 429-432 [39 Cal. Rptr. 570], hg. den.; 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 310, p. 1153.)\nJudgment of dismissal affirmed.\n", "ocr": false, "opinion_id": 2179475 } ]

[ "17 P.3d 434", "130 N.M. 61", "2001 NMSC 002" ]

[ { "author_str": "Minzner", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5160, "opinion_text": "\n17 P.3d 434 (2001)\n130 N.M. 61\n2001-NMSC-002\nSTATE of New Mexico, Plaintiff-Petitioner,\nv.\nFranklin Harrison BEGAY, Defendant-Respondent.\nState of New Mexico, Plaintiff-Petitioner,\nv.\nPeter R. Phillips, Defendant-Respondent.\nState of New Mexico, Plaintiff-Petitioner,\nv.\nLester Bitsuie, Defendant-Respondent.\nNos. 26,345, 26,346 and 26,347.\nSupreme Court of New Mexico.\nJanuary 4, 2001.\nPatricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Petitioner.\nPhyllis H. Subin, Chief Public Defender, Lisa N. Cassidy, Assistant Appellate Defender, Santa Fe, NM, for Respondents.\nD. Eric Hannum, Albuquerque, NM, for Amicus Curiae New Mexico Criminal defense Lawyers Association.\n\nOPINION\nMINZNER, Chief Justice.\n{1} The State appeals from three separate Court of Appeals decisions affirming trial court refusals to use a prior felony DWI (driving while intoxicated) conviction, see NMSA 1978, § 66-8-102 (1999), to enhance a sentence for a present non-DWI felony under the habitual offender statute, see NMSA 1978, § 31-18-17 (1993). See State v. Begay, No. 21,060, slip op. (NMCA May 2, 2000); State v. Phillips, No. 21,061, slip op. (NMCA May 2, 2000); State v. Bitsuie, No. 21,062, slip op. (NMCA May 2, 2000). We affirm.\n\nI.\n{2} Defendants Frank Harrison Begay, Lester Bitsuie, and Peter Phillips were each convicted of a non-DWI felony in San Juan County. In each case, the State attempted to enhance Defendant's sentence pursuant to Section 31-18-17, New Mexico's habitual offender statute. In each case, the State relied on a prior fourth-degree-felony DWI conviction, *435 pursuant to Section 66-8-102(G), as a basis for sentence enhancement. In each case, the trial judge concluded that a prior felony DWI conviction could not be used as a basis for enhancing the sentence pursuant to the habitual offender statute.\n{3} The State appealed these trial court decisions. The Court of Appeals affirmed each decision, relying on our statement in State v. Anaya, 1997-NMSC-010, ¶ 33, 123 N.M. 14, 933 P.2d 223, that \"it is clear ... the [L]egislature did not intend to apply Section 31-18-17 to the new felony created by Section 66-8-102(G) for sentencing purposes.\" See Begay, slip op. at 2; Phillips, slip op. at 2; Bitsuie, slip op. at 2.\n\nII.\n{4} The State argues that the Court of Appeals erred in relying on Anaya for two reasons. First, the State argues that Anaya did not deal with the specific issue of whether a non-DWI felony conviction could be enhanced by a prior felony DWI conviction. Second, the State argues that Anaya \"rested on a concern that the [L]egislature did not intend to create two enhancements for the same crime,\" a concern the State argues is not present here because the felony sought to be enhanced is not the DWI felony. The State is correct that Anaya did not deal with the specific question of whether a sentence for a present non-DWI felony could be enhanced by a prior DWI felony. Anaya presented the question of whether a sentence for a present DWI felony could be enhanced by a prior non-DWI felony. We do not believe, however, that this difference is significant in determining the outcome of these cases. Contrary to the State's assertion, our concern in Anaya was not double enhancements; we were concerned that the Legislature did not intend for a felony DWI conviction to be considered a felony for purposes of the habitual offender statute. Similarly, the resolution of these cases hinges on whether the Legislature intended for a felony DWI conviction to be considered a felony for purposes of the habitual offender statute. We now review Anaya.\n{5} We addressed two issues in Anaya. We considered the question whether the Legislature intended to create a new crime of felony DWI, separate from the offense of misdemeanor DWI, that would require proof beyond a reasonable doubt of a defendant's three (or more) prior DWI convictions as an element of the offense when it enacted Section 66-8-102(G). See Anaya, 1997-NMSC-010, ¶ 3, 123 N.M. 14, 933 P.2d 223. We also considered the question whether the Legislature intended to permit a sentence for a present felony DWI conviction to be enhanced pursuant to the habitual offender statute with prior non-DWI felony convictions. Id. In answering these questions, we were cognizant of repeated amendments to the DWI statute since 1941, which increased penalties slightly, and the consistent statutory separation of the basic definition of the offense from the sentencing provisions for repeat offenders. See id., 1997-NMSC-010, ¶¶ 17-18, 123 N.M. 14, 933 P.2d 223. We determined that the Legislature did not intend to create a wholly separate offense of felony DWI requiring proof beyond a reasonable doubt of three prior DWI convictions as an element of the offense when it enacted Section 66-8-102(G). See Anaya, 1997-NMSC-010, ¶ 14, 123 N.M. 14, 933 P.2d 223. Rather, Section 66-8-102(G) was designed to increase the punishment available for repeat DWI offenders. See Anaya, 1997-NMSC-010, ¶ 14, 123 N.M. 14, 933 P.2d 223. Pursuant to NMSA 1978, § 31-19-1(A) (1984), the maximum sentence of imprisonment that can be imposed for a misdemeanor offense is 364 days. Under our statutory scheme, sentences longer than 364 days are reserved for offenses classified as felonies. See NMSA 1978, § 31-18-15 (1999). We concluded that Section 66-8-102(G) classifies a fourth or subsequent DWI conviction as a felony to give courts the discretion to impose a maximum sentence of greater than one year (up to eighteen months) for a fourth or subsequent offense. See Anaya, 1997-NMSC-010, ¶ 23, 123 N.M. 14, 933 P.2d 223 (\"[W]e are persuaded that the [L]egislature added fourth-degree-felony status in Section 66-8-102(G) in order to increase the punishment for repeat offenders.\").\n{6} We also concluded in Anaya that it is unclear whether the Legislature intended for *436 a fourth or subsequent DWI conviction to be considered a felony for purposes of the habitual offender statute. See 1997-NMSC-010, ¶ 31, 123 N.M. 14, 933 P.2d 223. Despite Section 66-8-102(G)'s denomination of a fourth or subsequent conviction as a felony, we were concerned that the Legislature only intended to increase the available penalty for a fourth or subsequent DWI offense from 364 days to eighteen months, without a corresponding intention to consider driving while intoxicated a felony for all other purposes. See Anaya, 1997-NMSC-010, ¶ 33, 123 N.M. 14, 933 P.2d 223 (Section 66-8-102 \"changes the classification of a criminal act which is now and has been a misdemeanor into a felony for sentencing purposes only.\"). We noted that in reclassifying a fourth or subsequent DWI conviction as a felony, the Legislature had already enhanced the statutory penalty for driving while intoxicated once, and we assumed that if the Legislature intended for the penalty to be enhanced a second time by the habitual offender statute, which could add as much as eight habitualfelon years to an eighteen month maximum sentence, the Legislature would have expressly stated such an intention. See id., ¶ 31 (\"The habitual offender statute is highly punitive, and it should not apply unless the [L]egislature clearly and specifically states its intention within the body of the statute itself.\") (citation omitted).\n{7} Neither Section 66-8-102(G) nor Section 31-18-17, the habitual offender statute, expressly provides that the habitual offender statute applies to felony DWI convictions. Faced with statutory silence, we concluded that the legislative intent was uncertain. See Anaya, 1997-NMSC-010, ¶ 32, 123 N.M. 14, 933 P.2d 223. In accordance with our rule of lenity, which requires \"that criminal statutes ... be interpreted in the defendant's favor when insurmountable ambiguity persists regarding the intended scope of [those] statute[s],\" State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994), we held that a sentence for a felony DWI conviction could not be enhanced pursuant to the habitual offender statute. See Anaya, 1997-NMSC-010, ¶ 32, 123 N.M. 14, 933 P.2d 223.\n{8} Though our holding rested on the rule of lenity, we also expressed our view that the statutory silence of Section 66-8-102(G) and Section 31-18-17, in combination with Section 66-8-102(G)'s reference to a \"jail\" term rather than a \"prison\" term, makes it \"clear that the [L]egislature did not intend to apply Section 31-18-17 to the new felony created by Section 66-8-102(G) for sentencing purposes.\" Anaya, 1997-NMSC-010, ¶ 33, 123 N.M. 14, 933 P.2d 223. We then invited the Legislature to clarify its intention if it disagreed with our holding.\n{9} Though this case presents a slightly different question than the one we answered in Anaya, we believe that our analysis in Anaya controls the result in this case. As we previously stated, our holding in Anaya rested not on a concern that the Legislature did not intend to create two enhancements for the same crime, but rather a concern that the Legislature did not intend to have a fourth or subsequent DWI offense considered a felony for purposes of the habitual offender statute. In answering the question of whether a sentence for a felony DWI may be enhanced pursuant to the habitual offender statute, we held that the legislative intent to apply the habitual offender statute to the new felony created by Section 66-8-102(G) was uncertain. See Anaya, 1997-NMSC-010, at ¶ 32, 123 N.M. 14, 933 P.2d 223 (\"We hold that an insurmountable ambiguity exists as to the intended scope of these criminal statutes....\"). The Legislature has not acted to clarify its intention regarding the relationship of the DWI and habitual offender statutes subsequent to our decision in Anaya. Therefore, legislative intent to have a fourth DWI felony conviction considered a felony for purposes other than providing a term of imprisonment greater than one year remains uncertain. Our rule of lenity requires that we construe the statute in favor of Defendants. See Ogden, 118 N.M. at 242, 880 P.2d at 853.\n{10} We also continue to believe that \"[t]he most plausible interpretation is that the [L]egislature did not intend to punish fourth-time or more DWI offenders in the same manner as other fourth-degree felons.\" Id., ¶ 33; see also id., ¶ 31 (\"Section 66-8-102 *437 is completely silent with reference to the applicability of Section 31-18-17 to the newly created fourth degree DWI felonies ... and the [L]egislature's silence on the matter more clearly indicates to us its intention not to apply the enhanced sentences.\"). We note that \"[a]t common law, no number of convictions for any misdemeanor or misdemeanors could ever add up to or become a felony.\" Id. Although \"the [L]egislature can make multiple convictions for misdemeanor DWI a felony, we do not agree that it intended to make this `new felony' a fourth degree felony for habitual offender sentencing purposes.\" Id. We therefore affirm the holdings of the Court of Appeals.\n{11} IT IS SO ORDERED.\nBACA, FRANCHINI, SERNA and MAES, JJ., concur.\n", "ocr": false, "opinion_id": 2637451 } ]