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Harvard Library Innovation Lab 26

[ "44 F.3d 943" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca11.uscourts.gov/opinions/ops/19942587.OPA.pdf", "author_id": null, "opinion_text": "44 F.3d 943\n Robert Lee LANE, Petitioner-Appellant,v.Harry K. SINGLETARY; Robert A. Butterworth, Respondents-Appellees.\n No. 94-2587Non-Argument Calendar.\n United States Court of Appeals,Eleventh Circuit.\n Feb. 9, 1995.\n \n Marvin P. Jackson, Tampa, FL, for appellant.\n Stephen A. Baker, Asst. Atty. Gen., Tampa, FL, for appellees.\n Appeal from the United States District Court for the Middle District of Florida.\n Before TJOFLAT, Chief Judge, KRAVITCH and DUBINA, Circuit Judges.\n PER CURIAM:\n \n \n 1\n On August 31, 1989, in the Circuit Court for Manatee County, Florida, petitioner pled guilty, pursuant to a plea bargain with the state, to possessing and trafficking in crack cocaine. Petitioner now seeks a writ of habeas corpus setting aside those convictions. He contends that he is entitled to habeas relief because (1) his attorney provided him ineffective assistance of counsel (a violation of the Sixth and Fourteenth Amendments), and (2) his pleas of guilty to the two offenses were involuntary (a violation of the Fourteenth Amendment). The district court, adopting the findings of fact and conclusions of law reached by a magistrate judge following an evidentiary hearing, denied the writ. We affirm.\n \n \n 2\n After he was convicted in state court, petitioner was indicted and prosecuted in the Middle District of Florida for the conduct that gave rise to his state court convictions. A jury found petitioner guilty as charged, and the district court sentenced him to prison for life. The two state court convictions at issue played an enhancing role in the district court's fashioning of petitioner's sentence.\n \n \n 3\n Petitioner contends that his attorney's performance in state court failed to meet the Sixth Amendment standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), because, among other things, his attorney failed to advise him that he could be prosecuted in federal court, and that, if he were convicted, the court would take his state court convictions into account in fashioning his sentence. Specifically, petitioner claims that his attorney should have advised him that his state court convictions could trigger a sentence of life imprisonment. Had counsel informed him of this possibility, petitioner contends, he would not have pled guilty to the state charges.\n \n \n 4\n The magistrate judge found that counsel's performance in defending petitioner in the Manatee County Circuit Court conformed to the professional standards articulated in Strickland. At the time petitioner tendered his guilty pleas to the Manatee County Circuit Court, it was the policy of the United States Attorney for the Middle District of Florida (which includes Manatee County) not to seek a federal indictment for the same criminal act that formed the basis of a conviction in a state court within the district. As Chairman of the Criminal Law Section of the Manatee County Bar Association, petitioner's attorney was well aware of that policy and, thus, as the magistrate judge found, had no reason to believe that, if petitioner pled guilty in state court, he might face federal prosecution for essentially the same offenses. For this reason, advising petitioner of the possibility of a federal indictment did not enter counsel's mind.\n \n \n 5\n We do not find clearly erroneous the court's factual finding that counsel performed in a manner that satisfied the standard of practice expected of criminal practitioners in the community. Nor do we quarrel with the court's conclusion that counsel's performance satisfied the first prong of the Strickland test--that is, that it did not \"[fall] below an objective standard of reasonableness.\" Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. It may be that, in a given case, counsel, if he or she is to be effective in the Sixth Amendment sense, must inform a defendant who is considering a plea of guilty to a charge of the possibility that the defendant could be prosecuted in another jurisdiction for the criminal conduct that gave rise to the charge and that any sentence that might be imposed on the charge would be taken into account by the court in the other jurisdiction in fashioning the defendant's sentence. The case before us now, however, is not such a case.\n \n \n 6\n Petitioner's other allegations of attorney ineffectiveness and his claim that his guilty pleas were involuntary are meritless, and thus require no discussion. The judgment of the district is, accordingly,\n \n \n 7\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 70149 } ]

[ "551 F. App'x 251" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\13/13-40334.0.pdf", "author_id": null, "opinion_text": " Case: 13-40334 Document: 00512500014 Page: 1 Date Filed: 01/14/2014\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\n No. 13-40334 FILED\n Summary Calendar January 14, 2014\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee\n\nv.\n\nJOSE ALEJANDRO CRUZ-CAMPOS,\n\n Defendant-Appellant\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. 7:12-CR-1958-1\n\n\nBefore WIENER, OWEN, and HAYNES, Circuit Judges.\nPER CURIAM: *\n After Defendant-Appellant Jose Alejandro Cruz-Campos pleaded guilty\nto one count of illegal reentry into the United States, the district court imposed\na within-guidelines prison sentence of 46 months. Cruz-Campos contends on\nappeal that the district court erred in classifying his prior Pennsylvania\naggravated assault conviction under Title 18 Pennsylvania Consolidated\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: 13-40334 Document: 00512500014 Page: 2 Date Filed: 01/14/2014\n\n\n No. 13-40334\n\nStatute Section 2702(a), as a crime of violence (COV) for purposes of U.S.S.G.\n§ 2L1.2.\n We review sentences for reasonableness by conducting a two-part\nanalysis. Gall v. United States, 552 U.S. 38, 49-51 (2007); United States v.\nDelgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we ensure that the\nsentencing court committed no significant procedural error, including\nimproperly calculating the guidelines range. Gall, 552 U.S. at 51. If we find\nno procedural error, we determine if the sentence is substantively reasonable\nunder a deferential abuse of discretion standard, taking into account the\ntotality of the circumstances. Gall, 552 U.S. at 51; United States v. Cisneros-\nGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s\ncharacterization of a prior offense as a crime of violence is a question of law\nthat we review de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272\n(5th Cir. 2005).\n We use a categorical approach to classify a prior conviction for\nsentencing purposes. Taylor v. United States, 495 U.S. 575, 602 (1990). Under\nthis framework, “the analysis is grounded in the elements of the statute of\nconviction rather than a defendant’s specific conduct.” United States v.\nRodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512\n(2013).\n When, as here, a statute has disjunctive subsections, we may apply a\nmodified categorical approach to determine the applicable subsection of\nconviction. United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir.\n2012). Under such an approach, we may review “the statutory definition,\ncharging document, written plea agreement, transcript of plea colloquy, and\nany explicit factual finding by the trial judge to which the defendant assented.”\nShepard v. United States, 544 U.S. 13, 16 (2005).\n\n\n\n 2\n\f Case: 13-40334 Document: 00512500014 Page: 3 Date Filed: 01/14/2014\n\n\n No. 13-40334\n\n Cruz-Campos claims that the district court erred by using the\nPennsylvania criminal complaint to determine the statutory subsection\ngoverning his aggravated assault conviction. He insists that there is nothing\nin the record to show that the offense named in that charging instrument is\nthe offense for which he was convicted. We disagree. In contrast to the\ndefendants in the cases on which he relies, Cruz-Campos does not claim that\nhe was convicted for an offense other than the one listed in the complaint;\nneither does he contend that a different charging instrument was issued. Cf.\nUnited States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004); United States\nv. Turner, 349 F.3d 833 (5th Cir. 2003). This case more closely approximates\nUnited States v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006), than it does\nMartinez-Paramo and Turner.\n Under Torres-Diaz, when a court must ascertain the statutory\nsubsection that governs a prior conviction, it may examine the charging\ndocument governing that conviction in conducting its analysis, “absent\nanything in the record affirmatively casting doubt on, or creating an ambiguity\nrespecting” the conclusion that the charging instrument in the record does in\nfact govern the prior conviction. 438 F.3d at 535. There is nothing in the record\nindicating that the disputed Pennsylvania criminal complaint did not govern\nCruz-Campos’s prior aggravated assault conviction, so the district court did\nnot err by relying on it. See id.\n Neither did the district court err by imposing the disputed COV\nadjustment. Examination of the record and the pertinent statute leads to the\nconclusion that Cruz-Campos’s prior conviction was under § 2702(a)(4), as the\nallegations in the criminal complaint track that subsection. See United States\nv. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012). We first look to the Model\nPenal Code’s (MPC’s) definition of aggravated assault when determining\n\n\n\n 3\n\f Case: 13-40334 Document: 00512500014 Page: 4 Date Filed: 01/14/2014\n\n\n No. 13-40334\n\nwhether a given state conviction for that offense amounts to a COV. See id. at\n231. Section 2702(a)(4) aligns almost perfectly with MPC § 211.1(2)(b), so we\nconclude that this subsection sets forth a COV. See id.; see also United States\nv. Martinez-Flores, 720 F.3d 293, 296 (5th Cir. 2013). It follows that the district\ncourt did not err when it imposed the disputed adjustment.\n AFFIRMED.\n\n\n\n\n 4\n\f", "ocr": false, "opinion_id": 2649273 } ]

[ "215 P.3d 127", "230 Or. App. 431" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n215 P.3d 127 (2009)\n230 Or. App. 431\nSTATE\nv.\nJONES.\nA136829\nCourt of Appeals of Oregon.\nAugust 19, 2009.\nAffirmed without opinion.\n", "ocr": false, "opinion_id": 2639715 } ]

[ "785 F.2d 312" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/785/785.F2d.312.85-2102.html", "author_id": null, "opinion_text": "785 F.2d 312\n U.S.v.Mangovski\n 85-2102\n United States Court of Appeals,Seventh Circuit.\n 1/8/86\n N.D.Ill., 610 F.Supp. 480\n AFFIRMED\n ", "ocr": false, "opinion_id": 465738 } ]

[ "31 F. Supp. 2d 828" ]

[ { "author_str": "Jelderks", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n31 F. Supp. 2d 828 (1998)\nU S WEST COMMUNICATIONS, INC., Plaintiff,\nv.\nTCG OREGON, a limited Partnership; Roger Hamilton, Ron Eachus, Commissioner, and Joan H. Smith, Commissioner, in their official capacities as Commissioners of the Oregon Public Utility Commission; and Oregon Public Utility Commission, Defendants.\nCivil No. 97-858-JE.\nUnited States District Court, D. Oregon.\nDecember 10, 1998.\n*829 *830 Lawrence H. Reichman, Chin See Ming, Perkins Coie, Portland, OR, Sherilyn C. Peterson, Kirstin S. Dodge, Perkins Coie, Bellevue, WA, Norton Cutler, U.S. West Communications, Inc., Denver, CO, for plaintiff U.S. West Communications.\nKeith L. Kutler, Davis Wright Tremaine, Portland, OR, Paul M. Gordon, Wendell H. Goddard, Gordon & Goddard, Oakland, CA, for defendant TCG Oregon.\nMichael T. Weirich, W. Benny Won, Assistant Attorneys General, Department of Justice, Salem, OR, for defendants Oregon Public Utility Commission and Commissioners Hamilton, Eachus & Smith.\n*831 Philip D. Barz, Emily M. Sweeney, Theodore C. Hirt, Leslie V. Batchelor, U.S. Department of Justice, Civil Division, Washington, DC, Herbert C. Sundby, U.S. Attorneys Office, Portland, OR, for amicus curiae Federal Communications Commission.\n\nOPINION AND ORDER\nJELDERKS, United States Magistrate Judge.\nPlaintiff U S West Communications, Inc. (\"US West\") brings this action against defendants TCG Oregon (\"TCG\"),[1] the Oregon Public Utility Commission (\"PUC\"), and PUC Commissioners Roger Hamilton, Ron Eachus, and Joan Smith (\"the Commissioners\"). The Federal Communications Commission (\"FCC\") has participated in this proceeding as amicus curiae.\nThe dispute concerns an interconnection agreement between U.S. West and TCG (\"the Agreement\"). The background facts and procedural history are described in the prior opinion dated January 30, 1998, which denied defendants' motions to dismiss. The parties have each moved for summary judgment.\n\nSCOPE AND STANDARD OF REVIEW\nThe Telecommunications Act of 1996 (\"the Act\"), Pub.L. No. 104-104, 110 Stat. 56, 47 U.S.C. § 153 et seq., provides for federal district court review of interconnection agreements concluded pursuant to 47 U.S.C. § 252. \"[A]ny party aggrieved\" by a decision of a state public utilities commission concerning such an agreement \"may bring an action in an appropriate Federal district court to determine whether the Agreement ... meets the requirements of the Act.\" 47 U.S.C. § 252(e)(6). The Act does not specify either the standard or scope of review.\nAfter some initial hesitation, the parties now generally agree that the scope of this court's review is limited to the administrative record. With regard to the standard of review, it is neither desirable nor practical for this court to sit as a surrogate public utilities commission to second-guess the decisions made by the state agency to which Congress has committed primary responsibility for implementing the Act in Oregon. Rather, this court's principal task is to determine whether the PUC properly interpreted and applied the Act, which is a question of federal law that is reviewed de novo.\nIn all other respects, review will be under the arbitrary and capricious standard.\n\nDISCUSSION\n\n1. Count I (pricing)\n\n\nA. Unbundled Loop Price\nThe arbitrator established an interim price of $17.20 for an unbundled loop. After this action was commenced, the PUC established a new price of $16.14 in a proceeding known as UM 844. Although the parties refer to this as the \"final\" price, it is the court's understanding that the $16.14 price may be subject to revision in the future if conditions warrant. Therefore, the court will use the term \"UM 844 price\" rather than \"final price\" when referring to the $16.14 rate.\n\n(i) Challenge to Interim Loop Price\nAdoption of the UM 844 price effectively moots U.S. West's challenge to the interim price. US West does not seek compensation for the services (if any) that were purchased at the interim price, so the sole remaining question is the price for future services. That will be governed by the UM 844 price (or its successors).\nEven if the issue were not moot, this court would affirm the arbitrator's decision establishing the interim price. The PUC began studying unbundled loop prices several years before the Act was enacted. US West actively participated in those earlier proceedings, known as UM 351. When Congress enacted the Act in 1996, it established very short timelines. The arbitrator understandably chose to rely heavily upon the extensive record and analysis that already existed, instead of beginning the process anew.\nReliance on those earlier proceedings did not deny U.S. West due process of law. Contrary to the suggestion in U.S. West's *832 brief, the PUC did not apply principles of collateral estoppel to preclude U.S. West from contesting the loop price issue. Rather, the earlier proceedings were treated as evidence that could be considered in the subsequent proceeding, and which the arbitrator and the PUC ultimately found were the most reliable evidence then available. US West was free to introduce contrary evidence and to urge a different result.\nThe arbitrator also acted properly in declining to consider the voluminous cost studies submitted by U.S. West just two weeks before the hearing. The arbitrator reasonably concluded that he lacked sufficient time to properly analyze those studies before the applicable deadlines, and also expressed concern about the accuracy of those studies.\n\n(ii) Challenge to UM 844 Loop Price\nThe court rejects most of U.S. West's arguments concerning the UM 844 price for unbundled loops. The PUC did not err by relying upon the record established in the UM 351, UM 773, and UM 844 proceedings. Nor does the Act require the PUC to ignore its own extensive expertise and experience in overseeing telephone pricing and service in Oregon, and in particular its knowledge of pricing, costs, and related issues as they concern U.S. West.\nThe parties also dispute the interpretation and application of a stipulation between U.S. West and the PUC. In ¶ 17 of the stipulation, the PUC and U.S. West agreed that in addition to the methodology prescribed in ¶ 16 of the stipulation U.S. West would also submit a study based on the methodology outlined in ¶ 17. The PUC could then compare the results obtained from these two methodologies and decide whether it wished to use the latter method in the future. However, there was no binding commitment by the PUC to use the ¶ 17 methodology in the current round of loop pricing.\nA more difficult issue is the number of pairs per drop to be used in calculating loop prices. US West contends that most existing homes employ a two-pair design, though new construction often utilizes a three or even four-pair design. The number of pairs per drop materially impacts the loop price in two respects. First, the total loop investment (i.e., the dividend of the equation) is higher if the scorched node analysis assumes installation of three pairs per drop instead of two. Second, the divisor in the equation is the number of working loops, which is determined by multiplying the total number of loops times the average fill factor (which measures the percentage of lines or other facilities actually being used, as opposed to the theoretical capacity). US West contends that by assuming three pairs per drop instead of two (i.e., the design that will be used for future construction), but using the existing fill factors which are based on two pairs per drop, the PUC has overstated the number of working loops and thereby understated the total loop investment per working loop. That, in turn, diminishes the price U.S. West receives for the use of its loops.\nThe PUC insists that U.S. West is bound by the stipulation, and urges this court to resolve the dispute pursuant to Oregon contract law. However, ¶ 16 of the stipulation never mentions the number of pairs per drop, nor is that topic specifically discussed elsewhere in the stipulation. The court also reviewed the relevant portions of the record, but found little evidence that this issue was ever discussed or that any agreement was reached. Rather, the discussions about ¶ 16 focused on whether spare capacity should be treated as a volume-sensitive cost, and whether to use the average or the objective feeder fill factor.\nIt is possible that the number of pairs per drop was understood by all parties or implied by other paragraphs in the stipulation, but the court has seen no clear evidence of that. Nor is it possible for this court to defer to the PUC's expertise unless the agency actually exercised that expertise. The record demonstrates that with respect to this issue, both in its own proceedings and before this court, the PUC relied almost entirely upon its contention that U.S. West was bound by the stipulation as a matter of contract law. As a result, the agency did not address — at least on the record — seemingly fundamental questions such as whether it is appropriate to apply existing fill factors (which are based on *833 historic drop designs) to the new three-pair drop design, or whether the resulting loop price provides U.S. West \"just and reasonable\" compensation for the use of its loops as required by the Act.\nRather than conducting a lengthy trial, at which the parties no doubt would present conflicting testimony regarding the negotiations that led to this stipulation as well as industry conventions, the court will remand this matter to the PUC for reconsideration with instructions to resolve these issues by applying its expertise and the principles delineated in the Act, instead of relying upon the stipulation as a binding contract. As part of that reconsideration process, the PUC may reopen the record to accept additional evidence on this issue.\n\nB. Collocation Rates\nThe arbitrator concluded that it would be more efficient to establish a flat rate for physical collocation at any given U.S. West facility instead of attempting to fix a unique price for each specific location. While not the only permissible choice, it was a reasoned decision which this court will not disturb. The court also will not disturb the arbitrator's decision to fix the price for collocation infrastructure at $40,000 per facility.\nFinally, the arbitrator did not err by considering the prices fixed in other agreements as evidence of what is commercially reasonable. This does not implicate the same concerns as the \"most-favored-nation\" rule that was invalidated in Iowa Util. Bd. v. Federal Communications Comm'n, 120 F.3d 753, 800-01 (8th Cir.1997), cert. granted, ___ U.S. ___, 118 S. Ct. 879, 139 L. Ed. 2d 867 (1998).\n\nC. Resale Discount\nThe arbitrator did not err by using, on an interim basis, the low end (17 percent) of the FCC proxy price for resale discounts. As a result of the decision in Iowa Utilities, 120 F.3d at 813, the FCC proxy prices are not binding upon the states. Nevertheless, those prices still retain whatever persuasive force the individual state public utility commissions ascribe to them. A principal reason for developing those proxy prices in the first place was the recognition that individual state public utility commissions might be unable to develop their own prices in time to meet the statutory deadlines. Incumbent local exchange carriers (\"ILECs\"), such as U.S. West, knew the FCC might be issuing proxy prices and had an opportunity to participate in that rulemaking process. See Notice of Proposed Rulemaking, 61 Fed.Reg. 18311 (April 25, 1996). US West also had an opportunity to persuade the arbitrator and the PUC not to use the proxy prices or to set a different price and, in fact, made just such an argument in its presentations. See, e.g., Direct Testimony of Robert G. Harris (R 15A) at 67. There was no due process violation.\nUS West also argues that the proxy prices are based upon industry averages, without regard to the specific circumstances of U.S. West's operations in Oregon and whether U.S. West will actually avoid those costs. Even if that is true, it does not justify setting the decision aside. The arbitrator emphasized that this was merely an interim rate until more accurate cost savings data becomes available and is analyzed. US West's concerns can be addressed at that time.[2]\nUS West's attempt to draw a distinction between costs that are reasonably avoidable, versus costs that are actually avoided, is unpersuasive. The latter would require the Competitive Local Exchange Carriers (\"CLECs\") and the PUC to micro-manage U.S. West's operations to ensure that U.S. West actually availed itself of all reasonable opportunities for savings. To the extent U.S. West contends that certain costs are in fact not avoidable, it is merely disputing the PUC's (or the FCC's) determination of what costs are \"reasonably avoidable.\"\nUS West next objects to discounting services that are already subject to volume *834 or term discounts. The Act does not exempt such services, per se, from the obligation imposed by 47 U.S.C. § 252(d)(3) to make such services available at a wholesale rate that is based upon the retail price less costs that U.S. West will reasonably avoid. However, the wholesale discount for services that already are subject to volume or term discounts ordinarily will be less than the standard wholesale discount, since in all likelihood the existing volume or term discount already takes into account some of the cost savings that could reasonably be achieved from selling the product at wholesale (e.g., billing, marketing). While there may be room for some additional savings, it is unlikely to be the full wholesale discount rate.\nIn the other four interconnection agreements that this court has reviewed (with WorldCom, AT & T, MCI, and Sprint), the wholesale discount rate for these already discounted services was tentatively set at one-half the usual wholesale discount rate (in addition to the existing volume or term discount). By contrast, the TCG Agreement makes no special provision for services that are already subject to volume or term discounts. The court can find no principled basis for this disparity between the TCG Agreement and all other interconnection agreements involving U.S. West in Oregon.\nAccordingly, the PUC shall revise Section X of the TCG Agreement to provide that the wholesale discount for services already subject to volume or term discounts shall be the greater of (1) the wholesale discount rate (which is presently 17 percent), or (2) one-half of the wholesale discount rate plus any existing volume or term discount.\nFinally, U.S. West protests the PUC's determination that residential services are subject to the wholesale discount. US West contends residential service is already priced below cost. However, the Act does not exempt residential services from the wholesale discount requirement. See 47 U.S.C. § 252(d)(3). To the extent a particular service is already priced at or below cost, it is possible that U.S. West will not recoup its entire cost, but that would be true without regard to the wholesale discount. By definition, the wholesale discount is based upon the costs that U.S. West could reasonably avoid by selling the service at wholesale. If no costs can be avoided, then there will be no discount. Consequently, U.S. West's net profit or loss on the service should be the same notwithstanding the wholesale discount. If U.S. West fails to recoup its costs, it is because the discount rate is excessive (which is addressed above) or because the price for the service was set too low in the first place. The latter issue does not directly concern the Act or the interconnection Agreement, but must be separately addressed in an appropriate PUC proceeding. For the same reason, there is no taking, since U.S. West's net profit or loss on the particular service should be the same as before the wholesale discount.\n\nD. Reciprocal Compensation for Local Traffic\nThe PUC acted within its authority in reversing the arbitrator's decision and adopting \"bill-and-keep\" as an interim method for allocating the costs of transporting and terminating local traffic between U.S. West and TCG customers. The FCC has approved the use of this method and, though it may not have been the only permissible decision, the PUC reasonably could have concluded that it was appropriate to use that method here.\nAt the time it made its decision, the PUC had adopted bill-and-keep as the interim default method to be used until a permanent compensation method was agreed upon. See PUC Order 96-021, p. 52. That Order contains a detailed explanation of the reasons for the decision, discusses at length the diversity of opinions regarding the best way to provide reciprocal compensation, and outlines the efforts the PUC would make to obtain additional data and devise a long-term solution.\nOrder 96-021 emphasized that bill-and-keep was to be used \"for an interim period of not more than 24 months.\"Id. Subsequently, the PUC confirmed its decision to let all existing bill-and-keep arrangements lapse effective January 12, 1998, but chose to let the parties to each interconnection agreement negotiate their own permanent arrangements *835 instead of the PUC establishing a single method. See PUC Order 97-372.\nUS West contends that the bill-and-keep provisions in its Agreement with TCG have therefore lapsed or been abrogated. TCG responds that under the terms of the Agreement, bill-and-keep remains in place until the PUC establishes an alternative form of compensation (or certain other events occur).\nUnder TCG's interpretation of the Agreement and of the PUC Orders, TCG has no incentive to ever negotiate a replacement method of compensation with U.S. West. That is unacceptable. In its Order 97-372 (September 18, 1997), the PUC specifically directed the parties to \"commence negotiations immediately to develop a permanent reciprocal compensation mechanism.\" Id. at 2. The PUC Order also directed the parties to \"notify the Commission regarding the progress of negotiations. If the parties cannot agree on a compensation method, the matter may have to be resolved pursuant to the dispute resolution provisions in the contracts.\"\nOn November 5, 1997, U.S. West formally invited TCG to commence negotiations on a replacement compensation arrangement. On January 5, 1998, TCG declined the offer, insisting that the existing arrangement remains in effect until it is superseded by a new compensation arrangement established by the PUC.\nTCG is wrong. The contractual provision (Section IX(A)(1)(a)) that TCG cites is premised upon the assumption that the PUC would continue to prescribe the compensation methodology. However, the PUC has now abandoned that role and is allowing the parties to independently negotiate an agreement. Section XIX of the Agreement specifies that if a subsequent action by the PUC or FCC \"renders the Agreement inoperable or creates any ambiguity or requirement for further amendment to the Agreement, the Parties will negotiate in good faith to agree upon any necessary amendments to this Agreement.\" The record before this court suggests that TCG has not done so.\nThe terms of Section IX(A)(1)(a) also undermine TCG's contention that the bill-and-keep arrangement in the U.S. West-TCG Agreement exists entirely independent of the PUC Orders governing this topic. In addition, the final sentence of Order 97-372, which states that the PUC may extend bill-and-keep for a short period if the parties have been unable to resolve the compensation issue, lends further support to U.S. West's contention that the PUC did not intend for bill-and-keep to remain in place indefinitely until TCG decides that it is willing to negotiate.\nUnder the terms of their Agreement, and of the PUC's Order, the parties must make a good faith attempt to resolve the compensation issue through negotiations. If they are unable to resolve the matter, then the dispute resolution provisions in the contract should be invoked.[3]\n\nE. Combining Local and Toll Traffic\nUS West complains that the Agreement lets TCG combine toll and local traffic on two-way trunks, when the industry practice is to separate local and toll traffic because it is difficult to reliably distinguish between the two for billing purposes if they are commingled. This is precisely the sort of technical question that should be addressed in the first instance by the PUC. In reviewing the arbitrator's decision and that of the PUC, it does not appear that either directly addressed the issue, which strongly suggests that U.S. West did not adequately call the issue to their attention and insist upon its resolution. The court declines to address this issue here for the first time. However, U.S. West is not precluded from requesting resolution of this issue when the contract comes up for renegotiation.\n\nF. Conduit Pricing\nThe arbitrator did not abuse his discretion by setting a flat annual rate (.60 per foot) for use of U.S. West conduits, rather than negotiating a separate price for each conduit.\n\n\n*836 2. Count II (recombining elements)\n\nUS West seeks to clarify the Agreement to make clear that U.S. West has no obligation to recombine unbundled elements for TCG. U.S. West's principal concern is that, if forced to recombine these elements, it would be providing a finished service at a price far below even the discounted wholesale price for finished services. This would be contrary to the dichotomy (between resale and unbundled elements) that Congress established in 47 U.S.C. § 251(c)(3) and (c)(4), and create a substantial incentive for arbitrage. See Iowa Utilities, 120 F.3d at 813. From U.S. West's perspective, by analogy, TCG can either order a complete car (and get a wholesale discount from the retail price) or else order the parts (at the unbundled rate) and assemble the product themselves, but TCG cannot insist that U.S. West recombine the parts so that TCG receives a finished car for the price of the unassembled parts. The arbitrator acknowledged this concern, but believed he had no authority to act:\nThe FCC Rules appear to allow a carrier to purchase unbundled elements at unbundled element prices and have U.S. WEST bundle them back again to the finished service. The effect of the process is to allow a competitor to obtain a cheaper price than the Act's resale price (retail less cost avoided) for the same service. The competitor can thus completely circumvent the resale provisions of the Act by engaging in price arbitrage between resale prices and the prices of unbundled elements.... [However, t]he Act requires U.S. WEST to both unbundle and sell at wholesale discounts. The Act contains no provisions allowing restrictions on the use of unbundled elements.\nArbitrator's Decision (ARB 2), p. 13.\nThis issue is properly before the court. During the arbitration proceeding, U.S. West vigorously protested the practice of \"sham unbundling\" and asked that language be inserted in the agreement to prohibit such practice. See, e.g., U.S. West's Supplemental Response in Light of FCC Interconnection Orders (R 10) at 4-5, 13-14. The arbitrator rejected U.S. West's request because he believed that he had no choice in light of the FCC's order. US West has properly sought review of that decision by this court.\nTCG and the PUC contend that the court should not reach this issue because it is only a hypothetical controversy. The court disagrees. The court is reviewing the Agreement and the parties' respective objections to it. Whether this particular factual circumstance will actually arise in practice is not controlling. For that matter, there is no guarantee that the parties to this Agreement will ever purchase services from each other, hence the entire case may be for nought, but that possibility does not negate the existence of an actual controversy, at least in the context of this particular statute and the review process it establishes.\nBecause the arbitration decision predated the Eighth Circuit's decision in Iowa Utilities, this particular interconnection Agreement has never been reviewed to ensure compliance with the principles articulated by the Eighth Circuit. The PUC recently reconsidered its position on rebundling in light of Iowa Utilities, and issued PUC Order 98-467 (Nov. 13, 1998), which provides in relevant part that:\nMCImetro and GTE shall remove all provisions in [their] interconnection agreement that require GTE to combine network elements on behalf of MCImetro or which prohibit GTE from separating network elements that GTE currently combines. If the United States Supreme Court issues a decision in Iowa Utilities Board that is inconsistent with this conclusion, the parties may petition to revise the agreement.\nId., p. 3. While that order is not binding in the instant case, the PUC likely would reach the same conclusion here.[4] Accordingly, the court remands this issue to the PUC for reconsideration and for such further proceedings as it deems appropriate.\n\n\n*837 3. Count III (performance standards and liquidated damages)\n\nAccording to U.S. West, the Agreement improperly mandates that it meet performance standards exceeding even the standards under which it provides service to its own customers. However, U.S. West never explains whether it contends the Agreement contains more stringent standards than the actual levels of service it provides to its own customers or whether it is simply arguing that the standards in the Agreement are more stringent than the equivalent standards that the PUC has established for service by U.S. West to its customers. Nor has U.S. West provided this court with any basis upon which to make such a comparison.\nThe court concludes that TCG is entitled to the more favorable of the two measurements, i.e., if the service that U.S. West actually provides to its own customers exceeds the minimum standards established by the PUC for service to U.S. West customers, then TCG should receive the benefit of that same high level of service. Otherwise, TCG would be receiving inferior service rather than service \"that is at least equal in quality to that provided by the local exchange carrier to itself\" as required by 47 U.S.C. § 251(c)(2)(C). Most of the disputed standards appear to be premised upon the average service that U.S. West actually provides to its ten largest customers, rather than some hypothetical standard. The PUC could reasonably require that U.S. West provide that same level of service to TCG.\nThe court also observes that the PUC has broad discretion to establish service standards in Oregon. Generally speaking, the Act does not preclude the PUC from heightening those standards when appropriate to spur service improvements by U.S. West, so long as the higher standards are generally applicable. Otherwise, the Act would have the perverse effect of locking in existing service levels and precluding service improvements, which would frustrate one of the principal reasons for encouraging competition among local exchange carriers.\nIn addition, the instant controversy does not arise in a vacuum. The court takes judicial notice of the ongoing disputes between the PUC and U.S. West regarding perceived inadequacies in U.S. West's local telephone service in Oregon. The PUC could reasonably have considered its past experiences with U.S. West in determining whether performance standards were required and the substance of those standards.\nUS West also objects to provisions in the Agreement that mandate an award of liquidated damages to TCG if U.S. West fails to meet certain performance standards. For the most part, these damages are available only if U.S. West repeatedly fails to meet the minimum standards, which are set below the target standards. Although the Act does not expressly provide for such damages, neither does it categorically preclude such provisions in an interconnection Agreement so long as they are reasonable and justified under the circumstances.\nInadequate service can be fatal to a new local exchange carrier such as TCG. If prospective customers try TCG service only to discover that they cannot reliably obtain a dial tone, that calls are disconnected in the middle of a conversation, or that service orders are not timely filled, then those customers will probably switch back to U.S. West and turn a deaf ear to future entreaties from TCG. Adverse publicity will also deter other prospective customers from considering TCG. Even assuming the problems are eventually resolved, that may not be soon enough to save TCG. Moreover, damages in such cases can be difficult to quantify and prove, and it would require years (and considerable expense) to litigate such claims. A further concern is that U.S. West stands to gain financially if customers become dissatisfied with TCG's local service, hence U.S. West is operating under a conflict of interest.\nUnder the totality of the circumstances, including the PUC's extensive experience in overseeing U.S. West service in Oregon, the PUC could reasonably conclude that enforceable performance standards, i.e., those with teeth, are necessary and proper. Even if no damages are ever paid, the very existence of enforceable standards may help to reassure TCG (and other prospective CLECs) who might otherwise be hesitant to enter the local *838 telephone market, and to minimize the suspicions and accusations that might otherwise arise between TCG and U.S. West. The PUC also could reasonably have concluded that the liquidated damages clause would help to minimize costly litigation. US West disagrees with these premises, but the question before this court is not whether the PUC is correct but simply whether the PUC could reasonably have come to such a conclusion (it could), and whether the liquidated damages provision violates the Act (it does not).\nUS West also complains about many of the details of the performance standards and the liquidated damages. The arbitration was conducted \"baseball-style.\" Each side's \"last-best-offer\" was presented to the arbitrator who was to choose between them. US West's last-best-offer offered little protection for TCG. The arbitrator therefore selected TCG's offer. While this would not preclude the court from setting aside the arbitrator's decision if it were truly inconsistent with the Act, under the circumstances the court declines U.S. West's invitation to re-argue the details of the standards and the provisions for damages.\nThere is no merit to U.S. West's contention that the liquidated damages clause is a penalty and is therefore invalid under Oregon law. The court also rejects U.S. West's argument that the Agreement violates state law because it allows TCG to recover both liquidated damages and also compensatory damages such as lost profits. The court interprets those contractual provisions as giving TCG the option of seeking either liquidated damages or conventional damages, but not both for the same incident. If liquidated damages were the exclusive remedy, then the clause would act as a cap on U.S. West's liability, regardless of the amount of damage that actually resulted from the breach. US West has not pointed to any Oregon authority that precludes the use of liquidated damages as an optional alternative to compensatory damages rather than a mandatory, exclusive remedy.\n\n4. Count IV (violation of delegated authority)\n\nSubparts A (resale of deregulated services) and B (application of resale discounts to nonrecurring charges) were previously dismissed. Subpart C (liquidated damages) essentially repeats Count III above. The PUC did not exceed its authority in approving the performance standards and remedies requested by TCG.\n\n5. Count V (interim number, portability)\n\nThis claim is not discussed in U.S. West's briefs. Accordingly, the court deems it to have been withdrawn.\n\n6. Count VI (unrestricted collocation)\n\nThis claim is not discussed in U.S. West's briefs. Accordingly, the court deems it to have been withdrawn.\n\n7. Count VII (due process)\n\nUS West's due process claim primarily alleges that there was insufficient evidence in the record to support the challenged decisions. To the extent that this court has affirmed those decisions, the claim necessarily fails.\n\n8. Count VIII (taking)\n\nUS West's taking claim does not seek compensation for a completed taking, but rather alleges that a taking will result if the PUC's decision is affirmed and U.S. West receives less compensation for services than the amount to which it allegedly is entitled. US West also urges this court to construe the Act so as to avoid a taking.\nThe court rejects defendants' contention that this claim must be dismissed because U.S. West has not exhausted state compensation remedies. It is doubtful that the state courts would have jurisdiction over such a claim, since the federal courts have exclusive jurisdiction over challenges to the interconnection agreements arising from the Act. 47 U.S.C. § 252(e)(4) and (e)(6). The takings claim is essentially the flip side of a challenge to the terms of the interconnection agreement (or a challenge to the Act itself).\nNevertheless, the taking claim fails because no taking has yet occurred. No evidence has been presented to this court to *839 show that TCG has purchased any services pursuant to this Agreement, nor is there any assurance it ever will. Even if TCG does purchase services, the details of those purchases are as yet undetermined. For instance, it is not clear whether TCG will purchase finished services or unbundled elements, or whether it will purchase services for residential or business use. In addition, a number of the prices and terms are clearly denominated as interim and subject to revision by the PUC once additional information is obtained.\nFinally, since the Act mandates that U.S. West receive just and reasonable compensation, a determination by this court that the Agreement complies with the Act (or setting aside a provision that does not comply with the Act) is fatal to any claim that U.S. West's property has been taken without just compensation.\n\nORDER\nThe cross-motions for summary judgment by U.S. West (docket # 65-1), the PUC and the Commissioners (docket # 76-1), and TCG (docket # 79-1) are each GRANTED IN PART AND DENIED IN PART. Summary judgment is GRANTED FOR DEFENDANTS on part of Count I (interim loop price, collocation rates, resale discount excepting those services already subject to a volume or term discount, combining local and toll traffic, and conduit pricing), Count III (performance standards and liquidated damages), Count IV (violation of delegated authority), Count V (interim number portability), Count VI (unrestricted collocation), Count VII (due process), and Count VIII (taking).\nSummary judgment is GRANTED FOR PLAINTIFFS on the portion of count I that concerns resale discounts for services already subject to a volume or term discount. The PUC shall revise Section X of the TCG Agreement to provide that the wholesale discount for services already subject to volume or term discounts shall be the greater of (1) the wholesale discount rate (which is presently 17 percent), or (2) one-half of the wholesale discount rate plus any existing volume or term discount.\nThat portion of Count I concerning the \"final\" (or UM 844) loop price, and Count II (combining unbundled elements), are REMANDED to the PUC for reconsideration and further proceedings as it deems appropriate.\nThe court AFFIRMS the interim use of bill-and-keep for allocating the costs of transporting and terminating local traffic between U.S. West and TCG customers, but TCG and U.S. West must promptly negotiate a replacement methodology in accordance with PUC Order 97-372 and Section XIX of their Agreement.\nIT IS SO ORDERED.\nNOTES\n[1] Defendant TCG was recently acquired by AT & T.\n[2] US West complains that the PUC has failed to establish a schedule for reviewing the cost data. That dispute is not presently before this court. However, to the extent that this court's ratification of the PUC's decision is premised in part upon assurances that the PUC will take certain actions at a future date, the court expects the PUC to honor that commitment.\n[3] The court expresses no opinion as to which permanent compensation method should be adopted, nor does it preclude consideration of bill-and-keep as a permanent replacement method.\n[4] In addition, there are a myriad of technical and pricing issues relating to recombining (or prohibitions upon separating) elements that implicate the PUC's expertise. The present agreement does not adequately address those issues.\n\n", "ocr": false, "opinion_id": 2516170 } ]

[ "2009 UT 52", "215 P.3d 933" ]

[ { "author_str": "Durrant", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5852, "opinion_text": "\n215 P.3d 933 (2009)\n2009 UT 52\nBODELL CONSTRUCTION COMPANY, Plaintiff and Appellant,\nv.\nMark H. ROBBINS; Cherokee & Walker Investment Company, LLC; Cherokee & Walker, LLC; JPMorgan Chase Bank, N.A., Successor to Bank One, N.A.; and Does 1 through 50, Defendants and Appellees.\nNo. 20070951.\nSupreme Court of Utah.\nAugust 4, 2009.\n*936 James S. Jardine, Matthew R. Lewis, Erin Bergeson Hull, Salt Lake City, for plaintiff Andrew G. Deiss, Billie J. Siddoway, Salt Lake City, for defendant Mark H. Robbins.\nJohn A. Beckstead, Romaine C. Marshall, Salt Lake City, for defendants Cherokee & Walker Investment Company, LLC, and Cherokee & Walker, LLC John A. Beckstead, H. Douglas Owens, Romaine C. Marshall, Salt Lake City, for defendant JPMorgan Chase Bank.\nDURRANT, Associate Chief Justice:\n\nINTRODUCTION\n¶ 1 In this case, we must determine the scope of a settlement agreement between Michael Bodell and his company Bodell Construction Company (collectively, \"Bodell\"), on the one hand, and Marc Jenson and his company MSF Properties (collectively, \"Jenson\"), on the other. More specifically, we must determine whether Bodell and Jenson intended their settlement agreement to settle only the claims between themselves or whether they intended the settlement agreement to also settle related claims involving third parties, specifically Bank One and Mark Robbins.\n¶ 2 Bank One and Robbins argued before the district court that the settlement agreement between Bodell and Jenson was an \"accord and satisfaction,\" meaning that the agreement was not limited to the claims between Bodell and Jenson but satisfied all related claims even those with third parties. On this basis, Bank One and Robbins moved for summary judgment regarding claims that Bodell asserted against them. In response, Bodell argued that the agreement was not an accord and satisfaction but rather a \"release,\" meaning that the agreement only released the named parties from the claims that they had against one another. The district court granted the summary judgment motion filed by Bank One and Robbins.\n¶ 3 On appeal, Bodell asserts that the district court erred when it (1) granted summary judgment on the ground that the settlement agreement was unambiguously an accord and satisfaction and (2) struck the report of Bodell's damages expert.\n¶ 4 Because we determine that the language of the settlement agreement unambiguously demonstrates that Bodell and Jenson intended the agreement to release only the claims they had against one another, not any third-party claims, we reverse the district court's grant of summary judgment. But we affirm the district court's decision to strike the report of Bodell's damages expert because we conclude that striking the report was within the district court's discretion.\n\nBACKGROUND\n¶ 5 For purposes of the summary judgment motion, the parties did not dispute the following material facts. In January 2000, Robbins sold a 50 percent interest in his bicycle companies (collectively, \"Vtrax\") to Cherokee & Walker (\"C & W\"). Within weeks of this transaction, Robbins and C & W became dissatisfied with the business relationship. In May 2000, the parties agreed that Robbins would repurchase C & W's interest in Vtrax for $8 million. But Robbins *937 did not have $8 million. Consequently, Robbins missed several payment deadlines over the next few months. The directors of C & W grew impatient and threatened to seize control of Vtrax.\n¶ 6 Robbins did not want to lose control of Vtrax, so he continued his search for a lender. During this search, Robbins became aware of the opportunity to acquire the popular \"Mongoose\" bicycle brand. Robbins knew he needed complete control over Vtrax in order to pursue the Mongoose acquisition. At this point, Robbins approached Jenson, the owner of a hard-money lending business, and asked Jenson for $8 million. Robbins explained that Vtrax was pursuing the acquisition of Mongoose but that in order for the acquisition to be finalized Robbins needed $8 million to buyout C & W's interest in Vtrax. After several negotiations, Jenson agreed to loan Robbins the $8 million necessary for the C & W buyout.\n¶ 7 Jenson told Robbins that $4 million of the $8 million loan would come from Jenson's own money and Jenson would borrow the other $4 million from someone else. Accordingly, Jenson approached Bodell about the possibility of borrowing $4 million. Jenson informed Bodell that the $4 million Bodell contributed would be loaned to Robbins for the C & W buyout. Jenson also informed Bodell that Robbins was pursing the acquisition of Mongoose. Jenson had known Bodell for many years, and Bodell had recently loaned Jenson $1 million in a separate transaction. Yet Bodell was hesitant about lending such a large sum of money to Jenson without knowing the stability of Vtrax.\n¶ 8 Jenson relayed Bodell's concerns to Robbins. Subsequently, Robbins approached Benjamin Lightner, Robbins's private banker at Bank One, and asked Lightner to draft a letter representing the stability of Vtrax. On August 22, 2000, Lightner wrote a letter (the \"Lightner Letter\") addressed to \"Whom It May Concern.\" The Lightner Letter indicated that Robbins and Jenson would be depositing $165 million into a Bank One account for MadTrax, the company created by Robbins to pursue the acquisition of Mongoose. The deposit was to come from a loan agreement between MadTrax and Arimex Investments. In actuality, there was no loan agreement between MadTrax and Arimex. Still, Robbins gave a copy of the Lightner Letter to Jenson, who in turn gave a copy to Bodell.\n¶ 9 Eight days after the Lightner Letter was written, Bodell loaned $4 million to Jenson. As planned, Jenson then took the $4 million from the Bodell loan and $4 million of his own money and loaned $8 million to Robbins to buy out C & W. Robbins paid C & W the required $8 million and obtained full control of Vtrax. Two months later, Robbins's efforts to acquire Mongoose failed and Vtrax collapsed. Robbins defaulted on his loan payment to Jenson, and, subsequently, Jenson defaulted on his repayment obligation to Bodell.\n¶ 10 On March 18, 2003, Bodell and Jenson entered into a settlement agreement whereby Bodell released Jenson from all tort and contract claims in exchange for $3 million. Paragraphs 1 and 2 of the settlement agreement state as follows:\n1. Contemporaneous with the execution and delivery of this Agreement, [Jenson] has caused $3,000,000 in immediately available funds to be delivered to [Bodell]. [Bodell] hereby acknowledges receipt of such funds.\n2. Each of Bodell and BCC, for himself, itself, their affiliates and for all persons or entities claiming by, through or under him, it or them, hereby (a) releases, acquits, waives and forever discharges MSF, its affiliates and their respective members, managers, officers, employees and agents (each, including without limitation Jenson, an \"MSF Party\") from any and all claims, allegations of fraud, charges, demands, losses, damages, obligations, liabilities, grievances, causes of action, or suits at law and equity of whatsoever kind and nature, expenses, costs and attorneys fees, whether known or unknown, suspected or unsuspected, liquidated or unliquidated (each, a \"Claim\"), arising out of all past affiliations and transactions among Bodell, BCC and any MSF Party, including, but not limited to, the Loans and all related arrangements and transactions, (b) without limiting the generality of the foregoing, *938 acknowledges and agrees that the obligations of the MSF Parties in connection with the Loans, including all principal and interest that may have been deemed to have accrued thereon, are hereby deemed fully satisfied and repaid in full. (Emphasis added.)\n¶ 11 Four months after executing the settlement agreement, Bodell filed suit against Bank One and Robbins claiming four causes of action: (1) fraud, (2) civil conspiracy, (3) negligent misrepresentations, and (4) unjust enrichment.\n¶ 12 On October 29, 2003, Bank One and Robbins filed a motion for summary judgment. On March 15, 2004, Judge Bohling of the district court entered an order denying the motion for summary judgment filed by Bank One and Robbins. The district court held that (1) the settlement agreement was not an accord and satisfaction, and (2) an accord and satisfaction does not operate for the benefit of third parties unless the third parties are specifically referenced in the agreement.\n¶ 13 During the discovery period, the case was reassigned to Judge Kennedy. Three weeks after the close of discovery, Bodell served the expert report of Merrill Weight (the \"Weight Report\") on Bank One and Robbins. The Weight Report included three new damages theories that were not disclosed during discovery. Bank One and Robbins filed a motion to strike the Weight Report. The district court granted the motion because Bodell had (1) not disclosed its alternative damages theories during fact discovery, (2) failed to show good cause for its failure to timely disclose, and (3) prejudiced the defendants by failing to disclose these theories.\n¶ 14 Additionally, Bank One and Robbins renewed their initial motion for summary judgment and asked Judge Kennedy to revisit the question of whether the settlement agreement was an accord and satisfaction. At a hearing on September 10, 2007, Judge Kennedy granted summary judgment for Bank One and Robbins, ruling that (1) the settlement agreement was unambiguously an accord and satisfaction, and (2) an accord and satisfaction operates for the benefit of third parties. Thus, the district court held that the settlement agreement — as an accord and satisfaction — extinguished Bodell's claims of fraud and negligent misrepresentation asserted against Bank One and the claims of fraud, civil conspiracy, and unjust enrichment asserted against Robbins.\n¶ 15 Bodell timely appealed. We have jurisdiction to consider Bodell's arguments on appeal pursuant to Utah Code section 78A-3-102(3)(j) (2008).\n\nSTANDARDS OF REVIEW\n¶ 16 We review a district court's interpretation of a contract for correctness, giving no deference to the district court.[1] Whether a contract is ambiguous is a question of law, which we also review for correctness.[2] We review a district court's decision to grant summary judgment for correctness, granting no deference to the district court's conclusions, and we view the facts and all reasonable inferences in the light most favorable to the nonmoving party.[3] We review discovery sanctions under an abuse of discretion standard.[4]\n\nANALYSIS\n¶ 17 We first consider Bodell's argument that the settlement agreement is a release rather than an accord and satisfaction. We conclude that the plain language of the settlement agreement unambiguously demonstrates that the parties to the agreement intended that the agreement operate only as a mutual release of claims rather than an accord and satisfaction of all claims, including those against third parties. Next, we consider Bodell's argument that the district court abused its discretion in striking the report of Bodell's damages expert. Because we determine *939 that the district court did not abuse its discretion, we affirm the district court's decision to strike the expert report.\n\nI. THE SETTLEMENT AGREEMENT UNAMBIGUOUSLY RELEASES ONLY THE CLAIMS BETWEEN THE PARTIES NAMED IN THE AGREEMENT\n¶ 18 Bodell argues that the district court erred in ruling that the settlement agreement unambiguously settled Bodell's claims against nonparties to the agreement. More specifically, Bodell argues that the settlement agreement plainly released only those claims that Bodell and Jenson had against one another. In the alternative, Bodell argues that the settlement agreement was ambiguous and extrinsic evidence demonstrates that the parties intended to limit the settlement agreement to claims between Bodell and Jenson. We agree with Bodell's first argument, that the settlement agreement unambiguously released only those claims between Bodell and Jenson. Accordingly, we decline to consider any extrinsic evidence.\n¶ 19 \"Settlement agreements are governed by the rules applied to general contract actions.\"[5] When we interpret a contract, or in this case a settlement agreement, we determine \"the intent of the contracting parties\" by \"first look[ing] to the writing alone.\"[6] If the writing is unambiguous, we determine the intent of the parties exclusively from the \"`plain meaning of the contractual language.'\"[7] Only where there is ambiguity in the terms of the contract may we ascertain the parties' intent from extrinsic evidence.[8] \"`A contractual term or provision is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies.'\"[9]\n¶ 20 The settlement agreement between Bodell and Jenson is unambiguous because it is capable of only one reasonable interpretation. The language of the settlement agreement unambiguously demonstrates that Bodell and Jenson intended only to settle those claims that they had against one another. First, the agreement identifies the parties to the agreement:\nTHIS SETTLEMENT AGREEMENT (this \"Agreement\") is entered into ... by and among BODELL CONSTRUCTION COMPANY, a Utah corporation (\"BCC\"), MICHAEL BODELL, an individual (\"Bodell\"), MARC S. JENSON, an individual (\"Jenson\"), and MSF PROPERTIES, L.L.C., a Utah limited liability company (\"MSF\").\nAs we use the terms in this opinion, Bodell and Jenson are the only parties named by the settlement agreement.[10] Then the settlement agreement plainly limits its terms to those named parties. It states,\nWHEREAS, the parties now desire to achieve a full settlement of all obligations, disputes and other matters outstanding between them. ...\n\n4.... MSF, Jenson, Bodell and BCC have definitely settled all matters between them....\n\n5. Each of the parties hereto understand and agree that this is a mutual release of claims and that following execution of this document, no Bodell Party shall have any claim against an MSF Party and no MSF Party shall have any claim against a Bodell Party.... (Emphases added.)\n¶ 21 In addition to limiting its terms to the named parties, the settlement agreement *940 also specifically names which parties are released from which claims. The agreement states,\n2. Each of Bodell and BCC, for himself, itself, their affiliates and for all persons or entities claiming by, through or under him, it or them, hereby (a) releases, acquits, waives and forever discharges MSF, its affiliates and their respective members, managers, officers, employees and agents (each, including without limitation Jenson, an \"MSF Party\") from any and all claims, ... arising out of all past affiliations and transactions among Bodell, BCC and any MSF Party, ... acknowledges and agrees that the obligations of the MSF Parties in connection with the Loans, including all principal and interest that may have been deemed to have accrued thereon, are hereby deemed fully satisfied and repaid in full. ... (Emphases added.)\nThere is no language to indicate that the parties intended to satisfy all of Bodell's potential tort and contract claims against persons not a party to the agreement.\n¶ 22 Bank One and Robbins argue that because the settlement agreement includes the word \"satisfied,\" we should construe the agreement to be an accord and satisfaction, or, in other words, to satisfy any and all related claims that the named parties may have against nonparties to the agreement. We disagree.\n¶ 23 Accord and satisfaction is a common law concept.[11] It denotes the intention of the contracting parties to \"agree that a different performance, to be made in substitution of the performance originally agreed upon, will discharge the obligation created under the original agreement.\"[12] An accord and satisfaction may discharge an obligation arising out of a \"contract, quasi-contract, [or] tort.\"[13] When a claim is discharged through an accord and satisfaction, the claim is considered fully satisfied. The claimant no longer has the legal right to seek recovery from anyone on that claim.[14] Before we determine that an agreement constitutes an accord and satisfaction, we must find the following three elements in the contract: \"(1) an unliquidated claim or a bona fide dispute over the amount due; (2) a payment offered as full settlement of the entire dispute; and (3) an acceptance of the payment as full settlement of the dispute.\"[15]\n¶ 24 From a plain reading of the settlement agreement, we determine that the last two elements of an accord and satisfaction are not met. Although the agreement incorporated the offer of a payment by Jenson and the acceptance by Bodell in satisfaction of an obligation, the language of the agreement does not indicate that the payment was offered and accepted with the intent to satisfy the entire underlying dispute. Rather, the payment was offered and accepted as \"a full settlement of all obligations, disputes and other matters outstanding between them, including, but not limited to the Loans.\" (Emphasis added.) Thus, the plain language limits the effect of the payment to the settlement of the claims between Bodell and Jenson; claims as to third parties are not contemplated.\n¶ 25 Robbins and Bank One contend that by including the term \"satisfied\" in the settlement agreement, Bodell necessarily released any claims he may have against Bank One and Robbins, even though Bank One and Robbins were not parties to the agreement. We disagree. The parties' use of \"satisfied\" in the settlement agreement does not alter our reading of the agreement. Indeed, we decline to adopt a rule that overlooks the contracting parties' clear intent and imputes a different meaning to a contract simply because the parties incorporated an otherwise *941 ordinary term into their agreement. \"Satisfied\" appears only once in the agreement and is limited by surrounding language. The agreement states that Bodell \"acknowledges and agrees that the obligations of [Jenson] in connection with the Loans ... are hereby deemed fully satisfied and repaid in full.\" Thus the word \"satisfied\" does not depict a full satisfaction of all underlying claims, as is characteristic of an accord and satisfaction; rather its impact is limited to \"the obligations of [Jenson] in connection with the Loans.\" Thus, the settlement agreement satisfied only Jenson's loan obligation to Bodell. It did not satisfy any claims that Bodell may potentially have against Robbins or Bank One for full satisfaction of the debt owed.[16]\n¶ 26 Because we determine that the plain language of the settlement agreement limited the agreement to claims between Bodell and Jenson, we reverse the district court's grant of summary judgment.[17] We now turn to the court's decision to strike the report of Bodell's damages expert.\n\nII. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN STRIKING THE WEIGHT REPORT\n¶ 27 Three weeks after the close of discovery, Bodell served the Weight Report on Bank One and Robbins. The Weight Report included three new damages theories that were not disclosed during discovery. Bank One and Robbins filed a motion to strike the Weight Report. The district court granted the motion because Bodell had (1) not disclosed his alternative damages theories during fact discovery, (2) failed to show good cause for his failure to timely disclose, and (3) prejudiced the defendants by failing to disclose these theories.\n¶ 28 Bodell argues that the district court abused its discretion in striking the Weight Report because Bodell's disclosure of the Weight Report did not violate any court order and complied with the Utah Rules of Civil Procedure. In the alternative, Bodell argues that even if the Weight Report was not properly disclosed, the court nevertheless abused its discretion in striking the report because there was good cause for the failure and the failure was harmless. Bank One and Robbins contest the merits of Bodell's arguments, and Bank One contends that this issue is not ripe for appeal. We first address Bank One's ripeness argument, and then we turn to the substance of Bodell's arguments.\n\nA. The Issue of Whether the District Court Erred in Striking the Weight Report Is Ripe for Appeal\n¶ 29 A dispute is ripe \"when `a conflict over the application of a legal provision [has] sharpened into an actual or imminent clash of legal rights and obligations between the parties thereto.'\"[18] An issue is not ripe for appeal if \"`there exists no more than a difference of opinion regarding the hypothetical application of [a provision] to a situation in which the parties might, at some *942 future time, find themselves.'\"[19] If, however, an issue was \"raised, argued, and resolved by the trial court prior to the entry of\" a final judgment, then that issue is ripe for appeal, and the \"failure to raise [it] on appeal result[s] in a waiver of the[] right to raise [it] at a later time.\"[20]\n¶ 30 Bank One argues that the issue of whether the district court erred in its decision to strike the Weight Report is not ripe for appeal because there may be some future scenario in which an appellate court would not have to reach the issue. That future scenario would occur if the district court, on remand, were to enter summary judgment on one of Bank One's alternative theories, the case settled, or the case eventually reaches a jury and the jury finds against Bodell. To support its position, Bank One relies upon Pett v. Autoliv ASP, Inc.[21] and State v. Ortiz.[22]\n¶ 31 In Pett, we granted an interlocutory appeal challenging a district court's decision to grant a party leave to amend an answer to plead a particular affirmative defense.[23] The respondent asked us to determine whether Utah law recognized the affirmative defense that the petitioner sought to plead.[24] We declined to determine the scope of Utah law as it related to the affirmative defense because we determined that the issue had not \"matured to the extent that we [could] know with certainty the facts and law which [would] shape its final outcome.\"[25]\n¶ 32 In Ortiz, two defendants challenged the sentencing structure applicable to the crimes with which they were charged.[26] Because the defendants had not yet been convicted, we determined that the challenge was not ripe. We stated, \"there are several possible circumstances under which we would not need to address the constitutionality of [the sentencing structure].\"[27]\n¶ 33 In both Pett and Ortiz, the challenged law had not yet been applied to the parties, and we determined that without such application the challenges were not ripe. This case is markedly different. Bodell has sought to submit the Weight Report, and the district court, applying Utah Rule of Civil Procedure 37(f) to the facts, struck the report. Though it is possible that the case could be later decided or settled on issues unrelated to the information in the Weight Report, the admissibility of the Weight Report is still properly before us. The issue has been squarely presented to the district court, the court has ruled on the issue, the issue was ripe when the court ruled on it, and the court has issued a final judgment. Accordingly, we conclude that the issue is ripe for our determination.\n\nB. The District Court Did Not Abuse Its Discretion in Striking the Weight Report\n¶ 34 Bodell argues that the district court erred in striking the Weight Report because the disclosure of the report complied with the Utah Rules of Civil Procedure, and even if the disclosure had violated the rules, allowance of the report would not have harmed the defendants. Further, Bodell claims that he had good cause for his failure to previously disclose the information in the report. Bank One and Robbins argue that because Bodell did not disclose the damages theories in the Weight Report during initial disclosures or discovery, the district court was within its discretion to strike the Weight Report rather than reopen discovery. We determine that (1) Bodell violated Utah Rule of Civil Procedure 26 when he failed to disclose the theories in the Weight Report before *943 the close of fact discovery and (2) it was within the district court's discretion to find that Bodell's failure to disclose harmed Bank One and Robbins and that Bodell did not have good cause for its failure to disclose the theories in a timely manner.\n¶ 35 Rule 26 of the Utah Rules of Civil Procedure requires that a party disclose the \"computation of any category of damages claimed by the disclosing party\" during initial disclosures.[28] When a party fails to make timely disclosure, the district court is required to impose discovery sanctions on that party unless the \"failure to disclose is harmless or the party shows good cause for the failure to disclose.\"[29] The district court has \"broad discretion regarding the imposition of discovery sanctions.\"[30] In applying the abuse of discretion standard to the district court's imposition of a particular sanction, we give the district court \"a great deal of latitude in determining the most fair and efficient manner to conduct court business\" because the district court judge \"is in the best position to evaluate the status of his [or her] cases, as well as the attitudes, motives, and credibility of the parties.\"[31] Thus, we will determine that a district court \"has abused its discretion in choosing which sanction to impose only if there is either an erroneous conclusion of law or no evidentiary basis for the [district] court's ruling.\"[32]\n¶ 36 We determine that in this case there was a sufficient evidentiary basis for the district court to exclude the Weight Report. The damages theories advanced in the Weight Report were not disclosed during the requisite discovery period. During initial disclosures, Bodell disclosed that its damages \"constitute the funds advanced, together with interest at the legal rate, less the payment received from MSF.\" In response to a request for admission from Bank One, Bodell clarified that he sought interest at the legal rate as provided in Utah Code sections 15-1-1 and 15-1-4, which provide that interest shall accrue at \"10% per annum\" unless the parties \"specify a different rate of interest.\"[33] Neither Bodell and Bank One nor Bodell and Robbins had specified a different interest rate.[34] Thus, the district court was correct when it concluded that Bodell disclosed only the following damages: \"$4 million, less payments received, plus interest at the statutory rate.\"\n¶ 37 It was not until three weeks after fact discovery closed that Bodell served the Weight Report on Bank One and Robbins. The Weight Report included three new damages theories, including the Benefit of the Bargain Rule, the Modified Benefit of the Bargain Rule, and the Comparable Rate of Return theory. Bank One and Robbins moved to strike the Weight Report because they did not have the opportunity to conduct discovery regarding facts essential to these theories. According to Bank One and Robbins, essential facts included Bodell's loan history; the loan histories and practices of those to whom Bodell could have and would have allegedly loaned money in lieu of MSF; the capabilities of MSF and Jenson to repay *944 or obtain financing to repay the $4 million loan at the time the loan was made; and Bodell's expenses, investments, and credit history at the time the loan was made. The district court agreed: \"the defendants will suffer prejudice if Bodell were allowed to present these damages theories at trial because these claims and the bases for them were not disclosed during fact discovery and defendants are now unable to conduct fact discovery to rebut those theories.\" Though the district court could have reopened fact discovery to allow for these theories, the court was not obligated to do so. Thus, the court's finding of prejudice to Bank One and Robbins was correct.\n¶ 38 Bodell contends that he had good cause for his failure to comply with rule 26. Particularly Bodell argues that he \"complied with generally accepted litigation practices\" when he \"disclosed its damages theories during fact discovery and then laid them out in greater detail in an expert report produced during the expert discovery period.\" We are unpersuaded. As we stated previously, Bodell's reference to Utah Code sections 15-1-1 and 15-1-4 was insufficient to constitute disclosure of the \"computation of any category of damages claimed by the disclosing party,\" particularly the Benefit of the Bargain Rule, the Modified Benefit of the Bargain Rule, and the Comparable Rate of Return theory.\n¶ 39 Because Bodell's disclosure of the Weight Report failed to comply with rule 26, allowing the report would have prejudiced Bank One and Robbins, and Bodell failed to show good cause for his failure, we affirm the district court's decision to exclude the Weight Report.\n\nCONCLUSION\n¶ 40 The language of the settlement agreement between Bodell and Jenson unambiguously demonstrates that Bodell and Jenson intended the agreement to release only the claims they had against one another, not any third-party claims they may have. Accordingly, we reverse the district court's grant of summary judgment. But we affirm the district court's decision to strike the Weight Report. In light of the facts that Bodell failed to timely disclose the damages theories contained in the report, late disclosure of the theories would have prejudiced Bank One and Robbins, and Bodell failed to show good cause for his untimeliness, striking the report was within the discretion granted to the district court by Utah Rule of Civil Procedure 37(f).\n¶ 41 Chief Justice DURHAM, Justice PARRISH, Justice NEHRING, and Judge WILLMORE concur in Associate Chief Justice DURRANT's opinion.\n¶ 42 Having disqualified himself, Justice WILKINS does not participate herein; District Judge THOMAS L. WILLMORE sat.\nNOTES\n[1] Sackler v. Savin, 897 P.2d 1217, 1220 (Utah 1995).\n[2] Peterson v. Sunrider Corp., 2002 UT 43, ¶ 14, 48 P.3d 918.\n[3] Arnold Indus., Inc. v. Love, 2002 UT 133, ¶ 11, 63 P.3d 721.\n[4] Morton v. Cont'l Baking Co., 938 P.2d 271, 274 (Utah 1997).\n[5] R & R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass'n, 2008 UT 80, ¶ 20, 199 P.3d 917 (internal quotation marks omitted).\n[6] Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 44, 201 P.3d 966.\n[7] Id. (quoting Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134).\n[8] Id.; see also Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT 3, ¶ 16, 178 P.3d 886.\n[9] Giusti, 2009 UT 2, ¶ 44, 201 P.3d 966 (quoting Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269).\n[10] We have defined \"Bodell\" to include both Michael Bodell and Bodell Construction Company. We have defined \"Jenson\" to include both Marc Jenson and MSF Properties.\n[11] See IFG Leasing Co. v. Gordon, 776 P.2d 607, 614 n. 32 (Utah 1989).\n[12] ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 20, 998 P.2d 254 (internal quotation marks omitted).\n[13] Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1082 (Utah 1985).\n[14] See Arthur L. Corbin, Corbin on Contracts § 1276 (1962) (\"Discharge by accord and satisfaction means a discharge by the rendering of some performance different from that which was claimed as due and the acceptance of such substituted performance by the claimant as full satisfaction of his claim.\" (emphasis added)).\n[15] ProMax, 2000 UT 4, ¶ 20, 998 P.2d 254.\n[16] Because we determine that the plain language of the settlement agreement demonstrates that the parties intended to limit the impact of their agreement to the claims between them, we do not reach Bodell's argument that the Liability Reform Act, found in Utah Code section 78B-5-822, prohibits this court from applying the agreement to claims Bodell may have against third parties.\n[17] Bank One argues that we should affirm the district court's grant of summary judgment on any of seven other theories that they presented to, but were not reached by, the district court. To serve judicial economy, we may affirm a district court's decision whenever the decision appealed from \"is sustainable on any legal ground or theory apparent on the record.\" Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 (internal quotation marks omitted); see also Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1123 (Utah 1984); Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 461 P.2d 290, 293 n. 2 (1969).\n\nWe decline to consider the alternative grounds in this case because we do not see that doing so will serve judicial economy. The district court is already familiar with the alternative theories as they have been fully briefed and argued to that court. Accordingly, we determine that the district court is in a better position than we are at this time to rule on Bank One's alternative theories.\n[18] Bd. of Trs. of Wash. County Water Conservancy Dist. v. Keystone Conversions, L.L.C., 2004 UT 84, ¶ 32, 103 P.3d 686 (alteration in original) (quoting Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1148 (Utah 1981)).\n[19] Id. (alteration in original) (quoting Redwood Gym, 624 P.2d at 1148).\n[20] DeBry v. Cascade Enters., 935 P.2d 499, 502 (Utah 1997) (citing State ex rel. Road Comm'n v. Rohan, 28 Utah 2d 375, 503 P.2d 141 (1972); see also Smith v. DeNiro, 28 Utah 2d 259, 501 P.2d 265 (1972)).\n[21] 2005 UT 2, 106 P.3d 705.\n[22] 1999 UT 84, 987 P.2d 39.\n[23] 2005 UT 2, ¶ 3, 106 P.3d 705.\n[24] Id.\n[25] Id. ¶ 5.\n[26] 1999 UT 84, ¶ 1, 987 P.2d 39.\n[27] Id. ¶ 4.\n[28] Utah R. Civ. P. 26(a)(1)(C).\n[29] Utah R. Civ. P. 37(f).\n\nRule 37(f) allows for either the exclusion of the untimely disclosure or any other sanctions \"authorized by Subdivision (b)(2).\" Other available sanctions include \"order[ing] the [non-compliant] party or the attorney to pay the reasonable expenses, including attorney fees, caused by the failure.\" Utah R. Civ. P. 37(b)(2)(D).\n[30] Morton v. Cont'l Baking Co., 938 P.2d 271, 274 (Utah 1997) (internal quotation marks omitted).\n[31] Id. at 275.\n[32] Id. at 274 (citations and internal quotation marks omitted).\n[33] Utah Code Ann. § 15-1-1(2) (2005).\n[34] Bodell contends that his discovery responses referred to the contractual interest rate in the Promissory Note between Bodell and MSF. However, Bank One and Robbins were not parties to that note and, therefore, are not bound by it. See Taylor, Cotton & Ridley, Inc. v. Okatie Hotel Group, L.L.C., 372 S.C. 89, 641 S.E.2d 459, 464 (S.C.Ct.App.2007) (holding that the home owner was bound only to the statutory interest rate where the owner was not party to the contract wherein the general contractor and the subcontractor agreed to a higher interest rate); see also Casaccio v. Habel, 14 Ill.App.3d 822, 303 N.E.2d 548, 551 (Ill.App.Ct.1973) (determining that a nonparty to an agreement is not subject to the high interest rates of that agreement).\n\n", "ocr": false, "opinion_id": 2639745 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca11.uscourts.gov/opinions/ops/19968095.OPA.pdf", "author_id": null, "opinion_text": " United States Court of Appeals, Eleventh Circuit.\n\n No. 96-8095.\n\n Mohamed I. BAH, Plaintiff-Appellee,\n\n v.\n\n CITY OF ATLANTA, Defendant-Appellant.\n\n Jan. 22, 1997.\n\nAppeal from the United States District Court for the Northern\nDistrict of Georgia. (No. 1:95-cv-2641-WBH), Willis B. Hunt, Jr.,\nJudge.\n\nBefore ANDERSON and CARNES, Circuit Judges, and CUDAHY*, Senior\nCircuit Judge.\n\n PER CURIAM:\n\n Mohamed I. Bah brought this action against the City of\n\nAtlanta, alleging that the City's ordinance establishing a dress\n\ncode for drivers of vehicles for hire is unconstitutional. The\n\nCity appeals from the district court's grant of a preliminary\n\ninjunction enjoining enforcement of the dress code.\n\n I. FACTS AND PROCEDURAL HISTORY\n\n In 1993, the City's Bureau of Vehicles for Hire created a task\n\nforce to revise the Vehicles for Hire chapter of the City's Code of\n\nOrdinances. Over almost a year and a half, the task force met\n\noften to discuss problems in the vehicle for hire industry, as well\n\nas possible solutions to those problems. The task force made\n\nrecommendations to the City, including a recommendation to amend\n\nthe dress code for drivers of vehicles for hire.\n\n On July 5, 1995, the Atlanta City Council adopted a version of\n\nthe task force's recommendations, including the dress code. The\n\n *\n Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for\nthe Seventh Circuit, sitting by designation.\n\fnew dress code requirement provides that:\n\n In order to maintain a permit to drive a vehicle for hire a\n driver must ... [w]ear proper dress while operating a vehicle\n for hire. As used herein, the term \"proper dress\" shall mean\n shoes which entirely cover the foot (no sandals) and dark\n pants to ankle length or dark skirt or dress and solid white\n or light blue shirt or solid white or light blue blouse with\n sleeves and folded collar. Shirts or blouses shall be tucked\n in. No tee-shirts or sweatshirts shall be worn. If a hat is\n worn, it shall be a baseball-style cap with an Atlanta or\n taxicab theme. \"Proper dress\" shall also mean any uniform\n adopted by the company and approved by the Bureau. Clothing\n shall not be visibly soiled.\n\nAtlanta Code of Ordinances (\"Code\"), Section 14-8005(d)(2).1\n\n Bah, a taxicab driver, filed this lawsuit on October 19, 1995,\n\nafter being cited for a violation of the dress code. His complaint\n\ncontends that the dress code is unconstitutional, because it\n\nviolates the Equal Protection Clause and his First Amendment rights\n\nof religion and free speech. Bah requested a temporary restraining\n\norder, which the district court converted into a motion for\n\npreliminary injunction.\n\n After a hearing on the motion for preliminary injunction, the\n\ndistrict court granted it and enjoined the City from enforcing the\n\ndress code. The court held that the dress code violated the Equal\n\nProtection Clause because it was not rationally related to a\n\nlegitimate government objective.2 The district court said that the\n\n 1\n The Atlanta Code of Ordinances was recodified with a new\nnumbering system effective January 1, 1996. The proceedings in\nthe district court were conducted when the old numbering system\nwas in place, and to avoid confusion we, too, will follow that\nold numbering system.\n 2\n The district court also held that the dress code was an\narbitrary exercise of police power. This holding was based upon\nthe district court's finding that the dress code was not\nrationally related to a legitimate government objective, the same\nbasis for its equal protection holding. We will subsume\ndiscussion of the police power holding into our discussion of the\n\fCity had put forth two justifications for the dress code: (1) the\n\nneed to improve public safety, and (2) the need to identify\n\nunlicensed or \"gypsy\" taxicab drivers. The court rejected the\n\nfirst reason because it found no evidence that safety was a problem\n\nin taxicabs or that the dress code would improve safety in\n\ntaxicabs. The court rejected the second reason after finding that\n\nthe clothing prescribed by the dress code was so common that it\n\nwould not help to distinguish gypsy taxicab drivers from licensed\n\nones.\n\n The district court did not address another justification the\n\nCity proffered for the dress code. In its response to the motion\n\nfor preliminary injunction, the City explained that drivers of\n\nvehicles for hire are often a visitor's first contact with the City\n\nof Atlanta, which is why many of the drivers refer to themselves as\n\n\"ambassadors\" for the City. The City contended that, for obvious\n\nreasons, it is in the City's interest that its \"ambassadors\"\n\npresent a safe and professional image to all their passengers. The\n\ndress code would, the City argued, reduce the fears of passengers\n\nand improve the City's image.\n\n Because the district court found the dress code\n\nunconstitutional on equal protection grounds, it did not address\n\nBah's First Amendment arguments. The City appeals from the grant\n\nof preliminary injunctive relief. See 28 U.S.C. § 1292(a)(1).\n\n II. STANDARD OF REVIEW\n\n We review a district court's decision to grant a preliminary\ninjunction for abuse of discretion. Teper v. Miller, 82 F.3d 989,\n\n\nequal protection holding.\n\f993 (11th Cir.1996) (citing Haitian Refugee Ctr., Inc. v. Baker,\n\n953 F.2d 1498, 1505 (11th Cir.), cert. denied, 502 U.S. 1122, 112\n\nS.Ct. 1245, 117 L.Ed.2d 477 (1992)). A district court necessarily\n\nabuses its discretion when it bases a ruling on an erroneous view\n\nof the law. E.g., Jones v. International Riding Helmets, 49 F.3d\n\n692, 694 (1995). Any legal determinations made by the district\n\ncourt in ruling on a preliminary injunction are reviewed de novo.\n\nTeper, 82 F.3d at 993.\n\n III. DISCUSSION\n\n The district court granted the preliminary injunction based\n\nupon its determination that the dress code violated the Equal\n\nProtection Clause. Under an equal protection analysis, \"unless the\n\ncase involves a suspect class or a fundamental right, the Equal\n\nProtection Clause requires only that the classification be\n\nrationally related to a legitimate state interest.\" Panama City\n\nMedical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1545 (11th\n\nCir.), cert. denied, --- U.S. ----, 115 S.Ct. 93, 130 L.Ed.2d 44\n\n(1994) (citing Nordlinger v. Hahn, 505 U.S. 1, 10-11, 112 S.Ct.\n\n2326, 2331-32, 120 L.Ed.2d 1 (1992) and City of Cleburne v.\n\nCleburne Living Center, Inc., 473 U.S. 432, 439-41, 105 S.Ct. 3249,\n\n3254-55, 87 L.Ed.2d 313 (1985)). Bah does not contend on appeal\n\nthat the dress code burdens a fundamental right or targets a\n\nsuspect class. Both Bah and the City agree that rational basis is\n\nthe appropriate level of scrutiny.\n\n In a rational basis analysis, the legislative enactment\n\ncarries a \"strong presumption of validity.\" F.C.C. v. Beach\n\nCommunications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101-02,\n\f124 L.Ed.2d 211 (1993) (citing Lyng v. Int'l Union, United Auto.\n\nWorkers, 485 U.S. 360, 370, 108 S.Ct. 1184, 1192, 99 L.Ed.2d 380\n\n(1988)). Review of enactments must be \"a paradigm of judicial\n\nrestraint.\" Beach Communications, 508 U.S. at 314, 113 S.Ct. at\n\n2101. \"[T]hose attacking the rationality of the legislative\n\nclassification have the burden to negative every conceivable basis\n\nwhich might support it.\" Id. at 315, 113 S.Ct. at 2101 (citation\n\nomitted); Panama City, 13 F.3d at 1546. The legislature need not\n\nactually articulate its reasons for enacting a statute. Heller v.\n\nDoe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d\n\n257 (1993) (citation omitted). In fact, \"it is entirely irrelevant\n\nfor constitutional purposes whether the conceived reason for the\n\nchallenged distinction actually motivated the legislature.\" Beach\n\nCommunications, 508 U.S. at 315, 113 S.Ct. at 2102. \"In other\n\nwords, a legislative choice is not subject to courtroom\n\nfact-finding and may be based on rational speculation unsupported\n\nby evidence or empirical data.\" Id.\n\n Following these decisional directives, we readily conclude\n\nthat the district court erred in finding that the dress code is not\n\nrationally related to a legitimate government interest. With\n\nregard to the public safety purpose, the district court\n\ninappropriately placed the burden on the City to come forward with\n\nevidence showing that public safety in taxicabs was a problem,\n\nwhich is not how the burdens are allocated in rational basis\n\nanalysis.\n\n Moreover, even if the district court was correct in rejecting\n\nthe two reasons it discussed—public safety and identification of\n\fgypsy taxicab drivers—there is another reason for the dress code\n\nthat is rationally related to a legitimate government interest. As\n\nthe City explained in the district court and this Court, the dress\n\ncode is rationally related to its legitimate interest in promoting\n\na safe image. Drivers of vehicle for hire, particularly taxi cab\n\ndrivers, are often among the first people that out-of-town visitors\n\nencounter. Such visitors often find themselves getting into a\n\nvehicle for hire driven by a total stranger, sometimes at night and\n\nsometimes while they are alone. It is in the City's interest to\n\npromote a safe appearance and image, and a rational way to do that\n\nis by prescribing that its self-styled \"ambassadors\" wear\n\ninnocuous, conventional, relatively uniform clothing.\n\n Bah also argues that the dress code is unconstitutional\n\nbecause it applies only to drivers of vehicles for hire, while\n\nother occupations licensed by the City—persons at food\n\nestablishments, bellhops, door-to-door salespersons and operators\n\nof motion picture theaters—are not subject to a dress code.3 We\n\nreject that argument. The differential treatment accorded drivers\n\nof vehicles for hire is justifiable because they are often the\n\ninitial contact for visitors to the City. Moreover, visitors do\n\nnot get into automobiles alone with bellhops, servers at\n\nrestaurants, and the like. The City could rationally decide that\n\nit has a greater interest in having drivers of vehicles for hire\n\n 3\n An examination of the Code provisions cited by Bah\nindicates that the licensing requirement for persons in food\nestablishments was repealed in 1978, Code Section 14-6144, and\nthat the licensing requirement for operators of motion picture\ntheaters is more concerned with the safety of the theater than\nwith the appearance of the operator, Code Sections 14-3081 and -\n3082.\n\fappear safe and presentable, which is accomplished through the\n\ndress code.\n\n For these reasons, we conclude that the dress code does not\n\nviolate the Equal Protection Clause. We decline to reach Bah's\n\nFirst Amendment arguments, because the district court has not yet\n\naddressed them.\n\n IV. CONCLUSION\n\n We REVERSE the district court's grant of the preliminary\n\ninjunction and REMAND for further proceedings consistent with this\n\nopinion.\n\f", "ocr": false, "opinion_id": 71430 } ]

[ "369 F. App'x 553" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\09/09-30377.0.wpd.pdf", "author_id": null, "opinion_text": " Case: 09-30377 Document: 00511046141 Page: 1 Date Filed: 03/09/2010\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n March 9, 2010\n\n No. 09-30377 Charles R. Fulbruge III\n Clerk\n\nMALIN INTERNATIONAL SHIP REPAIR AND DRYDOCK, INC.,\n\n Plaintiff - Appellee\nv.\n\nVEOLIA ES SPECIAL SERVICES, INC.,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n USDC No. 2:08-CV-0110\n\n\nBefore KING, JOLLY, and STEWART, Circuit Judges.\nPER CURIAM:*\n Veolia Es Special Services, Inc. (“Veolia”) appeals the district court’s award\nof attorney’s fees to Malin International Ship Repair and Drydock, Inc. (“Malin”)\nFor the reasons stated below, we affirm.\n I. BACKGROUND\n The facts that gave rise to this case are not in dispute. Veolia refused to\npay Malin over $1.2 million for work performed by Malin on Veolia’s vessel, the\nSeim Swordfish MV. After performing the work requested, Malin remitted\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 CIR .\nR. 47.5.4.\n\f Case: 09-30377 Document: 00511046141 Page: 2 Date Filed: 03/09/2010\n\n\n No. 09-30377\n\ninvoices for its work. These invoices included standard terms and conditions\nthat are found on all of Malin’s invoices, including a provision whereby Malin\nwould be entitled to recover its costs of collection, including reasonable\nattorney’s fees.\n After unsuccessful attempts to resolve the dispute regarding work\nperformed on the Seim Swordfish MV, Malin filed suit against Veolia. The\ndistrict court held two separate pretrial conferences in this matter. Following\neach, the district court made minute entries, and neither provided that the\nissues of entitlement to and quantum of attorney’s fees were to be bifurcated for\npurposes of the trial. The parties also filed a joint pretrial order, approved by\nthe district court, that stated that “[t]he issue of liability will not be tried\nseparately from that of quantum.”\n A two-day bench trial was held on February 12–13, 2009, and during trial\nMalin failed to present evidence concerning the quantum of its attorney’s fees.\nFollowing trial, the district court found in Malin’s favor and entered judgment,\non February 20, 2009, as to the principal amount owed, prejudgment interest,\nand an entitlement to attorney’s fees. In a minute entry following the bench\ntrial, the court instructed Malin to submit a brief supporting the quantum of\nattorney’s fees and gave Veolia fourteen days to file a response. Malin filed its\nattorney’s fees brief on February 27, 2009, claiming $79,837.75.\n Veolia responded by filing both a motion for a new trial on March 5, 2009,\narguing that Rule 54 precludes an attorney’s fees award, and a response to\nMalin’s brief on March 13, 2009, urging again that Rule 54 precludes an award\nof attorney’s fees to Malin and, alternatively, that Malin should not be awarded\nthe full amount of its claimed attorney’s fees. The district court awarded\nattorney’s fees to Malin and denied Veolia’s motion for a new trial on April 14,\n2009. The court entered judgment in favor of Malin for $79,837.75 in attorney’s\nfees on April 16, 2009. This appeal followed.\n\n 2\n\f Case: 09-30377 Document: 00511046141 Page: 3 Date Filed: 03/09/2010\n\n\n No. 09-30377\n II. DISCUSSION\n Rule 42(b) governs bifurcation and provides that “[f]or convenience, to\navoid prejudice, or to expedite and economize, the court may order a separate\ntrial of one or more separate issues, claims, crossclaims, counterclaims, or third-\nparty claims.” F ED. R. C IV. P. 42(b). We will overrule a district court’s decision\nto order a severance only upon a showing that the district court abused its\ndiscretion. See F.D.I.C. v. Selaiden Builders, Inc., 973 F.2d 1249, 1253 (citing\nFid. & Cas. Co. v. Mills, 319 F.2d 63 (5th Cir. 1963)). A district court may sever\na case upon its own motion. Mills, 319 F.2d at 63.\n In the instant case, the district court acted within its discretion when it\nbifurcated the issues of entitlement to and quantum of attorney’s fees. These\nissues were clearly separable, since the issue of quantum would not come into\nquestion unless the district court first found that Malin was in fact entitled to\nattorney’s fees. For the purpose of judicial economy, the district court was\nwithin its discretion to conclude that it would not hear evidence as to the\namount, if any, of attorney’s fees until it first determined entitlement since a\nnegative finding on entitlement would negate the need to hear evidence of\nquantum.\n Veolia argues that the quantum of attorney’s fees sought by Malin\nconstitutes an element of damages that it was required to prove at trial rather\nthan collaterally under Rule 54. See F ED. R. C IV. P. 54(d)(2)(A). Assuming\narguendo that Veolia is correct, this is a question that we need not address today\nbecause the district court did not abuse its discretion by bifurcating quantum.\nSee Pride Hyundai, Inc. v. Chrysler Fin. Co., 355 F. Supp. 2d 600, 605-06 (D.R.I.\n2005) (acknowledging that in the exercise of its broad discretion, the court could\nhave enacted a bifurcated procedure prior to trial, although the attorney’s fees\nrepresented an element of damages that had to be proven at trial, but simply\nchose not do so).\n\n 3\n\f Case: 09-30377 Document: 00511046141 Page: 4 Date Filed: 03/09/2010\n\n\n No. 09-30377\n Veolia also argues that the district court erred because it failed to formally\nenter a bifurcation order into the record. In view of the pretrial order, it\ncertainly would have been preferable to enter such an order or to modify the\npretrial order. But ultimately, Veolia’s argument fails to carry the day. First,\nwhile the pretrial order stated that liability and quantum would be tried\ntogether and the district court never formally entered an order of bifurcation, in\nthe court’s Order and Reasons the court expressly noted that the parties were\ninformed of its intention to bifurcate the issues of entitlement to and quantum\nof attorney’s fees. Second, Malin expressly indicated, in its pre-trial\nmemorandum, that only if the district court found an attorney’s fee award\nappropriate would it submit invoices in support of such an award. Third, Veolia\ndoes not argue that it was unaware that the attorney’s fees issue would be\nhandled at least in part through post-trial motion.\n We are convinced that Veolia was aware of the district court’s bifurcation\nof quantum. But even assuming that Veolia had no knowledge of the district\ncourt’s bifurcation, Veolia must still prove that it was prejudiced in order to\nshow that the district court abused its discretion. See, e.g., O’Dell v. Hercules\nInc., 904 F.2d 1194, 1202 (8th Cir. 1990). Evidence of prejudice is lacking. After\nMalin filed its motion for attorney’s fees, Veolia was given sufficient\nopportunity—fourteen days—to review and challenge the quantum of attorney’s\nfees claimed by Malin, and in fact did so. Further, Veolia did not request, in any\nof its pleadings challenging Malin’s attorney’s fees, a hearing or extra time to\nchallenge the evidentiary predicate for Malin’s attorney’s fees claims. As such,\nwe cannot say that Veolia was prejudiced by the district court’s decision to\nbifurcate quantum, and, accordingly, the district court did not abuse its\ndiscretion in bifurcating. Even here, Veolia’s brief does not identify specific\nproblems with the district court’s finding on quantum, choosing instead (in an\nall or nothing approach) to focus on whether quantum should have been proved\n\n\n 4\n\f Case: 09-30377 Document: 00511046141 Page: 5 Date Filed: 03/09/2010\n\n\n No. 09-30377\nup at trial and whether the district court erred in bifurcating liability and\nquantum.\n III. CONCLUSION\n For the foregoing reasons, we affirm the district court’s judgment.\n AFFIRMED.\n\n\n\n\n 5\n\f Case: 09-30377 Document: 00511046141 Page: 6 Date Filed: 03/09/2010\n\n\n No. 09-30377\nE. GRADY JOLLY, Circuit Judge, specially concurring:\n I concur, but only for the following reason: the defendant did not preserve\nits objection to the denial of its rightful claim under the pretrial order to have all\ndamages, including attorney’s fees, tried in the liability phase of the action\nunder the standards and rules applicable to that proceeding.\n\n\n\n\n 6\n\f", "ocr": false, "opinion_id": 71795 }, { "author_str": "Per Curiam", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM: *\nVeolia Es Special Services, Inc. (“Veo-lia”) appeals the district court’s award of attorney’s fees to Malin International Ship Repair and Drydock, Inc. (“Malin”) For the reasons stated below, we affirm.\nI. BACKGROUND\nThe facts that gave rise to this case are not in dispute. Veolia refused to pay Ma-lin over $1.2 million for work performed by Malin on Veolia’s vessel, the Seim Swordfish MV. After performing the work requested, Malin remitted invoices for its work. These invoices included standard terms and conditions that are found on all of Malin’s invoices, including a provision whereby Malin would be entitled to recover its costs of collection, including reasonable attorney’s fees.\nAfter unsuccessful attempts to resolve the dispute regarding work performed on the Seim Swordfish MV, Malin filed suit against Veolia. The district court held two separate pretrial conferences in this matter. Following each, the district court made minute entries, and neither provided that the issues of entitlement to and quantum of attorney’s fees were to be bifurcated for purposes of the trial. The parties also filed a joint pretrial order, approved by the district court, that stated that “[t]he issue of liability will not be tried separately from that of quantum.”\nA two-day bench trial was held on February 12-13, 2009, and during trial Malin failed to present evidence concerning the quantum of its attorney’s fees. Following trial, the district court found in Malin’s favor and entered judgment, on February 20, 2009, as to the principal amount owed, prejudgment interest, and an entitlement *555to attorney’s fees. In a minute entry following the bench trial, the court instructed Malin to submit a brief supporting the quantum of attorney’s fees and gave Veolia fourteen days to file a response. Malin filed its attorney’s fees brief on February 27, 2009, claiming $79,837.75.\nVeolia responded by filing both a motion for a new trial on March 5, 2009, arguing that Rule 54 precludes an attorney’s fees award, and a response to Malin’s brief on March 13, 2009, urging again that Rule 54 precludes an award of attorney’s fees to Malin and, alternatively, that Malin should not be awarded the full amount of its claimed attorney’s fees. The district court awarded attorney’s fees to Malin and denied Veolia’s motion for a new trial on April 14, 2009. The court entered judgment in favor of Malin for $79,837.75 in attorney’s fees on April 16, 2009. This appeal followed.\nII. DISCUSSION\nRule 42(b) governs bifurcation and provides that “[fjor convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.” Fed.R.CivP. 42(b). We will overrule a district court’s decision to order a severance only upon a showing that the district court abused its discretion. See F.D.I.C. v. Selaiden Builders, Inc., 973 F.2d 1249, 1253 (5th Cir.1992) (citing Fid. & Cas. Co. v. Mills, 319 F.2d 63 (5th Cir.1963)). A district court may sever a case upon its own motion. Mills, 319 F.2d at 63.\nIn the instant case, the district court acted within its discretion when it bifurcated the issues of entitlement to and quantum of attorney’s fees. These issues were clearly separable, since the issue of quantum would not come into question unless the district court first found that Malin was in fact entitled to attorney’s fees. For the purpose of judicial economy, the district court was within its discretion to conclude that it would not hear evidence as to the amount, if any, of attorney’s fees until it first determined entitlement since a negative finding on entitlement would negate the need to hear evidence of quantum.\nVeolia argues that the quantum of attorney’s fees sought by Malin constitutes an element of damages that it was required to prove at trial rather than collaterally under Rule 54. See Fed.R.CivP. 54(d)(2)(A). Assuming arguendo that Veolia is correct, this is a question that we need not address today because the district court did not abuse its discretion by bifurcating quantum. See Pride Hyundai, Inc. v. Chrysler Fin. Co., 355 F.Supp.2d 600, 605-06 (D.R.I.2005) (acknowledging that in the exercise of its broad discretion, the court could have enacted a bifurcated procedure prior to trial, although the attorney’s fees represented an element of damages that had to be proven at trial, but simply chose not do so).\nVeolia also argues that the district court erred because it failed to formally enter a bifurcation order into the record. In view of the pretrial order, it certainly would have been preferable to enter such an order or to modify the pretrial order. But ultimately, Veolia’s argument fails to carry the day. First, while the pretrial order stated that liability and quantum would be tried together and the district court never formally entered an order of bifurcation, in the court’s Order and Reasons the court expressly noted that the parties were informed of its intention to bifurcate the issues of entitlement to and quantum of attorney’s fees. Second, Malin expressly indicated, in its pre-trial memorandum, that only if the district court found an attorney’s fee award appropriate would it submit invoices in support of such an award. Third, Veolia does not argue that *556it was unaware that the attorney’s fees issue would be handled at least in part through post-trial motion.\nWe are convinced that Veolia was aware of the district court’s bifurcation of quantum. But even assuming that Veolia had no knowledge of the district court’s bifurcation, Veolia must still prove that it was prejudiced in order to show that the district court abused its discretion. See, e.g., O’Dell v. Hercules Inc., 904 F.2d 1194, 1202 (8th Cir.1990). Evidence of prejudice is lacking. After Malin filed its motion for attorney’s fees, Veolia was given sufficient opportunity — fourteen days — to review and challenge the quantum of attorney’s fees claimed by Malin, and in fact did so. Further, Veolia did not request, in any of its pleadings challenging Malm’s attorney’s fees, a hearing or extra time to challenge the evidentiary predicate for Malm’s attorney’s fees claims. As such, we cannot say that Veolia was prejudiced by the district court’s decision to bifurcate quantum, and, accordingly, the district court did not abuse its discretion in bifurcating. Even here, Veolia’s brief does not identify specific problems with the district court’s finding on quantum, choosing instead (in an all or nothing approach) to focus on whether quantum should have been proved up at trial and whether the district court erred in bifurcating liability and quantum.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the district court’s judgment.\nAFFIRMED.\n\n Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.\n\n", "ocr": false, "opinion_id": 9415309 }, { "author_str": "Jolly", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nE. GRADY JOLLY, Circuit Judge,\nspecially concurring:\nI concur, but only for the following reason: the defendant did not preserve its objection to the denial of its rightful claim under the pretrial order to have all damages, including attorney’s fees, tried in the liability phase of the action under the standards and rules applicable to that proceeding.\n", "ocr": false, "opinion_id": 9415310 } ]

[ "20 So. 3d 1015" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n20 So.3d 1015 (2009)\nBrenda LAIDLER, Petitioner,\nv.\nSTATE of Florida, Respondent.\nNo. 1D09-3563.\nDistrict Court of Appeal of Florida, First District.\nNovember 5, 2009.\nHerman D. Laramore, Public Defender, and F.R. Mann, Assistant Public Defender, Panama City, for Petitioner.\nBill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.\nPER CURIAM.\nThe petition is granted and Brenda Laidler is hereby granted a belated appeal from the judgments and sentences in Bay County case numbers 07-4569 and 07-4504. In light of the late-filed notice of appeal that has been assigned case number 1D09-3844 in this court, that appeal shall be allowed to proceed as if the notice of appeal had been timely filed. The clerk of this court is directed to docket a copy of this opinion in that case.\nThe trial court is directed to appoint counsel to represent Laidler in the appeal if she qualifies for such an appointment.\nPETITION GRANTED.\nBARFIELD, DAVIS, and ROBERTS, JJ., concur.\n", "ocr": false, "opinion_id": 1559212 } ]

[ "287 N.W.2d 879" ]

[ { "author_str": "McGIVERIN", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4426, "opinion_text": "\n287 N.W.2d 879 (1980)\nDouglas R. PIERCE, Appellee,\nv.\nPauline E. PIERCE, Appellant.\nNo. 63166.\nSupreme Court of Iowa.\nJanuary 23, 1980.\n*880 Richard O. Habermann, Griswold, for appellant.\nRonald L. Comes of Kraschel & Comes, Council Bluffs, for appellee.\nConsidered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, McCORMICK, and McGIVERIN, JJ.\nMcGIVERIN, Justice.\nDefendant Pauline E. Pierce appeals from district court judgment granting plaintiff Douglas R. Pierce custody of their five children upon his petition for modification in Iowa of a Florida decree under section 598.21, The Code 1977, as amended by 1977 Session, 67th G.A., ch. 139, section 27. Defendant contends the trial court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to modify the Florida decree, which had granted her custody. The Act, 1977 Session, 67th G.A., ch. 139, was effective July 1, 1977, and now appears as chapter 598A, The Code 1979. The court assumed jurisdiction and reached the merits of plaintiff's petition. We reverse because we find the court lacked subject matter jurisdiction to modify the Florida decree.\nPauline E. Pierce asserts, as her sole ground of error, that the trial court lacked subject matter jurisdiction to hear plaintiff's petition and, therefore, improperly reached the merits of the petition.\nThe following facts relate to the jurisdiction issue.\nPauline Pierce and Douglas Pierce were married on December 20, 1964. They were married for twelve years and during that time had five children.\nOn December 20, 1976, a decree dissolving the marriage of Pauline and Douglas was issued by the circuit court of the Fourth Judicial Circuit, in and for Duval County, Florida. The decree granted custody and control of the minor children of the parties to Pauline.\nOn April 7, 1977, the Florida court modified the December 20, 1976, decree and granted custody and control of the children to Douglas upon his motion.\nDouglas subsequently removed the children from the state of Florida to Pottawattamie County, Iowa.\nOn June 6, 1977, the Florida court modified the April 7, 1977, decree and granted *881 custody and control to Pauline upon her motion. Douglas did not appear personally to challenge that motion. In the June 6 decree, as well as in each prior decree, the Florida court stated it retained jurisdiction of the case.\nOn June 15, 1977, Douglas received notice of the Florida court's June 7 order granting Pauline custody of their five children. Thereafter, on July 8, 1977, Douglas filed a petition under section 598.21, The Code, in Pottawattamie district court requesting that custody be granted to him.\nIn his petition, Douglas complied with the provisions of section 598.25 by presenting to the court the names and addresses of the parties to the dissolution decree and the name and place of the court that granted the decree, as well as the date of the decree. He also included the same information relative to the April 7 and June 6 modifications.\nDouglas not only requested a modification of the June 6 decree, but also claimed that the Florida court lacked subject matter jurisdiction to issue the June 6 order. He further requested an investigation of the home situations presented by himself and Pauline, a temporary injunction without notice and without bond restraining Pauline from removing the children from the state of Iowa or otherwise interfering with Douglas' possession of said children, and that temporary custody be granted him during the pendency of this matter.\nOn July 8 the court granted the temporary injunction sought by Douglas and ordered that Pauline be served personally with the original notice of this matter. The hearing on Douglas' request for temporary custody and continuation of the temporary injunction was set for August 17, 1977.\nThe court, on August 17, ordered an investigation into the home environment and suitability of Douglas to have custody and a like investigation of Pauline. The court also granted Douglas' request for temporary custody and ordered that the temporary injunction continue in full force and effect. Pauline did not appear to defend at that hearing.\nOn December 27, 1978, the merits of Douglas' petition came before the district court for hearing. Pauline did not file an answer, but appeared personally and through her attorney moved to dismiss claiming the district court lacked jurisdiction to hear Douglas' petition for modification under chapter 598A, The Code.\nPauline asserts that sections 598A.3 and 598A.6 operate in such a way as to deny jurisdiction to the Iowa district court of Pottawattamie County. Pauline contends that because the Florida court retained jurisdiction under its June 6 custody decree, a proceeding concerning the custody of the children was \"pending\" in Florida before the Iowa court assumed jurisdiction; therefore, under section 598A.6 the court should have stayed the Iowa proceeding for the purpose of determining whether Iowa or Florida was the more appropriate forum for handling this case. She further claims that in light of the legislative intent set forth in section 598A.1 and the provisions of section 598A.13 the Iowa court should have recognized and enforced the June 6 Florida decree and declined to take jurisdiction.\nBecause we decide the issue of whether the Iowa district court had subject matter jurisdiction under chapter 598A on grounds other than the ones set forth by Pauline, we need not reach the merits of her specific argument.\nWhile Pauline argues lack of subject matter jurisdiction in the Iowa district court on a specific statutory ground, we are not limited in our review to consideration of that specific argument. \"Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings belong.\" Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970). \"When a court acts without legal authority to do so, it lacks jurisdiction of the subject matter.\" In re Adoption of Gardiner, 287 N.W.2d 555, 559 (Iowa 1980). \"The court's jurisdiction of the subject matter however may be raised at any time and is not waived *882 even by consent.\" Green, 173 N.W.2d at 846. We will determine subject matter jurisdictional issues even though not raised in the appellate briefs of either party. Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 302 (Iowa 1975). Also, we will examine the grounds for jurisdiction on our own motion before proceeding further. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978). If we determine subject matter jurisdiction is absent, an order dismissing the petition is the only appropriate disposition. Lloyd v. State, 251 N.W.2d 551, 558 (Iowa 1977). We therefore must determine whether the district court of Iowa lacked subject matter jurisdiction on any grounds.\nSection 598.21 provides that orders relating to child custody \"shall\" be subject to the provisions of chapter 598A. It is therefore necessary that all jurisdictional requirements under chapter 598A be met where that chapter is applicable to a proceeding to modify a custody decree. The provisions of chapter 598A, the Uniform Child Custody Jurisdiction Act, obviously apply to this request by Douglas to modify the Florida custody decree. See 1977 Session, 67th G.A., ch. 139, § 1 (now § 598A.1, The Code 1979).\nWhen dealing with a modification of a child custody decree of another state, an Iowa court must first consider the provisions of section 598A.14. That section in pertinent part provides:\nIf a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter, or has declined to assume jurisdiction to modify the decree, and the court of this state has jurisdiction.\n\n(Emphasis added.)\nTwo requirements under section 598A.14 must be met before an Iowa district court can modify a custody decree from another state. First, the court that rendered the decree cannot now have jurisdiction under jurisdictional prerequisites substantially in accordance with chapter 598A or the court that rendered the decree has declined to assume jurisdiction to modify the decree. Second, the district court of Iowa must have jurisdiction.\nWhile it may be true that the Pottawattamie district court had jurisdiction to modify the custody decree under the provisions of chapter 598A apart from the first requirement of section 598A.14, we do not reach the question because we find the first requirement of section 598A.14 was not met in the present case.\nThe record does not show that the Florida court at any time declined to assume jurisdiction to modify its most recent custody decree. In fact, the Florida court had exercised jurisdiction as recently as June 6, only one month prior to the date Douglas filed his petition in Iowa.[1]\nWe must determine whether the Florida court, which rendered the decree to be modified, \"does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with . . . \" chapter 598A, within the meaning of that language. § 598A.14.\nThe term \"now\" as used in section 598A.14 refers to the time of the filing of the petition requesting modification. Uniform Child Custody Jurisdiction Act § 14 note. We therefore focus our attention on July 8, 1977, and determine if the Florida court substantially met the jurisdictional requirements of the Act.\nAs the Florida court did here, courts that render a custody decree normally retain continuing jurisdiction to modify the decree under local law. In order to achieve greater stability of custody arrangements and avoid forum shopping, the Iowa court, under the provisions of section 598A.14, will defer to the continuing jurisdiction *883 of the court of another state as long as that state has jurisdiction under the standards of chapter 598A. See Barcus v. Barcus, 278 N.W.2d 646, 649 (Iowa 1979). In other words, all petitions for modification should be filed in the prior state if that state has sufficient contact with the case to substantially satisfy section 598A.3. Uniform Child Custody Jurisdiction Act § 14 note.[2]\nSection 598A.3 provides in pertinent part:\n1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child-custody determination by initial or modification decree if:\na. This state is the home state of the child at the time of commencement of the proceeding, or had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state;\n\n.....\n2. Except under paragraphs \"c\" and \"d\" of subsection 1, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child-custody determination.\n3. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody.\nIn order to determine if the Florida court had jurisdiction on July 8, 1977, under section 598A.3(1)(a) it is necessary to determine the meaning of \"home state.\" Section 598A.2(5) provides:\n\"Home state\" means the state in which the child, immediately preceding the time involved, lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.\nUnder the definition of \"home state,\" Florida cannot be considered the \"home state\" of the children on July 8. The children had not lived with a parent in Florida at least six consecutive months immediately preceding July 8, the time involved herein.\nHowever, Florida, on July 8, did have jurisdiction in accordance with other provisions of section 598A.3(1)(a). The Florida court will have jurisdiction where Florida \"had been the child's home state within six months before commencement of the proceeding and the child is absent from [Florida] because of . . . retention by a person claiming custody or for other reasons, and a parent . . . continues to live in [Florida] . . . .\" § 598A.3(1)(a) (emphasis added). Florida was the \"home state\" of the Pierce children until they moved to Iowa with their father just after April 29, 1977. The children had lived in Florida with one or both of their parents for at least six consecutive months prior to that time. Therefore, Florida was the \"home state\" of the children within six months before commencement of this proceeding in Iowa. The children were absent from Florida because of retention by Douglas, who was claiming custody under the April 7 decree. Also, Pauline continued to live in Florida on July 8. Because the factors set forth in section 598A.3(1)(a) granting Florida jurisdiction under the facts of this case are met, Florida had jurisdiction on July 8 under the jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act. §§ 598A.14 and .3; see Fry v. *884 Ball, 190 Colo. 128, 132-33, 544 P.2d 402, 406 (1975). Not only did Florida have jurisdiction under the jurisdictional prerequisites substantially in accordance with the Act, but exactly in accordance with the Act. Also, under Florida law, the Florida court retained continuing jurisdiction to modify the custody decree.\nBecause of the mandatory nature of section 598A.14 requirements, we hold that the Pottawattamie district court incorrectly assumed subject matter jurisdiction to hear the merits of Douglas' July 8, 1977, petition.\nOur holding is in complete accord with the expression of legislative intent found in section 598A.1. We repeat here several of the general purposes of chapter 598A expressed in that section: (1) to avoid jurisdictional competition and conflict with courts of other states in matters of child custody; (2) to assure that litigation concerning custody takes place in the state that the child and family have the closest connection and where significant evidence of the child's care, protection, training and personal relationships is most readily available; (3) to discourage continuing controversies over child custody; (4) to avoid relitigation of custody decisions of other states insofar as feasible; (5) to facilitate the enforcement of custody decrees of other states; and (6) to promote and expand the exchange of information between states concerned with the same child.\nOur holding is strictly limited to the facts of this case. All orders of the district court are vacated and this case is reversed for the reasons stated above. We hereby dismiss plaintiff's petition at his costs.\nREVERSED.\nNOTES\n[1] We are not asked in this appeal to determine whether the Florida court properly exercised jurisdiction in making its June 6, 1977, modification decree.\n[2] We note that on October 1, 1977, Florida adopted the Uniform Child Custody Jurisdiction Act as Fla.Stat. §§ 61.1302-.1348. 1977 Fla.Laws, c. 77-433. The fact that Florida did not enact the uniform act until Oct. 1, 1977, does not affect the applicability of our Act to this case. As we said in Barcus v. Barcus, 278 N.W.2d 646, 649-50 (Iowa 1979), the Uniform Child Custody Jurisdiction Act is not a reciprocal law and it may be put into full operation regardless of whether the other state involved in the case has enacted the statute.\n\n", "ocr": false, "opinion_id": 1810526 } ]

[ "688 F.2d 834" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/688/688.F2d.834.82-6374.html", "author_id": null, "opinion_text": "688 F.2d 834\n Prestonv.McCall\n 82-6374\n UNITED STATES COURT OF APPEALS Fourth Circuit\n 8/5/82\n E.D.N.C., 542 F.Supp. 249\n AFFIRMED\n ", "ocr": false, "opinion_id": 408693 } ]

[ "571 N.E.2d 327" ]

[ { "author_str": "Conover", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7260, "opinion_text": "\n571 N.E.2d 327 (1991)\nGene DANOV and Janice Danov, Appellants,\nv.\nCOLOR TILE, INC., Appellee.\nNo. 46A04-9009-CV-424.\nCourt of Appeals of Indiana, Fourth District.\nMay 20, 1991.\nRehearing Denied August 15, 1991.\n*328 Stephen A. Kray, LaPorte, for appellants.\nCONOVER, Judge.\nPlaintiffs-Appellants Gene and Janice Danov (Danov) appeal the trial court's grant of motion for relief from default judgment in favor of Defendant-Appellee Color Tile, Inc. (Color Tile).\nWe affirm.\nThe Danovs present one issue for our review:\nwhether the trial court abused its discretion in setting aside its default judgment against Color Tile.\nIn January, 1989, Ronald Pratt (Pratt) sued the Danovs for labor and materials furnished to improve their home. In April, the Danvos answered and counterclaimed against Color Tile. The Danovs alleged because they relied on Color Tile's representations and guarantees of tile quality and Pratt's workmanship, Color Tile should be held responsible for the restoration expenses of the unsatisfactory installation of tile.\nDarryl Black, a local store manager, accepted service of the summons for Color Tile, but it entered no appearance. In September, 1989, the trial court entered a default judgment against Color Tile for $16,511. In November, 1989, the Danovs levied execution against Color Tile's bank account and received $2,457.14.\nIn April, 1990, Color Tile appeared and posted an $18,000 cash bond to obtain a stay of execution and filed a motion to set aside the default judgment. After a hearing in August, the trial court set aside its default judgment. The Danovs appeal.\nColor Tile failed to file a brief or petition for extension of time to file a brief. Because the court of appeals need not burden itself with the responsibility of developing arguments for either party when an appellee fails to file a brief, we have the discretion to reverse the lower court if the appellant demonstrates prima facie error. Burroughs v. Burroughs (1913), 180 Ind. 380, 381, 103 N.E. 1; Fisher v. Board of School Trustees (1986), Ind. App., 514 N.E.2d 626, 628. Prima facie error is error appearing at first sight, on first appearance, or on the face of the argument. Johnson County Rural Electric Membership Corp. v. Burnell (1985), Ind. App., 484 N.E.2d 989, 991. In addition, the appellee may be considered to have confessed error by not filing a brief, and the appellate court may consider the statements of facts contained in appellant's brief both to be true and sufficient for the disposition of the appeal. Burnell, supra, at 991.\nThe Danovs contend the trial court committed reversible error in setting aside the default judgment because Color Tile presented no admissible evidence showing any meritorious defense, nor did it present admissible evidence that excused its failure to appear and defend. We disagree.\nThe decision whether to set aside a default judgment is committed to the sound discretion of the trial court. Its decision in this regard is necessarily broad as any determination of excusable neglect must turn upon the unique factual background of each case. No fixed rules or standards have been established since the circumstances of no two cases are alike. An abuse of discretion is an erroneous conclusion *329 and judgment, one clearly against the logic and effect of the facts or the reasonable, probable deductions to be drawn therefrom. An abuse of discretion does not occur so long as even slight evidence of excusable neglect appears in the record. Security Bank & Tr. v. Citizens Nat. Bk. (1989), Ind.App, 533 N.E.2d 1245, 1247.\nWhen considering the reinstatement of a cause of action, trial courts may consider a number of factors, including the amount of money involved, the existence of a meritorious claim, the length of time between the judgment's entry and the request for relief, and the lack of prejudice to the defendant. Bross v. Mobile Home Estates, Inc. (1984), Ind. App., 466 N.E.2d 467; Fulton v. Van Slyke (1983), Ind. App., 447 N.E.2d 628; Carvey v. Indiana National Bank (1978), 176 Ind. App. 152, 374 N.E.2d 1173; Green v. Karol (1976), 168 Ind. App. 467, 344 N.E.2d 106.\nHere, the record shows the trial court considered a number of factors in determining excusable neglect. The complaint was captioned \"Pratt vs. Danov.\" (R. 80). When Black received the complex answer and counterclaim, he called the attorney personally representing him in a claim he had filed against the Danovs.[1] The attorney advised him the answer did not concern Color Tile but was related to Black's personal suit. However, the attorney cautioned Black might want to direct the answer to Color Tile management for examination. (R. 86-87). Color Tile management in Texas was not aware of the action until March. (R. 105). Black, who had been contracting on the side, had breached company policy on the original sale. Specifically, the trial court found the complexity of the various matters in litigation between the parties suggested that justice would best be served among all the parties involved by setting aside the default judgment. (R. 109). The Danovs have not shown any way in which they would be prejudiced by reinstatement. Moreover, the issue will be moot if Pratt succeeds in his collection claim against the Danovs.\n\"[I]n our system of justice the opportunity to be heard is a litigant's most precious right and should be sparingly denied.\" Chrysler Corp. v. Reeves (1980), Ind. App., 404 N.E.2d 1147, 1153. The trial court did not abuse its discretion in setting aside the default judgment and giving Color Tile the opportunity to be heard.\nAffirmed.\nMILLER and BAKER, JJ., concur.\nNOTES\n[1] There are three related actions concerning this matter.\n\n", "ocr": false, "opinion_id": 2125615 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/034/keylon.pdf", "author_id": null, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT KNOXVILLE\n October 16, 2003 Session\n\n JUANITA W. KEYLON v. ROBERT A. HILL\n\n Appeal from the Circuit Court for Roane County\n No. 12413 Russell E. Simmons, Jr, Judge\n\n FILED DECEMBER 11, 2003\n\n No. E2003-01054-COA-R3-CV\n\n\n The plaintiff’s motion for partial summary judgment, based upon the asserted failure\nof the defendant to countervail the motion, was denied by the trial judge. The plaintiff argues that\nthe established rule that the denial of a motion for summary judgment, followed by a jury trial and\nverdict, is not reviewable, has no application in this case because there was no verdict. The rule is\nthat the denial of a motion for summary judgment is not reviewable when the case proceeds to\njudgment, as distinguished from verdict. The motion of the defendant in this medical malpractice\ncase for a directed verdict made at the close of all the evidence was granted upon a determination\nthat all of the expert testimony established that the three-hour window to administer a blood clot\ndissolver had expired before the defendant treated the plaintiff. Whether the particular anticoagulant\nshould have been administered in a timely manner was at the core of the claimed negligence. We\nfind the question of negligence to be within the peculiar province of the jury, and remand the case\nfor a new trial.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part,\n Reversed in Part and Remanded\n\nWILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and\nCHARLES D. SUSANO, JR., JJ., joined.\n\nElizabeth K. Johnson and Donald K. Vowell, attorneys for appellant, Juanita W. Keylon.\n\nHeidi A. Barcus and James Harry London, Knoxville, Tennessee, attorneys for appellee, Robert A.\nHill.\n\n OPINION\n I.\n\n This is a medical malpractice case. The motion of the Plaintiff for partial summary judgment\nwas denied, and the case was thereupon scheduled for trial, on January 8, 2003. At the conclusion\nof all the proof, Dr. Hill moved for a directed verdict which was granted. The motion of the Plaintiff\n\ffor a new trial was denied. She appeals and presents for review two issues: (1) whether her motion\nfor partial summary judgment should have been granted, and (2) whether the motion of the\nDefendant for a directed verdict was properly granted.\n\n II.\n\n The Plaintiff alleged that: on December 26, 2001, she was taken to the Roane Medical Center\nemergency room for medical treatment, where her condition was diagnosed as acute; Dr. Robert A.\nHill was the emergency room physician on duty; she complained of symptoms “that are plain and\nobvious signs of a stroke,” which appeared suddenly and immediately preceding her arrival at the\nemergency room; she was in fact having a stroke, which Dr. Hill failed to diagnose and treat\naccordingly; Dr. Hill diagnosed her as having Pain OS [oculus sinister] and then discharged her with\ninstructions to seek further treatment “later today at Roane Eye Center”; she went to Roane Eye\nCenter and was seen by an optometrist who thought she was suffering from a stroke “right now”; she\nimmediately was taken to Parkwest Medical Center where she was diagnosed with an “occipital lobe\nstroke” and treated accordingly; a stroke requires immediate care, and Dr. Hill was negligent and\nviolated the applicable standard of care because:\n\n He failed to conduct an appropriate medical examination of Mrs. Keylon.\n\n He failed to use diagnostic tools and information available to determine Mrs.\n Keylon’s condition.\n\n He failed to promptly and properly diagnose Mrs. Keylon’s medical problem.\n\n He failed to promptly recognize and properly respond to signs and symptoms of Mrs.\n Keylon’s condition.\n\n He failed to properly document the course of Mrs. Keylon’s condition and treatment.\n\n He failed to realize that Mrs. Keylon was experiencing a stroke.\n\n He failed to treat Mrs. Keylon for stroke.\n\n He failed to stabilize Mrs. Keylon’s condition before releasing her.\n\n He failed to consult with a physician or other qualified health care provider\n possessing the training, experience and skill necessary to promptly and properly\n diagnose and treat Mrs. Keylon’s condition.\n\n He failed to consult a neurologist.\n\n\n\n\n -2-\n\f He failed to transfer Mrs. Keylon to another medical facility equipped to provide care\n and treatment for a stroke patient.\n\n The plaintiff further alleged that as the proximate result of Dr. Hill’s negligence and\ndeviations from the applicable standard of care, considerable time elapsed between the onset of\nsymptoms and treatment, causing Mrs. Keylon to suffer injuries that would not otherwise have\noccurred, including but not limited to the following: loss of vision, loss of coordination, loss of\nstrength, loss of limb movement, loss of balance, loss of reaction time, loss of concentration, loss\nof speed of thought, loss of memory, loss of awareness of space (where objects are in relation to each\nother), general depression, costs of medical care, costs of rehabilitation services, costs of long-term\nand custodial care, loss of services and loss of enjoyment of life, and as the proximate result of Dr.\nHill’s negligence and deviations from the applicable standard of care, Mrs. Keylon can no longer do\ncertain activities that she would have been able to do otherwise, including but not limited to the\nfollowing: place a telephone call, read a book or newspaper, take a walk, drive a car, wash dishes,\ncook, watch TV, play cards, write a letter, do laundry, and vacuum.\n\n III.\n\n Dr. Hill answered the complaint in seriatim denying all allegations of negligence, and\n“demanding strict proof thereof.”1 He averred further and averred without admitting liability that\nthe matters complained of resulted from one or more independent causes or phenomena, and did not\nresult from any act or omission that constituted any negligence or malpractice, and that he is not\nliable for any injury or damage for which the Plaintiff seeks recovery because any injury or damage\nwas caused by unavoidable accident.\n\n Dr. Hill further averred that in examining and otherwise caring for Mrs. Keylon, he acted in\naccordance with that degree of skill, learning and experience ordinarily used, possessed and practiced\nby physicians in similar circumstances in Roane County and similar communities; that accepted and\nproper methods were used in examining and otherwise caring for Mrs. Keylon; and that in examining\nand otherwise caring for Mrs. Keylon, he acted in accordance with the reasonable requirements of\ngood medical care and practice and in accordance with the applicable standard of care.\n\n IV.\n The Motion for Partial Summary Judgment\n\n The Plaintiff filed a motion for partial summary judgment as to liability - and supported it\nwith evidentiary materials. Dr. Hill responded with his affidavit, deposing that he was familiar with\nthe applicable standard of care and that he did not violate such standard because he concluded that\nthe plaintiff’s symptoms were more consistent with an ocular problem than a stroke. The motion\n\n\n 1\n W e find nothing in the Rules of Civil Procedure which, even by inference, provides that an allegation may\nbe denied while conc urrently demanding “strict proof thereof.” Presumably this anomaly is a remnant of equity practice\nno longer viable.\n\n -3-\n\fwas denied, and the case proceeded to trial resulting in a directed verdict for the Defendant, as\naforesaid.\n\n The denial of her motion is an issue presented for review by the Plaintiff, who argues that\nDr. Hill’s response, as supported, created no issues of material fact and that she was entitled to\njudgment as a matter of law.\n\n The well-known rule that the denial of a motion for summary judgment predicated upon the\nexistence of a genuine issue of material fact is not reviewable on appeal when a judgment is\nsubsequently rendered after a trial on the merits, has no application to the case at Bar, according to\nthe Plaintiff, who argues that the rule is applicable only when the denial is followed by a jury verdict.\n[Emphasis added]. The rule attached when a judgment is subsequently rendered - not necessarily\na verdict - the words are not interchangable. A judgment was rendered against Mrs. Keylon, and the\ndenial of her motion for summary judgment cannot be reviewed. See, Purkey v. Purkey, 1998 WL\n334406, 2 (Tenn. Ct. App.)\n\n Standard of Review\n\n When reviewing a trial court’s disposition of a motion for directed verdict,\n appellate courts do not resolve disputes in the evidence, weigh the evidence, or\n evaluate the credibility of the witnesses. Instead, we review the evidence most\n favorably to the party against whom the motion is made, give that party the benefit\n of all reasonable inferences from the evidence, and disregard all evidence contrary\n to that party’s position.\n Directed verdicts are appropriate only when reasonable minds can reach but\n one conclusion. A case should go to the jury, even if the facts are undisputed, when\n reasonable persons could draw conflicting conclusions from the facts.\nRichardson v. Miller, 44 S.W.3d 1, 30 (Tenn. Ct. App. 2000).\n\n VI.\n The Directed Verdict\n\n The trial judge, in directing a verdict for Dr. Hill at the conclusion of all the proof, stated:\n\n The one fact all of the witnesses agreed on was that the drug could\n not be administered three hours after onset of stroke symptoms. . . .\n From the evidence presented by the parties, the only conclusion a\n reasonable mind could draw is that the timing for the onset of stroke\n symptoms begins at the last time the persons can reasonably say the\n stroke patient was all right. The only evidence of this was that the\n patient was all right when she went to bed at 11:00. The window of\n time to administer the drug would have been over at 2:00 a.m.\n\n\n\n -4-\n\f Based on this conclusion, the only conclusion reasonable minds could\n draw would be that the defendant did not breach the standard of care\n of administering the drug when the administering of the drug could\n only have been within a three-hour period that ended at 2:00 and the\n plaintiff was not a candidate for the use of the drug TPA [sic]. Based\n on this, the Court must direct a verdict for the defendant.\n\n Substantial proof was presented by the Plaintiff that, while in the emergency room at Roane\nMedical Center, she complained of blurred vision, inability to focus, double vision, significant pain,\nand pain on the left side of head. She related her medical history, old age (79), high blood pressure,\nsmoking, and heart disease. Her condition was classified as acute. Following some tests including\na CT scan, Dr. Hill made the diagnosis of Pain OS (left eye), discharged her at 6:45 a.m. with\ninstructions to go to the Roane Eye Center, where an Optometrist quickly diagnosed her as having\na stroke “right now,” and referred her to Parkwest Hospital Emergency Room, ten miles distant,\nwhere she saw Dr. Van Helms, an ER physician. Her complaints were “problems walking, visual\ndisturbance, disturbance to thought process, onset 3:30. No change since onset.” His diagnosis was\n“left occipital CVA,” [cardiovascular accident, or stroke]. His treatment consisted of prescribing\nHeparin, (an anticoagulant), other tests, including a CT scan which revealed a left occipital infarct,\nor stroke. Mrs. Keylon was referred to a neurologist, Dr. Jack Scariano, who admitted her to the\nhospital for treatment of an occipital lobe stroke.\n\n The Issue of Negligence\n\n Dr. Jack Scariano is a board-certified neurologist who practices at Parkwest Hospital in\nKnoxville. He testified that Mrs. Keylon arrived at the Roane Medical Center Emergency Room at\n4:35 a.m.; that someone [at Roane Medical Center] wrote “on there” that she “can’t see out of her\neyes,” which was a symptom of a stroke; that she arrived in a wheelchair; that she had a past medical\nhistory of cardiovascular illness, a risk factor for a stroke; that she was complaining of pain on the\nleft side of her head, also a symptom of a stroke; that she was unable to focus, another stroke\nsymptom; that she was hypertensive, also a risk fact; that the CAT scan taken at the Roane Medical\nCenter generally does not show stroke within the first eight to twelve hours (following a stroke) and\nthe CAT scan was normal, which did not rule out the occurrence of a stroke, but “it does rule out that\nyou’ve had a bleed,” but “there were no signs of her having an actual bleed.”\n\n He testified further that with a normal CAT scan it was proper to use anticoagulation\ntreatment; that “the only anticoagulation treatment approved now to actually treat stroke would be\nTPA “which is a drug that breaks up blood clots”and restores blood flow to the affected area\nresulting in significant neurological improvement in most instances.\n\n When asked to explain the timing of administering the drug, he testified that it must be given\nwithin three hours of when the patient notices the symptoms, and because of a mistaken diagnosis\nMrs. Keylon was not given the drug, and she was discharged from the ER at 6:45 a.m. She arrived\nat Parkwest Hospital at 12:40 [p.m.] too late “to give TPA.”\n\n\n -5-\n\f She was seen and treated by Dr. Helms at the Parkwest Hospital, who ordered a CAT scan\nwhich confirmed that she had suffered a stroke. The medical record at Parkwest established the\nonset of symptoms at 3:30 a.m.\n\n Dr. Scariano testified that within a reasonable degree of medical certainty he had an opinion\nthat Dr. Hill deviated from the standard of care in his treatment of Mrs. Keylon. Specifically, he\ntestified:\n\n A. I do feel that he – that he didn’t recognize that a sudden visual\n loss is a sign of an acute stroke, he also diagnosed visual loss\n due to acute glaucoma even though the intraocular pressures\n were normal.\n\n Q. What about the treatment that Dr. Hill gave to Ms. Keylon?\n Did – in your opinion did he violate the standard of care in the\n treatment?\n\n A. Without making that actual proper diagnosis, he couldn’t\n consider the actual treatment. There was a treatment\n available, with reasonable medical probability, could have\n improved her outcome.\n\n Q. And what was that treatment?\n\n A. TPA.\n\n Q. And did – do you find that Dr. Hill violated the standard of\n care with regard to whether he referred Ms. Keylon to a\n specialist or to any other institution?\n\n A. I know that actually Roane County sends us patients here at\n Parkwest all the time. So we were certainly available to get\n the actual patient, you know, sent to us. And we eventually\n got her anyway, so – and I’m sure he knows that that’s an\n option, because I see it all of the time. So, if he wasn’t sure,\n he certainly could have called us.\n\n Q. All right. And would you have been the doctor on call had he\n called?\n\n A. Probably, yes.\n\n\n\n\n -6-\n\f Q. Now, if Dr. Hill had followed the standard of care, Dr.\n Scariano, do you have an opinion, within a reasonable degree\n of medical certainty, as to whether it would have made a\n difference for Ms. Keylon?\n\n A. Well, with reasonable medical probability, we know that\n giving TPA can improve stroke outcomes. That’s why it’s\n been approved by the FDA to actually give to people who\n have strokes.\n So, yes, if she would have gotten TPA within the appropriate\n time frame for this type of actual stroke, with reasonable\n medical probability, she could have had a better outcome.\n\n Q. All right. Dr. Scariano, you said could have and that she can\n improve, and I want to ask you to talk about that some more\n specifically with regard to the probability that she would\n improve.\n\n A. I’ve already testified that at the institution here we see that\n approximately 70 percent of the patients who have strokes\n and get TPA and who are candidates to get TPA and get it do\n significantly or totally improve.\n\n Q. And would that hold true for Mrs. Keylon? Would it have\n held true for Mrs. Keylon in this case?\n\n A. Yes. If she – would have gotten here within the appropriate\n time frame, we could have actually given her that and she\n would have that probability of having actually a better\n outcome.\n\nAs ground for the motion for a directed verdict, Dr. Hill alleged that\n\n (1) the Plaintiff has failed to prove by expert testimony the recognized\n standard of acceptable professional practice applicable to emergency\n physicians practicing in Roane County or in a similar community; (2)\n the Plaintiff has failed to prove by expert testimony that the\n Defendant Dr. Hill failed to meet that recognized standard; (3) the\n Plaintiff has failed to prove by expert testimony that as a proximate\n result of Dr. Hill’s negligence, the Plaintiff suffered injuries that\n would not otherwise have occurred; and (4) the Plaintiff has failed to\n produce any evidence of damages.\n\n\n\n -7-\n\f As heretofore stated the motion for a directed verdict was granted because\n\n . . . The only conclusion a reasonable mind could draw is that the\n timing for the onset of symptoms begins at the last time the person\n can conclusively say the stroke patient was all right. The only\n evidence of this was that the patient was all right when she went to\n bed at 11:00. The window of time to administer the drug would have\n been over at 2:00 a.m.. . . . the defendant did not breach the standard\n of care of administering the drug when the administering of the drug\n could only have been within a three-hour period that ended at 2:00\n and the plaintiff was not a candidate for the use of the drug TPA . . .\n\n\n Tennessee Code Annotated § 29-26-115(a)(1) provides:\n\n – (a) In a malpractice action, the claimant shall have the burden of\n proving by evidence as provided by subsection (b):\n (1) The recognized standard of acceptable professional\n practice in the profession and the specialty thereof, if any, that the\n defendant practices in the community in which the defendant\n practices or in a similar community at the time the alleged injury or\n wrongful action occurred;\n (2) That the defendant acted with less than or failed to act\n with ordinary and reasonable care in accordance with such standard;\n and\n (3) As a proximate result of the defendant’s negligent act of\n omission, the plaintiff suffered injuries which would not otherwise\n have occurred.\n (b) No person in a health care profession requiring licensure\n under the laws of this state shall be competent to testify in any court\n of law to establish the facts required to be established by subsection\n (a), unless the person was licensed to practice in the state or a\n contiguous bordering state a profession or specialty which would\n make the person’s expert testimony relevant to the issues in the case\n and had practiced this profession or specialty in one (1) of these states\n during the year preceding the date that the alleged injury or wrongful\n act occurred. This rule shall apply to expert witnesses testifying for\n the defendant as rebuttal witnesses. The court may waive this\n subsection when it determines that the appropriate witnesses\n otherwise would not be available.\n\n A directed verdict is appropriate where “the evidence is susceptible to but one conclusion.”\nAlexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000). In considering a motion for directed\n\n\n -8-\n\fverdict, the Court must take the strongest legitimate view of the evidence presented by the plaintiff\nand must draw all reasonable inferences in favor of that party. Eaton v. McLain, 891 S.W.2d 587,\n590 (Tenn. 1994); Long v. Mattingly, 797 S.W.2d 889, 892 (Tenn. Ct. App. 1990). A grant of a\ndirected verdict is warranted where the Court concludes that reasonable minds could not differ as\nto the conclusions drawn from the evidence presented. See Alexander, 24 S.W.3d at 271.\n\n With respect, we have determined that the trial judge misapprehended the testimony of Dr.\nScariano, which we have reproduced. The ruling of the trial judge was that “. . . the patient was all\nright when she went to bed at 11:00. The window of time to administer the drug would have been\nover at 2:00 a.m.” This time period – 11:00 a.m. to 2:00 a.m. – is irrelevant under the proof. Mrs.\nKeylon had apparently not yet suffered a stroke. There is abundant evidence that she was under the\ncare of the defendant during most of the so-called window of time to administer the clot-dissolving\ndrug. Whether he was negligent in his treatment of the Plaintiff was a question for the jury to\ndetermine, and the motion for a directed verdict was inappropriately granted.\n\n Qualification of Expert Witness\n\n The defendant presents for review the issue of whether a directed verdict is appropriate\n“where the [Plaintiff] failed to establish any of the elements required to support a claim under the\nTennessee Medical Malpractice Act.”\n\n In a general way, much of the foregoing opinion addresses this issue; what is not addressed\nis the issue not specifically asserted, but intended: whether Dr. Scariano, on whose testimony we\nhave focused, was qualified to testify as an expert witness. The trial judge held that he was qualified,\nand we agree.\n\n At the outset, we note that the Appellee’s brief takes undue liberties with the art of advocacy\nby the mischaracterization of testimony and the non-contextual recital of selected segments. The\ndifficulties attendant upon such practices are self-evident and the practice is never productive.\n\n The defendant argues that Dr. Scariano testified that his opinion as to the applicable standard\nof care was based on a national standard, not recognized in this jurisdiction. Dr. Scariano practiced\nin Roane County for a few years, and then relocated ten (10) miles away, in Knox County.\n\n We reproduce his qualifying testimony:\n\n . . . I commonly treat patients for stroke. I commonly receive referrals\n of stroke patients from primary care doctors, hospitals and emergency\n rooms located throughout the East Tennessee community, including\n Knox County, Roane County, Cocke Count Cumberland County,\n Hamblen County, Loudon County, McMinn County, Monroe County\n and Sevier County. Stroke is a common medical condition that is\n treated by primary care doctors, hospitals and emergency rooms in\n\n\n -9-\n\f East Tennessee on a regular basis. Roane, Cocke, Cumberland,\n Hamblen, Loudon, McMinn, Monroe, and Sevier counties are all\n geographically close to Knox County, all lying within 25 miles of\n Knox County. Roane County is contiguous to Knox County and is\n approximately ten miles away from the Fort Sanders Parkwest\n Medical Center. These counties generally have only one hospital and\n one emergency room, although there are two hospitals in Hamblen\n County and McMinn County. Populations in these counties are less\n than Knox County, and the hospitals are smaller and there are fewer\n specialists. Most hospitals in these counties, including Roane\n Medical Center, have MRI and CT scanning equipment. ER doctors\n in these hospitals commonly treat stroke patients with thrombolytics.\n None of these hospitals are teaching hospitals; none have medical\n schools. I commonly examine treatment records of stroke patients\n referred from these counties, and I commonly have contact with\n primary care doctors, hospitals and emergency rooms from these\n counties, including discussions of the patient’s medical history and\n treatment received in those counties. I commonly send\n recommendations for treatment back to the referring physicians in the\n patient’s home area. My contact with primary care doctors, hospitals\n and emergency rooms in these counties has made me familiar with the\n standard of care for recognizing stroke in each of these counties,\n including Roane County. The standard of care for recognizing stroke\n in each of the counties is the same. All doctors in these counties who\n see patients on an initial basis, including primary care doctors and\n emergency room doctors, must be able to recognize stroke, and are\n governed by this standard of care.2\n\n We affirm the judgment denying the plaintiff’s motion for a partial summary judgment: we\nreverse the judgment granting the defendant’s motion for a directed verdict, and remand the case to\nthe trial court for a new trial. Costs are assessed to the Appellee.\n\n\n\n ___________________________________\n WILLIAM H. INMAN, SENIOR JUDGE\n\n\n\n\n 2\n It is of interest, perhaps of significance, that the optom etrist at Roane Eye Center, who was not a medical\ndoctor, immediately recognized that Mrs. Keylon had a stroke “righ t now .”\n\n -10-\n\f", "ocr": false, "opinion_id": 1065224 } ]

[ "707 N.E.2d 239", "302 Ill. App. 3d 879", "236 Ill. Dec. 394" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n707 N.E.2d 239 (1999)\n302 Ill. App.3d 879\n236 Ill.Dec. 394\nJanet MODELSKI, Special Administrator of the Estate of Joseph Modelski, Deceased, Plaintiff-Appellant,\nv.\nNAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION, Defendant-Appellee.\nNo. 1-97-4675.\nAppellate Court of Illinois, First District, Fourth Division.\nJanuary 28, 1999.\n*241 Christopher T. Hurley & Associates, Chicago, for appellant.\nArnstein & Lehr, Chicago (Louis A. Lehr, Jr., Arthur L. Klein, Mark E. Enright & Patti S. Levinson, of counsel), for Appellee.\nJustice HOFFMAN delivered the opinion of the court:\nThe plaintiff, Janet Modelski, Special Administrator of the Estate of Joseph Modelski (Modelski), deceased, prosecuted the instant wrongful death action against the defendant, Navistar International Transportation Corporation (Navistar), charging that Navistar's negligence in the design, manufacture, sale, and distribution of its Farmall 450 tractor proximately resulted in Modelski's death. The jury returned a verdict in favor of Navistar, the trial court entered judgment on the verdict, and the plaintiff now appeals. For the reasons which follow, we reverse the judgment in favor of Navistar and remand this cause to the circuit court for a new trial.\nThe Farmall 450 tractor which is the subject of this litigation was manufactured by Navistar, then known as International Harvester Corporation, on June 1, 1957. Modelski purchased the tractor on April 22, 1989, from Brian Bigelow. Bigelow had purchased the tractor at a farm auction in 1983.\nAs designed, the seat on the Farmall 450 tractor is mounted atop a metal battery box, which rests on the tractor's rear axle. The cover of the battery box to which the seat is attached is hinged at the rear and secured at the front by two 1/2-inch bolts. To access the battery, the two bolts at the front of the battery box cover must be removed and the cover with the seat attached must be tilted to the rear.\nOn May 7, 1991, Modelski was using the tractor to mow a field on his 40-acre farm located in Vandalia, Illinois. Attached to the rear of the tractor was a rotary mower known as a \"Bush Hog.\" Modelski died as a result of injuries he sustained when he was struck by the blade of the Bush Hog. There were no witnesses to the accident.\nModelski's body was found lying face down on the ground with severe lacerations to his *242 head and upper body. The tractor was found in a ditch approximately 40 yards from Modelski's body. When the tractor was found, the motor was not running, the ignition switch was in the \"on\" position, there were no bolts holding down the battery box cover, and the seat was tilted to the rear. Only one rusty 7/16-inch bolt was found near the scene of the accident. No 1/2-inch bolts were ever found.\nIn her second amended complaint, the plaintiff sought recovery against Navistar on a negligence theory. The plaintiff charged, inter alia, that the negligent design of the Farmall 450 tractor caused Modelski to be ejected to the rear when the bolts holding the front of the battery box cover disengaged, that Navistar negligently failed to warn of the consequences of those bolts disengaging while the tractor was in operation, and that Navistar was negligent in selling the subject tractor without a safety interlock on the seat. Additionally, the plaintiff charged that Navistar was negligent in failing to provide post-sale warnings to foreseeable users of the Farmall 450 tractor after learning of the hazards associated with the design of the seat mounting and in failing to retrofit this model tractor to eliminate that hazard. Several months prior to trial, Navistar moved the court to strike the charging allegations relating to its alleged negligence in failing to provide post-sale warnings or to retrofit the subject tractor. Navistar also moved for partial summary judgment on the negligence claim which was based on the sale of the tractor without a safety interlock on the seat. Immediately prior to the commencement of trial, the court granted both of Navistar's motions and also denied the plaintiff leave to file a third amended complaint.\nThe case proceeded to trial before a jury. The plaintiff presented evidence in support of her theory that Modelski was ejected to the rear of the tractor when the bolt or bolts holding the battery box cover disengaged, causing him to fall into the path of the Bush Hog. Navistar, through the testimony of its reconstruction expert, Edward Caulfield, advocated the theory that Modelski was run over by the tractor and Bush Hog when he started the tractor while standing on the ground. Prior to the commencement of trial, the court denied the plaintiff's motion in limine to bar Caulfield's opinion testimony as speculative. The trial court also denied the plaintiff's motion to strike Caulfield's testimony on the same grounds made at the close of Navistar's case.\nDuring the course of its deliberations, the jury requested permission to reenter the courtroom to examine the tractor seat assembly. Although used demonstratively during the course of the trial, the seat assembly was never admitted into evidence. Nevertheless, the trial court granted the jury's request. Neither the judge nor the attorneys for the parties were present when the jury conducted its examination.\nThe jury returned a verdict in favor of Navistar. The trial court entered judgment on the verdict and denied the plaintiff's post-trial motion. The plaintiff now appeals, contending that: 1) the jury's verdict is against the manifest weight of the evidence; 2) the trial court erred in permitting the jury to perform experiments upon the tractor seat assembly which was never admitted into evidence; 3) the trial court erred in striking the allegations in plaintiff's second amended complaint charging Navistar with negligence for failing to provide post-sale warnings or to retrofit the subject tractor; 4) the trial court erred in refusing to admit photographs into evidence depicting Modelski's injuries; 5) the trial court erred when it denied the plaintiff's motion to strike Caulfield's testimony; 6) the trial court erred in granting Navistar's motion to exclude certain evidence of prior similar occurrences; and 7) the trial court abused its discretion when it sustained Navistar's objection to plaintiff's proffered evidence that none of Navistar's competitors used a similar seat assembly design in 1957, refused to allow the plaintiff to demonstrate that the 7/16-inch bolt found near the accident scene would fit into a 1/2-inch nut, refused to permit the plaintiff's expert witness to testify concerning the feasibility of Caulfield's theory, and permitted Navistar to make use of photographic exhibits which had not been produced pursuant to the plaintiff's Supreme Court Rule 237 notice to produce (166 Ill.2d R. 237).\n*243 We address first the propriety of the trial court permitting the jury to have access to the tractor seat assembly during deliberations. After closing arguments, the trial court stated that it would not allow the seat assembly to be sent to the jury room. However, after the jury requested access to the seat assembly, the trial court acquiesced, and the unsupervised jury was permitted to reenter the courtroom, where the device was located. Among the pleadings in support of her post-trial motion, the plaintiff submitted the affidavits of two jurors, Barbara Peterson and Erin Nye. Peterson averred that the jury tested the seat both with and without bolts, and Nye averred that the jury tested the seat with one bolt threaded into the battery box. Both jurors also swore that another juror, Richard Schaller, mounted the seat and bounced up and down. According to Nye, Schaller bounced on the seat with one bolt threaded into the battery box. According to Peterson, Schaller mounted the seat both with and without bolts present, and fell backwards when he tested the seat without bolts.\nNavistar made only one substantive objection, either before the trial court or in its brief on appeal, to these juror affidavits. It objected to the paragraphs in which the jurors stated that the results of the experiment were \"very compelling.\" Navistar is correct in its assertion that statements concerning the mental processes of a jury are inadmissible to impeach its verdict. People v. Szymanski, 226 Ill.App.3d 115, 120-21, 168 Ill.Dec. 34, 589 N.E.2d 148 (1992). Consequently, we have ignored the offending paragraphs in the affidavits of Peterson and Nye. However, since Navistar interposed no other substantive objection to these affidavits, we have considered the remaining factual averments contained therein.\nA trial court has considerable discretion in determining which exhibits, if any, may be taken into the jury room during deliberations. Bautista v. Verson Allsteel Press Co., 152 Ill.App.3d 524, 532, 105 Ill. Dec. 487, 504 N.E.2d 772 (1987). The problem stemming from a jury's access to tangible exhibits was addressed in Main v. Ballymore Co., 116 Ill.App.3d 1040, 1042, 70 Ill. Dec. 295, 449 N.E.2d 169 (1983), where the court observed that:\n\"[b]ecause of the fundamental rule that the jury may not receive evidence out of court, it has been held that insofar as tests or experiments carried out by the jury during deliberations have the effect of introducing new evidence out of the presence of the court and parties, such are improper; and, if the new evidence in question has a substantial effect on the verdict, prejudicial.\"\nWe agree with the plaintiff that the jury should not have been granted access to the seat assembly, both because it had never been introduced into evidence and because access invited the experimentation that took place. Navistar contends, nonetheless, that the plaintiff suffered no prejudice under the circumstances of this case. It argues that the jury's experiment revealed nothing other than an uncontroverted fact; namely, that the tractor seat would tilt to the rear if a person mounted the seat when no bolts were present in the battery box cover. What Navistar's argument fails to consider, however, is that the jury's experiment did not address the controverted question of whether bolts holding the battery box cover could vibrate loose while the tractor was being operated. Just as in Main, the jury's experiment in this case was not conducted under circumstances similar to those present when the accident occurred, was not subject to evidentiary constraints or cross-examination, and constituted the introduction of new evidence in the jury room. Main, 116 Ill.App.3d at 1043, 70 Ill. Dec. 295, 449 N.E.2d 169. We believe, therefore, that the prejudice is manifest.\nNext, we address the question of whether Caulfield's opinion testimony should have been stricken. To place the issue in perspective, we deem it helpful to briefly recount the theories of the parties as to how this accident occurred.\nThe evidence introduced at trial established that Modelski had nearly completed mowing his field when he was killed. There is no question that, when the subject tractor was found, there were no bolts securing the front of the battery box cover and the seat was tilted to the rear. No 1/2-inch bolts *244 were found at the scene, but a 7/16-inch bolt was found by the coroner resting on the surface of the ground in the path of the tractor, approximately 40 feet from Modelski's body. The plaintiff introduced expert testimony in support of her theory that the bolt or bolts securing the battery cover disengaged as Modelski was operating the tractor, causing the seat to tilt to the rear and eject Modelski into the path of the Bush Hog. Navistar defended on the theory that Modelski was run over by the tractor and Bush Hog as he attempted to start the tractor while standing on the ground.\nCaulfield, Navistar's reconstruction expert, testified that he believed the tractor stalled or experienced some other similar problem while Modelski was mowing the field and that Modelski dismounted to investigate the problem, failing to take the tractor out of gear or disengage the Bush Hog. According to Caulfield, Modelski probably removed the bolts from the battery box cover in the course of investigating the mechanical difficulty. He opined that Modelski restarted the tractor while standing on the ground; whereupon, the tractor moved forward when the engine engaged, knocking Modelski to the ground under the rear axle and causing the Bush Hog to be drawn over him. On cross-examination, Caulfield admitted that there was no physical evidence that the tractor stalled or that Modelski dismounted the tractor. As stated earlier, the trial court denied both the plaintiff's motion in limine to bar Caulfield's reconstruction theory and her later motion to strike that testimony. Further, contrary to the assertion in Navistar's brief, the plaintiff raised both rulings as grounds for relief in her post-trial motion.\nThe admission of expert testimony is a matter committed to the sound discretion of the trial judge. People v. Mack, 128 Ill.2d 231, 250, 131 Ill.Dec. 551, 538 N.E.2d 1107 (1989). An individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where his testimony will aid the jury in reaching its conclusion. People v. Jordan, 103 Ill.2d 192, 208, 82 Ill.Dec. 925, 469 N.E.2d 569 (1984).\nIn this case, the plaintiff does not claim that Caulfield was not qualified to give expert reconstruction testimony. Rather, she contends that his opinions as to how Modelski came to be struck by the Bush Hog are nothing more than guess and speculation.\nIn Wilson v. Clark, 84 Ill.2d 186, 192-96, 49 Ill.Dec. 308, 417 N.E.2d 1322 (1981), the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705 (Fed.R.Evid. 703, 705) and held that an expert witness may base his opinion on information that has not been admitted into evidence so long as that information is reliable and is of a type reasonably relied upon by experts in that field. However, our adoption of Rule 703 does not guarantee the admissibility of all expert testimony if that testimony runs afoul of other evidentiary requirements. City of Chicago v. Anthony, 136 Ill.2d 169, 186, 144 Ill.Dec. 93, 554 N.E.2d 1381 (1990).\n\"An expert opinion is only as valid as the reasons for the opinion.\" Kleiss v. Cassida, 297 Ill.App.3d 165, 174, 231 Ill.Dec. 700, 696 N.E.2d 1271 (1998); see also Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill.App.3d 967, 974, 229 Ill.Dec. 65, 691 N.E.2d 1 (1997). \"If the basis of an expert's opinion includes so many varying or uncertain factors that he is required to guess or surmise to reach an opinion, the expert's opinion is too speculative to be reliable.\" First Midwest Trust Co. v. Rogers, 296 Ill. App.3d 416, 427-28, 233 Ill.Dec. 833, 701 N.E.2d 1107 (1998). \"Mere surmise or conjecture is never regarded as proof of a fact.\" Lyons v. Chicago City Ry. Co., 258 Ill. 75, 81, 101 N.E. 211 (1913).\nThe concept of relevancy is basic to the law of evidence as it circumscribes admissibility. People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 293, 139 N.E.2d 780 (1957). In People v. Monroe, 66 Ill.2d 317, 321-22, 5 Ill.Dec. 824, 362 N.E.2d 295 (1977), the Illinois Supreme Court adopted Rule 401 of the Federal Rules of Evidence (Fed.R.Evid.401). Rule 401 provides that: \"`[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.\" Fed R. Evid. 401; *245 Monroe, 66 Ill.2d at 322, 5 Ill.Dec. 824, 362 N.E.2d 295. It follows, therefore, that testimony grounded in guess, surmise, or conjecture, not being regarded as proof of a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable. From this conclusion follows the rule that expert opinions based upon the witness's guess, speculation, or conjecture as to what he believed might have happened are inadmissible. See Dyback v. Weber, 114 Ill.2d 232, 244-45, 102 Ill.Dec. 386, 500 N.E.2d 8 (1986).\nIn this case, Caulfield had no factual basis to support his opinion that Modelski's tractor stalled and he, thereafter, dismounted to make repairs, leaving the tractor in gear and the Bush Hog engaged. Caulfield admitted on cross-examination that there was no physical evidence to support these notions. We would hardly expect \"expert\" opinion testimony to be objective in the traditional sense of the term, but neither would we expect it to take the form of fictional musings as to what might have happened. From Caulfield's admissions elicited through cross-examination, it is quite apparent that his opinions regarding a mechanical breakdown necessitating Modelski to dismount the tractor were based on sheer speculation and should have been stricken as unreliable and totally irrelevant.\nWe do not suggest that all of Caulfield's opinion testimony should have been stricken. Much of his testimony disputing the plaintiff's theory of the case was based on his expert analysis of the known physical facts. We mean to be understood only as holding that his speculative opinions noted above should not have been admitted. Further, we cannot conclude that the admission of those opinions was harmless error. They interjected into the case the suggestion of a scenario of events which, if accurate, severed any proximate causal relationship between the design of the seat assembly and Modelski's death.\nNavistar argues that, since the plaintiff introduced expert reconstruction evidence, it was entitled to do the same. See Zavala v. Powermatic, Inc., 167 Ill.2d 542, 212 Ill.Dec. 889, 658 N.E.2d 371 (1995); Kelley v. American Motors Corp., 130 Ill.App.3d 662, 85 Ill.Dec. 854, 474 N.E.2d 814 (1985). We have no quarrel with that proposition. However, even the admission of reconstruction testimony \"turns on the usual concerns of whether expert opinion testimony is appropriate generally.\" Zavala, 167 Ill.2d at 546, 212 Ill. Dec. 889, 658 N.E.2d 371. To be admissible, expert testimony must first be relevant, and speculation fails to satisfy that requirement.\nSince we are unable to say that the jury's experiments with the seat assembly and the admission of Caulfield's speculative opinions did not affect the outcome below, the plaintiff is entitled to a new trial. See J.L. Simmons Co., Inc., ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co., 108 Ill.2d 106, 115-16, 90 Ill.Dec. 955, 483 N.E.2d 273 (1985).\nHaving considered what we believe to be the dispositive issues in this case, we need not address the majority of the plaintiff's remaining assignments of error. We will, however, address those issues which are not dependent on an evidentiary foundation and which might arise again upon retrial.\nThe plaintiff argues that the trial court erred in striking the allegations in her second amended complaint charging Navistar with negligence for failing to provide post-sale warnings and for failing to retrofit the Farmall 450 tractor after learning of the hazards associated with the design of its seat assembly. The propriety of the trial court's action in this regard turns on the issue of whether a manufacturer is under a duty to issue post-sale warnings or to retrofit a product after it has been sold. In analyzing the question, we must remain mindful that the plaintiff sought recovery against Navistar on grounds of negligence, not strict liability. Although claims against a manufacturer for negligence and strict liability are similar, they involve two separate theories of liability. A strict liability claim focuses upon an unreasonably dangerous condition of a product, which condition existed at the time the product left the control of the defendant. As a result, the care exercised by the defendant is not a relevant consideration in such an action. Suvada v. White Motor Co., 32 Ill.2d *246 612, 621, 210 N.E.2d 182 (1965). In contrast, the very essence of a negligence action is the defendant's duty to exercise due care under the attendant circumstances.\nIn this case, Navistar argues that it was under no legally recognized duty to warn foreseeable users of any dangers associated with the use of its Farmall Model 450 tractor of which it was not aware, nor should it have been, when the tractor left its control. The plaintiff contends that the manufacturer of a product is under a continuing duty to warn of hazards associated with the use of its products, even those hazards discovered post-sale.\n\"The determination of whether a duty to warn exists is a question of law.\" Genaust v. Illinois Power Co., 62 Ill.2d 456, 466, 343 N.E.2d 465 (1976). A manufacturer, reasonably aware of a dangerous propensity of its product, has a duty to warn foreseeable users where there is unequal knowledge, actual or constructive, and it knows or should know that harm might or could occur if no warning is given. Failure to warn under such circumstances can expose the manufacturer to liability for negligence. See Carrizales v. Rheem Manufacturing Co., Inc., 226 Ill.App.3d 20, 31-34, 168 Ill.Dec. 169, 589 N.E.2d 569 (1991). Manufacturers are charged with the knowledge of experts. Anderson v. Hyster Co., 74 Ill.2d 364, 368, 24 Ill.Dec. 549, 385 N.E.2d 690 (1979). Given that presumed degree of knowledge, a manufacturer's subjective understanding of the dangers associated with the use of its products, while relevant, is not determinative of its obligation to warn. Rather, it is sufficient to impose a duty to warn if an expert in the field would have known of the product's dangerous propensity and foreseen injury in the absence of a warning. Under such circumstances, the duty to warn may well be continuous. See Proctor v. Davis, 291 Ill.App.3d 265, 278, 225 Ill.Dec. 126, 682 N.E.2d 1203 (1997). The question remains, however, whether such a duty includes an obligation to issue post-sale warnings of dangers which were not known, nor should they have been known, at the time the product left the manufacturer's control.\nIn Woodill v. Parke Davis & Co., 79 Ill.2d 26, 33-36, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980), the Illinois Supreme Court held that the plaintiff in a strict liability action predicated on a failure to warn theory against a product manufacturer was obligated to plead and prove that the manufacturer knew or should have known of the injury causing propensity of its product at the time the product left its control. We can perceive of no reason to lessen that burden in a negligence action. As noted in Collins v. Hyster Co., 174 Ill.App.3d 972, 977, 124 Ill. Dec. 483, 529 N.E.2d 303 (1988), \"the law does not contemplate placing the onerous duty on manufacturers to subsequently warn all foreseeable users of products based on increased design or manufacture expertise that was not present at the time the product left its control.\" If such a duty were imposed, it might well \"discourage manufacturers from developing safer products.\" Carrizales, 226 Ill.App.3d at 35, 168 Ill.Dec. 169, 589 N.E.2d 569; but see Restatement (Third) of Torts: Products Liability § 10 (1997).\nIn this case, the plaintiff charged Navistar with negligence in failing to provide adequate warnings of the consequences which would result if the bolts securing the front of the battery box cover disengaged during the operation of the tractor. That charge was not stricken by the trial court, and the jury was instructed on a derivative of the issue. The charging allegation relating to post-sale warnings, however, was stricken. Assuming that allegation was not intended to be totally duplicative of the allegation which was not stricken, it could only have referred to warning of a danger which did not come to Navistar's knowledge until after the tractor left its control. If our assumption is correct, Navistar had no duty to warn of such danger. If our assumption is incorrect, then the charge was duplicative. In either case, it was properly stricken.\nThe other allegation stricken from the plaintiff's second amended complaint charged Navistar with negligence for failing to retrofit the tractor, after its sale, with a safety device which would have eliminated the hazard created by the unexpected loss of the bolts securing the front of the battery box cover. To the extent that this *247 allegation could be read to charge Navistar with failing to incorporate safety precautions to eliminate a hazard known to exist at the time the tractor left its control, it was properly stricken as duplicative of another allegation charging negligence in design. If the plaintiff meant to charge Navistar with negligence for failing to retrofit the tractor to remedy a hazard of which it did not know, nor should it have known, until after the tractor was sold, then the allegation failed for want of duty and was properly stricken.\nTo be sure, there are a number of safety statutes, such as the National Traffic and Motor Vehicle Safety Act (see 49 U.S.C. § 30101, § 30118 (1998)) and the Consumer Product Safety Act (see 15 U.S.C. § 2051, § 2064(a) (1996)), which make product recalls and retrofitting mandatory even under circumstances where the dangerous characteristic to be remedied is not discovered until after the product has left the manufacturer's control. However, in the absence of such a statutory obligation or a voluntary undertaking to retrofit, we know of no reported case in Illinois imposing such a duty on a manufacturer.\nThe theory of design negligence falls within the framework of general negligence law. Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 393-94, 197 N.E.2d 849 (1964). One of the factors a court should consider in determining whether a defendant is under an obligation to conform to a certain standard of conduct for the protection of another is the consequences of placing that burden upon the defendant. Lance v. Senior, 36 Ill.2d 516, 518, 224 N.E.2d 231 (1967). The consequences of imposing upon manufacturers an extrastatutory duty to recall and retrofit used products to incorporate post-sale state of the art designs would be the equivalent of mandating that manufacturers insure that their products will always comply with current safety standards. This we are unwilling to do. If such a continuing duty is to be imposed, it is the legislature that is better suited to the task. In a legislative setting, due consideration can be given to the type of products to which such a duty would apply and to whether a statute of repose should be enacted to limit the potentially infinite duration of the duty.\nOur conclusion in this regard is supported by the recent pronouncements of the American Law Institute. Section 11 of the Restatement (Third) of Torts: Products Liability (1997) provides that:\n\"One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if:\n(a)(1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or\n(2) the seller or distributor in the absence of a recall requirement under Subsection (1), undertakes to recall the product; and\n(b) the seller or distributor fails to act as a reasonable person in recalling the product.\"\nThe rationale for such a rule is articulated in comment (a) to section 11, which states:\n\"Duties to recall products impose significant burdens on manufacturers. Many product lines are periodically redesigned so that they become safer over time. If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer.\" Restatement (Third) of Torts: Product Liability § 11, Comment a (1997).\nOur holdings that a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control are by no means lacking in extrajurisdictional authority to the contrary. See Syrie v. Knoll International, 748 F.2d 304 (5th Cir. 1984); Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir.1969). In Braniff, the United States Court of Appeals for the Second Circuit, apparently applying Florida law, held that if a design defect comes to the attention of the manufacturer after a product has been sold, the manufacturer *248 has a duty to either remedy the defect or, if a complete remedy is not feasible, to give users adequate warnings and instructions concerning methods for minimizing the danger. Braniff, 411 F.2d at 453. The United States Court of Appeals for the Fifth Circuit, applying Texas law, held in Syrie that such post-sale duties arise only when a manufacture assumes them by regaining some measure of control over the product. Syrie, 748 F.2d at 311. Such decisions to the contrary, we nonetheless believe that our resolution of the questions is in keeping with established Illinois precedent. See Woodill, 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194; Carrizales, 226 Ill.App.3d 20, 168 Ill.Dec. 169, 589 N.E.2d 569; Collins, 174 Ill.App.3d 972, 124 Ill.Dec. 483, 529 N.E.2d 303.\nFor these reasons, we: 1) affirm the order of the trial court striking the allegations in the plaintiff's second amended complaint charging Navistar with negligence in failing to provide post-sale warnings and to retrofit the Farmall 450 tractor, 2) reverse the judgment entered in favor of Navistar, and 3) remand this case to the circuit court for a new trial.\nAffirmed in part; reversed in part and remanded.\nSOUTH, P.J., concurs and WOLFSON, J., specially concurs.\nJustice WOLFSON, specially concurring:\nI agree with the result reached by the majority, and, for the most part, I agree with how it got there, but I write to add two observations.\nFirst, the majority's analysis of the \"experiment\" by the jury is not complete. The defendant vigorously contended in its brief and in oral argument that the plaintiff asked that the tractor seat assembly go back to the jury. The plaintiff contended she merely asked the trial judge whether he was going to send it back and the judge answered in the negative.\nWhile the record on the subject is far from complete, it is fairly apparent from the post-trial colloquy that the trial judge agreed the plaintiff did not ask that the seat assembly be sent back. We should make that finding, because if the plaintiff did ask that the seat assembly be sent to the jury she has no right to complain about it on appeal. In addition, I think it is important to note the trial judge changed his mind about allowing the jury to have it but did not notify the parties of that decision. Had notice been given, the issue might have been obviated. At least, we would have a better record on the point.\nMy second observation is something of a quibble, but one that I think matters. I agree that Caulfield's reconstruction opinion should have been stricken, but I would not rely solely on a finding of lack of relevance. Of course, to be admissible, evidence must be relevant. But that is not the complete analysis where expert opinion evidence is offered. The United States Supreme Court has directed Federal trial judges they \"must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.\" Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469, 480 (1993).\nOpinions that are based on guess and speculation, as Caulfield's were, are unreliable and therefore inadmissible. A persuasive argument can be made that Caulfield's reconstruction testimony was relevant to the issues in the case. The argument collapses when tested in terms of reliability. See First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416, 428, 233 Ill.Dec. 833, 701 N.E.2d 1107 (1998).\n", "ocr": false, "opinion_id": 2156327 }, { "author_str": "Hoffman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " JUSTICE HOFFMAN delivered the opinion of the court: The plaintiff, Janet Modelski, special administrator of the estate of Joseph Modelski (Modelski), deceased, prosecuted the instant wrongful death action against the defendant, Navistar International Transportation Corporation (Navistar), charging that Navistar’s negligence in the design, manufacture, sale, and distribution of its Farmall 450 tractor proximately resulted in Modelski’s death. The jury returned a verdict in favor of Navistar, the trial court entered judgment on the verdict, and the plaintiff now appeals. For the reasons that follow, we reverse the judgment in favor of Navistar and remand this cause to the circuit court for a new trial. The Farmall 450 tractor that is the subject of this litigation was manufactured by Navistar, then known as International Harvester Corporation, on June 1, 1957. Modelski purchased the tractor on April 22, 1989, from Brian Bigelow. Bigelow had purchased the tractor at a farm auction in 1983. As designed, the seat on the Farmall 450 tractor is mounted atop a metal battery box, which rests on the tractor’s rear axle. The cover of the battery box to which the seat is attached is hinged at the rear and secured at the front by two half-inch bolts. To access the battery, the two bolts at the front of the battery box cover must be removed and the cover with the seat attached must be tilted to the rear. On May 7, 1991, Modelski was using the tractor to mow a field on his 40-acre farm located in Vandalia, Illinois. Attached to the rear of the tractor was a rotary mower known as a “Bush Hog.” Modelski died as a result of injuries he sustained when he was struck by the blade of the Bush Hog. There were no witnesses to the accident. Modelski’s body was found lying facedown on the ground with severe lacerations to his head and upper body. The tractor was found in a ditch approximately 40 yards from Modelski’s body. When the tractor was found, the motor was not running, the ignition switch was in the “on” position, there were no bolts holding down the battery box cover, and the seat was tilted to the rear. Only one rusty seven-sixteenths-inch bolt was found near the scene of the accident. No half-inch bolts were ever found. In her second amended complaint, the plaintiff sought recovery against Navistar on a negligence theory. The plaintiff charged, inter alia, that the negligent design of the Farmall 450 tractor caused Modelski to be ejected to the rear when the bolts holding the front of the battery box cover disengaged, that Navistar negligently failed to warn of the consequences of those bolts disengaging while the tractor was in operation, and that Navistar was negligent in selling the subject tractor without a safety interlock on the seat. Additionally, the plaintiff charged that Navistar was negligent in failing to provide postsale warnings to foreseeable users of the Farmall 450 tractor after learning of the hazards associated with the design of the seat mounting and in failing to retrofit this model tractor to eliminate that hazard. Several months prior to trial, Navistar moved the court to strike the charging allegations relating to its alleged negligence in failing to provide post-sale warnings or to retrofit the subject tractor. Navistar also moved for partial summary judgment on the negligence claim which was based on the sale of the tractor without a safety interlock on the seat. Immediately prior to the commencement of trial, the court granted both of Navistar’s motions and also denied the plaintiff leave to file a third amended complaint. . The case proceeded to trial before a jury. The plaintiff presented evidence in support of her theory that Modelski was ejected to the rear of the tractor when the bolt or bolts holding the battery box cover disengaged, causing him to fall into the path of the Bush Hog. Navistar, through the testimony of its reconstruction expert, Edward Caulfield, advocated the theory that Modelski was run over by the tractor and Bush Hog when he started the tractor while standing on the ground. Prior to the commencement of trial, the court denied the plaintiff’s motion in limine to bar Caulfield’s opinion testimony as speculative. The trial court also denied the plaintiffs motion to strike Caulfield’s testimony on the same grounds made at the close of Navistar’s case. During the course of its deliberations, the jury requested permission to reenter the courtroom to examine the tractor seat assembly. Although used demonstratively during the course of the trial,'the seat assembly was never admitted into evidence. Nevertheless, the trial court granted the jury’s request. Neither the judge nor the attorneys for the parties were present when the jury conducted its examination. The jury returned a verdict in favor of Navistar. The trial court entered judgment on the verdict and denied the plaintiffs posttrial motion. The plaintiff now appeals, contending that: (1) the jury’s verdict is against the manifest weight of the evidence; (2) the trial court erred in permitting the jury to perform experiments upon the tractor seat assembly which was never admitted into evidence; (3) the trial court erred in striking the allegations in plaintiffs second amended complaint charging Navistar with negligence for failing to provide postsale warnings or to retrofit the subject tractor; (4) the trial court erred in refusing to admit photographs into evidence depicting Modelski’s injuries; (5) the trial court erred when it denied the plaintiffs motion to strike Caulfield’s testimony; (6) the trial court erred in granting Navistar’s motion to exclude certain evidence of prior similar occurrences; and (7) the trial court abused its discretion when it sustained Navistar’s objection to plaintiffs proffered evidence that none of Navistar’s competitors used a similar seat assembly design in 1957, refused to allow the plaintiff to demonstrate that the seven-sixteenths-inch bolt found near the accident scene would fit into a half-inch nut, refused to permit the plaintiffs expert witness to testify concerning the feasibility of Caulfield’s theory, and permitted Navistar to make use of photographic exhibits that had not been produced pursuant to the plaintiffs Supreme Court Rule 237 notice to produce (166 Ill. 2d R. 237). We address first the propriety of the trial court permitting the jury to have access to the tractor seat assembly during deliberations. After closing arguments, the trial court stated that it would not allow the seat assembly to be sent to the jury room. However, after the jury requested access to the seat assembly, the trial court acquiesced, and the unsupervised jury was permitted to reenter the courtroom, where the device was located. Among the pleadings in support of her post-trial motion, the plaintiff submitted the affidavits of two jurors, Barbara Peterson and Erin Nye. Peterson averred that the jury tested the seat both with and without bolts, and Nye averred that the jury tested the seat with one bolt threaded into the battery box. Both jurors also swore that another juror, Richard Schaller, mounted the seat and bounced up and down. According to Nye, Schaller bounced on the seat with one bolt threaded into the battery box. According to Peterson, Schaller mounted the seat both with and without bolts present and fell backwards when he tested the seat without bolts. Navistar made only one substantive objection, either before the trial court or in its brief on appeal, to these juror affidavits. It objected to the paragraphs in which the jurors stated that the results of the experiment were “very compelling.” Navistar is correct in its assertion that statements concerning the mental processes of a jury are inadmissible to impeach its verdict. People v. Szymanski, 226 Ill. App. 3d 115, 120-21, 589 N.E.2d 148 (1992). Consequently, we have ignored the offending paragraphs in the affidavits of Peterson and Nye. However, since Navistar interposed no other substantive objection to these affidavits, we have considered the remaining factual averments contained therein. A trial court has considerable discretion in determining which exhibits, if any, may be taken into the jury room during deliberations. Bautista v. Verson Allsteel Press Co., 152 Ill. App. 3d 524, 532, 504 N.E.2d 772 (1987). The problem stemming from a jury’s access to tangible exhibits was addressed in Main v. Ballymore Co., 116 Ill. App. 3d 1040, 1042, 449 N.E.2d 169 (1983), where the court observed: “Because of the fundamental rule that the jury may not receive evidence out of court, it has been held that insofar as tests or experiments carried out by the jury during deliberations have the effect of introducing new evidence out of the presence of the court and parties, such are improper; and, if the new evidence in question has a substantial effect on the verdict, prejudicial.” We agree with the plaintiff that the jury should not have been granted access to the seat assembly, both because it had never been introduced into evidence and because access invited the experimentation that took place. Navistar contends, nonetheless, that the plaintiff suffered no prejudice under the circumstances of this case. It argues that the jury’s experiment revealed nothing other than an uncontroverted fact; namely, that the tractor seat would tilt to the rear if a person mounted the seat when no bolts were present in the battery box cover. What Navistar’s argument fails to consider, however, is that the jury’s experiment did not address the controverted question of whether bolts holding the battery box cover could vibrate loose while the tractor was being operated. Just as in Main, the jury’s experiment in this case was not conducted under circumstances similar to those present when the accident occurred, was not subject to evidentiary constraints or cross-examination, and constituted the introduction of new evidence in the jury room. Main, 116 Ill. App. 3d at 1043. We believe, therefore, that the prejudice is manifest. Next, we address the question of whether Caulfield’s opinion testimony should have been stricken. To place the issue in perspective, we deem it helpful to briefly recount the theories of the parties as to how this accident occurred. The evidence introduced at trial established that Modelski had nearly completed mowing his field when he was killed. There is no question that, when the subject tractor was found, there were no bolts securing the front of the battery box cover and the seat was tilted to the rear. No half-inch bolts weré found at the scene, but a seven-sixteenths-inch bolt was found by the coroner resting on the surface of the ground in the path of the tractor, approximately 40 feet from Modelski’s body. The plaintiff introduced expert testimony in support of her theory that the bolt or bolts securing the battery cover disengaged as Modelski was operating the tractor, causing the seat to tilt to the rear and eject Modelski into the path of the Bush Hog. Navistar defended on the theory that Modelski was run over by the tractor and Bush Hog as he attempted to start the tractor while standing on the ground. Caulfield, Navistar’s reconstruction expert, testified that he believed the tractor stalled or experienced some other similar problem while Modelski was mowing the field and that Modelski dismounted to investigate the problem, failing to take the tractor out of gear or disengage the Bush Hog. According to Caulfield, Modelski probably removed the bolts from the battery box cover in the course of investigating the mechanical difficulty. He opined that Modelski restarted the tractor while standing on the ground, whereupon the tractor moved forward when the engine engaged, knocking Modelski to the ground under the rear axle and causing the Bush Hog to be drawn over him. On cross-examination, Caulfield admitted that there was no physical evidence that the tractor stalled or that Modelski dismounted the tractor. As stated earlier, the trial court denied both the plaintiffs motion in limine to bar Caulfield’s reconstruction theory and her later motion to strike that testimony. Further, contrary to the assertion in Navistar’s brief, the plaintiff raised both rulings as grounds for relief in her posttrial motion. The admission of expert testimony is a matter committed to the sound discretion of the trial judge. People v. Mack, 128 Ill. 2d 231, 250, 538 N.E.2d 1107 (1989). An individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge that is not common to lay persons and where his testimony will aid the jury in reaching its conclusion. People v. Jordan, 103 Ill. 2d 192, 208, 469 N.E.2d 569 (1984). In this case, the plaintiff does not claim that Caulfield was not qualified to give expert reconstruction testimony. Rather, she contends that his opinions as to how Modelski came to be struck by the Bush Hog are nothing more than guess and speculation. In Wilson v. Clark, 84 Ill. 2d 186, 192-96, 417 N.E.2d 1322 (1981), the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705 (Fed. Rs. Evid. 703, 705) and held that an expert witness may base his opinion on information that has not been admitted into evidence so long as that information is reliable and is of a type reasonably relied upon by experts in that field. However, our adoption of Rule 703 does not guarantee the admissibility of all expert testimony if that testimony runs afoul of other evidentiary requirements. City of Chicago v. Anthony, 136 Ill. 2d 169, 186, 554 N.E.2d 1381 (1990). “An expert opinion is only as valid as the reasons for the opinion.” Kleiss v. Cassida, 297 Ill. App. 3d 165, 174, 696 N.E.2d 1271 (1998); see also Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 974, 691 N.E.2d 1 (1997). “If the basis of an expert’s opinion includes so many varying or uncertain factors that he is required to guess or surmise to reach an opinion, the expert’s opinion is too speculative to be reliable.” First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 427-28, 701 N.E.2d 1107 (1998). “Mere surmise or conjecture is never regarded as proof of a fact.” Lyons v. Chicago City Ry. Co., 258 Ill. 75, 81, 101 N.E. 211 (1913). The concept of relevancy is basic to the law of evidence as it circumscribes admissibility. People ex rel. Noren v. Dempsey, 10 Ill. 2d 288, 293, 139 N.E.2d 780 (1957). In People v. Monroe, 66 Ill. 2d 317, 321-22, 362 N.E.2d 295 (1977), the Illinois Supreme Court adopted Rule 401 of the Federal Rules of Evidence (Fed. R. Evid. 401). Rule 401 provides: “ ‘[Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Fed. R. Evid. 401; Monroe, 66 Ill. 2d at 322. It follows, therefore, that testimony grounded in guess, surmise, or conjecture, not being regarded as proof of a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable. From this conclusion follows the rule that expert opinions based upon the witness’s guess, speculation, or conjecture as to what he believed might have happened are inadmissible. See Dyback v. Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8 (1986). In this case, Caulfield had no factual basis to support his opinion that Modelski’s tractor stalled and he, thereafter, dismounted to make repairs, leaving the tractor in gear and the Bush Hog engaged. Caulfield admitted on cross-examination that there was no physical evidence to support these notions. We would hardly expect “expert” opinion testimony to be objective in the traditional sense of the term, but neither would we expect it to take the form of fictional musings as to what might have happened. From Caulfield’s admissions elicited through cross-examination, it is quite apparent that his opinions regarding a mechanical breakdown necessitating Modelski to dismount the tractor were based on sheer speculation and should have been stricken as unreliable and totally irrelevant. We do not suggest that all of Caulfield’s opinion testimony should have been stricken. Much of his testimony disputing the plaintiffs theory of the case was based on his expert analysis of the known physical facts. We mean to be understood only as holding that his speculative opinions noted above should not have been admitted. Further, we cannot conclude that the admission of those opinions was harmless error. They interjected into the case the suggestion of a scenario of events which, if accurate, severed any proximate causal relationship between the design of the seat assembly and Modelski’s death. Navistar argues that, since the plaintiff introduced expert reconstruction evidence, it was entitled to do the same. See Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 658 N.E.2d 371 (1995); Kelley v. American Motors Corp., 130 Ill. App. 3d 662, 474 N.E.2d 814 (1985). We have no quarrel with that proposition. However, even the admission of reconstruction testimony “turns on the usual concerns of whether expert opinion testimony is appropriate generally.” Zavala, 167 Ill. 2d at 546. To be admissible, expert testimony must first be relevant, and speculation fails to satisfy that requirement. Since we are unable to say that the jury’s experiments with the seat assembly and the admission of Caulfield’s speculative opinions did not affect the outcome below, the plaintiff is entitled to a new trial. See J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co., 108 Ill. 2d 106, 115-16, 483 N.E.2d 273 (1985). Having considered what we believe to be the dispositive issues in this case, we need not address the majority of the plaintiffs remaining assignments of error. We will, however, address those issues that are not dependent on an evidentiary foundation and that might arise again upon retrial. The plaintiff argues that the trial court erred in striking the allegations in her second amended complaint charging Navistar with negligence for failing to provide postsale warnings and for failing to retrofit the Farmall 450 tractor after learning of the hazards associated with the design of its seat assembly. The propriety of the trial court’s action in this regard turns on the issue of whether a manufacturer is under a duty to issue postsale warnings or to retrofit a product after it has been sold. In analyzing the question, we must remain mindful that the plaintiff sought recovery against Navistar on grounds of negligence, not strict liability. Although claims against a manufacturer for negligence and strict liability are similar, they involve two separate theories of liability. A strict liability claim focuses upon an unreasonably dangerous condition of a product, which condition existed at the time the product left the control of the defendant. As a result, the care exercised by the defendant is not a relevant consideration in such an action. Suvada v. White Motor Co., 32 Ill. 2d 612, 621, 210 N.E.2d 182 (1965). In contrast, the very essence of a negligence action is the defendant’s duty to exercise due care under the attendant circumstances. In this case, Navistar argues that it was under no legally recognized duty to warn foreseeable users of any dangers associated with the use of its Farmall Model 450 tractor of which it was not aware, nor should it have been, when the tractor left its control. The plaintiff contends that the manufacturer of a product is under a continuing duty to warn of hazards associated with the use of its products, even those hazards discovered postsale. “The determination of whether a duty to warn exists is a question of law.” Genaust v. Illinois Power Co., 62 Ill. 2d 456, 466, 343 N.E.2d 465 (1976). A manufacturer, reasonably aware of a dangerous propensity of its product, has a duty to warn foreseeable users where there is unequal knowledge, actual or constructive, and it knows or should know that harm might or could occur if no warning is given. Failure to warn under such circumstances can expose the manufacturer to liability for negligence. See Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 31-34, 589 N.E.2d 569 (1991). Manufacturers are charged with the knowledge of experts. Anderson v. Hyster Co., 74 Ill. 2d 364, 368, 385 N.E.2d 690 (1979). Given that presumed degree of knowledge, a manufacturer’s subjective understanding of the dangers associated with the use of its products, while relevant, is not determinative of its obligation to warn. Rather, it is sufficient to impose a duty to warn if an expert in the field would have known of the product’s dangerous propensity and foreseen injury in the absence of a warning. Under such circumstances, the duty to warn may well be continuous. See Proctor v. Davis, 291 Ill. App. 3d 265, 278, 682 N.E.2d 1203 (1997). The question remains, however, whether such a duty includes an obligation to issue postsale warnings of dangers that were not known, nor should they have been known, at the time the product left the manufacturer’s control. In Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 33-36, 402 N.E.2d 194 (1980), the Illinois Supreme Court held that the plaintiff in a strict liability action predicated on a failure to warn theory against a product manufacturer was obligated to plead and prove that the manufacturer knew or should have known of the injury-causing propensity of its product at the time the product left its control. We can perceive of no reason to lessen that burden in a negligence action. As noted in Collins v. Hyster Co., 174 Ill. App. 3d 972, 977, 529 N.E.2d 303 (1988), “the law does not contemplate placing the onerous duty on manufacturers to subsequently warn all foreseeable users of products based on increased design or manufacture expertise that was not present at the time the product left its control.” If such a duty were imposed, it might well “discourage manufacturers from developing safer products.” Carrizales, 226 Ill. App. 3d at 35; but see Restatement (Third) of Torts § 10 (1998). In this case, the plaintiff charged Navistar with negligence in failing to provide adequate warnings of the consequences that would result if the bolts securing the front of the battery box cover disengaged during the operation of the tractor. That charge was not stricken by the trial court, and the jury was instructed on a derivative of the issue. The charging allegation relating to postsale warnings, however, was stricken. Assuming that allegation was not intended to be totally duplicative of the allegation that was not stricken, it could only have referred to warning of a danger that did not come to Navistar’s knowledge until after the tractor left its control. If our assumption is correct, Navistar had no duty to warn of such danger. If our assumption is incorrect, then the charge was duplicative. In either case, it was properly stricken. The other allegation stricken from the plaintiffs second amended complaint charged Navistar with negligence for failing to retrofit the tractor, after its sale, with a safety device that would have eliminated the hazard created by the unexpected loss of the bolts securing the front of the battery box cover. To the extent that this allegation could be read to charge Navistar with failing to incorporate safety precautions to eliminate a hazard known to exist at the time the tractor left its control, it was properly stricken as duplicative of another allegation charging negligence in design. If the plaintiff meant to charge Navistar with negligence for failing to retrofit the tractor to remedy a hazard of which it did not know, nor should it have known, until after the tractor was sold, then the allegation failed for want of duty and was properly stricken. To be sure, there are a number of safety statutes, such as the National Traffic and Motor Vehicle Safety Act (see 49 U.S.C. §§ 30101, 30118 (1994)) and the Consumer Product Safety Act (see 15 U.S.C. §§ 2051, 2064(a) (1994)), that make product recalls and retrofitting mandatory even under circumstances where the dangerous characteristic to be remedied is not discovered until after the product has left the manufacturer’s control. However, in the absence of such a statutory obligation or a voluntary undertaking to retrofit, we know of no reported case in Illinois imposing such a duty on a manufacturer. The theory of design negligence falls within the framework of general negligence law. Murphy v. Cory Pump & Supply Co., 47 Ill. App. 2d 382, 393-94, 197 N.E.2d 849 (1964). One of the factors a court should consider in determining whether a defendant is under an obligation to conform to a certain standard of conduct for the protection of another is the consequences of placing that burden upon the defendant. Lance v. Senior, 36 Ill. 2d 516, 518, 224 N.E.2d 231 (1967). The consequences of imposing upon manufacturers an extrastatutory duty to recall and retrofit used products to incorporate postsale state-of-the-art designs would be the equivalent of mandating that manufacturers insure that their products will always comply with current safety standards. This we are unwilling to do. If such a continuing duty is to be imposed, it is the legislature that is better suited to the task. In a legislative setting, due consideration can be given to the type of products to which such a duty would apply and to whether a statute of repose should be enacted to limit the potentially infinite duration of the duty. Our conclusion in this regard is supported by the recent pronouncements of the American Law Institute. Section 11 of the Restatement (Third) of Torts (1998) provides: “One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to recall a product after the time of sale or distribution if: (a) (1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or (2) the seller or distributer in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and (b) the seller or distributor fails to act as a reasonable person in recalling the product.” Restatement (Third) of Torts § 11 (1998). The rationale for such a rule is articulated in comment (a) to section 11, which states: “Duties to recall products impose significant burdens on manufacturers. Many product lines are periodically redesigned so that they become safer over time. If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer.” Restatement (Third) of Torts § 11, Comment a (1998). Our holdings that a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control are by no means lacking in extrajurisdictional authority to the contrary. See Syrie v. Knoll International, 748 F.2d 304 (5th Cir. 1984); Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2d Cir. 1969). In Braniff, the United States Court of Appeals for the Second Circuit, apparently applying Florida law, held that if a design defect comes to the attention of the manufacturer after a product has been sold, the manufacturer has a duty to either remedy the defect or, if a complete remedy is not feasible, to give users adequate warnings and instructions concerning methods for minimizing the danger. Braniff, 411 F.2d at 453. The United States Court of Appeals for the Fifth Circuit, applying Texas law, held in Syrie that such postsale duties arise only when a manufacturer assumes them by regaining some measure of control over the product. Syrie, 748 F.2d at 311. Such decisions to the contrary, we nonetheless believe that our resolution of the questions is in keeping with established Illinois precedent. See Woodill, 79 Ill. 2d 26, 402 N.E.2d 194; Carrizales, 226 Ill. App. 3d 20, 589 N.E.2d 569; Collins, 174 Ill. App. 3d 972, 529 N.E.2d 303. For these reasons, we: (1) affirm the order of the trial court striking the allegations in the plaintiffs second amended complaint charging Navistar with negligence in failing to provide postsale warnings and to retrofit the Farmall 450 tractor; (2) reverse the judgment entered in favor of Navistar; and (3) remand this case to the circuit court for a new trial. Affirmed in part; reversed in part and remanded. SOUTH, EJ., concurs. ", "ocr": false, "opinion_id": 9727156 }, { "author_str": "Wolfson", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " JUSTICE WOLFSON, specially concurring: I agree with the result reached by the majority, and, for the most part, I agree with how it got there, but I write to add two observations. First, the majority’s analysis of the “experiment” by the jury is not complete. The defendant vigorously contended in its brief and in oral argument that the plaintiff asked that the tractor seat assembly go back to the jury. The plaintiff contended she merely asked the trial judge whether he was going to send it back and the judge answered in the negative. While the record on the subject is far from complete, it is fairly apparent from the posttrial colloquy that the trial judge agreed the plaintiff did not ask that the seat assembly be sent back. We should make that finding, because if the plaintiff did ask that the seat assembly be sent to the jury, she has no right to complain about it on appeal. In addition, I think it is important to note the trial judge changed his mind about allowing the jury to have it but did not notify the parties of that decision. Had notice been given, the issue might have been obviated. At least, we would have a better record on the point. My second observation is something of a quibble, but one that I think matters. I agree that Caulfield’s reconstruction opinion should have been stricken, but I would not rely solely on a finding of lack of relevance. Of course, to be admissible, evidence must be relevant. But that is not the complete analysis where expert opinion evidence is offered. The United States Supreme Court has directed federal trial judges they “must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 125 L. Ed. 2d 469, 480, 113 S. Ct. 2786, 2795 (1993). Opinions that áre based on guess and speculation, as Caulfield’s were, are unreliable and therefore inadmissible. A persuasive argument can be made that Caulfield’s reconstruction testimony was relevant to the issues in the case. The argument collapses when tested in terms of reliability. See First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 428, 701 N.E.2d 1107 (1998). ", "ocr": false, "opinion_id": 9727157 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.isc.idaho.gov/opinions/40241.pdf", "author_id": null, "opinion_text": "Page not found | Supreme Court\r\n \r\n Skip to main content\r\n \r\n \r\n\r\n \r\n \r\n \r\n \r\n \r\n Search form\r\n \n Search \n \n\r\n\r\n \r\n \r\n \r\n\r\n \r\n Supreme Court Home  |\r\n \r\n State of Idaho  |\r\n \r\n Search  \r\n \r\n \r\n \r\n\r\n\r\n\r\n\r\n \r\n \r\n \r\n \r\n\r\n \r\n \r\n \r\n \r\n\r\n \r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n\r\n\r\n \r\n\r\n \r\n \r\n \r\n Main menu(Site Main Menu) About UsSupreme Court JusticesChief Justice Roger S. BurdickJustice Daniel T. EismannJustice Jim JonesJustice Warren E. JonesJustice Joel D. HortonCourt of Appeals JudgesChief Judge Sergio A. GutierrezJudge Karen L. LansingJudge David W. GrattonJudge John M. MelansonMission &amp; GoalsHistory &amp; ProceduresContact Us/SuggestionsSupreme Court AppealsPro Se Appellate InformationAppellate HandbookDeadlines, Fees, CkecklistsFAQsGlossarySupreme Court CalendarCourt of Appeals CalendarOpinionsSupreme Court Civil OpinionsSupreme Court Criminal OpinionsCourt of Appeals Civil OpinionsCourt of Appeals Criminal OpinionsCOA Unpublished OpinionsLinks Of InterestFilings &amp; Transcript ReportsCourt RulesCourt Rules, Guidelines, FeesIdaho Appellate Rules (I.A.R.)Idaho Court Administrative Rules (I.C.A.R.)Idaho Criminal Rules (I.C.R.)Idaho Infraction Rules (I.I.R.)Idaho Juvenile Rules (I.J.R.)Idaho Misd. Criminal Rules (I.M.C.R.)Idaho Rules of Civil Procedure (I.R.C.P.)Idaho Rules of Evidence (I.R.E.)Idaho Rules of Family Law Procedure (I.R.F.L.P.) *Fourth District Pilot ProjectOrders &amp; AmendmentsRules for Public CommentForms &amp; ApplicationsCourt Services Child ProtectionCourt AssistanceCourt InterpretersDomestic Violence CourtsFamily Court ServicesGuardian Ad Litem/CASAGuardianship / ConservatorshipJuvenile JusticeProblem Solving CourtsTribal State Court ForumData RepositoryAdministrative &amp; LegislativeAdmin Reports &amp; FormsAdmin OrdersAnnual Reports - JudiciaryAnnual Reports - Court ServicesCalendarJudicial Directory (pdf)Legislative &amp; Budget PrioritiesPress ReleasesJudicial RostersCommitteesAppellate Settlement Conf JudgesCapital Defense CounselChild Custody MediatorCivil Case MediatorCriminal Case MediatorsDomestic Assault EvaluatorsDV Court CoordinatorsParenting CoordinatorsPrivate Civil Litigation Evaluators &amp; Sm. Lawsuit Resolution RosterScanning the RecordSenior Judge RosterVexatious LitigantsJury InformationCivil Jury InstructionsCriminal Jury InstructionsDeath Penalty InstructionsPamphlets &amp; GuidesResources &amp; MediaLinks, Publications &amp; VideosMedia GuideLocate a CourtCounty Courthouse DirectoryFederal Courts &amp; ResourcesIdaho District CourtsIdaho State GovernmentCareersIdaho JudiciaryLaw ClerksCourt Record Search\r\n \r\n \r\n\r\n \r\n \r\n \r\n\r\n\t\r\n\t\r\n \r\n \r\n \r\n The requested page \"/opinions/40241.pdf\" could not be found.\r\n \r\n \r\n\r\n \r\n \r\n <div class=\"column-2 \r\n\t\t \">\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n\r\n\r\n \r\n\r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n\r\n \r\n\r\n \r\n\r\n \r\n\r\n\r\n \r\n\r\n \r\n \r\n \r\n As the Third Branch of Government, we provide access to justice through the timely, fair, and impartial resolution of cases.\n\n \nMembers of the Idaho Supreme Court\nChief Justice Roger S. Burdick Justice Daniel T. Eismann Justice Jim Jones Justice Warren E. JonesJustice Joel D. Horton\nMembers of the Idaho Court of Appeals\nChief Judge Sergio A. Gutierrez \nJudge Karen L. Lansing\nJudge David W. GrattonJudge John M. Melanson\n \nTERMS OF OFFICE\nPromoting Openness In The Courts Do you have suggestions about how we can better serve you? CLICK HERE\n\r\n \r\n \r\n\r\n \r\n \r\n\t\r\n \r\n \r\n \r\n\r\n\r\n\r\n \r\n \r\n \r\n Home |\r\n State of Idaho|\r\n Accessibility|\r\n Privacy &amp; Security |\r\n \r\n Website Development Boise Website Design.\r\n \r\n \r\n\r\n\r\n\r\n\r\n ", "ocr": false, "opinion_id": 2652824 } ]

[ "409 B.R. 187" ]

[ { "author_str": "Bohm", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n409 B.R. 187 (2009)\nIn re SUPPLEMENT SPOT, LLC, Debtor.\nBen B. Floyd, Chapter 11 Trustee, Plaintiff,\nv.\nOption One Mortgage Corporation, Defendant.\nBankruptcy No. 06-35903-H4-11. Adversary No. 08-03279.\nUnited States Bankruptcy Court, S.D. Texas, Houston Division.\nJuly 7, 2009.\n*192 David Ronald Jones, Joshua Walton Wolfshohl, Porter and Hedges LLP, Houston, TX, for Plaintiff.\nDavid M. O'Dens, Kerry M. Hayden, SettlePou, Dallas, TX, for Defendant.\n\nMEMORANDUM OPINION ON TRUSTEE'S COMPLAINT TO RECOVER FRAUDULENT CONVEYANCES\n\n[Adv. Docket No. 1]\nJEFF BOHM, Bankruptcy Judge.\n\nI. INTRODUCTION\nBen B. Floyd (the Trustee), the Chapter 11 Trustee for the debtor in the above-referenced Chapter 11 case, Supplement Spot, LLC (the Debtor), brought this adversary proceeding to avoid transfers by *193 the Debtor to Option One Mortgage Corporation (Option One or the Defendant) totaling $90,668.08 under 11 U.S.C. § 548(a)(1)(B) and the Texas Business and Commerce Code § 24.006(a).[1] [Adv. Docket No. 1.] The Trustee argues that the transfers to Option One were fraudulent because: (1) the account from which the funds were transferred (the Amegy Account) was the Debtor's property; (2) the Debtor received less than reasonably equivalent value in exchange for the funds that the Debtor transferred to Option One; and (3) the Debtor was insolvent at the time the transfers were made. The Defendant argues that the Trustee has not met his burden of proof and contends there is insufficient evidence that the Amegy Account is, in fact, the property of the Debtor, rather than the personal property of Marcella Ortega (Ortega), who was president of the Debtor when the transfers occurred. The Defendant also argues there is insufficient evidence to prove that the value received by the Debtor from Option One was less than reasonably equivalent value in exchange for the transfers.\nIn order to prevail, the Trustee must first prove the elements of fraudulent transfer under either § 548(a)(1)(B) of the Bankruptcy Code or § 24.006(a) of the Texas Business and Commerce Code. Second, the Trustee must prove that he is entitled to recovery of the transfers made to the Defendant. The Trustee seeks to recover pursuant to either § 542(a) of the Bankruptcy Code or §§ 24.008(a) and 24.010(a)(2) of the Texas Business and Commerce Code. Alternatively, the Trustee seeks to recover under a constructive trust theory.\nThe Court concludes that the Trustee has presented sufficient evidence to satisfy all the elements of fraudulent transfers pursuant to § 548(a)(1)(B) of the Bankruptcy Code and § 24.006(a) of the Texas Business and Commerce Code. Additionally, the Court also concludes that the Trustee may recover $63,582.20 pursuant to §§ 24.008(a) and 24.010(a)(2) of the Texas Business and Commerce Code. Furthermore, the Court awards the Trustee pre-judgment interest on the amount that is recovered from the date the complaint was filed until the date judgment is rendered. Further, this Court awards post-judgment interest on the amount that is recovered from the date the judgment is rendered until the date the judgment is satisfied. The Court will also award the Trustee reasonable attorneys' fees and costs, and interest will accrue on these costs until the judgment is satisfied.\n\nII. CREDIBILITY OF WITNESSES\nDuring trial, the Trustee called two witnesses: Ben B. Floyd (i.e. the Trustee himself), and James Smith (Smith), the accountant for the Debtor's estate who testified as an expert witness. The Court finds the testimony given by both of these witnesses to be very credible. The Defendant called no witnesses, but rather chose to argue in closing that the Trustee had failed to carry his burden of proof.\n\nIII. FINDINGS OF FACT\n1. The Debtor was originally formed in June, 2002 as a Texas limited liability company. [Adv. Docket No. 26: Joint Pretrial Statement, p. 5.] The Debtor began operating in 1997 under the name \"Young Again Nutrients,\" as a sole proprietorship of Ortega.\n\n*194 2. The Debtor is in the business of selling nutritional supplements and related products primarily though its internet web site http://www. suplementspot.com. Because the Debtor's business is primarily operated through its internet web site, most of the receipts are received through credit and debit card payments. These funds are received though a merchant services agreement and posted to the Amegy Account (Account Number XXXXXX), an account originally held by Klein Bank &amp; Trust and subsequently held by Amegy Bank. [Adv. Docket No. 26: Joint Pretrial Statement, p. 5.] This account has been maintained by the Trustee so as to not interrupt the credit card payment receipts, which are the Debtor's primary source of payments for sales by the Debtor. [Adv. Docket No. 14: Notice of Filing Expert Report, p. 3 of the Report.]\n3. The name of the Amegy Account is \"Marcella Ortega dba Young Again Nutrients.\" [Adv. Docket No. 26: Joint Pretrial Statement, p. 5.]\n4. The Amegy Account (i) is listed as an asset of the Debtor in its amended Schedule B, [Adv. Docket No. 26: Joint Pretrial Statement, p. 5]; (ii) was used by the Debtor as a business account, [Adv. Docket No. 26: Joint Pretrial Statement, p. 5]; (iii) contained funds generated exclusively by the Debtor's business, [Testimony of Trustee and Smith]; and (iv) was turned over to the Trustee as a debtor-in-possession account upon his appointment by Ortega and John Acord[2] on February 28, 2007, [Testimony of Trustee]. The Debtor's schedules and amended schedules are signed by Ortega, in her capacity as president of the Debtor. [Case No. 06-35903, Docket Nos. 1, 30, &amp; 88.]\n5. On April 11, 2003, Ortega executed a Home Equity Note payable to Option One in the principal amount of $336,000.00 (the Home Equity Note). The Home Equity Note is secured by real property located at 9022 Deer Lodge Road, Magnolia, Texas 77354 (the Deer Lodge Property). [Adv. Docket No. 26: Joint Pretrial Statement, p. 5.] Option One continues to be the present owner and holder of the Home Equity Note.\n6. On November 23, 2004, Ortega and one of her sons, Sean Ortega, executed an Adjustable Rate Note payable to WMC Mortgage Corporation in the original principal amount of $672,000.00 (the Adjustable Rate Note). The Adjustable Rate Note is secured by real property located at 1919 Cattle Drive, Magnolia, Texas 77354 (the Cattle Drive Property), and Option One has been the owner and holder of this note for all periods of time referred to in the complaint. [Adv. Docket No. 26: Joint Pretrial Statement, p. 6; Testimony of Trustee.]\n7. The Debtor is neither a signatory to, nor obligated under, the Home Equity Note or the Adjustable Rate Note. Likewise, the Debtor has never had an ownership interest in the Deer Lodge Property or *195 the Cattle Drive Property. [Testimony of Trustee.]\n8. The Debtor made the following pre-petition payments to Option One from the Amegy Account (the Payments) on account of either (i) the Home Equity Note secured by the Deer Lodge Property; or (ii) the Adjustable Rate Note secured by the Cattle Drive Property. [Adv. Docket No. 26: Joint Pretrial Statement, p. 6; Testimony of Smith.] The Payments benefitted only Ortega and Sean Ortega. [Testimony of Trustee.]\n\n\n------------------------------------------------------------\nTransaction Bank Clear Transaction Payment\n Date Date Type Amount\n------------------------------------------------------------\n 08/14/03 5702 $ 133.99\n------------------------------------------------------------\n 08/25/03 7662 $ 2,233.16\n------------------------------------------------------------\n 09/02/03 7683 $ 2,367.13\n------------------------------------------------------------\n 09/08/03 7697 $ 2,233.16\n------------------------------------------------------------\n 09/17/03 7725 $ 2,233.16\n------------------------------------------------------------\n 09/19/03 8536 $ 2,233.16\n------------------------------------------------------------\n 10/01/03 8554 $ 2,233.16\n------------------------------------------------------------\n 10/02/03 8599 $ 2,233.16\n------------------------------------------------------------\n 10/20/03 9200 $ 2,253.16\n------------------------------------------------------------\n 12/02/03 9385 $ 2,233.16\n------------------------------------------------------------\n 01/13/04 01/13/04 9779 $ 2,233.16\n------------------------------------------------------------\n 06/08/04 06/08/04 167 $ 4,466.32\n------------------------------------------------------------\n 08/16/04 08/16/04 10354 $ 4,416.32\n------------------------------------------------------------\n 09/01/04 09/01/04 10361 $ 2,233.16\n------------------------------------------------------------\n 09/15/04 09/15/04 10434 $ 2,233.16\n------------------------------------------------------------\n 09/29/04 09/29/04 10495 $ 2,233.16\n------------------------------------------------------------\n 10/12/04 10/12/04 10551 $ 2,233.16\n------------------------------------------------------------\n 10/27/04 10/27/04 10613 $ 2,233.16\n------------------------------------------------------------\n 01/05/05 01/05/05 10878 $ 1,443.38\n------------------------------------------------------------\n 01/05/05 01/05/05 10879 $ 4,024.66\n------------------------------------------------------------\n 01/05/05 01/05/05 10881 $ 2,233.16\n------------------------------------------------------------\n 02/03/05 02/03/05 10987 $ 2,233.16\n------------------------------------------------------------\n 03/09/05 03/09/05 11136 $ 2,333.16\n------------------------------------------------------------\n 04/08/05 04/08/05 Debit $ 2,233.16\n------------------------------------------------------------\n 05/04/05 05/04/05 Debit $ 2,233.16\n------------------------------------------------------------\n 06/02/05 06/02/05 Debit $ 2,233.16\n------------------------------------------------------------\n 06/29/05 06/29/05 Debit $ 2,233.16\n------------------------------------------------------------\n 08/09/05 08/09/05 Debit $ 2,233.16\n------------------------------------------------------------\n 09/09/05 09/09/05 Debit $ 2,233.16\n------------------------------------------------------------\n 10/06/05 10/06/05 Debit $ 2,233.16\n------------------------------------------------------------\n 11/07/05 11/07/05 Debit $ 2,233.16\n------------------------------------------------------------\n 12/06/05 12/06/05 Debit $ 2,233.16\n------------------------------------------------------------\n 01/10/06 01/10/06 Debit $ 2,233.16\n------------------------------------------------------------\n 02/15/06 02/15/06 Debit $ 2,233.16\n------------------------------------------------------------\n 03/15/06 03/15/06 Debit $ 2,235.16\n------------------------------------------------------------\n 05/16/06 05/16/06 Debit $ 2,233.16\n------------------------------------------------------------\n 07/12/06 07/12/06 Debit $ 2,233.16\n------------------------------------------------------------\n 07/25/06 07/25/06 Debit $ 2,233.16\n------------------------------------------------------------\n 09/13/06 09/13/06 Debit $ 2,233.16\n------------------------------------------------------------\n TOTAL $90,668.08\n------------------------------------------------------------\n\n9. Option One was never a creditor of the Debtor. [Testimony of Trustee]; see also [Trustee's Ex. 18: Claims Register.]\n10. The Deer Lodge Property was identified as the Debtor's address in its Articles of Organization executed on June 14, 2002. [Adv. Docket No. 26: Joint Pretrial Statement, p. 6.]\n11. Ortega leased the Deer Lodge Property from October 10, 2003 until October 31, 2004 to a third party, her son, also known as John Livingston. [Testimony of Trustee]; see also [Defendant's Ex. 6: Lease Agreement.]\n12. Ortega resided at the Deer Lodge Property and claimed it as her homestead from 2004 to 2006. [Adv. Docket No. 26: Joint Pretrial Statement, p. 6.]\n13. Ortega identified the Cattle Drive Property as the Debtor's principal place of business from 2004 to 2006. [Testimony of Trustee]; see also [Trustee's Ex. 8: Debtor's 2005 Franchise Tax Public Information Report.]\n14. On November 23, 2004, Ortega claimed the Cattle Drive Property *196 as her primary residence. [Testimony of Trustee.]\n15. Ortega currently resides at the Cattle Drive Property. [Adv. Docket No. 26: Joint Pretrial Statement, p. 6.]\n16. Neither the Deer Lodge Property nor the Cattle Drive Property was ever used to benefit the Debtor's business. Therefore, the Debtor received no benefit from the Payments. [Testimony of Trustee.]\n17. Young Again Products, Inc. (YAP) was a creditor of the Debtor as early as July 2003. In 1999, YAP entered into an agreement with the Debtor pursuant to which the Debtor distributed YAP's products over the internet. On April 4, 2007, YAP filed a proof of claim against the Debtor for damages arising between July 2003 and 2006. [Proof of Claim No. 8.] These damages arose from two separate lawsuits involving a breach of contract claim and trademark infringement and unfair competition claims. YAP claimed damages ranging between $800,000.00 and $5.3 million. Taking into consideration the detailed claims analysis contained within the proof of claim and the extensive settlement negotiations between the Trustee and YAP, Smith estimated that YAP would recover $1.5 million from these lawsuits. [Testimony of Smith]; see [Trustee's Ex. 19: Proof of Claim]; see also [Trustee's Ex. 13: Insolvency Analysis, Explanation of Adjustments.]\n18. A report prepared by Smith indicates that as of June 30, 2003, the Debtor had liabilities in excess of assets in the amount of $1,160,206.00. Smith specifically attributed the Debtor's insolvency to the debt owed to YAP. [Testimony of Smith]; see [Trustee's Ex. 13: Report of Trustee's Accountant.]\n19. The Debtor filed a voluntary Chapter 11 petition on November 3, 2006. [Case No. 06-35903, Docket No. 1.] The Trustee was appointed as the Chapter 11 Trustee by an Order entered on March 1, 2007. [Case No. 06-35903 Docket No. 100.]\n\nIV. CONCLUSIONS OF LAW\n\nA. Jurisdiction and Venue\nThe Court has jurisdiction over the Adversary Proceeding, pursuant to 28 U.S.C. §§ 1334(b) and 157(a). This proceeding is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (H), (O), and the general \"catch-all\" language of 28 U.S.C. § 157(b)(2). See In re Southmark Corp., 163 F.3d 925, 930 (5th Cir.1999) (\"[A] proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.\"); In re Ginther Trusts, No. 06-3556, 2006 WL 3805670, at *19 (Bankr.S.D.Tex. Dec.22, 2006) (holding that an \"Adversary Proceeding is a core proceeding under 28 U.S.C. § 157(b)(2) even though the laundry list of core proceedings under § 157(b)(2) does not specifically name this particular circumstance\").[3]*197 Venue is proper pursuant to 28 U.S.C. § 1409.\n\nB. Preemption\nThe Trustee has brought an action for recovery of fraudulent transfers under both federal and state law. There are four applicable statutes under federal law. The first is Section 542(a), which states that an entity in possession of property of the debtor's estate must turn over that property to the Trustee for the benefit of the creditors of the estate. 11 U.S.C. § 542(a). Next, Section 548(a)(1)(B) allows the Trustee to bring a cause of action to avoid fraudulent transfers that were made within two years of the filing of the bankruptcy petition. 11 U.S.C. § 548(a)(1)(B). Third, Section 546 is the applicable statute of limitations provision. Section 546(a)(1)(A) states that the Trustee must bring an action to avoid fraudulent transfers under Section 548 within two years of the petition date. 11 U.S.C. § 546(a)(1)(A).\nThe Trustee has also brought a cause of action to avoid fraudulent transfers pursuant to Texas state law. The Trustee is permitted to do this under Section 544(b)(1), which provides that \"the Trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law.\" 11 U.S.C. § 544(b)(1) (emphasis added). The Texas state law avoidance and turnover statute is Section 24.008(a), which allows the Trustee to avoid fraudulent transfers. Tex. Bus. &amp; Com.Code Ann. § 24.008(a). Section 24.006(a) is the substantive state law cause of action for fraudulent transfers, which provides that a claimant may avoid fraudulent transfers made within four years of the date the cause of action arose. Tex. Bus. &amp; Com.Code Ann. § 24.006(a); see also Tex. Bus. &amp; Com.Code Ann. § 24.010(a)(2).\nBecause the Trustee has brought actions under both federal and state law, the Court will first conduct a preemption analysis to determine whether (a) the substantive fraudulent transfer provision of 11 U.S.C. § 548(a)(1)(B) preempts the state law fraudulent transfer provision of § 24.006(a) of the Texas Business and Commerce Code; and (b) whether the federal statute of limitations for fraudulent transfer actions, contained in 11 U.S.C. § 546(a)(1), preempts the state law statute of limitations under § 24.010(a)(2) of the Texas Business and Commerce Code.\nFirst, the Court finds that the Trustee may bring a cause of action for fraudulent transfers under either federal or state law, or both. See In re Houston Drywall, Inc., No. 06-03415, 2008 WL 2754526, at *30-31 (S.D.Tex. July 10, 2008) (showing claimant could bring action under both 11 U.S.C. § 548 and § 24.005 of the TUFTA[4]); In re Pioneer Home Builders, Inc., 147 B.R. 889, 892-93 (Bankr. W.D.Tex.1992) (showing that claimant could bring action under either 11 U.S.C. § 548 or § 24.006(a) of the TUFTA). Therefore, 11 U.S.C. § 548(a)(1)(B) does not preempt § 24.006(a) of the Texas Business and Commerce Code.\nNext, the Court need not conduct a preemption analysis of the statute of limitations under either the state or federal cause of action, because the Trustee brought the action to avoid the transfers in a timely manner under both provisions. However, if the Court were to conduct a preemption analysis of the applicable statute of limitations, it would find that the *198 Trustee must comply with both federal and state law. Smith v. Am. Founders Fin., Corp., 365 B.R. 647, 675 (S.D.Tex.2007) (\"The trustee is subject to both federal bankruptcy-law limitations periods and the state-law limitations periods applicable to fraudulent-avoidance actions.\").\nThe major preemption issue facing the Court is whether or not the federal look-back period for recovery of fraudulent transfers preempts the state look-back period. Although the elements of fraudulent transfers under state and federal law are substantially similar, compare 11 U.S.C. § 548(a)(1)(B) with Tex. Bus. &amp; Com.Code Ann. § 24.006(a), state law allows a four-year look-back period from the date of the complaint alleging fraudulent transfers, whereas federal law only allows a two-year look-back period from the date the bankruptcy petition was filed. Compare Tex. Bus. &amp; Com.Code Ann. § 24.010(a)(2) with 11 U.S.C. § 546(a)(1)(A). Before this Court analyzes whether the transfers at issue are fraudulent transfers under either state or federal law, the Court must first determine whether the federal look-back period for a fraudulent transfer claim preempts the state look-back period. For the reasons set forth below, the Court concludes that it does not.\n\"Federal preemption analysis begins with `the basic assumption that Congress did not intend to displace state law.'\" Smith v. Am. Founders Fin., Corp., 365 B.R. at 676 (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981)). Federal law may preempt state law in three situations:\nFirst, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Second, congressional intent to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress \"left no room\" for supplementary state regulation.... As a third alternative, in those areas where Congress has not completely displaced state regulation, federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because \"compliance with both federal and state regulations is a physical impossibility,\" or because the state law stands \"as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.\"\nCal. Fed. Sav. &amp; Loan Ass'n v. Guerra, 479 U.S. 272, 280-81, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987) (citations omitted).\nSection 548(a)(1)(B) — which gives allows the Trustee to avoid fraudulent transfers made within two years of the date the petition was filed — does not expressly preempt state law. Nor is § 548(a)(1)(B) so comprehensive that this Court may draw an inference that Congress intended to leave no room for state regulation. Therefore, the Court must analyze the third type of preemption — conflict preemption. Here, there is no conflict of law, as the Trustee may properly comply with both the state and federal look-back provisions. As such, § 548(a)(1)(B) does not preclude the Trustee from recovering under §§ 24.008(a) and 24.010(a)(2) of the Texas Business and Commerce Code in this case.\nFurther, pursuant to the strong-arm provision of 11 U.S.C. § 544(b), fraudulent conveyance claims refer to applicable state law. Rodney D. Tow v. Schumann Rafizadeh (In re Cyrus II P'ship), No. 07-03301, 2008 WL 5479108, at *4 (Bankr. S.D.Tex.2008) (\"These claims are unique because they exist only to the extent of applicable state law.\"); see also 11 U.S.C. § 544(b). Therefore, this Court may properly *199 apply the four-year look-back period permitted by Texas law. See Tex. Bus. &amp; Com.Code Ann. § 24.010(a)(2).\nIn sum, if the Trustee can successfully prove his claims for fraudulent transfer under applicable Texas law, this Court will apply the corresponding state law four-year look-back period.\n\nC. Fraudulent Transfers Under the Bankruptcy Code: § 548(a)(1)(B)\nThe Trustee argues that the Debtor should be able to avoid the Payments made to Option One during the two-year period before the petition was filed, totaling $48,000.08, as fraudulent transfers under 11 U.S.C. § 548(a)(1)(B).[5] Specifically, the Trustee argues that the Payments from the Amegy Account constituted the Debtor's property and that the Debtor received less than a reasonably equivalent value in exchange for the transfers. See 11 U.S.C. § 548(a)(1)(B). The Defendant, however, argues that the Trustee failed to meet his burden of proof with regard to these elements. The Court disagrees and concludes that the Trustee has established that the Debtor is; entitled to avoid these transfers pursuant to 11 U.S.C. § 548(a)(1)(B).\nTo prevail on a claim for fraudulent transfer under § 548(a)(1)(B), the Trustee must demonstrate: (1) a transfer was made of the Debtor's property; (2) the transfer was made within two years of the petition date; (3) the Debtor received less than reasonably equivalent value in exchange for such transfer; and (4) the Debtor was insolvent at the time of such transfer. 11 U.S.C. § 548(a)(1)(B).\nThe first issue is whether or not the Amegy Account is the Debtor's property. Although the Amegy Account is entitled \"Marcella Ortega dba Young Again Nutrients,\" [Finding of Fact No. 3], the Trustee credibly testified that all money flowing into this account came solely from the business activities of the Debtor. [Finding of Fact No. 4.] The Court is further convinced of this fact because Ortega, the president of the Debtor, and one of her sons, John Acord, went to the Trustee's office after his appointment and turned over to him the Amegy Account, representing to him that the Amegy Account was the Debtor's account. [Finding of Fact No. 4.] Additionally, the Amegy Account is listed as an asset of the Debtor in the Debtor's schedules, which were signed under penalty of perjury by Ortega herself. [Finding of Fact No. 4.] In his closing argument, Defendant's counsel argued that Ortega was confused and, while believing that the Amegy Account was hers, still turned it over to the Trustee because she thought she had an obligation to do so. Notably, Option One introduced not one shred of evidence upon which to base this argument. Moreover, the Court does not find Option One's argument plausible, as it is highly unlikely that Ortega would have voluntarily turned over funds to the Trustee which she honestly believed belonged to her. The Court therefore concludes that the Amegy Account is the Debtor's property, thereby satisfying the first element of § 548(a)(1)(B).\n*200 The second issue is whether the transfers were made within two years of the petition date. The Debtor filed its Chapter 11 petition on November 3, 2006. [Finding of Fact No. 19.] As such, the Trustee may recover any Payments made to Option One between November 3, 2004 and November 3, 2006. Thus, the Trustee may recover approximately $48,000.08 from Option One pursuant to 11 U.S.C. § 548(a)(1)(B). See [Finding of Fact No. 8.]\nThe third issue is whether or not the Debtor received a benefit from the Payments made to Option One and whether that benefit constitutes \"reasonably equivalent value\" to the Debtor. The Trustee argues that no such benefit was received by the Debtor, thereby satisfying the third element of Section 548. See 11 U.S.C. § 548(a)(1)(B)(i). This Court agrees. The Debtor never operated its business out of the properties whose loan balances were reduced by the Payments during the time the Payments were made to Option One. [Finding of Fact No. 16.] Rather, the only beneficiaries of these Payments were Ortega and Sean Ortega, in their personal capacities. [Finding of Fact No. 8.] This finding is supported by the fact that although Ortega claimed the Deer Lodge Property as the Debtor's principal place of business from 2002 to 2004, she leased the Deer Lodge Property to a third party, John Livingston, from October 10, 2003 to October 31, 2004. [Finding of Fact No. 11.] Additionally, she claimed the Deer Lodge Property as her homestead from 2004 to 2006. [Finding of Fact No. 12.] Despite the fact that Ortega designated the Cattle Drive Property as the Debtor's principal place of business from 2004 to 2006, [Finding of Fact No. 13], on November 23, 2004, she claimed the Cattle Drive Property as her primary residence, [Finding of Fact No. 14], and she currently resides at that property. [Finding of Fact No. 15.] Taking these facts together, the Court concludes that at no time did the Debtor conduct its business at either of these two locations, but rather these properties were used solely to benefit Ortega and Sean Ortega individually. [Finding of Fact Nos. 8 &amp; 16.] The Debtor did not receive any benefit whatsoever from the Payments made to Option One. [Finding of Fact No. 16.]\nThe fourth issue is whether or not the Debtor was insolvent at the time the Payments were made to Option One. The Court concludes that it was. The Court bases this conclusion on Smith's; uncontroverted and very credible testimony that the Debtor was insolvent as of June 30, 2003 because of two lawsuits filed by YAP against the Debtor alleging breach of contract and trademark infringement/unfair competition. [Finding of Fact Nos. 17 &amp; 18.] In his expert report, Smith estimated the Debtor would owe YAP $1.5 million due to these lawsuits. [Finding of Fact No. 17.] Smith arrived at this figure after reviewing a detailed financial analysis submitted along with the proof of claim and after considering extensive settlement negotiations between the Trustee and YAP. Given this estimation, Smith concluded that as of June 30, 2003, the Debtor had liabilities in excess of assets in the amount of $1,160,206.00. [Finding of Fact No. 18.] Smith specifically attributes the $1.5 liability to the Debtor's insolvency. [Finding of Fact No. 18.] All in all, when the first known Payment was made to Option One on August 14, 2003, the Debtor was insolvent. [Finding of Fact Nos. 8 &amp; 18.]\nIn sum, the Trustee has satisfied all four elements required to prove a fraudulent transfer under 11 U.S.C. § 548(a)(1)(B). Therefore, the Court concludes that the Trustee is entitled to a turnover from the *201 Defendant of $48,000.08 pursuant to 11 U.S.C. § 542(a).\n\nD. Fraudulent Transfers Pursuant to Texas Law: Tex. Bus. &amp; Com.Code Ann. § 24.006(a)\nThe Trustee also argues that the transfers made to Option One constitute fraudulent transfers under Texas law, pursuant to § 24.006(a) of the Texas Business and Commerce Code. To prevail on a claim for fraudulent transfer under § 24.006(a), the Trustee must demonstrate: (1) the Payments were made without the Debtor receiving a reasonably equivalent value in exchange for the Payments; (2) the Debtor was insolvent at the time of the Payments; (3) a creditor exists whose claim arose before the occurrence of the transfers for whom the Trustee can act; and (4) the cause of action arose within four years after the transfers were made. Tex. Bus. &amp; Com.Code Ann. §§ 24.006(a) &amp; 24.010(a)(2). The Trustee has brought a claim under Texas law in addition to 11 U.S.C. § 548(a)(1)(B) because if the Trustee prevails on his cause of action under § 24.006(a) of the Texas Business and Commerce Code, he will be entitled to recover transfers made to Option One within four years of the date the cause of action accrued, rather than the two years permitted by § 548. See Tex. Bus. &amp; Com.Code Ann. § 24.010(a)(2). The Defendant argues that the Trustee has failed to meet his burden of proof for his state law claim. The Court disagrees.\nThe first two elements of § 24.006(a)—which are nearly identical to two of the three elements of § 548(a)(1)(B)—have previously been discussed and are satisfied. See supra Part IV.C. Therefore, the first issue unique to the Texas statute is whether a creditor exists whose claim arose before the occurrence of the transfers for whom the Trustee can act. The Court finds that such a creditor did exist. YAP was a creditor of the Debtor at least as early as June 30, 2003. [Finding of Fact No. 17.] The Court makes this conclusion because YAP filed a proof of claim against the Debtor for approximately $1.5 million for damages accrued between July 2003 and 2006, which is presumed valid. [Finding of Fact No. 17.] Therefore, there was an existing creditor on August 14, 2003, before the first Payment was made to Option One.\nThe second issue unique to the Texas statute is whether the Payments were made within the applicable statute of limitations. Section 24.010 stipulates that a cause of action with respect to a fraudulent transfer is extinguished unless action is brought within four years after the transfer was made. Tex. Bus. &amp; Com. Code Ann. § 24.010(a)(2). \"The drafters of the original UFTA intended that the extinguishment provision be enforced as a statute of repose rather than as a traditional waivable statute of limitations.\" Duran v. Henderson, 71 S.W.3d 833, 838 (Tex.App.-Texarkana 2002, no pet.) \"The provision abolishes the right to bring a fraudulent transfer action if the action is not brought within the established time limits.\" Id. In this suit, the Trustee filed the complaint alleging fraudulent transfers on July 30, 2008. [Adv. Docket No. 1.] Therefore, the Trustee may recover any Payments made within four years of this date.[6] Approximately $63,582.20 was *202 transferred to Option One between July 30, 2004 and July 30, 2008. See [Finding of Fact No. 8.]\nTherefore, pursuant to §§ 24.006(a) and 24.010(a)(2) of the Texas Business and Commerce Code, the transfers totaling $63,582.20 made to Option One within four years of the cause of action are fraudulent transfers.\n\nE. Recovery of Payments by Trustee Pursuant to § 24.008(a)(2) of the Texas Business and Commerce Code\nBecause $63,582.20 in payments made to Option One between July 30, 2004 and July 30, 2008 are fraudulent transfers, the Defendant must turn over these payments to the Trustee pursuant to § 24.008(a)(2) of the Texas Business and Commerce Code. In Texas, a claimant has a four year window to file a fraudulent transfer claim. See Tex. Bus. &amp; Com. Code Ann. § 24.010(a)(2). Specifically, Section 24.010 reads: \"[A] cause of action with respect to a fraudulent transfer or obligation under this chapter is extinguished unless action is brought under 24.006(a) within four years after the transfer was made or the obligation was incurred.\" Id.\nMany courts in this District and Texas state courts have held that Section 24.010 acts as a statute of repose, rather than a statute of limitations. See GMAC Mortgage LLC v. Blitz Holdings Corp. (In re IFS Fin. Corp.), No. 02-39553, 2008 WL 4533713, at *2 (Bankr.S.D.Tex.2008); see also Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex.App.-Austin 2004, no pet.); Duran v. Henderson, 71 S.W.3d 833, 838 (Tex.App.-Texarkana 2002, no pet.). This Court agrees. Because Section 24.010 operates as a statute of repose, it extinguishes a fraudulent transfer cause of action that is not brought within four years of the transfer. In re IFS Fin. Corp., 2008 WL 4533713, at *2.\nBecause the Trustee filed his complaint against Option One alleging fraudulent transfers on July 30, 2008, the Court may look back four years from this date. Therefore, the Trustee may recover $63,582.20. See [Finding of Fact No. 8.] This amount represents the portion of Payments paid to Option One between July 30, 2004 and July 30, 2008. See [Finding of Fact No. 8.] As such, pursuant to the Texas Business and Commerce Code §§ 24.008 and 24.010, the Court may order Option One to turn over $63,582.20 to the Trustee.\nAlternatively, the Trustee is entitled to recover Payments made to Option One under federal law. Section 542 of the Code provides that the Trustee may recover, for the benefit of the estate, any property fraudulently transferred under Section 548 from the initial transferee of such transfer or the entity for whose benefit such transfer was made. 11 U.S.C. § 542(a). As the Payments were made to benefit to initial transferee, Option One, Option One must return these Payments to the Trustee. However, because 11 U.S.C. § 548(a)(1)(B) applies only to transfers made within two years of the bankruptcy petition, which was filed on November 3, 2006, the Trustee may only recover any Payments made between November 3, 2004 and November 3, 2006, or approximately $48,000.08, from Option One for the benefit of the estate. See [Finding of Fact Nos. 8 &amp; 19.]\n*203 As discussed above, § 546(a)—the applicable statute of limitations for fraudulent transfer actions brought pursuant to § 548—is specifically designed to give the trustee \"breathing room\" to determine which claims to bring under § 544 and to provide reprieve from more restrictive state statutes of limitations. See supra Part IV.B. Therefore, because, in this lawsuit, § 24.010(a)(2) of the Texas Business and Commerce Code provides a longer look-back period than § 546(a) of the Bankruptcy Code, the Court will apply Texas state law and order turnover of $63,582.20, pursuant to the Texas Business and Commerce Code §§ 24.008 and 24.010, rather than $48,000.08, as permitted under federal law. As stated earlier, given the strong-arm provisions of 11 U.S.C. § 544(b), the Court may properly apply state law instead of federal law for fraudulent transfer claims.\n\nF. Constructive Trust Theory of Recovery\nAs an alternative argument, the Trustee also seeks to recover the Payments under an equitable constructive trust theory of recovery. [Adv. Docket No. 1, ¶ 16.] This Court concludes, however, that the Trustee has failed to meet the elements of a constructive trust, and therefore declines to award recovery under this theory.\nThe term `constructive trust' is broadly defined as a trust arising by operation of law, as distinguished from an express trust; but in a more restricted sense — and as distinguished from a resulting trust—it is defined as a trust not created either expressly or impliedly based on a direct intention to create a trust, but as a matter of equity in order to satisfy the demands of justice. Consol. Gas &amp; Equip. Co. of Am. v. Thompson, 397 S.W.2d 260, 263 (Tex.Civ.App.-Amarillo 1965), rev'd on other grounds, 405 S.W.2d 333 (Tex. 1966). Equity will impose a constructive trust to prevent one who obtained property by fraudulent means from being unjustly enriched. Id.\nTexas law recognizes three elements of a constructive trust: (1) breach of a fiduciary duty or, in the alternative, actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing of the property to an identifiable res. In re Haber Oil Co., Inc., 12 F.3d 426, 437 (5th Cir.1994). The Court will begin its analysis by looking for either a breach of fiduciary duty, or, in the alternative, evidence of actual fraud.\n\n1. Breach of Fiduciary Duty\nThe first issue is whether there was either a breach of fiduciary duty. This Court finds there was a breach of fiduciary duty owed by Ortega to the creditors of the Debtor.\nAs a general rule, \"Texas courts have held that the obligation between a borrower and a lender is not a fiduciary one.\" Williams v. Countrywide Home Loans, Inc., 504 F. Supp. 2d 176, 192 (S.D.Tex.2007). Therefore, at first glance, it would appear that Ortega, as president of the Debtor, owes no duty to her creditors. However, under Texas law, corporate officers, such as Ortega, have fiduciary duties to creditors when the corporation is insolvent. See e.g., Am. Nat'l Bank of Austin v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1269 (\"Becoming insolvent, the equitable interest of the stockholders in the property, together with their conditional liability to the creditors, places the property in a condition of trust, first, for the creditors, and then for the stockholders.\" (quoting Hollins v. Brierfield Coal &amp; Iron Co., 150 U.S. 371, 383, 14 S. Ct. 127, 37 L. Ed. 1113 (1893)) (internal quotation marks omitted) (emphasis omitted)); Jewel Recovery, L.P. *204 v. Gordon, 196 B.R. 348, 354 (N.D.Tex. 1996) (\"[W]hen a corporation becomes insolvent, the assets of the corporation become a trust for the benefit of the corporation's creditors.\").\nAltogether, Ortega, as president of the Debtor, had a fiduciary relationship with the Debtor's creditors, since the Debtor was insolvent at the time of the Payments. [Finding of Fact Nos. 8 &amp; 18.] Nevertheless, \"[t]he elements of a breach of fiduciary duty claim are: (1) a fiduciary relationship between the plaintiff and defendant; (2) the defendant must have breached his fiduciary duty to the plaintiff; and (3) the defendant's breach must result in injury to the plaintiff or benefit to the defendant.\" Jones v. Blume, 196 S.W.3d 440, 447 (Tex.App.-Dallas 2006, pet. denied) (emphasis added). In this suit, the plaintiff is the Trustee, not the creditors, and the defendant is Option One, not Ortega.\nThe fact that the plaintiff in this case is the Trustee, and not the creditors, is of no consequence. Pursuant to 11 U.S.C. § 544(b), the Trustee may stand in the shoes of the creditors, acting as the plaintiff in this case, and assert a claim for breach of fiduciary duty. See In re Brentwood Lexford Partners, LLC, 292 at 272; see also 11 U.S.C. § 544. As such, the Trustee has standing in this suit to bring a claim of breach of fiduciary duty for the benefit of the creditors.\nHowever, this Court encounters a problem regarding the defendant named in the case, since the Trustee sued only Option One, and not Ortega. The Trustee may sue the transferee of fraudulent transfers for breach of fiduciary duty, only when the transferee knew the transferor was breaching a fiduciary duty. See ASARCO LLC v. Americas Mining Corp., 396 B.R. 278, 411-12 (S.D.Tex.2008) (holding that the defendant transferee may be sued for breach of fiduciary duty when it accepted a fraudulent stock transfer, knowing that the transfer would breach title fiduciary duty the transferor owed its creditors). Here, there is no evidence that Option One knew Ortega was breaching a fiduciary duty to the Debtor's creditors when she made the Payments to Option One. All in all, because the Trustee chose not to sue Ortega, but rather to sue Option One, the Trustee may not pursue a claim for breach of fiduciary duty.\nBecause the Court concludes that Option One could not possibly breach any fiduciary duty to the Trustee, the Court must find evidence of actual fraud in order to continue with the constructive trust theory.\n\n2. Actual Fraud\n\"Actual fraud means actual intent to defeat or delay the rights of creditors.\" Ala. Credit Corp. v. Deas, 417 F.2d 135, 139 (5th Cir.1969). There is no evidence that Ortega intended to defeat or delay the rights of creditors. However, actual fraud may also be proven by circumstantial evidence. In re Brentwood Lexford Partners, LLC, 292 B.R. at 263-64. Texas courts will often look to the \"badges of fraud\" listed in the Texas Business and Commerce Code § 24.005(b) for guidance. These badges of fraud include whether: \"(1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor *205 was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.\" Tex. Bus. &amp; Com.Code Ann. § 24.005(b).\nAlthough the Trustee has shown that the Debtor was insolvent at the time of the fraudulent transfers [Finding of Fact No. 18], this is the only badge shown, and this Court concludes that this is insufficient to find actual fraud. See Diamant v. Sheldon L. Pollack Corp., 216 B.R. 589, 591 (Bankr. S.D.Tex.1995) (holding that one badge of fraud, standing alone, is insufficient to support a finding of actual fraud); see also In re Northgate Computer Sys., Inc., 240 B.R. 328, 364 (Bankr.D.Minn.1999) (holding that a finding of the debtor's insolvency at the time of the transfers alone is insufficient to conclude actual fraud). Additionally, this Court refuses to stretch Ortega's negative inference obtained under the \"uncalled witness rule\" (discussed infra Part IV.G.2) so far that it would support a finding of actual fraud. Altogether, because the Court concludes that there was no breach of fiduciary duty and there was no actual fraud, recovery under the constructive trust theory fails.\n\nG. Evidentiary Issues\n\n1. The Shifting Burden of Proof\nIn his closing argument, Counsel for the Defendant argued that the Trustee had failed to meet his burden in proving that the Amegy Account was property of the Debtor. While this Court agrees with counsel on his legal assessment of the burden of proof, it disagrees with his conclusion.\nThis Court notes that the Trustee carries an \"initial burden of proving that the property at issue is property of the estate.\" In re Heritage Org., LLC, 350 B.R. 733, 738 (Bankr.N.D.Tex.2006). However, once this burden has been met, the burden then shifts to the Defendant to prove that, for whatever reason, the property was not part of the Debtor's estate. See In re Southmark, 49 F.3d 1111, 1118 (5th Cir.1995) (shifting the burden to the defendant to prove the \"existence of a constructive trust\"); Daly v. Radulesco (In re Carrozzella &amp; Richardson), 247 B.R. 595, 602 (2d Cir. B.A.P. 2000) (shifting the burden to the defendant to prove \"only legal title\" to the money, rather than control).\nAt trial, the Trustee adduced abundant testimony and introduced certain exhibits that the Amegy Account constitutes property of the Debtor. For example, credible testimony was given by both the Trustee and Smith that all money flowing into the Amegy Account came from the Debtor's; business activities. [Finding of Fact No. 4.] Furthermore, Ortega and Acord turned over the Amegy Account to the Trustee upon his appointment, representing the account as property of the Debtor. [Finding of Fact No. 4.] Additionally, the Amegy Account was listed as an asset in the Debtor's schedules and was signed by Ortega. [Finding of Fact No. 4.] Thus, the Trustee has met his initial burden of proving that the Amegy Account is property of the Debtor, and the burden shifted back to the Defendant to prove otherwise. The Defendant, however, introduced no testimony or exhibits to rebut this point. Accordingly, the Court concludes that the Trustee met his burden to establish that the Amegy Account is property of the Debtor.\n\n\n*206 2. The \"Uncalled Witness Rule\"\nThe \"uncalled witness rule\" permits an inference that the testimony of a witness available to a party, but who is not called by that party, would be: unfavorable to the party's case. Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir.1990). The Fifth Circuit has noted that this rule should be disfavored in cases \"conducted under the Federal Rules of Evidence and the Federal Rules of Civil Procedure,\" but has not yet foreclosed its use to the courts of the Fifth Circuit. Id. at 1047-49. Indeed, both the Fifth Circuit and district courts have acknowledged that the rule is still viable. See King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003); United States v. Reyna, 148 F.3d 540, 546 (5th Cir.1998); Rivera v. Salazar, No. C-04-552, 2008 U.S. Dist. LEXIS 58065, at *10, 2008 WL 2966006, at *4 (S.D.Tex. July 30, 2008); Hull v. Ford, No. C-05-43, 2008 U.S. Dist. LEXIS 3686, at *4-5, 2008 WL 178890, at *1-2 (S.D.Tex. Jan. 17, 2008).\nThe Fifth Circuit has also specified that the \"uncalled witness rule\" may be used only when the witness has information \"peculiarly within his knowledge\" rather than merely \"cumulative\" testimony. Streber v. C.I.R., 138 F.3d 216, 221-22 (5th Cir.1998). In addition, while the rule is unavailable when a party is \"`equally available' to both parties,\" when the witness, is \"connected in some way to one of the parties,\" and when that witness \"`would corroborate' that party's theory of the case,\" then the witness is not \"equally available.\" U.S. v. Wilson, 322 F.3d 353, 364 n. 14 (5th Cir.2003) (quoting McClanahan v. United States, 230 F.2d 919, 925 (5th Cir.1956)).\nIn the suit at bar, Ortega has information \"peculiarly\" within her knowledge. Her testimony as to whether the Amegy Account was her personal account or the property of the Debtor would help resolve the fraudulent transfer issue. The Trustee testified that Ortega turned the Amegy Account over to him, representing that it was property of the Debtor. [Finding of Fact No. 4.] Ortega's testimony on this matter would very likely support this testimony, which is presumably why the Defendant refused to call Ortega as a witness. Therefore, this Court finds that the \"uncalled witness rule\" applies in this case, and the rule allows the Court to draw an inference that Ortega's testimony would be unfavorable to the Defendant because the Defendant chose not to call her to the stand. The Defendant could have easily called on Ortega to testify that the funds in the Amegy Account belonged to her, personally, and not to the Debtor—which is the very argument that the Defendant's counsel made in closing. Yet, the Defendant did not put Ortega on the stand. It could have easily done so because she resides in Magnolia, Texas — which is; approximately thirty miles from the Courthouse—and could have been subpoenaed without any problem. The fact that the Defendant failed to call Ortega allows this Court to draw the inference that the Amegy Account was indeed property of the Debtor.\n\nH. Piercing the Individual Veil\nIn the alternative, even if this Court does not draw an inference under the \"uncalled witness rule,\" the Amegy Account is still properly considered property of the Debtor. This conclusion is supported by an independent analysis of the purpose of, and the funds within, the Amegy Account. In other words, the Court must pierce the \"individual veil,\"[7] and view the Amegy *207 Account as property of the Debtor, despite the account being named \"Marcella Ortega dba Young Again Nutrients.\"\nFirst, while courts generally protect individual assets from the reach of a corporation's bankruptcy case, \"[w]hen corporate and individual business interests are so intertwined that the corporation is indistinguishable from the individual, the alter ego doctrine operates to treat the assets of both as corporate property.\" In re Gordon Car &amp; Truck Rental, Inc., 65 B.R. 371, 377 (Bankr.N.D.N.Y.1986) (quoting In re Telemark Mgmt. Co., 43 B.R. 579, 586 (Bankr.W.D.Wis.1984)).\nSecond, an individual's bank account may also be considered part of a debtor's estate under fee alter ego doctrine. In Gibraltar Sav. v. LDBrinkman Corp., the Fifth Circuit described the rationale behind the doctrine stating, \"`if the shareholders themselves disregard the separation of the corporate enterprise, the law will also disregard it so far as necessary to protect individual and corporate creditors.'\" 860 F.2d 1275, 1288 (5th Cir. 1988) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986)). The test for determining whether an individual is the \"alter ego\" of a corporate debtor is whether a \"unity of interest and ownership\" exists such that the; \"corporation and the individual no longer exist,\" and also that \"fraud or injustice\" would result if the corporate form is observed. In re Major Funding Corp., 126 B.R. 504, 510-11 (Bankr.S.D.Tex.1990).\nFinally, when accounts have been misused and the distinction between individual and corporation has been blurred, courts are usually willing to include the accounts of another entity in a bankruptcy case. In Pergament v. Precision Sounds DJ's, Inc. (In re Oko), the court found that a principal of a company used that company's account as his \"own private checking account\" and paid his own and other's debts out of it. 395 B.R. 559, 564 (Bankr. E.D.N.Y.2008). Because of these circumstances, the \"corporate veil [was] pierced.\" Id.\nIn the suit at bar, since the Amegy Account was funded exclusively by the Debtor's business [Finding of Fact No. 4], and yet was used exclusively to pay the personal expenses of Ortega [Finding of Fact No. 8], the Debtor's president, the Court concludes that the corporate and the individual interests have been \"so intertwined\" that they are indistinguishable. Because Ortega completely disregarded the separation between the Debtor's and her individual funds, this Court will do the same and will conclude the Amegy Account is property of the Debtor. Additionally, because the fraudulent transfers from the Amegy Account, if not avoided, would seriously hinder the Trustee's ability to administer this bankruptcy case, great \"fraud or injustice\" would result if the Amegy Account is not determined to be property of the Debtor.\n\"The laws and jurisprudence of bankruptcy note often that there are two competing goals of bankruptcy and reorganization. One is the satisfaction of valid claims against the estate. The other is to allow the debtor a `fresh start' in the market place.\" In re T-H New Orleans Ltd. P'ship, 188 B.R. 799, 807 (E.D.La.1995), aff'd, 116 F.3d 790 (5th Cir.1997). Because Option One was never a creditor of the Debtor's estate [Finding of Fact No. 9], and because inclusion of the Amegy Account *208 would help satisfy the valid claims against the estate, this inclusion would only further the goals of bankruptcy law.\nIn sum, this Court finds that if the Amegy Account is excluded from the Debtor's estate, then \"an injustice would be visited upon the Debtor's creditors and would only subserve the interest of a debtor who has previously violated an order of this Court.\" In re Mansuy, 94 B.R. 443, 445 (Bankr.N.D.Ohio 1988). Therefore, no other option remains but to include the Amegy Account as part of the Debtor's property.\n\nI. Pre- and Post-Judgment Interest\n\n1. Interest Under Federal Law\nUnder federal law, this Court is authorized to award pre-judgment interest. The Fifth Circuit has held that such interest may be awarded in cases involving fraudulent transfers because it \"furthers the congressional policies of the Bankruptcy Code\" and \"compensates the estate for the time it was without use of the transferred funds.\" In re Tex. Gen. Petroleum Corp., 52 F.3d 1330, 1339-40 (5th Cir. 1995). This Court also has the discretion to impose post-judgment interest. See Williams v. Trader Pub. Co., 218 F.3d 481, 488 (5th Cir.2000) (holding that, \"[a] district court has discretion to impose a pre and post-judgment interest award to make a plaintiff whole\"); 28 U.S.C. § 1961(a) (allowing interest on \"any money judgment in a civil case recovered in a district court\" at the rate of the \"weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment\"); Ocasek v. Manville Corp. Asbestos Disease Compensation Fund, 956 F.2d 152, 154 (7th Cir.1992) (holding that the federal post-judgment interest statute \"applies to judgments entered by bankruptcy court\").\nBecause no federal statute sets the pre-judgment interest rate, the Court must look to state law. ASARCO LLC v. Americas Mining Corp., 404 B.R. 150, 164 (S.D.Tex.2009) (holding that for \"fraudulent-transfer actions ... courts may look to the laws of the state under which a similar fraudulent-transfer action could have been brought for such guidance\"); see also In re Zohdi, 234 B.R. 371, 385 (Bankr.M.D.La.1999) (holding that the court should look to state law for the pre-judgment interest rate). Under Texas law, the rate of pre-judgment interest \"accrue[s] at the same rate as post-judgment interest.\" Int'l Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 500 (5th Cir.2002); see also Bob Anderson v. Mega Lift Sys., L.L.C. (In re Mega Sys., L.L.C.), No. 04-6085, 2007 WL 1643182, at *10-11 (Bankr.E.D.Tex.2007). The post-judgment rate is statutorily set at the \"prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation\" unless this rate is less than five percent or more than fifteen percent. Tex. Fin.Code Ann. § 304.003(c). Therefore, this Court will follow the Texas method of calculating interest and use the prime rate, as opposed to the Treasury yield.\n\n2. Interest Under Texas Law\nUnder state law, pre-judgment interest may be awarded if either the \"general principles of equity\" or an \"enabling statute\" permit such an award. Johnson &amp; Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998) (citing Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985); and Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 483-85 (Tex.1978)). Texas courts have held *209 that \"the decision to award prejudgment interest is left to the sound discretion of the trial court, which should rely upon equitable principles and public policy in making this decision.\" Citizens Nat. Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 487 (Tex.App.-Fort Worth 2004, no pet.). Texas courts have concluded that equity allows for such an award, and thus have frequently awarded pre-judgment interest in fraudulent transfer cases. See, e.g., Lentino v. Cullen Center Bank &amp; Trust, No. 14-00-00692-CV, 2002 WL 220421, at *1 (Tex.App.-Houston [14th Dist] Feb. 14, 2003, pet. denied) (mem. op.); McDill Columbus Corp. v. Univ. Woods Apartments, Inc., No. 06-99-00138-CV, 2001 WL 392061, at *3 (Tex. App,-Texarkana Apr. 19, 2001, pet. denied) (unpublished); Arlitt v. Weston, No. 04-98-00035-CV, 1999 WL 1097101, at *2 (Tex.App.San Antonio Dec. 1, 1999, pet. denied).[8] Post-judgment interest may also be awarded on a fraudulent transfer claim under Texas law. Fidelity &amp; Deposit Co. of Maryland v. Tri-Lam Co., Inc., No. SA-06-CA-207-XR, 2007 WL 1452632, at *5 (W.D.Tex. May 15, 2007) (citing Tex. Fin.Code Ann. § 304.001).\nAs discussed earlier, the rate for both pre-judgment and post-judgment interest under Texas law is the prime rate as published by the Board of Governors of the Federal Reserve System. Tex. Fin.Code Ann. § 304.003(c). However, § 304.003(c)(2) of the Texas Finance Code Annotated states that the judgment rate shall be set at 5% if the current prime rate is less than 5%. The current prime rate is 3.25%. Federal Reserve Statistical Release, H.15 Selected Interest Rates, http:// www.federalreserve.gov/releases/h15/ current/h15.htm (last visited June 22, 2009). Therefore, pursuant to § 304.003(c)(2) of the Texas Finance Code Annotated, the Court will apply a 5% interest rate to both pre- and post-judgment awards. See Int'l Turbine Servs., Inc., 278 F.3d at 500 (holding that the rate of pre-judgment interest accrues at the same rate as post-judgment interest); see also In re *210 Mega Sys., L.L.C., No. 04-6085, 2007 WL 1643182, at *10-11 (holding same).\n\n3. Accrual of Interest\nThis Court's award of pre-judgment interest will accrue from the \"time demand is made or an adversary proceeding is instituted.\" Floyd v. Dunson (In re Rodriguez), 209 B.R. 424, 434 (Bankr.S.D.Tex. 1997). This Court's award of post-judgment interest will accrue during the period beginning on the date the judgment is rendered and ending on the date the judgment is satisfied, except for any time a motion for extension of time to file a brief, in case of appeal. Tex. Fin.Code Ann. § 304.005.\nIn conclusion, this Court awards the Trustee pre- and post-judgment interest at the rate of 5% on all money damages awarded hereunder from the date the complaint alleging fraudulent transfers was filed, July 30, 2008, until the date the judgment is satisfied. Because the Court does not know when the judgment will be satisfied, the Court presently awards pre-judgment interest from the date of the complaint until the date judgment is rendered in the amount of $2,978.78. The Trustee, however, is also entitled to post-judgment interest on the sum of the principal plus pre-judgment interest at the rate of 5% per annum from the date the judgment is rendered until the date the judgment is satisfied.\n\nJ. Attorneys' Fees\nThe Court awards the Trustee his reasonable fees and costs pursuant to the Texas Business and Commerce Code § 24.013, in an amount to be determined at a separate hearing if, and only if, Counsel for the Trustee and Counsel for Option One are unable to agree on a specific number. Accordingly, Counsel for the Trustee is directed to send his invoices to Counsel for Option One within seven days of the date that this Memorandum Opinion is entered on the docket. Counsel for Option One is directed to review these invoices and file a certificate with the Clerk of Court, by no later than July 31, 2009, setting forth that Option One agrees to the fees and expenses requested by Counsel for the Trustee or, if Option One does not agree, setting forth why. If the certificate represents that Option One agrees, then the Court will sign a separate order awarding the amount agreed upon. If, however, the certificate represents that Option One does not agree, then this Court will schedule a separate hearing, and each party will be allowed to introduce evidence and make arguments as to what the amount should be.\nAdditionally, the Court orders Option One to pay the Trustee post-judgment interest, at a rate of 5% per annum, on the total amount of attorneys' fees ultimately awarded for services which Counsel for the Trustee rendered. The Fifth Circuit has held that interest on attorneys' fees begins to accrue on the date of the judgment allowing recovery of attorneys' fees and runs until the date the fees are paid in full. See Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 544-45 (5th Cir.1983) (en banc), overruled in part on other grounds by J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193, 1195 (5th Cir. 1986), aff'd 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987) (holding that the victor is entitled to interest on attorneys' fees, at the same interest rate as that applied to the judgment on the merits). The Fifth Circuit allows this interest on attorneys' fees because it \"better serve[s] the purpose of awarding these expenses to the prevailing party since it ... more nearly compensate[s] the victor for the expenses of the litigation.\" Id. at 544. This interest *211 is due from the date of this judgment until the attorneys' fees are paid in full.\n\nV. CONCLUSION\nIn sum, the Court concludes that the Trustee adduced very credible testimony and introduced very reliable exhibits that the Payments made to Option One were fraudulent transfers. Additionally, the Court concludes that Option One's trial strategy of offering no evidence, but merely arguing that the Trustee did not meet his burden of proof, has failed. Therefore, the Court will order that all Payments made to Option One within four years of filing the complaint alleging fraudulent transfers, totaling $63,582.20, shall be returned to the Trustee for the benefit of the creditors of this bankruptcy estate. Because the Trustee's constructive trust argument fails, this Court will not award the Trustee the entire $90,668.08 that he seeks. This Court will, however, award pre-judgment interest in the amount of $2,978.78. Further, the Trustee: is entitled to post-judgment interest at a rate of 5% per annum on the sum of the following: (1) the principal amount, or $63,582.20; (2) the amount of pre-judgment interest, which is $2,978.78; and (3) the ultimate award of attorneys' fees, to be determined later. This post-judgment interest accrues from the date of the judgment until the date the judgment is completely satisfied. Lastly, the Court awards the reasonable attorneys' fees and costs incurred by the Trustee.\nA judgment consistent with this Memorandum Opinion will be entered on the docket simultaneously with the entry of this Opinion.\nNOTES\n[1] Any reference to \"the Code\" refers to the United States Bankruptcy Code, and reference to any section (i.e. §) refers to a section in 11 U.S.C., which is the United States Bankruptcy Code. Further, any reference to \"the Bankruptcy Rules\" refers to the Federal Rules of Bankruptcy Procedure.\n[2] John Acord, also known as John Livingston, see infra Finding of Fact No. 11, is a son of Ortega and an employee of the Debtor.\n[3] The Court acknowledges that a fraudulent transfer suit filed under the Texas Uniform Fraudulent Transfer Act (the TUFTA) is not a proceeding that could arise only in the context of a bankruptcy case. However, a fraudulent transfer suit filed under 11 U.S.C. § 548 is such a proceeding, and this is why this particular adversary proceeding is a core proceeding under the general \"catch all\" language of 28 U.S.C. § 157(b)(2).\n[4] The TUFTA is another name for certain sections of the Texas Business and Commerce Code that concern fraudulent transfers and the applicable rules of recovery.\n[5] The Trustee also pleaded under § 548(a)(1)(A) but did not argue: this issue during closing arguments. The Court therefore presumes that the Trustee no longer seeks to recover under § 548(a)(1)(A). However, even if the Trustee does intend to recover pursuant to § 548(a)(1)(A), he cannot do so because he introduced no evidence at trial to establish that the Debtor — through Ortega or anyone else — made the transfers at issue \"with actual intent to hinder, delay, or defraud\" an entity to which the Debtor is indebted.\n[6] In the Trustee's Proposed Conclusions of Law, he argued that, under Texas law, recovery of fraudulent transfers is permitted so long as the claim is made within four years of the date of the filing of the bankruptcy petition. [Adv. Docket No. 26-1.] However, the Trustee is mistaken. The wording of the Texas statute makes it clear that recovery of fraudulent transfers is permitted so long as \"a cause of action with respect to a fraudulent transfer or obligation ... is brought within four years after the transfer was made or the obligation was incurred.\" Tex. Com. &amp; Bus. Code Ann. § 24.010 (emphasis added). Therefore, this Court looks back four years from July 30, 2008, the date the complaint alleging fraudulent transfers was filed.\n[7] A court may—in some instances—\"pierce the corporate veil\" to determine whether the activities and property of a corporation should be attributed to its individual principal or principals. In this case, the Court is being asked to do the opposite, that is, to \"pierce the individual veil\" and attribute property held by an individual—Ortega—to the Debtor.\n[8] The Court notes that Texas courts are split over whether pre-judgment interest should be granted in every case or at the trial court's discretion. One Texas Court of Appeals has stated:\n\nThere is a split of authority among Texas Courts of Appeals .. . concerning whether an award of pre-judgment interest is mandatory. Some courts . . . have held that pre-judgment interest should be awarded as a matter of course. See Apache Corp. v. Dynegy Midstream Servs., Ltd. P'ship, 214 S.W.3d 554, 566 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (stating a prevailing party is awarded pre-judgment interest as a matter of course); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 447 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding same). However, the majority of courts .. . have held that awards of pre-judgment interest are within the trial court's discretion. See, e.g., Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 487 (Tex.App.-Fort Worth 2004, no pet.) (stating, in a review of the trial court's interest calculations, that where no statute controls the award of pre-judgment interest, the decision to award pre-judgment interest is left to the sound discretion of the trial court); Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex.App.-Houston [14th Dist.] 1997, no writ) (applying, in a review of trial court's pre-judgment interest calculations, abuse of discretion standard); Larcon Petroleum, Inc. v. Autotronic Sys., Inc., 576 S.W.2d 873, 879 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ) (stating, in a review of the trial court's interest calculation, that a trial court is permitted, but not required, to award pre-judgment interest under the authority of a statute, or under an equitable theory, or under both).\nSAP Trading Inc. v. Sohani, 2007 WL 1599719, at *2 n. 5 (Tex.App.-Houston [14th Dist.] June 5, 2007, no pet.) (omission added). However, this Court finds that pre-judgment interest is appropriate in the suit at bar, and, therefore, this split is of no consequence.\n\n", "ocr": false, "opinion_id": 1551697 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca11.uscourts.gov/opinions/ops/19954521.OPA.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Eleventh Circuit.\n\n No. 95-4521.\n\n Harvey BURGER, Gail Burger, Plaintiffs-Appellees, Cross-Appellants,\n\n v.\n\n TIME INSURANCE COMPANY, INCORPORATED, a foreign corporation, Defendant-\nAppellant, Cross-Appellee.\n\n June 20, 1997.\n\nAppeals from the United States District Court for the Southern District of Florida. (No. 92-7127-\nCIV-WDF), Wilkey D. Ferguson, Jr., Judge.\n\nBefore TJOFLAT and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.\n\n PER CURIAM:\n\nCERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH\nCIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO ARTICLE V, SECTION\n3(b)(6) OF THE FLORIDA CONSTITUTION. TO THE SUPREME COURT OF FLORIDA AND\nTHE HONORABLE JUSTICES THEREOF:\n\n In this diversity case, we review a jury award of $50,000 in compensatory damages and $1\n\nin punitive damages to Harvey Burger, resulting from a successful \"bad faith refusal to pay\" claim\n\nunder Florida Statute § 624.155. Time Insurance appeals the judgment, alleging that the jury\n\nawarded compensatory damages solely for emotional distress, damages that are not cognizable under\n\nFlorida law for this claim. This case presents an important issue of Florida law that has not been\n\naddressed by the Supreme Court of Florida. We believe the issue is appropriate for resolution by\n\nFlorida's highest court, and defer our decision in this case pending certification of the question to\n\nthe Supreme Court of Florida. See Varner v. Century Finance Co., Inc., 720 F.2d 1228 (11th\n\nCir.1983).\n\nI. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY\n\n Sometime in 1991, Harvey Burger submitted for reimbursement a $500 medical bill for an\n\nendoscopy to his medical insurance carrier, Time Insurance, Inc. According to Burger, the bill he\n\nreceived from the doctor's office contained a \"stray\" mark, leading him to believe that he owed\n\n$1,500 for the endoscopy. Burger further contends that, once informed by the doctor of the correct\n\famount owed on the bill, he immediately relayed the information to Time Insurance and resubmitted\n\na corrected bill for reimbursement. Sometime later, Burger submitted the bill a third time, marking\n\nit \"Paid $500.\" Two weeks later, in August of 1991, Burger was informed that Time's Special\n\nInvestigations Unit (SIU) was investigating the possibility that he had attempted to defraud the\n\ncompany. Between August, 1991 and November, 1992, Time did not pay any of Burger's\n\noutstanding health care claims. (Burger did not submit any new claims during this period.)\n\n In February, 1992, consistent with Florida law (Fla.Stat. § 624.155(2)(a)), Burger's counsel\n\nsubmitted notice of a civil remedy claim to Time, requesting its payment of the non-suspect claims.\n\nTime failed to respond to the notice within the 60-day period allowed by law. Time did not satisfy\n\nits payment obligations with respect to Burger's claims until November, 1992.\n\n At trial, Burger alleged that, because of Time's failure to pay his medical bills between\n\nAugust, 1991 and November, 1992, and his lack of financial resources to pay for medical services,\n\nhe felt he could not go to the doctor or otherwise obtain medical services. Thus, he claimed that as\n\na direct result of Time's failure to pay his claims in a timely fashion, he could not obtain needed\n\nmedical treatment. He also complained of depression and an inability to communicate with his\n\nfamily as a result of his dealings with Time. For its part, Time attempted to discredit Burger's claims\n\nthat he could not obtain health care during the relevant period by insisting that Burger never\n\nsubmitted new claims for reimbursement; Time's failure to pay related only to claims that Burger\nsubmitted prior to August, 1991.1\n\n A jury found that Time Insurance violated Florida Statute § 624.155 by not attempting in\n\ngood faith to settle Burger's claims, awarding him $50,000 in compensatory damages and $1 in\n\npunitive damages.2 On appeal, Time argues that Burger presented only evidence of emotional\n\ndistress, and no evidence of economic harm, to support his claim for damages. According to Time,\n\nFla. Stat. § 624.155 only created a cause of action for first party claims of bad faith failure to pay;\n\n 1\n This argument does not join Burger's claim that he simply did without the medical care he\nneeded.\n 2\n The jury also awarded Burger $500 for unfair claim settlement practices by Time Insurance,\npursuant to Florida Statute § 626.9541.\n\fit did not alter case law which recognized mental anguish damages only in cases of intentional\n\ninfliction of emotional distress. The jury award of $50,000 to Burger was therefore improper.\n\nBurger insists that: (1) Florida law does not preclude an award of damages for emotional distress\n\nin this type of action; and (2) the damages he alleged qualify as non-emotional injury sufficient to\n\nsupport the award.\n\n There is no case law directly addressing whether the type of damages alleged by Burger\n\nqualify as a \"reasonably foreseeable result\" of a violation of Fla.Stat. § 624.155, and thus serve as\n\nan appropriate basis for compensatory damages under the statute. \"Where there is any doubt as to\n\nthe application of state law, a federal court should certify the question to the state supreme court to\n\navoid making unnecessary Erie3 \"guesses' and to offer the state court the opportunity to interpret or\n\nchange existing law.\" Mosher v. Speedstar Div. Of AMCA Intern., Inc., 52 F.3d 913, 916-17 (11th\n\nCir.1995) (citing Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 396 (5th Cir.) cert. denied,\n\n478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986)). We therefore certify the following question\n\nto the Florida Supreme Court.\n\nII. QUESTION TO BE CERTIFIED TO THE FLORIDA SUPREME COURT\n\n (1) WHETHER THE DAMAGES ALLEGED BY APPELLEE QUALIFY AS\n\nCOMPENSATORY DAMAGES UNDER FLA.STAT. § 624.155(7)? ALTERNATIVELY,\n\nWHETHER THE TYPE OF EMOTIONAL DISTRESS ALLEGED BY APPELLEE QUALIFIES\nAS DAMAGE THAT IS A \"REASONABLY FORESEEABLE RESULT\" OF A VIOLATION OF\n\nFLA.STAT. § 624.155, AND THUS SERVES AS AN APPROPRIATE BASIS FOR\n\nCOMPENSATORY DAMAGES UNDER THE STATUTE?\n\n Our particular phrasing of the question is not intended to limit the Florida Supreme Court's\n\ninquiry. The entire record in this case, together with copies of the briefs, shall be transmitted to the\n\nSupreme Court of Florida.\n\n QUESTION CERTIFIED.\n\n\n\n 3\n Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).\n\f", "ocr": false, "opinion_id": 73361 } ]

[ "996 A.2d 1068" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n996 A.2d 1068 (2010)\nCOM.\nv.\nTILLEY.\nNo. 62 EAL (2010).\nSupreme Court of Pennsylvania.\nJune 15, 2010.\nDisposition of Petition for Allowance of Appeal Denied.\n", "ocr": false, "opinion_id": 2098830 } ]

[ "518 S.E.2d 166", "238 Ga. App. 165" ]

[ { "author_str": "Pope", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7175, "opinion_text": "\n518 S.E.2d 166 (1999)\n238 Ga. App. 165\nASIAN SQUARE PARTNERS, L.P.\nv.\nCUONG QUYNH LY.\nNo. A99A0263.\nCourt of Appeals of Georgia.\nMay 19, 1999.\n*167 Charles F. Peebles, Norcross, for appellant.\nPaul S. Suda, Alpharetta, Max Benkel, Atlanta, for appellee.\nPOPE, Presiding Judge.\nOn or around May 14, 1993, Cuong Quynh Ly d/b/a K &amp; T Billiards entered into a five-year written commercial lease with Asian Square Partners, L.P. The lease is a pre-printed form furnished by Asian Square, to which the parties made handwritten and typewritten changes. Paragraph 4(d) of the lease contains a five-year schedule of rent, which shows annual rental increases. Beneath the schedule is an asterisk referencing two footnotes at the bottom of the page. The first reads, \"Tenant shall have a Five Year Option to lease.\" The second states, \"Tenant shall start paying rent on July 15, 1993.\"\nA rider to the lease granted K &amp; T an option to renew for five additional years provided K &amp; T gave Asian Square written notice 90 days prior to expiration of the original term. The renewal option stated, \"The rental amount for each of the five (5) years shall be equal to a N/A percent N/A increase over the preceding year's rent.\" The term \"N/A\" in this provision was typed into two blanks on the pre-printed lease form.\nK &amp; T wrote a letter on March 21, 1998 notifying Asian Square that it intended to renew the lease for five additional years. On May 13, 1998, Asian Square replied that it would not renew the lease and that K &amp; T had until June 15, 1998, to vacate the premises. When K &amp; T did not vacate, Asian Square filed a dispossessory action. Following a brief hearing limited to the issue of the enforceability of the renewal option, the trial court found K &amp; T had properly exercised its option to renew the lease and issued judgment in its favor. Asian Square appeals.\n1. Asian Square first argues that the renewal option was unenforceable because it did not specify the rent to be paid during the renewal term.\n\n*168 \"A provision for the renewal of a lease must specify the terms and conditions of the renewal with such definite terms and certainty that the court may determine what has been agreed on, and if it falls short of this requirement it is not enforceable. It must be certain and definite both as to the time the lease is to extend and the rent to be paid.\"\n(Footnote omitted.) Smith v. Huckeba, 232 Ga.App. 374, 375(1), 501 S.E.2d 877 (1998). It is not necessary, however, that the renewal option specifically list these terms. It is sufficient if it provides a definite method for determining the amount of the rent and the duration of the renewal lease. The renewal provision is unenforceable only if these terms are not specified and no method is provided by which they can be determined. Patellis v. 100 Galleria Parkway Assoc., 214 Ga.App. 154(1), 447 S.E.2d 113 (1994).\nIn this instance, the renewal option specifically provides that the new lease shall be for five years, but states that the rent \"shall be equal to a N/A percent N/A increase over the preceding year's rent.\" The parties disagree as to the meaning of this language. Asian Square argues the language shows that the parties did not decide what the rent would be during the renewal term. K &amp; T argues the term \"N/A\" in the context of the language simply means that there will be no percentage increase in the rent during the renewal term.\nThere are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the trier of fact must then resolve the ambiguity.\n(Citations and punctuation omitted.) Empire Distrib. v. George L. Smith II &amp;c. Auth., 235 Ga.App. 742, 744, 509 S.E.2d 650 (1998). A court should only consider parol or other extrinsic evidence if any ambiguity remains after it has applied the rules of construction. Id.\nWe agree with the trial court's determination that the language of the renewal option is ambiguous, and that the applicable rules of construction must be employed to determine the parties' meaning. We also agree with the trial court that no ambiguity remains in the language after the rules of construction are applied.\nAt issue is what the parties meant by the term \"N/A.\" In construing a contract, courts must give words their usual and common meaning. OCGA § 13-2-2(2); McDuffie v. Argroves, 230 Ga.App. 723, 725(2), 497 S.E.2d 5 (1998). In general usage, the term \"N/A\" is a shorthand form of the phrase \"not applicable.\" Thus, the renewal option may be read as providing that the rent for the renewal term \"shall be equal to a not applicable percent not applicable increase over the preceding year's rent.\"\nThe law favors a construction of this language that will uphold the contract as a whole, and \"the whole contract should be looked to in arriving at the construction of any part.\" OCGA § 13-2-2(4). Whenever the parties intended that a portion of the preprinted lease form was not to apply to their agreement, they drew a line through the language. However, they did not strike the language in the renewal option. Thus, it appears that the parties intended the renewal option to apply.\nThis conclusion is reinforced by a second rule of construction. Because the contract is printed, the typewritten portions of the contract prevail over the printed language. OCGA § 13-2-2(7); Grier v. Brogdon, 234 Ga.App. 79, 81(2), 505 S.E.2d 512 (1998). The lease contains a typewritten note in paragraph 4 stating that K &amp; T was to have an option to renew, and the renewal option is intact, with the addition of the term \"N/A\" in the blanks specifying the percentage the rent would increase during the new lease.\nWhen these rules are considered along with the rule that any ambiguity in the language must be construed against Asian Square as the drafter of the lease, OCGA § 13-2-2(5); McDuffie v. Argroves, 230 Ga. App. at 725(2), 497 S.E.2d 5; Promenade Assoc. v. Finish Line, 194 Ga.App. 741, 743, 391 S.E.2d 714 (1990), we find that the parties intended for the renewal option to apply, *169 but did not intend for the language regarding a percentage increase in rent to apply. In other words, they intended that there would be no increase in rent for the renewal period.\nAnd while the renewal option does not set out a specific amount for rent, it does provide a method for determining that amount. See Patellis v. 100 Galleria Parkway Assoc., 214 Ga.App. at 154-155(1), 447 S.E.2d 113. The lease defines the amount of rent that K &amp; T would be paying at the end of the original term, and the renewal option provides there will be no increase in that amount. Thus, the renewal option gave K &amp; T the right to renew the lease for five years at the same rent it was paying at the end of the original term.\nBecause there is no uncertainty as to the duration of the new rental term or the amount of rent, the trial court correctly found that the renewal option was enforceable. Compare Smith v. Huckeba, 232 Ga. App. at 376, 501 S.E.2d 877 (where lease gave no method for determining the rent for the renewal term, but stated only that it would be the \"fair market rental value of the property\" at the time of renewal); Patellis v. 100 Galleria Parkway Assoc., 214 Ga.App. at 155, 447 S.E.2d 113 (where lease provided that rental rate for the renewal would be negotiated between landlord and tenant at the time of renewal).\n2. Asian Square next contends the trial court erred in ruling that K &amp; T had properly exercised its option to renew without hearing additional evidence on the issue. We agree and reverse.\nUnder the renewal provision, K &amp; T was required to give Asian Square notice of its intent to renew 90 days before the expiration of the original term. The second paragraph of the lease provides,\nThe term of this Lease (hereinafter referred to as the \"Lease Term\") shall commence on the \"Rental Commencement Date\" hereinafter described and, unless sooner terminated or extended as hereinafter provided, shall terminate on the last day of the ___ Lease Year (as that term is hereinafter defined).\nUnder this provision, the original term ended on the last day of a designated lease year. While the parties failed to specify which lease year marked the end of the term, other provisions in the lease appear to anticipate a five-year term. The rental schedule in paragraph 4(d) clearly contemplates a lease extending for five years, and the renewal option provides the opportunity to extend the lease for \"an additional five (5) years.\" Viewing the contract as a whole, therefore, we conclude that the parties intended the original term to end on the last day of the fifth lease year. OCGA § 13-2-2(4).\nThe lease then describes \"lease year\" as \"the first full twelve (12) calendar month period contained within the Lease Term and each successive twelve (12) calendar month period thereafter, and the first lease year shall also include any partial calendar month at the beginning of the Lease Term.\" Therefore, a lease year is defined as the first 12-month period after the lease term begins, as well as any subsequent 12-month periods within the term. Paragraph 2 provides that the lease term begins on the \"Rental Commencement Date,\" and thus each lease year runs for a 12-month period after the Rental Commencement Date.\nThe crucial question then is what the parties intended by the term \"Rental Commencement Date.\" The trial court found that the Rental Commencement Date was July 15, 1993, based upon the typewritten footnote to paragraph 4(d) stating that the tenant was to start paying rent on that date. However, the term \"Rental Commencement Date\" is a defined term, which has no direct connection to the date rent is first paid.\nParagraph 3 of the lease states,\nThe term Rental Commencement Date shall mean the earlier to occur of the date FIVE (5) days after Landlord shall notify Tenant that the Demised Premises are ready for occupancy, or the date on which the Tenant shall be deemed to have accepted the Demised Premises, to have acknowledged that the same are in the condition called for hereunder, and to have agreed that as of the time all of the obligations of the Landlord imposed under this Lease have been fully performed.\n*170 The lease then states that the parties are to execute a written instrument specifying and acknowledging the Rental Commencement Date and the expiration of the Lease Term. No such written instrument appears in the record.\nAs the parties failed to specify a date, the Rental Commencement Date must be determined from the definition in the lease. That definition is dependent upon extrinsic facts regarding Asian Square's notice and K &amp; T's acceptance of the premises. Therefore, the trier of fact will require additional evidence before determining the Rental Commencement Date.\nAccordingly, we find that it was error for judgment to issue in favor of K &amp; T without the consideration of additional evidence. We therefore remand for further proceedings in accordance with this decision.\nJudgment affirmed in part and reversed and remanded in part.\nSMITH and ELDRIDGE, JJ., concur.\n", "ocr": false, "opinion_id": 1347068 } ]

[ "76 N.W.2d 762", "247 Iowa 817" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4419, "opinion_text": "\n76 N.W.2d 762 (1956)\nJoseph H. BREMMER, and Mrs. Joseph H. Bremmer, Husband and Wife, Appellants,\nv.\nJOURNAL-TRIBUNE PUBLISHING COMPANY, Appellee.\nNo. 48768.\nSupreme Court of Iowa.\nMay 9, 1956.\n*763 John Hutchinson, Sioux City, for appellants.\nShull, Marshall, Mayne, Marks &amp; Vizintos, Sioux City, for appellee.\nOLIVER, Justice.\nThis is an action for damages brought by the parents of eight year old Jimmy Bremmer, deceased, for invasion of their right of privacy. The petition alleges plaintiffs' son Jimmy disappeared from his Sioux City home and remained missing for approximately one month until September 29, 1954, when his mutilated and decomposed body was discovered in a field near Sioux City; that on said date the evening edition of defendant newspaper carried on the front page a large picture of the site where the body was found, \"that toward the bottom center of the photograph the mutilated and decomposed body of Jimmy Bremmer lay exposed.\" \"That because the picture of the body was exposed to the public view and more particularly to the view of the parents, Mr. and Mrs. Joseph Bremmer, the constitutional right of privacy of Mr. and Mrs. Joseph Bremmer was invaded; further that because of the publication of the aforementioned photograph by the Journal-Tribune Publishing Company, the parents of Jimmy Bremmer, Mr. and Mrs. Joseph Bremmer have suffered untold mental anguish and humiliation and will continue to do so in the future; that by reason of such suffering and humiliation, Mr. and Mrs. Joseph Bremmer have been damaged in the sum of Thirty five Thousand Dollars ($35,000.00)\". Judgment for that amount is prayed.\nIn Division I of its answer, defendant denied any rights of plaintiffs were violated or invaded. Divisions II, III and IV alleged the circumstances of the disappearance and discovery of Jimmy Bremmer were matters of great public interest and the pictures and news items published by defendant were privileged and plaintiffs suffered no legal wrong; that plaintiffs solicited the widest possible publicity and waived and consented to the same, including *764 the pictures complained of; and that there was no such right of privacy as claimed by plaintiffs.\nPlaintiffs moved to strike Divisions II, III and IV as conclusions, improper in substance, meaningless, incompetent, not based on facts pleaded, and matters at best evidentiary. The motion to strike was overruled. Plaintiffs replied, denying each and every allegation in Divisions II, III and IV of the answer. Thereafter, defendant moved for dismissal, asserting plaintiffs' motion to strike amounted to an application to adjudicate points of law under 58 I.C.A. R.C.P. 105, Separate Adjudication of Law Points, and that the ruling thereon, which, defendant asserted, held in effect there was no cause of action in Iowa based upon invasion of right of privacy, disposed of all the issues of the case, became the law of the case and was binding upon all parties in any subsequent proceedings.\nThe trial court sustained the motion to dismiss. From the judgment rendered against them thereon, plaintiffs have appealed.\nI. Some procedural aspects of the case will be first considered. Defendant's contention the order overruling plaintiffs' motion to strike had the effect of an order under R.C.P. 105, and thus became the law of the case, is not well founded. An application to adjudicate law points under R.C.P. 105 is not technically a motion and the effect of a ruling or order thereon is not the same as the effect of an order on a motion assailing a pleading. See Litchford v. Iowa-Illinois Gas &amp; Electric Co., 247 Iowa ___, 75 N.W.2d 346. The order overruling plaintiffs' motion to strike was not an adjudication against plaintiffs as an order under R.C.P. 105 would have been. After the order was made plaintiffs filed a reply, as was their right. See Ranslow v. U. S. Fidelity &amp; Guaranty Co., 243 Iowa 731, 733, 734, 53 N.W.2d 247, 248, R.C.P. 73 and 104(c). Nor did the order become the law of the case which the trial court was required to follow. Had the proposition been properly presented to the trial court again, it could have made a contrary order. Kuiken v. Garrett, 243 Iowa 785, 790-793, 51 N.W.2d 149, 153, 154, 41 A.L.R. 2d 1397.\nHowever, the trial court did not determine defendant's contention the order overruling the motion to strike became the law of the case. The order sustaining the motion to dismiss shows the court considered \"that the present pleading attacks the validity of the petition, and particularly whether or not any cause of action is stated therein. * * * The court is of the opinion that said petition does not state a cause of action against the defendant.\" Hence, it appears the distinguished trial court treated the motion to dismiss as a motion for judgment on the pleadings under R.C.P. 222. See Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1195, 24 N.W.2d 751; Article by Charles W. Joiner, 32 Iowa Law Review 417, 419. Plaintiffs do not complain of this procedure and its propriety need not be here determined.\nII. The \"right of privacy\" has been defined as the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S., Right of Privacy, § 1; 41 Am.Jur., Privacy, section 2; Prosser's Handbook of the law of Torts, 2nd edition, 1955, Chapter 20, Privacy. Violation of the right of privacy is a tort.\nDefendant points out that neither the statutes of Iowa nor the decisions of this court recognize the right of privacy. Hence, it contends no action for the violation of such right may be maintained in Iowa. With this contention we do not agree.\nPrior to 1890 no English or American court had ever granted relief expressly based upon the invasion of such a right. In that year attention was directed to it by an article by Samuel D. Warren and Louis D. Brandeis in 4 Harvard Law Review 193, entitled, \"The Right to Privacy.\" Later the doctrine was advocated in numerous articles by other writers and statutes relating to it were adopted in several states. The first decision by the highest appellate *765 court of a state, recognizing the doctrine, was Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S.E. 68, 69, L.R.A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas. 561. That decision has been followed by many courts of this country. Now the courts of approximately twenty states recognize the right of privacy. In three other states it is limited by statute and in only four do the courts reject it. A footnote to Hazlitt v. Fawcett Publications, D.C.Conn.1953, 116 F. Supp. 538, 542, 543, lists these to 1953. There are annotations on the right of privacy in 138 A.L.R. 22, 168 A.L.R. 446, and in 14 A.L.R. 2d 750. See also The Right of Privacy, Louis Nizer, 39 Mich.Law Review 526. Section 867, Restatement of the Law, Torts, entitled, \"Interference with Privacy\", states:\n\"A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.\"\nThe modern doctrine of the right of privacy is a development of the common law to fill a need for the protection of the interest which a person has in living without unwarranted publicity. The doctrine is supported by the great weight of authority in this country and we are satisfied it is sound. Hence, we hold an action for interference with such right may be maintained in this jurisdiction.\nIII. The ultimate question here is whether plaintiffs' pleading alleged facts sufficient to constitute an unwarranted invasion of their right of privacy. It is conceded the picture of the portion of the field with the body thereon was part of a current news item published in a newspaper. In argument plaintiffs refer to statements in \"accompanying articles\" in the newspaper. Obviously, the finding of the body of the local boy who had been missing for a month was a top rank news story. Plaintiffs concede, \"it may be true that the public was interested in the fact that the missing Bremmer boy was found * * *.\" A general rule set out in the comment to section 867, Restatement of the Law, Torts, and repeated in many decisions is: \"One who unwillingly comes into the public eye * * *, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one * * * or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention * * * they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.\"\n77 C.J.S., Right of Privacy § 2, p. 399, states in boldface: \"* * * the dissemination of news or news events does not generally constitute an invasion of the right (of privacy).\"\nHazlitt v. Fawcett Publications, Inc., D.C.Conn.1953, 116 F. Supp. 538, 545, exemplifies the difference between the dissemination of news and a publication not a vehicle of information. There the court stated with reference to the privacy count: \"If * * * the story * * * was fictionalized * * *, I may not now rule, as a matter of law, that it was of legitimate public interest because informational and on that account not actionable. * * * Thus this count may be deemed to state an actionable claim on the theory that the published story was in essence not a vehicle of information but rather a device to facilitate commercial exploitation.\"\nCason v. Baskin, 1944, 155 Fla. 198, 20 So. 2d 243, 168 A.L.R. 430, is a similar decision.\nLeverton v. Curtis Pub. Co., 3 Cir., 1951, 192 F.2d 974, 976, states with reference to the publication in a newspaper of a picture of that plaintiff as she lay in a street immediately after having been struck by an automobile, \"If it invaded the right of the plaintiff to stay out of public attention, it was a privileged invasion, her interest in being left alone being overbalanced by the general public interest in being kept informed.\"\n*766 Plaintiffs state: \"The identification of the body of Jimmy Bremmer was made from articles of clothing taken from the remains.\" It is not pleaded or contended the body was unclothed or that any of its organs or private parts were shown in the picture. There is no suggestion of indecent exposure. The only complaint is the picture of \"the mutilated and decomposed body of Jimmy Bremmer * * * was exposed to public view and more particularly to the view of the parents * * *.\"\nWaters v. Fleetwood, 1956, 212 Ga. 161, 91 S.E.2d 344, 345, was a right of privacy action by a mother involving photographs of the body of her fourteen year old murdered daughter, after it had been removed from a river. The petition alleged: \"These photographs were taken at close range, showing the gruesome effects of an atrocious crime, and displaying the dead body of petitioner's child as an object of public curiosity. The photographs showed the decomposition of part of the child's body and showed it wrapped in chains.\" The trial court sustained a general demurrer to the petition. After considering decisions from various jurisdictions the Supreme Court of Georgia affirmed, holding the facts alleged did not state a cause of action. The decision states:\n\"The extracts from the above cases illustrate the tendency of courts of other jurisdictions to hold that, where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy. We concur in this view. There are many instances of brief and human suffering which the law can not redress. The present case is one of those instances. Through no fault of the petitioner or her deceased child, they became the objects of widespread public interest. * * * the dissemination of information pertaining thereto would not amount to a violation of the petitioner's right of privacy.\"\nThe Waters case was based upon the sale of copies of the pictures which had been published in the newspaper. The court held the same rule would apply to the sale as to the publication. That point need not be determined in the case at bar which involves only publication in a newspaper.\nThe Waters case was decided by the same court which decided the Pavesich case, supra, in 1905, which, we have noted, was the first decision by a state court of final jurisdiction to recognize the doctrine of the right of privacy, and which is considered a leading case. Moreover, it is the same court which, in 1930, decided Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194, relied upon by plaintiff. That it did not consider the Bazemore case in point is evident from the statement in Waters: \"There is no decision in this State which is in point on its facts with the present case.\" Later the court in the Waters case disposed of the Bazemore case with the statement it \"was not a unanimous decision.\"\nIn Kelley v. Post Publishing Co., 1951, 327 Mass. 275, 98 N.E.2d 286, 288, defendant published a picture of the mutilated body of plaintiffs' fifteen year old daughter, killed in an automobile accident. The pleading alleged the picture \"`was a gross caricature and depicted her features in a deformed and hideous manner and distorted * * * (her) features.'\" The trial court sustained a demurrer to the petition. In affirming, the court stated:\n\"Doubtless many persons at such a time would be distressed or annoyed by a publication of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its boundaries. A newspaper account or a radio broadcast setting forth in detail the harrowing circumstances of the accident might well be as distressing to the members of the victim's family as a photograph of the sort described in the declaration. A newspaper could not safely publish the picture of a train wreck or of an airplane crash if any of the bodies of the victims were recognizable.\n*767 \"* * * The publication of such a photograph might very well be indelicate or lacking in good taste but it would not in our opinion, for the reasons already discussed, constitute an actionable wrong to the plaintiffs.\"\nIn Abernathy v. Thornton, 1955, 263 Ala. 496, 83 So. 2d 235, 236, 237, the photograph of the body of plaintiffs' son, shot by a woman, showed the metal bullet protruding from his head. In holding the complaint insufficient the court discussed authorities and quoted with approval from a text, \"There can be no privacy in that which is already public\", and \"It does not exist in the dissemination of news and news events * * *.\"\nJacova v. Southern Radio &amp; Television Company, Fla.1955, 83 So. 2d 34, 36, 40, involved a canned film of gambling raids in one of which plaintiff (apparently a bystander) was shown. A summary judgment was affirmed upon appeal on the ground the publication was in connection with the dissemination of legitimate news items. The decision quotes with approval:\n\"`The public has an interest in the free dissemination of news. This interest was well stated by that great American, Thomas Jefferson, in the following words: \"The only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary to keep the waters pure. No government ought to be without censors: and where the press is free no one ever will.\"\n\"`* * * it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.'\"\nIn Jones v. Herald Post Co., 230 Ky. 227, 18 S.W.2d 972, 973, plaintiff's picture was published with a story of her conduct in resisting and attacking her husband's assassins. A demurrer to her petition was sustained. The judgment thereon was affirmed with the statement, \"* * * she was an innocent actor in a great tragedy in which the public had a deep concern.\"\nSamuel v. Curtis Pub. Co., D.C.Cal. 1954, 122 F. Supp. 327, was based upon a published photograph showing plaintiff attempting to dissuade a young woman from committing suicide. Plaintiff in Berg v. Minneapolis Star &amp; Tribune Co., D.C. Minn.1948, 79 F. Supp. 957, was engaged in family litigation. There were summary judgments for defendants in these cases.\nAmong other cases in which the pleadings of plaintiff were held insufficient are: Smith v. Doss, 251 Ala. 250, 37 So. 2d 118, 119; Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753, and Elmhurst v. Pearson, 1945, 80 U.S.App. D.C. 372, 153 F.2d 467.\nIn Sidis v. F-R Pub. Corp., 2 Cir., 1940, 113 F.2d 806, 809, 138 A.L.R. 15, a count of the petition based upon the right of privacy was held insufficient. The decision states also:\n\"We express no comment on whether or not the news worthiness of the matter printed will always constitute a complete defense. Revelations may be so intimate and so unwarranted in view of the victim's position as to outrage the community's notions of decency. * * * Regrettably or not, the misfortunes and frailties of neighbors and `public figures' are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.\"\nPlaintiffs refer to Douglas v. Stokes, 1912, 149 Ky. 506, 149 S.W. 849, 850, 42 L.R.A.,N.S., 386, Ann.Cas.1914B, 374, and Bazemore v. Savannah Hospital, 1930, 171 Ga. 257, 155 S.E. 194, supra. In Douglas v. Stokes defendant was employed to photograph for plaintiffs, the nude corpse of their malformed infant twins. He made additional copies and secured a copyright from the patent office. The court held this was a breach of the agreement, for which damages were allowable. Douglas v. Stokes is cited in the footnote in 41 Am.Jur. 127, Photography, Portrait Painting *768 and Engraving, section 3, along with similar cases.\nReference has already been made to the Bazemore case, which appears to have been brushed aside in a later decision by the same court, Waters v. Fleetwood, supra, 91 S.E.2d 344. In Bazemore, pictures of the nude body of the deformed male infant with its sexual organs exposed, together with the theretofore secret facts, were wrongfully secured and published. It is an extreme case, involving the violation of a trust, the wrongful publicizing of the secret physical deformity and the sale commercially of the pictures of the nude and deformed body.\nNeither of the foregoing decisions is here in point. Nor are we able to agree with some of the conclusions which have been expressed, as to their meanings. Perhaps they should be classed with cases out of which some readers seem able to get more than the courts put in.\nPlaintiffs state: \"While it may be true that the public was interested in the fact that the missing Bremmer boy was found and whether or not he was dead or alive, the public had no legitimate interest or concern in the condition of the body.\" That conclusion is without support. From a news standpoint the public is interested in the appearance of the body of such a local victim. Such appearance may be pictured by words or by photographs or both.\nThere is a good statement in Leverton v. Curtis Pub. Co., D.C.Pa.1951, 97 F. Supp. 181, affirmed 3 Cir., 192 F.2d 974: \"The plaintiff says the picture is simply sensational, which it also is, but the courts are not concerned with the canons of good taste, and pictures which startle, shock, and even horrify may be freely published, provided they are not libelous or indecent, if the subject of the picture consents or if the occasion is such that his right of privacy does not protect him from the publication. The right is, of course, variable and in some cases it may dwindle almost to the vanishing point, as where an individual, perhaps involuntarily, becomes involved in some newsworthy event or some situation in which the public has a legitimate interest.\"\nBarber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295, states: \"The determination of what is a matter of public concern is similar in principle to qualified privilege in libel. It is for the court to say first whether the occasion or incident is one of proper public interest. (As it must say whether an occasion is one to which qualified privilege extends in libel.)\" Mills v. Denny, 245 Iowa 584, 589, 63 N.W.2d 222, 225, 40 A.L.R. 2d 933, states: \"Nevertheless the rule is quite well settled in all jurisdictions that the question as to whether or not there is a privilege, absolute or qualified, under the circumstances or occasion involved, is for the court.\"\nIt is conceded the incident of the finding of the body of the missing local boy was one of proper public interest. In other words, the event was newsworthy. Under the decisions cited herein, it is clear the facts pleaded by plaintiffs were insufficient to state a cause of action against defendant. The trial court was correct in so concluding.\nAffirmed.\nGARFIELD, WENNERSTRUM, SMITH, THOMPSON and PETERSON, JJ., concur.\nLARSON, Chief Justice (dissenting).\nI am unable to concur in the conclusions reached in Division III of the majority opinion. Having correctly determined in Divisions I and II that Iowa does recognize the right of privacy, and that the court did not adjudicate against plaintiffs under R.C.P. 105 by overruling their motion to strike certain divisions of defendant's answer, the opinion announces the rule that as to newsworthy matter the press is accorded a privilege to publish, limited only as to indecent matter. Then the majority conclude that plaintiffs' petition did not state a cause of action, although it concedes *769 it set forth that \"the mutilated and decomposed body of Jimmy Bremmer * * was exposed to the public view and more particularly to the view of the parents * * *.\" They say: \"There is no suggestion of indecent exposure.\" I am unable to adopt that conclusion, for I think that under those allegations plaintiffs could show what might be determined was an indecent picture of the boy's body.\nUnder this record, however, the court refuses to examine the alleged improper picture. As to whether or not it would fall within the indecent category cannot be determined even by the court under this inconsistent determination. Actually by dismissing this petition at this time, without a hearing thereon, we shall be going much further than any of the authorities cited by the defendant or set forth in the majority opinion. In those cases the court at least saw and heard the evidence before summarily dismissing the cause. Here the majority holds that once it appears the matter is of legitimate public interest, the privilege of the press is absolute—unless possibly the picture is alleged to be indecent—and the individuals' right of privacy is completely abrogated. With such a determination I cannot agree.\nI also cannot agree with the application of this rule by the courts of Georgia and Alabama in their apparent determination that pictures of news interest, no matter now morbid and repulsive they may be, or how much they may needlessly hurt anyone concerned, are privileged and that publishers are thereafter governed solely by their own consciences and sense of decency in determining whether or not such pictures are printed.\nI am not advocating that the courts or anyone else try to act as censors of the press, but who will protect the invaded rights of citizens if the courts do not? It is not censoring, as I view it, to provide a remedy for a wrong, once the wrong has been done.\nIt is my feeling that we should take this opportunity to clearly express a sound position on this important question. We should recognize the right of privacy by more than lip service. We should limit and define the privilege accorded the press and radio to invade this right of individual privacy here in Iowa. It must be done sometime. This is not a new thought, for in Prosser on Torts, 2d Ed., pages 643-644, we find the following statement:\n\"Again the privilege is not unlimited, but the line is a most difficult one to draw. The cases in which the privilege has been found to be exceeded have involved outrageous methods such as the theft of a photograph, or extreme catering to the morbid and the sensational, such as the publication of the picture of the plaintiff's dead deformed child, * * *. The best statement that can be made is that the distinction probably is that found in other cases of the intentional infliction of mental suffering, between conduct which outrages the common decencies and goes beyond what the public mores will tolerate, and that which the plaintiff must be expected under the circumstances to endure.\" (Emphasis supplied.)\nClearly, then, the privilege of the publisher is not absolute. But because the line is difficult to draw, we should not try to avoid it this way. We are constantly called upon to draw distinctions just as difficult, and we try to do so for the benefit of bench and bar. I would reverse this judgment and order the trial court to at least hear and see the evidence before determining, under such guidance as we can provide at this time, whether or not as a matter of law defendant did breach the privilege to invade plaintiffs' right of privacy extended to it under these circumstances.\nBLISS and HAYS, JJ., join in this dissent.\n", "ocr": false, "opinion_id": 1247665 }, { "author_str": "Oliver", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOliver, J.\nThis is an action for damages brought by the parents of eight-year-old Jimmy Bremmer, deceased, for' invasion of their right of privacy. The petition alleges plaintiffs’ son Jimmy disappeared from his Sioux City home and remained missing for approximately one month until September 29, 1954, when his mutilated and decomposed body was discovered in a field near Sioux City; that on said date the evening edition of defendant-newspaper carried on the front page a large picture of the site where the body was found; “that toward the bottom center of the photograph the mutilated and decomposed body of Jimmy Bremmer lay exposed; that because the picture of the body was exposed to the public view and more particularly to the view of the parents, Mr. and Mrs. Joseph Bremmer, the Constitutional right of privacy of Mr. and Mrs. Joseph Bremmer was invaded; further that because of the publication of the aforementioned photograph by the Journal-Tribune Publishing Company, the parents of Jimmy Bremmer, Mr. and Mrs. Joseph Bremmer, have suffered untold mental anguish and humiliation and will continue to do so in the future; that by reason of such suffering and humiliation, Mr! and Mrs. Joseph Bremmer.have been damaged in the sum of Thirty-five Thousand Dollars ($35,-000).” Judgment for that amount is prayed.\nIn Division I of its answer, defendant denied any rights of plaintiffs were violated or invaded. Divisions II, III and IV alleged the circumstances of the disappearance and discovery of Jimmy Bremmer were matters of great public interest and the pictures and news items published by defendant were privileged and plaintiffs suffered no legal wrong; that plaintiffs solicited the widest possible publicity and waived and consented to the same, including the pictures complained of; and that there was no such right of privacy as claimed by plaintiffs.\nPlaintiffs moved to strike Divisions II, III and IV as conclusions, improper in substance, meaningless, incompetent, not based on facts pleaded, and matters at best evidentiary. The motion to strike was overruled. Plaintiffs replied, denying each *820and every allegation in Divisions II, HI and IV of the answer. Thereafter, defendant moved for dismissal, asserting plaintiffs’ motion to strike amounted to an application to adjudicate points of law under E. C. P. 105, Separate Adjudication of Law Points, and that the ruling thereon, which, defendant asserted, held in effect there was no cause of action in Iowa based upon invasion of right of privacy, disposed of all the issues of the case, became the law of the case and was binding upon all parties in any subsequent proceedings.\nThe trial court sustained the motion to dismiss. From the judgment rendered against them thereon, plaintiffs have appealed.\nI. Some procedural aspects of the case will be first considered. Defendant’s contention the order overruling plaintiffs’ motion to strike had the effect of an order under E. C. P. 105, and thus became the law of the case is not well founded. An application to adjudicate law points under E. C. P. 105 is not technically a motion and the effect of a ruling or order thereon is not the same as the effect of an order on a motion assailing a pleading. See Litchford v. Iowa-Illinois Gas &amp; Electric Co., 247 Iowa 947, 75 N.W.2d 346. The order overruling plaintiffs’ motion to strike was not an adjudication against plaintiffs as an order under E. C. P. 105 would have been. After the order was made plaintiffs filed a reply, as was their right. See Ranslow v. U. S. Fidelity &amp; Guaranty Co., 243 Iowa 731, 733, 734, 53 N.W.2d 247, 248; R. C. P., rules 73 and 104c. Nor did the order become the law of the case which the trial court was required to follow. Had the proposition been properly presented to the trial court again, it could have made a contrary order. Kuiken v. Garrett, 243 Iowa 785, 790-793, 51 N.W.2d 149, 153, 154, 41 A. L. R.2d 1397.\nHowever, the trial court did not determine defendant’s contention the order overruling the motion to strike became the law of the case. The order sustaining the motion to dismiss shows the court considered “that the present pleading attacks the validity of the petition, and particularly whether or not any cause of action is stated therein. * * * The court is of the opinion that said petition does not state a cause of action against the defendant.” Hence, it appears the distinguished trial court treated the motion to dismiss as a motion for judgment on the pleadings under E. C. *821P. 222. See Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1195, 24 N.W.2d 751; article by Charles W. Joiner, 32 Iowa Law Review 417, 419. Plaintiffs do not complain of this procedure and its propriety need not be here determined.\nII. The “right of privacy” has been defined as the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C. J. S., Right of Privacy, section 1; 41 Am. Jur., Privacy, section 2; Prosser’s Handbook of the law of Torts, 2nd Ed., 1955, chapter 20, Privacy. Violation of the right of privacy is a tort.\nDefendant points out that neither the statutes of Iowa nor the decisions of this court recognizes the right of privacy. Hence, it contends no action for the violation of such right may be maintained in Iowa. With this contention we do not agree.\nPrior to 1890 no English or American court had ever granted relief expressly based upon the invasion of such a right. In that year attention was directed to it by an article by Samuel D. Warren and Louis D. Brandéis in 4 Harvard Law Review 193, entitled, “The Right to Privacy.” Later the doctrine was advocated in numerous articles by other writers and statutes relating to it were adopted in several states. The first decision by the highest appellate court of a state, recognizing the doctrine, was Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas. 561. That decision has been followed by many courts of this country. Now the courts of approximately twenty states recognize' the right of privacy. In three other states it is limited by statute and in only four do the courts reject it. A footnote to Hazlitt v. Fawcett Publications, Inc., 1953, D. C. Conn., 116 F. Supp. 538, 542, 543, lists these to 1953. There are annotations on the right of privacy in 138 A. L. R. 22, 168 A. L. R. 446, and in 14 A.L.R.2d 750. See also The Right of Privacy, Louis Nizer, 39 Michigan Law Review 526.\nSection 867, Restatement of the Law, Torts, entitled, “Interference with Privacy’ ’, states: “A person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.’ ’\n*822The modem doctrine of the right of privacy is a development of the common law to fill a need for the protection of the interest which a person has in living without unwarranted publicity. The doctrine is supported by the great weight of authority in this country and we are satisfied it is sound. Hence, we hold an action for interference with such right may be maintained in this jurisdiction.\nIII. The ultimate question here is whether plaintiffs’ pleading alleged facts sufficient to constitute an unwarranted invasion of their right of privacy. It is conceded the picture of the portion of the field with the body thereon was part of a current news item published in a newspaper. In argument plaintiffs refer to statements in “accompanying articles” in the newspaper. Obviously, the finding of the body of the local boy who had been missing for a month was a top-rank news story. Plaintiffs concede, “it may be true that the public was interested in the fact that the missing Bremmer boy Avas found * * A general rule set out in the comment to section 867, Restatement of the Law, Torts, page 400, and repeated in many decisions is: “One who unwillingly comes into the public eye * * * is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one * # * or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention * * *, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.”\n77 C. J. S., Right of Privacy, section.2, page 399, states in boldface: “* * * the dissemination of neAArs or news events does not generally constitute an invasion of the right [of privacy].”\nHazlitt v. Fawcett Publications, Inc., 1953, D. C. Conn., 116 F. Supp. 538, 545, exemplifies the difference between the dissemination of news and a publication not a vehicle of information. There the court stated with reference to the privacy count: “If * * * the story * * * was fictionalized * # I may not now rule, as a matter of laA\\', that it was of legitimate public interest because informational and on that account not actionable. * * # *823Thus this count may be deemed to state an actionable claim on the theory that the published story was in essence not a vehicle of information but rather a device to facilitate commercial exploitation.’ ’\nCason v. Baskin, 1944, 155 Fla. 198, 20 So.2d 243, 168 A. L. R. 430, is a similar decision.\nLeverton v. Curtis Pub. Co., 1951, 3 Cir., Pa., 192 F.2d 974, 976, states with reference to the publication in a newspaper of a' picture of that plaintiff as she lay in a street immediately after having been struck by an automobile, “If it invaded the right of the plaintiff to stay out of public attention, it was a privileged invasion, her interest in being left alone being overbalanced by the general public interest in being kept informed. ”\nPlaintiffs state: “The identification of the body of Jimmy Bremmer was made from articles of clothing taken from the remains.” It is not pleaded or contended the body was unclothed or' that any of its organs or private parts were shown in the picture. There is no suggestion of indecent exposure. The only complaint is the picture of “the mutilated and decomposed body of Jimmy Bremmer * * * was exposed to public view and more particularly to the view of the parents * *\nWaters v. Fleetwood, 1956, 212 Ga. 161, 91 S.E.2d 344, 345, 348, was a right-of-privacy action by a mother involving photographs of the body of her fourteen-year-old- murdered daughter, after it had been removed from a river. The petition alleged: “These photographs were taken at close range, showing the gruesome effects of an atrocious crime, and displaying the dead body of the petitioner’s child as an object of public curiosity. The photographs showed the decomposition of part of the child’s body and showed it wrapped in chains.” The trial court sustained a general demurrer to the petition. After considering decisions from various jurisdictions the Supreme Court of Georgia affirmed, holding the facts alleged did not state a cause of action. The decision states:\n“The extracts from the above cases illustrate the tendency of courts of other jurisdictions to hold that, where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a *824violation of no one’s legal right of privacy. We concur in this view. There are many instances of grief and human suffering which the law cannot redress. The present case is one of those instances. Through no fault of the petitioner or her deceased child, they became the objects of widespread public interest. * * * the dissemination of information pertaining thereto would not amount to a violation of the petitioner’s right of privacy.”\nThe Waters case was based upon the sale of copies of the pictures which had been published in the newspaper. The court held the same rule would apply to the sale as to the publication. That point need not be determined in the case at bar which involves only publication in a newspaper.\nThe Waters case was decided by the same court which decided the Pavesieh case, supra, in 1905, which, we have noted, was the first decision by a state court of final jurisdiction to recognize the doctrine of the right of privacy, and which is considered a leading case. Moreover, it is the same court which, in 1930, decided Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194, relied upon by plaintiff. That it did not consider the Bazemore case in point is evident from the statement in Waters: “There is no decision in this State which is in point on its facts with the present case.” Later the court in the Waters case disposed of the Bazemore case with the statement it “was not a unanimous decision. ”\nIn Kelley v. Post Publishing Co., 1951, 327 Mass. 275, 277, 279, 98 N.E.2d 286, 287, 288, defendant published a picture of the mutilated body of plaintiffs’ fifteen-year-old daughter, killed in an automobile accident. The pleading alleged the picture “ ‘was a gross caricature and depicted her features in a deformed and hideous manner and distorted * * # [her] features’.” The trial court sustained a demurrer to the petition. In affirming, the court stated:\n“Doubtless many persons at such a time would be distressed or annoyed by a publication of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its boundaries. *825A newspaper account or a radio broadcast setting forth in detail the harrowing circumstances of the accident might well be as distressing to the members of the victim’s family as a photograph of the sort described in the declaration. A newspaper could not safely publish the picture of a train wreck or. of an airplane crash if any of the bodies of the victims were recognizable.\n“* * * The publication of such a photograph might very well be indelicate or lacking in good taste, but it would not in our opinion, for the reasons already discussed, constitute an actionable wrong to the plaintiffs.”\nIn Abernathy v. Thornton, 1955, 263 Ala. 496, 83 So.2d 235, 237, the photograph of the body of plaintiffs’ son, shot by a woman, showed the metal bullet protruding from his head. In holding the complaint insufficient the court discussed authorities and quoted with approval from a text, “There can be no privacy in that which is already public”, and “It does not exist in the dissemination of news and news events * *\nJacova v. Southern Radio and Television Co., 1955, Fla., 83 So.2d 34, 36, 40, involved a canned film of gambling raids in one of which plaintiff (apparently a bystander) was shown. A summary judgment was affirmed upon appeal on the ground the publication was in connection with the dissemination of legitimate news items. The decision quotes with approval:\n“ ‘The public has an interest in the free dissemination of news. This interest was well stated by that great American, Thomas Jefferson, in the following words: “The only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary to keep the waters pure. No government ought to he without censors; and where the press is free no one ever will.” *, * * it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.’ ”\nIn Jones v. Herald Post Co., 230 Ky. 227, 229, 18 S.W.2d 972, 973, plaintiff’s picture was published with a story of her conduct in resisting and attacking her husband’s assassins. A *826demurrer to her petition was sustained. The judgment thereon was affirmed with the statement, “* * * she was an innocent actor in a great tragedy in which the public had a deep concern.”\nSamuel v. Curtis Pub. Co., 1954, D. C. Cal., 122 F. Supp. 327, was based upon a published photograph showing plaintiff attempting to dissuade a young woman from committing suicide. Plaintiff in Berg v. Minneapolis Star &amp; Tribune Co., 1948, D. C. Minn., 79 F. Supp. 957, was engaged in family litigation. There were summary judgments for defendants in these eases.\nAmong other cases in which the pleadings of plaintiff were held insufficient are: Smith v. Doss, 251 Ala. 250, 37 So.2d 118, 119, Themo v. New England Newspaper Pub. Co., 306 Mass. 54, 27 N.E.2d 753, and Elmhurst v. Pearson, 1945, 80 App. D. C. 372, 153 F.2d 467.\nIn Sidis v. F-R Pub. Corp., 1940, 2 Cir., N. Y., 113 F.2d 806, 809, 138 A. L. R. 15, 19, 20, a count of the petition based upon the right of privacy was held insufficient. The decision states also: “We express no comment on whether or not the news worthiness of the matter printed will always constitute a complete defense. Revelations may be so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency. * * * Regrettably or not, the misfortunes and frailties of neighbors and ‘public figures’ are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.”\nPlaintiffs refer to Douglas v. Stokes, 1912, 149 Ky. 506, 149 S. W. 849, 850, 42 L. R. A., N. S., 386, Ann. Cas. 1914B 374, and Bazemore v. Savannah Hospital, 1930, supra, 171 Ga. 257, 155 S. E. 194. In Douglas v. Stokes defendant was employed to photograph for plaintiffs the nude corpse of their malformed infant twins. He made additional copies and secured a copyright from the patent office. The court held this was a breach of the agreement, for which damages were allowable. Douglas v. Stokes is cited in the footnote in 41 Am. Jur., Photography, Portrait Painting, and Engraving, section 3, page 127, along ivith similar cases.\n*827Reference has already been made to the Bazemore case, which appears to have been brushed aside in a later decision by the same court,. Waters v. Fleetwood, supra, 212 Ga. 161, 91 S.E.2d 344. In Bazemore, pictures of the nude body of the deformed male infant with its sexual organs exposed, together with the theretofore secret facts, were wrongfully secured and published. It is an extreme case, involving the violation of a trust, the wrongful publicizing of the secret physical deformity and the sale commercially of the pictures of the nude and deformed body.\nNeither of the foregoing decisions is here in point. Nor are we able to agree with some of the conclusions which have been expressed, as to their meanings. Perhaps they should be classed with cases out of which some readers seem able to get more than the courts put in.\nPlaintiffs state: “While it may be true that the public was interested in the fact that the missing Bremmer boy was found and whether or not he was dead or alive, the public had no legitimate interest or concern in the condition of the body.” That conclusion is without support. From a news standpoint the public is interested in the appearance of the body of such a local victim. Such appearance may be pictured by words or by photographs or both.\nThere is a good statement in Leverton v. Curtis Pub. Co., 1951, D. C. Pa., 97 F. Supp. 181, affirmed 192 F.2d 974: “The plaintiff says the picture is simply sensational, which it also is, but the courts are not concerned with the canons of good taste, and pictures which startle, shock, and even horrify may be freely published, provided they are not libelous or indecent, if the subject of the picture consents or if the occasion is such that his right of privacy does not protect him from the publication. The right is, of course, variable and in some cases it may dwindle almost to the vanishing point, as where an individual, perhaps involuntarily, becomes involved in some newsworthy event or some situation in which the public has a legitimate interest.”\nBarber v. Time, Inc., 348 Mo. 1199, 1206, 159 S.W.2d 291, 295, states: “The determination of what is a matter of public *828concern is similar in principle to qualified privilege in libel. It is for the court to say first whether the occasion or incident is one of proper public interest. (As it must say whether an occasion is one to which qualified privilege extends in libel.)”\nMills v. Denny, 245 Iowa 584, 589, 63 N.W.2d 222, 225, 40 A. L. R.2d 933, 938, states: “Nevertheless the rule is quite well settled in all jurisdictions that the question as to whether or not there is a privilege, absolute or qualified, under the circumstances or occasion involved, is for the court.”\nIt is conceded the incident of the finding of the body of the missing local boy was one of proper public interest. In other words, the event was newsworthy. Under the decisions cited herein, it is clear the facts pleaded by plaintiffs were insufficient to state a cause of action against defendant. The trial court was correct in so concluding. — Affirmed.\nGarfield, Wennerstrum, Smith, Thompson, and Peterson, JJ., concur.\nLárson, C. J., and Bliss and Hays, JJ., dissent.\n", "ocr": false, "opinion_id": 9581872 }, { "author_str": "Larson", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLarson, C. J.\n(dissenting) — I am unable to concur in the conclusions reached in Division III of the majority opinion. Having correctly determined in Divisions I and II that Iowa does recognize the right of privacy, and that the court did not adjudicate against plaintiffs under B. G. P. 105 by overruling their motion to strike certain divisions of defendant’s answer, the opinion announces the rule that as to newsworthy matter the press is accorded a privilege to publish, limited only as to indecent matter. Then the majority conclude that plaintiffs’ petition did not state a cause of action, although they concede it set forth that “the mutilated and decomposed body of Jimmy Bremmer # * * was exposed to public view and more particularly to the view of the parents * * They say: “There is no suggestion of indecent exposure.” I am unable to adopt that conclusion, for I think that under those allegations plaintiffs could show what might be determined was an indecent picture of the boy’s body.\nUnder this record, however, the court refuses to examine *829the alleged improper picture. As to whether or not it would fall within the indecent category cannot be determined even by the court under this inconsistent determination. Actually by dismissing this petition at this time, without a hearing thereon, we shall be going much further than any of the authorities cited by the defendant or set forth in the majority opinion. In those eases the court at least saw and heard the evidence before summarily dismissing the cause. Here the majority holds that once it appears the matter is of legitimate public interest, the privilege of the press is absolute — unless possibly the picture is alleged to be indecent — and the individuals’ right of privacy is completely abrogated. With such a determination I cannot agree.\nI also cánnot agree with the application of this rule by the courts of Georgia and Alabama in their apparent determination that pictures of news interest,'no matter how morbid and repulsive they may be, or how much they may needlessly hurt anyone concerned, are privileged and that publishers are thereafter governed solely by their own consciences' ¿nd sense of decency in determining whether or not such pictures are printed.,\nI am not advocating that the courts or anyone else try to act as censors of the press, but who will protect the invaded rights of citizens if the courts do not? It is not censoring, as I view it, to provide a remedy for a wrong, once the wrong has been done.\nIt is my feeling that we should take this opportunity to clearly express a sound position on this important question. We should recognize the right of privacy by more than lip service. We should limit and define the privilege accorded the press .and radio to invade this right of individual privacy here in Iowa. It must be done sometime. This is not-a new thought, for in Prosser on Torts, 2d Ed., pages 643, 644, we find the following statement:\n“Again the privilege is not unlimited, but the line is a most difficult one to draw. The cases in which the privilege has been found to be exceeded have involved outrageous methods such as the theft of a photograph, or extreme catering to the- morbid and the sensational, such as the publication of the picture of the *830plaintiff’s dead deformed child, # * *. The best statement that can be made is that the distinction probably is that found in other cases of the intentional infliction of mental suffering, between conduct which outrages the common decencies and goes beyond what the public mores will tolerate, and that which the plaintiff must be expected under the circumstances to endure.” (Emphasis supplied.)\nClearly, then, the privilege of the publisher is not absolute. But because the line is difficult to draw, we should not try to avoid it this way. We are constantly called upon to draw distinctions just as difficult, and we try to do so for the benefit of bench and bar. I would reverse this judgment and order the trial court to at least hear and see the evidence before determining, under such guidance as we can provide at this time, whether or not as a matter of law defendant did breach the privilege to invade plaintiffs’ right of privacy extended to it under these circumstances.\nBliss and Hays, JJ., join in this dissent.\n", "ocr": false, "opinion_id": 9581873 } ]

[ "629 F.2d 817" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/629/629.F2d.817.80-7197.1234.html", "author_id": null, "opinion_text": "629 F.2d 817\n William YARETSKY, Ralph Cuevas, and The Gray Panthers, NewYork Chapter, Plaintiffs-Appellees,andMary Foley, Rae Wolper, Rose Shulman, Bessie Rossoff,Pauline Ashkenazy, Sadie Birenzweig, Martha Zahl, EdnaKolman, James Lundy, and Philomena Latona Lundy, on behalfof themselves and all others similarly situated,Plaintiffs-Intervenors-Appellants,v.Barbara BLUM, Individually and as Acting Commissioner of theNew York State Department of Social Services; Robert Whalen,M. D., Individually and as Commissioner of the New YorkState Department of Health, Defendants-Appellants.\n No. 1234, Docket 80-7197.\n United States Court of Appeals,Second Circuit.\n Argued June 11, 1980.Decided Aug. 25, 1980.\n \n John E. Kirklin, Director of Litigation Civil Appeals &amp; Law Reform Unit, The Legal Aid Soc., New York City (David Goldfarb, The Legal Aid Soc., New York City, N. Y. and Charles Robert, Hempstead, N. Y., of counsel), for plaintiffs-appellees.\n David R. Ferguson and Kenneth A. Thomas, Asst. Attys. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, George D. Zuckerman, Asst. Sol. Gen., New York City, of counsel), for defendants-appellants.\n Before LUMBARD and MANSFIELD, Circuit Judges, and MEHRTENS, District Judge.*\n LUMBARD, Circuit Judge:\n \n \n 1\n Plaintiffs, certified by the district court as that class of persons receiving New York State Medicaid assistance who are residents of nursing homes, were granted a permanent injunction by the District Court for the Southern District, Motley, J., enjoining state authorities and nursing homes from discharging or transferring patients to a different level of care without certain procedural safeguards intended to supplement residents' existing state statutory right to a hearing.1 Also at issue is the district court's permanent injunction forbidding state officials from reversing a hearing officer decision favorable to a plaintiff class member without having considered the full transcript of the hearing, and the district court's refusal to order the Department of Health, Education and Welfare (\"HEW\") joined as a party. We affirm the permanent injunction with respect to the due process rights of patients subject to transfer, with some modification; we vacate the district court's injunction with regard to reversals of hearing officer determinations; and we affirm the district court with respect to its refusal to order joinder of HEW.\n \n \n 2\n In the past two decades, government has taken responsibility for caring for the medical needs of the elderly. One result of this has been the creation of a system of nursing homes, owned and run by private individuals or charitable organizations, whose population is made up largely of elderly recipients of state and federal assistance. Nursing homes are classified into two types: skilled nursing facilities (SNF's), and health related facilities (HRF's).2 The latter provide a lower level of care than the former.\n \n \n 3\n Through HEW regulations, the federal government mandates a procedure called Utilization Review (UR), a kind of patient audit meant to insure that patients are not kept in SNF's longer than necessary, or in any facility when they no longer need medical attention or custodial care. The regulations provide that decisions on such matters are to be made by a Utilization Review Committee (URC), made up, in part, of physicians not financially interested in the affairs of the particular nursing home.\n \n \n 4\n When a patient is transferred from one level of care to another, the State Medicaid authorities review his status and reduce or increase his benefits accordingly and the parties agree that reimbursement rates are \"ordinarily\" lower for HRF's than for SNF's. A decision to reduce or terminate a patient's Medicaid benefits triggers a federal right (under 42 U.S.C. &#167; 1396a(a)(3) and 45 C.F.R. &#167; 205.10) to a hearing, provided by the state. Plaintiffs claimed in this case that the bare right to such a hearing did not meet the requirements of due process in part because of inherent shortcomings and in part because of the manner in which the state has performed its duty to provide such hearings. In particular the district court found that patients were not given effective written notice of their hearing rights and were not given sufficient access to their medical files to enable them effectively to challenge the transfer decision.\n \n \n 5\n In an earlier appeal, we affirmed, insofar as appealed from, a preliminary injunction granted by the district court ordering certain additional procedural due process safeguards with regard to nursing home transfers, prohibiting the state from delegating to nursing homes the responsibility for notifying patients of their hearing rights, and prohibiting the state from not disclosing to the patient medical information deemed harmful to a patient. Yaretsky v. Blum, 592 F.2d 65 (2d Cir. 1979).\n \n \n 6\n Before the injunction was made permanent, the parties entered into a consent judgment which embodied most of the procedural safeguards sought by plaintiffs with respect to patient transfers. The consent judgment spelled out the right of the patient or his representative to receive timely notice of the intended transfer; guaranteed the opportunity to have access to all documents in his medical file; made the patient's voluntary permission a prerequisite to transfer; and required that the hearing officer consider a \"psychosocial\" evaluation of the effect of transfer on the patient.\n \n \n 7\n The consent judgment left several issues of the law to be decided by the district court: (1) are due process protections required (a) when a patient is transferred from a lower to a higher level of care, whether the transfer is initiated by a URC or not, and (b) when a patient transfer to a lower level of care is not initiated by a URC; and (2) are state administrative agency decision-makers required by due process or state law to read a verbatim transcript of the hearing before reversing a hearing officer's determination favorable to a member of the plaintiff class?\n \n \n 8\n The district court found that patients are entitled to due process when transferred from a lower level of care to a higher one, and when a transfer is initiated by someone other than a URC. We agree because we think such transfers involve state action affecting constitutionally protected property and liberty interests.\n \n \n 9\n The Supreme Court has not defined the limits of state action, but it has supplied the following, somewhat sibylline formula: \"the existence of 'state action' depends on 'whether there is a sufficiently close nexus between the State and challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.' \" Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 453, 42 L. Ed. 2d 477 (1974), quoted in Schlein v. Milford Hospital, Inc., 561 F.2d 427, 428 (2d Cir. 1977). In Jackson, the inaction of a state regulatory commission in failing to veto a clause in a utility's tariff was found insufficient to be state action. In Schlein, the action of a private hospital in rejecting a physician's application for staff privileges was held not to be state action.\n \n \n 10\n In the case at bar, however, the state takes a less passive role and responds to the \"action\" of the \"regulated entity\". When a nursing home moves a patient from an SNF to an HRF, or when a patient is moved by either the nursing home or a URC to an SNF from an HRF, the state Medicaid authorities adjust the patient's benefits. The state has, in essence, delegated a decision to increase or reduce a public assistance recipient's benefits to a \"private\" party; but such a delegation cannot prevent due process guarantees from attaching. In Yaretsky v. Blum, supra at 67, we held that the state cannot delegate its due process duty to notify patients of their rights to a hearing.\n \n \n 11\n Appellants argue that when a patient's private physician initiates a transfer of his patient from one level of care to another that cannot be said to be state action. This argument misses the mark, because we do not base our finding of state action on the character of the nursing home industry as a regulated industry, nor on the function of providing health care for the elderly as a non-delegable duty of the state. A private physician's decision to transfer his patient can have the same result as a nursing home's-an alteration in the patient's benefits. Since that is the nexus required by Jackson v. Metropolitan Edison, and since that exists equally despite the change in identity of the party initiating the transfer, no exception can be made for physician-initiated transfers.\n \n \n 12\n Once it is determined that state action has occurred, the second level of analysis is the identification of a liberty or property interest affected by the state action. In O'Bannon v. Town Court Nursing Home, --- U.S. ----, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980), seven justices agreed that nursing home patients did not enjoy a due process right with respect to a decision by HEW to decertify a nursing home. But the O'Bannon majority also clearly recognized due process protection for Medicaid patients when the withdrawal of \"direct benefits\" under Medicaid programs was involved. --- U.S. at ----, 100 S. Ct. at 2475. These \"direct benefits\" were characterized by the court as those \"essentially financial in character.\" Thus, in this case, when a patient is transferred from an SNF to an HRF, or from either an SNF or HRF to an adult home providing no medical care, or is simply discharged, a clear property right entitled to constitutional protection is affected. Where a patient is transferred to a higher level of care, there is no similar withdrawal of \"essentially financial\" \"direct benefits.\" But appellees argue that a patient's interest in avoiding the effects of \"transfer trauma\" is a constitutionally protected \"liberty interest.\" We agree.\n \n \n 13\n In O'Bannon v. Town Court Nursing Home, the majority assumed that \"transfer trauma\" existed, but reasoned that when such trauma was caused by the action of a third party (i. e., the nursing home) in failing to remain qualified for federal aid, Medicaid recipients did not suffer a \"direct\" enough injury to make it a deprivation of life, liberty or property. --- U.S. at ----, 100 S. Ct. at 2475. We do not believe, however, that O'Bannon forecloses the question whether there is a liberty interest in avoidance of transfer trauma in this case. The majority's distinction between those rights of Medicaid recipients which are protected by due process (\"direct benefits\") and those not so protected (\"indirect benefits), in the context of which the majority's rejection of reliance on transfer trauma as denial of a liberty interest occurs, is prefaced by the important qualification: \"decertification . . . is not the same for purposes of due process analysis as a decision to transfer a particular patient . . . .\" --- U.S. at ----, 100 S. Ct. at 2475. Moreover, O'Bannon was not decided on the basis of a record that included much detailed information about the existence of transfer trauma, see --- U.S. at ----, n. 10, 100 S. Ct. at 2484 (Blackmun, J., concurring in the judgment), although one justice, relying on extra-record studies, was convinced that the medical evidence was \"inconclusive.\" --- U.S. at ----, 100 S. Ct. at 2484 (Blackmun, J., concurring in the judgment). We note that the record in this case contains ample evidence that transfer of elderly patients, even when it does not pose an increased risk of mortality, carries with it the undeniable possibility of emotional and psychological harm-at least in the case of many individuals. To us this does not seem any less a \"liberty interest\" than a prison inmate's interest in not being transferred from a penitentiary to a psychiatric hospital; which interest was accorded constitutional protection in Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980).\n \n \n 14\n Having found that state action and a constitutionally cognizable liberty or property interest exists, it follows that the plaintiffs are entitled to due process. But the question of what process is due them requires further consideration, particularly where, as here, plaintiffs are already given, by statute, the right to a hearing. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), requires a balancing of private interest, risk of erroneous decision, and administrative burdens in formulating the procedural protection required to satisfy due process. We are persuaded that the contours of the relief fashioned by the district court represent an appropriate balancing of the interests recognized in Mathews. In essence, the injunction confirms those due process protections already conferred on Medicaid patients by the language of federal and state statutes and regulations already on the books. Under such circumstances, and absent any argument by appellants that the scope of the remedy is too broad, we affirm the district court's injunction under Mathews.3\n \n \n 15\n Appellants also argue that the district court's refusal to order an appearance by HEW in this case was an abuse of discretion. Since New York State's eligibility for federal funds reimbursing many of the costs of its Medicaid program depends on HEW's determination that state procedures comply with federal regulations, appellants argue that implementation of the court's injunction may jeopardize New York's approved status. Given such a threat, they argue, HEW should have been brought into the case. Whatever the desirability of such participation, see Yaretsky v. Blum, supra at 70 (Lumbard, J., concurring in part, dissenting in part), we cannot say that the district court abused its discretion. Present in the record in this case is a letter from HEW acknowledging that the post-injunction state of affairs poses no compliance problem for HEW. However, we think it best to modify the injunction to include a provision that if at any time in the future HEW determines that the procedures mandated by this injunction make New York State wholly or partially ineligible for Medicaid reimbursement funds, upon application, the district court shall vacate the injunction.\n \n \n 16\n Finally we reach the question of the district court's decision that a decision-maker's failure to rely on hearing transcripts violates the Fourteenth Amendment of the United States Constitution and New York law. We hold that neither the Constitution nor New York law requires the administrative decision-maker in an appeal from a hearing officer recommendation to read (or listen to) the entire transcript (or tape recording) of the hearing before issuing an administratively final decision, whether favorable or adverse to the claimant. Accordingly, we vacate the district court's injunction insofar as it affected the state's administrative practice in this regard.\n \n \n 17\n Patients about to be transferred have the right, under federal statute and regulations, 42 U.S.C. &#167; 1396a(a)(3) and 45 C.F.R. &#167; 205.10, to a \"fair hearing\" provided by the state. This hearing is conducted by a hearing examiner who listens to the testimony, prepares a summary, and makes a recommendation to the Commissioner. Although the parties sharply disagree as to whether or not the hearing officer is empowered to make findings of fact, we do not find that issue controlling and do not decide it. The parties agree that the stenographic or electronic transcript of the hearing is sent to the Department of Social Services in Albany, and that the Commissioner's designees who are responsible for deciding the case do not listen to a tape of the hearing, and that no transcript of the hearing is made prior to their decision. (The chief purpose of the state statutory requirement that a complete electronic or stenographic record of the hearing be kept appears to be to allow judicial review in a proceeding under N.Y.C.P.L.R. Article 78.) The Commissioner's designees follow a set of ten detailed criteria in deciding whether to approve or disapprove the hearing officer's recommendation. If he feels the need, the designee may consult the electronic or stenographic record, but the parties agree that state policy does not require the designee to do so.\n \n \n 18\n We believe that, insofar as federal law is concerned, this issue is governed by National Nutritional Foods Assoc. v. FDA, 491 F.2d 1141 (2d Cir. 1974). In National Nutritional, an FDA regulation was challenged on the ground that the Commissioner who signed the order involved could not possibly have reviewed and considered objections to the proposed rule because of their volume during the short period he had been in office at the time he approved the regulation. Like appellees in this case, petitioners in National Nutritional relied on Morgan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288 (1936) (Morgan I), which contains the familiar phrase \"The one who decides must hear.\" Id. at 481, 56 S.Ct. at 912. But, as Judge Friendly's opinion in National Nutritional observes, \"the life of this aspect of Morgan I was extremely brief. In Morgan IV (United States v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L. Ed. 1429 (1941)) Mr. Justice Frankfurter, writing for a Court unanimous on this point, took back most or all of what the first decision had given.\" 491 F.2d at 1144.\n \n \n 19\n Even the Morgan I case cannot be said to go as far as appellees would argue. As Professor Kenneth Culp Davis has written:\n \n \n 20\n Since the only purpose of sifting and analyzing of evidence by subordinates is to save the time of the deciding officers, this necessarily means that deciding officers may \"consider and appraise\" the evidence by reading a summary or analysis prepared by subordinates. The Supreme Court thus did not require in the First Morgan case that deciding officers must read all the evidence or even that they must directly read any of it. The requirement has to do with personal understanding of the evidence, not with the mechanics by which the understanding is developed. In common practice, deciding officers develop their understanding of evidence not only through reports of subordinates but especially through summaries and explanations in briefs. . . .\n \n \n 21\n 2 Davis, Administrative Law &#167; 11.03 at 44-45 (1958) (footnotes omitted). See also Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976) (no violation of due process when decision-making body voted on appeal from an administrative adjudication without reading the transcript, relying on summary report).\n \n \n 22\n Under Morgan IV and National Nutritional,4 an administrative official to whom a decision has been delegated is immune from judicial inquiry \"as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination.\"5 National Nutritional, supra, 491 F.2d at 1145, quoting DeCambra v. Rogers, 189 U.S. 119, 122, 23 S. Ct. 519, 520, 47 L. Ed. 734 (1903). The reasons for this rule derive from the extended, complex nature of the administrative decision-making process, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 422-23, 91 S. Ct. 814, 826-827, 28 L. Ed. 2d 136 (1971) (Blackmun, J., concurring), the difficulty of seeing into the decision-maker's mind, and the enormous volume of administrative decisions which must be made each year. Although, for example, only about 600 appeals from nursing home transfer cases are decided each year in New York State, approximately 68,000 appeals in welfare benefit adjustment cases must be decided in the same period in New York. Such a large administrative burden is an important factor in determining what kind of due process protection must be accorded the subjects of administrative decision-making. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).6\n \n \n 23\n Appellees also argue that New York law prohibits the administrative practice at issue, citing LaValle v. Blum, 67 A.D.2d 708, 412 N.Y.S.2d 640 (App.Div.2d Dept.1979), Anderson v. Toia, 59 A.D.2d 1024, 399 N.Y.S.2d 763 (App.Div.4th Dept.1977), Halley v. Lavine, 47 A.D.2d 945, 306 N.Y.S.2d 415 (2d Dept.1975), Cruz v. Lavine, 45 A.D.2d 720, 356 N.Y.S.2d 334 (App.Div.2d Dept.1974). Some of these intermediate appellate memorandum opinions are distinguishable on their facts; for example, in Anderson, supra, the fatal defect in administrative procedure seems to have been the fact that \"the recording tape ran out\" during the recording of the hearing, rather than that the agency decision-maker failed to listen to the tape. And LaValle v. Blum, supra, is most fairly read as standing for the principle that where an agency determination rests on certain facts which are incorrect and which can be found in correct form in a transcript unread by a decision-maker, a court will grant relief under N.Y.C.P.L.R. Art. 78. But Halley v. Lavine, supra, does unequivocally hold that administrative decision-makers must hear or read verbatim transcripts or recordings of fair hearings. Accord, Cruz v. Lavine, supra. Whether these memorandum decisions represent a developing trend among New York's intermediate appellate courts is something the future will reveal.\n \n \n 24\n Appellants argue that controlling decisions of the New York Court of Appeals unequivocally show that there is no state law requirement that decision-makers read transcripts, whatever the status of lower court decisions possibly in conflict with the Court of Appeals cases. The first of these cases, Matter of Weekes v. O'Connell, 304 N.Y. 259, 107 N.E.2d 290 (Ct.App.1952), offers little support to appellants. In Weekes, the State Liquor Authority adopted and affirmed a hearing officer's decision in a license revocation case within an hour of the conclusion of the hearing, before the hearing had been transcribed. The Court of Appeals, in an opinion by Chief Judge Fuld, held the Authority's decision invalid seven years later, however, in Matter of Taub v. Pirnie, 3 N.Y.2d 188, 165 N.Y.S.2d 1, 144 N.E.2d 3 (Ct.App.1957), the Court of Appeals, again in an opinion by Chief Judge Fuld, limited Weekes' significance. Taub involved a challenge to a decision by a Zoning Appeals board based on the fact that one member of the board had voted without reading a transcript of the hearing held in the case. Judge Fuld wrote:\n \n \n 25\n Courts, we have said, will not \" 'probe the mental process' \" of the members of an administrative tribunal. Absent a showing, \"clearly reveal(ed),\" that \"they made no independent appraisal and reached no independent conclusion,\" we will not disturb the decision. As we wrote in the Weekes case, \"the extent to which independent study of the evidence in the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the commissioners themselves\". . . .\n \n \n 26\n 3 N.Y.2d at 193-94, 165 N.Y.S.2d at 4, 144 N.E.2d at 5.\n \n \n 27\n In the Court of Appeals' most recent case in this series, Matter of Wallace v. Murphy, 21 N.Y.2d 433, 288 N.Y.S.2d 487, 235 N.E.2d 759 (Ct.App.1968), involving disciplinary action against a police officer, the Court reiterated its adherence to the Taub doctrine that what is required by law (absent specific statutory provisions requiring more) is only an informed decision, and confirmed Taub's interpretation of Weekes as resting on the Liquor Authority's violation of its own rules and regulations. Id. at 438, 288 N.Y.S.2d 487, 235 N.E.2d 759. Wallace further held that where state law requires a full transcript to be made, that transcript must be \"available\" to the decision-maker. But Wallace does not hold, and we think the implication is fair that it holds to the contrary, that the decision-maker must take advantage of the transcript's availability in any manner more specific than that required to satisfy Taub's mandate of an exercise of \"informed judgment\".\n \n \n 28\n The Department of Social Services' present practices, as the parties have stipulated, clearly comport with state law requirements that administrative decision-making be an exercise of \"informed judgment.\" The use of the detailed criteria followed by the Department indicate that the decision-maker does much more than rubber-stamp the hearing officer recommendation, and his reliance on summaries and other material prepared by the hearing officer satisfies the state law requirement that his judgment be informed. Moreover, it is clear that Wallace's requirement that where transcripts exist they be available to the decision-maker is satisfied by the Department's practices. The parties have agreed that the electronic recordings of the hearings are forwarded to the Department in Albany, where the decision-maker works. The Department's policy is to have its decision-makers review the electronic transcript only if they feel it would be useful. This practice establishes that the decision-makers have the transcripts \"available\" in the sense required by Wallace.\n \n \n 29\n Accordingly, we reject appellees' argument that state law requires administrative decision-makers to read or listen to complete transcriptions or recordings of hearings before reversing hearing officer recommendations favorable to recipients of benefits conferred by the state.\n \n \n 30\n Affirmed in part, vacated in part, and modified.\n \n \n \n *\n Pursuant to &#167; 0.14 of the Rules of this Court, this appeal is being determined by Judges Lumbard and Mansfield, who are in agreement on this opinion. Judge Mehrtens, Senior District Judge for the Southern District of Florida who was designated to sit on this case and who heard the argument, unfortunately died on July 16, 1980. Although he concurred in the disposition of this case, prior to his death he did not have the opportunity to see this opinion\n \n \n 1\n At the evidentiary hearing, the patient can challenge his transfer on various substantive grounds derived from state and federal statute and regulations. The most important of these substantive grounds is that his transfer be for \"medical reasons\"\n \n \n 2\n At the time this case was tried, there were approximately 95,000 nursing home beds in New York state, including approximately 68,000 SNF beds and 27,000 HRF beds. There were 611 nursing homes in the state, of which 291 were SNF's, 30 were HRF's, and 290 were combination SNF-HRF's\n \n \n 3\n We note that the October 17, 1979 partial final judgment embodying the parties' consent agreement contains procedural protections for patients subject to UR-initiated transfer considerably more extensive than those granted to patients subject to non-UR transfer under the partial final judgment of February 19, 1980. Only the latter has been appealed, and thus we have no occasion to deal with whether or not the protections embodied in the October 17 stipulations are required by due process or satisfy the principles of Mathews v. Eldridge, supra\n \n \n 4\n In National Nutritional, our opinion emphasized that the \"presumption of regularity\" in the actions of administrative decision-makers is especially appropriate \"in the context of the promulgation of legislative rules as distinguished from adjudication,\" 491 F.2d at 1145. The resolution of appeals in nursing home transfer cases is, of course, administrative action of an adjudicative rather than rulemaking type. We see, however, no reason for adopting a different rule in the adjudicative context. Under Mathews v. Eldridge, supra, the administrative burden on the state may be given weight in determining the boundaries of due process protection in both adjudicative and rule-making proceedings; indeed, Mathews itself involved an adjudication. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976) also involved an adjudication\n \n \n 5\n An exception to this general principle exists where there is a showing of misconduct on the part of the agency. See, e. g., Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 206-08 (4th Cir. 1964)\n \n \n 6\n Appellees rely also on Ostrowski v. City of New York, 601 F.2d 629 (2d Cir. 1979), which involved a due process challenge to the decision-making procedures used by the Department of Sanitation in disciplinary cases. But the remarks we made concerning federal due proces issues raised by the Department's practices in Ostrowski were dictum, since the case was remanded for findings on state law issues. In any event, as the Ostrowski opinion notes, the decision-maker in that case \"did not have a complete record of the hearing.\" Id. at 631. As noted above, the decision-makers in nursing home transfer cases have available to them the complete record of the hearing\n \n \n ", "ocr": false, "opinion_id": 381885 } ]

[ "635 P.2d 394", "54 Or. App. 474" ]

[ { "author_str": "Richardson", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n635 P.2d 394 (1981)\n54 Or.App. 474\nRobert G. RIDDLE, Appellant,\nv.\nMilo Ladean CAIN, Respondent.\nNo. 874-8; CA 17353.\nCourt of Appeals of Oregon.\nArgued and Submitted August 17, 1981.\nDecided November 2, 1981.\nReconsideration Denied December 10, 1981.\nRobert H. Grant, Medford, argued the cause for appellant. With him on the brief was Grant, Ferguson &amp; Carter, Medford.\nJohn W. Eads, Jr., Medford, argued the cause for respondent. With him on the brief was Frohnmayer, Deatherage, deSchweinitz &amp; Eads, Medford.\nBefore RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.\nRICHARDSON, Presiding Judge.\nPlaintiff appeals from a summary judgment for defendant in this action arising out of a vehicle accident. Defendant was an employe of Lake County acting in the course of his employment at the time of the accident. The trial court granted summary judgment on the ground that plaintiff did not comply with the Oregon Tort Claims Act notice requirement. ORS 30.275(1). We affirm.\nThe accident occurred in February, 1978. Plaintiff alleges that he delivered a notice in the form required by ORS 30.275(1) to an adjuster for the county's insurer and to the County Road Supervisor. Plaintiff does not contend that he presented a notice to the county clerk or that his notice was ever received by the county clerk.\nAt the relevant time, ORS 30.275(1) provided:\n\"Every person who claims damages from a public body or from an officer, employe or agent of a public body acting within the scope of his employment or *395 duties for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, the name of the claimant and his representative or attorney, if any, and the amount of compensation or other relief demanded. Claims against the State of Oregon or a state officer, employe or agent shall be presented to the Attorney General. Claims against any local public body or an officer, employe or agent thereof shall be presented to a person upon whom process could be served upon the public body in accordance with subsection (3) of ORS 15.080. Notice of claim shall be served upon the Attorney General or local public body's representative for service of process either personally or by certified mail, return receipt requested. A notice of claim which does not contain the information required by this subsection, or which is presented in any other manner than herein provided, is invalid, except that failure to state the amount of compensation or other relief demanded does not invalidate the notice.\"\nUnder former ORS 15.080(3), a summons in an action against a county was required to be served on the county clerk.\nPlaintiff argues that he substantially complied with ORS 30.275(1) by delivering his notice to the insurance company's adjuster, because all tort claims against the county were processed by the insurer and the county was precluded by the insurance policy from independently making payments or assuming obligations in connection with claims. Therefore, according to plaintiff, he presented the notice of his claim to the person who was in fact responsible for acting on it, so a notice to the county clerk was not required.\nIn Brown v. Portland School Dist. # 1, 291 Or. 77, 628 P.2d 1183 (1981), the plaintiff contended that, although the statute requires that a notice of a claim be mailed by certified mail, his sending notices to the clerks of the defendant public bodies by regular mail, coupled with the clerks' actual receipt of the notices, constituted substantial compliance with ORS 30.275(1). A plurality of the Supreme Court agreed and stated:\n\"To achieve the Act's purpose of prompt notice to public bodies, notice of claims must be timely received by the correct official. The amended statute describes the manner in which notice is to be given, but its purpose is to bar claims where proper notice is not received by the proper official. That purpose allows for substantial compliance with the notice requirements, but the margin for divergence from strict compliance is narrow.\n\"* * *\n\"Thus, we hold that where the notice required by ORS 30.275(1) is actually received by the statutorily designated official, the statute has been substantially complied with and the notice of claim is valid. Because plaintiff's allegations that proper notice was received by defendants and processed and investigated as tort claims are amenable to proof that proper notice was actually received by the correct officials, we hold that he has sufficiently pled substantial compliance with the notice requirement.\" (Emphasis added.) 291 Or. at 82-83, 628 P.2d 1183.\nSee also, Dowers Farms v. Lake County, 288 Or. 669, 684-86, 607 P.2d 1361 (1980).\nThe quoted language from Brown contradicts plaintiff's argument that he substantially complied with ORS 30.275(1). He did not present his notice to the correct official, and the notice was not actually received by that official.[1] Plaintiff is not assisted by *396 his argument that the insurance adjuster rather than the county clerk and the insurance company rather than the county's governing body were effectively responsible for processing his claim. The county's authority to buy insurance and the insurer's role in settling claims have nothing to do with the notice requirement of the Tort Claims Act. Whatever the legislature's purpose was in designating the county clerk as a recipient of notices under ORS 30.275(1), it clearly was not because the clerk has any authority to investigate, settle or defend against claims. See ORS 205.110 et seq.\nPlaintiff also argues that, if his notice does not satisfy the requirements of ORS 30.275(1), the statute is arbitrary and capricious and violates his due process rights. Plaintiff reasons:\n\"ORS 30.275(1) in respect to invalidating all notices of claims which are presented in a manner not specified in the section is detrimental to the general welfare of society in that it deprives a person who has been injured by a governmental body of the right to give notice in some reasonable manner, even though the governmental body has in fact acquired actual notice of the claim.\n\"* * *\n\"It is not argued that the entire statute is unconstitutional as being unreasonable or capricious, as there is a rational basis for requiring a party with a potential tort claim to provide the governmental body with notice of the claim. However, where the specific requirements of notice become purely irrational and have no real and substantial relationship to the end which is providing the governmental body with notice, the provision of the statute is unconstitutional.\n\"* * *\n\"* * * [T]he invalidation of claims provision of ORS 30.275(1) is clearly contrary to the Act and, therefore, is irrational, arbitrary, has no real and substantial relationship to the purpose of the Act, does not promote the general welfare and is unconstitutional.\"\nPlaintiff acknowledges that the legislature did not exceed constitutional limits by requiring the presentation of some kind of tort claim notice. There is no reason why the statutory specification of the officer to whom a notice must be presented to be effective is beyond the legislature's constitutional authority.\nThe summary judgment was properly granted.[2]\nAffirmed.\nNOTES\n[1] As in this case, ORS 30.275(1), as last amended by Oregon Laws 1977, chapter 823, section 3, was applicable in Brown. The statute was subsequently amended by Oregon Laws 1979, chapter 284, section 64, and by Oregon Laws 1981, chapter 350, section 1. The 1981 amendment takes effect on January 1, 1982.\n\nThe plurality opinion in Brown represented the views of three of the court's members. A fourth member concurred in the result for different reasons. Dissenting opinions, representing the views of three members of the court, asserted that the statute required strict compliance. Under the plurality opinion in Brown, the presentation of the notice in this case does not substantially comply with ORS 30.275(1). The presentation of course did not strictly comply with the statute and, therefore, would also have been considered insufficient by the judges who dissented in Brown.\n[2] Plaintiff does not argue that the county's or the insurer's course of conduct gave rise to a waiver of the notice requirement or an estoppel to assert it. See Brown v. Portland School Dist. # 1, 291 Or. 77, 83, n. 4, 628 P.2d 1183 (1981), and the specially concurring opinion of Tongue, J., 291 Or. at 85, 628 P.2d 1183.\n\n", "ocr": false, "opinion_id": 1188713 } ]

[ "104 P.3d 1158", "197 Or. App. 134" ]

[ { "author_str": "Ortega", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 8195, "opinion_text": "\n104 P.3d 1158 (2005)\n197 Or. App. 134\nPatricia DELCASTILLO, Appellant,\nv.\nLarry Alfred NORRIS, Sr., Respondent.\n012284; A121442.\nCourt of Appeals of Oregon.\nArgued and Submitted September 23, 2004.\nDecided January 19, 2005.\n*1159 Stephen C. Hendricks, Portland, argued the cause for appellant. On the opening brief were Paul G. Ellis and Hendricks Law Firm, P.C. On the reply brief were Stephen C. Hendricks and Hendricks Law Firm, P.C.\nLisa E. Lear, Portland, argued the cause for respondent. With her on the brief were David R. Foster, Gretchen Mandekor, and Bullivant Houser Bailey PC.\nBefore HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.\nORTEGA, J.\nPlaintiff in this personal injury action appeals after a jury verdict in her favor awarding economic damages of $5,491.22 and noneconomic damages of $1,500.00. Plaintiff argues, among other things, that the trial court erred in compelling a medical examination pursuant to ORCP 44 and in awarding only costs originating prior to defendant's offer of judgment. We affirm.\nPlaintiff was injured in an automobile accident with defendant, for which defendant admitted liability. Plaintiff claimed \"severe and permanent personal injuries\" as a result of the accident, \"including tearing and stretching of the muscles, ligaments and nerves of her back, hip, arms, shoulders, head and neck.\" Defendant denied that plaintiff suffered damages to the extent that she claimed, and a jury trial ensued on the issue of damages.\nBefore trial, defendant moved to compel plaintiff, pursuant to ORCP 44, to undergo a medical examination with an orthopedist and a psychiatrist. Defendant stated that a medical examination was needed because plaintiff's physical and mental condition was at issue and because plaintiff claimed that her strain injuries had not been resolved. During her deposition, taken more than 18 months after the accident, plaintiff testified that she still had pain in her left arm, shoulder, leg, and hip, as well as in her back, neck, and head. Plaintiff also testified that she suffered from dizziness, balance and memory problems, and depression as a result of the accident. Plaintiff's physician diagnosed her with \"adjustment disorder with a prolonged post-traumatic component\" and directed her to seek counseling. In his motion to compel a medical examination, defendant argued, \"Plaintiff is claiming ongoing muscle pain and depression as a result of the accident. Plaintiff's mental and physical condition is in controversy and good cause exists for the [medical examination that] defendant seeks.\"\nPlaintiff objected that defendant had not shown \"good cause\" and moved to restrict the examination. The trial court granted defendant's motion to compel the examination, finding that \"a controversy exists regarding plaintiff's physical and mental condition\" and \"that plaintiff has ongoing physical and mental complaints.\" The court stated, \"As a matter of law, plaintiff's ongoing condition constitutes sufficient just cause for a compelled medical examination under ORCP 44.\" Plaintiff unsuccessfully petitioned the Supreme Court for an alternative writ of mandamus challenging the action of the trial court. Plaintiff underwent the medical examination, and the orthopedist ultimately testified for the defense at trial.\nBefore trial, defendant filed an ORCP 54 E offer of judgment in the amount of $8,950, inclusive of Personal Injury Protection (PIP) benefits, costs, and disbursements. Plaintiff rejected the offer. Because the entire judgment *1160 would have gone to reimburse plaintiff's PIP lien[1] pursuant to ORS 742.536,[2] plaintiff personally would have retained nothing from the offer of judgment.\nAfter a three-day trial, the jury returned a verdict in favor of plaintiff awarding $6,991.22: $5,491.22 in economic damages and $1,500.00 in noneconomic damages. That resulted in an in-pocket recovery for plaintiff of $1,500.00 because only the $5,491.22 in economic damages went toward reimbursing plaintiff's PIP lien. The trial court awarded plaintiff costs of $197, which did not include costs incurred after the date of defendant's ORCP 54 E offer, because plaintiff failed to obtain \"a more favorable judgment\" at trial than she would have received if she had accepted defendant's offer. ORCP 54 E provides:\n\"[T]he party against whom a claim is asserted may, at any time up to 10 days prior to trial, serve upon the party asserting the claim an offer to allow judgment to be given against the party making the offer for the sum * * * therein specified. * * * If the offer is not accepted and * * * if the party asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer * * *.\"\n(Emphasis added.)\nOn appeal, plaintiff raises four assignments of error. We write to discuss two of them and reject the others without discussion. First, plaintiff argues that the trial court erred in granting defendant's motion to compel the medical examination because he did not show good cause. Second, plaintiff argues that the trial court erred in limiting her cost award to costs incurred before the date of defendant's ORCP 54 E offer. Plaintiff contends that, in determining whether she received \"a more favorable judgment\" at trial pursuant to that rule, the court should have examined the \"reality of what a party would actually receive under either the offer or the trial result.\" Instead, the trial court compared the gross dollar amounts of the offer and the award, $8,950.00 and $6,991.22, respectively, to determine that the offer of judgment was greater and, thus, more favorable.\nWe first address whether the trial court, pursuant to ORCP 44 A, properly compelled plaintiff to submit to a medical examination. ORCP 44 A provides that the court may order a party to submit to a physical *1161 examination under certain circumstances.[3] Thus, the ultimate decision to order such an examination is discretionary, and we review that decision accordingly. Such discretion may be exercised if (1) the physical condition of a party is \"in controversy,\" (2) the order is made \"on motion for good cause shown,\" and (3) proper notice is given to the person to be examined and to all of the parties. ORCP 44 A. Establishment of the existence of those factors may involve findings of fact or law, which must be reviewed under the applicable standard of review for such findings. Compare State v. Ervin, 193 Or.App. 41, 45, 88 P.3d 296 (2004) (applying similar two-step standard of review to exclusion of evidence under OEC 403); Evans v. Brentmar, 186 Or.App. 261, 265, 62 P.3d 847, rev. den., 336 Or. 60, 77 P.3d 635 (2003) (same as to review of a motion to set aside a default judgment under ORCP 69 A(1)). Here, plaintiff argues that defendant failed both to show \"good cause\" for the examination and to give proper notice of the examination. Because plaintiff failed to preserve her notice argument, we address only whether defendant showed \"good cause\" for the examination, and review the trial court's conclusion that good cause existed as a matter of law.\nORCP 44 A does not define \"good cause.\" To determine the meaning of a statutory term, the court first examines the text and context of the statute. If the meaning is unclear from the text and context, the court then looks to legislative history and, if the meaning is still unclear, to general maxims of statutory construction. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).\nWebster's Third New Int'l Dictionary 978 (unabridged ed. 2002) defines \"good cause\" as \"a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable man under all the circumstances.\" This definition leaves no ambiguity about the meaning of \"good cause,\" a meaning that is in accordance with the longstanding principle that courts may require a physical examination if it appears to promote the \"ends of justice.\" See Dorn v. Wilmarth, 254 Or. 236, 239, 458 P.2d 942 (1969) (trial courts have inherent power to require physical examinations whenever it appears that the \"ends of justice\" would be promoted by doing so). Enhanced by that definition, ORCP 44 A allows the court to exercise its discretion to order a physical examination for a cause or reason based on equity or justice or one that would motivate a reasonable person under all the circumstances. ORCP 44 A; Webster's at 978. A reasonable person under these circumstances could be motivated to order a medical examination where, as here, a plaintiff has asserted unresolved medical complaints. Although the trial court was not obligated to grant defendant's motion, it acted within its discretion in doing so.\nNext we examine whether plaintiff received \"a more favorable judgment\" than defendant's settlement offer before trial. We examine the trial court's construction of ORCP 54 E for errors of law. Wade v. Mahler, 167 Or.App. 350, 352, 1 P.3d 485, rev. den., 331 Or. 334, 23 P.3d 986 (2000).\nIf a plaintiff fails to obtain a judgment at trial \"more favorable\" than a settlement offer, the plaintiff is entitled only to costs incurred up to the time the offer was made. ORCP 54 E. The trial court concluded that, because the jury's verdict ($6,991.22) was less than the offer of judgment ($8,950.00), the offer of judgment was more *1162 favorable and, thus, operated to cut off plaintiff's entitlement to costs incurred after the date of that offer. Plaintiff argues that, because the entire offer of judgment amount would have been used to offset her PIP lien and she was able to retain $1,500.00 in noneconomic damages awarded by the jury, the result at trial was \"more favorable\" to her than was the offer of judgment, even though the total amount was less.\nWe reject that argument, which rests on the faulty premise that a PIP reimbursement reduces the judgment amount. As we have stated elsewhere, PIP reimbursements \"do not reduce the verdict award but satisfy the judgment entered on that verdict.\" Wade, 167 Or.App. at 358, 1 P.3d 485 (emphasis in original).\nLikewise, in Quality Contractors, Inc. v. Jacobsen, 154 Or.App. 343, 349, 963 P.2d 30 (1998), we rejected the notion that a $2,000 offset of a jury award, resulting from an earlier settlement with a codefendant insurance carrier, could be taken into account in determining whether the plaintiff obtained a \"more favorable judgment\" at trial than it would have been obtained if the plaintiff had accepted the defendant's offer of compromise.\nTo accept plaintiff's argument would be to impose on trial courts an obligation to look behind the dollar amount of a judgment to determine its actual benefit to a plaintiff. Such a requirement finds support in neither the language of the rule nor in our case law, which treats the judgment amount as unaffected by offsets (such as PIP reimbursement or settlements) that are not part of resolution of the merits of the action. Moreover, PIP reimbursement under ORS 742.536 occurs at the election of the insurer and is designed to prevent an injured party from receiving double recovery from the PIP insurer and the negligent party's insurer. Kessler v. Weigandt, 68 Or.App. 180, 186, 685 P.2d 425 (1984), aff'd, 299 Or. 38, 699 P.2d 183 (1985). Plaintiff's obligations to her PIP insurer are merely part of her claimed damages; she may not use them to support the amount of judgment she seeks to recover and then subtract them from the amount of her judgment for purposes of ORCP 54 E. See Wade, 167 Or.App. at 358, 1 P.3d 485.\nAccordingly, we determine whether plaintiff received a more favorable judgment by comparing defendant's offer of judgment — $8,950.00, which included costs and disbursements — with plaintiff's award at trial — $6,991.22, plus costs incurred up to the time the offer was made ($197.00). Because $8,950.00 exceeds $7,188.22, the trial court was correct in concluding that plaintiff did not receive \"a more favorable judgment\" at trial under ORCP 54 E.\nAffirmed.\nNOTES\n[1] At the time of the ORCP 54 E offer of judgment, plaintiff's own auto insurance company had made PIP payments of $16,686.19.\n[2] ORS 742.536 provides, in pertinent part:\n\n\"(1) When an authorized motor vehicle liability insurer has furnished personal injury protection benefits, or an authorized health insurer has furnished benefits, for a person injured in a motor vehicle accident, if such injured person makes claim, or institutes legal action, for damages for such injuries against any person, such injured person shall give notice of such claim or legal action to the insurer by personal service or by registered or certified mail. * * *\n\"(2) The insurer may elect to seek reimbursement as provided in this section for benefits it has so furnished, out of any recovery under such claim or legal action, if the insurer has not been a party to an interinsurer reimbursement proceeding with respect to such benefits under ORS 742.534 and is entitled by the terms of its policy to the benefit of this section. The insurer shall give written notice of such election within 30 days from the receipt of notice or knowledge of such claim or legal action to the person making claim or instituting legal action and to the person against whom claim is made or legal action instituted, by personal service or by registered or certified mail. * * *\n\"(3) If the insurer so serves such written notice of election and, where applicable, such return is so filed:\n\"(a) The insurer has a lien against such cause of action for benefits it has so furnished, less the proportion, not to exceed 100 percent, of expenses, costs and attorney fees incurred by the injured person in connection with the recovery that the amount of the lien before such reduction bears to the amount of the recovery.\n\"(b) The injured person shall include as damages in such claim or legal action the benefits so furnished by the insurer.\n\"(c) In the case of a legal action, the action shall be taken in the name of the injured person.\"\n[3] That rule provides:\n\n\"When the mental or physical condition or the blood relationship of a party, or of an agent, employee, or person in the custody or under the legal control of a party (including the spouse of a party in an action to recover for injury to the spouse), is in controversy, the court may order the party to submit to a physical or mental examination by a physician or a mental examination by a psychologist or to produce for examination the person in such party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.\"\n\n", "ocr": false, "opinion_id": 2639942 } ]

[ "900 N.E.2d 1123", "229 Ill. 2d 686" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n900 N.E.2d 1123 (2008)\n229 Ill.2d 686\nPEOPLE\nv.\nORTIZ.\nNo. 107363.\nSupreme Court of Illinois.\nNovember Term, 2008.\nDisposition of petition for leave to appeal.[*] Allowed.\nNOTES\n[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.\n\n", "ocr": false, "opinion_id": 2048321 } ]

[ "999 A.2d 463", "203 N.J. 92" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n999 A.2d 463 (2010)\n203 N.J. 92\nCONWAY\nv.\nBOROUGH OF FLORHAM PARK.\nC-1111 September Term 2009, 065873.\nSupreme Court of New Jersey.\nJuly 12, 2010.\nPetition for Certification Granted.\n", "ocr": false, "opinion_id": 2405106 } ]

[ "337 P.2d 1112" ]

[ { "author_str": "Brett", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5407, "opinion_text": "\n337 P.2d 1112 (1959)\nSteve HIGHERS, Plaintiff in Error,\nv.\nSTATE of Oklahoma, Defendant in Error.\nNo. A-12668.\nCourt of Criminal Appeals of Oklahoma.\nApril 1, 1959.\nGreen, Green, &amp; Green, by J. Fred Green, Sallisaw, Jack Bliss, Tahlequah, for plaintiff in error.\nMac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.\n*1116 BRETT, Judge.\nPlaintiff in error, Steve Highers, defendant below, was charged by indictment in the District Court of Muskogee County, Oklahoma, with the crime of subornation of perjury. He was tried by a jury, convicted, and his punishment fixed at confinement in the state penitentiary for a period of eighteen months. Judgment and sentence were entered accordingly, from which this appeal has been perfected.\nThis appeal is a companion case to Hammers v. State, Okl.Cr., 337 P.2d 1097, decided this same day. The principal contentions *1117 presented herein are the same as decided in Hammers v. State, supra, the indictment here in question being returned by the same grand jury. Therefore, the opinions expressed and the conclusions reached in Hammers v. State, supra, are fully adopted herein. The judgment and sentence is accordingly reversed and remanded.\nPOWELL, P.J., and NIX, J., concur.\n", "ocr": false, "opinion_id": 1213473 } ]

[ "930 F.2d 908" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/930/930.F2d.908.90-1405.html", "author_id": null, "opinion_text": "930 F.2d 908\n U.S.v.Lopez\n NO. 90-1405\n United States Court of Appeals,Second Circuit.\n FEB 01, 1991\n \n 1\n Appeal From: S.D.N.Y.\n \n \n 2\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 559148 } ]

[ "159 P.3d 531", "215 Ariz. 221" ]

[ { "author_str": "Ryan", "per_curiam": false, "type": "010combined", "page_count": 36, "download_url": "http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2007/CR-04-0208-AP.PDF", "author_id": 3723, "opinion_text": "\n159 P.3d 531 (2007)\nSTATE of Arizona, Appellee,\nv.\nJoe Clarence SMITH, Appellant.\nNo. CR-04-0208-AP.\nSupreme Court of Arizona, En Banc.\nMay 31, 2007.\n*535 Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jon G. Anderson, Former Assistant Attorney General, Phoenix, Attorneys for State of Arizona.\nSusan M. Sherwin, Maricopa County Legal Advocate by Kerri L. Chamberlin, Deputy Legal Advocate, Phoenix, Attorneys for Joe Clarence Smith.\n\nOPINION\nRYAN, Justice.\n¶ 1 In 2004, Joe Clarence Smith was resentenced to death for two murders committed in 1975 and 1976. An automatic notice of appeal was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and Arizona Revised Statutes (\"A.R.S.\") section 13-4031 (2001). We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 13-4031.\n\nI\n¶ 2 On January 1, 1976,[1] the nude body of Sandy Spencer was found in the desert northwest of Phoenix. Her nose and mouth had been stuffed with dirt and taped shut, causing asphyxiation. Ligature marks on her wrists and ankles indicated that she had been bound before death and the ligatures had been removed after death. Before or near the time of death, Spencer also suffered nineteen stab wounds to the pubic region and a vaginal tear that was caused by penetration. She also had three stab wounds to her breasts and a sewing needle was found embedded in her left breast.\n¶ 3 On February 2, 1976, Neva Lee's nude body was discovered in the desert near the Salt River Indian Reservation. She, like Spencer, had died from \"asphyxiation due to airway obstruction with soil.\" Ligature marks were present on her wrists and ankles — a result of injuries suffered before death. She also had puncture and stab wounds to her chest, abdomen, and breasts and damage to her vulva.\n¶ 4 In November 1976, a Maricopa County grand jury indicted Smith for two counts of first-degree murder. The superior court severed the counts, requiring separate trials. A jury convicted Smith of first-degree murder on June 17, 1977, for the murder of Neva Lee. Smith then pleaded guilty on July 7, 1977, to first-degree murder for the murder of Sandy Spencer. The superior court subsequently sentenced Smith to death on both counts. This Court affirmed the convictions, but remanded for resentencing in light of State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253, 1257 (1978). State v. Smith (Smith I), 123 Ariz. 231, 243, 599 P.2d 187, 199 (1979).[2]\n¶ 5 At resentencing, Smith's counsel presented no new mitigation evidence and Smith was again sentenced to death. On automatic appeal, the sentences were affirmed. State v. Smith (Smith II), 131 Ariz. 29, 35, 638 P.2d 696, 702 (1981).\n¶ 6 From 1984 through 1991, Smith filed a series of unsuccessful petitions for post-conviction relief. Smith subsequently filed a habeas corpus petition in the United States District Court for the District of Arizona, which was denied.\n¶ 7 On appeal, however, a divided panel of the Ninth Circuit held that Smith's counsel had been ineffective at the resentencing. Smith v. Stewart (Smith III), 189 F.3d 1004, *536 1014 (9th Cir.1999). The majority concluded that counsel's failure to present more mitigation evidence after this Court had held that Arizona's mitigation statute was not limited to the listed statutory mitigating factors was equivalent to presenting no evidence in mitigation. Id. at 1009-11. The majority pointed to evidence of multiple personalities, other mental disorders, and good relationships as potential mitigating evidence that was not presented at the second sentencing proceeding. Id. at 1009-10. Believing that this evidence may have changed the mind of the sentencing judge, the court remanded the case to the district court with directions to vacate the death sentences and remand the cases for resentencing. Id. at 1013-14. On November 21, 2000, the federal district court issued an order in accordance with the Ninth Circuit's mandate.\n¶ 8 The Maricopa County Superior Court held the first status conference on the case in December 2000. Because more than twenty-four years had passed since the commission of the murders, counsel for both sides required considerable time to gather evidence and prepare for the resentencing proceedings.\n¶ 9 The Supreme Court's subsequent invalidation of Arizona's judge-sentencing procedure in capital cases caused further delay. See Ring v. Arizona (Ring II), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915 (2003). In response to Ring II, the Arizona Legislature \"subsequently amended Arizona's death penalty statutes. The amended sentencing statutes assigned to juries the responsibility of finding aggravating circumstances and determining whether to impose the death penalty.\" State v. Glassel, 211 Ariz. 33, 42, ¶ 12, 116 P.3d 1193, 1202 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1576, 164 L.Ed.2d 308 (2006) (citations omitted); see also 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §§ 1, 3.\n¶ 10 The sentencing proceeding for the murder of Sandy Spencer finally began before a jury in April 2004.[3] In the aggravation phase, the State sought to prove the following aggravators: prior conviction for an offense punishable under Arizona law by a sentence of life in prison or death, A.R.S. § 13-454(E)(1) (Supp.1957-1978); prior felony conviction that involved the use or threat of violence on another, id. § 13-454(E)(2); and the offense was committed in an especially heinous, cruel, or depraved manner, id. § 13-454(E)(6). In support of the (E)(1) aggravator, the jury heard testimony that Smith had previously been convicted of three counts of rape and sentenced to five years to life, ten years to life, and seventy-five years to life. The State used Smith's conviction for the murder of Lee to prove the (E)(2) aggravator. In support of the (E)(6) aggravator, the State offered testimony about the stab and puncture wounds to Spencer's body and the asphyxiation. The jury made separate findings that each aggravator had been proved beyond a reasonable doubt. As to the (E)(6) aggravator, the jury made additional findings that each prong — cruelty, heinousness, and depravity — had been proved.\n¶ 11 In the penalty phase, the defense presented testimony about Smith's mental health, his behavior while in prison, his struggles with asthma, and his family life. The jury determined that Smith should be sentenced to death for the murder of Spencer.\n¶ 12 The sentencing proceeding for the murder of Lee, which began on May 5, 2004, before a new jury, substantially mirrored the Spencer proceeding. The State again sought to prove the (E)(1), (E)(2), and (E)(6) aggravators. Testimony related to the three prior rape convictions and the Spencer murder was offered to prove the (E)(1) and (E)(2) aggravators, respectively. The State also offered testimony about the injuries to Lee and her cause of death to support the (E)(6) aggravator. The jury once again made separate findings that all three aggravators had been proved beyond a reasonable doubt, including each prong of the (E)(6) aggravator. The mitigation and rebuttal evidence in the penalty phase was substantially the same as in the Spencer proceeding. This jury also determined that Smith should be sentenced to death.\n*537 ¶ 13 Accordingly, the superior court sentenced Smith to death by lethal injection on both counts.\n\nII\n¶ 14 Smith first argues that the trial court erred in denying a judgment of acquittal on the (E)(2) aggravator because first-degree murder, under A.R.S. § 13-452 (Supp.1957-1978), did not necessarily require the use or threat of violence.[4] Because this issue concerns a question of law, our review is de novo. See State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 930, 939 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1914, 167 L.Ed.2d 570 (2007).\n¶ 15 A prior felony conviction qualified as an aggravator under former A.R.S. § 13-454(E)(2) only if the elements of the offense — without regard to the underlying facts of the crime — required the use or threat of violence on another person. State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983); see also State v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990) (\"If, under the statutory definition of the crime, the defendant could commit or be convicted of the crime without the use or threat of violence, the prior conviction cannot qualify as a statutory aggravating circumstance.\"). Consideration of the underlying facts is impermissible because it would amount to a second trial. Gillies, 135 Ariz. at 511, 662 P.2d at 1018; see also State v. Schaaf, 169 Ariz. 323, 334, 819 P.2d 909, 920 (1991). Therefore, we focus on the language of the statute to determine whether first-degree murder necessarily required the use or threat of violence.\n¶ 16 The statute in effect at the time of the murders defined first-degree murder as \"murder . . . perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing.\" A.R.S. § 13-452. Smith contends that \"under the statutory definition, first degree murder could be committed by lacing a victim's food or drink with poison. A murder committed in this manner would not involve the use or threat of violence.\" We reject this contention.\n¶ 17 Under A.R.S. § 13-454(E)(2), violence is defined as the use or threat of force with the intent to injure or abuse. Fierro, 166 Ariz. at 549, 804 P.2d at 82. We hold that even surreptitious poisoning involves the use of force. A person who uses poison to kill another person \"intentionally avails herself of the physical force exerted by poison on a human body.\" Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 174-75 (2d Cir.2006). Poison invades a victim's body, attacking vital organs, until it causes death. It is this result that an assailant seeks in choosing to poison his victim.\n¶ 18 First-degree murder, as defined in A.R.S § 13-452, therefore cannot be committed without the use of force, whether that force be exerted by the defendant or by some instrumentality that the defendant has put to this use. Accordingly, we affirm the trial court's denial of Smith's motion for a judgment of acquittal on the (E)(2) aggravator because a prior first-degree murder conviction does establish this aggravator.[5]\n\nIII\n¶ 19 Smith next argues that the trial court erred by admitting hearsay testimony during the Lee aggravation phase, which violated the Confrontation Clause.[6] He also argues *538 that this error cannot be harmless because this testimony was the basis of the (E)(6) aggravator.\n¶ 20 A trial court's decision to admit evidence over objection is reviewed for an abuse of discretion. State v. Hampton, 213 Ariz. 167, 178, ¶ 45, 140 P.3d 950, 961 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 972, 166 L.Ed.2d 738 (2007). Legal and constitutional questions are reviewed de novo. McGill, 213 Ariz. at 156, 157-58, ¶¶ 40, 45, 140 P.3d at 939, 940-41.\n\nA\n¶ 21 First, Smith argues that the State's medical examiner, Dr. Keen, improperly relayed to the jury the previous medical examiner's findings and opinions. He claims that this testimony introduced inadmissible hearsay and violated his right to confront the previous medical examiner.\n¶ 22 Rule 703 of the Arizona Rules of Evidence states:\nThe facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\n¶ 23 Expert testimony that discusses reports and opinions of another is admissible under this rule if the expert reasonably relied on these matters in reaching his own conclusion. State v. Rogovich, 188 Ariz. 38, 41-42, 932 P.2d 794, 797-98 (1997); State v. Villafuerte, 142 Ariz. 323, 327, 690 P.2d 42, 46 (1984); State v. Noleen, 142 Ariz. 101, 104, 688 P.2d 993, 996 (1984). Such testimony is not hearsay because it is offered not to prove the truth of the prior reports or opinions, but rather is offered only to show the basis of the testifying expert's opinion. See Rogovich, 188 Ariz. at 42, 932 P.2d at 798; State v. Lundstrom, 161 Ariz. 141, 148, 776 P.2d 1067, 1074 (1989). A testifying expert, however, may not act as a \"conduit for another non-testifying expert's opinion.\" Lundstrom, 161 Ariz. at 148, 776 P.2d at 1074. Smith contends, with respect to Dr. Keen's testimony on the cause of death, size of wounds, and timing of infliction, that Dr. Keen acted as a conduit for the prior medical examiner's opinion.\n¶ 24 Smith's characterization of Dr. Keen's testimony is inaccurate. Dr. Keen formed his own conclusions based on the partial autopsy report,[7] photographs of Lee's body, and the testimony of the prior medical examiner, all of which would normally be relied upon by a medical examiner to make independent determinations about injuries and causes of death. Dr. Keen referred to some of the testimony of the prior medical examiner, but he did so because it helped form the basis for his own conclusions and observations. His testimony about the injuries Lee suffered was based on his independent verification of those injuries from the photographs taken in 1976. Further, he independently concluded that the ligatures were placed on the wrists and ankles before death, the cause of death was asphyxiation, and the stab wounds were inflicted near the time of death. Dr. Keen discussed the prior medical examiner's testimony about the location and size of the wounds because he used that information to determine that none of the other wounds would have caused Lee's death; therefore, he concurred with that medical examiner's determination that the cause of death was asphyxiation.\n¶ 25 Thus, Dr. Keen was not a mere conduit for the opinions of the prior medical examiner; rather, his ultimate opinions were independent of the testimony of the prior medical examiner. Because the underlying data and opinions were used to show the basis for these conclusions, and not to prove the truth of the matters asserted, there was no hearsay problem. See Rogovich, 188 Ariz. at 42, 932 P.2d at 798; Lundstrom, 161 Ariz. at 148, 776 P.2d at 1074.\n*539 ¶ 26 There was also no Confrontation Clause violation. We have previously held:\nFacts or data underlying the testifying expert's opinion are admissible for the limited purpose of showing the basis of that opinion, not to prove the truth of the matter asserted. Testimony not admitted to prove the truth of the matter asserted by an out-of-court declarant is not hearsay and does not violate the confrontation clause.\nRogovich, 188 Ariz. at 42, 932 P.2d at 798 (citation omitted). The Supreme Court has made plain that the Confrontation Clause is not violated by use of a statement to prove something other than the truth of the matter asserted. Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). Therefore, Smith's confrontation right was not violated by Dr. Keen's testimony.\n\nB\n¶ 27 Smith also raises hearsay and Confrontation Clause claims because Detective Dominguez testified to statements made by the prior medical examiner during the autopsy of Lee, which were recorded in a police report.\n¶ 28 Because both the police report and the statements of the medical examiner who conducted the autopsy are hearsay, each must independently qualify under a hearsay exception to be admissible. Ariz. R. Evid. 805. Here, each clearly falls within an exception.\n¶ 29 A testifying witness may use a memorandum or record to testify if the witness had knowledge of the matter referred to in the memorandum or record at one time, but no longer has sufficient memory to testify fully; the witness made or adopted the memorandum or record when the matter was fresh in the witness's memory;[8] and the memorandum or record correctly reflects the knowledge the witness had. Ariz. R. Evid. 803(5).\n¶ 30 Although he no longer recalled specific details of the autopsy, Detective Dominguez testified that he remembered the medical examiner pointing out the trauma areas and relaying the measurements, which his partner then wrote down.[9] Detective Dominguez adopted the report as his own by signing it shortly after it was created. At the same time, he reviewed the report for accuracy and believed that it accurately reflected the information that had been given by the medical examiner at the autopsy. Therefore, the detective's use of the report met the requirements of Arizona Rule of Evidence 803(5).\n¶ 31 The medical examiner's statements also fall under a hearsay exception. Statements qualify as a present sense impression if they \"describe an event or condition, that was perceived by the declarant, and the statement [is] made immediately after [or contemporaneous with] the event.\" State v. Tucker, 205 Ariz. 157, 166, ¶ 43, 68 P.3d 110, 119 (2003); see also Ariz. R. Evid. 803(1). The medical examiner's statements are present sense impressions because they describe the condition of the body, were made by the person perceiving the information, and were made as he perceived the conditions.[10] Accordingly, Detective Dominguez's testimony was not inadmissible hearsay.\n¶ 32 Smith's Confrontation Clause claim with respect to Detective Dominguez's testimony turns on whether the statements made by the medical examiner during the autopsy were \"testimonial.\" See Davis v. *540 Washington, ___ U.S. ___, ___, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006) (citing Crawford, 541 U.S. at 51, 124 S.Ct. 1354) (holding that the Confrontation Clause encompasses only testimonial hearsay). Because we conclude that any potential error in admitting the testimony was harmless beyond a reasonable doubt, we need not decide whether admission of Detective Dominguez's statements violated the Confrontation Clause. See State v. King, 212 Ariz. 372, 380, ¶ 36, 132 P.3d 311, 319 (App.2006).\n¶ 33 Even without the detective's contested testimony, the jury still heard evidence that Lee suffered stab and puncture wounds to her chest, breasts, and abdomen; puncture wounds and bleeding were observed around her vulva; none of the wounds would have been fatal; she died from \"asphyxiation due to airway obstruction with soil\"; she had ligature marks on her wrists and ankles; there were struggle areas found at the scene; the stab wounds occurred around the time of death; the ligature marks were made before death; and a person could be conscious from forty-five seconds to several minutes while being asphyxiated. Thus, Detective Dominguez's testimony added very little to the evidence the jury already had before it to find that the murder of Lee was especially cruel, heinous, or depraved. Therefore, even if the admission of this testimony was erroneous, the error was harmless beyond a reasonable doubt.\n\nIV\n¶ 34 Smith also argues that the trial court erred in sentencing him to death by lethal injection. The State concedes that A.R.S. § 13-704(B) (2001) applies to Smith and allows him to choose between death by lethal injection or lethal gas, as long as he does so twenty days before the execution date.\n¶ 35 We have authority under A.R.S. § 13-4037(A) (2001) to correct the sentences. Accordingly, we vacate the lethal injection portion of Smith's sentences and order that Smith be permitted to choose either lethal injection or lethal gas, as long as he does so at least twenty days before the execution date. If Smith fails to choose, the death penalty will be carried out by lethal injection. Id. § 13-704(B).\n\nV\n¶ 36 Smith argues that the superior court's limitation on questions, improper interjections, and attempts at juror rehabilitation during voir dire denied him the ability to obtain fair and impartial juries.\n¶ 37 A trial court has discretion to determine the scope of voir dire, which we will not overturn absent an abuse of that discretion. State v. Mauro, 159 Ariz. 186, 202, 766 P.2d 59, 75 (1988); State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296 (1978); see also Ariz. R.Crim. P. 18.5(d), (e) &amp; cmt.\n\nA\n¶ 38 Smith complains that the trial court's limitations on the questions that he could ask left only general \"follow the law\" questions, and thus violated the rule of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).\n¶ 39 In Morgan, the Supreme Court held that potential jurors must be asked whether they would automatically impose the death penalty if a defendant is found guilty, because a juror who would do so must be struck for failure to be impartial. Id. at 729, 736, 112 S.Ct. 2222. Although there is no \"catechism for voir dire,\" the defendant's right to an impartial jury nonetheless requires \"adequate voir dire to identify unqualified jurors.\" Id. at 729, 112 S.Ct. 2222. The Court further held that simply asking potential jurors whether they can follow the law and be fair and impartial is insufficient. Id. at 735-36, 112 S.Ct. 2222.\n¶ 40 Morgan, however, does not require that Smith be permitted to ask the questions that he claims were improperly limited. First, we have previously held that a trial court may prohibit a defendant from asking potential jurors about their understanding of the phrase \"sufficiently substantial to call for leniency.\" Glassel, 211 Ariz. at 46, ¶ 40, 116 P.3d at 1206. Such questioning is not allowed because the phrase is necessarily subjective. Id. Moreover, the manner in which *541 Smith's counsel posed the question improperly asked the potential jurors, without having heard any of the evidence, to opine on what it would take to meet that standard. See Melendez, 121 Ariz. at 3, 588 P.2d at 296.\n¶ 41 Second, the superior court did not abuse its discretion in refusing to allow Smith's open-ended questions about the best reason for having or not having the death penalty, the importance of considering mitigation, and the type of offense for which the juror would consider death to be appropriate. See Glassel, 211 Ariz. at 47, ¶ 44, 116 P.3d at 1207. Each of these questions was quite broad and went well beyond the constitutionally required determination of whether the juror would consider mitigation.\n¶ 42 Finally, Smith complains that he was not permitted to ask jurors whether they would automatically impose the death penalty if they found specific aggravators. Morgan was not meant to allow a defendant to \"ask a juror to speculate or precommit on how that juror might vote based on any particular facts.\" United States v. McVeigh, 153 F.3d 1166, 1207 (10th Cir.1998). Defendants also cannot seek to \"condition\" or \"commit [jurors] to certain positions prior to receiving the evidence.\" Melendez, 121 Ariz. at 3, 588 P.2d at 296. Smith's question attempted to do just that. As we have already held, a trial court is not required to allow a defendant to ask about how a juror would assess specific mitigation. State v. Johnson, 212 Ariz. 425, 434, ¶ 31, 133 P.3d 735, 744 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 559, 166 L.Ed.2d 415 (2006). We hold that the same is true of voir dire focused on the assessment of specific aggravators. See, e.g., People v. Brown, 172 Ill.2d 1, 216 Ill.Dec. 733, 665 N.E.2d 1290, 1303 (1996) (holding that Morgan did not require questions about specific aggravators to be asked of potential jurors).\n¶ 43 In addition, Morgan does not, as Smith seems to contend, prohibit the trial court from asking jurors whether they will follow the law. As long as counsel has sufficient opportunity to determine whether a particular juror would automatically impose the death penalty upon a guilty verdict, such general questioning may occur without running afoul of the mandate of Morgan. 504 U.S. at 736, 112 S.Ct. 2222. Smith had several opportunities to determine whether any of the jurors would automatically impose death. The jurors filled out questionnaires, which contained the Morgan question, along with other questions about the death penalty, and Smith had ample opportunity to question potential jurors — including asking some jurors the very questions that he complains were limited. See Johnson, 212 Ariz. at 435, ¶ 34, 133 P.3d at 745; Glassel, 211 Ariz. at 47, ¶ 44, 116 P.3d at 1207.\n\nB\n¶ 44 Smith also contends that the superior court judge abused his discretion by interrupting voir dire and \"rehabilitating\" potential jurors. We focus only on the complaints related to deliberating jurors, as any error with respect to non-deliberating jurors was harmless. Glassel, 211 Ariz. at 46, ¶ 41, 116 P.3d at 1206.\n¶ 45 The record refutes Smith's claim that the trial judge's interruptions denied him the right to adequately exercise his challenges. Smith had multiple opportunities to question the potential jurors to determine whether they would automatically impose the death penalty. Further, the trial judge's interruptions consisted almost entirely of explanations of the law and clarification of the questions being asked or answers being given. Because the trial judge is responsible for ensuring that voir dire is conducted in a manner that results in a fair and impartial jury for both sides, Ariz. R.Crim. P. 18.5(d), (e) &amp; cmt., a judge may interject to make certain a juror understands the legal requirements for service, the law on a particular subject, and the question being asked. See Wainwright v. Witt, 469 U.S. 412, 435, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (stating that a trial court \"is free to interrupt questioning to clarify any particular statement\"). Therefore, the court's interjections were permissible and did not amount to an abuse of discretion.\n¶ 46 Smith fails to offer any examples of deliberating jurors whom the trial judge improperly *542 rehabilitated to support his argument that automatic death jurors sat on either jury. Accordingly, we find no abuse of discretion on this claim.\n\nVI\n¶ 47 Smith next argues that the trial court erred when it failed to exclude rebuttal evidence that was unduly prejudicial, cumulative, did not refute any mitigator, and served as an improper aggravator.[11]\n¶ 48 We review a trial court's evidentiary decisions for an abuse of discretion, Hampton, 213 Ariz. at 178, ¶ 45, 140 P.3d at 961, giving deference to its determination on relevance, McGill, 213 Ariz. at 156-57, ¶ 40, 140 P.3d at 939-40, and unfair prejudice, State v. Vickers, 159 Ariz. 532, 540, 768 P.2d 1177, 1185 (1989) (dealing with Arizona Rule of Evidence 403, which is fundamentally the same as the relevance assessment under A.R.S. § 13-703(C) (Supp.2004), McGill, 213 Ariz. at 157, ¶ 40, 140 P.3d at 940).\n¶ 49 Under A.R.S. § 13-703(C), the state and the defendant are permitted to produce any evidence at the penalty phase relevant to any of the mitigating circumstances, regardless of whether the rules of evidence would allow it in another phase of the trial. Furthermore, A.R.S. § 13-703.01(G) (Supp.2004) permits both parties to present evidence that is relevant to whether the mitigation presented is sufficiently substantial to call for leniency.\n¶ 50 In rebuttal at both sentencing proceedings, the State offered testimony concerning the facts of Smith's prior rape and murder convictions. A detective described to the juries the circumstances of Smith's first two rape convictions, which involved a woman to whom Smith and his wife had offered a ride. Smith forcibly raped the victim twice, once while at Smith's house with his wife present, and again in the desert inside of Smith's car while his wife sat outside on the trunk of the car. Smith repeatedly threatened to kill the victim and spoke about bodies being found in the desert. He released her, however, after she promised to bring him money the following day.\n¶ 51 The jury in the Spencer sentencing proceeding heard testimony related to Smith's third prior rape conviction from the victim. She testified that Smith offered her a ride home, but instead drove her into the desert. While there, Smith bound her hands, forced her to engage in intercourse, raped her with a Pepsi bottle, forced her to give and receive oral sex, sodomized her, and forced her to urinate while he watched. He repeatedly threatened to kill her while brandishing a knife, told her that he was a \"sadist,\" and asked her whether she wanted pins or the knife stuck in her nipple. Eventually, Smith drove the victim back into town and released her.\n¶ 52 Finally, each jury was told about the facts of Smith's other murder conviction — the Spencer jury was told about the Lee murder and vice versa.\n¶ 53 The superior court correctly determined that this testimony was relevant to the diagnosis of sexual sadism, which was the thrust of Smith's mitigation.[12] Indeed, the mental health experts relied on the underlying facts of these crimes to diagnose Smith. This testimony thus assisted the jury in its evaluation of that testimony and in determining whether Smith's mental illness played a role in each murder.\n¶ 54 The relevance determination, however, does not end our inquiry. Hampton, 213 Ariz. at 179, ¶ 48, 140 P.3d at 962. The Due Process Clause constrains admission of rebuttal evidence, id., and requires that unduly prejudicial evidence be excluded if it makes the proceeding \"fundamentally unfair,\" Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d *543 720 (1991). The Supreme Court has said that establishing a denial of due process in a criminal trial requires a finding \"that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevent a fair trial.\" Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941).\n¶ 55 Although trial courts \"should exclude [rebuttal] evidence that is either irrelevant to the thrust of the defendant's mitigation or otherwise unfairly prejudicial,\" Hampton, 213 Ariz. at 180, ¶ 51, 140 P.3d at 963, none of the testimony about which Smith complains rendered his sentencing proceedings fundamentally unfair. The superior court carefully assessed and scrutinized the prejudicial nature of the rebuttal evidence. The court limited the scope of the rape victim's testimony in the Lee sentencing proceeding based on the mitigation evidence that was presented and also limited the bad acts testimony that could be presented.[13] Given the relevance to Smith's mitigation, the limits imposed by the trial court, and the deference given prejudice assessments, we conclude that no violation of Smith's due process rights occurred.\n\nVII\n¶ 56 Finally, Smith argues that his death sentences should be vacated because his state and federal speedy trial rights have been violated by the twenty-seven year delay between his convictions and his resentencing.\n¶ 57 We review issues of state and federal constitutional law de novo. State v. McCann, 200 Ariz. 27, 28, ¶ 5, 21 P.3d 845, 846 (2001). Any factual determination related to these issues, however, is reviewed for an abuse of discretion. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004); State v. Stielow, 14 Ariz.App. 445, 448, 484 P.2d 214, 217 (1971).\n\nA\n¶ 58 Although this Court and the Supreme Court have never explicitly held that the speedy trial right applies to sentencing, neither court has foreclosed that possibility. See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); State v. Blazak, 131 Ariz. 598, 600, 643 P.2d 694, 696 (1982) (citing State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980)). In Pollard, the Supreme Court assumed, without deciding, that the Sixth Amendment right to a speedy trial extends to sentencing. 352 U.S. at 361, 77 S.Ct. 481. We do the same today.\n¶ 59 In addressing Smith's speedy trial claim we must assess the \"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.\" Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also State v. Brannin, 109 Ariz. 525, 528-29, 514 P.2d 446, 449-50 (1973) (applying the Barker factors to analyze a speedy trial claim). The most important factor is prejudice; delay is the least, simply acting as a gatekeeper. See Barker, 407 U.S. at 530, 92 S.Ct. 2182 (calling the delay factor a \"triggering mechanism,\" and stating that unless the delay is \"presumptively prejudicial\" in length the other factors need not be addressed); Schaaf, 169 Ariz. at 327, 819 P.2d at 913.\n\nB\n¶ 60 We reject Smith's argument that the relevant delay, for purposes of the speedy trial analysis, is twenty-seven years. \"[W]e . . . do not believe that the period of time between notice of appeal and retrial upon reversal can be counted as part of the time to be considered in a constitutional denial of a defendant's right to speedy trial.\" State v. Ward, 120 Ariz. 413, 416, 586 P.2d 974, 977 (1978). Once there has been a conviction, the defendant has been sentenced, and he has appealed, the trial court has no need or authority to proceed any further. *544 Id. at 415-16, 586 P.2d at 976-77 (quoting State v. Ames, 249 La. 685, 190 So.2d 223, 227 (1966)). Were we to accept Smith's argument, it would undercut the principle that a defendant can be retried after appellate reversal without running afoul of the speedy trial right. See United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (citing Ball v. United States, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and United States v. Tateo, 377 U.S. 463, 465, 473-74, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964)).\n¶ 61 Therefore, absent evidence that the state deliberately delayed the proceedings and the defendant was prejudiced by the delay, we do not count the time on appeal. United States v. Loud Hawk, 474 U.S. 302, 316, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); Ward, 120 Ariz. at 416, 586 P.2d at 977. Because Smith does not allege any such actions by the State, we concern ourselves here only with the time after the superior court was revested with jurisdiction. Ward, 120 Ariz. at 416, 586 P.2d at 977; see also United States v. Alston, 412 A.2d 351, 359 (D.C. 1980). Smith has conceded that there was no speedy trial violation if the time on appeal is not counted; therefore, we need not address the remaining Barker factors.[14]\n\nVIII\n¶ 62 Because both murders occurred before August 1, 2002, we must independently review the \"findings of aggravation and mitigation and the propriety of the death sentence[s].\"[15] A.R.S. § 13-703.04(A) (Supp. 2006); see also 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §§ 1, 7(B) (providing that § 13-703.04(A) applies to any sentencing or resentencing in a first-degree murder case that occurs after the effective date of the act when the offense was committed before the act's effective date). If we decide \"that the mitigation is sufficiently substantial to warrant leniency,\" we must impose a life sentence. A.R.S. § 13-703.04(B). If it is not, we must affirm the death sentence. Id.\n¶ 63 In both sentencing proceedings, the State proved three aggravating factors beyond a reasonable doubt. Smith's three prior rape convictions conclusively established that he had been convicted of another offense that carried a possible sentence of life imprisonment or death. See A.R.S. § 13-454(E)(1). As discussed above, his prior convictions for first-degree murder met the requirements of A.R.S. § 13-454(E)(2). Finally, overwhelming evidence established that the murders of Spencer and Lee were especially cruel. See Id. § 13-454(E)(6).\n¶ 64 The \"cruelty\" prong of the (E)(6) aggravator focuses on the victim's mental anguish and physical suffering. A finding of cruelty requires proof that the victim \"consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.\" State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation omitted).\n¶ 65 Spencer and Lee both died of asphyxiation after having their noses and mouths filled with dirt and taped shut. They also had marks on their wrists and ankles from ligatures that had been placed before death. Although the medical examiner could not conclusively establish consciousness before they had been bound, the tape and ligatures would have been unnecessary if the victims were unconscious. See State v. Djerf, 191 Ariz. 583, 596, ¶ 49, 959 P.2d 1274, 1287 (1998). Asphyxiation caused by stuffing a victim's nose and mouth with dirt while *545 bound would undoubtedly cause mental anguish and physical pain. At a minimum, Smith should have known pain and anguish would occur.\n¶ 66 Proof of cruelty is sufficient to establish the (E)(6) aggravator because the aggravator is stated in the disjunctive. State v. Cromwell, 211 Ariz. 181, 189, ¶ 43, 119 P.3d 448, 456 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2291, 164 L.Ed.2d 819 (2006). Because we independently conclude that the murders of Spencer and Lee were cruel, we need not consider the separate findings of heinousness and depravity. Id.\n¶ 67 The focus of Smith's mitigation evidence related to his mental health. Smith's mental health expert testified that he suffered from sexual sadism with a form of anxiety disorder, which contributed to the commission of the murders. The role of Smith's mental health in the commission of these murders, and therefore the quality of the mitigation, however, is called into serious question by testimony that Smith could have controlled his impulses and that he likely knew what he was doing and that it was wrong.\n¶ 68 The remainder of Smith's mitigation focused on his good conduct while in prison and his family life. But conflicting testimony regarding the presence or substantiality of these mitigators also lessens their impact.\n¶ 69 After review of the record, we hold that even if all of Smith's claimed mitigators were established, the mitigation presented was not sufficiently substantial to warrant leniency given the nature of the crimes committed and the aggravators that we have found proven beyond a reasonable doubt. See A.R.S. § 13-703.04(B). We therefore affirm the death sentences. Id.\n\nIX\n¶ 70 Smith raises twelve challenges to the constitutionality of Arizona's death penalty scheme to preserve them for further review. He acknowledges, however, that we have already decided these issues. Smith asserts:\n¶ 71 (1) The prosecutor's discretion to seek the death penalty has no standards and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 1, 4, and 15, of the Arizona Constitution. We rejected this argument in State v. Finch, 202 Ariz. 410, 419, ¶ 50, 46 P.3d 421, 430 (2002) (citing State v. Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 (1985)).\n¶ 72 (2) Arizona's death penalty, as applied, discriminates against poor, young, and male defendants in violation of Article 2, Sections 1, 4, and 13, of the Arizona Constitution. This argument was rejected in State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other grounds, 536 U.S. 954, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002), and Schackart, 190 Ariz. at 260, 947 P.2d at 337.\n¶ 73 (3) The death penalty is cruel and unusual punishment under any circumstances and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15, of the Arizona Constitution. The Supreme Court rejected this argument in Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); we rejected it in State v. Harrod, 200 Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), and Blazak, 131 Ariz. at 601, 643 P.2d at 698.\n¶ 74 (4) The absence of proportionality review of death sentences by Arizona courts denies capital defendants due process of law and equal protection, and amounts to cruel and unusual punishment in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article 2, Section 15, of the Arizona Constitution. State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995) (citing Pulley v. Harris, 465 U.S. 37, 43-44 &amp; n. 6, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992)), rejected this argument.\n¶ 75 (5) Arizona's capital sentencing scheme is unconstitutional because it does not require that the state prove that the death penalty is appropriate, which violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and *546 Article 2, Section 15, of the Arizona Constitution. This argument was rejected in State v. Van Adams, 194 Ariz. 408, 423, ¶ 55, 984 P.2d 16, 31 (1999) (citing Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605).\n¶ 76 (6) The death penalty is cruel and unusual because it is irrationally and arbitrarily imposed. The statute requires that the death penalty be imposed if the jurors find one or more aggravating circumstances and no mitigation that is sufficiently substantial to call for leniency. Furthermore, the death penalty serves no purpose that is not adequately addressed by a sentence of life imprisonment. Therefore, it violates the defendant's right to due process under the Fourteenth Amendment to the United States Constitution and Article 2, Sections 1 and 4, of the Arizona Constitution. This proposition was recently rejected in Cromwell, 211 Ariz. at 192, ¶ 63, 119 P.3d at 459. See also State v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002); State v. Beaty, 158 Ariz. 232, 246-47, 762 P.2d 519, 533-34 (1988).\n¶ 77 (7) Section 13-703 provides no objective standards to guide the jurors in weighing the aggravating and mitigating circumstances and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15, of the Arizona Constitution. This argument was rejected in Pandeli, 200 Ariz. at 382, ¶ 90, 26 P.3d at 1153 (citing State v. White, 194 Ariz. 344, 355, ¶ 49, 982 P.2d 819, 830 (1999)).\n¶ 78 (8) Section 13-703 does not sufficiently narrow the class of murders that are death eligible because the aggravating factors are so broad that they encompass nearly every murder; therefore, it violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15, of the Arizona Constitution. This claim was also rejected in Pandeli, 200 Ariz. at 382, ¶ 90, 26 P.3d at 1153.\n¶ 79 (9) Execution by lethal injection is cruel and unusual punishment. The Court rejected this proposition in Van Adams, 194 Ariz. at 422, ¶ 55, 984 P.2d at 30 (citing State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995)).\n¶ 80 (10) A proportionality review of a defendant's death sentence is constitutionally required. Gulbrandson, 184 Ariz. at 73, 906 P.2d at 606 (citing Pulley, 465 U.S. at 43-44 &amp; n. 6, 104 S.Ct. 871), rejected this argument.\n¶ 81 (11) Arizona's death penalty statute violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 4 and 15, of the Arizona Constitution because it does not require multiple mitigating factors to be considered cumulatively or require the fact-finder to make specific findings as to each mitigating factor. The Court recently rejected this argument in State v. Anderson, 210 Ariz. 327, 359, 111 P.3d 369, app. A, 210 Ariz. 327, 111 P.3d 369, 401 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 193, 163 L.Ed.2d 211 (2005). See also Van Adams, 194 Ariz. at 423, ¶ 55, 984 P.2d at 31.\n¶ 82 (12) Arizona's death penalty statute is constitutionally deficient because it requires defendants to prove that their lives should be spared. State v. Roseberry, 210 Ariz. 360, 375, 111 P.3d 402, app., 210 Ariz. 360, 111 P.3d 402, 417 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 444, 163 L.Ed.2d 338 (2005), rejected this proposition. See also State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988) (holding that shifting the burden of proof on mitigation to the defendant is not unconstitutional).\n\nX\n¶ 83 For the foregoing reasons, we affirm Smith's sentences as modified to comply with A.R.S. § 13-704(B).\nCONCURRING: RUTH V. McGREGOR, Chief Justice, REBECCA WHITE BERCH, Vice Chief Justice, ANDREW D. HURWITZ, Justice and MAURICE PORTLEY, Judge.[*]\nNOTES\n[1] In 1976 Smith was on probation for two prior rape convictions. See State v. Smith, 116 Ariz. 387, 388, 569 P.2d 817, 818 (1977). Probation was revoked in September 1976 after his third rape conviction. Id. at 389, 569 P.2d at 819.\n[2] Lockett v. Ohio held that limiting the evidence that could be presented in mitigation in capital cases violates the Eighth and Fourteenth Amendments. 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Watson accordingly held that A.R.S. § 13-454(F) (Supp.1957-1978) unconstitutionally limited a defendant's ability to present mitigation evidence in a capital case. 120 Ariz. at 445, 586 P.2d at 1257. Smith's death sentences, therefore, were vacated to allow him to present further mitigation evidence. Smith I, 123 Ariz. at 243, 599 P.2d at 199.\n[3] The superior court denied the State's motion to consolidate the two counts.\n[4] The legislature has since foreclosed this argument by amending A.R.S. § 13-703(F)(2) (Supp. 2006) (formerly A.R.S. § 13-454(E)(2)). 1993 Ariz. Sess. Laws, 1st Reg. Sess., ch. 153, § 1. The amended aggravator requires only that the prior conviction be for a \"serious offense\"; first-degree murder is expressly identified as such an offense, A.R.S. § 13-703(I)(1).\n[5] Our previous cases are consistent with this result. We have upheld a finding of the (E)(2) aggravator based on prior first-degree murder convictions from California. State v. Gretzler, 135 Ariz. 42, 57, 659 P.2d 1, 16 (1983). California's first-degree murder statute in 1973, the year Gretzler committed the murders, stated that first-degree murder could be committed by poisoning. Cal.Penal Code § 189 hist. n. (West, Westlaw through 1987 legislation).\n[6] The State correctly concedes that the Confrontation Clause applies when the evidence presented is used to prove an aggravator. McGill, 213 Ariz. at 159, ¶ 51, 140 P.3d at 942; State v. Greenway, 170 Ariz. 155, 161 n. 1, 823 P.2d 22, 28 n. 1 (1991).\n[7] Except for the cover page, the original medical examiner's report of the Lee autopsy could not be found.\n[8] The memorandum need not be made by or at the direction of the witness. \"It is sufficient if the witness read the memorandum at a time when his memory was fresh and recognized that it accurately recorded the event.\" 1 Joseph M. Livermore, Robert Bartels &amp; Anne Holt Hameroff, Arizona Practice: Law of Evidence § 803.5, at 360 (4th ed.2000).\n[9] Detective Dominguez and his partner were present for the entire autopsy of Lee.\n[10] Cf. United States v. Gil, 58 F.3d 1414, 1422 (9th Cir.1995) (holding that officers who are \"note-takers\" could testify to statements made by surveillance officers because the statements fell under the federal present sense impression exception to the hearsay rule).\n[11] We recently rejected the claim that the Eighth Amendment limits the state to urging statutory aggravating factors when presenting rebuttal evidence during the penalty phase. See Hampton, 213 Ariz. at 178, ¶ 46 n. 10, 140 P.3d at 961 n. 10.\n[12] Smith concedes the relevance of this testimony, but objects to the way it was presented. In particular, he complains that allowing the rape victim to testify was inappropriate. Smith acknowledges, however, that he would not have objected had the mental health experts testified to the same facts.\n[13] The State initially wanted to ask the mental health experts about eleven different acts because they related to the diagnoses. The court's ruling limited the testimony to the three rape convictions, the murder convictions, and another rape conviction that was overturned on appeal, see State v. Smith, 123 Ariz. 243, 253, 599 P.2d 199, 209 (1979). The State later chose not to present evidence of the conviction that had been overturned on appeal.\n[14] Smith also claims that executing him after twenty-seven years on death row would violate his Eighth Amendment right to be free from cruel and unusual punishment. We expressly rejected this argument in State v. Schackart, 190 Ariz. 238, 259, 947 P.2d 315, 336 (1997), and do so again here, particularly because much of the delay resulted from Smith's pursuit of his rights to post-conviction relief, as opposed to intentional delay by the State in carrying out the death sentence.\n[15] At the time of the murders, this Court independently reviewed the aggravation and mitigation evidence to determine whether the death sentence was appropriate. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976). Section 13-703.04 is a codification of this review.\n[*] Pursuant to Article 6, Section 3, of the Arizona Constitution, the Honorable Maurice Portley, Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter.\n\n", "ocr": false, "opinion_id": 867380 } ]

[ "204 F.3d 306" ]

[ { "author_str": "Selya", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=99-1898.01A", "author_id": null, "opinion_text": "204 F.3d 306 (1st Cir. 2000)\n STEPHEN C. FITHIAN, JR., p.p.a. STEPHEN C. FITHIAN, SR., ET AL., Plaintiffs, Appellants,v.EDWARD REED AND MARTHA REED, Defendants, Appellees.\n No. 99-1898\n United States Court of Appeals for the First Circuit\n Heard February 9, 2000Decided February 29, 2000\n \n Thomas J. Callahan, with whom James J. McGovern and McGovern &amp; Sullivan were on brief, for appellants.\n David M. O'Connor, with whom John E. Matosky and O'Connor &amp; Associates were on brief, for appellees.\n Before Selya, Boudin and Lynch, Circuit Judges.\n SELYA, Circuit Judge.\n \n \n 1\n In this case, the district court concluded as a matter of law that the risk of a neighbor's snowblower discharging snow and ice against a dining room window and breaking it, injuring a toddler standing inside, was unforeseeable, and that the homeowners therefore did not breach their duty of reasonable care. The plaintiffs appeal. Finding no evidence of any precaution that either defendant could or should have taken to avoid this unfortunate accident, we affirm.\n \n \n 2\n As the summary judgment standard requires, we recount the facts in the light most hospitable to the non-movants (here, the plaintiffs). See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). In January 1996, Lisa Fithian and her two young children, Floridians all, were visiting her parents, Edward and Martha Reed, in Hingham, Massachusetts. On an inclement morning, John Zofchak, the Reeds' neighbor, trying to be helpful, undertook to clear their driveway with his snowblower (despite the fact that two cars were parked in the area). Snow was a novelty to the youngsters, so Mrs. Reed (while Mrs. Fithian was upstairs) encouraged them to join her at the family room window and watch the snowblower in operation.\n \n \n 3\n After Mrs. Fithian returned, Mrs. Reed went outside in hopes of thanking Mr. Zofchak for the unsolicited favor. Not wanting to approach the snowblower too closely for fear of injury, Mrs. Reed stood in front of the house for roughly fifteen minutes and vainly attempted to catch Mr. Zofchak's attention. Meanwhile, Mrs. Fithian, desiring to give the fascinated children a better view of the snowblowing activity, brought them into the dining room (where the windows were closer to the driveway).\n \n \n 4\n Mr. Reed entered the dining room shortly thereafter. At that point, Mr. Zofchak had begun to clear a narrow strip of driveway between the parked cars and the residence. Since the presence of the vehicles prevented him from directing the discharge to the left, he angled it to the right (i.e., toward the house). A few seconds later, the dining room window shattered and flying glass struck and severely injured three-year-old Stephen Fithian, Jr.\n \n \n 5\n Invoking diversity jurisdiction, see 28 U.S.C. &#167; 1332(a), Stephen and his parents sued the Reeds in the United States District Court for the District of Massachusetts.1 Following pretrial discovery, the defendants moved successfully for summary judgment. This appeal ensued.\n \n \n 6\n We review orders granting or denying summary judgment de novo. See Garside, 895 F.2d at 48. Summary judgment is appropriate if, after marshaling the evidence in the light most favorable to the non-movant, no genuine issue of material fact exists and the record reveals that the movant is entitled to judgment as a matter of law. See Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47, 49-50 (1st Cir. 1997); Garside, 895 F.2d at 48; see also Fed. R. Civ. P. 56(c). State law supplies the substantive rules of decision in diversity cases, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Woods-Leber, 124 F.3d at 50, and the parties agree that Massachusetts law governs in this instance.\n \n \n 7\n Under Massachusetts law, a tort plaintiff must show that (1) the defendant owed him a duty, (2) the defendant breached that duty, (3) the breach constituted a proximate cause of the ensuing harm, and (4) the breach caused actual injury. See Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir. 1990); Swift v. United States, 866 F.2d 507, 508-09 (1st Cir. 1989). Although such matters most often comprise grist for the jury's mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome. See Woods-Leber, 124 F.3d at 51; see also Mullins v. Pine Manor College, 449 N.E.2d 331, 338 (Mass. 1983); Roderick v. Brandy Hill Co., 631 N.E.2d 559, 560 (Mass. App. Ct. 1994). This is such a case: as the district court ruled, there is no way in which a rational factfinder, on this record, supportably could conclude that the defendants breached an actionable duty to the plaintiffs. We explain briefly.\n \n \n 8\n As homeowners and hosts, the defendants had a duty to take into account the extant circumstances (including those known to them and those of which they should have known) and to maintain their property in a reasonably safe condition. See Mounsey v. Ellard, 297 N.E.2d 43, 52 (Mass. 1973); Polak v. Whitney, 487 N.E.2d 213, 215 (Mass. App. Ct. 1985). It was, therefore, incumbent upon them to act reasonably in regard to factors such as the likelihood of injury to persons foreseeably upon the premises, the seriousness of any potential injury, and the burdens associated with risk avoidance.\n \n \n 9\n This standard -- reasonable care under all the circumstances -- is a flexible one. As the plaintiffs suggest, it may at times involve a duty to prevent foreseeable injury caused by a third person who has come upon a defendant's premises. See Flood v. Southland Corp., 616 N.E.2d 1068, 1075 (Mass. 1993); Jesionek v. Massachusetts Port Auth., 378 N.E.2d 995, 997 (Mass. 1978). On other occasions, it may impose an obligation to warn guests of an unreasonable, nonobvious danger of which the host is aware. See Polak, 487 N.E.2d at 215-16. The standard does not, however, bind homeowners to anticipate and guard against \"what is unusual and unlikely to happen, or what, as is sometimes said, is only remotely and slightly probable.\" Zompanti v. Ferguson, 142 N.E.2d 903, 904 (Mass. 1957) (quoting Falk v. Finkelman, 168 N.E. 89, 90 (Mass. 1929)). In fine, the standard does not make a homeowner an insurer of a guest's safety, nor does it require her to exercise extreme prudence, employ heroic measures, or display utter prescience. See Toubiana v. Priestly, 520 N.E.2d 1307, 1310 (Mass. 1988).\n \n \n 10\n The touchstone, then, is ordinary prudence -- and the critical question becomes \"whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant's position would have taken steps, not taken by the defendant, to prevent the accident that occurred.\" Id. In most cases (though not always), this question correlates with the foreseeability of the risk of harm, for the more foreseeable the injury, the higher society's expectations that reasonable people will take precautions. See Whittaker v. Saraceno, 635 N.E.2d 1185, 1188-89 (Mass. 1994) (holding that society should not place the burden of preventing a violent crime on a property owner without proof that the owner knew or should have known of danger and possible preventive steps, even though crime is always possible and to a certain extent foreseeable); Mounsey, 297 N.E.2d at 52 (explaining that the duty of care is defined in part by the likelihood of injury).\n \n \n 11\n In this case, our canvass of the record convinces us that no reasonable jury could have determined that the defendants failed to take any precaution that ordinary prudence demanded. To be sure, the plaintiffs assert conclusorily that Mr. Reed should have monitored the use of a dangerous instrumentality on his property -- but the record does not disclose either that Mr. Reed had advance notice of Mr. Zofchak's intentions or that he had any practical opportunity to stop Mr. Zofchak in the act. Even on the plaintiffs' version of the facts, Mr. Reed became aware thatsnowblowing was in progress only moments before the accident occurred.\n \n \n 12\n Mrs. Reed likewise lacked both notice and any realistic opportunity to alter the course of events. In all events, the record is uncontradicted that she tried without success to hail Mr. Zofchak. Given the swirling snow, the noise made by the machinery, and the danger inherent in approaching the running snowblower, this lack of success is entirely understandable. And the plaintiffs have been unable to suggest any other way that Mrs. Reed rewardingly could have intervened -- there is, for example, no evidence to suggest that she had the vocal capacity to be heard from a distance over the noise of the machinery.\n \n \n 13\n In an effort to deflect the force of these points, the plaintiffs argue that the defendants should have removed the cars from the driveway, thus enabling the snowblower to maneuver more freely and to discharge the accumulation away from the house, or that they should have warned the Fithians not to go near the dining room window. These arguments do not withstand scrutiny. In the first place, nothing in the record indicates that either defendant knew that snow was being discharged against the house in time to take any effective action. In the second place, the nisi prius roll is barren of any evidence that the parked vehicles presented a realistic danger.\n \n \n 14\n The fact that the Reeds lacked the opportunity to take precautions pertains here as well. Given Mr. Zofchak's unsolicited appearance, moving the cars necessarily would have entailed approaching a man operating a concededly dangerous instrumentality and asking him to halt work while the vehicles were moved. Mrs. Reed considered making such an approach (albeit for another reason), and nothing in the record serves to cast doubt upon the validity of her conclusion that approaching the running snowblower would have been so perilous as to fall outside the realm of ordinary prudence. Finally, it was Mrs. Fithian, not the Reeds, who brought the children into the dining room, and as the only adult near the side of the house for any length of time, she was in the best position to anticipate any looming danger. The Reeds, therefore, would not be expected to warn her (or those in her charge).2 See Polak, 487 N.E.2d at 215-16.\n \n \n 15\n The case law confirms the appropriateness of brevis disposition here. To overcome summary judgment in a tort suit against an owner or occupant of real property, a plaintiff must put forth evidence of negligence, i.e., evidence of the defendant's failure to exercise due care. See Toubiana, 520 N.E.2d at 1310. Evidence that a precaution feasibly could have been taken to prevent a foreseeable injury sometimes may suffice to create a genuine issue of material fact as to negligence. See, e.g., Collins v. Northwest Airlines, Inc., 875 F. Supp. 64, 67-68 (D. Mass. 1995) (holding that airline's ongoing opportunity to enforce a policy against children entering baggage room created genuine issue of material fact as to negligence). Conversely, when an accident happens so quickly that those in the vicinity simply do not have time to react constructively, their failure to prevent the accident is not evidence of negligence. See id. (holding, as a matter of law, that airline employees did not act negligently in failing to prevent an accident occurring seconds after child arrived in restricted area). It follows inexorably that where, as here, a landowner had no feasible opportunity to remove the instrument of injury that was brought into a child's zone of exposure by a third party, she cannot be held liable for an ensuing injury. See Roderick, 631 N.E.2d at 560; see also Bandanza v. Town of Norwood, 277 N.E.2d 300, 301 (Mass. 1971).\n \n \n 16\n If more were needed -- and we doubt that it is -- we note that the record does not contain a shred of evidence that discharges from snowblowers often break windows. This lacuna renders the case at hand analogous to Ted's Master Service, Inc. v. Farina Bros., 178 N.E.2d 268, 270 (Mass. 1961), in which the Supreme Judicial Court approved a directed verdict in favor of an excavating company whose drilling was alleged to have damaged buildings (by vibration) well outside the radius of a standard survey. There, as here, the defendant had no forewarning, and the injury that occurred simply was not foreseeable.\n \n \n 17\n We need go no further. Once their good-hearted neighbor took it upon himself to start snowblowing, there was nothing the Reeds reasonably could have been expected to do to prevent the broken window. Moreover, absent good reason to know that snowblowers were likely to smash windows, the Reeds had no reason to keep their grandchildren away from the dining room window during the snowblowing operation. Because the plaintiffs have not proposed any feasible precaution, much less any precaution required by ordinary prudence, that would have averted this freak accident,3 the district court appropriately entered summary judgment.\n \n \n 18\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n The plaintiffs also sued the operator of the snowblower. That claim has been settled and need not concern us.\n \n \n 2\n The defendants attempt to take this point one step further, arguing that their duty toward their grandson was wholy negated when they left him alone with his mother. This argument is no mere makeweight, especially in regard to open and obvious risks. See, e.g., Baldwin v. Mosley, 748 S.W.2d 146, 147 (Ark. 1988). The Massachusetts courts have not passed upon the desirability of such a rule, however, and it is unnecessary for us to vaticinate whether Massachusetts would adopt it.\n \n \n 3\n Although the Reeds had not installed storm windows, the plaintiffs concede that storm windows are intended to insulate a home, not to reinforce the windows against projectiles thrown by snowblowers. Hence, the failure to take such a precaution could not be deemed a proximate cause of the bizarre accident that occurred. See Young v. Atlantic Richfield Co., 512 N.E.2d 272, 275 (Mass. 1987).\n \n \n ", "ocr": false, "opinion_id": 198843 } ]

[ "190 P.3d 496", "221 Or. App. 385" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n190 P.3d 496 (2008)\n221 Or. App. 385\nSTATE\nv.\nHARRISON.\nNo. 060444502, A134519.\nCourt of Appeals of Oregon.\nJuly 23, 2008.\nAffirmed without opinion.\n", "ocr": false, "opinion_id": 2640056 } ]

[ "592 F.2d 329" ]

[ { "author_str": "Phillips", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/592/592.F2d.329.77-5133.html", "author_id": null, "opinion_text": "592 F.2d 329\n UNITED STATES of America, Plaintiff-Appellee,v.Richard Frederick DIXON, Defendant-Appellant.\n No. 77-5133.\n United States Court of Appeals,Sixth Circuit.\n Argued Oct. 2, 1978.Decided Feb. 13, 1979.\n \n Kurt A. Philipps, Covington, Ky., (Court-appointed), for defendant-appellant.\n James K. Robinson, U. S. Atty., Christopher A. Andreoff, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.\n Before WEICK, Circuit Judge, PHILLIPS, Senior Circuit Judge, and LAWRENCE, Senior District Judge.*\n PHILLIPS, Senior Circuit Judge.\n \n \n 1\n Richard Frederick Dixon appeals from his conviction at a jury trial for air piracy, in violation of 49 U.S.C. &#167; 1472(i), and kidnapping, in violation of 18 U.S.C. &#167; 1201(a). Appellant presents a number of challenges to his conviction on the two charges. The two principal issues raised are: (1) whether the United States violated the Interstate Agreement on Detainers, 18 U.S.C. App. (1970); and (2) whether appellant was improperly convicted on both the kidnapping and air piracy charges.\n \n \n 2\n We conclude that the contentions of appellant are without merit and affirm his conviction.\n \n \n 3\n * On January 19, 1972, Dixon was indicted by a Federal Grand Jury in the Eastern District of Michigan on charges of air piracy, in violation of 49 U.S.C. &#167; 1472(i),1 and kidnapping, in violation of 18 U.S.C. &#167; 1201(a).2 The airplane hijacking from which the present charges arose occurred on October 9, 1971, when Dixon, armed with a revolver, seized a flight attendant who was assisting boarding passengers on an Eastern Airlines jet at the Detroit Metropolitan Airport. Dixon then ordered the pilot to fly the plane to Cuba. Dixon apparently remained in Cuba for some time after the hijacking.\n \n \n 4\n Approximately five years later, on January 9, 1976, Dixon was arrested by the Michigan State Police in connection with the murder of a police officer. During the course of the state investigation, state authorities discovered that Dixon was wanted by federal authorities on the air piracy and kidnapping charges. Federal authorities were notified of Dixon's arrest by the Michigan State Police.\n \n \n 5\n On March 29, 1976, Dixon was delivered from the Allegan County, Michigan, jail where he was being held by state authorities, to federal custody, pursuant to a writ of habeas corpus ad prosequendum issued on March 22, 1976. Upon his arrival in federal custody, Dixon was arraigned on the air piracy and kidnapping charges. At the time of Dixon's arraignment, federal authorities placed a detainer3 on Dixon with state prison officials at the Allegan County jail. At this time, Dixon had not entered upon a term of imprisonment in any state or federal facility. Thereafter, Dixon was returned to state custody at the Allegan County facility.\n \n \n 6\n Dixon was convicted of second degree murder in a Michigan Circuit Court on July 29, 1976. He was sentenced to life imprisonment on September 10, 1976. On September 15, 1976, he was sent to the Reception and Guidance Center of the state prison at Jackson, Michigan, for testing and final processing before his confinement. On September 22, 1976, the Guidance Center received from the Allegan County jail officials the federal detainer previously placed on Dixon.\n \n \n 7\n A final pre-trial conference on Dixon's federal charges was scheduled for September 27, 1976. On or about September 3, 1976, Dixon's then counsel, John N. Thompson, of the Federal Defender's Office of the Legal Aid and Defender Association, Detroit, Michigan, asked Christopher A. Andreoff, the Assistant United States Attorney prosecuting the case, to have Dixon brought into federal custody by writ of habeas corpus ad prosequendum at the time of the final pre-trial conference. Thompson requested Dixon's presence at the final pre-trial conference so that he might discuss the case with Dixon. Because of logistical problems Thompson had been unable to confer with Dixon personally concerning the federal charges against him at any time prior to his request of Andreoff.4 Andreoff had no intention of bringing Dixon into federal custody prior to trial and Dixon's presence was not required at the pre-trial conference. However Andreoff agreed to have Dixon delivered in time for the pre-trial conference as a courtesy to Thompson.\n \n \n 8\n Pursuant to a writ of habeas corpus ad prosequendum granted on September 13, 1976, Dixon was delivered to federal authorities in Detroit on September 24, 1976, four days after the federal detainer was lodged at the Reception Center. Dixon appeared at the pre-trial conference on September 27, 1976, and requested new counsel or the right to represent himself at trial. Dixon was permitted to represent himself and Thompson was allowed to withdraw from the case. Another attorney from the Federal Defender's Office of the Legal Aid and Defender Association was appointed to assist Dixon in his pro se defense.\n \n \n 9\n The pre-trial conference was completed on September 29, 1976, at which time the parties agreed to begin trial on November 16, 1976. Dixon requested that he be allowed to remain in federal custody for as many as 20 days, permitting him to work with his newly appointed counsel in the preparation of his case and any final motions that he might want to make. Andreoff pointed out that Dixon's state processing was being interrupted, but that he would be kept as long as possible in light of that difficulty. Dixon was returned to the Reception Center to complete his processing on October 15, 1976, and on the completion of that processing was confined, on October 26, 1976, in the State Prison of Southern Michigan at Jackson.\n \n \n 10\n Prior to trial, Dixon filed a number of motions, including a motion to compel line-up and a motion to dismiss the indictment for failure to comply with the Interstate Agreement on Detainers. Pursuant to a writ of habeas corpus ad prosequendum, Dixon was delivered again to federal authorities on November 4, 1976, for a decision on his pre-trial motions and for trial. Pre-trial hearings on Dixon's motions were held, after which the motions were denied. Dixon's trial commenced on December 7, 1976, and on December 16, 1976, the jury returned a verdict of guilty on both counts of the indictment. Dixon was sentenced to twenty year terms of incarceration on each count of the indictment, the sentences to run consecutively and consecutive to the life sentence Dixon received for his second degree murder conviction in Michigan Circuit Court.\n \n \n 11\n This appeal followed.\n \n II\n \n 12\n Congress enacted the Interstate Agreement on Detainers Act5 in 1970, joining the United States and the District of Columbia as parties to the Interstate Agreement on Detainers (Agreement), to which 46 states are signatories. The Agreement attempts to remedy the disadvantages and hardships imposed upon prisoners attendant with the use of detainers and to eliminate potential abuses of the detainer system.6 Accordingly, the Agreement encourages the expeditious disposition of outstanding charges by providing the prisoner with a method of clearing detainers and charges outstanding against him. It further provides cooperative proceedings governing temporary transfers of prisoners for purposes of trial on outstanding charges among the participating jurisdictions to aid such disposition. In either case, the provisions of the Agreement are applicable only when a participating jurisdiction, having untried charges pending against a prisoner, first lodges a detainer with the participating jurisdiction where the prisoner is incarcerated. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).\n \n \n 13\n The central provisions of the Agreement are Article III and Article IV. Article III sets forth the procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. If a prisoner demands a speedy trial pursuant to the guidelines of Article III, the jurisdiction which filed the detainer is required to bring him to trial within the Article III(a) time limit. Failure to comply will result in a dismissal of the outstanding charges, with prejudice. Article III(d) also requires the disposition of all outstanding charges in a jurisdiction prior to the return of the prisoner to the original place of incarceration. Any charges left untried after the prisoner has been returned to the original place of incarceration will be dismissed with prejudice. United States v. Mauro, supra; United States v. Ford, 550 F.2d 732 (2d Cir. 1977), Aff'd sub nom., United States v. Mauro.\n \n \n 14\n Article IV provides a means by which a prosecutor, who has lodged a detainer against a prisoner in another participating jurisdiction, can secure temporary custody of a prisoner for disposition of the outstanding charges against the prisoner. Once a prosecuting authority has gained temporary custody over a prisoner by a \"written request\" to the jurisdiction of incarceration (Art. IV(a)), two limitations are placed on the \"requesting\" prosecutor. Article IV(c) requires that trial must commence within 120 days of the prisoner's arrival in the requesting jurisdiction, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977) Cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978). Article IV(e) provides:\n \n \n 15\n \"If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.\"\n \n \n 16\n Thus, if a prosecuting jurisdiction takes the initiative to bring a prisoner, against whom it has lodged a detainer, from the jurisdiction of incarceration into its temporary custody for disposition of outstanding charges against the prisoner, the requesting jurisdiction must complete the prosecution before returning the prisoner to the jurisdiction of incarceration. See United States v. Cyphers, 556 F.2d 630, 635 (2d Cir.), Cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977).\n \n \n 17\n Appellant contends that, pursuant to Article IV(e) of the Agreement, the federal air piracy and kidnapping indictment against him should have been dismissed because he was returned from temporary federal custody to his original place of incarceration, while under a detainer, without disposition of the federal charges outstanding against him. Appellant argues that the decision in United States v. Mauro, supra, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329, is dispositive of this claim and requires dismissal of the federal indictment against him.\n \n \n 18\n In Mauro, the Supreme Court held that issuance of a writ of habeas corpus ad prosequendum by a federal court to state authorities, to secure a state prisoner for trial on criminal charges, is not a detainer within the meaning of the Agreement and therefore does not trigger its application, 436 U.S. at 349, 98 S.Ct. 1834.7 However, where the United States lodged a detainer against a state prisoner, triggering application of the Agreement's provisions, a writ of habeas corpus ad prosequendum will be considered a \"written request for temporary custody\" within the meaning of Article IV and the United States will be bound by the terms of the Agreement. The Court stated:\n \n \n 19\n Once the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions. And once a detainer has been lodged, the United States has precipitated the very problems with which the Agreement is concerned. Because at that point the policies underlying the Agreement are fully implicated, we see no reason to give an unduly restrictive meaning to the term \"written request for temporary custody.\" It matters not whether the Government presents the prison authorities in the sending State with a piece of paper labeled \"request for temporary custody\" or with a writ of habeas corpus Ad prosequendum demanding the prisoner's presence in federal court on a certain day; in either case the United States is able to obtain temporary custody of the prisoner. Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State.\n \n \n 20\n 436 U.S. at 361-62, 98 S.Ct. at 1848.\n \n \n 21\n We agree with appellant that Mauro and Article IV(e) mandate that when a state prisoner, subject to a detainer, is taken into federal custody by a writ of habeas corpus ad prosequendum \"for the purpose of permitting prosecution\" on pending federal charges, disposition of those charges must precede the prisoner's return to state custody. Failure to do so will result in dismissal of the charges against the prisoner, with prejudice.\n \n \n 22\n However, we do not find Mauro dispositive of the question presented in this case; that is, whether there is a violation of Article IV(e) where a prosecutor makes a \"written request for temporary custody\" at the behest of, and as a courtesy to defense counsel, and where the purpose is not to facilitate prosecution of outstanding federal charges but to permit defense counsel to confer with his client concerning the charges. When the prisoner is thereafter returned to state custody without a disposition of outstanding federal charges we do not believe the Agreement has been violated. We conclude that neither Mauro nor the Agreement contemplates this situation.\n \n \n 23\n The purpose of Article IV is to provide \"the means by which a prosecutor who has lodged a detainer against a prisoner in another State can secure the prisoner's presence for disposition of the outstanding charges.\" United States v. Mauro, supra, 436 U.S. at 351, 98 S.Ct. 1842. See also United States v. Ridgeway, supra, 558 F.2d at 360; Unites States v. Ford, supra, 550 F.2d at 741; United States v. Mauro, 544 F.2d 588, 590-91 (2d Cir. 1976), Rev'd, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The legislative history surrounding the adoption of the Agreement by the Congress on behalf of the United States and the District of Columbia is relatively sparse. Some insight is provided, however, as to the reasons for including Article IV in the Agreement:\n \n \n 24\n The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable.\n \n \n 25\n As was stated, prosecutors also can initiate proceedings to obtain trials of prisoners in other jurisdictions against whom charges are pending or detainers have been lodged. A request is made to appropriate officials in the jurisdiction in which the prisoner is being held. Unless the request is disapproved by the Governor of the State having custody within 30 days, temporary custody is given to the prosecutor for the purpose of transferring the prisoner and holding trial.\n \n \n 26\n S.Rep.No.91-1356, 91st Cong., 2d Sess. (1970), Reprinted in (1970) U.S.Code Cong. &amp; Admin.News, 4864, 4865.\n \n \n 27\n Furthermore, Article IV(a) of the Agreement provides, in part:\n \n \n 28\n (a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability.\n \n \n 29\n Thus, the clear intent of Article IV is to facilitate the expeditious disposition of outstanding detainers against prisoners. This is accomplished by making prisoners readily available to prosecuting authorities by the authorities' mere \"written request for temporary custody or availability.\" See United States v. Ford, supra, 550 F.2d at 741. Article V(d) defines \"temporary custody,\" as follows:\n \n \n 30\n (d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction.\n \n \n 31\n Article IV(e), by its terms, is applicable to \"temporary custodies,\" which are to facilitate prosecution of the prisoner. It does not comprehend the situation presented in this case, where the writ of habeas corpus ad prosequendum was issued solely for the benefit of the defense.\n \n \n 32\n The limitations imposed by Article IV(c) and (e) upon the prosecutor of a \"requesting\" jurisdiction are necessary corollaries to those imposed by Article III of the Agreement. Without the Article IV limitations, prosecutors could avoid the limitations prescribed by Article III by merely arraigning the prisoner without any intention of granting a prompt trial. United States v. Ford, supra, 550 F.2d at 741. In speaking of the purpose of Article IV and the need for the restriction imposed by Article IV(e), Judge Mansfield noted in his dissenting opinion in United States v. Mauro, supra, 544 F.2d at 597:\n \n \n 33\n The purpose of Art. IV is to assure that states which formerly were powerless to obtain production of prisoners held by other states or by the federal government will now be able to secure their presence, subject to certain conditions. One of these conditions is that the receiving state, after obtaining the detained prisoner merely upon request, will not abuse that privilege by returning him untried, since this would have the effect of reinstating and indefinitely prolonging the detainer lodged against him by the receiving state, with its detrimental effects.\n \n \n 34\n The Supreme Court, in Mauro, adopted the reasoning of Judge Mansfield with respect to the purpose of Article IV(e).8\n \n \n 35\n In United States ex rel. Esola v. Groomes, 520 F.2d 830, 834 (3d Cir. 1975), the Third Circuit noted:\n \n \n 36\n The purpose of the Article IV provisions is to insure that interruptions of the sending jurisdiction's incarceration are minimized, and in exchange for the small added hardship placed on the prosecutor of the demanding state regarding time limits, a simplified procedure for obtaining the defendant's presence is made available.\n \n \n 37\n Article IV(e) is intended to prevent prosecutorial abuse of the simplified method for obtaining prisoners for the disposition of outstanding charges against them, a privilege made available to prosecutors under Article IV. The sanction set forth in Article IV(e) is designed to effectuate that purpose. It is in that context that we find Article IV(e) not applicable to the facts in this case and, therefore, conclude that there was no violation of the Agreement.9\n \n \n 38\n We reemphasize that authorities lodged a detainer against appellant with Allegan County, Michigan, jail officials on March 29, 1976. On July 29, 1976, appellant was convicted of murder in Michigan Circuit Court. Appellant began his term of imprisonment on that conviction on September 10, 1976, at the State Prison at Jackson. Appellant was taken into federal custody pursuant to a writ of habeas corpus ad prosequendum on September 24, 1976, but was returned to the State Prison at Jackson on October 15, 1976, without a disposition of the federal charges.\n \n \n 39\n While it is true that appellant was delivered into federal custody at the \"request\" of the Assistant United States Attorney, that request was initiated by appellant's then counsel, Mr. Thompson, and appellant's presence in federal custody was, in all respects, solely for the benefit of appellant and Mr. Thompson. As Mr. Thompson testified at a pre-trial hearing on appellant's motion to dismiss the federal indictment:\n \n \n 40\n I spoke to Mr. Andreoff and requested that Mr. Dixon be brought here on a writ since I had not yet had an opportunity to speak to him personally and I didn't see any chance of me being able to get out to Allegan County any time within the near future, so I requested that Mr. Dixon be present for the pretrial.\n \n \n 41\n Well, ever since I first was assigned the case, I had spoken to Mr. Andreoff, and he indicated to me then that well, he asked me if I wanted to have Mr. Dixon brought in on a writ so I could talk to him, and I told him no, because I intended to go out and talk to him myself later, and I had several conversations with Mr. Andreoff.\n \n \n 42\n Probably at some point in all of those conversations, at least one of them, I indicated to him that I did not see how I was going to get out there, and I asked that he bring Mr. Dixon in on a writ since the pretrial was scheduled for September 27.\n \n \n 43\n Appendix, pp. 141-42. In order for defense counsel to have his client brought to him for consultation, it was necessary that he avail himself of the power of the prosecutor to have issued a writ of habeas corpus ad prosequendum. The Assistant United States Attorney had not intended to have the appellant delivered into federal custody until the time of the trial and appellant's delivery into federal custody on September 24, 1976, was done as a \"courtesy\" to defense counsel.\n \n \n 44\n It is readily apparent that the actions of the Assistant United States Attorney here do not present a potential for nor amount to an abuse of the privilege of easy prisoner access for the purpose of disposition of outstanding charges, which Article IV(e) is intended to proscribe. The issuance of the September 13, 1976, writ of habeas corpus ad prosequendum was to allow appellant's counsel the opportunity to meet with his client concerning the kidnapping and air piracy charges. To allow appellant to assert the sanction of Article IV(e) under these facts would permit form to prevail over substance. The transfer of appellant in this case pursuant to a writ of habeas corpus ad prosequendum does not mandate application of a sanction, the purpose of which is to protect prisoners from the abuse of a privilege granted to prosecutors allowing them easy access to the prisoners. Application of the Article IV(e) sanction in the instant case would permit appellant a windfall benefit under circumstances not contemplated by the sanction.\n \n \n 45\n We are cognizant of the Article IX proviso directing a liberal interpretation of the Agreement so as to effectuate its purposes. However, we also note that the legislative history of the Agreement states:\n \n \n 46\n The agreement gives the prisoner no greater opportunity to escape a conviction, but it does provide him with a procedure for bringing about a prompt test of the substantiality of detainers placed against him by other jurisdictions.\n \n \n 47\n S.Rep.No.91-1356, 91st Cong., 2d Sess. (1970), Reprinted in (1970) U.S.Code Cong. &amp; Admin.News, 4864, 4865.\n \n \n 48\n A superficial examination of the use of the writ in the present case might suggest that it is a \"written request for temporary custody\" as defined by the Supreme Court in Mauro, under the terms of the Agreement. A more realistic appraisal of what we have here is the use of a writ of habeas corpus ad prosequendum for the purpose of permitting defense counsel to confer with his client. We, conclude therefore, that Article IV(e) does not apply under the facts presented in the instant case.\n \n III\n \n 49\n Appellant was convicted of air piracy, in violation of 49 U.S.C. &#167; 1472(i), and kidnapping, in violation of 18 U.S.C. &#167; 1201(a). Appellant contends that &#167; 1472(k)(1) of the air piracy statute expressly limits the offenses which can be joined and tried with air piracy. Kidnapping is not embraced by &#167; 1472(k)(1), and therefore, appellant argues, the government is estopped, by prosecuting him under &#167; 1472(i), from proceeding against him under &#167; 1201 (kidnapping). Appellant further suggests that the offenses of air piracy and kidnapping should merge under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).\n \n \n 50\n In 1961, Congress amended the Federal Aviation Act of 1958, making it a federal crime to exercise control, by threat of force with wrongful intent, of \"an aircraft in flight in air commerce,\" &#167; 902(i), 75 Stat. 466, 49 U.S.C. &#167; 1472(i). The Act was further amended by adding, among other subsections, subsection (k), which provides, as follows:\n \n Certain crimes aboard aircraft in flight\n \n 51\n (k)(1) Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, commits an act which, if committed within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of Title 18, would be in violation of section 113, 114, 661, 662, 1111, 1112, 1113, 2031, 2032, or 2111 of such Title 18 shall be punished as provided therein.\n \n \n 52\n (2) Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, commits an act, which, if committed in the District of Columbia would be in violation of section 9 of the Act entitled \"An Act for the preservation of the public peace and the protection of property within the District of Columbia\", approved July 29, 1892, as amended (D.C.Code, sec. 22-1112), shall be punished as provided therein.\n \n \n 53\n The addition of subsection (k) extended Federal criminal laws to certain acts committed on board aircraft, including assault, maiming, murder, manslaughter, rape, and robbery.\n \n \n 54\n The legislative history surrounding the 1961 amendments demonstrates Congress' concern over the peculiar problem of enforcement of state laws for criminal acts perpetrated in aircrafts in flight. The House of Representatives Report on the 1961 amendments underscored the great need for the legislation:\n \n \n 55\n (I)n the case of crimes committed in the airspace over States of the United States, most of the acts with which this legislation deals would be violations of the laws of one or more of such States. However, crimes committed in the airspace over a State pose peculiar and extremely troublesome problems of enforcement which are not present when such crimes take place on the ground. When a criminal moves the scene of his activity to an aircraft in flight he is able to take advantage of practical and physical difficulties that may seriously impair effective apprehension and prosecution, particularly if the offense is one against the law of a State rather than against Federal law. Furthermore, in the case of offenses against State law, State officials are often faced with an insuperable task in trying to establish that a particular act occurred in the airspace over that State and in some cases, under State law, it would be necessary to prove that the offense was committed over a particular county in the State. It is obvious that such proof may be very difficult and often impossible if the offense is committed on a jet aircraft traveling at 600 miles per hour at an altitude of 30,000 feet.Although State criminal statutes generally cover crimes committed on board aircraft in flight over the State, the advent of high-speed high-altitude flights of modern jet aircraft has complicated the problem of establishing venue for the purposes of prosecution. In some recent instances, serious offenses have gone unpunished because it was impossible to establish to any reasonable degree of accuracy the State over which the crime was committed.\n \n \n 56\n H.R.Rep.No.958, 87th Cong. 1st Sess. (1961), Reprinted in (1961) U.S.Code Cong. &amp; Admin.News, 2563-64.\n \n \n 57\n The section-by-section explanation of the 1961 amendments provides further insight into Congress' addition of subsection (k) to &#167; 1472. That explanation states, in part:\n \n \n 58\n Paragraph (1) would provide the same penalties for crimes such as assault, maiming, murder, manslaughter, rape, and robbery, when committed aboard an aircraft in flight in air commerce, as are provided for such crimes by specific provisions of title 18 of the United States Code, when committed within the \"special maritime and territorial jurisdiction of the United States,\" as that term is defined by section 7 of such title 18. The crimes referred to would be punishable regardless of whether there was any connection between the specific crime and the offense of aircraft piracy.\n \n \n 59\n As has been heretofore pointed out in this report, these crimes normally involve acts which are offenses under State law, but the difficulties of prosecution under State law make it desirable to provide that these crimes also shall be offenses under Federal law when committed aboard aircraft in flight in air commerce.\n \n \n 60\n (Footnote omitted.) H.R.Rep.No.958, 87th Cong. 1st Sess. (1961), Reprinted in (1961) U.S.Code Cong. &amp; Admin.News, 2563, 2570-71.\n \n \n 61\n Appellant's contention that &#167; 1472(k) limits the crimes that can be joined with aircraft piracy is untenable. The intent of Congress in amending49 U.S.C. &#167; 1472 to include subsection (k) does not portend to limit to the &#167; 1472 crimes those which can be prosecuted with air piracy. To the contrary, &#167; 1472(k) seeks to supplement state laws, in an area in which they have proved inadequate, by giving the Federal Government concurrent jurisdiction over crimes committed on board aircraft in flight. Kidnapping is not a crime peculiarly within the province of the States, as are those crimes included in &#167; 1472(k). Furthermore, when a kidnap victim is transported in interstate commerce, or specifically when a person is seized within the special aircraft jurisdiction of the United States as defined in 49 U.S.C. &#167; 1301(34),10 the federal kidnapping statute is applicable and, therefore, there is no need to include kidnapping within the scope of &#167; 1472(k).\n \n \n 62\n The fundamental rule concerning prosecution of two offenses was enunciated in Blockburger v. United States, supra, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), wherein the Supreme Court stated:\n \n \n 63\n (W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.\n \n \n 64\n 284 U.S. at 304, 52 S.Ct. at 182.\n \n \n 65\n See also United States v. Shelton, 573 F.2d 917, 919 (6th Cir.), Cert. denied, --- U.S. ----, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978).\n \n \n 66\n The crime of aircraft piracy is defined in 49 U.S.C. &#167; 1472(i)(2), as follows:\n \n \n 67\n (2) As used in this subsection, the term \"aircraft piracy\" means Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, and with wrongful intent, Of an aircraft within the special aircraft jurisdiction of the United States. (Emphasis added.)\n \n \n 68\n Thus, the elements of proof required under an air piracy charge are: (1) Seizure or exercise of control of an aircraft; (2) by force, violence, or intimidation, or the threat thereof; (3) with wrongful intent; (4) while in the special aircraft jurisdiction of the United States. As the legislative history concerning the addition of subsection (i) to &#167; 1472 reveals, the critical element of the crime is the aircraft seizure:\n \n \n 69\n The proposed new subsection (i) would define the offense of \"aircraft piracy\" and provide penalties for anyone who commits or attempts to commit such offense. This is the provision of the bill which is aimed at the acts commonly referred to in the press as the \"hijacking\" of aircraft.\n \n \n 70\n H.R.Rep.No.958, 87th Cong. 1st Sess. (1961), Reprinted in (1961) U.S.Code Cong. &amp; Admin.News, 2563, 2567.\n \n \n 71\n Kidnapping, on the other hand, involves the seizure of a person, 18 U.S.C. &#167; 1201(a) provides, in part:\n \n S 1201. Kidnaping\n \n 72\n (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof . . ..\n \n \n 73\n In Durns v. United States, 562 F.2d 542, 545 n. 5 (8th Cir.), Cert. denied, 434 U.S. 959, 98 S.Ct. 490, 54 L.Ed.2d 319 (1977), the statutory elements to establish the crime of kidnapping under &#167; 1201 were listed:\n \n 5. The elements are:\n \n 74\n (1) interstate transportation of the victim;\n \n \n 75\n (2) lack of consent;\n \n \n 76\n (3) holding for ransom, reward or otherwise;\n \n \n 77\n (4) the doing of such acts knowingly and willfully.\n \n \n 78\n (Citations omitted.)\n \n \n 79\n The District of Columbia Court of Appeals noted, in United States v. Wolford, 144 U.S.App.D.C. 1, 8, 444 F.2d 876, 883 (1971), that \" 'the heart of the crime' of kidnapping is a seizure and detention against the will of the victim.\"\n \n \n 80\n In United States v. Healey, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), the Supreme Court upheld a two-count indictment charging kidnapping and air piracy where the accused kidnapped the pilot of a private airplane, at gunpoint, and forced the pilot to fly them from Florida to Cuba. In Wolford, supra, that court was confronted with the question whether the crime of kidnapping, which was perpetrated during the course of and in furtherance of an armed robbery, merged into the armed robbery charge. The Wolford court relied on Healey in concluding that the two crimes did not merge, and stated of Healey :\n \n \n 81\n And United States v. Healey, supra, is an even better example of applying the kidnaping statute where another crime (air piracy) is committed contemporaneously with the kidnaping.\n \n \n 82\n 444 F.2d at 882-83.\n \n \n 83\n In this case we have two distinct acts resulting in two crimes, defined by separate statutes that are not in Pari materia. Here, appellant seized, at gunpoint, the flight attendant who was positioned at the plane's forward loading door, while passengers were still boarding the airplane. Subsequently, by threat of force, appellant commandeered the aircraft to Cuba. The kidnapping charge required proof of the seizure of the flight attendant. The air piracy charge, on the other hand, required proof of the seizure of an aircraft. While the element of force, necessary to proving the charge of air piracy, may have been the threat to the safety of the flight attendant, that in no way alters the fact that she was kidnapped. The application of both the kidnapping and air piracy statutes to the facts of this case is thus entirely proper.\n \n \n 84\n The court has considered the other grounds asserted by appellant for reversal and finds them to be without merit.\n \n \n 85\n The judgment of the district court is affirmed.\n \n \n \n *\n Honorable Alexander A. Lawrence, Senior Judge, United States District Court for the Southern District of Georgia, sitting by designation\n \n \n 1\n Section 1472(i) provides:\n Aircraft piracy\n (i)(1) Whoever commits or attempts to commit aircraft piracy, as herein defined, shall be punished\n (A) by imprisonment for not less than 20 years; or\n (B) if the death of another person results from the commission or attempted commission of the offense, by death or by imprisonment for life.\n (2) As used in this subsection, the term \"aircraft piracy\" means any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, and with wrongful intent, of an aircraft within the special aircraft jurisdiction of the United States.\n (3) An attempt to commit aircraft piracy shall be within the special aircraft jurisdiction of the United States even though the aircraft is not in flight at the time of such attempt if the aircraft would have been within the special aircraft jurisdiction of the United States had the offense of aircraft piracy been completed.\n \n \n 2\n Section 1201(a) provides:\n S 1201. Kidnaping\n (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when:\n (1) the person is willfully transported in interstate or foreign commerce;\n (2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;\n (3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 101(32) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1301(32)); or\n (4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title,\n shall be punished by imprisonment for any term of years or for life.\n \n \n 3\n A detainer is simply a notice filed with the institution in which a prisoner is serving a sentence, advising that the prisoner is wanted to face pending criminal charges elsewhere, and requesting the custodian to notify the filing jurisdiction prior to releasing the prisoner. Filing a detainer is an informal process that generally can be done by any person who has authority to take a prisoner into custody. Furthermore, a detainer remains lodged against a prisoner without any action being taken on it. Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977), Cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978). See also United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978)\n \n \n 4\n Mr. Thompson was appointed to represent appellant on the federal charges some time after appellant's arraignment on those charges on March 29, 1976. Mr. Thompson originally intended to visit appellant at the Allegan County jail where appellant was being held in state custody and sent appellant a letter to that effect. In several discussions with Mr. Andreoff, Mr. Thompson indicated that it would not be necessary to have appellant delivered from state to federal custody because he was planning to visit appellant at the Allegan County jail\n As a result of Mr. Thompson's schedule and because of the considerable distance between Detroit, where Mr. Thompson was located, and the Allegan County jail, Mr. Thompson concluded that he would not have an opportunity to meet with his client prior to the final pre-trial conference. Mr. Thompson informed Mr. Andreoff of these circumstances and Mr. Andreoff agreed to have appellant delivered to federal custody at the time of the pre-trial conference, for the sole purpose of allowing Mr. Thompson the opportunity to talk with appellant.\n \n \n 5\n Pub.L. No. 91-538, &#167;&#167; 1-8, 84 Stat. 1397 (1970), reprinted in 18 U.S.C.A. App. at 271 (Supp.1978)\n \n \n 6\n Article 1 of the Agreement sets forth some of the reasons for its adoption, to wit:\n Article I\n The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.\n See also United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977), Cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978); United States v. Ford, 550 F.2d 732 (2d Cir. 1977), Aff'd sub nom., United States v. Mauro, supra.\n \n \n 7\n This court held to the same effect in Ridgeway v. United States, supra, 558 F.2d 357 (6th Cir.), Cert. denied, 436 U.S. 946, 98 S.Ct. 2856, 56 L.Ed.2d 788 (1977)\n \n \n 8\n 436 U.S. 340, 361 n. 26, 98 S.Ct. 1834, 56 L.Ed.2d 329\n \n \n 9\n We recognize that Article IV(e) is for the benefit of the prisoner and is waivable. United States v. Ford, supra, 550 F.2d at 735; United States v. Palmer, 574 F.2d 164 (3rd Cir.), Cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978). In light of our decision, however, we do not reach the question whether the appellant's rights under IV(e) were waived because appellant was brought into federal custody at the request of his attorney\n \n \n 10\n 18 U.S.C. &#167; 1201(a)(3)\n \n \n ", "ocr": false, "opinion_id": 363545 } ]

[ "968 N.E.2d 80", "360 Ill. Dec. 1" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n968 N.E.2d 80 (2012)\n360 Ill. Dec. 1\nBURAGLIO\nv.\nVILLAGE OF WAPELLA.\nNo. 113579.\nSupreme Court of Illinois.\nMarch 1, 2012\nDisposition of Petition for Leave to Appeal Denied.\n", "ocr": false, "opinion_id": 2434085 } ]

[ "2012 Ohio 6316" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/13/2012/2012-ohio-6316.pdf", "author_id": null, "opinion_text": "[Cite as Yates v. Ohio State Univ. Med. Ctr., 2012-Ohio-6316.]\n\n\n\n\n Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\nWILMA S. YATES, et al.\n\n Plaintiffs\n\n v.\n\nTHE OHIO STATE UNIVERSITY MEDICAL CENTER\n\n Defendant\n\nCase No. 2010-02189\n\nJudge Joseph T. Clark\n\nDECISION\n\n {¶ 1} Wilma Yates, hereinafter “plaintiff,” brought this action alleging medical\nnegligence; her husband, Roger Yates, also asserts a claim for loss of consortium. The\nissues of liability and damages were bifurcated and the case proceeded to trial on the\nissue of liability.\n {¶ 2} Plaintiff testified by way of deposition that in the spring of 2008, she visited\nher primary care physician, Charles R. Keller, D.O., at his office in Logan, Ohio with\ncomplaints of rectal bleeding and pain in her side. Dr. Keller referred plaintiff to see\nMichael S. Tornwall, M.D., a general surgeon at the Hocking Valley Community Hospital\nin Logan. Dr. Tornwall had performed a colonoscopy on plaintiff in 2003, at which time\nhe removed two polyps that had the potential to become cancerous. Dr. Tornwall\ntestified via deposition that when plaintiff was referred to him in 2008, based upon her\nsymptoms and history, he decided that she should undergo another colonoscopy.\n {¶ 3} Dr. Tornwall performed the procedure on May 15, 2008, and in his operative\nreport he wrote, in part: “At the hepatic flexure there was what appears to be at least an\nadenoma with a focus, it was concerning for possible invasive cancer. Multiple biopsies\n\fwere obtained of this region.” (Joint Exhibit 1A, p. 128.) (The hepatic flexure is the\npoint where the ascending colon turns into the transverse colon, and it is located next to\nthe liver.) The operative report noted that the polyp at the hepatic flexure was\nulcerated, and, while the report did not detail the size of the polyp, Dr. Tornwall later\ntestified that he could recall it being about 3 to 3.5 centimeters in diameter. Dr. Tornwall\nstated that he felt it would be difficult for him to attempt to remove the polyp at that time\nwithout risking perforation of the bowel. Also during the colonoscopy, Dr. Tornwall\nattempted to remove what appeared to be a benign polyp from the sigmoid colon, but\nhe abandoned that effort because he was not able to obtain a good view of it and\nbecause he was concerned that plaintiff’s anesthesia would soon wear off.\n {¶ 4} As a result of his findings during the colonoscopy, Dr. Tornwall\nrecommended that plaintiff have a follow-up evaluation with a specialist in the next few\nweeks regardless of the outcome of the biopsy studies. (On May 16, 2009, a pathology\nreport was issued which stated that the biopsy samples were determined to be benign\n“portions of mildly inflamed hyperplastic polyp.” Joint Exhibit 4, p. 28.) Plaintiff testified\nthat Dr. Keller consequently arranged an appointment for her to see Mark Arnold, M.D.,\nwho practices colon and rectal surgery at The Ohio State University Medical Center.\nDr. Arnold is employed with defendant as a professor of surgery and is the vice\nchairman of the department of surgery.\n {¶ 5} Plaintiff and her husband met with Dr. Arnold at his office on June 3, 2008,\nand it was determined at that time that plaintiff would undergo further evaluation via\ncolonoscopy. On July 24, 2008, Dr. Arnold performed the colonoscopy at The Ohio\nState University Medical Center. During the procedure, Dr. Arnold removed a benign\npolyp from the sigmoid colon, consistent with the polyp observed in that region by Dr.\nTornwall, and he also found diverticulosis in the sigmoid colon. According to his\noperative report, the examination was otherwise normal and it was recommended that\nplaintiff undergo a follow-up colonoscopy in two years. (Joint Exhibit 4, p. 2.)\n {¶ 6} Plaintiff testified that after learning of Dr. Arnold’s findings and reviewing\nfilm of the procedure, she grew concerned that he may have not sufficiently examined\nthe area of the colon with which Dr. Tornwall was concerned for a potentially malignant\npolyp. Plaintiff stated that she telephoned Dr. Arnold’s office to inquire further and was\n\finformed that Dr. Arnold had only seen inflammation in the area of concern, but that he\nrecommended for her to schedule another colonoscopy in six months. Dr. Arnold\ntestified that he has some recollection of plaintiff contacting his nurse, and that he\nconsequently reviewed her records and confirmed that no abnormalities were found at\nthe hepatic flexure. He added, however, that in light of plaintiff’s concern, he revised his\noriginal recommendation regarding a follow-up colonoscopy such that she was advised\nto have one in six months rather than in two years. (Joint Exhibit 4, p. 12.)\n {¶ 7} Plaintiff stated that a few months later, she began to feel weak and\ndeveloped pain in the right side of her abdomen. As a result, she visited Dr. Keller for\nan examination on February 20, 2009. That visit was followed by a series of diagnostic\ntests over the next several weeks which revealed that plaintiff was suffering from\nmetastatic colon cancer with metastasis to the liver. Plaintiff elected to treat the cancer\nthrough chemotherapy and a surgical procedure that removed half her colon, known as\na hemicolectomy. The pathology analysis that was performed after the hemicolectomy\nrevealed a malignant polyp that was located 2.5 centimeters, or about one inch, from\nthe ileocecal valve, near the bottom of the ascending colon. (Joint Exhibit 1B, p. 781.)\n {¶ 8} In her complaint, plaintiff alleges that when Dr. Arnold performed the follow-\nup colonoscopy, he failed to focus on the area of the colon with which Dr. Tornwall was\nconcerned, and that this caused a delay in the detection of her cancer and thereby\nadversely affected her prognosis. “To prevail on a claim for medical negligence, a\nplaintiff must demonstrate the following three elements: (1) the existence of a standard\nof care within the medical community; (2) the defendant’s breach of that standard; and\n(3) proximate cause between the defendant’s breach and the plaintiff’s injury.” Fritch v.\nUniv. of Toledo College of Med., 10th Dist. No. 11AP-103, 2011-Ohio-4518, ¶ 6.\n {¶ 9} “In order to establish medical [negligence], it must be shown by a\npreponderance of the evidence that the injury complained of was caused by the doing of\nsome particular thing or things that a physician or surgeon of ordinary skill, care and\ndiligence would not have done under like or similar conditions or circumstances, or by\nthe failure or omission to do some particular thing or things that such a physician or\nsurgeon would have done under like or similar conditions or circumstances, and that the\n\finjury complained of was the direct result of such doing or failing to do some one or\nmore of such particular things.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 131 (1976).\n {¶ 10} Plaintiffs presented expert testimony from Jeffrey Snow, M.D., who is\nboard certified in both colo-rectal and general surgery and practices the same in Fort\nLauderdale, Florida. In Dr. Snow’s opinion, the malignant polyp that was found near the\nileocecal valve after the hemicolectomy was the same polyp that Dr. Tornwall had\ndescribed as being near the hepatic flexure. Dr. Snow explained that in light of both the\nunusual degree of twisting in plaintiff’s colon and the difficulty that Dr. Tornwall had in\nmaneuvering the scope through the colon, Dr. Tornwall’s identification of the polyp as\nbeing near the hepatic flexure was a “rough location.” According to Dr. Snow, the\nhepatic flexure is about five to six inches from the ileocecal valve, and based upon Dr.\nTornwall’s operative report and the pathology report from the hemicolectomy, he\nbelieves that Dr. Tornwall’s stated area of concern was about four to five inches from\nthe actual location. He acknowledged, though, that the ileocecal valve is an easily\nidentifiable landmark that Dr. Tornwall recorded seeing during his colonoscopy and that\nwas very near the malignant polyp, yet Dr. Tornwall did not reference this feature in\ndescribing the area that he was concerned about.\n {¶ 11} Concerning the standard of care, Dr. Snow testified that when a patient is\nreferred for a follow-up or second-opinion colonoscopy, the physician receiving that\nreferral has a duty to understand why it was made, and that this requires reviewing the\nappropriate medical records and, if necessary, contacting the referring physician. He\nfurther testified that the care rendered by the physician must be focused on the area of\nconcern that prompted the referral.\n {¶ 12} Dr. Snow testified that there is no documentation in the medical records to\nshow that Dr. Arnold paid special attention to the area of Dr. Tornwall’s concern, the\nhepatic flexure, and that the records instead reflect that he performed a routine, general\ncolonoscopy. Dr. Snow opined that based upon the medical records in this case, he\nbelieves that Dr. Arnold failed to pay special attention to the hepatic flexure, including\nspending additional time in that area during the colonoscopy and making extra passes\nwith the scope in that area, and thereby violated the standard of care. He\nacknowledged, however, that if Dr. Arnold had paid sufficient attention to the area of\n\fconcern, the standard of care of would have been met whether or not he specifically\ndocumented any special attention given to that area.\n {¶ 13} In Dr. Snow’s opinion, if Dr. Arnold had paid sufficient attention to the area\nthat Dr. Tornwall was concerned with at the hepatic flexure, he would have seen the\nmalignant polyp that was ultimately found a few inches from there. Nonetheless, Dr.\nSnow admitted that colonoscopies are not foolproof in that they can fail to detect polyps,\nparticularly because of anatomical differences in patients, such as folding or twisting of\nthe bowel, or pockets of stool adhered to the bowel that can hide or obscure polyps. Dr.\nSnow stated that plaintiff’s colon had more twisting than is normal.\n {¶ 14} Plaintiffs also presented expert testimony from Barry Singer, M.D., who\npractices medical oncology and hematology in Norristown, Pennsylvania, and who is\nboard certified in internal medicine, with sub-specialities in oncology and hematology.\nDr. Singer opined that the polyp described by Dr. Tornwall was the same polyp removed\nduring the hemicolectomy. According to Dr. Singer, Dr. Tornwall’s description of the\npolyp in his operative report and in his deposition testimony was consistent with the\ndescription of the polyp that was analyzed in the hemicolectomy pathology report. He\nstated that the area of Dr. Tornwall’s concern, at the hepatic flexure, was about four to\nfive inches from the ileocecal valve region where the malignant polyp was found.\n {¶ 15} Dr. Singer testified that the polyp removed during the hemicolectomy was\npoorly differentiated, and that this characteristic is indicative of an aggressive, fast-\ngrowing variety of cancer. But, he acknowledged that subsequent to plaintiff’s\ndiagnosis, the growth rate of the masses on plaintiff’s liver was actually documented to\nbe quite slow.\n {¶ 16} Regardless, Dr. Singer’s opinion is that during the relevant period of time,\nthe cancer was growing at an aggressive pace. He opined that when Dr. Tornwall\nperformed his colonoscopy in May 2008, the cancer was at “stage two,” meaning that it\nwas confined to the bowel. He further opined that when Dr. Arnold performed the\nfollow-up colonoscopy in July 2008, the cancer had progressed to early stage three,\nmeaning that minimal metastasis to the lymph nodes had occurred. According to Dr.\nSinger, in general, colon cancer is capable of curative treatment only until early stage\nthree. Dr. Singer thus opined that if plaintiff had been diagnosed with colon cancer at or\n\fabout the time of the follow-up colonoscopy in July 2008, it would have been possible\nfor her to survive the disease. But, Dr. Singer stated that plaintiff’s diagnosis did not\noccur until the cancer was at stage four, meaning that it had metastasized from the\nlymph nodes to other organs, and that a diagnosis at that stage carries no chance of\nsurvival.\n {¶ 17} Defendant presented expert testimony from William Ciroco, M.D., a colo-\nrectal surgeon who practices in Detroit. Dr. Ciroco opined that the polyp Dr. Tornwall\ndescribed at the hepatic flexure was not the same polyp that was ultimately found near\nthe ileocecal valve. Dr. Ciroco testified that the ileocecal valve is an easily identifiable\nlandmark, that the hepatic flexure is in a distinctly separate area from the ileocecal\nvalve, and that it is very unlikely that an experienced colonoscopist such as Dr. Tornwall\nwould have so grossly mistaken the area of concern.\n {¶ 18} In Dr. Ciroco’s opinion, what Dr. Tornwall observed was a hyperplastic\npolyp, meaning a small lesion not believed to be pre-cancerous, at the hepatic flexure.\nHe further opined that this hyperplastic polyp was either substantially removed by virtue\nof Dr. Tornwall removing several specimens for biopsy, or it resolved on its own. Dr.\nCiroco added that while Dr. Tornwall remembered in his deposition that the polyp he\nsaw was about three centimeters across, which is similar to the size of the malignant\npolyp that was ultimately removed, he made no such size estimate in his operative\nreport.\n {¶ 19} Dr. Ciroco stated that he performs between 250 and 300 colonoscopies\nannually, including “second-opinion” or “follow-up” procedures. He explained that the\nstandard of care in treating patients who have been referred for such procedures is that,\nif the physician can understand the basis for the referral upon reviewing the relevant\nmedical records, it is not necessary to contact the referring physician. He further\nexplained that the standard of care during the performance of the colonoscopy requires\nthat the area of concern be thoroughly examined, but also that the entire bowel be\nexamined, particularly because the area of concern may have been inaccurately\ndescribed. He opined that the 45-minute duration of the colonoscopy performed by Dr.\nArnold is longer than is normal for a routine colonoscopy, and it was an appropriate\nlength of time in which to perform a follow-up colonoscopy.\n\f {¶ 20} Defendant also presented expert testimony from Ronald Blum, M.D., a\nmedical oncologist who serves as the director of the cancer center and programs at\nboth Beth Israel Medical Center and St. Luke’s Roosevelt Hospital Center in New York\nCity, and he is also a professor of medicine at Albert Einstein College of Medicine. Dr.\nBlum is board certified in internal medicine, with a sub-specialty certification in medical\noncology.\n {¶ 21} Dr. Blum opined that Dr. Tornwall’s findings regarding the area of concern\nwere ambiguous, and that what Dr. Tornwall probably saw was an inflammatory polyp.\nDr. Blum noted that the pathology report from the biopsy specimens of the hepatic\nflexure indeed documented inflammation, and he explained that the malignant tumor\nthat was ultimately removed was approximately 20 centimeters from the hepatic flexure,\nwhich he considers to be outside the area of Dr. Tornwall’s concern.\n {¶ 22} Regarding the growth rate of plaintiff’s cancer, Dr. Blum acknowledged\nthat poorly differentiated masses such as plaintiff’s tend to be associated with a high\ngrowth rate, but he stated a slow growth rate is actually demonstrated by the facts of\nplaintiff’s case, such as the documented growth rate of the tumors on the liver, as well\nas the fact that the metastasis to the liver was well-developed by the time it was\ndetected in March 2009. He added that by late 2008 and early 2009, when plaintiff\nmanifested pain and other clinical symptoms of stage four cancer, the cancer had\nprobably been present long before then without symptoms. Dr. Blum testified that this\ntype of cancer generally grows at a consistent rate over time, and that the known growth\nrate that was documented for the tumors on the liver can thus be extrapolated backward\nin time to determine the cancer’s overall progress.\n {¶ 23} In Dr. Blum’s opinion, plaintiff had stage four cancer with metastasis to the\nliver in the spring and summer of 2008, when both Dr. Tornwall and Dr. Arnold\nperformed their respective colonoscopies. According to Dr. Blum, a patient such as\nplaintiff with metastatic colon cancer has a 20 percent survival rate over five years, and\nhis opinion is that plaintiff’s prognosis would have been the same even if Dr. Arnold had\ndetected the malignant tumor in July 2008.\n {¶ 24} Upon review of the evidence presented at trial, the court finds that the\ntreatment rendered by Dr. Arnold complied with the relevant standard of care at all\n\ftimes. The court finds that Dr. Arnold, who performs hundreds of “follow-up” or “referral”\ncolonoscopies every year, understood the concern that prompted plaintiff’s referral and\nperformed an appropriate follow-up colonoscopy that included a thorough evaluation of\nthe hepatic flexure of the colon, which is the location identified by Dr. Tornwall as\nconcerning for a possible malignant polyp.\n {¶ 25} The court finds that the testimony of Drs. Blum and Ciroco demonstrates\nthat what Dr. Tornwall was concerned about at the hepatic flexure was actually a benign\ninflammatory or hyperplastic polyp that either resolved on its own or was removed by\nthe taking of biopsy samples. Indeed, the six biopsy specimens that Dr. Tornwall took\nfrom the hepatic flexure were determined upon pathology analysis to be benign\n“portions of mildly inflamed hyperplastic polyp.” (Joint Exhibit 4, p. 28.)\n {¶ 26} The pathology analysis performed after the hemicolectomy revealed one\nmalignant polyp that was located about one inch from the ileocecal valve that serves as\nlandmark at the bottom of the ascending colon, several inches from the hepatic flexure\nthat marks the top of the ascending colon. The court finds that the malignant polyp was\nthus outside the area of concern that had prompted plaintiff’s referral to Dr. Arnold.\nWhile Dr. Arnold’s credible testimony demonstrates that he paid special attention to the\nhepatic flexure, no matter how thoroughly he examined that area, he would not have\nseen a polyp there. According to Dr. Ciroco, a physician performing a follow-up\ncolonoscopy must also thoroughly look beyond the area of concern inasmuch as the\nreferring physician could have inaccurately identified it, and Dr. Ciroco convincingly\ntestified that that was exactly what Dr. Arnold did in this case.\n {¶ 27} Although Dr. Arnold admittedly failed to detect the polyp near the ileocecal\nvalve, the expert witnesses in this case agreed that colonoscopies are not perfect\nprocedures and that due to issues such as folding or twisting of the bowel, or pockets of\nstool adhering to the bowel, the standard of care does not require that every polyp be\ndetected.\n {¶ 28} Additionally, the court finds that the greater weight of the evidence does\nnot support the causation element of plaintiffs’ claim. In the court’s opinion, Dr. Blum’s\ntestimony concerning the growth rate of plaintiff’s cancer corresponds to the medical\nrecords better and was more persuasive than the testimony of Dr. Singer, and\n\faccording to Dr. Blum, plaintiff’s cancer had already metastasized to the liver by the\ntime of the follow-up colonoscopy. All the experts in this case agreed that once\nmetastasis to the liver had occurred, plaintiff’s prognosis was terminal.\n {¶ 29} Given that the court finds that plaintiffs have failed to prove their claim of\nmedical negligence, the derivative claim for loss of consortium also must fail. Bowen v.\nKil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992).\n {¶ 30} Based on the foregoing, judgment shall be entered in favor of defendant.\n\f Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\n\n\nWILMA S. YATES, et al.\n\n Plaintiffs\n\n v.\n\nTHE OHIO STATE UNIVERSITY MEDICAL CENTER\n\n Defendant\n\nCase No. 2010-02189\n\nJudge Joseph T. Clark\n\nJUDGMENT ENTRY\n\n {¶ 31} This case was tried to the court on the issue of liability. The court has\nconsidered the evidence and, for the reasons set forth in the decision filed concurrently\nherewith, judgment is rendered in favor of defendant. Court costs are assessed against\nplaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of\nentry upon the journal.\n\n\n\n _____________________________________\n JOSEPH T. CLARK\n Judge\n\ncc:\n\fAshley L. Oliker Gordon D. Evans II\nKarl W. Schedler Mark E. Defossez\nAssistant Attorneys General 495 South High Street, Suite 300\n150 East Gay Street, 18th Floor Columbus, Ohio 43215\nColumbus, Ohio 43215-3130\n\n001\nFiled July 9, 2012\nTo S.C. Reporter January 16, 2013\n\f", "ocr": false, "opinion_id": 2694741 } ]

[ "338 B.R. 917" ]

[ { "author_str": "Williams", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n338 B.R. 917 (2006)\nIn re Leareen Huffman WRIGHT and James Otis Wright, Debtors.\nNo. 05-34240-DHW.\nUnited States Bankruptcy Court, M.D. Alabama.\nFebruary 28, 2006.\n*918 Earl Gillian, Jr., Montgomery, AL, for Debtors.\n\nMEMORANDUM OPINION\nDWIGHT H. WILLIAMS, JR., Bankruptcy Judge.\nCentrix Funds Series CLPF (\"Centrix\") filed an objection on January 12, 2006 to confirmation of the chapter 13 plan proposed by the debtors. At issue is whether under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub.L. No. 109-8) (\"BAPCPA\") the plan may modify the contractual interest rate applicable to the creditor's secured claim.\n\nJurisdiction\nThe court's jurisdiction in this matter stems from 28 U.S.C. § 1334 and from the United States District Court for this district's general order referring all title 11 matters to this court. Further, because the issue concerns the confirmation of a plan, this is a core proceeding under 28 U.S.C. § 157(b)(2)(L), thereby extending the court's jurisdiction to the entry of a final order or judgment.\n\nFactual Findings\nThe facts are undisputed. On May 29, 2004, the debtors purchased a 2004 Nissan Altima. The purchase price of the vehicle was financed by Centrix, and Centrix took a security interest in the vehicle.\nOn December 5, 2005, the debtors filed this chapter 13 case. The plan treats the claim of Centrix as fully secured. Further, the plan provides that Centrix will be paid interest on its claim at the rate of 7.75%.\nCentrix filed a proof of claim totaling $18,747.38. The claim reflects a contract interest rate of 17.90%.\n\nConclusions of Law\nCentrix contends that it is entitled to the 17.90% contract interest rate on its secured claim. The court disagrees.\nIf a debtor retains lien-encumbered property under a chapter 13 plan and pays the underlying secured claim in deferred installments, the creditor is entitled to interest on the secured claim. The Code provides:\n(ii) the value, as of the effective date of the plan, of property to be distributed *919 under the plan on account of such claim is not less than the allowed amount of such claim;\n11 U.S.C. § 1325(a)(5)(B)(ii).\nThe Supreme Court in Till v. SCS Credit Corporation, 541 U.S. 465, 124 S. Ct. 1951, 158 L. Ed. 2d 787 (2004) addressed the issue of the appropriate rate of interest to be applied under § 1325(a)(5)(B)(ii). There the Court held that the so-called formula approach, which starts with the prime national interest rate and adjusts for risk of nonpayment, is the appropriate method in determining the adequate interest rate to be paid on secured claims. Id. at 478-80, 124 S. Ct. 1951. In so doing, the Court specifically rejected the presumptive contract interest rate approach as the proper method to determine § 1325(a)(5)(B)(fi) interest. Id. at 477, 124 S. Ct. 1951.\nCentrix contends that under the facts in this case Till no longer applies. First, Centrix maintains that Till is applicable only to chapter 13 plans that are \"crammed down.\" Centrix reasons that because its claim in this case is fully secured, this is not a \"cram down\" case. Centrix, however, confuses the term \"cram down\" with the term \"strip down.\"\n\"Cram down\" is a term that refers to confirmation of a chapter 13 plan over the objection of the holder of a claim. Associates Commercial Corp. v. Rash, 520 U.S. 953, 957, 117 S. Ct. 1879, 138 L.Ed.2d. 148 (1997). The term \"strip down\" refers to the bifurcation of a claim into its secured and unsecured components under 11 U.S.C. § 506. The secured claim is said to be stripped down to the value of the collateral.\nAlthough Till interpreted 11 U.S.C. § 1325(a)(5)(B)(ii) in a case involving the strip down of a secured claim, the statute itself is broader and applies to all cram down cases. Hence, the decision in Till is not confined merely to those cases where the value of the collateral is less than the creditor's claim. Rather, Till applies in all chapter 13 cases which are being confirmed over the objection of a secured creditor irrespective of the value of its collateral in relation to the amount of its claim.\nSecondly, Centrix contends that Till has been abrogated by the BAPCPA amendments. The relevant text of the statute now provides:\nFor purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day [sic] preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in Section 30102 of title 49) acquired for the personal use of the debtor, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing.\n11 U.S.C. § 1325(a)(hanging, unnumbered paragraph at the end of the subsection). Centrix contends that this provision prevents any modification of its contractual rights, including the interest rate. The court disagrees.\nThis new provision prohibits the application of § 506 to the claims of secured creditors having a purchase-money security interest in a debtor's personal vehicle if the debt was incurred within 910 days prior to bankruptcy. Simply put, the claims of these creditors must be treated *920 as fully secured under the plan. However, this restriction on bifurcation does not protect these creditors from modification of other contractual rights.\nThe BAPCPA amendments to § 1325 simply do not address the issue of the appropriate interest rate applicable to secured claims under § 1325(a)(5)(B)(ii). Thus, Till has not been abrogated by the BAPCPA amendments.\nHad Congress intended to create a complete safe harbor for the automobile lender with a purchase-money security interest, it could have expressly done so, but it did not. Indeed, the law permits modification of the rights of secured creditors. The only complete safe harbor from any modification is that provided to home mortgagees under 11 U.S.C. § 1322(b)(2). See In re Robinson, 338 B.R. 70 (Bankr.W.D.Mo. 2006); In re Johnson, 337 B.R. 269 (Bankr.M.D.N.C.2006).\n\nConclusion\nFor the foregoing reasons the court concludes that the plan may properly modify the contract interest rate applicable to the secured claim of Centrix. Pursuant to Fed. R. Bankr.Proc. 9021, a separate order will enter overruling Centrix's objection to confirmation of the plan.\n", "ocr": false, "opinion_id": 1529607 } ]

[ "116 F.3d 475" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/116/116.F3d.475.96-30434.html", "author_id": null, "opinion_text": "116 F.3d 475\n U.S.v.Trujillo**\n NO. 96-30434\n United States Court of Appeals,Fifth Circuit.\n Apr 15, 1997\n Appeal From: E.D.La. ,No.95CR378G\n \n 1\n Dismissed.\n \n \n \n **\n Conference Calendar\n \n \n ", "ocr": false, "opinion_id": 742123 } ]

[ "831 F.2d 303" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/831/831.F2d.303.86-4159.html", "author_id": null, "opinion_text": "831 F.2d 303\n Nelson (John D.), National Labor Relations Boardv. Ironworkers District Council of Pacific Northwest,International Association of Bridge, Structuraland Ornamental Iron Workers, Local 29\n NO. 86-4159\n United States Court of Appeals,Ninth Circuit.\n OCT 19, 1987\n \n 1\n Appeal From: D.Or.\n \n \n 2\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 496098 } ]

[ "59 P.3d 1000", "274 Kan. 1089" ]

[ { "author_str": "Allegrucci", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4452, "opinion_text": "\n274 Kan. 1089 (2002)\n59 P.3d 1000\nSTATE OF KANSAS, Appellant,\nv.\nDALE C. ARMBRUST, BRIAN B. THOMPSON, THERESA BROWN, TIMOTHY BAUMANN, Appellees.\nNos. 88,264, 88,265, 88,266, 88,575.\nSupreme Court of Kansas.\nOpinion filed December 6, 2002.\nDeborah L. Hughes, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.\nKorey A. Kaul, assistant appellate defender, argued the cause, and Kristen Chowning, assistant appellate defender, was with her on the brief for appellees.\nThe opinion of the court was delivered by\nALLEGRUCCI, J.:\nEach of the defendants in these consolidated cases, Dale Armbrust, Brian Thompson, Theresa Brown, and Timothy Baumann, was convicted before 1999 of crimes that required *1090 registration as a sex offender. When they were convicted of the underlying offenses, violation of the registration requirement was a misdemeanor. In the present cases, the State charged each defendant with violating the Kansas Offender Registration Act, K. S.A. 22-4901 et seq., by failing to comply with mandatory periodic address verification. The penalty for violation of the registration act was changed by amendment in 1999 from a misdemeanor to a felony. The district court dismissed the complaints on the ground that the enhanced penalty was prohibited by the Ex Post Facto Clause of Article I, § 10 of the United States Constitution. The State appeals pursuant to K.S.A. 2001 Supp. 22-3602(b)(1), and jurisdiction lies in this court on account of the constitutional question. See K.S.A. 22-3601(b)(2).\nArmbrust was required to register with the KBI as a result of his July 11, 1996, conviction. Thompson was required to register as a result of his May 12, 1994, conviction. Brown was required to register as a result of her September 3, 1996, conviction. Bauman was required to register as a result of his February 14, 1997, conviction.\nThe State charged each defendant with violating the offender registration act by failing to mail a periodic address verification form to the KBI within 10 days of receiving it, as required by K.S.A. 2001 Supp. 22-4904(c)(2). Armbrust was alleged to have failed to mail his address verification form to the KBI within 10 days after August 3, 2001; Thompson within 10 days after June 1, 2000; Brown within 10 days after May 1, 2001; and Baumann within 10 days after February 16, 2001. Each defendant was charged with a severity level 10, nonperson felony.\nOn the motions of the defendants, the district court dismissed the complaint in each of the four cases. The district court believed that the application of the felony penalty to these defendants, who were convicted of the underlying offenses at a time when the registration violation penalty was a misdemeanor, violated the Ex Post Facto Clause of the federal Constitution.\nThe State argues on appeal that the key date for purposes of an ex post facto analysis is not the date of conviction of the crime requiring registration but rather the date when defendant is alleged *1091 to have violated the registration statute. The State relies on State v. Lueker, 264 Kan. 341, 956 P.2d 681 (1998), and People v. Logan, 302 Ill. App. 3d 319, 705 N.E.2d 152 (1998).\nK.S.A. 2001 Supp. 22-4904(c) provides in part:\n\"(c) For any person required to register as provided in this act, every 90 days after the person's initial registration date during the period the person is required to register, the following applies:\n(1) The Kansas bureau of investigation shall mail a nonforwardable verification form to the last reported address of the person.\n(2) The person shall mail the verification form to the Kansas bureau of investigation within 10 days after receipt of the form.\n(3) The verification form shall be signed by the person and shall provide the following information, as applicable, to the Kansas bureau of investigation: (A) Whether the person still resides at the address last reported; (B) whether the person still attends the school or educational institution last reported; (C) whether the person is still employed at the place of employment last reported; and (D) whether the person's vehicle registration information is the same as last reported.\n(4) If the person fails to mail the verification form to the Kansas bureau of investigation within 10 days after receipt of the form, the person shall be in violation of the Kansas offender registration act.\"\nK. S. A. 2001 Supp. 22-4903 provides that \"[a]ny person who is required to register as provided in this act who violates any of the provisions of this act is guilty of a severity level 10, nonperson felony.\"\nUntil 1999, 22-4903 provided that a person required to register under the offender registration act who violates any of the provisions of the act is guilty of a misdemeanor. See L. 1999, ch. 164, sec. 30.\nThe Ex Post Facto Clause of Article 1, § 10 of the United States Constitution provides that \"[n]o State shall ... pass any ... ex post facto Law.\" It is long established that \"[a]ny statute... which makes more burdensome the punishment for a crime, after its commission ... is prohibited as ex post facto.\" Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925).\nDefendants contend that enhancement of the punishment for violation of the registration requirements from a misdemeanor to a felony, as applied to them, is prohibited as ex post facto because *1092 it makes the punishments for their crimes more burdensome after commission of the crimes. The crime defendants were charged with in the present cases was violation of the registration requirements, and it was classed as a felony at the time each defendant allegedly committed it. Thus, the punishment has not been made more burdensome for defendants' violations of registration requirements after they failed to return the verification forms.\nDefendants, however, contend that each defendant's duty to register arose when each was adjudged a sex offender and is an ongoing duty. Because conviction of the underlying offense creates an ongoing obligation to register, according to defendants, it is the date of the underlying offense rather than the date of the alleged registration violation that is relevant to ex post facto analysis.\nLueker did not involve the provisions of the Kansas Offender Registration Act, but rather the criminal possession of a firearm. The basis for the charge was possession of a prohibited firearm within a prescribed time after being convicted of a felony. The statute defining what is a prohibited firearm was amended subsequent to Lueker's felony conviction. We noted that \"it is well established that a criminal statute in effect at the time of the criminal offenses are controlling.\" 264 Kan. at 345. The issue was whether the statute in effect at the time of the initial felony conviction or at the time of the possession of the prohibited firearm applied. We held the latter and found that there was no ex post facto violation.\nIn Logan, the defendant argued that the Sex Offender Registration Act was unconstitutional in that it violated the Ex Post Facto Clause of the United States and Illinois Constitutions. His argument was based on the passage of the Illinois Sex Offender Registration Act after he was convicted of the sex offense, and that the penalty for failure to register was enhanced from a misdemeanor to a felony. The latter is also the basis of the defendants' argument in the present case. The Illinois court, relying on Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), held that the registration was not punishment but rather a de minimis administrative requirement and, thus, not a violation of the Ex Post Facto Clause of the state or federal Constitutions.\n*1093 Defendants' theory is analogous to one addressed by the Second Circuit Court of Appeals in United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied 513 U.S. 894 (1994). In Brady, a defendant named DeMatteo invoked the prohibition of ex post facto laws in contending that his 1951 felony conviction could not serve as the predicate offense under 18 U.S.C. § 922(g) (1988), a statute enacted after 1951 that makes it unlawful for any person convicted of a crime punishable by imprisonment for a term exceeding 1 year to possess any firearm in or affecting commerce. The federal Court of Appeals found his argument to be wholly without merit:\n\"A criminal or penal law is ex post facto if it is retrospective and it disadvantages the offender affected by it. United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991). The critical question in evaluating an ex post facto claim `is whether the law changes the legal consequences of acts completed before its effective date.' Weaver v. Graham, 450 U.S. 24, 31, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981). A statute does not violate ex post facto principles where it applies to a crime that `began prior to, but continued after' the statute's effective date. United States v. Alkins, 925 F.2d 541, 549 (2d Cir. 1991) (quoting United States v. Torres, 901 F.2d 205, 226 (2d Cir. 1990)).\n....\n\"DeMatteo violated section 922(g) long after it became the law. Section 922(g) became effective in 1986. DeMatteo's possession of a gun from which the current conviction arises occurred on June 10, 1992. Regardless of the date of DeMatteo's prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted. By 1992 DeMatteo had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Therefore, the Ex Post Facto clause was not violated by the use of a 1951 felony conviction as a predicate for a violation of § 922(g).\" 26 F.3d at 291.\nThe Second Circuit Court of Appeals concluded that the date of DeMatteo's prior conviction was irrelevant because the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute making it a crime to be a felon in possession of a firearm. In United States v. Allen, 886 F.2d 143, 146 (8th Cir. 1989), that court stated: \"So long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.\"\n*1094 In the present case, the actual crimes with which defendants were being charged occurred after the effective date of amendment of K.S.A. 22-4903. The penalty was increased from a misdemeanor to a felony in 1999. Defendants were alleged to have failed to return address verification forms in June 2000 and thereafter. They could have conformed their conduct to the requirements of the amended registration statutes. We conclude that there are no ex post facto violations.\nWe reverse and remand with instructions to reinstate the charges against the defendants.\n", "ocr": false, "opinion_id": 2621264 } ]

[ "2012 Ohio 794" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/9/2012/2012-ohio-794.pdf", "author_id": 8066, "opinion_text": "[Cite as State v. Smith, 2012-Ohio-794.]\n\n\nSTATE OF OHIO ) IN THE COURT OF APPEALS\n )ss: NINTH JUDICIAL DISTRICT\nCOUNTY OF SUMMIT )\n\nSTATE OF OHIO C.A. No. 25650\n\n Appellee\n\n v. APPEAL FROM JUDGMENT\n ENTERED IN THE\nDE ANTHONY K. SMITH COURT OF COMMON PLEAS\n COUNTY OF SUMMIT, OHIO\n Appellant CASE No. CR 10 06 1717(B)\n\n DECISION AND JOURNAL ENTRY\n\nDated: February 29, 2012\n\n\n\n CARR, Presiding Judge.\n\n {¶1} Appellant, De Anthony K. Smith, appeals his convictions by the Summit County\n\nCourt of Common Pleas. This Court affirms.\n\n I.\n\n {¶2} Forty-three year old Abdulmahdi “J.J.” Al-Garawi supported his family, in part,\n\nby selling shoes and purses from the back of his wife’s minivan. Customers contacted him by\n\ncalling his cell phone and arranging to meet at a mutually agreeable place. According to his\n\nwife, Al-Garawi almost never met a customer after dark and usually came home within twenty\n\nminutes. On April 22, 2010, he made two exceptions, first leaving home in the middle of dinner\n\nto meet a man near Buckingham Avenue in Akron. After receiving two calls from a female\n\nwhen he returned home, Al-Garawi went out again. Within minutes of stopping the van to talk\n\nto the woman, someone shot Al-Garawi in the torso. The single bullet destroyed his liver and\n\nright kidney before it exited the left side of his body and re-entered his left arm, causing massive\n\f 2\n\n\nblood loss. Al-Garawi died two hours later while in surgery. His van, which had been emptied\n\nof all its merchandize, was found on fire in a driveway on Hardesty Avenue on the near west side\n\nof Akron.\n\n {¶3} Cell phone records led police to Smith’s girlfriend and, ultimately, to Smith, who\n\nhad the phone on the night of the murder. Along with another man, a grand jury indicted Smith\n\non charges of aggravated murder in violation of R.C. 2903.01(B), murder in violation of R.C.\n\n2903.02(B), aggravated robbery in violation of R.C. 2911.01(A)(1)/(3), tampering with evidence\n\nin violation of R.C. 2921.12(A)(1), and obstructing justice in violation of R.C. 2921.32(A)(5). A\n\ngun specification under R.C. 2941.145 accompanied three of the four charges. The trial court\n\ndismissed the aggravated murder charge after the State presented its case-in-chief, and a jury\n\nfound Smith guilty of the remaining charges and specifications. The trial court sentenced him to\n\nan aggregate prison term of 21 years to life. Smith timely appealed, raising three assignments of\n\nerror.\n\n II.\n\n ASSIGNMENT OF ERROR I\n\n APPELLANT’S CONVICTIONS FOR MURDER, AGGRAVATED\n ROBBERY, AND TAMPERING WITH EVIDENCE, ALL WITH GUN\n SPECIFICATIONS, WERE BASED UPON INSUFFICIENT EVIDENCE AS A\n MATTER OF LAW.\n\n {¶4} In his first assignment of error, Smith has argued that his convictions for murder,\n\naggravated robbery, and tampering with evidence are supported by insufficient evidence because\n\nthere was no evidence that he actively participated in the crimes as an aider and abettor. We\n\ndisagree.\n\n {¶5} “Whether a conviction is supported by sufficient evidence is a question of law\n\nthat this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at ¶\n\f 3\n\n\n18, citing State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). The relevant inquiry is whether\n\nthe prosecution has met its burden of production by presenting sufficient evidence to sustain a\n\nconviction. Thompkins, 78 Ohio St. 3d at 390 (Cook, J., concurring). In reviewing the evidence,\n\nwe do not evaluate credibility, and we make all reasonable inferences in favor of the State. State\n\nv. Jenks, 61 Ohio St. 3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to\n\nreasonably conclude that the essential elements of the crime were proven beyond a reasonable\n\ndoubt. Id.\n\n {¶6} Smith’s first assignment of error challenges three of his four convictions, each of\n\nwhich was accompanied by a firearm specification under R.C. 2941.145. R.C. 2903.02(B)\n\nprohibits causing the death of another “as a proximate result of the offender’s committing or\n\nattempting to commit an offense of violence that is a felony of the first or second degree[.]”\n\nAggravated robbery is prohibited by R.C. 2911.01(A), the relevant portions of which provide\n\nthat:\n\n No person, in attempting or committing a theft offense, * * * or in fleeing\n immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or\n about the offender’s person or under the offender’s control and either display the\n weapon, brandish it, indicate that the offender possesses it, or use it; * * * [or]\n [i]nflict, or attempt to inflict, serious physical harm on another.\n\nR.C. 2911.01(A)(1)/(3). Tampering with evidence is prohibited by R.C. 2921.12, which\n\nprovides, in part, that “[n]o person, knowing that an official proceeding or investigation is in\n\nprogress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or\n\nremove any * * * thing, with purpose to impair its value or availability as evidence in such\n\nproceeding or investigation[.]” R.C. 2921.12(A)(1).\n\f 4\n\n\n {¶7} R.C. 2923.03(A)(2) prohibits any person “acting with the kind of culpability\n\nrequired for the commission of an offense” from aiding or abetting another in committing the\n\noffense. In order to prove complicity by aiding and abetting, the State must prove:\n\n that the defendant supported, assisted, encouraged, cooperated with, advised, or\n incited the principal in the commission of the crime, and that the defendant shared\n the criminal intent of the principal. Such intent may be inferred from the\n circumstances surrounding the crime.\n\nState v. Johnson, 93 Ohio St. 3d 240 (2001), syllabus. The criminal intent of the aider and abettor\n\n“can be inferred from the presence, companionship, and conduct of the defendant before and\n\nafter the offense is committed.” In re T.K., 109 Ohio St. 3d 512, 2006-Ohio-3056, ¶ 13, citing\n\nJohnson at 245. Although presence at the scene of the crime by itself is not sufficient evidence\n\nof complicity, “[t]his rule is to protect innocent bystanders who have no connection to the crime\n\nother than simply being present at the time of its commission.” Id. at 243. As with proof of any\n\nelement of an offense, complicity may be proved by circumstantial evidence, which has the same\n\nprobative value as direct evidence. See State v. Ward, 9th Dist. No. 24105, 2008-Ohio-6133, ¶\n\n18. The conviction of the principal offender is not a defense to a charge of complicity. R.C.\n\n2923.03(B).\n\n {¶8} In this case, the evidence related to Smith’s presence, companionship, and\n\nconduct before and after Al-Garawi’s murder was sufficient to support his convictions as an\n\naider and abettor. Huda Al-Garawi testified that her husband left to sell some shoes at\n\n“Buckingham, Boone” around 8:05 p.m. and returned about fifteen minutes later. Smith\n\nadmitted that he placed this call from his girlfriend’s cell phone and that he met Al-Garawi\n\nwithout buying any shoes. Ms. Al-Garawi recalled that her husband received another call right\n\nafter he got home, and because her husband put the call on speaker phone, she knew that the\n\ncaller was a woman. Ms. Al-Garawi testified that her husband told the woman to call back in the\n\f 5\n\n\nmorning but, instead, she called back around 9:00 p.m. This time, Al-Garawi agreed to meet her\n\non Buckingham Street.\n\n {¶9} Jasmin Cameron testified that her boyfriend, Xzavier Penwell, came to her house\n\non the evening of April 22nd and told her to call a man to look at some shoes because “[h]e said\n\nthis man did not come out after nighttime.” Penwell dialed the phone, then handed it to\n\nCameron. She spoke briefly with “J.J.,” then hung up and went downstairs with Penwell, where\n\nshe found Smith waiting on the porch. She testified that the three of them walked toward the\n\nintersection of Buckingham and Boone. According to her testimony, there was no conversation\n\nwith Smith as they walked. Penwell handed her the phone again, and she called a second time.\n\nTestimony established that the cell phone she used belonged to Smith’s girlfriend, who had given\n\nit to him for the night. Records from the service provider verified that calls were made from that\n\nphone to Al-Garawi’s phone at 9:06 p.m. and 9:15 p.m.. The outgoing number had been blocked\n\nso that the number would not be identified with the incoming call on Al-Garawi’s phone.\n\n {¶10} Cameron testified that after talking briefly to Al-Garawi, she asked to see some\n\nshoes. She recalled that as he started to get out of the van, she heard Penwell say “lay down” and\n\nthen a gunshot. She testified that she did not see the shot fired, but she believed that it came\n\nfrom behind her. Cameron did not know where Smith was at the time, but she believed that he\n\nwas standing behind her and Penwell. She testified that Smith did not say anything. According\n\nto her testimony, she ran away when the shot was fired, briefly hearing someone she believed to\n\nbe Al-Garawi fleeing behind her and screaming. Cameron went home, and her phone records\n\nverify that she placed a lengthy call to a number with a North Carolina area code. She testified\n\nthat after Penwell called her later that night, Smith picked her up and they walked together to a\n\nnearby house without speaking. Cameron spent the night at the house with Penwell, Smith, and\n\f 6\n\n\nseveral others. Both Penwell and Smith were there the whole time, and Cameron testified that\n\nduring the course of the evening, Penwell told her about dividing the merchandize in Al-\n\nGarawi’s van with Smith and setting the van on fire.\n\n {¶11} Michael and Dawn Dolbow lived at the intersection of Buckingham and Boone,\n\nand they looked out the window when they heard a shot fired outside their house. Both testified\n\nthat they saw a van back quickly up Boone, which is a dead-end street, and drive away on\n\nBuckingham. Both remembered that there were two black males in the van when it passed.\n\nBoth saw a black woman running away.\n\n {¶12} Using cell phone records subpoenaed from Nextel/Sprint, police constructed a\n\ntimeline of telephone calls and their approximate locations. The records from the phone that\n\nSmith used that night established that about eight minutes after the shooting, at 9:27 p.m., a call\n\nwas placed to the home phone number of acquaintances of Penwell and Smith who lived on the\n\n1300 block of Hardesty Boulevard on the near west side of Akron. The records also indicate that\n\nthe call was picked up by a cell phone tower further to the west than earlier calls, indicating that\n\nthe call was made in transit. Calls placed at 10:11 p.m. and 10:18 p.m. were picked up by a\n\ntower still further to the west. At 11:14 p.m., Al-Garawi’s van was reported abandoned and on\n\nfire in a driveway in the 1200 block of Hardesty Boulevard. At 11:54 p.m., a call was placed\n\nfrom the same phone to Cameron’s house, but that call was picked up by a tower on the east side\n\nof Akron.\n\n {¶13} Viewing this evidence in the light most favorable to the State, a reasonable trier of\n\nfact could conclude that, rather than merely being present at the scene of the murder, Smith aided\n\nand abetted Penwell in the commission of the crime. Specifically, the trier of fact could\n\nconclude that Smith met with Al-Garawi immediately before Penwell made contact with him\n\f 7\n\n\nthrough Cameron; accompanied them to the intersection of Buckingham and Boone; and fled in\n\nthe van with Penwell after the shooting to a location on Hardesty Boulevard, where they\n\nremoved the merchandise from the van and set it on fire. Regardless of the fact that Penwell was\n\nthe principal offender, the evidence at trial was sufficient to lead a reasonable trier of fact to infer\n\nSmith’s complicity from his “presence, companionship, and conduct * * * before and after” the\n\nmurder. In re T.K., 109 Ohio St. 3d 512, 2006-Ohio-3056, at ¶ 13, citing Johnson, 93 Ohio St. 3d\n\nat 245. Smith’s first assignment of error is overruled.\n\n ASSIGNMENT OF ERROR II\n\n APPELLANT’S CONVICTION FOR OBSTRUCTING JUSTICE WAS\n AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.\n\n {¶14} In his second assignment of error, Smith has argued that his conviction for\n\nobstructing justice is against the manifest weight of the evidence because the jury wrongly\n\ndiscredited his testimony regarding duress. We disagree.\n\n {¶15} When considering whether a conviction is against the manifest weight of the\n\nevidence, this Court must:\n\n review the entire record, weigh the evidence and all reasonable inferences,\n consider the credibility of witnesses and determine whether, in resolving conflicts\n in the evidence, the trier of fact clearly lost its way and created such a manifest\n miscarriage of justice that the conviction must be reversed and a new trial\n ordered.\n\nState v. Otten, 33 Ohio App. 3d 339, 340 (1986).\n\n {¶16} Under R.C. 2921.32(A)(5), “[n]o person, with purpose to hinder the discovery,\n\napprehension, prosecution, conviction, or punishment of another for a crime or to assist another\n\nto benefit from the commission of a crime, and no person * * * shall * * * [c]ommunicate false\n\ninformation to any person[.]” When a defendant asserts an affirmative defense, “[t]he burden of\n\ngoing forward with the evidence * * *, and the burden of proof, by a preponderance of the\n\f 8\n\n\nevidence * * *, is upon the accused.” R.C. 2901.05(A). Duress is an affirmative defense to any\n\ncrime except aggravated murder. State v. Getsy, 84 Ohio St. 3d 180, 197-198 (1998). It implies\n\ncompulsion by force or threat of force against the defendant or a close relative. See State v.\n\nWoods, 48 Ohio St. 2d 127, 136 (1976), vacated on other grounds, sub nom. Woods v. Ohio, 438\n\nU.S. 910 (1978). It is force of a nature that “overcome[s] the mind or volition of the defendant\n\nso that he acted other than he ordinarily would have acted in the absence of those influences.”\n\nId., 48 Ohio St.2d at 137.\n\n {¶17} Smith admitted that he lied to police officers during five separate interviews after\n\nAl-Garawi’s murder, but maintained that he did so under the duress of threats by Penwell against\n\nhis life and the lives of his family members. Specifically, he testified that Penwell came to his\n\nhome after the murder, pointed a gun at him, threw $200 on the floor, and told him to “keep my\n\nmouth closed and if anybody find out he was going to kill me[.]” According to Smith, Penwell\n\nthen picked up a picture of Smith’s girlfriend and children and said, “If you want you and your\n\nfamily to live, you will keep your mouth closed.” He also testified that after his first interview\n\nwith police, someone in a gray car pulled a gun on him and told him “to keep my mouth closed”\n\nand that he received subsequent threats from Penwell while they were in jail at the same time.\n\n {¶18} According to the police officers who interviewed Smith, his version of events on\n\nthe night of Al-Garawi’s murder changed during each interview. Detective James Pasheillich,\n\nwho interviewed Smith several times, testified that although Smith mentioned that someone in a\n\ncar had threatened him, he never mentioned being threatened the night of the murder. In one of\n\nthe interviews, Smith denied that he was afraid of Penwell’s family, but testified at trial that his\n\nanswer was “just being smart.” He initially lied about his address, but only hours later told the\n\ntruth, despite now claiming that he lied out of fear in the first place.\n\f 9\n\n\n {¶19} This is not the exceptional case in which the evidence weighs heavily in favor of\n\nSmith’s version of events. Instead, the trier of fact could credit the testimony of other witnesses\n\nand conclude, without losing its way, that Smith lied to police not out of fear of Penwell, but to\n\nprotect himself from suspicion. Smith’s second assignment of error is, therefore, overruled.\n\n ASSIGNMENT OF ERROR III\n\n THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GIVE\n THE JURY AN INSTRUCTION ON THE TESTIMONY OF AN\n ACCOMPLICE.\n\n {¶20} Smith’s final assignment of error is that the trial court committed plain error by\n\nnot instructing the jury to consider the testimony of Jasmin Cameron as testimony of an\n\naccomplice. Because Smith did not object to the jury instructions at trial, he has forfeited all but\n\nplain error, and consequently, we may only recognize error that affects a substantial right as\n\nnecessary to prevent a manifest miscarriage of justice. State v. Payne, 114 Ohio St. 3d 502,\n\n2007-Ohio-4642, ¶ 15-16.\n\n {¶21} Under R.C. 2923.03(D), a trial court must provide a specific instruction to the\n\njury when an alleged accomplice testifies against the defendant. The charge must substantially\n\nreflect the following:\n\n The testimony of an accomplice does not become inadmissible because of his\n complicity, moral turpitude, or self-interest, but the admitted or claimed\n complicity of a witness may affect his credibility and make his testimony subject\n to grave suspicion, and require that it be weighed with great caution.\n\n It is for you, as jurors, in the light of all the facts presented to you from the\n witness stand, to evaluate such testimony and to determine its quality and worth\n or its lack of quality and worth.\n\nId. When considering whether failure to instruct a jury under R.C. 2923.03(D) amounts to plain\n\nerror, this Court considers the scope of cross-examination of the accomplice; whether the\n\naccomplice’s plea agreement was presented to the jury; whether the trial court substantially\n\f 10\n\n\ncomplied with R.C. 2923.03(D); and whether trial counsel may have made a tactical decision not\n\nto object in light of favorable testimony by the accomplice. State v. Simpson, 9th Dist. No.\n\n25363, 2011-Ohio-2771, ¶ 19, citing State v. Davis, 9th Dist. No. 22395, 2005-Ohio-4083, ¶ 16.\n\n {¶22} In this case, however, we need not engage in this analysis because Cameron was\n\nnot an accomplice within the meaning of R.C. 2923.03(D). At minimum, an accomplice must be\n\nsomeone who has been indicted for the crime of complicity. State v. Perez, 124 Ohio St. 3d 122,\n\n2009-Ohio-6179, ¶ 131-132. Some courts have noted that in rare circumstances, the testimony\n\nof an unindicted witness implicates the same concerns as accomplice testimony. See, e.g., State\n\nv. Sillett, 12th Dist. No. CA2000-10-205, 2002-Ohio-2596, ¶ 19. Specifically,\n\n The purpose of the cautionary instruction requirement is to ensure that juries are\n informed that the testimony of an accomplice is inherently suspect because an\n accomplice is likely to have a motive to conceal the truth or otherwise falsely\n inculpate the defendant. * * * [T]here may be rare instances in which a person\n who may be an accomplice is not indicted for a crime, but has motivation to lie or\n conceal the truth in return for their testimony. For example, an accomplice may\n be offered immunity in exchange for testimony and never be indicted for the\n crime. In such cases, there is reason for the witness’ testimony to be viewed with\n the same suspicion as that of an indicted accomplice.\n\nId. In those cases, an accomplice instruction may be required if the witness received favorable\n\ntreatment in return for the testimony. Id. at ¶ 20. In determining whether the accomplice\n\ninstruction is required in these circumstances, courts therefore consider whether the record\n\nreflects an agreement to testify and avoid indictment in addition to adequate opportunity for\n\ncross-examination and general instructions regarding witness credibility. See State v. Howard,\n\n5th Dist. No. 06CAA100075, 2007-Ohio-3669, ¶ 62; Sillett at ¶ 20.\n\n {¶23} In this case, the record demonstrates that Cameron was neither indicted as an\n\naccomplice nor offered favorable treatment in exchange for her testimony. She admitted that she\n\nwalked to the intersection of Buckingham and Boone with Smith and Penwell; that she made\n\f 11\n\n\ncalls to Al-Garawi from a phone that Penwell provided; and that she fled the scene as soon as the\n\ngunshot was fired. She also admitted that she later concealed some of the shoes that Penwell\n\ntook from the van and that she initially lied to the police because she did not want to incriminate\n\nPenwell, with whom she had been romantically involved. Cameron was never indicted.\n\nAccording to her testimony, the police and the assistant prosecutor told her that she “most likely\n\nwouldn’t be,” but “[t]hey didn’t say anything about cooperating.” Detective Pasheillich\n\nemphasized that no promises were made to her.\n\n {¶24} Under these circumstances, we cannot say that Cameron’s testimony raised the\n\nsame concerns as accomplice testimony such that the trial court’s failure to instruct the jury\n\nunder R.C. 2923.03(D) was plain error. Smith’s third assignment of error is overruled.\n\n III.\n\n {¶25} Smith’s assignments of error are overruled. The judgment of the Summit County\n\nCourt of Common Pleas is affirmed.\n\n Judgment affirmed.\n\n\n\n\n There were reasonable grounds for this appeal.\n\n We order that a special mandate issue out of this Court, directing the Court of Common\n\nPleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy\n\nof this journal entry shall constitute the mandate, pursuant to App.R. 27.\n\n Immediately upon the filing hereof, this document shall constitute the journal entry of\n\njudgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the\n\nperiod for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is\n\f 12\n\n\ninstructed to mail a notice of entry of this judgment to the parties and to make a notation of the\n\nmailing in the docket, pursuant to App.R. 30.\n\n Costs taxed to Appellant.\n\n\n\n\n DONNA J. CARR\n FOR THE COURT\n\n\n\nMOORE, J.\nDICKINSON, J.\nCONCUR\n\nAPPEARANCES:\n\nJEFFREY N. JAMES, Attorney at Law, for Appellant.\n\nSHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant\nProsecuting Attorney, for Appellee.\n\f", "ocr": false, "opinion_id": 2706148 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 110, "download_url": "http://www.ca2.uscourts.gov/decisions/isysquery/3676ee9e-3362-4630-bdc1-22d7d61e9f8a/1/doc/11-1234Acomb_opn.pdf", "author_id": null, "opinion_text": "11‐1234, 11‐1618\nMatusick v. Erie Cnty. Water Auth., et al.\n\n\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n August Term, 2011\n\n(Argued: May 4, 2012 Decided: January 3, 2014\n Amended: February 25, 2014 )\n\n Docket Nos. 11‐1234, 11‐1618\n\n ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\n\n SCOTT M. MATUSICK,\n\n     Plaintiff‐Appellee‐Cross‐Appellant,\n\n v.\n\nERIE COUNTY WATER AUTHORITY, GARY BLUMAN, Individually and in his\n Official Capacity as Foreman, JOHN KURYAK, Individually and in his Official\n Capacity as Distribution Engineer, JAMES P. LISINSKI, Individually and in his\n Official Capacity as Coordinator of Employee Relations, ROBERT MENDEZ,\n Individually and in his Official Capacity as Director of the Erie County Water\n Authority,\n\n    Defendants‐Appellants‐Cross‐Appellees.*\n\n ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐\nBefore: SACK, RAGGI, and LOHIER, Circuit Judges.\n\n *\n   The Clerk of the Court is respectfully directed to amend the official\ncaption to appear as set forth above.\n\f Appeal from judgments of the United States District Court for the\n\nWestern District of New York (Richard J. Arcara, Judge), after a jury trial, based\n\non, inter alia, the instruction to the jury not to give weight to administrative\n\nfindings, the juryʹs finding of liability on the plaintiffʹs state law discrimination\n\nclaims, the juryʹs finding of liability on the plaintiffʹs constitutional claims against\n\nthe municipal defendant, and the award of punitive damages against the\n\nindividual defendants.  The plaintiff cross‐appeals, challenging the amount of the\n\ndistrict courtʹs award of attorneyʹs fees.  We conclude that the court correctly\n\ndecided that the administrative hearing officerʹs conclusions did not preclude the\n\njury from finding discriminatory conduct on the part of the defendants.  Insofar\n\nas the district court may have erred in not instructing the jury on the preclusive\n\neffect of the hearing or its evidentiary weight, such an error did not likely\n\ninfluence the outcome of the proceedings and was therefore harmless.  The\n\nplaintiff presented sufficient evidence for a reasonable jury to find, as this jury\n\ndid, that the defendants were liable on his state‐law discrimination claims, and\n\nthe award of backpay is undisturbed.  Although the plaintiff sufficiently alleged a\n\nconstitutional violation, his relevant constitutional rights during the time in\n\nquestion were not clearly established and therefore the individual defendants are\n\nentitled to qualified immunity.  There was sufficient evidence presented to the\n\n\n 2\n\fjury, however, for a reasonable fact‐finder to determine, as the jury did, that the\n\nmunicipal defendant, the Erie County Water Authority, was liable on the\n\nplaintiffʹs claim under 42 U.S.C. § 1983.  Accordingly, we vacate the award of\n\npunitive damages against the individual defendants, who were protected by\n\nqualified immunity, but affirm the finding of liability with respect to the Water\n\nAuthority.  Because Matusick was entitled as a matter of law at least to an award\n\nof nominal damages against the ECWA, however, we remand the cause for the\n\nlimited purpose of requiring the district court to award such damages.  Finally,\n\nwe conclude that the district court did not abuse its discretion in awarding\n\nattorneyʹs fees to the plaintiff in an amount substantially less than the amount\n\nclaimed. \n\n Affirmed in part; reversed in part; remanded in part.  Judge Lohier\n\nconcurs in the majority opinion and in a separate concurring opinion; Judge\n\nRaggi concurs in part and dissents in part.**     \n\n\n\n\n **\n   After due consideration of the petitions for rehearing filed by the\nplaintiff and the ECWA, we deny the plaintiffʹs petition, and grant the ECWAʹs\npetition in part.  We grant the ECWAʹs petition insofar as it concerns the\nreference in our original opinion to an award of punitive damages against the\nECWA, and the basis for the district courtʹs award of attorneyʹs fees – issues\naddressed by the revisions in this amended opinion.  We deny the remainder of\nthe ECWAʹs petition.\n\n 3\n\f HARVEY P. SANDERS, Sanders & Sanders,\n Cheektowaga N.Y., for Plaintiff‐Appellee‐Cross‐\n Appellant. \n\n JOSEPH S. BROWN (Adam W. Perry, Benjamin\n K. Ahlstrom on the brief), Hodgson Russ LLP,\n Buffalo, N.Y., for Defendants‐Appellants‐Cross‐\n Appellees. \n\nSACK, Circuit Judge:\n\n BACKGROUND\n\n ʺWhen an appeal comes to us after a jury verdict, we view the facts\n\nof the case in the light most favorable to the prevailing party.ʺ  Kosmynka v.\n\nPolaris Indus., Inc., 462 F.3d 74, 77 (2d Cir. 2006).  We set forth the facts of this\n\ncase in accordance with that requirement. \n\n Scott and Anita Matusick\n\n Plaintiff Scott Matusick, who is white, was employed by the Erie\n\nCounty Water Authority (ʺECWAʺ) during 2004 when, he claims, he was\n\nassaulted, harassed, and ultimately terminated from his employment because of\n\na romantic relationship he had with an African‐American woman, Anita Starks ‐‐\n\nnow Anita Starks‐Matusick.  Starks and Matusick met in 2003 but, according to\n\nher trial testimony, did not begin dating until January or February 2004.  They\n\nʺbecame more seriousʺ in March or April 2004:  They became engaged.  Trial Tr.\n\n\n\n 4\n\fin Matusick v. Erie County Water Auth., No. 07‐cv‐00489 (RJA)(HBS)(W.D.N.Y.\n\n2010) (ʺTrial Tr.ʺ), Aug. 19, at 30.1  At this point, however, they did not share a\n\nresidence ‐‐ Matusick lived in Hamburg, New York, and Starks lived in Niagara\n\nFalls, New York.  In 2005, after they became engaged, Starks moved into\n\nMatusickʹs house in Hamburg.  They were married in 2009.\n\n Starks‐Matusick has two children who were in their early teens\n\nwhen Starks and Matusick met and began dating.  Id. at 31.  According to trial\n\ntestimony, the children had established a close relationship with Matusick.  Since\n\n2005, and at least until the time of trial, they have lived with Starks/Starks‐\n\nMatusick and Matusick in Hamburg.  Id. at 32. \n\n Discrimination at the ECWA\n\n The ECWA is an independent public benefit corporation and a New\n\nYork State agency.  See N.Y. Pub. Auth. Law § 1050, et seq.  Its mission is to\n\n\n\n 1\n   The court identified Starks as Matusick’s girlfriend during the charge to\nthe jury, but the evidence shows that they were engaged to be married. \nAccording to Starks, ʺScott came to my house, and . . . he didnʹt have a ring to put\non my finger.  He did the one knee thing, but he didnʹt have a ring.  So Iʹm kind\nof looking at him like heʹs crazy, but I did say yes[.]ʺ  Trial Tr., Aug. 19, at 30. \nMatusick testified at trial that he was in fact engaged.  When asked why he\nproposed if he ʺdidnʹt have a ring,ʺ Matusick explained that his proposal was\nʺspontaneous.ʺ  Trial Tr., Aug. 23, at 60.  We are aware of no evidence to the\ncontrary.  We therefore treat their relationship as one of betrothal throughout this\nopinion.\n\n 5\n\fprovide a safe, reliable source of water to approximately 158,000 customers in\n\nand around Erie County, New York, which includes the City of Buffalo.  In order\n\nto fulfill its mission, the ECWA operates a Service Center (the ʺService Centerʺ) in\n\nCheektowaga, New York, east of Buffalo.  During 2004 and through 2006, the\n\nperiod relevant to this dispute, the ECWA had approximately 250 employees.\n\n Matusick began working for the ECWA in June 1992.  After several\n\nyears, he held a position as a customer service representative, later becoming a\n\nbill collector, and still later, a dispatcher.2\n\n During the summer of 2004, after Matusick and Starks became\n\nengaged, some of Matusickʹs coworkers at the ECWA became aware of his\n\nrelationship with Starks.  Many met Starks when, as was often the case, she\n\n\n\n 2\n   According to Matusick, a dispatcherʹs duties include ʺanswer[ing]\nemergency calls, . . . prepar[ing] work orders and excavation reports, . . . put[ting]\ntogether a packet for the foremen which will include valve ties for a shutdown\nand how to shut that down, [and] operating the radio so [the ECWA] ha[s]\ncommunication with the trucks out in the field . . . .ʺ  Trial Tr., Aug. 23, at 46.  In\nconversations with Matusick, ECWA personnel described the dispatcherʹs\nposition as ʺone of the most important jobs at the [ECWA].  Itʹs what the public\nforms their perceptions about how good a job we are doing based upon the\nresponse time and level of professionalism and interface with the [d]ispatchers.ʺ \nOct. 26, 2005, Interview by James R. Lisinski, ECWA Coordinator of Employee\nRelations, of Scott Matusick, filed as exhibit 15 to the May 11, 2009, Declaration of\nJames R Lisinski, reprinted in the Court of Appeals Joint Appendix filed July 13,\n2011, at 275. Matusick agreed with that statement. Id.  \n\n\n 6\n\fdropped Matusick off at work.  Matusick testified at trial that Robert Mendez, the\n\nDirector of the ECWA, was among the employees who saw Starks and was aware\n\nof her relationship with Matusick.\n\n At about this time, Matusickʹs relationship with one of his\n\nsupervisors, Gary Bluman, began to deteriorate.  According to Matusick, Bluman\n\nwas often a ring‐leader when it came to harassing him on account of his romantic\n\nrelationship with Starks.  In 2004, according to Matusick, Bluman and his crew\n\nwent onto Matusickʹs property, threw lawn equipment on his roof, and duct‐\n\ntaped his door shut.  Matusick never reported this incident to anyone at the\n\nECWA because, according to his trial testimony, Bluman had threatened to kill\n\nMatusickʹs family, and Matusick was afraid of what would happen if he reported\n\nBluman to other supervisors.  \n\n Tension came to a head in July 2004.  According to Matusick’s\n\ntestimony, during the morning of one of his shifts, Bluman entered the room\n\nwhere Matusick was working, ʺthrew some papers in [Matusickʹs] face[, a]nd . . .\n\nsaid, youʹre going to do this, do this right fucking now.ʺ  Id. at 66.  Matusick\n\napparently told Bluman that he would do what Bluman wanted in a ʺcouple\n\nminutes,ʺ because he had yet to complete a project he owed one of the ECWA\n\nforemen.  Id.  According to Matusickʹs testimony, Bluman then ʺturned\n\n\n 7\n\f[Matusickʹs] chair totally around so [Bluman] was facing [Matusick].  [Bluman]\n\nput a pen to [Matusickʹs] neck[,] . . . and he said, youʹre a fucking [nigger] lover,\n\nyour ‐‐ your bitch is a[] [nigger], youʹre a fucking [nigger] now, too, and Iʹm\n\ngoing to kill all the fucking [niggers].ʺ  Id. at 66‐67.3 \n\n Matusick reported the incident to Robert Guggemos and John\n\nKuryak, supervisors at ECWA.  He did not, however, formally report it to the\n\nhuman resources department.  As a consequence of the incident, ECWA\n\nsupervisors instructed Bluman to minimize his interactions with Matusick. \n\nNonetheless, within a month and a half after the attack, Bluman resumed making\n\nracist comments.\n\n Bluman was not the only one engaged in the harassment.  Other\n\nemployees, including James Lisinski, used the word ʺniggerʺ around Matusick,\n\n 3\n   At trial, Matusick did not actually say the word ʺniggerʺ ‐‐ substituting,\ninstead, ʺNʺ or ʺNs,ʺ while noting that he ʺwas not comfortable saying the real\nword [Bluman] said.ʺ  Id. at 67.  \n Of course we share Matusickʹs discomfort.  Its use in the context of this\nopinion serves to describe accurately the severity of the behavior to which\nMatusick was subjected at the ECWA, as found by the jury, and not to trivialize\nthe wordʹs significant –‐ and even unique ‐‐ power to offend, insult, and belittle. \nAccording to a Lexis search performed on May 27, 2013, this Circuit has used the\nterm for similar purposes in at least fifty‐five opinions.  The most recent in a\npublished opinion was in Rivera v. Rochester Genesee Regʹl Transp. Auth., 702\nF.3d 685(2d Cir. 2012).\n\n\n\n\n 8\n\fdespite the fact that he had made it clear ‐‐ although we doubt he had to ‐‐ that he\n\nfound the word offensive.  On one occasion during the summer of 2005, Lisinski\n\nremarkably, inasmuch as he was ECWA Coordinator of Employee Relations, told\n\nMatusick, ʺIʹm going to get you, Iʹm going to get you, you [nigger] lover, youʹre\n\ngoing to get it.ʺ  Id. at 93 (internal quotation marks omitted). \n\n A co‐worker, Brendan Finn, was, according to Matusick, even more\n\npersistently antagonistic.  In the summer and fall of 2005, Finn made comments\n\nto Matusick such as, ʺ[I]s your N[igger] bitch dropping you off [?]ʺ  Id. at 81.  He\n\nalso allegedly referred to Starksʹ children as ʺporch monkeysʺ or ʺnigglettes.ʺ  Id.\n\nat 89, 95.  In July 2005, Finn became irate when Matusick arrived late for work. \n\nFinn chased Matusick around the building, yelling something like, ʺnow youʹre\n\nmother‐fucking late like all the other [niggers], now youʹre a[] [nigger], too.ʺ  Id.\n\nat 76.  \n\n Matusick reported this incident along with those involving Bluman\n\nand other ECWA employees to Guggemos and Kuryak but, once again, decided\n\nagainst taking his concerns to the human resources department.  At trial he stated\n\nthat he thought that there was no reason to make a formal complaint ʺ[b]ecause\n\n[ECWA] supervisors said that they would handle the situation and they would\n\ntake care of it and th[at] certain individuals would get a talking to and [the\n\nsupervisors] would handle it.ʺ  Id. at 101.  \n 9\n\f Other employees, including human resources staff, likely knew\n\nabout Matusickʹs concerns, however.  During an interview of Matusick regarding\n\na disciplinary problem related to his covering‐up a surveillance camera that had\n\nbeen placed in the dispatch office, Lisinski, himself an alleged offender, asked\n\nʺwhat is this Iʹm hearing about you disrupting the work force and talking about,\n\nyou know, black –‐ black issues, white issues, sexual harassment, and so on and\n\nso forth[?]ʺ4  Id. at 91.   \n\n Matusickʹs Disciplinary Problems and Termination\n\n The heart of the factual dispute in this case is whether Matusickʹs\n\ntreatment by the ECWA was motivated in significant part by discriminatory\n\nintent or whether it was purely a consequence of his failure to perform his duties\n\nas a dispatcher.  To support their position at trial, the defendants introduced\n\nevidence regarding Matusickʹs long and serious history of disciplinary problems.\n\n On October 26, 1997, the Commissioner of the ECWA visited the\n\nService Center to find Matusick watching television, as the Commissioner later\n\nreported in a memorandum.  Joint Appendix filed in this Court on July 13, 2011\n\n\n\n\n 4\n   Matusick also testified about the ECWAʹs training and policy materials\nrelated to discrimination in the workplace.  Although the ECWA apparently has\ndetailed policies on ʺemployee relations,ʺ including ʺequal employment\nopportunityʺ and ʺcomplaint resolution,ʺ none of these policies were made\navailable to Matusick during his tenure at the ECWA.  Id. at 98‐99. \n 10\n\f(ʺJ.A.ʺ) 3799.5  In April 2005, Matusick intentionally blocked a video camera in the\n\ndispatch office, which was installed after September 11, 2001, ostensibly for the\n\npurpose of protecting the safety of the water supply.  But it also served to record\n\nthe conduct of dispatchers while at work.  \n\n Matusick admitted to blocking the camera by placing various objects\n\nin front of it on between ten and twenty occasions.  In May 2005, he was served\n\nwith disciplinary charges under section 75 of the New York State Civil Service\n\nLaw related to this incident.6  He admitted his guilt of all camera‐blocking\n\n\n 5\n   In the memorandum, he reported that when he arrived, he found\nʺMatusick slouched in the dispatcherʹs chair loudly engaged in a football game he\nwas watching on the overheard TV. . . .  [Matusick] jumped‐up and looked out\nthe window as he screamed out ʹwhat kind of an asshole would call during the\nfourth quarter of the game.ʹʺ J.A. 3799.   Matusick had apparently been watching\na now notorious Buffalo Bills game.  See Mark Gaughan, Bills Battle Broncos to\nthe Bitter End, BUFFALO NEWS, Oct. 27, 1997, at S3 (reporting that the Bills came\nback from a 20‐0 deficit in the fourth quarter, but ultimately lost on a field goal\nwith 1:56 remaining in overtime).\n 6\n   State employees covered by section 75 ʺshall not be removed or\notherwise subjected to any disciplinary penalty provided in this section except\nfor incompetency or misconduct shown after a hearing upon stated charges\npursuant to this section.ʺ  N.Y. Civ. Serv. Law § 75(1).  The section outlines the\nhearing process and its relationship to the termination of a public employee,\nincluding that the employee will have written notice of the hearing and the\ncharges and time to answer. Id. § 75(2).\n\n We have decided that, even though section 75 only provides a hearing\nofficerʹs recommendation, which can then either be accepted or rejected by an\nagency head, the provision ʺgives covered employees a property interest in their\nemployment, so that they may not be terminated without notice and hearing.ʺ \nOʹNeill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994). \n 11\n\fcharges, accepting a 60 day suspension without pay.\n\n To support its position that Matusickʹs discipline was not\n\ndiscriminatory, the ECWA points to the fact that other ECWA employees were\n\nsimilarly disciplined for blocking the video camera.  For example, Joe Marzec,\n\nwho worked as a duty‐man on the night‐shift with Matusick, also conceded guilt\n\nto a similar charge and accepted a 30‐day suspension without pay.  Thomas\n\nRadich, a control room operator, also admitted his guilt, accepting a 90‐day\n\nsuspension without pay.\n\n Matusick faced more disciplinary charges in November 2005.  The\n\nECWA alleged that on October 1 and 20, 2005, Matusick had ʺfailed to properly\n\nrespond to information, failed to dispatch workers to the scene of water line\n\nbreaks in a timely manner, and slept on duty.ʺ  Decl. of James R. Lisinski at ¶ 32,\n\nJ.A. 1306.  \n\n After the charges were filed, the ECWA held a section 75 hearing\n\npresided over by Michael Lewandowski, an independent hearing officer selected\n\nby the ECWA.  The hearing was held intermittently on five non‐consecutive days\n\nbetween December 2005 and February 2006.  Matusick was formally represented\n\nby his union representatives.  His father, a lawyer, was also present on all\n\nhearing dates.\n\n\n\n 12\n\f On April 7, 2006, the hearing officer issued a 25‐page Report and\n\nRecommendation.  Id. at ¶¶ 52‐57, J.A. 1309; see also Report and\n\nRecommendation, J.A. 1482‐1506.  The hearing officer began his factual analysis\n\nby noting that the ʺvideotapes of the surveillance camera in the Dispatch office\n\nfor the dates of October 1, 2005, and October 20, 2005, were not offered into\n\nevidence upon the claim of the [ECWA] that the tapes had been automatically\n\nrecorded over.ʺ  J.A. 1487.  At the heart of Matusickʹs argument before the section\n\n75 hearing officer was the assertion that ʺthe tapes would provide conclusive\n\nevidence that the claims made against him [were] false.ʺ  Id.  The hearing officer\n\nrejected Matusickʹs spoliation argument, concluding that the tapes would be\n\nunlikely to provide dispositive evidence of guilt or innocence, and that he, the\n\nhearing officer, could reach proper conclusions based on testimonial and\n\ndocumentary evidence in the record.  Id. at 1488.\n\n Ultimately, the hearing officer found Matusick guilty of several of\n\nthe charges against him.  For example, the officer concluded that in the early\n\nmorning hours of October 1, 2005, Matusick failed to respond to reports of a\n\nwater‐line break for more than an hour.  He also found that Matusick had slept\n\nwhile on duty as a dispatcher on October 1, 2005.  And the officer found that\n\nMatusick had failed to respond to reports of a water‐line break on October 20,\n\n2005, for almost four hours before –‐ after receiving three calls from residents –‐\n\n\n 13\n\ffinally dispatching an engineer.\n\n The hearing officer recommended Matusickʹs dismissal, in light of\n\nhis continued misconduct and the threat it caused to the integrity of the Countyʹs\n\nwater system.  J.A. 1505.\n\n Matusick never expressly argued to the hearing officer that he was\n\ntreated adversely because of his relationship with Starks.  In his Report and\n\nRecommendation, the hearing officer did comment on the possibility of disparate\n\ntreatment when it came to pursuing disciplinary charges for sleeping while on\n\nduty at the ECWA:  ʺ[Matusick] argues that the evidence . . . shows that\n\nemployees sleep on the job without consequence therefore it would be disparate\n\ntreatment to impose [a] penalty on [Matusick] for similar conduct.  That\n\nargument falls short because while [evidence supports the assertion that] co‐\n\nworkers [were sleeping on the job],ʺ there was no evidence that management was\n\naware of it.  J.A. 1497.  The hearing officer did not suggest, however, that\n\nMatusick had specifically argued that discrimination on the basis of his romantic\n\nrelationship with an African‐American woman was the reason for his alleged\n\ndisparate treatment.\n\n On April 24, 2006, Mendez adopted the recommendation of the\n\nhearing officer on behalf of the ECWA and formally terminated Matusick. \n\nMendez, the Director of the ECWA, testified at trial that the sole basis for the\n\n\n 14\n\ftermination was the Report and Recommendation.  \n\n Procedural History\n\n On June 26, 2007, Matusick filed a complaint in State Supreme Court,\n\nErie County, against the ECWA and ten individual defendants: (1) Robert\n\nMendez, Director of the ECWA; (2) Gary Bluman, ECWA foreman; (3) John\n\nKuryak, an ECWA Distribution Engineer; (4) James Lisinski, Coordinator of\n\nEmployee Relations; (5) David F. Jaros, Senior Distribution Engineer; (6) Karla\n\nThomas, a director of Human Resources; (7) Helen Cullinan Szvoren, also a\n\ndirector of Human Resources; (8) Matthew J. Baudo, Secretary to the ECWA; (9)\n\nRobert Guggemos, an ECWA Distribution Engineer; and (10) Joseph Marzec,\n\nanother employee of the ECWA.\n\n The complaint contained six claims.  First, it asserted one for\n\nphysical assault and battery against Bluman individually.  Second, it set forth a\n\nclaim for unlawful discrimination and hostile work environment against the\n\nECWA and each of the individual defendants in violation of New York Executive\n\nLaw § 296(1)(a) (ʺIt shall be an unlawful discriminatory practice . . . [f]or an\n\nemployer . . . , because of an individualʹs . . . race . . . to discharge from\n\nemployment such individual or to discriminate against such individual in\n\ncompensation or in terms, conditions or privileges of employment.ʺ).  Third, it\n\nmade a claim under the same section for disparate treatment resulting in\n\n\n 15\n\fdiscipline and termination.  Fourth, also under the same section, it asserted a\n\nclaim for retaliation in violation of state law.  Fifth, it asserted a claim under 42\n\nU.S.C. § 1983, alleging that while acting under color of state law the defendants\n\ndeprived Matusick of his First and Fourteenth Amendment rights under the\n\nUnited States Constitution.  Finally, the complaint asserted a claim under New\n\nYork State law for intentional infliction of emotional distress against all\n\ndefendants.\n\n On July 27, 2007, the ECWA removed the case to the United States\n\nDistrict Court for the Western District of New York under 28 U.S.C. § 1331 and §\n\n1441 on the grounds that the complaint asserted a claim arising under federal\n\nlaw: the claim under 42 U.S.C. § 1983.\n\n After discovery, the defendants moved for summary judgment on all\n\nclaims.  On February 22, 2010, Magistrate Judge Hugh B. Scott, to whom the\n\nmatter had been referred by the district court judge, issued a Report and\n\nRecommendation recommending that the motion be denied in part and granted\n\nin part.  Matusick v. Erie Cnty. Water Auth., No. 07‐cv‐489A, 2010 WL 2431077,\n\n2010 U.S. Dist. LEXIS 144193 (W.D.N.Y. Feb. 22, 2010).  \n\n First, the magistrate judge recommended denial of the defendantsʹ\n\nmotion for summary judgment with regard to Matusickʹs constitutional claims. \n\nSee id. at *7‐*11, 2010 U.S. Dist. LEXIS 144193, at *28‐*43.  In doing so, he agreed\n\n\n 16\n\fwith Matusickʹs assertions that: (1) he had a constitutional right under both the\n\nFirst and Fourteenth Amendments to maintain a romantic relationship with\n\nStarks, see id. at *8, 2010 U.S. Dist. LEXIS 144193, at *34; and (2) a reasonable jury\n\ncould conclude that the ECWA itself was subject to liability under Monell v.\n\nDepartment of Social Services of the City of New York, 436 U.S. 658 (1978),\n\nbecause the abuse and harassment alleged by Matusick, ʺif accepted by a trier of\n\nfact, is sufficient to establish a custom or practice that is so pervasive and\n\nwidespread that the ECWA had either actual or constructive knowledge of it.ʺ \n\nMatusick, 2010 WL 2431077, at *9, 2010 U.S. Dist. LEXIS 144193, at *36.  \n\n Second, the magistrate judge recommended that the district court\n\ndeny the defendantsʹ motion as to Matusickʹs disparate treatment claim under\n\nstate law arising from his termination, but that it grant summary judgment as to\n\nany disparate treatment claim arising from Matusickʹs May 2005 suspension. \n\nWith respect to the suspension, the magistrate judge concluded that ʺ[t]he\n\nplaintiff has failed to adequately articulate a basis to distinguish the discipline he\n\nreceived with the discipline received byʺ similarly situated fellow employees.  Id.\n\nat *12, 2010 U.S. Dist. LEXIS 144193, at *48.  With regard to the termination,\n\nhowever, the magistrate judge reasoned that Matusick had ʺsufficiently\n\narticulate[d] a basis that would allow a rational factfinder to conclude that the\n\nproffered reason for Matusic[k]ʹs termination was not the true reason,ʺ and that\n\n\n 17\n\fMatusick was not precluded from bringing this claim because of the resolution of\n\nthe section 75 hearing concluding that there was a basis for his termination.  Id. at\n\n*13, 2010 U.S. Dist. LEXIS 144193, at *49‐*50.  \n\n Finally, with respect to the claim of the maintenance or tolerance of a\n\nʺhostile work environmentʺ contrary to New York law, the magistrate judge\n\nagain reasoned that if a trier of fact were to accept Matusickʹs allegations of\n\nserious and sustained harassment, then he would have made out a viable hostile\n\nwork environment claim.  Id. at *14, 2010 U.S. Dist. LEXIS 144193, at *53.  The\n\nmagistrate judge recommended dismissal of the plaintiffʹs ʺintentional infliction\n\nof emotional distress claimʺ against the defendants and ʺphysical assault and\n\nbatteryʺ claim against Bluman individually, however, because these claims were\n\nbarred by the statute of limitations.  See id. at *13‐*14, 2010 U.S. Dist. LEXIS\n\n144193, at *51‐*54.  \n\n On June 11, 2010, the district court (Richard J. Arcara, Judge)\n\nadopted the magistrate judgeʹs recommendations in their entirety.  The case\n\nproceeded to trial against all of the defendants named in the original complaint.\n\n * * *    \n\n During the course of the trial, the parties debated the role that the\n\nhearing officerʹs determinations following the section 75 hearing should play in\n\nthe juryʹs resolution of the case.  Although the district court had accepted the\n\n\n 18\n\fmagistrate judgeʹs recommended conclusion that the section 75 hearing did not\n\npreclude Matusickʹs discrimination claims, the court allowed the defendants to\n\npresent evidence to the jury regarding the hearing process, including that the\n\nhearings involved an ʺindependent hearing officer hold[ing] a session, much like\n\ncourt here.ʺ  Trial Tr. Aug. 26, at 149.  Mendez testified that the report and\n\nrecommendation from the section 75 hearing officer concerning Matusickʹs\n\ndisciplinary problems was ʺthe strongest . . . report and recommendation that Iʹve\n\never had towards a termination of an employee.ʺ  Id. at 162.  The jury also saw\n\nthe ECWA document, signed by Mendez, adopting the report and\n\nrecommendation.  The court did not permit the defendants to put into evidence\n\nthe written report and recommendation by the ECWA hearing officer, however,\n\nand it prohibited Mendez from testifying as to the specific information in the\n\nreport.  \n\n The court also explained the role of the report and recommendation\n\nin its charge to the jury, stating that they did not bind the jury or force it ʺin any\n\nway to reach a particular outcome on plaintiffʹs unlawful termination claim,ʺ the\n\ncentral element of which was whether Matusickʹs interracial relationship was a\n\nmotivating factor in his termination.  Trial Tr., Aug. 31, at 104‐05.   \n\n At the close of evidence, the defendants made a motion for judgment\n\nas a matter of law.  See Matusick v. Erie Cnty. Water Auth., 774 F. Supp. 2d 514,\n\n\n 19\n\f519 (W.D.N.Y. 2011) (ʺPost‐Trial Orderʺ).  The district court granted that motion\n\nwith respect to defendants Jaros, Thomas, Szvoren, Baudo, and Guggemos, and\n\nwith respect to some of the claims against Mendez and Bluman, neither of whom\n\nwere involved in formulating disciplinary charges against Matusick.  See id. at\n\n519.  The remaining claims proceeded to verdict.  \n\n The jury returned a verdict finding the ECWA, Kuryak, and Lisinski\n\nliable for unlawful termination; the ECWA, Bluman, Kuryak, and Lisinski liable\n\nfor the maintenance or tolerance of a ʺhostile work environmentʺ; and the ECWA,\n\nMendez, Bluman, Kuryak, and Lisinski liable for violation of 42 U.S.C. § 1983. \n\nThe jury awarded Matusick $304,775 in back pay on the state unlawful\n\ntermination claims, and $5,000 in punitive damages against each individual\n\ndefendant on the section 1983 claims.7  Id. at 520.\n\n The defendants, including the ECWA, filed post‐trial motions for\n\njudgment as a matter of law under Federal Rule of Civil Procedure 50(b), and for\n\na correction of the final judgment in the event that the judgment survived the\n\n50(b) motion.  See id. at 517‐18.     \n\n The defendants argued that the juryʹs verdict on the unlawful\n\ntermination claim could not stand as to any of the defendants held liable for that\n\nclaim, and therefore that the award of backpay should be vacated.  See id. at 520. \n\n\n 7\n  The jury did not award damages on the hostile work environment claim,\nand the finding of liability on that claim is not on appeal here. \n 20\n\fAt the heart of this assertion was the argument, reasserted here on appeal, that\n\nMatusick could not ʺcompare himself to other employees because his disciplinary\n\nhistory was different and because he declined an invitation to settle the charges\n\nthat led to his Section 75 hearing.ʺ  Id.  Further, they asserted that ʺthe race of\n\nplaintiffʹs then‐girlfriend [sic] was not a motivating factor behind plaintiffʹs\n\ntermination because the weight of the evidence indicates that no one in a position\n\nto make or to contribute to the decision to terminate knew about the\n\nrelationship.ʺ  Id.\n\n The district court expressed skepticism about the defendantsʹ\n\narguments:\n\n As for plaintiffʹs evidence that race was a motivating\n factor behind his termination, the Court is concerned\n that defendantsʹ remaining arguments are simply an\n invitation to disbelieve plaintiff and to believe other\n witnesses. . . .  Viewing the evidence in the light most\n favorable to plaintiff, plaintiff submitted evidence\n acceptable to a reasonable jury that defendants ‐‐\n directly or by aiding and abetting ‐‐ terminated plaintiff\n and disciplined him more harshly than they would have\n otherwise because of animosity toward his interracial\n relationship.  \n\nId. at 521.  \n\n The court also considered the defendantsʹ argument that the section\n\n75 hearing should preclude the plaintiff from re‐litigating his discrimination\n\nclaim because the hearing resolved in the defendantsʹ favor the question of\n\nwhether there were legitimate bases for Matusickʹs termination.  See id. at 520‐21. \n 21\n\fThe district court rejected this argument, concluding that the hearing officer\n\nnever finally decided that the plaintiff should be terminated; he only\n\nrecommended that course of action.  It was Mendez who ultimately decided to\n\nadopt the hearing officerʹs recommendation and terminate Matusick.  Id. at 521.\n\n The district court then considered objections by the defendants\n\nrelated to the plaintiffʹs section 1983 claims, and the award of punitive damages\n\narising from them.  The court had concluded prior to trial that the plaintiff had a\n\nvalid section 1983 claim, and that the individual defendants did not enjoy\n\nqualified immunity with respect to it.  After trial, the court considered the\n\ndefendantsʹ assertion that the individual defendants could not be held liable\n\nunder a theory of supervisory liability.  Id. at 522.\n\n The district court dismissed this argument, noting its ʺconcern[] that\n\ndefendants have overlooked the evidence that emerged at trial in pursuit of a\n\ntechnical and unsettled legal point.ʺ  Id.  The crux of the defendantsʹ position\n\nrested on the argument that the Supreme Courtʹs then‐recent decision in Ashcroft\n\nv. Iqbal, 556 U.S. 662 (2009), made clear that under section 1983, ʺʹmasters do not\n\nanswer for the torts of their servants,ʹʺ and therefore that ʺʹeach Government\n\nofficial, his or her title notwithstanding, is only liable for his or her own\n\nmisconduct.ʹʺ  Matusick, 744 F. Supp. 2d at 522 (quoting Iqbal, 556 U.S. at 677). \n\nThe district court concluded, however, that despite this evolving legal doctrine,\n\n\n 22\n\fʺa reasonable jury could have credited the evidence that the individual\n\ndefendants actively participated in racial slurs and actively cast plaintiff, and not\n\nthemselves, as a disruptive member of the ECWA workforce because he\n\ncomplained about racial harassment.ʺ  Id. at 522. \n\n In considering the defendantsʹ qualified immunity argument, the\n\ncourt did not focus on the defendantsʹ assertion that they were entitled to\n\nprotection because it was not clearly established that the plaintiffʹs betrothal\n\nrelationship was protected by the First Amendment8 at the time of the incidents. \n\nInstead, the court said that ʺthe very first step in assessing a claim for qualified\n\nimmunity is to identify the discretionary governmental function that required the\n\nconduct that a plaintiff claims to be improper.ʺ  Id. at 525 (citing Scott v. Fischer,\n\n616 F.3d 100, 105 (2d Cir. 2010)).  ʺCritical to . . . qualified immunity cases . . . is\n\nthat the governmental conduct that is allegedly improper has to match the\n\ngovernmental function that would receive immunity from liability.ʺ  Id.  There\n\nwas no governmental function that could require the substantial derision the\n\n\n\n\n 8\n  As discussed at greater length in section II.A.3.a below, whether the\nintimate association right arises under the First or Fourteenth Amendment has\nnot yet been authoritatively settled. See Adler v. Pataki, 185 F.3d 35, 42‐44 (2d Cir.\n1999) (discussing cases that frame the right either as an implied First Amendment\nright or as a fundamental liberty protected by the Due Process Clause of the\nFourteenth Amendment).\n\n\n\n 23\n\fplaintiff faced while working at the ECWA, and therefore, according to the\n\ndistrict court, the defendants could not raise a qualified immunity defense.  See\n\nid.  \n\n Having left the juryʹs findings on liability undisturbed, the court\n\nthen addressed whether the juryʹs award of punitive damages on the section 1983\n\nclaim was reasonable in light of the violations at issue.  Once again, the court\n\nconcluded that ʺa reasonable jury could have decided based on the evidence that\n\ndefendants were liable under Section 1983 for intentional racial harassment\n\ndesigned to punish plaintiff for his interracial relationship.ʺ  Id. at 526‐27.\n\n The defendants appeal.\n\n DISCUSSION\n\n I. The Import of the Section 75 Hearing\n\n Many of the defendantsʹ arguments on appeal challenge the district\n\ncourtʹs treatment of the section 75 hearing before, during, and after trial.  As\n\ndiscussed above, the court (1) adopted the magistrate judgeʹs determination that\n\nthe hearing officerʹs findings did not preclude the plaintiffʹs claims, and repeated\n\nthat conclusion after trial; (2) instructed the jury that the section 75 hearing did\n\nnot ʺforceʺ the jury to resolve any of the questions before it in any particular way;\n\nand (3) did not allow the hearing officerʹs written recommendation into evidence. \n\nThe defendants dispute all three of these decisions.  We conclude that even if the\n\n\n 24\n\fdistrict court erred as a legal matter in instructing the jury on the preclusive effect\n\nof the recommendation, this error was harmless and does not require vacatur. \n\nSee Fed. R. Civ. P. 61. \n\nA. Issue Preclusion\n\n Whether the hearing officerʹs fact‐findings that there was a sufficient\n\nand legitimate basis for Matusickʹs termination precluded the plaintiff from\n\nrelitigating those issues in the district court is a question of law.  We review the\n\ndistrict courtʹs answers to such questions de novo.  See, e.g., United States v.\n\nSelioutsky, 409 F.3d 114, 119 (2d Cir. 2005).\n\n State law governs the preclusive effects in federal court of a state\n\nadministrative agencyʹs quasi‐judicial findings.  Univ. of Tenn. v. Elliott, 478 U.S.\n\n788, 796‐99 (1986); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.\n\n75, 81 (1984); Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706,\n\n728 (2d Cir. 2001) (similar).\n\n ʺNew York courts give quasi‐judicial administrative fact‐finding\n\npreclusive effect where there has been a full and fair opportunity to litigate.ʺ \n\nBurkybile v. Bd. of Educ. of Hastings‐On‐Hudson Union Free Sch. Dist., 411 F.3d\n\n306, 310 (2d Cir.), cert. denied, 546 U.S. 1062 (2005).  This rule applies to findings\n\nmade by administrative officers after conducting section 75 hearings.  See, e.g., In\n\n\n\n\n 25\n\fre Cheeseboro, 84 A.D.3d 1635, 1636, 923 N.Y.S.2d 772, 773 (3d Depʹt 2011)\n\n(deciding that a finding of fact by a section 75 hearing officer that\n\nunemployment‐insurance applicant had been terminated from prior employment\n\nfor cause had preclusive effect with regard to a denial of a benefits application). \n\n Like a prior judicial finding of fact, in order to have preclusive effect\n\nover a subsequent fact‐finding or legal analysis, a prior administrative\n\ndetermination must have resolved the identical issue, and the issue must have\n\nbeen actually and finally decided in the prior adjudication.  See Restatement\n\n(Second) of Judgments § 27 (1982).9  But even if an identical issue was necessarily\n\ndecided in the prior proceeding, issue preclusion does not apply unless there was\n\nʺa full and fair opportunity [for the party against whom preclusion is sought] to\n\ncontest the decision now said to be controlling.ʺ  Buechel v. Bain, 97 N.Y.2d 295,\n\n304, 766 N.E.2d 914, 919, 740 N.Y.S.2d 252, 257 (2001).  \n\n 1.  Finally Decided.  The district courtʹs preclusion analysis did not\n\nproceed beyond its observation that the report and recommendation of the\n\nhearing officer was a ʺnon‐binding recommendation[] regarding plaintiffʹs\n\n\n\n 9\n  The ʺidentical issue necessarily decidedʺ requirement under New York\nlaw comprises two parts: (1) the issues of both proceedings must be identical, and\n(2) the issue must have been raised, necessarily decided, and material to the first\naction.  Leather v. Eyck, 180 F.3d 420, 425–26 (2d Cir. 1999), cert. denied, 533 U.S.\n941 (2001) (alterations omitted).\n\n\n\n 26\n\ftermination,ʺ which was therefore not a final decision on the merits and could\n\nnot have preclusive effect.  Matusick, 774 F. Supp. 2d at 521.  \n\n To support this conclusion, the district court relied on our decision\n\nin Leventhal v. Knapek, 266 F.3d 64, 72 (2d Cir. 2001).  There, we considered the\n\npreclusive effect of a finding by a section 75 hearing officer employed by the New\n\nYork State Department of Transportation (the ʺDOTʺ) that the Department had\n\nviolated the Fourth Amendment rights of one of its employees by searching his\n\nworkplace computer to discover whether he had installed unlicensed software. \n\nSee id. at 69‐70.  We concluded that this determination did not preclude the\n\nsubsequent reexamination by the district court of the employeeʹs Fourth\n\nAmendment argument asserted through a section 1983 claim, because a final\n\ndetermination had not been made by the Commissioner of the DOT.  See id. at 72. \n\n The district courtʹs reliance on Leventhal is misplaced.  In that case,\n\nthere was no final decision both because the parties settled before the hearing\n\nofficer had taken all of the evidence and because the DOT Commissioner had not\n\nadopted any recommendations of the hearing officer.  Id. \n\n In this case, however, the ECWA did adopt the recommendations of\n\nthe hearing officer.  And, therefore, that recommendation became the official\n\ndecision of the agency.  The case at bar is thus no different from other cases in\n\n\n\n\n 27\n\fwhich New York courts have granted preclusive effect to section 75\n\nrecommendations later adopted by the state agency.  See, e.g., In re Agran, 54\n\nA.D.3d 479, 479‐80, 863 N.Y.S.2d 295, 296 (3d Depʹt 2008); In re Dimps, 274\n\nA.D.2d 625, 626, 710 N.Y.S.2d 448, 449‐50 (3d Depʹt 2000).  This is so even though\n\nMatusick decided not to challenge the determination in state court, as he was\n\nentitled to do.  See Harris v. Israel, 95 A.D.3d 1117, 1117, 943 N.Y.S.2d 901, 902\n\n(2d Depʹt 2012) (review of section 75 proceeding finding petitioner, former state\n\nemployee, guilty of misconduct and insubordination); see also Doe v. Pfrommer,\n\n148 F.3d 73, 79‐80 (2d Cir. 1998) (issue preclusion applies to unreviewed state\n\nagency determinations).10  \n\n 2.  Identicality of Issues.  We must therefore address what we think\n\nto be a more difficult question ‐‐ whether any of the issues decided by the hearing\n\nofficer are identical to issues decided by the jury and therefore preclusive of\n\nissues that must be decided in order to resolve this dispute. \n\n\n\n\n 10\n   Matusick also argues that the section 75 hearing officerʹs\nrecommendations are not preclusive because he was not represented by counsel. \nThis argument is meritless.  New York courts have held that as long as the section\n75 respondent is represented by a union official, as Matusick was here, the results\nof that hearing can have preclusive effect.  See Ryan v. N.Y. Tel. Co., 62 N.Y.2d\n494, 503‐04, 467 N.E.2d 487, 492, 478 N.Y.S.2d 823, 828 (1984).  Indeed, section 75\nproceedings can be preclusive even where the respondent elected not to appear\nat all.  See In re Agran, 54 A.D.3d at 479‐80, 83 N.Y.S. at 295.\n\n\n\n 28\n\f As an initial matter, the district court correctly concluded that the\n\nhearing officerʹs determination that Matusick had engaged in the charged\n\nconduct, and that these violations called for his termination, does not preclude a\n\njury from later finding that Matusick was also terminated at least in part because\n\nof his relationship with Starks.  The plaintiff could be successful on the state anti‐\n\ndiscrimination claims or the section 1983 claims even if the jury were to accept\n\nthat there were legitimate reasons for terminating him, too. \n\n The ʺstandards for recoveryʺ under the New York State Human\n\nRights law anti‐discrimination provisions ʺare in accord with Federal standards\n\nunder [T]itle VII of the Civil Rights Act of 1964.ʺ  Ferrante v. Am. Lung Assʹn, 90\n\nN.Y.2d 623, 629, 687 N.E.2d 1308, 1312, 665 N.Y.S.2d 25, 28 (1997).  Under these\n\nstandards, a plaintiff claiming that he was discriminated against on an\n\nimpermissible basis must demonstrate (1) that he is a member of the class\n\nprotected by the statute; (2) that he was qualified for the position; (3) that he\n\nexperienced an adverse employment action; and (4) that this adverse\n\nemployment action occurred under circumstances giving rise to an inference of\n\ndiscrimination.  See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802\n\n(1973); United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011).  ʺOnce th[is] prima\n\nfacie case has been shown, the burden then must shift to the employer to\n\n\n\n\n 29\n\farticulate some legitimate, nondiscriminatory reason for the adverse employment\n\naction.  The burden then shifts back to the plaintiff to show that the defendantʹs\n\nstated reason for the adverse employment action was in fact pretext.ʺ  Brennan,\n\n650 F.3d at 93 (quoting McDonnell Douglas, 411 U.S. at 802) (internal quotation\n\nmarks and alterations omitted).  Even if the factfinder decides that the defendants\n\nterminated the plaintiff in part for legitimate reasons, the plaintiff may prevail on\n\nhis or her claim if he or she can demonstrate that his or her employer was\n\nmotivated, at least in part, by discriminatory purposes.  See Nelson v. HSBC\n\nBank USA, 41 A.D.3d 445, 446‐47, 837 N.Y.S.2d 712, 714 (2d Depʹt  2007).\n\n Although a First Amendment retaliation claim under section 1983 is\n\nnot evaluated using the McDonnell Douglas burden‐shifting methodology, it too\n\ninvolves consideration of whether the plaintiff experienced an adverse action\n\nrelated to his or her employment as a result of protected conduct as opposed to\n\nalternative, legitimate, work‐related reasons.  ʺTo succeed on . . . First\n\nAmendment claims, [the plaintiff] must demonstrate by a preponderance of the\n\nevidence that the [conduct] at issue was protected, that he suffered an adverse\n\nemployment action, and that there was a causal connection between the\n\nprotected [conduct] and the adverse employment action.ʺ  Blum v. Schlegel, 18\n\nF.3d 1005, 1010 (2d Cir. 1994).  ʺShould a plaintiff demonstrate these factors, the\n\n\n\n\n 30\n\fdefendant has the opportunity to demonstrate by a preponderance of the\n\nevidence that it would have undertaken the same adverse employment action\n\neven in the absence of the protected conduct.ʺ  Id. (internal quotation marks\n\nomitted).  The plaintiff may prevail on his section 1983 claim if he can show that\n\nthe defendants would not have implemented the same adverse employment\n\nactions were it not for their discriminatory motivations.  See Adler v. Pataki, 185\n\nF.3d 35, 47 (2d Cir. 1999).\n\n The issue decided by the hearing officer after the section 75 hearing\n\nrelated to the ECWAʹs articulated basis for Matusickʹs termination.  As noted,\n\nhowever, there is no indication that the hearing officer was ever presented with \n\nevidence that the charges against Matusick were motivated, even in part, by an\n\nintent to discriminate, which is at the heart of the disparate treatment claims here. \n\nNor is there any indication that if the hearing officer had heard this evidence, it\n\nwould have been within his statutorily defined authority to review that\n\nallegation, or that he would have found that Matusickʹs termination was\n\nwarranted.11  Therefore, the hearing officerʹs factual determinations were not\n\n\n\n\n 11\n   A section 75 hearing officerʹs sole responsibility is to consider whether\nthe state employee facing charges has been ʺincompeten[t] or [committed]\nmisconduct.ʺ  See N.Y. Civ. Serv. Law § 75(1).  \n\n\n\n 31\n\fidentical to the issues of fact presented to the jury for its determination.12  See\n\nBurkybile, 411 F.3d at 313 (ʺThe record does not reflect that any constitutional\n\nclaims were raised at the Section 3020‐a hearing, so we do not take these as\n\ndecided.ʺ); see also Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454,\n\n472 (S.D.N.Y. 2011) (ʺ[A] finding that [p]laintiff was terminated for cause does\n\nnot bar [p]laintiffʹs Title VII claim.  Even if [p]laintiff cannot dispute the factual\n\nfindings of the Hearing Officerʹs decision, [p]laintiff can still prevail if he shows\n\nthat [d]efendants acted with an improper motive in bringing charges against\n\n[p]laintiff.ʺ). \n\n But the hearing officer did make findings of fact that bear on the\n\nissues raised on appeal –‐ he found that Matusick had actually committed\n\nmisconduct and that his conduct at work evinced an incompetence and\n\n\n\n 12\n   Of course, as is the case here, whether or not an issue decided in a prior\nproceeding is identical to an issue at stake in a subsequent proceeding is often a\ncorollary of the question whether or not the issue in question in the second\nproceeding was ʺactually litigatedʺ in the prior proceeding.  See, e.g., WRIGHT,\nMILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE § 4417 n. 9 (citing Faigin v.\nKelly, 184 F.3d 67, 77‐79 (1st Cir. 1999) (issues were not identical and, as a\ncorollary, the issue at stake in the subsequent litigation was not actually litigated\nin the prior)).  Here for example, the fact that the hearing officer never heard\nevidence of discrimination directly supports the conclusion that that question\nwas never actually litigated below, and confirms that there was no identicality of\nissues between the administrative hearing focused on Matusickʹs misconduct and\nthe litigation concerning discrimination on the basis of the race of Matusickʹs\nromantic partner.    \n\n\n\n 32\n\fcarelessness not befitting his role as a dispatcher for a water authority.  The\n\nquestion we must address, then, is what the preclusive effects of these findings\n\nare.  And that question turns on what the Restatement (Second) of Judgments\n\nrefers to as ʺ[o]ne of the most difficult problems in the application of [collateral\n\nestoppel is] . . . [the] delineat[ion] [of] the issue on which litigation is, or is not,\n\nforeclosed by the prior judgment.ʺ  RESTATEMENT (SECOND) OF JUDGMENTS § 27\n\ncmt. c. (1982).\n\n Critical to the resolution of the question is the determination of\n\nwhether the ʺissueʺ that is identical in the two proceedings involves a factual or\n\nlegal determination.  As one federal district court explained:\n\n An issue is a single, certain and material point arising out of\n the allegations and contentions of the parties.  It may concern\n only the existence or non‐existence of certain facts, or it may\n concern the legal significance of those facts.  If the issues are\n merely [factual], they need only deal with the same past\n events to be considered identical.  However, if they concern\n the legal significance of those facts, the legal standards to be\n applied must also be identical; different legal standards as\n applied to the same set of facts create different issues.\n\nOverseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 499, 518 n.66a (D.\n\nMich.), affʹd, 519 F.2d 119 (6th Cir. 1974), cert. denied, 423 U.S. 987 (1975)\n\n(internal quotation marks omitted). \n\n The hearing officerʹs ultimate conclusions ‐‐ that Matusick had\n\ncommitted disciplinable misconduct and was incompetent ‐‐ were guided by the\n\n\n\n 33\n\fparticular legal framework and standards applicable in section 75 proceedings. \n\nSee, e.g., Peters v. Cnty. of Rensselaer, 28 A.D.3d 854, 854, 811 N.Y.S.2d 811, 812‐\n\n13 (3d Depʹt 2006) (deciding that under New Yorkʹs Civil Service Law, there was\n\nsubstantial support for section 75 hearing officerʹs determination that petitioner, a\n\nmaintenance worker at a local community college, committed disciplinable\n\nmisconduct when, during his work shift, he sat in a truck reading a newspaper\n\nand smoking).  The section 75 framework differs substantially from the legal\n\nframework for state and federal employment discrimination law applicable to\n\nMatusick’s federal jury trial.  The hearing officer’s conclusions about the\n\nsignificance of Matusick’s misconduct and incompetence for purposes of section\n\n75, therefore, are not preclusive of any findings that the jury could have made in\n\nthe course of their deliberations with respect to the reasons for Matusick’s\n\ntermination.  Cf. Swineford v. Snyder Cnty. Pa., 15 F.3d 1258, 1268 (3d Cir. 1994)\n\n(concluding that administrative determination that plaintiff had not violated\n\ncompany rules for the purposes of determining whether she was eligible for\n\nunemployment benefits was not preclusive of employerʹs argument that plaintiff\n\nwas fired for legitimate reasons and not as retaliation for the exercise of her First\n\nAmendment rights).  In particular, the hearing officer’s conclusions did not\n\n\n\n\n 34\n\fpreclude the jury from finding that Matusick was terminated in substantial part\n\nbecause of his relationship with Starks.\n\n The factual findings supporting the hearing officer’s ultimate\n\nconclusion ‐‐ that Matusick had indeed committed the charged conduct, i.e., that\n\nhe had failed to respond to calls and slept on duty ‐‐ are of a different nature. \n\nThese findings precluded Matusick from arguing otherwise at trial.  See Klein v.\n\nPerry, 216 F.3d 571, 574 (7th Cir. 2000) (observing that, under Indiana Law, an\n\nissue of fact determined by state agency adjudicator is preclusive of subsequent\n\nfactual findings in a civil rights dispute in federal court, even if those findings are\n\nembedded within a different legal claim).  Therefore, in the course of deciding –‐\n\nboth under state law and for the section 1983 claims –‐ whether the defendants\n\nterminated Matusick for legitimate or illegal reasons, the jury was required to\n\naccept that Matusick had failed to perform ‐‐ satisfactorily, if at all ‐‐ some of his\n\nduties at the ECWA.  See, e.g., Burkybile, 411 F.3d at 309‐314 (deciding that, when\n\napplying federal constitutional standards in determining whether a genuine issue\n\nof material fact existed, we accept the fact‐findings of the hearing officer in the\n\ncourse of our examination of the federal constitutional claim). \n\n Applying these principles to this case, we conclude that the jury was\n\nprecluded from finding that Matusick had not actually engaged in the conduct\n\n\n\n\n 35\n\fcharged against him in the section 75 hearing.  Inasmuch as the district court did\n\nnot expressly instruct the jury that its fact‐findings were cabined in this regard,\n\nthe jury charge was in error. \n\nB. The Admissibility and Persuasiveness of the Section 75 Report and \n Recommendation\n\n The defendants also assert two other arguments related to the courtʹs\n\ntreatment of the section 75 hearing officerʹs determination. \n\n First, they dispute the courtʹs decision not to instruct the jury that it\n\ncould find the fact that the hearing officer issued the report and recommendation\n\nto be evidence that the defendants terminated Matusick for legitimate reasons.13 \n\nThis argument is rooted in our opinion in Ruiz v. County of Rockland, 609 F.3d\n\n486 (2d Cir. 2010), and our summary order in Testagrose v. New York City\n\nHousing Authority, 369 F. Appʹx 231 (2d Cir. 2010).  \n\n In Ruiz, we considered a former state employeeʹs Title VII and Equal\n\nProtection Clause claims against his former employer who had claimed that the\n\n\n 13\n   The defendants assert at various points in their briefing that the district\ncourt instructed the jury that the hearing officerʹs report and recommendation\nwas ʺnot entitled to any weight.ʺ  See, e.g., Defs. Reply and Response Br. at 11. \nThis framing appears to be a mischaracterization of the jury charge.  The courtʹs\ninstruction on the section 75 hearing focused on the fact that the outcome of that\nhearing did not force the jury to arrive at any particular decision with regard to\nthe plaintiffʹs wrongful termination claim, not on the evidentiary weight of the\nhearing officerʹs determinations.  \n\n\n 36\n\fplaintiff was terminated as a consequence of misconduct, not his protected status,\n\nand that this misconduct was found after a section 75 disciplinary hearing.  Ruiz,\n\n609 F.3d at 490.  We concluded that, together with other evidence, the fact that\n\nthe hearing officer had recommended termination supported the defendantsʹ\n\narguments that the plaintiff was terminated for legitimate reasons rather than\n\ninappropriate discrimination.  See id. at 494 (ʺ[F]indings of fact made by a neutral\n\ndecision‐maker have ʹprobative weight regarding the requisite causal link\n\nbetween an employeeʹs termination and the employerʹs illegal motive.ʹʺ (Quoting\n\nCollins v. N.Y.C. Transit Auth., 305 F.3d 113, 115 (2d Cir. 2002))).  The crux of the\n\ndefendantsʹ argument, then, appears to be that the jury should have been\n\nexpressly instructed that the fact that the hearing officer made the determination\n\nwas probative of the defendantsʹ assertion that Matusick was terminated for\n\nlegitimate reasons. \n\n Second, the defendants dispute the district courtʹs evidentiary\n\nrulings to exclude the actual report and recommendation as documentary\n\nevidence of the hearing officerʹs conclusions.  \n\n We need not, however, address either of these arguments.  Even if\n\nthe district court erred in any of the ways that the defendants allege, as we will\n\nexplain, neither these errors nor the decision not to instruct the jury on the\n\n\n\n 37\n\fpotential preclusive effect of the section 75 hearing were materially prejudicial to\n\nthe defendants.\n\nC. Harmless Error\n\n Under Federal Rule of Civil Procedure 61, courts are instructed to\n\nʺdisregard all errors and defects that do not affect any partyʹs substantial rights.ʺ \n\nFed. R. Civ. P. 61.  But ʺ[e]rror cannot be regarded as harmless merely because\n\nthe trial judge or the appellate court thinks that the result that has been reached is\n\ncorrect.ʺ  FEDERAL PRACTICE & PROCEDURE § 2883.  Instead, the ʺprobable effect of\n\nthe errorʺ must be ʺdetermined in light of all evidence.ʺ  Id.  The ʺsubstantial\n\nrightsʺ language of the Federal Rules has therefore been interpreted to require an\n\nexamination into the likely outcome of the proceedings.  An error is not harmless\n\nif ʺone cannot say, with fair assurance, after pondering all that happened without\n\nstripping the erroneous action from the whole, that the judgment was not\n\nsubstantially swayed by the error.ʺ  Kotteakos v. United States, 328 U.S. 750, 765\n\n(1946); see also United States v. David, 131 F.3d 55, 61 (2d Cir. 1997) (describing\n\nKotteakos as ʺconstruing the ʹsubstantial rightsʹ language of 28 U.S.C. § 391 (from\n\nwhich Rule 61 is derived), as requiring an assessment of ʹwhether the error itself\n\nhad substantial influenceʹ on the outcome of the case.ʺ). \n\n\n\n\n 38\n\f The court here erred by not instructing the jury on the preclusive\n\neffect of the section 75 hearing officerʹs factual findings.  The court may also have\n\nerred by not instructing the jury on the persuasive weight of the report and\n\nrecommendation and by excluding that report from evidence.  These errors\n\nallowed Matusick to attempt to persuade the jury that he was falsely accused of\n\nmisconduct in support of his argument that the ECWAʹs proffered legitimate\n\nreason for firing him was false.  We conclude, however, that the error did not\n\nhave the probable effect of having ʺsubstantial influence,ʺ David, 131 F.3d at 61,\n\non the outcome of the trial.  \n\n We think it highly unlikely that the jury would have found the\n\ndefendantsʹ evidence regarding Matusickʹs alleged misconduct unconvincing. \n\nMatusick did testify about the incidents that served as the impetus for the section\n\n75 hearing, including the water‐line breaks on October 1 and October 20, 2005. \n\nHowever, he was thoroughly and effectively cross‐examined on these points, and\n\nECWA witnesses testified about their perception of his misconduct, including\n\nthat he was sleeping on the job.  Matusick himself had admitted to blocking the\n\ncamera ten to twenty times when accepting his suspension without pay, a point\n\nthe defense counsel stressed repeatedly to the jury.  And Matusick’s counsel\n\nargued in his summation that other ECWA employees were not terminated for\n\n\n\n 39\n\fsimilar misconduct ‐‐ in effect conceding that Matusick had engaged in\n\nmisconduct.\n\n Importantly, the defendants also submitted evidence regarding the\n\nlikely merit of Matusickʹs assertions, all of them consistent with the timing and\n\ncontent of the hearing officerʹs conclusions.  They included business memoranda\n\nfrom differing incidents recording Matusickʹs misconduct in great detail,\n\nincluding call logs clearly demonstrating his failure to respond to calls for\n\nassistance, and his receipt of a 60‐day suspension for his misconduct.  With\n\nregard to the October 1, 2005, incident, for example, where Matusick had been\n\ncharged with not responding to a large water leak for over an hour, and the\n\nOctober 20, 2005, incident, where Matusick failed to respond to a water leak for\n\nover three hours, the jury had before it work orders, letters from employees who\n\nwitnessed the events and the citizens who had made the calls, log book entries, a\n\nnewspaper article, interoffice memoranda, insurance letters, and deposition\n\ntestimony that all confirmed that Matusick had failed to respond for the periods\n\nalleged on those dates.  All of this specific and concrete evidence weighed against\n\nMatusickʹs general denial of the facts.  And the jury had before it the notice of\n\nSection 75 charges, detailing the precise times of the calls and therefore the\n\namount of time it took Matusick to respond, and it heard Mendezʹs testimony\n\n\n\n 40\n\fthat the section 75 report was ʺthe strongest . . . report and recommendation that\n\nIʹve ever had towards a termination of an employee.ʺ  Trial Tr. Aug. 26, at 162.  \n\n Finally, in light of the fact that the jury found Mendez, who\n\nultimately adopted the hearing officer’s recommendation, not to be individually\n\nliable for the wrongful termination claim, it seems unlikely that the jury credited\n\nMatusickʹs testimony that he had not committed misconduct justifying\n\ntermination, and it is similarly unlikely that a different jury charge would have\n\nmade a difference with respect to the juryʹs other findings.  The evidence made\n\nclear what the section 75 hearing officer found: that Matusick had indeed\n\ncommitted the misconduct alleged. \n\n The question on which the juryʹs determination likely hinged was\n\nwhether, notwithstanding Matusickʹs misbehavior, which was well‐documented,\n\nhis treatment at the hands of the ECWA and its personnel was motivated, at least\n\nin substantial part, by his relationship with Starks.  That was a question upon\n\nwhich the hearing officerʹs findings had no bearing. \n\n In light of the substantial evidence that Matusick committed the\n\nmisconduct found in the section 75 hearing report, we conclude that probable\n\neffect the error was harmless and decline to require the case to be retried.\n\n   II.  Sufficiency of the Evidence on\n        Matusickʹs Unlawful Termination Claim\n\n\n 41\n\fA. Evidence Linking the ECWA, Kuryak, \n and Lisinski to the Termination\n\n The defendants also appeal from the district courtʹs denial of their\n\nRule 50 motions for judgment as a matter of law.  They argue that the juryʹs\n\nfindings of liability on the unlawful termination claim under New York\n\nExecutive Law § 29614 cannot stand against the ECWA or either of the individual\n\ndefendants held liable after trial –‐ Kuryak and Lisinski.  \n\n The defendants bear a heavy burden to prevail on this argument. \n\nʺ[A] Rule 50 motion must be denied unless the evidence is such that, without\n\nweighing the credibility of the witnesses or otherwise considering the weight of\n\nthe evidence, there can be but one conclusion as to the verdict that reasonable\n\n[persons] could have reached.ʺ  Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248\n\n(2d Cir. 2005) (internal quotation marks omitted).  ʺ[W]e review the district\n\ncourtʹs denial of a Rule 50 motion de novo, [and] we are bound by the same stern\n\nstandardsʺ on appeal.  Id.   \n\n\n\n\n 14\n  It is the law in our Circuit that ʺan employer may violate Title VII if it\ntakes action against an employee because of the employeeʹs association with a\nperson of another race.ʺ  Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). \nThe same goes for New York Executive Law § 296, claims that, we have\nexplained, are ʺanalytically identical to claims brought under Title VII.ʺ  Torres v.\nPisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997).\n\n\n 42\n\f With regard to the ECWA, the defendants first argue that because\n\nthe jury found Mendez not liable for unlawful termination it could not have\n\nfound the ECWA liable as Matusickʹs employer.  In making this argument, the\n\ndefendants point to a principle of New York law that an employer is not liable for\n\nthe discriminatory acts of its employees unless it ʺapproved of, or acquiesced inʺ\n\nthese acts.  Totem Taxi, Inc. v. N.Y.S. Human Rights Appeal Bd., 65 N.Y.2d 300,\n\n304, 480 N.E.2d 1075, 1075, 491 N.Y.S.2d 293, 293 (1985).  Kuryakʹs and Lisinksiʹs\n\nconduct was too remote from the employerʹs control to be the basis for the\n\nECWAʹs liability, they argue, and because Mendez was held not individually\n\nliable, the ECWA cannot be held liable based on his conduct either. \n\n Even if the juryʹs finding that Mendez was not liable for unlawful\n\ndiscrimination was inconsistent with a finding of liability against the ECWA, this\n\nwould not necessarily require vacatur.  We have long held the view that\n\nʺ[c]onsistent jury verdicts are not, in themselves, necessary attributes of a valid\n\njudgment.ʺ  Globus v. Law Research Serv., Inc., 418 F.2d 1276, 1290 n.17 (2d Cir.\n\n1969), cert. denied, 397 U.S. 913 (1970).  The question, then, is whether there was\n\nsufficient evidence in the record to support a finding of liability on the part of the\n\nECWA. \n\n\n\n\n 43\n\f It is true that there is no direct evidence that higher‐ups at the\n\nECWA actively participated in the harassment of Matusick and terminated him\n\nas a result of his interracial relationship.  But the law recognizes that ʺsmoking\n\ngunʺ evidence of discrimination is rarely available; plaintiffs alleging\n\ndiscrimination are therefore ʺentitled to rely on circumstantial evidence.ʺ \n\nHolcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008).  We need not reiterate the\n\ndisconcerting history of the treatment of Matusick because of his relationship\n\nwith Starks to conclude that the record contains substantial evidence to that\n\neffect: Matusick presented evidence of racially motivated harassment and\n\nintimidation at the ECWA that was chronic and pervasive.  The jury could have\n\nconcluded that racial animus tainted the investigation into Matusickʹs\n\nmisconduct and that the ECWA was aware of that fact, or at least that such\n\nanimus was a substantial factor in the ECWAʹs decision to follow the section 75\n\nhearing officerʹs recommendation of termination.  The ECWA has thus not\n\ncarried its heavy burden under Rule 50.\n\n There also appears to be some basis for the juryʹs determination that\n\nthe ECWA, but not Mendez, was liable for unlawful termination.  Under section\n\n296, a person can be found individually liable for violations of the Stateʹs Human\n\nRights law if either (1) he or she can be said to constitute the employer in his or\n\n\n\n 44\n\fher own individual capacity, see Patrowich v. Chem. Bank, 63 N.Y.2d 541, 543,\n\n473 N.E.2d 11, 13, 483 N.Y.S.2d 659, 661 (1984); see also N.Y. Exec. Law §\n\n296(1)(a); or (2) if he or she ʺaid[s], abet[s], incite[s], compel[s] or coerce[s] the\n\ndiscriminatory conduct,ʺ N.Y. Exec. Law § 296(6). \n\n As a general rule, individuals may be subject to liability as\n\nemployers ʺif they have ownership interests in the [employer] or do more than\n\ncarry out personnel decisions of others.ʺ  Townsend v. Benjamin Enterprises, Inc,\n\n679 F.3d 41, 57 2d Cir. 2012).  Although there was substantial evidence that\n\nMendez was himself responsible for making the decision to terminate Matusick,\n\nit does not necessarily follow that he is subject to personal liability for the acts of\n\nwhich Matusick complains under the circumstances of this case.  By state law,\n\nMatusick was entitled to a section 75 hearing after which an independent hearing\n\nofficer would evaluate whether he should be subject to discipline.  The jury could\n\nplausibly have determined that Mendezʹs individual role in accepting the hearing\n\nofficerʹs recommendations was too passive to warrant individual liability. \n\n The defendantsʹ argument that there was insufficient evidence to\n\nestablish that other individual defendants ‐‐ Kuryak, who investigated the\n\ndisciplinary charges, and Lisinksi, the Coordinator of Employee Relations ‐‐\n\n\n\n\n 45\n\faided and abetted the improper dismissal also fails.  There was evidence in the\n\nrecord that both defendants knew about the harassment, did nothing to respond\n\nto it, and then participated directly in the investigation and termination.  More: \n\nThe jury had before it evidence that Lisinski, the employee relations specialist,\n\nhad himself taunted Matusick based on Starksʹs race.  It was for the jury to\n\nevaluate the credibility of these defendantsʹ testimony and weigh it, along with\n\nthe other evidence before it, to determine whether racial animus in part\n\nmotivated the decision to terminate.  See Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164\n\n(2d Cir. 1998).  The juryʹs conclusion as to the responsibility of Kuryak and\n\nLisinksi as aiders and abettors of the ECWA must stand.\n\nB. Comparators\n\n The defendants further assert that Matusick failed to establish that\n\nhe was discriminated against because of his protected status inasmuch as he\n\ncould not point to a similarly situated comparator.  This argument, too, must be\n\nrejected if the verdict is one that ʺreasonable [persons] could have reached.ʺ \n\nCross, 417 F.3d at 248.  Matusickʹs evidence of comparators, although not\n\noverwhelming, is sufficient for a reasonable jury to have ruled in his favor on this\n\nclaim. \n\n\n\n\n 46\n\f The defendants argue to the contrary that the comparators Matusick\n\nhas identified, ʺother [ECWA] dispatchers, who reported to the same supervisors\n\nunder the same standards and engag[ed] in the same conduct,ʺ but were not\n\nterminated,  Appelleesʹ Br. at 37, do not provide a sufficient basis for establishing\n\ndiscriminatory treatment because they are not similar to Matusick in ʺall material\n\nrespects.ʺ  Ruiz, 609 F.3d at 494 (internal quotation marks omitted).  Unlike any\n\nalleged comparators, Matusick admitted to wrongful conduct (blocking the\n\nsecurity camera), and thus agreed to a 60‐day suspension before his section 75\n\nhearing.  He was thus the only person terminated during the period at issue who\n\nhad engaged in serious misconduct only months earlier.  Moreover, the\n\ndefendants contend, the closest comparator, Radich, was also terminated for\n\nsleeping on the job, and he was not dating a black woman, suggesting that the\n\nbasis for Matusickʹs discipline was his misconduct and not his romantic\n\nrelationship.  \n\n The plaintiff argues, however, that he pointed to several\n\ncomparators who were not terminated despite engaging in similar conduct.  It is\n\ntrue that none of these employees had as extensive a history of behavior\n\npotentially subject to legitimate discipline as did Matusick, but it does not follow\n\n\n\n\n 47\n\fthat they cannot serve as comparators.  In Graham v. Long Island R.R., 230 F.3d\n\n34 (2d Cir. 2000), we reversed a district courtʹs grant of summary judgment to an\n\nemployer who terminated the plaintiff allegedly on the basis of his race.  Id. at 36. \n\nAlthough we reiterated the rule that a comparator must be similarly situated in\n\nall material respects, id. at 39, we made it clear that this rule does not require a\n\nprecise identicality between comparators and the plaintiff.  ʺWhether two\n\nemployees are similarly situated ordinarily presents a question of fact for the\n\njury.ʺ  Id.  And the case law requires that for such evidence to be probative, and\n\ntherefore to support a jury verdict, there must only be ʺan objectively identifiable\n\nbasis for comparability.ʺ  Id. at 40 (internal quotation marks omitted).  We then\n\nconcluded that the fact that one comparator (who had been treated differently\n\nfrom the plaintiff) had committed fewer infractions than had the plaintiff did not\n\nin itself mean that he could not be a comparator.  Id. at 42‐43.\n\n The same reasoning applies here.  There may not have been anyone\n\nat the ECWA who engaged in exactly the same misconduct as did Matusick, but\n\nthis did not preclude the jury from considering the way that other employees\n\nwho also engaged in disciplinable on‐the‐job misconduct were treated, combined\n\nwith other indications that ECWA employees held racially discriminatory views,\n\n\n\n\n 48\n\fto conclude that Matusick was terminated, at least in material part, because of the\n\nrace of his romantic partner.\n\n We therefore affirm the district courtʹs denial of the defendantsʹ Rule\n\n50 motions with regard to the plaintiffʹs unlawful termination claims against the\n\nECWA.\n\n III. Section 1983 Claims against ECWA \n and the Individual Defendants\n\n  The defendants mount various challenges to the juryʹs finding of\n\nliability on Matusickʹs section 1983 claims.  We conclude that because his\n\nconstitutional right to intimate association in the context of the First Amendment\n\nwas not clearly established at the time of the alleged misconduct, the individual\n\ndefendants held liable for these claims were entitled to qualified immunity.  We\n\ntherefore vacate the judgment against the individual defendants based on the\n\nsection 1983 claims, including the award of punitive damages against them.\n\n The ECWA, as a municipal entity, however, is not protected by\n\nqualified immunity.  See Owen v. City of Independence, Mo., 445 U.S. 622, 650\n\n(1980).  And we conclude that, in light of the severity, pervasiveness, and\n\nnotoriety of the conduct of the individual defendants, as established at trial, the\n\njuryʹs finding of liability against the ECWA is supported by the evidence. \n\n\n\n 49\n\fA. Qualified Immunity \n\n 1.  Background Principles.  Section 1983 provides persons with a\n\nprivate cause of action against those acting ʺunder color of state lawʺ to recover\n\nmoney damages for the deprivation of ʺany rights, privileges, or immunities\n\nsecured by the Constitution.ʺ  42 U.S.C. § 1983.  ʺBut to ensure that fear of liability\n\nwill not unduly inhibit officials in the discharge of their duties, the officials may\n\nclaim qualified immunity[.]ʺ  Camreta v. Greene, 131 S. Ct. 2020, 2030 (2011)\n\n(internal quotation marks omitted).  ʺQualified immunity balances two important\n\ninterests ‐‐ the need to hold public officials accountable when they exercise power\n\nirresponsibly and the need to shield officials from harassment, distraction, and\n\nliability when they perform their duties reasonably.ʺ  Pearson v. Callahan, 555\n\nU.S. 223, 231 (2009).\n\n Toward this end, in evaluating a qualified immunity defense, courts\n\nmust examine two factors: (1) whether the plaintiff has made out a violation of a\n\nconstitutional right; and (2) whether that right was ʺclearly establishedʺ at the\n\ntime of the defendantʹs alleged misconduct.  Id. at 232.15 \n\n\n 15\n  This Court has at times placed a further gloss on these principles, stating\nthat ʺ[e]ven where the law is ʹclearly establishedʹ and the scope of an officialʹs\npermissible conduct is ʹclearly defined,ʹ the qualified immunity defense also\nprotects an official if it was ʹobjectively reasonableʹ for him at the time of the\n\n\n 50\n\f Were we concerned solely with the individual defendants, our\n\nconclusion that they are protected by qualified immunity because Matusickʹs\n\nright to be free from interference with his intimate association with Starks was\n\nnot clearly established at the time they acted, would require us to make the often\n\ndifficult choice as to which component of the qualified immunity inquiry to\n\naddress first.  See Pearson, 555 U.S. at 236 (ʺpermitt[ing us] to exercise [our]\n\nsound discretion in deciding which of the two prongs of the qualified immunity\n\nanalysis should be addressed first in light of the circumstances in the particular\n\ncase at handʺ).  In this case, however, inasmuch as the ECWA would not be\n\nentitled to qualified immunity for any constitutional violation under Monell, 436\n\n\n\n\nchallenged action to believe his acts were lawful.ʺ  Taravella v. Town of Wolcott,\n599 F.3d 129, 134 (2d Cir. 2010) (some internal quotation marks omitted); accord\nSoutherland v. City of N.Y., 680 F.3d 127, 141‐42 (2012), cert. denied, 133 S. Ct.\n980 (2013).  This interpretation is not without controversy, see, e.g., Walczyk v.\nRio, 496 F.3d 139, 165‐66 (2d Cir. 2007) (Sotomayor, J., concurring) (describing the\ngloss as a ʺdoctrinal misstatement[]ʺ and stating that ʺwhether a right is clearly\nestablished is the same question as whether a reasonable officer would have\nknown that the conduct in question was unlawfulʺ (emphasis in original)). \n\n We need, not, however, address the question of whether it would have\nbeen objectively reasonable for the individual defendants here to believe that\ntheir conduct was lawful even if the constitutional right asserted by Matusick\nwere clearly established ‐‐ the defendants have never argued this basis for\nqualified immunity.  And in any event, we conclude that the right at issue was\nnot clearly established for the purposes of this defense.  \n\n\n 51\n\fU.S. at 690‐91, see Owen, 445 U.S. at 650, we must in any event decide the nature\n\nand extent of the plaintiffʹs constitutional right of intimate association to\n\ndetermine the ECWAʹs liability.  We therefore begin by considering the merits of\n\nMatusickʹs constitutional claims. \n\n 2.  Merits.  The district court instructed the jury that in order for it to\n\nconclude that any of the individual defendants were liable to the plaintiff under\n\nsection 1983, the jury was required to find that ʺthose acts that [the jury] ha[s]\n\nfound that the defendant took under color of state law caused the plaintiff to\n\nsuffer the loss of a federal right.ʺ  Trial Tr. Aug. 31, at 111.  The right at issue in\n\nthis case, according to the district court, was ʺthe plaintiffʹs right to enter into\n\nintimate relations with another person.ʺ  Id.  The court instructed the jury that\n\nMatusickʹs relationship with ʺhis then‐girlfriend Anita Starksʺ was a\n\nconstitutionally protected intimate relationship, id. at 112; and further, that ʺ[t]he\n\nloss of the right to associate does not have to mean literally that the relationship\n\nended or it was impaired.  This right can be violated if someone is penalized for\n\nthose ‐‐ for who the other person is in a relationship.ʺ  Id. at 112.\n\n The questions we must address at this stage of our qualified\n\nimmunity analysis are (1) whether the relationship between Matusick and Starks\n\n\n\n\n 52\n\fwas protected by the constitutional right to intimate association; and (2) whether\n\nthe conduct alleged by Matusick and later found by the jury to ʺpenalize[]ʺ\n\nMatusick for this relationship was a sufficient infringement of the right to this\n\nintimate association that Matusickʹs constitutional right was violated.16\n\n These questions are not easily disentangled.  As we have observed, a\n\nʺcategorical approach is inappropriate for dealing with association‐rights cases. \n\nIt fails to account for the ʹbroad range of human relationships that may make\n\ngreater or lesser claims to constitutional protection from particular incursions by\n\nthe State.ʹʺ  Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y.,\n\n502 F.3d 136, 144 (2d Cir. 2007) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 620\n\n(1984)).  Instead, ʺthe question is:  Upon a balancing of all pertinent factors, do\n\nthe stateʹs interests, and its means of achieving them, justify the stateʹs intrusion\n\non the particular associational freedom?ʺ  Id.\n\n\n\n 16\n   Although we highlight the district courtʹs jury instructions as an\narticulation of the district courtʹs understanding of the law governing Matusickʹs\nclaims, the courtʹs denial of qualified immunity, insofar as it does not involve the\nresolution of a dispute of fact, is ʺa question of law better left for the court to\ndecide.ʺ  Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (internal quotation\nmarks omitted).  We therefore review the district courtʹs denial of qualified\nimmunity de novo.  See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (ʺWe review\na denial of qualified immunity de novo.ʺ); Anderson v. Recore, 446 F.3d 324, 328\n(2d Cir. 2006) (same).   \n\n\n 53\n\f We separate the questions here in order to clarify the level of\n\nconstitutional protection afforded relationships like Matusickʹs.  We conclude\n\nthat, whatever the treatment we would be required to give other intimate\n\nromantic relationships, Matusickʹs betrothal to Starks under the circumstances\n\npresented here constituted an intimate association, part and parcel of their\n\neventual marriage and entitled to similar protection under the First Amendment. \n\nConsidering Matusickʹs interests in preserving and protecting his intimate\n\nespousal relationship with Starks, we conclude that the conduct that he alleges\n\nthat the ECWA and the individual defendants committed violated his\n\nconstitutional right to intimate association. \n\n a. Right to Intimate Association  \n\n The right to intimate association was first recognized by the\n\nSupreme Court in Roberts v. United States Jaycees, 468 U.S. 609 (1984), a case\n\nbrought by a civic organization challenging a Minnesota statute prohibiting the\n\ngroup from excluding women.  Id. at 615‐17.  The Court addressed the claim\n\nunder the ʺconstitutionally protected ʹfreedom of association,ʹʺ which exists in\n\nʺtwo distinct senses,ʺ id. at 617: first, the choice to ʺenter into and maintain\n\ncertain intimate human relationships [without] undue intrusion by the State,ʺ\n\n\n\n\n 54\n\fand, second, the right to associate with others ʺfor the purpose of engaging\n\nin those activities protected by the First Amendment ‐‐ speech, assembly, petition\n\nfor the redress of grievances, and the exercise of religion,ʺ id. at 617‐18.  It is the\n\nfirst of these rights ‐‐ the right to intimate association, as opposed to expressive\n\nassociation ‐‐ that is the subject of the section 1983 claims here.17  \n\n In Roberts, the Court began by explaining that the right to intimate\n\nassociation is undergirded by at least two constitutional interests, each related to\n\n\n\n\n 17\n   Although it is clear that the Constitution protects a right to form\nintimate associations with other individuals or small groups, the origin of this\nright is the subject of considerable controversy.  See Adler, 185 F.3d at 42 (ʺThe\nsource of the intimate association right has not been authoritatively\ndetermined.ʺ).  Some case law suggests that the right is included within the\npersonal liberty protected by the Due Process Clause.  See id. (citing cases); IDK,\nInc. v. Cnty. of Clark, 836 F.2d 1185, 1192 (9th Cir. 1988) (ʺ[T]he Supreme Court\nhas most often identified the source of the protection as the due process clause of\nthe fourteenth amendment, not the first amendmentʹs freedom to assemble.ʺ). \nOther cases place it under the ambit of the First Amendment.  See, e.g., Starling v.\nBd. of Cnty. Commʹrs, 602 F.3d 1257, 1260 (11th Cir. 2010) (describing the ʺFirst\nAmendment right to intimate associationʺ).  Or it may best be understood as\nfalling within the ʺborderlands of the First Amendmentʺ but undergirded by\nother constitutional doctrines, including equal protection and substantive due\nprocess.  See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J.\n624, 655 (1980).\n\n Ultimately, though, the precise constitutional origins of this right are not,\nin themselves, critical to our analysis, except to the extent that understanding the\nconstitutional values at stake in these cases –‐ liberty, privacy, expression, and\nequality –‐ helps guide our analysis of how far this right extends.  \n\n\n 55\n\fthe protection of individual liberty against state intrusion.  First, there is a social\n\ninterest in preserving such protection: ʺ[C]ertain kinds of personal bonds have\n\nplayed a critical role in the culture and traditions of the Nation by cultivating and\n\ntransmitting shared ideals and beliefs,ʺ a process essential to the maintenance of\n\na pluralistic democracy, as these values ʺfoster diversity and act as critical buffers\n\nbetween the individual and the power of the State.ʺ  Id. at 619.  Second, the right\n\nto intimate association protects individual interests central to the freedom of\n\nexpression by ʺsafeguard[ing] the ability independently to define oneʹs identity\n\nthat is central to any concept of liberty.ʺ  Id. at 618‐19.\n\n The Court then offered this guidance as to the types of relationships\n\nthought to implicate these constitutional interests:\n\n The personal affiliations that exemplify these\n considerations, and that therefore suggest some relevant\n limitations on the relationships that might be entitled to\n this sort of constitutional protection, are those that\n attend the creation and sustenance of a family ‐‐\n marriage, childbirth, the raising and education of\n children, and cohabitation with oneʹs relatives. \n\nId. (citations omitted). \n\n Finally, the Court recognized that the diversity of human\n\nrelationships necessitated a sliding‐scale analysis rather than a bright‐line test: \n\nʺWe need not mark the potentially significant points on this terrain with any\n\n\n 56\n\fprecision.  We note only that factors that may be relevant include size, purpose,\n\npolicies, selectivity, congeniality, and other characteristics [of an associative\n\nrelationship] that in a particular case may be pertinent.ʺ  Id. at 620.\n\n The Roberts Courtʹs reference to traditional familial relationships,\n\nmost notably marriage, has led some courts to conclude that the right does not\n\nextend to romantic relationships beyond marriage.  See, e.g., Poirier v. Mass.\n\nDepʹt of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (ʺThe unmarried cohabitation of\n\nadults does not fall under any of the Supreme Courtʹs bright‐line categories for\n\nfundamental rights in this area.ʺ (citing Roberts, 468 U.S. at 619)); see also\n\nCameron v. Seitz, 38 F.3d 264, 274‐76 (6th Cir. 1994).  \n\n We think this to be an unduly narrow reading of Roberts.  The Court\n\ndid not suggest that constitutional protections applied only to the relationships it\n\nenumerated.  Rather than setting forth an exclusive and definitive list, the Court\n\ninstead spoke to relationships that ʺinvolve deep attachments and commitments\n\nto the necessarily few other individuals with whom one shares not only a special\n\ncommunity of thoughts, experience, and beliefs but also distinctively personal\n\naspects of oneʹs life.ʺ  468 U.S. at 619‐20.  The Courtʹs specific reference to marital\n\nrelationships therefore should not, we think, be viewed as a formalistic\n\n\n\n\n 57\n\frecognition of a particular, narrow legal status entitled to protection.  Rather, at\n\nleast to the extent that a relationship of betrothal constitutes an expression of\n\noneʹs choice of marital partner, it shares the qualities ascribed by the Roberts\n\ncourt to marriage and other protected forms of intimate association.  We\n\ntherefore conclude that Matusickʹs betrothal to Starks fulfilled the standards set\n\nout in Roberts and is entitled to protections similar to those that marital\n\nrelationships enjoy under the right to intimate association.18\n\n There is no question here but that the relationship between Starks\n\nand Matusick was a bona fide betrothal:  They were involved in a long‐term\n\nromantic relationship, held themselves out as engaged and were recognized as\n\nsuch, maintained together a relationship with Starksʹ children, and shared\n\n\n 18\n   Although the Roberts Court indeed took pains not to ʺmark the\npotentially significant points on th[e] terrain [of the right] with any precision,ʺ \n468 U.S. at 620, the Supreme Court addressed the question more directly in\nRotary Club v. Duarte, 481 U.S. 537 (1987), observing that it had never held that\nʺconstitutional protection is restricted to relationships among family members.ʺ \nId. at 545.  \n\n Of course, not all romantic relationships presuppose such deep\nattachments. The Supreme Court has made the relevant, if rather uncontroversial,\npoint that ʺʹpersonal bondsʹ that are formed from the use of a motel room for\nfewer than 10 hours are not those that have ʹplayed a critical role in the culture\nand traditions of the Nation by cultivating and transmitting shared ideals and\nbeliefs.ʹʺ  FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 237 (1990) (quoting Roberts,\n468 U.S. at 618‐19).  \n\n\n 58\n\fsignificant features of their private life together in anticipation of marriage.  It\n\nmay be worth noting that they did indeed marry.  But that fact cannot, of course,\n\nbe part of the test and we do not rely on it for that purpose because, had their\n\nrelationship been otherwise identical but failed for some reason to ripen into\n\nmarriage, it would nonetheless have been the same relationship we conclude was\n\ndeserving of constitutional protection at the time of the defendantsʹ interference\n\nwith it.  Their relationship at the time of the events at issue here was thus an\n\nintegral part of their eventual choice to enter into the formal, legal bonds of\n\nmarriage ‐‐ it was marked by the same characteristics of deep attachment,\n\ncommitment, and self‐identification that Roberts and its progeny have viewed as\n\ncharacteristic of constitutionally protected intimate association.  We reach this\n\nconclusion not, as the dissent suggests, by drawing ʺdescriptive analogies,ʺ but\n\nby applying the standard set out by the Supreme Court in Roberts to the facts of\n\nthis case as best we can, and deciding that the right of intimate association it\n\ndescribes extends to the particular relationship at hand.\n\n  b. Whether the Defendantsʹ Conduct Here Violated\n Matusickʹs Right to Intimate Association \n\n\n\n\n 59\n\f Having concluded that Matusick possessed a constitutional right\n\nprotecting his intimate association with Starks, the next question is whether that\n\nright was violated.\n\n First, we note that this is an association which most ECWA witnesses\n\ntestified to being aware of.  Even had they not, the evidence is clear that the\n\nECWA defendants knew of the nature of Matusick and Starksʹ relationship: \n\nStarks drove Matusick to work, and Matusick introduced her as his girlfriend at\n\nwork‐related gatherings.  But more striking: We cannot interpret the language of\n\nECWA defendants when they called Matusick a ʺnigger loverʺ or told him that\n\nhis ʺbitch is [a] [nigger]ʺ as demonstrating anything other than a knowledge of\n\nand disdain for the nature of Matusick and Starksʹ relationship.   \n\n The question then is whether this right was violated.  The Roberts\n\nCourt provided little guidance as to how to determine whether the right of\n\nintimate association has been infringed upon beyond noting that courts must\n\nengage in a ʺcareful assessment of where that relationshipʹs objective\n\ncharacteristics locate it on a spectrum from the most intimate to the most\n\nattenuated of personal attachments.ʺ  Id. at 620.\n\n\n\n\n 60\n\f Some courts have examined whether the relationship at issue calls\n\nfor strict or intermediate scrutiny or rational basis review.  See, e.g., Poirier, 558\n\nF.3d at 96.  In the public employer context, others have applied the balancing test\n\nset out by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563,\n\n566‐68 (1968), in order to weigh the relative interests of the plaintiff in preserving\n\nan intimate relationship and the interests of the state in ʺpromoting the efficiency\n\nof the public services it performs through its employees.ʺ  Id. at 568; see, e.g.,\n\nShahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) (en banc), cert. denied, 522\n\nU.S. 1049 (1998).  \n\n We do not think it necessary to choose among those standards to\n\nresolve the issues in this case.  The ECWA had no legitimate interest in\n\ninterfering with Matusickʹs espousal relationship with Starks or terminating him\n\non account of this relationship ‐‐ in other words, there is nothing to be placed in\n\nthe balance against Matusickʹs exercise of his right of intimate association.  To\n\ninterfere with Matusickʹs constitutional right ʺon so unsupportable a basis as\n\nrac[e is] so directly subversive ofʺ the constitutional interests at stake, Zablocki v.\n\nRedhail, 434 U.S. 374, 398 (1978) (Powell, J., concurring in the judgment), that it\n\ncannot, under any circumstance we can conceive of, be accepted.  Cf. Loving v.\n\n\n\n\n 61\n\fVirgina, 388 U.S. 1, 11 (1967) (striking down state law prohibiting inter‐racial\n\nmarriage under the Equal Protection Clause of the Fourteenth Amendment,\n\nremarking that ʺ[t]here is patently no legitimate overriding purpose independent\n\nof invidious racial discrimination which justifies this classification.ʺ).  \n\n  c. Matusickʹs Failure to Bring a \n Racial Discrimination Claim\n\n  Finally, we note a somewhat perplexing aspect of the manner in\n\nwhich Matusick pursued his claims.  He might well have attempted to bring and\n\nstate them in terms of racial discrimination rather than the right to intimate\n\nassociation; indeed, if the case had been so brought and charged to the jury, our\n\ndisposition of the constitutionality of the matter would not likely have required\n\nus to interpret the reach of the Roberts opinion, and probably would have\n\nremoved the individual defendantsʹ qualified immunity shield.  The right to be\n\nfree from race discrimination on the basis of oneʹs racial affiliation –‐ intimate or\n\notherwise ‐‐ is, and has long been, clearly established.  See, e.g., Bob Jones Univ.\n\nv. United States, 461 U.S. 574, 605 (1983) (detailing how decisions of the Supreme\n\nCourt ʺfirmly establish that discrimination on the basis of racial affiliation and\n\nassociation is a form of racial discriminationʺ prohibited by the Fourteenth\n\nAmendment).  Matusick, however, chose not to tread this path.  That choice,\n\n\n\n 62\n\fmade for whatever reason, is not relevant to our analysis of Matusickʹs\n\nconstitutional right to intimate association, upon which he did base his claims.\n\n 3.  Clearly Established.  We must decide at this juncture, see Pearson,\n\n555 U.S. at 231, whether it was clearly established at the time the defendants took\n\nthe actions that are the subject of this suit that a betrothal relationship of the kind\n\nMatusick shared with Starks was protected by the First Amendment right to\n\nintimate association.  We conclude that it was not, and that, therefore, the\n\nindividual defendants are immune from liability here.\n\n In order for a constitutional right to be clearly established, ʺ[t]he\n\ncontours of the right must be sufficiently clear that a reasonable official would\n\nunderstand that what he is doing violates that right.ʺ  Anderson v. Creighton, 483\n\nU.S. 635, 640 (1987).  This does not mean that there must be a factual equivalency\n\nbetween the case at issue and prior cases.  The ʺsalient questionʺ instead is\n\nwhether the case law at the time in question would have put reasonable officers\n\non ʺfair warningʺ that their conduct violated the plaintiffʹs rights.  Hope v. Pelzer,\n\n536 U.S. 730, 741 (2002).  \n\n In performing this analysis we consider, ʺ(1) whether the right in\n\nquestion was defined with ʹreasonable specificityʹ; (2) whether the decisional law\n\n\n\n\n 63\n\fof the Supreme Court and the applicable circuit court support the existence of the\n\nright in question; and (3) whether under preexisting law a reasonable defendant\n\nofficial would have understood that his or her acts were unlawful.ʺ  Ying Jing\n\nGan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993) (internal quotation marks\n\nomitted).\n\n Here, in determining that the plaintiffʹs right to intimate association\n\nwith a person to whom he was engaged to be married was clearly established, the\n\nmagistrate judgeʹs report and recommendation, later adopted by the district\n\ncourt, cited a 2007 decision of the United States District Court for the District of\n\nNorth Dakota, Steinbach v. Branson, No. 05‐cv‐101, 2007 WL 2985571, 2007 U.S.\n\nDist. LEXIS 75156 (D.N.D. Oct. 9, 2007), and a non‐precedential 2004 summary\n\norder of the Ninth Circuit, which stated simply that ʺthe First Amendment right\n\nof association extends to individuals involved in an intimate relationship, such as\n\nfiancés,ʺ Wittman v. Saenz, 108 F. Appʹx 548, 550 (9th Cir. 2004). \n\n That authority is insufficient to render that rule ʺclearly establishedʺ\n\nfor present purposes.  To be sure, there is authority to the effect that a\n\nconstitutional right may be sufficiently well established even if there is no\n\nSupreme Court ruling or ruling on the relevant circuitʹs part on point.  See, e.g.,\n\n\n\n\n 64\n\fVarrone v. Bilotti, 123 F.3d 75, 78‐79 (2d Cir. 1997)  But the law must nonetheless\n\nbe well enough settled ‐‐ capable of making a reasonable person aware of\n\nwhether an act violates a constitutional right ‐‐ so that in fairness and pursuant to\n\nthe purpose of qualified immunity to protect public officials acting in good faith,\n\nthe defendant can be held to account for a violation.  We have thus held, at the\n\nother end of the spectrum from the present case, that where the law was\n\nestablished in three other circuits and the decisions of our own Court\n\nforeshadowed the right, for example, that the law was sufficiently ʺwell\n\nestablishedʺ that its violation stripped the defendant of his immunity.  Id.  None\n\nof our cases suggest, however, that an out‐of‐circuit district court precedent and a\n\nfleeting and non‐precedential reference from another circuit court is enough to\n\nrender a right clearly established.  Indeed, we have specifically cautioned against\n\nthe reliance on non‐precedential summary orders in ʺclearly establishedʺ\n\nanalyses.  See Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011), cert. denied, 132 S.\n\nCt. 1634 (2012).  ʺNon‐precedentialʺ decisions, by their very definition, do not\n\nmake law.\n\n This result is supported here by our frequent observations about the\n\nambiguity of the right to intimate association.  As already noted, we have said\n\n\n\n\n 65\n\fthat the nature and the extent of the right are ʺhardly clear,ʺ Adler, 185 F.3d at 42,\n\nand, as we have noted, ʺ[t]he source of the intimate association right has not been\n\nauthoritatively determined.ʺ  Id.   This, combined with the Supreme Courtʹs\n\nspecific reference to marriage as the kind of relationship afforded this sort of\n\nconstitutional protection in Roberts, suggests that there were not court decisions\n\nthat sufficiently foreshadowed to a reasonable officer in 2004‐2005 that the right\n\nto intimate association would extend to the relationship between Matusick and\n\nStarks, as we conclude it does here.  While not determinative, having spent as\n\nmuch time and effort in deciding whether or not the defendants behavior\n\nviolated Matusickʹs First Amendment right to intimate association under Roberts,\n\nwe would be hard put to hold the defendants to the knowledge of what our\n\nanswer would be. \n\n We conclude that the individual defendants held liable on the\n\nsection 1983 claims are immune from these claims, and the $5,000 award in\n\npunitive damages against each of them is vacated.19\n\n\n 19\n   We are mindful that the right at issue was clearly established under state\nlaw and likely also under federal statutory law.  See supra note 14.  This does not,\nhowever, result in the defendants being subject to damages for the plaintiffʹs\nconstitutional claims.  The Supreme Court has observed that, though officials\nshould ʺconform their conduct to applicable statutes and regulations,ʺ qualified\nimmunity is cabined to constitutional violations.  Davis v. Scherer, 468 U.S. 183,\n\n\n 66\n\fB. Monell Liability\n\n The conclusion that the individual defendants are immune with\n\nrespect to this claim does not dispose of all of the section 1983 claims made in this\n\ncase.  The defendants assert that the finding of liability on the section 1983 claim\n\nagainst the ECWA was not supported by the evidence.  The ECWA, as a\n\nmunicipal entity, does not enjoy absolute or qualified immunity from section\n\n1983 suits.  Owen, 445 U.S. at 650.  And we therefore must review the juryʹs\n\nfinding to determine whether it should be set aside because it is not supported by\n\nsufficient evidence such that a reasonable jury could return the verdict here. \n\n This task is complicated by the principle that a municipality cannot\n\nbe held liable for the conduct of employees under a respondeat superior theory,\n\ni.e., simply by dint of the employer‐employee relationship between the ECWA\n\nand the employee defendants found liable by the jury.  See Monell, 436 U.S. at\n\n\n194‐95 (1984) (acknowledging ʺthat officials should conform their conduct to\napplicable statutes and regulations,ʺ but declining to hold ʺthat the violation of\nsuch provisions is a circumstance relevant to the officialʹs claim of qualified\nimmunity.ʺ); see also Williams v. Depʹt of Veteran Affairs, 879 F. Supp. 578, 584\n(E.D. Va. 1995) (ʺWhen examining a qualified immunity defense to an action\nbrought under the Constitution, the question is not whether reasonable\ngovernment actors would know that the alleged behavior was wrong, unethical,\nor illegal under state or federal statutes and rules, but whether they would\nbelieve it to be unconstitutional.ʺ (emphasis in original)), revʹd on other grounds,\n104 F.3d 670 (4th Cir. 1997), cert. denied, 526 U.S. 1150 (1999) .\n\n\n 67\n\f691.  A municipality is liable under section 1983 only if the deprivation of the\n\nplaintiffʹs rights under federal law is caused by a governmental custom, policy, or\n\nusage of the municipality.  Id.; see also Connick v. Thompson, 131 S. Ct. 1350,\n\n1359 (2011). \n\n We recently concluded that, while ʺisolated acts . . . by non‐\n\npolicymaking municipal employees are generally not sufficient to demonstrate a\n\nmunicipal custom, policy, or usage that would justify liability,ʺ they can be the\n\nbasis of liability if ʺthey were done pursuant to municipal policy, or were\n\nsufficiently widespread and persistent to support a finding that they constituted\n\na custom, policy, or usageʺ of which supervisors must have been aware.  Jones v.\n\nTown of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012).  The question is therefore\n\nwhether there is evidence that ʺa policymaking official ordered or ratified the\n\nemployeeʹs actions ‐‐ either expressly or tacitly.ʺ  Id.\n\n A custom or policy of harassment and other discriminatory acts\n\ngiving rise to hostile work environment claims can form the basis of section 1983\n\nclaims.  See, e.g., Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)\n\n(discussing section 1983 liability for harassment and other forms of\n\ndiscriminatory acts, ʺincluding those giving rise to a hostile work environmentʺ);\n\n\n\n\n 68\n\fGierlinger v. N. Y. State Police, 15 F.3d 32,  34 (2d Cir. 1994) (ʺSection 1983\n\nliability can be imposed upon individual employers, or responsible supervisors,\n\nfor failing properly to investigate and address allegations of sexual harassment\n\nwhen through this failure, the conduct becomes an accepted custom or practice of\n\nthe employer.ʺ). \n\n Like the district court, we conclude that there were sufficient facts in\n\nthe record such that a reasonable fact‐finder could conclude, as the jury in fact\n\ndid, that the verbal and physical harassment of Matusick on the basis of his\n\nintimate association with Starks rose to the level of a custom, policy, or practice at\n\nthe ECWA.\n\n First, the acts of discrimination and harassment alleged by Matusick\n\nwere frequent and severe.  Although Matusick hesitated before alerting his\n\nsupervisors, ultimately many human resources personnel, including the director\n\nof human resources, were aware of his complaints well before he was terminated. \n\nThey failed to act.  \n\n According to testimony that the jury was entitled to accept, Lisinski,\n\nECWA Coordinator of Employee Relations, raised Matusickʹs complaints directly\n\nwith Matusick during an interview concerning Matusickʹs covering the\n\n\n\n\n 69\n\fsurveillance cameras in the dispatch office.  Matusick also discussed the\n\nharassment prior to that occasion with other superiors.  There was evidence that\n\nKarla Lewis, the ECWAʹs director of human resources, who reported to Mendez,\n\nknew of but chose not to investigate the harassment.  The jury could reasonably\n\nhave found that the ECWAʹs inaction in the face of known and pervasive\n\nharassment reflected an unconstitutionally discriminatory custom or practice. \n\nSee Jones, 691 F.3d at 81; Patterson, 375 F.3d at 226 (municipal liability may be\n\nestablished by showing of conduct ʺso manifest as to imply the constructive\n\nacquiescence of senior policy‐making officialsʺ). \n\n And a reasonable jury properly could have found a sufficient basis\n\nfor Monell liability in Mendezʹs lack of response to the pervasive harassment. \n\nFirst, the jury could have believed Matusick and Starks that Mendez knew of\n\ntheir intimate association because he had met them together.  Second, based on\n\nthe pervasiveness of the harassment and the lack of response, the jury could\n\nreasonably have found that Mendezʹs inaction and acquiescence to the\n\nharassment that Matusick suffered allowed the harassment to become the custom\n\nand practice, if not the policy, of the ECWA.  See Turpin v. Mailet, 619 F.2d 196,\n\n200 (2d Cir.), cert. denied, 449 U.S. 1016 (1980) (ʺIndeed, by holding that a\n\n\n\n\n 70\n\fmunicipality can be held liable for its ʹcustomʹ Monell recognized that less than\n\nformal municipal conduct can in some instances give rise to municipal liability\n\nunder section 1983.  To require that senior officials must have formally adopted\n\nor promulgated a policy before their conduct may be treated as ʹofficialʹ would\n\nfor present purposes render Monell a nullity, exalting form over substance.ʺ). \n\nIndeed, Karla Lewisʹs high‐level position ‐‐ she reported directly to Mendez ‐‐\n\nand her failure to address the harassment supports an inference that Mendez also\n\nknew of the harassment and allowed for the conduct to become the accepted\n\ncustom or practice of the ECWA.  In addition, the continuation of the harassment\n\nin several forms over time certainly supports the reasonableness of the\n\nconclusion that Mendezʹs ʺfail[ure] properly to investigate and address\n\nallegationsʺ of harassment allowed for ʺthe conduct [to] become[] an accepted\n\ncustom or practice of the employer.ʺ  Gierlinger, 15 F.3d at 34.\n\n We therefore affirm the juryʹs finding of liability with respect to\n\nMatusickʹs section 1983 claims against the ECWA.\n\nC. Damages Against the ECWA\n\n Before concluding, we must address an issue not raised by either\n\nparty.  The district court instructed the jury that if it found one or more of the\n\n\n\n\n 71\n\fdefendants liable on Matusickʹs section 1983 claims, but found that he had\n\nʺsuffered no actual injury as a result of this violation, you may award the plaintiff\n\nnominal damages.ʺ  Trial Tr., Aug. 31, at 125.  Although the jury ultimately found\n\nthe ECWA liable for violating Matusickʹs constitutional rights, it declined to\n\naward damages of any kind against it.  The courtʹs instruction was erroneous,\n\nand the juryʹs verdict necessitates a limited remand in this case.  \n\n It is well established that ʺan award of nominal damages is not\n\ndiscretionary where a substantive constitutional right has been violated.ʺ  Gibeau\n\nv. Nellis, 18 F.3d 107, 110‐11 (2d Cir. 1994); see Smith v. Coughlin, 748 F.2d 783,\n\n789 (2d Cir. 1984) (ʺ[E]ven when a litigant fails to prove actual compensable\n\ninjury, he is entitled to an award of nominal damages upon proof of violation of a\n\nsubstantive constitutional right.ʺ).  Accordingly, we have held that ʺit is plain\n\nerror to instruct the jury merely that, having found a violation, it ʹmayʹ award\n\nnominal damages.ʺ  Robinson v. Cattaraugus Cnty., 147 F.3d 153, 162 (2d Cir.\n\n1998).  The instructions should be clear that the jury ʺmustʺ award nominal\n\ndamages if it finds that the plaintiff has shown no actual injury from a proven\n\nconstitutional violation.   Id., at 162; LeBlanc‐Sternberg v. Fletcher, 67 F.3d 412,\n\n431 (2d Cir. 1995) (citing Gibeau, 18 F.3d at 110‐11).  \n\n\n\n\n 72\n\f Where a trial court gives an erroneous instruction of this kind, ʺand\n\nthe plaintiff has been awarded no actual damages, we will remand for the award\n\nof nominal damages.ʺ  LeBlanc‐Sternberg, 67 F.3d at 431.  Because this is just such\n\na case, we remand to the district court for the limited purpose of directing it to\n\nenter an award of nominal damages against the ECWA.\n\nD. Award of Attorneyʹs Fees\n\n The district court awarded attorneyʹs fees on the basis of the\n\nprevailing‐party statute, 42 U.S.C. § 1988(b).20  After approving the applicable\n\nrates for Matusickʹs attorneys and staff, the court made an across‐the‐board 50\n\npercent reduction based on a perceived lack of detail in the billing records.  This\n\nreduction is the only issue raised in the plaintiffʹs cross‐appeal. \n\n Under prevailing‐party statutes such as section 1988, there is a\n\npresumption that the lodestar figure represents a reasonable fee, and ʺif the court\n\n. . . reduces that figure it must state its reasons for doing so as specifically as\n\npossible.ʺ  Id., at 764 (internal quotation marks and alterations omitted). \n\nʺApplications for fee awards should generally be documented by\n\n\n 20\n   In light of our decision to remand in part, we note that an award of\nattorneyʹs fees under § 1988 is not foreclosed by the plaintiffʹs recovery of only\nnominal damages for a constitutional violation.  See, e.g., Cabrera v. Jakabovitz,\n24 F.3d 372, 393 (2d Cir. 1994).\n\n\n 73\n\fcontemporaneously created time records that specify for each attorney, the date,\n\nthe hours expended, and the nature of the work done.ʺ  Kirsch, 148 F.3d at 173. \n\nThe district court stated its reasons for the reduction:  It decided not to award the\n\nlodestar amount because of concerns regarding ʺunspecified conferences,\n\ntelephone calls, email correspondence, and reviews.ʺ Matusick, 774 F. Supp. 2d at\n\n532.  \n\n ʺWe afford a district court considerable discretion in determining\n\nwhat constitutes reasonable attorneyʹs fees in a given case, mindful of the courtʹs\n\nʹsuperior understanding of the litigation and the desirability of avoiding frequent\n\nappellate review of what essentially are factual matters.ʹʺ  Barfield v. N.Y.C.\n\nHealth & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008) (quoting Hensley v.\n\nEckerhart, 461 U.S. 424, 437 (1983)).  A fee award will not be disturbed absent an\n\nabuse of discretion.  See Crescent Publʹg Grp., Inc. v. Playboy Enters., Inc., 246\n\nF.3d 142, 146 (2d Cir. 2001). \n\n We find no abuse of discretion here.  The district court provided a\n\nreasoned and thorough explanation for its decision to reduce the proposed\n\nlodestar amount.  Indeed, the defendants raised questions about the plaintiffʹs\n\nattorneyʹs billing records, and the district court provided the plaintiff with an\n\n\n\n\n 74\n\fopportunity to supplement his fee request.  Counsel nevertheless failed to submit\n\nadditional documentation to justify the award.  The district courtʹs fee award is\n\ntherefore affirmed. \n\n CONCLUSION\n\n For the foregoing reasons, we affirm the judgment of the district\n\ncourt with respect to the state law claims and its award of backpay to the\n\nplaintiff.  We also affirm the judgment as to the plaintiffʹs section 1983 claim\n\nagainst the ECWA.  We reverse the judgment imposing liability against the\n\nindividual defendants on the plaintiffʹs section 1983 claims against them, and\n\ntherefore also reverse the judgment insofar as it awarded punitive damages\n\nagainst the individual defendants.  On cross appeal, the district courtʹs attorneyʹs\n\nfee award is affirmed.  Finally, we remand the cause to the district court,\n\ndirecting it to enter an award of nominal damages against the ECWA in the\n\namount of one dollar, consistent with the juryʹs finding of liability on the\n\nplaintiffʹs constitutional claim.\n\n Costs of the plaintiff on appeal to be paid by the ECWA. \n\n\n\n\n 75\n\fREENA RAGGI, Circuit Judge, concurring in part in the judgment and dissenting in part:\n\n On this appeal, we consider a judgment in favor of plaintiff Scott Matusick on\n\nstate law claims of race discrimination and retaliation, as well as a federal claim of\n\ninfringement  of  the  right  of  intimate  association,  all  arising  out  of  Matusick’s\n\nemployment with the Erie County Water Authority (“ECWA”).  On plaintiff’s state\n\nlaw claims, the judgment (1)  holds ECWA, as well as defendants Bluman, Kuryak,\n\nand  Lisinski  liable  for  a  racially  hostile  work  environment,  but  awards  no\n\ncompensatory  damages;  and  (2)  holds  ECWA,  Kuryak,  and  Lisinski  liable  for\n\nracially  discriminatory  termination,  and  awards  $304,775.00  in  back  pay.    On\n\nplaintiff’s federal claim, the judgment (3) holds ECWA, Mendez, Bluman, Kuryak,\n\nand Lisinski liable, awards no actual or nominal compensatory damages, but awards\n\n$5,000 in punitive damages as against each individual defendant.1 \n\n I  join  my  panel  colleagues  in  affirming  that  part  of  the  judgment  holding\n\ndefendants liable under state law for creating a racially hostile work environment. \n\nI also join in the panel decision to reverse that part of the judgment holding liable\n\nindividual defendants Mendez, Bluman, Kuryak, and Lisinski on Matusick’s federal\n\n\n 1\n   Because  no  compensatory  damages  are  awarded  on  the  federal  claim,  it\nappears that the jury’s intimate association finding pertained only to Matusick’s\ncomplaint about a  hostile work environment, not to his termination. \n\n 1\n\fintimate association claim. I respectfully dissent, however, from the panel decision\n\nto affirm the judgment in all other respects.  \n\n With respect to Matusick’s claims of racially discriminatory termination, I\n\nwould vacate the judgment and remand for a new trial.  Like the majority, I identify\n\nerror in the district court’s failure to preclude Matusick from disputing facts found\n\nagainst  him  at  a  disciplinary  hearing  conducted  preliminary  to  his  discharge\n\npursuant to N.Y. Civ. Serv. Law § 75(1), and in the court’s failure to charge the jury\n\nthat it could not second‐guess these administrative findings in its own deliberations. \n\nSee ante at 36–37.  Unlike the majority, however, I do not think these errors can be\n\ndismissed as harmless.  \n\n As to Matusick’s intimate association claim against ECWA, I would order\n\ndismissal.  While I think the circumstances at issue might have supported holding\n\nECWA, as well as individual defendants, liable for race discrimination under the\n\nEqual Protection Clause—a federal claim plaintiff chose not to pursue—I do not\n\nthink that, as the case was tried, they demonstrate an ECWA policy or custom of\n\ninterference with intimate association, specifically, with engagement to marry.       \n\n\n\n\n 2\n\f1. Racially  Discriminatory  Termination:    The  Preclusion  Errors  Were  Not\n Harmless\n\n As the majority opinion explains, New York law gives preclusive effect to\n\nquasi‐judicial  administrative  fact‐finding  where  there  has  been  a  full  and  fair\n\nopportunity to litigate the point at issue.  Thus, a federal court will do the same.  See\n\nante  at  26–27  (citing  relevant  authority).    Insofar  as  Matusick  was  charged  with\n\nvarious acts of workplace misconduct preliminary to being terminated—specifically,\n\nsleeping on the job and failing timely to dispatch workers to the site of a water main\n\nleak on October 1, 2005; and failing timely to respond to a reported water‐pressure\n\nproblem on October 20, 2005—he plainly had a full and fair opportunity to litigate\n\nthese accusations at a Section 75 proceeding before an independent hearing officer\n\nwho found them proved.  See ante at 12–15.  Thus, the panel agrees that the district\n\ncourt erred both in allowing Matusick to argue to the contrary at trial and in failing\n\nto instruct the jury as to the preclusive effect of the Section 75 misconduct findings\n\non  its  own  deliberations.    See  ante  at  37,  40.    The  panel  majority  nevertheless\n\ndismisses these errors as harmless, concluding that they did “not affect any party’s\n\nsubstantial rights.”  Fed. R. Civ. P. 61; see ante at 39–41.  I respectfully disagree.\n\n\n\n\n 3\n\f While the law strongly disfavors retrial in civil cases, see Fed. R. Civ. P. 61,\n\nsuch relief is warranted where an appellant shows that complained‐of error affected\n\nsubstantial rights, see Tesser v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir. 2004).  To\n\ncarry this burden, an appellant must show that the error likely affected the outcome\n\nof the case.  See Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir. 2012) (holding\n\nthat “substantial right is not implicated if there is no likelihood that the error or\n\ndefect affected the outcome of the case”); ante at 40 (quoting Kotteakos v. United\n\nStates,  328  U.S.  750,  765  (1946)).2    That  showing  is  made  here  by  the  record  of\n\nMatusick’s own arguments at trial insisting that he had not engaged in the charged\n\nmisconduct, leaving racial bias as the likely explanation for his termination.\n\n As to October 1, 2005, Matusick’s counsel specifically told the jury that his\n\nclient “wasn’t sleeping” at work on that date and had in fact “dispatched the duty\n\nman in a timely manner.”  J.A. 2924.   Both statements are in direct contradiction to\n\n\n\n 2\n  In Kotteakos, a criminal case, the Supreme Court observed that error is not\nharmless if “one cannot say, with fair assurance, after pondering all that happened\nwithout stripping the erroneous action from the whole, that the judgment was not\nsubstantially swayed by the error.”  Kotteakos v. United States, 328 U.S. at 765.  To\nthe  extent  this  appears  to  resolve  ambiguities  in  favor  of  a  defendant,  it  is\nnoteworthy that a criminal defendant’s “substantial rights” include the presumption\nof  innocence  and  the  right  not  to  be  convicted  except  upon  proof  beyond  a\nreasonable doubt, which are not applicable in civil cases.  \n\n 4\n\fthe hearing officer’s findings of fact.  The district court did not admit these findings\n\ninto evidence, much less did it instruct that such findings were binding on the jury’s\n\nown  deliberations.    Thus,  even  though  defendant  Mendez,  who  made  the  final\n\ntermination decision, was permitted to testify that the hearing officer’s Section 75\n\ndischarge recommendation was the strongest he had ever seen, Matusick’s counsel\n\nwas  allowed  to  impugn  this  recommendation  and  the  undisclosed  findings  on\n\nwhich it was based as the “irrelevant” product of a “kangaroo court.”  J.A. 2932. \n\nIndeed, counsel was allowed to argue at length that the evidence would admit no\n\nconclusion other than that Matusick had not engaged in any workplace misconduct\n\non October 1:\n\n The Water Authority concluded that the water was shut down within\n a  reasonable  period  as  reflected  in  their  own  claim  file  denying  the\n claim by the resident. . . . The evidence is clear that the call came in at\n 5 a.m.  Mr. Lisinski and Mr. Jaros admit that there w[ere] no calls prior\n to 5 a.m. . . . \n\n Mr.  Kuryak  and  Mr.  Jaros  confirmed  that  there  w[ere]  no  police  or\n highway  records of any calls.  After that call came in Mr. Matusick\n found Mr. Marzec, he then had some problems with his computer, but\n he was printing the necessary documents by 5:31.  Mr. Baudo admitted\n the  computer  issues  were  possible  and  Mr.  Schichtel  confirmed  the\n computer problems were far more common during the midnight shift. \n The computer documents in evidence do not show that there weren’t\n computer problems.  In fact, some missing evidence, pages one through\n nine of Plaintiff’s Exhibit 31.  We have page 9, but we don’t have pages\n\n\n 5\n\f 1 through 8.  We don’t know what happened prior to 5:47 a.m.  That\n evidence is not available to you.\n\n It  is  undisputed  that  Mr.  Marzec  had  difficulties  using  the  laptop,\n which made it more important that Scott Matusick print out maps for\n him before he left.  But even despite all that, Mr. Marzec was on the\n scene  by  6:30.    Mr.  Matusick  was  where  he  was  supposed  to  be\n throughout,  in  his  chair,  by  the  phone  at  all  times.    Mr.  Lisinski\n admitted that.  There’s no evidence he was sleeping on October 1st.\n [T]here’s  no  video  of  him  sleeping,  and  [Water  Authority  officials]\n knew  .  .  .  how  to  preserve  videos  if  that  evidence  was  going  to  be\n important to them.\n   \nJ.A. 2924–25.  \n\n As to October 20, 2005 misconduct, Matusick’s counsel similarly insisted that\n\nhis  client  had  not  failed  timely  to  respond  to  a  report  of  a  possible  water  leak. \n\nRather,  he  “simply  made  a  judgment  call”  to  wait  “for  a  second  customer  call”\n\nbefore dispatching the duty man.  J.A. 2925.  This too was in direct contradiction to\n\nwhat should have been binding findings of fact by the hearing officer.  The officer\n\nspecifically found that Matusick had not timely responded to a 1:50 a.m. report of\n\na drop in water pressure indicative of a potentially serious water leak.  Indeed, the\n\nhearing officer found that Matusick had misrepresented ECWA’s policy when he\n\ntold the caller who first reported a problem, “[W]e don’t send a guy out there by\n\nhimself in the middle of the night looking for a water leak.”  J.A. 312.  The hearing\n\n\n\n 6\n\fofficer  concluded  that  Matusick’s  failure  either  to  dispatch  a  Water  Authority\n\nemployee to the site or to arrange for an over‐the‐phone assessment of the problem\n\ncould not have reflected “a judgment call” in light of his discredited account of a\n\npurported second call.  J.A. 311. \n\n Instead of accepting these findings, as the law required, Matusick’s counsel\n\nargued to the jury that the soundness of Matusick’s “judgment call” in not taking\n\nimmediate  action  on  October  20  was  so  plainly  supported  by  the  testimony  of\n\n“nearly all the witnesses” as to be, in effect, indisputable:\n\n Again, the facts are clear.  At approximately 2:15 a.m. there was the first\n call regarding just low pressure, no visible water, no visible leak.  This\n is in a remote area where there are open fields and ditches and there\n aren’t many houses and a caller who lived back from the road.\n\n At 5:10 a.m. a second call came in where a leak was observed and Mr.\n Matusick promptly dispatched the duty man.  A third call came in [at]\n 5:22 just 12 minutes later, reporting water in the field.  But by then Mr.\n Matusick was already dispatching the duty man.  You heard plenty of\n testimony about other potential causes of low pressure, not just a water\n main break, it included corroded pipes, blocked screens on intakes,\n malfunctioning pressure reducing valves, garden hoses being left on,\n et cetera, et cetera, et cetera. \n\n You  heard  testimony  from  dispatchers,  active  and  retired,  from\n engineers, that you don’t just dispatch based on one low pressure call\n in the middle of the night in a remote area. . . .\n\n Plaintiff’s Exhibit 53 reinforces the practice of waiting until morning to\n dispatch in connection with low pressure.  Only Mr. Jaros claimed that\n\n 7\n\f you also dispatched the duty man regardless of circumstances.  Every\n other witness disagreed.  You consult control, you wait for a second\n call, you wait until someone sees water, sees an actual leak, then you\n dispatch the duty man.\n\nJ.A. 2926–27.  \n\n Plainly, Matusick’s purpose in making these arguments was to show pretext. \n\nIf he could convince the jury that there was nothing to the misconduct charges, then\n\nthe defendants’ proffered legitimate reason for terminating him was false, making\n\nit  more  likely  than  not  that  the  real  reason  for  his  termination  was  race\n\ndiscrimination or retaliation.  See Reeves v. Sanderson Plumbing Prods., Inc., 530\n\nU.S. 133, 149 (2000) (noting probative value of proof that employer’s explanation is\n\nfalse); James v. N.Y. Racing Ass’n, 233 F.3d 149, 155 (2d Cir. 2000) (explaining that\n\n“in some circumstances a prima facie case plus falsity of the employer’s explanation\n\ncan,  without  more,  be  enough  to  support  a  reasonable  finding  that  prohibited\n\ndiscrimination has occurred”).  If, instead, Matusick had been properly foreclosed\n\nfrom disputing the misconduct found at the Section 75 proceeding, he would have\n\nbeen  able  to  prevail  only  by  carrying  the  heavier  burden  of  showing  that,\n\nnotwithstanding his misconduct, the proscribed reasons played a substantial part\n\nin his termination. In these circumstances, I think there is a real likelihood that the\n\npreclusion errors affected the outcome of this trial.\n\n 8\n\f In concluding otherwise, the majority states that it is highly unlikely that a\n\njury  would  have  discredited  the  charged  misconduct  because  (1)  Matusick  was\n\n“thoroughly and effectively cross‐examined” on his denials; (2) defendants offered\n\npersuasive evidence of the misconduct; (3) Matusick admitted to having blocked a\n\nworkplace security camera, misconduct that was the subject of an earlier Section 75\n\nproceeding  resulting  in  a  60‐day  suspension;  (4)  Matusick’s  counsel  effectively\n\nadmitted his client’s misconduct in arguing that other ECWA employees were not\n\nterminated  for  comparable  or  worse  misbehavior;  and  (5)  the  jury  finding  that\n\nMendez was not individually liable for wrongful termination made it “unlikely that\n\nthe  jury  credited  Matusick’s  testimony  that  he  had  not  committed  misconduct\n\njustifying termination.”  Ante at 41–43.  I am not convinced.\n\n Specifically, I cannot agree that the noted preclusion errors were necessarily\n\nneutralized by defendants’ opportunity to cross‐examine Matusick and to put on\n\nevidence supporting the misconduct charges.  Indeed, such a conclusion is at odds\n\nwith our obligation, on the appeal of a judgment following a jury verdict, “to view\n\nthe facts of the case in the light most favorable to the prevailing party.”  Kosmynka\n\nv.  Polaris  Indus.,  Inc.,  462  F.3d  74,  77  (2d  Cir.  2006).    When  the  evidence  is  so\n\nviewed, we must assume that the jury credited Matusick’s disavowal of workplace\n\n\n 9\n\fmisconduct  and,  accordingly, found no misconduct basis for termination.  Such\n\nfindings made it easier for Matusick to carry his trial burden than would have been\n\nthe  case  if  he  had  properly  been  precluded  from  disputing  already‐adjudicated\n\nmisconduct and if the jury had been correctly instructed in this regard.\n\n Nor is a different conclusion warranted because Matusick’s counsel argued\n\nthat other employees were not terminated for misconduct worse than that attributed\n\nto his client.  I respectfully submit that such an argument does not effectively admit\n\nmisconduct  on  its  face,  much  less  in  context.    At  most,  it  tells  the  jury  that\n\ndefendants’ discriminatory intent in terminating him for unwarranted charges of\n\nmisconduct  is  further  evidenced  by  the  fact  that  employees  actually  guilty  of\n\ncomparable  or  worse  misconduct  were  not  terminated.    Before  referencing  any\n\ncomparators, counsel made Matusick’s position plain: he was not sleeping on the job\n\non  October  1,  and  his  conduct  on  October  20  reflected  a  reasonable  exercise  of\n\njudgment.    See J.A. 2924–26.  Thereafter, he urged the jury to give no weight to\n\narguments  referencing  the  administrative  tribunal,  which  he  dismissed  as  “a\n\nkangaroo court,” though its misconduct findings should have bound him.  J.A. 2932. \n\n Finally, I cannot agree that the verdict in favor of Mendez, the supervisor who\n\nmade  the  final  termination  decision,  means  that  the  jury  rejected  Matusick’s\n\n\n 10\n\fdisavowal of workplace misconduct.  See ante at 42–43.  Indeed, such a conclusion\n\nis undermined by the majority’s own reasoning in elsewhere reconciling the jury’s\n\ndecision that ECWA was liable for wrongful termination even though Mendez was\n\nnot.    In  this  regard,  the  majority  submits  that  the  misconduct  charges  against\n\nMatusick could have been “tainted” by racial animus.  Ante at 46.  But it would be\n\nfar easier for Matusick to prove that “taint” if he could persuade the jury that the\n\ncharges were false than if the jury were required to accept them as proved.  See\n\nReeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 149; James v. N.Y. Racing\n\nAss’n,  233  F.3d  at  155.    Because  Matusick’s  trial  strategy  was  to  argue  falsity,\n\nconsistent with our obligation to view the evidence in the light most favorable to\n\nhim as the prevailing party, we must assume that the jury made the finding that he\n\nurged.    Thus,  because  Matusick  was  precluded  from  arguing,  and  the  jury  was\n\nprecluded  from  finding,  that  the  misconduct  charges  were  false,  the  preclusion\n\nerrors here cannot be deemed harmless.\n\n Accordingly, I would vacate the judgment in favor of Matusick on his racially\n\ndiscriminatory termination claims and order a new trial.\n\n\n\n\n 11\n\f2. Matusick’s Constitutional Claim of Intimate Association\n\n a. Matusick’s Failure To Pursue an Obvious Constitutional Claim for Race\n Discrimination Under the Equal Protection Clause\n\n At its core, this is a case about race discrimination.  As the majority opinion\n\ndetails, Matusick, who is white, was subjected to co‐worker abuse because of his\n\nrelationship  with  an  African‐American  woman,  Anita  Starks.    Such  racial\n\nharassment not only supported Matusick’s hostile‐work‐environment claim under\n\nNew York law, but also would have supported a parallel claim under 42 U.S.C.\n\n§ 1983 for violation of the Fourteenth Amendment’s Equal Protection Clause.  See\n\nU.S. Const. amend. XIV.  Moreover, the harassment would have supported such a\n\nconstitutional claim without any inquiry into the particulars of the Matusick‐Starks\n\nrelationship.  Whether Starks was Matusick’s fiancée, his next‐door neighbor, or just\n\na  casual  friend,  if  defendants  took  adverse  action  against  Matusick  because  this\n\nwhite man associated with an African‐American woman, the conduct violated equal\n\nprotection.  See Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (observing\n\nthat  precedent  “firmly  establish[es]  that  discrimination  on  the  basis  of  racial\n\naffiliation and association is a form of racial discrimination”); see also Holcomb v.\n\nIona College, 521 F.3d 130, 139 (2d Cir. 2008) (holding, under Title VII, that where\n\n\n\n 12\n\femployee  is  subjected  to  adverse  action  because  “employer  disapproves  of\n\ninterracial  association,  the  employee  suffers  discrimination  because  of  the\n\nemployee’s own race” (emphasis in original)); DeMatteis v. Eastman Kodak Co., 511\n\nF.2d 306, 312 (2d Cir. 1975) (concluding that white plaintiff had standing under 42\n\nU.S.C. § 1981 to sue employer for taking adverse employment action against him in\n\nreprisal  for  selling  house  to  African‐American  person);  Rosenblatt  v.  Bivona  &\n\nCohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) (concluding that white plaintiff\n\nhad standing to sue under § 1981 for termination motivated by marriage to African‐\n\nAmerican woman).\n\n For  reasons  that  the  majority  aptly  describes  as  “perplexing,”  ante  at  64,\n\nMatusick did not pursue a violation of equal protection at trial.  He sought § 1983\n\nrelief  only  for  violation  of  the  right  to  intimate  association,  even  as  he  relied\n\nexclusively  on  evidence  of  racial  harassment  to  prove  that  violation.    While  the\n\nnature of Matusick’s relationship with Starks would have been irrelevant to an equal\n\nprotection claim based on such harassment, it was critical to his intimate association\n\nclaim. \n\n\n\n\n 13\n\f b. The  Majority’s  Recognition  of  an  Intimate  Association  Right  in\n Betrothal \n\n The majority identifies the constitutionally protected right at issue as one of\n\n“betrothal.”  To the extent Matusick and Starks were engaged, there is precedent\n\nsuggesting  that  their  choice  of  each  other  as  marital  partners  might  claim\n\nconstitutional protection under the Due Process Clause, if not also under a First\n\nAmendment right of intimate association.  See Roberts v. U.S. Jaycees, 468 U.S. 609,\n\n620  (1984)  (“[T]he  Constitution  undoubtedly  imposes  constraints  on  the  State’s\n\npower to control the selection of one’s spouse.”)3; Loving v. Virginia, 388 U.S. 1\n\n(1967) (holding that state prohibition on interracial marriage violated both equal\n\nprotection prohibition against race discrimination and due process right to marry);\n\nAdler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999) (observing that whenever Supreme\n\nCourt has considered impairment of “most fundamental of intimate relationships,\n\nmarriage,  it  has  not  spoken  generally  of  right  of  intimate  association,  but  has\n\nreferred specifically to a right to marry and has grounded that right on the liberty\n\nprotected by the Due Process Clause”).  \n\n 3\n  In Roberts, the Supreme Court recognized the “right of association” to have\ntwo components, one relating to association with others for expressive purposes\nprotected by the First Amendment, the other relating to intimate association, see 468\nU.S. at 617–18.  Language in Roberts, and the authorities cited therein, suggest that\nthe right derives from the personal liberty protected by the Due Process Clause.  Id.;\nsee Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999).    \n\n 14\n\f Whatever  the  constitutional  source  of  the  right  of  intimate  association  in\n\nbetrothal  recognized  by  the  majority  today,  I  agree  that  it  was  not  so  clearly\n\nestablished at the time of the events at issue to support the individual defendants’\n\nliability for infringing that right through the creation of a hostile work environment. \n\nI thus join in the decision  to dismiss Matusick’s constitutional claim against the\n\nindividual defendants on the ground of qualified immunity.  \n\n Qualified immunity does not extend to Matusick’s municipal employer, the\n\nECWA.  See Owen v. City of Independence, 445 U.S. 622, 650 (1980);  Monell v.\n\nN.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978).  My colleagues in the majority\n\nuphold the intimate association judgment against that defendant, concluding that\n\nthe  evidence  was  sufficient  to  admit  a  jury  finding  that  Matusick  sustained\n\npervasive verbal and physical harassment “on the basis of his intimate association\n\nwith Starks [that] rose to the level of a custom, policy, or practice at the ECWA.” \n\nAnte at 71.  While I recognize that we can affirm for any reason that finds support\n\nin the record, see 10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634\n\nF.3d 112, 125 (2d Cir. 2011), I cannot join my colleagues in concluding that the record\n\nhere admits a finding of an ECWA custom or practice to violate employees’ intimate\n\nassociation right in betrothal.  \n\n\n\n\n 15\n\f c. Betrothal  Was  Not  Here  Identified  as  the  Protected  Intimate\n Association\n\n Insofar as the majority recognizes betrothal as the intimate association here\n\nat issue, I am not persuaded that this case was presented to the jury on the theory\n\nthat betrothal was the specific protected relationship violated.  To be sure, in his\n\nopening  statement  to  the  jury,  Matusick’s  counsel  stated  that  his  client’s\n\n“termination was a form of discrimination because of his relationship with his wife\n\nwho was at that time his fiancée.”  J.A. 1894 (emphasis added).  Even assuming this\n\nis enough to identify betrothal as a protected relationship, the jury did not find that\n\nMatusick had been terminated based on intimate association.  Rather, it found him\n\nterminated on the basis of racial bias.  With respect to the hostile work environment\n\nthat  informs  the  jury’s  intimate  association  judgment,  counsel  did  not  link  that\n\ninjury to the fact of the couple’s engagement—as distinct from their relationship\n\ngenerally.  In his opening statement, counsel asserted that Matusick was subjected\n\nto repeated racial epithets simply because he had “fall[en] in love with an African\n\nAmerican woman,” making no mention of what intimate association the couple had\n\nformed that warranted constitutional protection.  J.A. 1892.  Indeed, counsel stated\n\nthat Matusick’s co‐workers made plain that their harassment was prompted by his\n\nclient  “hanging around” with blacks, that “[w]hite people shouldn’t hang around\n\n\n\n 16\n\fwith [blacks],” and that Matusick “should stay away from the [blacks].”   J.A. 1893.4 \n\nThis suggested that Matusick was subjected to a racially hostile work environment\n\nbecause  he  maintained  any  relationship  with  an  African  American  woman,  not\n\nspecifically because that relationship was a betrothal.  As I have already noted, the\n\nEqual Protection Clause would proscribe a hostile work environment based on race\n\nwithout regard to the couple’s precise relationship, but the same conclusion does not\n\nobtain with respect to the right of intimate association. \n\n Nor did counsel’s summation or the court’s charge clarify that betrothal was\n\nthe intimate association supporting Matusick’s constitutional claim.  To the contrary,\n\ncounsel repeatedly referenced Starks as Matusick’s “girlfriend,” rather than as his\n\n“fiancée,”  and  stated  that  Matusick  was  discriminated  against  “because  he  was\n\ndating and  then  became engaged to an African American woman,” drawing no\n\nconstitutional distinction between the two phases of the couple’s relationship.  J.A.\n\n2905, 2915, 2934–35.5  In discussing infringement, counsel did reference engagement\n\n\n\n 4\n  In the quoted excerpts, I have substituted the word “blacks” for the racial\nepithet that counsel ascribed to Matusick’s harassers.  See ante 8 n.3.  \n 5\n  This conflation persists in Matusick’s brief on appeal, which maintains that\n“the right to intimate association extends to all highly intimate family relationships,\nincluding  a  dating/fiancée  relationship.”  Appellee’s  Br.  47;  see  Webster’s  New\nWorld Dictionary 1491(3d ed. 1986) (defining “virgule” as “short diagonal line (/)\nused between two words to show either is applicable (and/or). . . .”).\n\n 17\n\fand marriage: “It is not required that the defendants interfere with the relationship\n\nitself.  They do not need to have broken up the marriage or caused the engagement\n\nto be broken off [ ] to cause harm.”  J.A. 2934.   But that negative point hardly made\n\nclear  to  the  jury  that  the  couple’s  betrothal  was  the  critical  fact  supporting  a\n\nconstitutional claim of intimate association.  \n\n Indeed, the district court did not so charge the jury.  It instructed as follows: \n\n Freedom of association includes the right to enter into and maintain\n certain  intimate  human  relationships,  such  as  a  relationship  that\n plaintiff shared with his then‐girlfriend Anita Starks. . . This right can\n be  violated  if  someone  is  penalized  for  those  —  for  who  the  other\n person is in a relationship.\n\nJ.A.  3008–09.    The  fact  that  the  court  referred  to  Starks  as  Matusick’s\n\n“girlfriend”—not his “fiancée”—can reasonably be understood to signal that the\n\nconstitutional claim did not depend on the couple’s betrothal.  That conclusion is\n\nonly  reinforced  by  the  instruction  that  the  right  of  intimate  association  can  be\n\nviolated by penalizing someone “for who the other person is in a relationship,”\n\nrather than by penalizing someone “for his choice of whom to marry.”\n\n d. The  Record  Does  Not  Admit  a  Finding  of  Municipal  Liability  for\n Violation of the Intimate Association Right in Betrothal\n\n In any event, the record does not admit a finding that ECWA had a policy,\n\npractice, or custom of violating employees’ intimate association right in betrothal. \n\n\n\n 18\n\fThe law recognizes that, even in the absence of a professed unconstitutional policy,\n\na municipality may be liable for the unconstitutional practices of its subordinates\n\nwhere those practices are “so persistent and widespread” in the workplace “as to\n\npractically  have  the  force  of  law,”    Connick  v.  Thompson,  131  S.  Ct.  1350,  1359\n\n(2011), “or if a municipal custom, policy, or usage would be inferred from evidence\n\nof deliberate indifference of supervisory officials to such abuses,” Jones v. Town of\n\nE. Haven, 691 F.3d 72, 81 (2d Cir. 2012).   The majority concludes that the jury could\n\nhave found an unconstitutional custom or policy here from evidence that Matusick\n\ncomplained to various supervisors about persistent harassment by co‐workers, that\n\nsupervisors  failed  to  take  remedial  action,  and  that  at  least  one  of  those\n\nsupervisors—Mendez—knew that Matusick and Starks were engaged.  See ante at\n\n71–73.  I cannot agree.  Where municipal liability is based on employer inaction,\n\n“rigorous standards of culpability and causation must be applied” to ensure against\n\nvicarious liability.  Board of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997);\n\naccord Connick v. Thompson, 131 S. Ct. at 1365; Reynolds v. Giuliani, 506 F.3d 183,\n\n192 (2d Cir. 2007).  Matusick did not satisfy these standards.\n\n As  the  majority  itself  recognizes,  the  pervasive  harassment  that  Matusick\n\nexperienced was racial.  See ante at 46.  The record does not indicate that Matusick\n\ncomplained  or  that  ECWA  would  otherwise  have  known,  that  such  racial\n\n 19\n\fharassment was caused by his engagement to marry Starks.6  The latter motivation,\n\nand ECWA’s knowledge of it, would appear necessary to support a conclusion that\n\nECWA  had  a  custom  or  practice  of  violating  its  employees’  rights  of  intimate\n\nassociation, and not only their rights of equal protection.  See City of St. Louis v.\n\nPrapotnick, 485 U.S. 112, 127 (1988) (stating that if authorized policymakers approve\n\nsubordinate’s  decision  “and  the  basis  for  it,”  their  ratification  is  chargeable  to\n\nmunicipality); Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (referencing\n\nmunicipality’s practice to engage in “constitutional violation at issue”);  Amnesty\n\nAm.  v.  Town  of  W.  Hartford,  361  F.3d  113,  128  (2d  Cir.  2004)  (Sotomayor,  J.)\n\n(observing  that  plaintiff  must  establish  that  policymaking  official  had  notice  of\n\npotentially  serious  problem  of  unconstitutional  conduct,  such  that  need  for\n\ncorrective action or supervision was obvious).  While Starks testified that Mendez\n\nknew  of  the  couple’s  engagement,  that  knowledge  does  not  by  itself  equate  to\n\nknowledge that Matusick was being harassed because the couple planned to marry. \n\nIndeed, as already noted, Matusick’s counsel argued to the jury that the harassment\n\n\n\n 6\n  The record does indicate one log entry in which Matusick complained that\nco‐worker Finn was making disparaging comments about him, his father, and his\nfamily.  While Matusick  testified that he considered Starks and her children his\n“new family,” he did not so state in his complaint, much less did he indicate that the\ncouple was engaged and that the disparagement was informed by that relationship. \n  \n\n 20\n\fwas prompted by the fact that the couple had any relationship at all, circumstances\n\nthat would have supported an equal protection claim but not necessarily one based\n\non an intimate association right in betrothal.  \n\n Further, insofar as the panel unanimously affords Mendez qualified immunity\n\nas an individual because his obligation to stop racial harassment as a violation of the\n\nintimate  association  right  of  betrothal  was  not  then  clearly  established,  it  seems\n\ncurious to conclude that his failure to stop the harassment is an adequate basis for\n\nidentifying  an  ECWA  custom  or  practice  of  violating  its  employees’  rights  of\n\nintimate association.  See ante at 72–73; see also City of Canton v. Harris, 489 U.S.\n\n378,  388  (1989)  (holding  that  official’s  inaction  must  demonstrate  “deliberate\n\nchoice”).  Indeed, precedent signals caution in reaching such a municipal liability\n\nconclusion.  This court has held that where a municipal liability claim is grounded\n\nin  an  employer’s  deliberate  indifference  to  the  unconstitutional  actions  of  its\n\nemployees, the constitutional right at stake has to be “clearly established.”  Townes\n\nv. City of New York, 176 F.3d 138, 143–44 (2d Cir. 1998); Young v. County of Fulton,\n\n160 F.3d 899, 904 (2d Cir. 1998).  The Eighth Circuit recently cited approvingly to\n\nTownes and Young in reaching the same conclusion en banc.  See Szabla v. City of\n\nBrooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007).  As that court explained, requiring\n\nthat a constitutional right be clearly established to support a claim of deliberate\n\n 21\n\findifference “is not an application of qualified immunity for liability flowing from\n\nan unconstitutional policy.  Rather, the lack of clarity in the law precludes a finding\n\nthat the municipality had an unconstitutional policy at all, because its policymakers\n\ncannot  properly  be  said  to  have  exhibited  a  policy  of  deliberate  indifference  to\n\nconstitutional  rights  that  were  not  clearly  established.”    Id.  at  394  (emphasis  in\n\noriginal).  While these deliberate indifference cases arise in the context of failures to\n\ntrain or supervise rather than failure to investigate or discipline, what is common\n\nto  all  these  circumstances  is  employer  inaction.    And  as  the  Eighth  Circuit  has\n\npersuasively  explained  in  Szabla,  for  inaction  of  any  sort  to  reflect  “deliberate\n\nindifference to constitutional rights,” the right must be established.  To conclude\n\notherwise is to ignore the rigorous standards of culpability and causation that, as I\n\nearlier noted, the Supreme Court has mandated for municipal liability based on\n\ndeliberate indifference to employees’ constitutional violations.  See Board of the\n\nCnty. Comm’rs v. Brown, 520 U.S. at 405; see Reynolds v. Giuliani, 506 F.3d at 192\n\n(holding  that  rigorous  standards  apply  to  “broad  range  of  supervisory  liability\n\nclaims” including failure to supervise and to discipline, as well as to train).  \n\n Here, there was a clearly established constitutional right at stake: the right of\n\nequal protection. Thus, to the extent Mendez, or other ECWA supervisors, failed to\n\ninvestigate and stop the persistent racial harassment to which they knew Matusick\n\n 22\n\fwas  being  subjected,  ECWA  might  well  have  been  found  liable  for  deliberate\n\nindifference had that clearly established federal right been asserted.  But I am not\n\nconvinced simply from the fact that Mendez knew that Matusick and Starks were\n\nengaged that his failure to stop the racial harassment supports holding ECWA liable\n\nfor  an  employer  custom  and  practice  of  violating  employees’  rights  of  intimate\n\nassociation in betrothal.  \n\n e. The  Law  Does  Not  Warrant  Extension  of  the  Right  of  Intimate\n Association to Romantic Relationships Generally\n\n Even if I were convinced that Matusick had demonstrated an ECWA custom\n\nor practice of interfering with employees’ choices of whom to marry, I would not be\n\nable to join in the majority opinion.  While my colleagues are careful to identify\n\nbetrothal as the intimate association at issue, certain language in the opinion could\n\nbe  read  to  imply  that  the  right  reaches  more  broadly  to  protect  a  variety  of\n\n(unidentified) romantic relationships.  See ante at 58–61, 60 n.18.  Such a suggestion\n\nis at best dictum, but it is dictum in which I cannot join.\n\n In  recognizing  a  right  of  intimate  association,  as  distinct  from  a  right  of\n\nexpressive association, the Supreme Court explained that the former shields “the\n\nformation and preservation of certain kinds of highly personal relationships” from\n\nunjustified state interference.  Roberts v. U.S. Jaycees, 468 U.S. at 618 (emphasis\n\n\n\n 23\n\fadded).  In short, not every  highly personal relationship can claim the constitutional\n\nprotection of intimate association, only “certain kinds.”  While the Supreme Court\n\nhas  declined  to  identify  “every  consideration  that  may  underlie  this  type  of\n\nconstitutional  protection,”  id.,  it  has  stated  that  the  “kinds  of  highly  personal\n\nrelationships” warranting constitutional protection are those that “have played a\n\ncritical  role  in  the  culture  and  traditions  of  the  Nation  by  cultivating  and\n\ntransmitting  shared  ideas  and  beliefs,”  in  the  process  “foster[ing]  diversity  and\n\nact[ing] as critical buffers between the individual and the power of the State.”  Id.\n\nat  618–19.    “[T]he  constitutional  shelter  afforded  such  relationships  reflects  the\n\nrealization that individuals draw much of their emotional enrichment from close ties\n\nwith others.”  Id. at 619 (emphasis added) (observing that affording constitutional\n\nprotection to “these relationships . . . safeguards the ability independently to define\n\none’s identity that is central to any concept of liberty” (emphasis added)).  As the\n\nhighlighted language indicates, while the highly personal relationships warranting\n\nintimate‐association  protection  characteristically  foster  personal  identity  and \n\nprovide  emotional  enrichment,  not  every  personal  relationship  that  does  so  is\n\nconstitutionally protected.  The considerations underlying extension of intimate‐\n\nassociation protection to “such relationships” relate to the “critical role” they play\n\n“in the culture and traditions of the Nation,” as described by Roberts.  Id. at 618–19.\n\n 24\n\f In  Roberts,  the  Supreme  Court  identified  “[t]he  personal  affiliations  that\n\nexemplify these considerations, and that therefore suggest some relevant limitations\n\non the relationships that might be entitled to this sort of constitutional protection.” \n\nId. at 619 (emphasis added).  These affiliations are “those that attend the creation\n\nand  sustenance  of  a  family,”  specifically,  “marriage,  childbirth,  the  raising  and\n\neducation of children, and cohabitation with one’s relatives.”  Id. (citations omitted). \n\nThe Court observed that such “[f]amily relationships, by their nature, involve deep\n\nattachments and commitments to the necessarily few other individuals with whom\n\none shares not only a special community of thoughts, experiences, and beliefs but\n\nalso  distinctively  personal  aspects  of  one’s  life.”    Id.  at  619–20.    Such  family\n\nrelationships are also “distinguished by such attributes as relative smallness, a high\n\ndegree of selectivity in decisions to begin and maintain the affiliation, and seclusion\n\nfrom others in critical aspects of the relationship.”  Id. at 620.  Insofar as betrothal\n\nreflects a proclaimed promise (if no longer an enforceable contract) to marry,7 it\n\nmight be said to attend the formal creation of a family and, thus, to play a critical\n\nrole in the transmittal of the nation’s culture and traditions.  \n\n The majority, however, suggests that intimate association might reach further\n\n 7\n  See N.Y. Civ. Rights Law § 80‐a (abolishing cause of action for breach of\npromise to marry); Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815 (1936) (upholding\nstatute as constitutional), appeal dismissed, 301 U.S. 667 (1937).  \n\n 25\n\fbecause  Roberts did not specifically cabin the right of intimate association to family\n\nrelationships, see Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte,  481 U.S.\n\n537,  545  (1987)  (noting  that  Supreme  Court  has  “not  held  that  constitutional\n\nprotection is restricted to relationships among family members”), and our own court\n\nhas disclaimed any “categorical approach . . . [to] association‐rights cases,” Chi Iota\n\nColony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 144 (2d\n\nCir. 2007).  True enough.  But neither the Supreme Court nor this court has thus far\n\nrecognized the right of intimate association to apply outside the context of families,\n\nwhether defined by blood or law.  See also Poirier v. Mass. Dep’t of Corr., 558 F.3d\n\n92, 96 (1st Cir. 2009) (upholding dismissal of intimate association claim by prison\n\nguard fired for romantic relationship with former inmate, holding that “unmarried\n\ncohabitation of adults does not fall within any of the Supreme Court’s bright‐line\n\ncategories for fundamental rights”); but see Fair Hous. Council of San Fernando\n\nValley v. Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012) (construing anti‐\n\ndiscrimination  provisions  of  federal  and  state  fair  housing  laws  not  to  apply  to\n\nshared living quarters to avoid possible intrusion on intimate association rights of\n\nroommates).    At  a  minimum,  this  signals  caution  in  expanding  the  right  based\n\nsimply on analogous descriptive characteristics.\n\n\n\n\n 26\n\f Certainly,  Roberts  does  not  suggest  that  any  small,  select,  and  secluded\n\nassociation—a description that might well fit some criminal enterprises—can claim\n\nconstitutional protection.  Rather, Roberts instructs that “[a]s a general matter, only\n\nrelationships with these sorts of qualities” are “likely to reflect the considerations”\n\nwarranting  constitutional  protection  for  intimate  associations.    Roberts  v.  U.S.\n\nJaycees, 468 U.S. at 620.  Thus, Roberts’s descriptive characteristics establish a useful\n\nobjective  standard  for  identifying  entities—like  the  Jaycees—whose  size  and\n\nopenness preclude them from claiming intimate‐association protection.  See also\n\nBoard of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. at 547 (holding\n\nRotary Club not protected by right of intimate association).  Indeed, this court has\n\nused Roberts’s descriptive characteristics in this way, to reject intimate association\n\nclaims in various contexts.  See Piscottano v. Murphy, 511 F.3d 247, 278–80 (2d Cir.\n\n2007) (rejecting claim by corrections officers disciplined for gang association); Chi\n\nIota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d at 147\n\n(rejecting intimate association claim by fraternity wishing to continue excluding\n\nwomen without forfeiting university recognition); Sanitation Recycling Indus., Inc.\n\nv.  City  of  New  York,  107  F.3d  985,  995–96  (2d  Cir.  1997)  (rejecting  intimate\n\nassociation claim by carting companies challenging restrictive licensing scheme). \n\n \n\n 27\n\f Neither the Supreme Court nor this court, however, has afforded intimate\n\nassociation  protection  based  solely  on  a  finding  of  small  size,  selectivity,  and\n\nseclusion.  Such a preliminary finding might allow the intimate association inquiry\n\nto  continue,  but  it  does  not  conclusively  resolve  it.      The  inquiry  process  is\n\nnecessarily holistic given “the broad range of human relationships that may make\n\ngreater or lesser claims to constitutional protection from particular incursions by the\n\nState,”  Roberts  v.  U.S.  Jaycees,  468  U.S.  at  620  (noting  that  factors  relevant  to\n\nintimate association inquiry include “size, purpose, policies, selectivity, congeniality,\n\nand other characteristics that in a particular case may be pertinent”).  Moreover, it\n\ncontemplates  a  “careful  assessment  of  where  the  relationship’s  objective\n\ncharacteristics locate it on a spectrum from the most intimate to the most attenuated\n\nof personal attachments.”  Id.  But the ultimate point of the inquiry is not simply to\n\ndraw descriptive analogies.  Rather, I understand the inquiry’s ultimate purpose to\n\nbe identifying those highly personal relationships that exemplify the considerations\n\nunderlying  the  constitutional  protection  for  intimate  association.    As  thus  far\n\nidentified by the Supreme Court, those considerations  relate to the critical role that\n\ncertain highly personal relationships have played in the “culture and traditions of\n\nthe Nation.”  Id. at 618–19.  Betrothal may satisfy this criteria, but I am not inclined \n\n\n\n\n 28\n\fto speculate that other relationships that fail to do so can also claim constitutional\n\nprotection.    \n\n In explaining why I dissent from the majority’s decision to uphold ECWA’s\n\nliability  for  violating  Matusick’s  right  of  intimate  association,  a  final  point  is\n\nnoteworthy:  the practical beneficiary of the court’s decision is not Matusick, but\n\nonly his attorney.  Although the jury awarded Matusick $5,000 in punitive damages\n\nfrom  each  of  the  individual  defendants  found  liable  on  the  intimate  association\n\nclaim, the panel today reverses that judgment on the ground of qualified immunity. \n\nAnd while the majority affirms the intimate association judgment against ECWA,\n\nthe jury awarded Matusick no compensatory (or even nominal) damages against\n\nthat defendant.  Thus, the practical effect of today’s decision with respect to the\n\nintimate association claim is not to compensate Matusick for infringement of any\n\nconstitutional  right,  but  only  to  allow  his  lawyer  to  recover  attorney’s  fees  for\n\npursuing a dubious constitutional claim of association instead of an obvious one of\n\nequal protection.  See 42 U.S.C. § 1988.\n\n *  * *\n\n To  conclude,  I  concur  in  the  court’s  decision  to  affirm  the  judgment  for\n\nMatusick on his state law claim of a racially hostile work environment.  I also concur\n\nin  the  decision  to  dismiss  Matusick’s  federal  intimate  association  claim  against\n\n\n\n 29\n\findividual defendants on the ground of qualified immunity.  For the reasons stated\n\nin this opinion, however, I respectfully dissent from the majority decision to affirm\n\nthe judgment for Matusick on his state wrongful termination claim and his federal\n\nintimate association claim against ECWA. \n\n\n\n\n 30\n\f 1 LOHIER, Circuit Judge, concurring:\n\n 2 I agree with the majority opinion, including its fact‐specific determination\n\n 3 that the engagement relationship between Scott Matusick and his fiancée, Anita\n\n 4 Starks, is the type of intimate association protected by the First Amendment.  I\n\n 5 write separately to emphasize that Matusick’s arguments at trial focused on the\n\n 6 defendants’ efforts to interfere with that relationship and to make clear that the\n\n 7 engagement relationship is entitled to constitutional protection because it has\n\n 8 played a “critical role in the culture and traditions of the Nation” since the\n\n 9 founding.  Roberts v. U.S. Jaycees, 468 U.S. 609, 618‐19 (1984).\n\n10 As an initial matter, the dissent acknowledges that Matusick and Starks’s\n\n11 “choice of each other as marital partners” may be protected by the intimate\n\n12 association right, Dissenting Op., post, at 14 (emphasis omitted), but states that\n\n13 Matusick did not present his case “on the theory that betrothal was the specific\n\n14 protected relationship violated,” id., post, at 16.  First, I discern no constitutional\n\n15 difference between undermining a person’s choice of marital partner and\n\n16 interfering with a betrothal relationship.  Second, I disagree with the dissent’s\n\n17 characterization of Matusick’s position at trial.  The heart of Matusick’s argument\n\n18 was that defendants tried to interfere with his engagement relationship. \n\n19 Throughout their jury addresses, Matusick’s attorneys stressed that “Matusick’s\n\f 1 termination was a form of discrimination because of his relationship with his\n\n 2 wife who was at that time his fiancee,” Joint App’x at 1894, and that “Matusick\n\n 3 was a victim of discrimination because he was dating and then became engaged\n\n 4 to an African American woman,” Joint App’x at 2905.  At trial, moreover, Starks\n\n 5 testified that Matusick “acknowledged me as his fiancee” at work and introduced\n\n 6 her as his fiancée to his supervisor, Robert Mendez.  Joint App’x at 1906‐07; see\n\n 7 Joint App’x at 2101 (Matusick confirming that he told coworkers that he was\n\n 8 engaged and introduced Stark to some coworkers).  The couple described to the\n\n 9 jury how they fell in love and became engaged. \n\n10 Although the Court in Roberts did not list engagement relationships in its\n\n11 non‐exclusive roster of “highly personal relationships” that “might be entitled to\n\n12 . . . constitutional protection,” 468 U.S. at 618‐19, such relationships surely\n\n13 qualify.  There is virtually no doubt that the engagement relationship between\n\n14 Matusick and Starks is one that the Framers would have recognized (setting\n\n15 aside, of course, the issue of miscegenation).  Indeed, engagement as a social\n\n16 practice and a legally recognized relationship status predates the founding.  In\n\n17 colonial times, the English law of “spousals” recognized “spousals de futuro” –\n\n18 in essence, betrothals – as a well‐established form of contract that could be simple\n\n\n 2\n\f 1 or conditional, public or private, and binding upon children and adults alike.  See\n\n 2 Wightman v. Coates, 15 Mass. 1, 6 n.a (1818) (reviewing the enforceability of\n\n 3 marriage promises under the laws of various European nations).  See generally\n\n 4 Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts (1686);\n\n 5 Chester Francis Wrzaszczak, The Betrothal Contract in the Code of Canon Law\n\n 6 (Canon 1017) 183‐86 (1954).  While spousals de futuro were the custom in early\n\n 7 colonial New England, see Chilton L. Powell, Marriage in Early New England, 1\n\n 8 New Eng. Q. 323, 327 (1928), the modern social form of engagement replaced\n\n 9 formal betrothal customs “after a few years of life in the New World,” Alice\n\n10 Morse Earle, Old‐Time Marriage Customs in New England, 6 J. Am. Folklore 97,\n\n11 101 (1893).\n\n12 By the later 1700s American middle‐class social practice with respect to\n\n13 marriage involved “courting”— sustained social interaction between the sexes in\n\n14 parents’ parlours, community gatherings, group or couples’ outings, and through\n\n15 written correspondence.  See, e.g., Ellen K. Rothman, Hands and Hearts: A\n\n16 History of Courtship in America 22‐26 (1984); see also Anya Jabour, Marriage in\n\n17 the Early Republic 13‐14 (1998).  The key transition from courting to engagement\n\n18 involved the exchange of promises between the engaged.  See, e.g., Rothman,\n\n\n 3\n\f 1 Hands and Hearts, at 33‐35.  Couples would date their engagements from the\n\n 2 moment of that exchange, and they treated the mutual promises as momentous. \n\n 3 See, e.g., Jabour, Marriage in the Early Republic, at 18.  Engagements could last\n\n 4 for an extended period of time.  See Rothman, Hands and Hearts, at 57‐75.  Social\n\n 5 acknowledgment of an engagement varied, but a private announcement to family\n\n 6 was common, and the promise itself was nearly universal.  Engaged and married\n\n 7 couples today will recognize many, if not all, of these attributes.\n\n 8 Engagement promises carried legal and economic as well as social\n\n 9 significance.  American courts recognized the important status of engagement\n\n10 and during the eighteenth century began to develop a civil cause of action for\n\n11 breach of promise.  These actions permitted a woman whose engagement\n\n12 promise was breached to recover from a (former) fiancé and were available in\n\n13 almost all of the States into the twentieth century.  See Rebecca Tushnet, Rules of\n\n14 Engagement, 107 Yale L.J. 2583, 2586‐88 (1998); Robert C. Brown, Breach of\n\n15 Promise Suits, 77 U. Pa. L. Rev. 474, 474‐75 (1929).  Early American courts did not\n\n16 require formal indicia of engagement, holding instead that “young persons[’] . . .\n\n17 mutual engagements [could be] inferred from a course of devoted attention and\n\n18\n\n\n 4\n\f1 apparently exclusive attachment, which is now the common evidence.” \n\n2 Wightman, 15 Mass. at 5.\n\n3 For these reasons I think there is no question that the engagement\n\n4 relationship in general and in this case is a “highly personal relationship” entitled\n\n5 to constitutional protection.\n\n\n\n\n 5\n\f", "ocr": false, "opinion_id": 2654428 } ]

[ "985 A.2d 647", "200 N.J. 547" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n985 A.2d 647 (2009)\n200 N.J. 547\nSTOECKER\nv.\nECHEVARRIA.\nNo. C-454 September Term 2009, 064902\nSupreme Court of New Jersey.\nDecember 16, 2009.\nPetition for Certification Denied.\n", "ocr": false, "opinion_id": 2056602 } ]

[ "2012 Ohio 249" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/9/2012/2012-ohio-249.pdf", "author_id": 8066, "opinion_text": "[Cite as State v. Allen, 2012-Ohio-249.]\n\n\nSTATE OF OHIO ) IN THE COURT OF APPEALS\n )ss: NINTH JUDICIAL DISTRICT\nCOUNTY OF SUMMIT )\n\nSTATE OF OHIO C.A. No. 25349\n\n Appellee\n\n v. APPEAL FROM JUDGMENT\n ENTERED IN THE\nDAVARIUS CHARLES ALLEN COURT OF COMMON PLEAS\n COUNTY OF SUMMIT, OHIO\n Appellant CASE No. CR 09 06 1764 (A)\n\n DECISION AND JOURNAL ENTRY\n\nDated: January 25, 2011\n\n\n\n CARR, Presiding Judge.\n\n {¶1} Appellant, Davarius Allen, appeals the judgment of the Summit County Court of\n\nCommon Pleas. This Court affirms.\n\n I.\n\n {¶2} On June 15, 2009, Allen was indicted on four counts of aggravated robbery,\n\nfelonies of the first degree; two counts of aggravated burglary, felonies of the first degree; two\n\ncounts of felonious assault, felonies of the second degree; and two counts of rape, felonies of the\n\nfirst degree, each of these ten counts containing a firearm specification. Allen was further\n\nindicted on one count of felonious assault on a peace officer, a felony of the first degree; one\n\ncount of disrupting public services, a felony of the fourth degree; one count of receiving stolen\n\nproperty, a felony of the fifth degree; and one count of theft, a felony of the fifth degree. He\n\npleaded not guilty to all charges at arraignment.\n\f 2\n\n\n {¶3} On July 8, 2009, a supplemental indictment was filed, charging Allen with four\n\ncounts of aggravated robbery, felonies of the first degree; and one count of aggravated burglary,\n\na felony of the first degree, each of these five counts containing a firearm specification. He was\n\nfurther indicted on four counts of aggravated menacing, misdemeanors of the first degree. Allen\n\npleaded not guilty to the charges in the supplemental indictment at arraignment.\n\n {¶4} On September 9, 2009, Allen filed the following: a motion to suppress all\n\nevidence obtained during a search of his residence, conducted on June 3, 2009; a motion to\n\nsuppress all statements obtained during his interrogation, detention and arrest, and all evidence\n\nderived as a result of his alleged unlawful interrogation, detention and arrest; and a motion to\n\nsever various counts in the indictment for purposes of trial. The trial court held a hearing on the\n\nmotions and subsequently issued an order denying them.\n\n {¶5} Prior to trial, the State dismissed the sole counts of disrupting public services and\n\ntheft, and the four counts of aggravated menacing. The matter proceeded to trial before a jury.\n\nAt the conclusion of trial, the jury found Allen guilty of fifteen of the remaining charges, plus the\n\ncorresponding firearm specifications. The jury acquitted Allen of one count of felonious assault\n\nand the charge of felonious assault on a peace officer. The trial court classified Allen as a Tier\n\nIII sex offender and sentenced him to an aggregate term of forty-six years in prison. Allen filed\n\na timely appeal, raising four assignments of error for review. This Court rearranges some\n\nassignments of error to facilitate review.\n\n ASSIGNMENT OF ERROR I\n\n THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO\n SUPPRESS STATEMENTS[.]\n\n {¶6} Allen argues that the trial court erred by denying his motion to suppress oral\n\nstatements made during his custodial interrogation. Specifically, Allen argues that the police did\n\f 3\n\n\nnot give him his Miranda (v. Arizona, 384 U.S. 436 (1966)) warning prior to questioning and\n\nthat his incriminating statements were not made voluntarily with an understanding of his rights.\n\nThis Court disagrees.\n\n {¶7} Regarding the relevant standard of review, this Court has stated:\n\n “An appellate court’s review of a trial court’s ruling on a motion to suppress\n presents a mixed question of law and fact. The trial court acts as the trier of fact\n during a suppression hearing, and is therefore, best equipped to evaluate the\n credibility of witnesses and resolve questions of fact. Accordingly, we accept the\n trial court’s findings of fact so long as they are supported by competent, credible\n evidence. The trial court’s legal conclusions, however, are afforded no deference,\n but are reviewed de novo.” (Emphasis omitted.) (Internal citations omitted.)\n State v. Swan, 9th Dist. No. 22939, 2006-Ohio-2692, at ¶8.\n\n {¶8} “The Fifth Amendment to the United States Constitution provides persons with a\n\nprivilege against compelled self-incrimination, which is applicable against the states through the\n\nDue Process Clause of the Fourteenth Amendment.” State v. Antoline, 9th Dist. No.\n\n02CA008100, 2003-Ohio-1130, at ¶12, citing Malloy v. Hogan, 378 U.S. 1, 6 (1964). This\n\nCourt has clearly enunciated the relevant considerations regarding the suppression of a criminal\n\ndefendant’s confession:\n\n “[T]he Due Process Clause of the Fourteenth Amendment requires the exclusion\n of confessions that are involuntarily given by an accused. Dickerson v. United\n States, 530 U.S. 428, 433 (2000); State v. Evans, 144 Ohio App. 3d 539, 560\n (2001). The test under this due process analysis is ‘whether a defendant’s will\n was overborne’ by the circumstances surrounding the giving of a confession. The\n due process test takes into consideration ‘the totality of all the surrounding\n circumstances—both the characteristics of the accused and the details of the\n interrogation.’ Dickerson, 530 U.S. at 434, quoting Schneckloth v. Bustamonte,\n 412 U.S. 218, 226 (1973). The totality of the circumstances that a court should\n consider include ‘the age, mentality, and prior criminal experience of the accused;\n the length, intensity, and frequency of interrogation; the existence of physical\n deprivation or mistreatment; and the existence of threat or inducement.’ State v.\n Edwards, 49 Ohio St. 2d 31, paragraph two of the syllabus (1976), vacated on\n other grounds, 438 U.S. 911 (1978).” Antoline at ¶21.\n\f 4\n\n\n {¶9} These same considerations are equally applicable to a determination whether\n\nAllen understood and waived his Miranda rights. State v. Brinkley, 105 Ohio St. 3d 231, 2005-\n\nOhio-1507, at ¶57. “[E]vidence of police coercion or overreaching is necessary for a finding of\n\ninvoluntariness[.]” State v. Hill, 64 Ohio St. 3d 313, 318 (1992), citing Colorado v. Connelly,\n\n479 U.S. 157, 164 (1986). Furthermore, “[a]bsent evidence that a defendant’s will was\n\noverborne and that his capacity for self-determination was critically impaired because of\n\ncoercive police conduct, the decision of a suspect to waive his right to Fifth Amendment\n\nprivilege against self-incrimination is considered voluntary.” State v. Wooden, 9th Dist. No.\n\n23992, 2008-Ohio-3629, at ¶7, citing State v. Dailey, 53 Ohio St. 3d 88, 91-2 (1990).\n\n {¶10} The Fifth Amendment right against self-incrimination extends to “informal\n\ncompulsion exerted by law-enforcement officers during in-custody questioning.” Miranda, 384\n\nU.S. at 461. However, an exception exists for questions designed merely to elicit biographical\n\ninformation which is reasonably related to booking or other administrative concerns of the\n\npolice. See State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, at ¶33, citing Pennsylvania v.\n\nMuniz, 496 U.S. 582, 601-602 (1990).\n\n {¶11} At the hearing on the motion to suppress, Lieutenant James Phister of the Akron\n\nPolice Department (“APD”) testified that Allen was arrested on June 3, 2009, in conjunction\n\nwith various crimes committed on May 13 and 28, and June 3, 2009. He testified that Allen cut\n\nhis hands and legs on a barbed wire fence while fleeing the scene of the June 3 incident, and he\n\nwas transported to a hospital for treatment prior to being transported to the police station for\n\nquestioning. After being placed in an interview room at the police station, Lt. Phister testified\n\nthat he and Detective Rich Morrison verified Allen’s name, address, date of birth, and social\n\nsecurity number prior to reading Allen his Miranda rights. These questions constituted nothing\n\f 5\n\n\nmore than an attempt to obtain biographical information for administrative purposes and did not,\n\ntherefore, violate Allen’s constitutional rights. See Hale at ¶33. Allen concedes that the police\n\nread him his Miranda rights prior to any further questioning.\n\n {¶12} The State admitted an audio recording of the custodial interview with Allen. The\n\nrecording demonstrates that immediately after obtaining general booking or identification-type\n\ninformation from Allen, the police read him his Miranda rights. Lt. Phister testified that officers\n\nof the APD always read the rights from a card and never simply recite them from memory.\n\nAllen asserted prior to any substantive questioning that he understood each of the following\n\nspecific rights: that he had the right to remain silent; that anything he said could be used against\n\nhim in a court of law; that he had the right to have an attorney present during questioning; that he\n\nhad the right to have an appointed attorney if he could not afford one; and that he had the right to\n\nexercise any and all of these rights at any time during the interrogation. Approximately halfway\n\nthrough the interrogation, Allen evaded answering a question in a forthright manner. The police\n\ninformed him that this was the time that they asked the questions and he answered. Allen replied\n\nthat he thought he did not have to answer any questions. The officer replied, “You don’t.”\n\nInstead of declining to answer any further questions, however, Allen asked the officer to repeat\n\nthe last question he asked.\n\n {¶13} Allen asserted that he understood his Miranda rights as read to him by the police.\n\nHe then agreed to answer the officers’ questions regarding the three criminal incidents. He never\n\ninvoked his right to have an attorney present. When he attempted to evade answering a question\n\nby informing the officers that he thought he did not have to answer any questions, the police\n\nclearly informed him, “You don’t.” Nevertheless, he continued to answer and even requested\n\nthat the officer repeat the last question asked. Allen was cooperative and answered the questions\n\f 6\n\n\ncoherently. There was no indication that his recent medical treatment for cuts on his hands and\n\nlegs had impaired his mental faculties. Based on the totality of the circumstances, there was\n\nnothing to indicate that Allen’s will had been overborne so as to render his statements\n\ninvoluntary. Allen’s first assignment of error is overruled.\n\n ASSIGNMENT OF ERROR III\n\n THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO\n SUPPRESS EVIDENCE GATHERED PURSUANT TO A DEFECTIVE\n SEARCH WARRANT[.]\n\n {¶14} Allen argues that the trial court erred by denying his motion to suppress evidence\n\nseized during a search of his home because (1) the search warrant was vague, and (2) the affiant\n\nwho submitted the affidavit in support of the search warrant “was not sure of the accuracy of the\n\ninformation[.]” This Court disagrees.\n\n {¶15} This Court reviews the trial court’s ruling on a motion to suppress pursuant to the\n\nstandard enunciated above. See Swan at ¶8.\n\n {¶16} Allen first argues that the search warrant itself was defective because it was vague\n\nin that it failed to describe the property to be seized. A review of the search warrant\n\ndemonstrates, however, that it clearly describes both the location of the search and specific items\n\nto be seized.\n\n {¶17} Allen next argues that the affiant, Lt. Phister, was not sure of the accuracy of the\n\ninformation he provided in support of the warrant. At the hearing on the motion to suppress,\n\nhowever, Lt. Phister testified regarding his investigation of a series of aggravated burglaries,\n\naggravated robberies, and sexual assaults which led the police to suspect and arrest Allen. At no\n\ntime during the suppression hearing did Lt. Phister testify that he was unsure regarding the\n\naccuracy of information he provided in his affidavit in support of the search warrant. The\n\f 7\n\n\nrecording of Allen’s interrogation was admitted into evidence during the hearing. Lt. Phister and\n\nDet. Morrison both informed Allen that they already knew about his involvement in a significant\n\nnumber of recent crimes. There was no evidence presented during the hearing to rebut those\n\nstatements. Accordingly, there was competent, credible evidence to demonstrate that Lt. Phister,\n\nwho submitted the affidavit in support of the search warrant, was aware of the accuracy of the\n\nfacts underlying the warrant.\n\n {¶18} Allen correctly asserts that warrants may be issued only upon probable cause\n\nevidenced by an oath or affirmation. He fails, however, to discuss how that law is applicable to\n\nhis argument. Assuming that his argument can be construed as an assertion of a lack of probable\n\ncause underlying the warrant, that argument too must fail.\n\n {¶19} The Fourth Amendment to the United States Constitution prohibits only\n\nunreasonable searches and seizures, not every search and seizure. The United States Supreme\n\nCourt has held that “before a warrant for either arrest or search can issue [the Fourth Amendment\n\nprobable-cause requirements] require that the judicial officer issuing such a warrant be supplied\n\nwith sufficient information to support an independent judgment that probable cause exists for the\n\nwarrant.” Whitely v. Warden, 401 U.S. 560, 564 (1971).\n\n {¶20} Crim.R. 41(C) addresses the issuance of search warrants and states in relevant\n\npart: “A warrant shall issue on either an affidavit or affidavits sworn to before a judge of a court\n\nof record * * *. The affidavit shall name or describe the person to be searched or particularly\n\ndescribe the place to be searched, name or describe the property to be searched for and seized,\n\nstate substantially the offense in relation thereto, and state the factual basis for the affiant’s belief\n\nthat such property is there located.” Crim.R. 41(C)(1). The judge shall issue the search warrant\n\nupon determining that probable cause for the search exists. Crim.R. 41(C)(2). The rule further\n\f 8\n\n\nprovides that “[t]he finding of probable cause may be based upon hearsay in whole or in part,\n\nprovided there is a substantial basis for believing the source of the hearsay to be credible and for\n\nbelieving that there is a factual basis for the information furnished.” Id.\n\n {¶21} A court reviewing the sufficiency of probable cause in a submitted affidavit\n\nshould not substitute its judgment for that of the issuing judge. State v. Tejada, 9th Dist. No.\n\n20947, 2002-Ohio-5777, at ¶7, citing State v. George, 45 Ohio St. 3d 325 (1989), at paragraph\n\ntwo of the syllabus. Rather, the duty of a reviewing court is to determine whether the magistrate\n\nor judge who issued the search warrant had a substantial basis for concluding that probable cause\n\nexisted. George, 45 Ohio St.3d at paragraph two of the syllabus. Great deference is to be given\n\nto the issuing judge’s determination and doubtful or marginal cases are to be resolved in favor of\n\nupholding the validity of the warrant. State v. Cash, 9th Dist. No. 20259, 2001 WL 251353\n\n(Mar. 14, 2001), citing George, 45 Ohio St.3d at paragraph two of the syllabus.\n\n {¶22} “[P]robable cause is the existence of circumstances that warrant suspicion.”\n\n(Quotations and citations omitted). Tejada at ¶8. Therefore, “the standard for probable cause\n\ndoes not require a prima facie showing of criminal activity; rather, the standard requires only a\n\nshowing that a probability of criminal activity exists.” (Quotations omitted). Id. See also,\n\nGeorge, 45 Ohio St. 3d at 329. Furthermore, courts view the totality of the circumstances in\n\nmaking probable cause determinations. Illinois v. Gates, 462 U.S. 213, 238 (1983). The Gates\n\ncourt elaborated: “The task of the issuing magistrate is simply to make a practical, common-\n\nsense decision whether, given all the circumstances set forth in the affidavit before him,\n\nincluding the veracity and basis of knowledge of persons supplying hearsay information, there is\n\na fair probability that contraband or evidence of a crime will be found in a particular place. And\n\f 9\n\n\nthe duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for …\n\nconclud[ing] that probable cause existed.” (Internal quotations omitted.) Id. at 238-39.\n\n {¶23} Allen argues that “[t]here was no description of property to be seized and the\n\ndescription of Appellant was not accurate.” For the sake of this discussion, we must presume\n\nthat he is referring to the information in Lt. Phister’s affidavit in support of the search warrant.\n\n {¶24} Lt. Phister averred in paragraph 19 of his affidavit that he was seeking a search\n\nwarrant to search Allen’s home for certain items associated with recent crimes, specifically, a\n\n“Visa credit card in the name of S. Gurkamal Badyal, a dark-blue coat, hooded and trimmed with\n\ngray and black fur, firearms, a red mesh clothing hamper, a glass soda bottle, a 17 inch flat-\n\nscreen TV, a[n] Xbox and Playstation 2 video game system and any other evidence of Receiving\n\nStolen Property, Aggravated Robbery, Aggravated Burglary and Sexual Assault[.]” The specific\n\nlist of items to be seized was based on Lt. Phister’s sworn statements regarding his investigation\n\nof recent criminal activity, including items alleged to have been stolen at gunpoint from various\n\nvictims and a bottle allegedly used to perpetrate a sexual assault on one of the victims. Clearly,\n\nAllen’s assertion that there was no description of the property to be seized during the search is\n\nerroneous.\n\n {¶25} Lt. Phister averred that witnesses to one criminal incident described the\n\nperpetrator as “a black male, approximately 5’6” to 5’7” wearing dark jeans, * * * a blue\n\nbandana [and] armed with a handgun[.]” A victim in another incident described the perpetrator\n\nas “a black male, 5’6”, skinny, wearing dark jeans, a blue bandana and a dark blue hooded coat,\n\ntrimmed with gray and black fur * * * holding a handgun[.]” Lt. Phister averred that a credit\n\ncard stolen during the first incident was used at a store after which a person in a distinctive dark-\n\nblue coat trimmed in gray and black fur drove away in a distinctive car. Lt. Phister averred that,\n\f 10\n\n\nduring a canvas of the area, he observed the same distinctive car parked outside a residence and\n\ndetermined that the vehicle was registered to Gloria Allen, whose sons Davarius and Demetris\n\nwere living at that residence. Lt. Phister averred that BMV records indicate that Allen is 5’4”\n\nand 135 pounds and that his description is “consistent with the physical description given by the\n\nvictims involved in both incidents.” Based on a totality of the circumstances, this Court cannot\n\nconclude that Lt. Phister’s description of Allen in his affidavit was not accurate. As a result, we\n\nconclude that the trial court properly determined that the issuing judge had a substantial basis to\n\nsuspect that contraband or evidence of a crime would be found at Allen’s residence.\n\nAccordingly, the trial court did not err by denying the motion to suppress.\n\n {¶26} Allen’s third assignment of error is overruled.\n\n ASSIGNMENT OF ERROR II\n\n THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO\n SEVER COUNTS IN THE INDICTMENT[.]\n\n {¶27} Allen argues that the trial court erred by denying his motion to sever counts in the\n\nindictment. This Court disagrees.\n\n {¶28} Allen moved to sever counts in the indictment pursuant to Crim.R. 14 on the\n\nground that joinder of the offenses in the indictment for trial would be unfairly prejudicial. On\n\nappeal, Allen argues that the trial court erred by denying his motion to sever in reliance on\n\nCrim.R. 8 on the grounds that the offenses were not based on the same acts or transactions or\n\nwere not based on acts or transactions which constituted a common scheme or plan. Although\n\nboth rules offer grounds for the severing of offenses or defendants, they are distinct in their\n\napplication both at the trial court level and on appeal. See State v. Williams, 9th Dist. No. 23560,\n\n2008-Ohio-1048, at ¶53 (Dickinson, J., concurring).\n\f 11\n\n\n {¶29} Allen failed to move the trial court to sever counts in the indictment pursuant to\n\nCrim.R. 8. Therefore, he has forfeited this argument on appeal. State v. Gunner, 9th Dist. No.\n\n07CA0074-M, 2008-Ohio-4942, at ¶22, citing State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-\n\n4642, at ¶23. Furthermore, he has not argued plain error or presented any reason why this Court\n\nshould address this issue for the first time on appeal. Gunner at ¶22. Allen’s second assignment\n\nof error is overruled.\n\n ASSIGNMENT OF ERROR IV\n\n THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO\n MAXIMUM CONSECUTIVE SENTENCES[.]\n\n {¶30} Allen argues that the trial court erred by sentencing him to maximum, consecutive\n\nsentences without making the proper factual findings. This Court disagrees.\n\n {¶31} The law in regard to this issue is well settled. The Ohio Supreme Court clearly\n\nheld in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, at paragraph seven of the syllabus:\n\n“Trial courts have full discretion to impose a prison sentence within the statutory range and are\n\nno longer required to make findings or give their reasons for imposing maximum, consecutive, or\n\nmore than the minimum sentences.” The Ohio Supreme Court more recently clarified: “Trial\n\ncourt judges are not obligated to engage in judicial fact-finding prior to imposing consecutive\n\nsentences unless the General Assembly enacts new legislation requiring that findings be made.”\n\nState v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, at paragraph three of the syllabus. In this\n\ncase, Allen’s sentences fall within the applicable statutory ranges. Accordingly, the trial court\n\ndid not err in imposing sentence. Allen’s fourth assignment of error is overruled.\n\n III.\n\n {¶32} Allen’s assignments of error are overruled. The judgment of the Summit County\n\nCourt of Common Pleas is affirmed.\n\f 12\n\n\n Judgment affirmed.\n\n\n\n\n There were reasonable grounds for this appeal.\n\n We order that a special mandate issue out of this Court, directing the Court of Common\n\nPleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy\n\nof this journal entry shall constitute the mandate, pursuant to App.R. 27.\n\n Immediately upon the filing hereof, this document shall constitute the journal entry of\n\njudgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the\n\nperiod for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is\n\ninstructed to mail a notice of entry of this judgment to the parties and to make a notation of the\n\nmailing in the docket, pursuant to App.R. 30.\n\n Costs taxed to Appellant.\n\n\n\n\n DONNA J. CARR\n FOR THE COURT\n\n\n\nWHITMORE, J.\nDICKINSON, J.\nCONCUR\n\n\nAPPEARANCES:\n\nISABELLA DIXON, Attorney at Law, for Appellant.\n\nSHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant\nProsecuting Attorney, for Appellee.\n\f", "ocr": false, "opinion_id": 2706204 } ]

[ "2011 Ohio 6092" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/9/2011/2011-ohio-6092.pdf", "author_id": 8066, "opinion_text": "[Cite as State v. Padgett, 2011-Ohio-6092.]\n\n\nSTATE OF OHIO ) IN THE COURT OF APPEALS\n )ss: NINTH JUDICIAL DISTRICT\nCOUNTY OF MEDINA )\n\nSTATE OF OHIO C.A. Nos. 10CA0132-M\n 10CA0141-M\n Appellee 10CA0142-M\n\n v.\n APPEAL FROM JUDGMENT\nROBERT E. PADGETT, JR. ENTERED IN THE\n COURT OF COMMON PLEAS\n Appellant COUNTY OF MEDINA, OHIO\n CASE Nos. 10-CR-0023\n 10-CR-0048\n 10-CR-0075\n\n DECISION AND JOURNAL ENTRY\n\nDated: November 28, 2011\n\n\n\n CARR, Judge.\n\n {¶1} Appellant, Robert Padgett, Jr., appeals the judgment of the Medina County Court\n\nof Common Pleas. This Court affirms.\n\n I.\n\n {¶2} On January 13, 2010, Padgett was indicted in case number 10CR0023 on three\n\ncounts of breaking and entering and three counts of vandalism, all felonies of the fifth degree.\n\nOn February 10 and 24, 2010, Padgett was indicted in case number 10CR0048 on one count of\n\ntheft of a credit card, a felony of the fifth degree; and one count of burglary, a felony of the\n\nsecond degree. On February 24, 2010, Padgett was indicted in case number 10CR0075 on three\n\ncounts of burglary, felonies of the second degree; one count each of passing bad checks, theft,\n\nand breaking and entering, all felonies of the fifth degree. Padgett initially pleaded not guilty to\n\nall charges, but subsequently changed his plea to guilty to all charges. The trial court sentenced\n\f 2\n\n\nhim to an aggregate term of six years in prison, running most of his sentences concurrently.\n\nPadgett filed notices of appeal in all three cases above. This Court consolidated the appeals for\n\npurposes of briefing and disposition. Padgett raises one assignment of error for review.\n\n II.\n\n ASSIGNMENT OF ERROR\n\n “APPELLANT’S PLEA WAS INVOLUNTARY, UNKNOWING AND NOT\n INTELLIGENTLY DONE BECAUSE APPELLANT WAS NOT ADVISED BY\n COUNSEL AT PLEA HEARING THAT PLEA CONTAINED AGREED\n NEGOTIATED SENTENCE,[] NEGOTIATED PLEA WAS NOT PLACED ON\n RECORD PRIOR TO PLEA, AND THUS COURT’S RULE 11 PLEA WAS\n THUS CONSTITUTIONALLY INFIRM AND DID NOT COMPLY WITH\n RULE 11 F REQUIREMENTS. (sic)\n\n {¶3} Padgett argues that the trial court erred by accepting his plea which was not\n\nknowingly, voluntarily, and intelligently entered. This Court disagrees.\n\n {¶4} As a preliminary matter, Padgett argues in part regarding his plea entered in case\n\nnumber 09CR0449. However, he failed to file a notice of appeal in regard to that matter.\n\nAccordingly, this Court declines to consider his arguments in regard to that case. Moreover,\n\nwhile he has appealed in regard to case number 10CR0023, Padgett fails to address that case in\n\nhis appellate brief. Accordingly, this Court affirms the trial court’s judgment in relation to\n\nappellate case number 10CA0142-M.\n\n {¶5} The crux of Padgett’s argument is that he did not enter his guilty plea knowingly,\n\nvoluntarily, and intelligently because the record does not reflect that the parties had negotiated a\n\nplea and recommended sentence. Padgett misconstrues the record.\n\n {¶6} At the change of plea hearing on April 7, 2010, the trial court called the cases and\n\nasserted, “I understand there’s going to be a change of plea in these cases and a recommended\n\nsentence.” The court inquired whether there would be any amendments to the indictments and\n\f 3\n\n\nthe State asserted that there would not. The assistant prosecutor further asserted that the parties\n\n“do have an agreed six-year prison sentence we would recommend to the Court, and we would\n\nask you to impose it.” During the plea colloquy, the trial court explained the maximum possible\n\nsentence for each charged offense. Long before inquiring how Padgett wished to plead, the trial\n\ncourt further informed him: “There has been an agreed recommended sentence of six years that\n\nyour attorney and the State of Ohio have asked me to impose. It’s not mandatory that I impose\n\nthat sentence. I can impose up to thirty-five years in prison.” The trial court then asked whether\n\nPadgett had any questions, and he responded that he did not.\n\n {¶7} Crim.R. 11(F) requires that, in the case of a negotiated plea in a felony case, “the\n\nunderlying agreement upon which the plea is based shall be stated on the record in open court.”\n\nThe record is clear that the trial court recited the underlying agreement in open court. Padgett’s\n\nargument is premised on a misreading and miscomprehension of the record. The sole\n\nassignment of error is overruled.\n\n III.\n\n {¶8} Padgett’s sole assignment of error is overruled. The judgment of the Medina\n\nCounty Court of Common Pleas is affirmed.\n\n Judgment affirmed.\n\n\n\n\n There were reasonable grounds for this appeal.\n\n We order that a special mandate issue out of this Court, directing the Court of Common\n\nPleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy\n\nof this journal entry shall constitute the mandate, pursuant to App.R. 27.\n\f 4\n\n\n Immediately upon the filing hereof, this document shall constitute the journal entry of\n\njudgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the\n\nperiod for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is\n\ninstructed to mail a notice of entry of this judgment to the parties and to make a notation of the\n\nmailing in the docket, pursuant to App.R. 30.\n\n Costs taxed to Appellant.\n\n\n\n\n DONNA J. CARR\n FOR THE COURT\n\n\n\nBELFANCE, P. J.\nWHITMORE, J.\nCONCUR\n\nAPPEARANCES:\n\nWESLEY A. JOHNSTON, Attorney at Law, for Appellant.\n\nDEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting\nAttorney, for Appellee.\n\f", "ocr": false, "opinion_id": 2706289 } ]

[ "566 A.2d 111", "317 Md. 659" ]

[ { "author_str": "Cole", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n317 Md. 659 (1989)\n566 A.2d 111\nROBERT BEDFORD, JR.\nv.\nSTATE OF MARYLAND.\nNo. 112, September Term, 1987.\nCourt of Appeals of Maryland.\nNovember 29, 1989.\nGeorge E. Burns, Jr., Julia D. Bernhardt, Asst. Public Defenders (Alan H. Murrell, Public Defender, all on brief), Baltimore, for appellant.\nMary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Jillyn K. Schulze, Asst. Atty. Gen., all on brief), Baltimore, for appellee.\nArgued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.\nCOLE, Judge.\nA jury sitting in the Circuit Court for Baltimore County (Nickerson, J.) found Robert Bedford guilty of first degree premeditated murder, first degree felony murder, first degree rape, robbery with a deadly weapon, and theft of over $300.00. The circuit court sentenced him to death on the murder charge. This case is an automatic appeal, pursuant to Md. Code (1957, 1976 Repl.Vol.) Art. 27, § 414(a), to this Court's exclusive appellate jurisdiction, under Md. Code Courts and Judicial Proceedings Article § 12-307(4) (Supp. 1988), in cases where the death penalty has been imposed.\nA detailed account of the gruesome facts is unnecessary for our resolution of the issues raised. Here the victim was found murdered and sexually abused in the bedroom of her home. At this time she was separated from her husband and her daughter was away at college. The house had been ransacked, personal items had been removed therefrom, and her car had been stolen. Evidence from passengers of the stolen car led to Bedford's arrest, and a subsequent search of his residence led to the recovery of a stereo record player and other personal items belonging to the victim. When arrested, Bedford was found wearing around his neck a gold chain belonging to the victim. Nevertheless, Bedford maintains that he is not the criminal agent.\nBedford's basic attack concerns the admission of certain evidence during the course of the guilt or innocence phase of this trial.[1] He presents three issues which he argues should be resolved in his favor and thereby entitle him to a new trial: (1) it was reversible error for the court to admit evidence of two instances of alleged attempts to escape as demonstrating a consciousness of guilt; (2) the trial court improperly conducted voir dire of the jury in that it denied him the right to communicate with his counsel and portrayed him to the jury as a dangerous man; and (3) the trial court improperly admitted nine color photographs of the victim. For all or any of these reasons, Bedford claims he is entitled to a new trial.\n\nI\nAt trial, the State sought to introduce evidence purporting to show that Bedford had attempted to escape on two occasions since his arrest in 1987 for these offenses and that this conduct gave rise to an inference that Bedford was guilty of the charged offenses. Over Bedford's objections, the trial judge admitted evidence that during a February strip search, prison guards discovered a four inch wire hidden on Bedford and that in May, guards found Bedford, who had been taken to court for trial, unescorted and wandering inside the courthouse. The trial court noted that while the State's evidence was circumstantial in nature, nonetheless it was admissible as tending to demonstrate Bedford's consciousness of guilt.\nThis Court has previously examined the admissibility of evidence of flight after a crime has been committed. In Sorrell v. State, 315 Md. 224, 554 A.2d 352 (1989), we concluded that \"[e]vidence of flight following a crime has generally been held admissible to show consciousness of guilt in Maryland\" Id. at 227, 554 A.2d at 353; see also Hunt v. State, 312 Md. 494, 508-09, 540 A.2d 1125, 1132 (1988); Huffington v. State, 295 Md. 1, 16, 452 A.2d 1211, 1218 (1982), cert. denied 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986); Tichnell v. State, 287 Md. 695, 716-17 n. 11, 415 A.2d 830, 841 n. 11 (1980). \"Flight\" includes an escape or attempted escape from confinement. C. McCormick, McCormick on Evidence § 271 (3d ed. 1984); see 2 J. Wigmore, Evidence § 276 (J. Chadbourn rev. 1979).\nAlthough flight is not conclusive of guilt in and of itself, it is one of the factors to be considered in establishing guilt and consciousness of that guilt. 1 Wharton's Criminal Evidence § 214 (C. Torcia 13th ed. 1972). Any evidence contradicting the inference of guilt derived from flight \"does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such flight.\" Sorrell, 315 Md. at 228, 554 A.2d at 354 (quoting 1 Wharton's Criminal Evidence § 214 at 450). With this background in place, we now examine the incidents in question.\nOn the morning of May 20, 1987, Bedford was transported by two officers from the Detention Center to the Baltimore County Circuit Courthouse where he was to attend his trial. Bedford and eleven other prisoners were handcuffed one to the other forming a human chain and led out of the police wagon. They were then led into the building, through the underground garage, and down a hallway toward the holding cells (called the bull pen area). Normally, at this point, prisoners are uncuffed and placed into the cells. One of the transporting officers testified that for reasons he just did not know, Bedford never made it into his assigned lockup cell. In an agreed statement of facts, however, both parties conceded that the prisoners' cuffs had been unlocked by the officer and each prisoner directed into a cell. Bedford had stepped behind the officer as did other prisoners preparing to enter the cell. Bedford, however, did not enter as presumed but instead walked away from the cellblock.\nNot long thereafter, Bedford was spotted by an officer who was transporting prisoners down one of the ground floor hallways. That officer testified that he saw someone duck into an open cell in a twenty to thirty foot long dead-end hallway, which at that time was \"completely dark except for the light from the hallway going in.\" The officer approached Bedford and asked him to identify himself and state his purpose for being in the hallway. Bedford did not identify himself, but stated that he had come in through the exit at the end of the hallway. The officer discounted this reply as false since the exit remained locked, and there was only one way into and out of the area. There was no access to any area open to the public. The officer asked Bedford to accompany him to the main desk where other officers recognized and immediately handcuffed Bedford.[2]\nBedford argues that he did not \"escape\" because he never left the courthouse. Any departure \"from the bounds where [the defendant] has been assigned,\" however, is sufficient to constitute escape under Md. Code (1957, 1976 Repl.Vol.) Art. 27, § 139(a)(1). Stewart v. State, 275 Md. 258, 271, 340 A.2d 290, 297 (1975).\nBedford may attempt to convince the jury that his \"failure\" to leave the courthouse is inconsistent with flight giving rise to an inference of guilt. As stated in Sorrell, such testimony would go to counteract the weight given the effect of such flight, but would not prevent its admission. We therefore hold that evidence regarding the May 20th incident was admissible.\nWe turn now to the February incident. On February 25, 1987, following arrest and incarceration on charges of first degree murder, robbery, and rape, Bedford was scheduled to be transported from his cell in the Baltimore County Detention Center to the office of a psychiatrist outside of the prison complex. Consistent with normal procedure for all inmates leaving the Center, deputies requested Bedford to remove his clothing in preparation for a \"strip-search\" to detect the presence or absence of contraband or any tools which might aid his escape. Bedford verbally resisted, asking to see his lawyer or a police captain. This request was denied and Bedford was searched. Inside his \"long-johns\" the officers discovered a four-inch piece of metal wire sharpened to a point and wrapped in toilet paper. The officer who conducted the search testified at trial that he personally had seen such instruments used to open handcuff locks. When asked to unlock handcuffs by using the four inch wire, however, he was unable to do so. Nevertheless, the State maintained that the wire was properly admitted into evidence as supporting the inference that Bedford planned to escape once enroute to his destination.\nWe note that the crime of criminal attempt in Maryland is governed by a \"substantial step\" test, whereby a defendant will be found guilty of attempt only where the evidence demonstrates that he took \"substantial step[s] toward the commission of [a] crime whether or not his intention [to commit that crime] be accomplished.\" Young v. State, 303 Md. 298, 311, 493 A.2d 352, 359 (1985). In Young, we also pointed out that no \"substantial step\" will be found unless the conduct is \"strongly corroborative\" of a criminal intention. Id. Here, the State argues that Bedford is guilty of attempted escape since he was caught with a sharpened four-inch piece of wire useful to pick handcuff locks.\nBedford retorts that this evidence only shows mere possession of a wire. Standing alone, this evidence is not enough to be regarded as a \"substantial step\" toward escape and is certainly not corroborative of an intent to flee. First of all, he argues, there is no indication of what he planned to do with the wire. It could have been used for other purposes which do not support the consciousness of guilt theory, i.e., a defensive or offensive weapon, a tool for intra-prison work activity, or any other purpose unrelated to the charges against him.\nBut in any event, Bedford maintains that the prejudice generated by the evidence that he was in possession of a wire outweighed any probative value that that evidence might have had. It did not imply that he knew that he was guilty of the crimes charged; rather, Bedford contends that the evidence suggested to the jury that he was violent, ignored prison rules, or was otherwise a \"bad man.\" Thus, Bedford concludes the evidence was inadmissible.\nThe authorities are uniform that evidence of a consciousness of guilt is generally circumstantial and should be more probative on the issue of ultimate guilt than prejudicial to the defendant. McCormick, Evidence § 271; see Fed.R. Evid. 403. If the judge finds that the proposed material is likely to lead a reasonable jury to infer the defendant's guilt without causing him substantial prejudice, then the judge may allow the jury to consider the evidence in reaching a verdict as to the charged offense. If, however, the inference as to ultimate guilt is weak and the circumstantial evidence merely tends to create in the minds of jurors the impression that the defendant is of questionable character and has a propensity for bad acts and probably acted accordingly on the charged occasion, then the evidence should be excluded.\nWe are not convinced that possession of a wire under the circumstances in this case is a \"substantial step\" toward making an escape. There are too many other possible reasons why Bedford could have been in possession of that wire. While we doubt that the wire would be a tool for intra-prison work activity, we do accept that its presence could lead the jury to other inferences about Bedford. The jury could consider it as a weapon and view Bedford as being violent, or could see defendant's possession of the wire as a breaking of rules. Consequently, it could view Bedford as a \"bad man\" for breaking such a rule.\nBecause the possession of the wire is so equivocal, we hold that its admission into evidence was more prejudicial to Bedford than probative of an intent to escape and should have been excluded. It was reversible error to admit this evidence.\nSince the judgment of the circuit court must be reversed, \"we deem it to be necessary and desirable for the guidance of the lower court and to avoid the expense and delay of another appeal to this Court\" to state our views on the remaining issues. Midgett v. State, 216 Md. 26, 38, 139 A.2d 209, 215 (1957); Maryland Rule 8-131(a).\n\nII\nBedford complained to the trial judge that he was not allowed to sit next to his counsel but was forced to sit some ten feet away flanked by two deputy sheriffs. Defense counsel attempted to preserve for the record the description of the seating arrangement at the time of trial and noted his objection thereto:\nDEFENSE COUNSEL: Just to make the record clear, we have in this room a table which is capable of seating three to four people on each side, and at least one person at either end; and what I am proposing is that, in lieu of the Court's instruction, to place the prospective juror at one end of the table, and that I would like to place my client next to me at the other end of the table, which is approximately eight to ten feet away from the prospective juror. My reason is that, number one, I feel that my client has a right to participate in any proceedings involving jury selection. This is a critical stage of the proceeding. Additionally, my client is clear across the room and seated between two deputies. It gives a prejudicial appearance of custody. It denies my client effective assistance of counsel by placing him out of the confidential communication range with me; and what this means is that either while we have every juror coming individually, I am going to have to get up, cross the room, go between two deputies, whisper in his ear if there is anything he wants me to do with regard to his own defense; I would take exception to any ruling that denies me access in a confidential manner to any client during any of these proceedings.\nThe trial judge then attempted to clarify the record and rectify the situation:\nTHE COURT: Perhaps the record should show, clear across the room is maybe ten or twelve feet, at the moment. Let me ask the deputy sheriff — there is a chair here next to this pillar, which would bring Mr. Bedford within perhaps six feet or so of Mr. McCampbell. Is there any problem, gentlemen, if Mr. Bedford sits there?\nRecord at Vol. II, pp. 2-3. There being no objection from the sheriff, Bedford was allowed to move.\nBedford argued that even this new arrangement was prejudicial since the distance placed between him and his counsel implied that Bedford potentially was dangerous even to his own attorney. The court responded to counsel's objection:\nTHE COURT: Your exception is noted. Your motion is denied.\nWe will place Mr. Bedford closer to you, and afford you, of course, the opportunity at any stage to simply move a few feet over and speak to Mr. Bedford.\nId. at 4.\nBefore analyzing the propriety of this jury selection procedure, we pause to review the nature of the voir dire examination itself. Voir dire, literally translated means \"to say the truth.\" Webster's Third New International Dictionary, 2562 (1st ed. 1981). Maryland Declaration of Rights Article XXI guarantees a defendant the right to examine prospective jurors to determine whether any cause exists for a juror's disqualification. Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1962). Pursuant to Maryland Rule 4-231 and the common law, the defendant has the right to be present during voir dire. Noble v. State, 293 Md. 549, 446 A.2d 844 (1982); Williams v. State, 292 Md. 201, 438 A.2d 1301 (1981); Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980); Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978); Midgett v. State, 216 Md. 26, 139 A.2d 209 (1958); LaGuardia v. State, 190 Md. 450, 58 A.2d 913 (1948). The voir dire procedure has as its sole focus the disqualification issue, and is not permitted for any other reasons. Adams v. State, 200 Md. 133, 140, 88 A.2d 556, 559 (1952).\nIn Maryland, no statute or rule exists specifically regulating how voir dire is to be conducted, and this Court has determined that the nature and extent of the procedure lies solely within the sound discretion of the trial judge. Langley v. State, 281 Md. 337, 341, 378 A.2d 1338, 1340 (1977) (quoting McGee v. State, 219 Md. 53, 58-59, 146 A.2d 194, 196 (1959)). Certain guidelines for the scope of voir dire, however, have developed through the years. In Corens v. State, 185 Md. 561, 45 A.2d 340 (1946), we reiterated the broad rule that:\nany circumstances which may reasonably be regarded as rendering a person unfit for jury service may be made the subject of questions and a challenge for cause. In other words, an examination of a prospective juror on his voir dire is proper as long as it is conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.\nId. at 564, 45 A.2d at 343 (emphasis added).\nFurther, we also have recognized that:\n... if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case. Otherwise, the right of trial by an impartial jury guaranteed to him ... might well be impaired....\nBrown v. State, 220 Md. 29, 35, 150 A.2d 895, 897-98 (1958) (quoting State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956)).\nStatutes delineating the order of events during voir dire vary. Some provide that the juror is to be sworn prior to being examined. Other statutes require that the juror shall be examined as is any other witness on a factual issue. 47 Am.Jur.2d Jury, § 196 (1969 and Supp. 1989). A common practice is to have each prospective juror led into the examination room individually. However, where it is shown that no prejudice will result, questions during voir dire may be propounded to Maryland jurors collectively, rather than separately. Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985) cert. denied, 478 U.S. 1010, 106 S.Ct. 3310, 92 L.Ed.2d 722 (1986). In fact, collective juror questioning long has been standard practice in Baltimore City. Connor v. State, 225 Md. 543, 549, 171 A.2d 699, 702 (1961).\nUnder the Maryland Rules relative to civil and criminal actions, the trial court itself may conduct the examination or may allow the parties to examine the jurors. If voir dire is conducted by the court, parties will be allowed to supplement the examination by further proposed questions. Md. Rules 2-512(d) and 4-312(d) as amended in 1984; See Hunt v. State, 12 Md. App. 286, 278 A.2d 637 (1971).\nThe law on the rights of the accused during the challenging phase of the trial is steeped in tradition. At the very least, the defendant must be allowed to be present at trial. This right includes the voir dire. United States v. Washington, 705 F.2d 489, 497 (D.C. Cir.1983). The Supreme Court long ago determined in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) that:\n[t]he prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors.\nId. at 578, 4 S.Ct. at 204, 28 L.Ed. at 265.\nThe right to be present during the challenging phase includes the \"substantial right[] of the prisoner to be brought face to face with the jurors at the time when the challenges [are] made.\" Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011, 1014 (1892) (emphasis added); accord Pointer v. United States, 151 U.S. 396, 406, 14 S.Ct. 410, 413-414, 38 L.Ed. 208, 213 (1894). In Lewis, the Supreme Court based the existence of this right on the fact that the defendant is in a unique position to determine who should sit on the jury to determine his fate.\nAs every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike.\nLewis, 146 U.S. at 376, 13 S.Ct. at 138, 36 L.Ed. at 1014.\nOther courts similarly have found that a defendant has the constitutional right not only to be present during voir dire, but also to have adequate opportunity to gain a good perception of the potential jurors. Thus, it is the defendant who should be given the opportunity to read the faces of his jurors. The United States Court of Appeals for the Fifth Circuit in Bailey v. United States, 53 F.2d 982 (5th Cir.1931), recognized:\nThe answers of prospective jurors as to such matters, which might have the effect of unduly influencing them, and their manner and demeanor while under examination, would do no more than furnish such evidence ... [enabling the defendant and counsel] to exercise intelligently the right of challenge, either for cause or peremptory.\nId. at 984 (emphasis added).\nThus, the defendant must be afforded every opportunity to \"size up\" his jury and to fully examine each juror so as to assist counsel in determining which jurors should be disqualified for cause or even for no cause at all. See Langley, 281 Md. at 343-44, 378 A.2d at 1340. The United States Court of Appeals for the Second Circuit in United States v. Crutcher, 405 F.2d 239 (2d Cir.), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1968), stated:\n[T]here is no way to assess the extent of the prejudice, if any, a defendant might suffer by not being able to advise his attorney during the impanelling of the jury.... [W]e can only speculate as to what suggestions [the defendant] might or might not have made, since it would be his prerogative to challenge a juror simply on the basis of the \"sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.\"\nId. at 244 (quoting Lewis v. United States, 146 U.S. at 376, 13 S.Ct. at 138, 36 L.Ed. at 1014).\nIn Bunch, we held that \"a defendant has the right to be personally present during a bench conference concerning the possible disqualification of the juror for bias.\" 281 Md. at 688, 381 A.2d at 1146. Being \"personally present\" implies more than just being in the courtroom. It also means that defendants should be provided \"an opportunity to exercise those privileges which their right to be present affords them.\" Id., 381 A.2d at 1146 (quoting People v. Medcoff, 344 Mich. 108, 117, 73 N.W.2d 537, 543 (1955)).\nExamining then Rule 724 and its predecessor Rule 775 (now Maryland Rule 4-231), the Bunch court concluded that the rule embodied the Supreme Court holding in Hopt that \"the defendant, being entitled to an impartial jury, may give aid to his counsel and the court in the selection of who should be on the jury.\" 281 Md. at 687, 381 A.2d at 1145.\nA later analysis of the Bunch decision in Wildermuth v. State, 310 Md. 496, 530 A.2d 275 (1987), emphasized that the rationale for our decision in Bunch was that the defendant had been denied a meaningful opportunity to participate in the jury selection process at the bench. Id. at 529, 530 A.2d at 291.\nThe ability to effectively participate is impaired when the defendant is so far removed that he cannot read the faces of the potential jurors. The judge here infringed on Bedford's right to be actively involved in the jury selection process and his right to assist counsel effectively. What is not clear is whether this infringement is sufficient to overturn the conviction. There is no evidence in the record that the jury needed to be shielded from Bedford, and there is no justification in the record for the judge's ruling.\nBedford argues that since he was not seated next to or even at the same table as his attorney, his ability to communicate confidentially with counsel was materially impaired. A defendant has the right to scrutinize the members to be considered for his jury, especially when they can determine if he lives or dies. Lewis, 146 U.S. at 376, 13 S.Ct. at 138, 36 L.Ed. at 1014. If for any reason the defendant disapproves of the selection of a particular juror, he should be able to communicate this fact to his counsel without the likelihood of stimulating any negative reaction. Here, however, that free-flowing communication between attorney and client was obstructed.\nConcededly, communication with counsel was not completely shut off, but it was unquestionably hampered and undermined. While a trial judge has broad discretion in conducting voir dire, absent an articulated and legally sufficient reason, a judge should not deprive the defendant of the right to sit beside his counsel and freely communicate confidentially with him nor should the defendant's right to scrutinize potential jurors be denied.\nClearly, the manner in which the voir dire was conducted in this case leaves a lot to be desired. In view of the fact that we shall reverse on the first issue, however, we do not have to decide whether the voir dire constituted reversible error.\n\nIII\nThe remaining issue arose when the trial court admitted into evidence nine color photographs of the victim's body. Counsel objected to both the number of photographs and to the fact that they were in color. Four of the pictures showed the scene of the crime and the full body of the victim from four different angles. Photo number five showed the injuries to the victim's hand and the marks on her arms caused by being bound with bedroom curtains. The four remaining pictures were close-up photographs of the victim's head, showing her head injuries from four different angles. The trial judge examined the photos in light of the State's purposes for offering them, and determined that the pictures were not duplicative, nor improperly prejudicial to Bedford.\nThe admissibility of photographs under this state's law is determined by a balancing of the probative value against the potential for improper prejudice to the defendant. Mills v. State, 310 Md. 33, 43, 527 A.2d 3, 7 (1987), vacated on other grounds, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). This balancing is committed to the trial judge's sound discretion. Johnson v. State, 303 Md. 487, 495 A.2d 1 (1985). In Johnson, we reiterated that:\nWe have consistently held that whether or not a photograph is of practical value in a case and admissible at trial is a matter best left to the sound discretion of the trial judge.... A court's determination in this area will not be disturbed unless plainly arbitrary.... Under this standard, we have permitted the reception into evidence of photographs depicting the condition of the victim and the location of injuries of the victim's body at the murder site, ...; and the wounds of the victim.\nId. at 502, 495 A.2d at 8 (citations omitted). Johnson argued, as does Bedford here, that certain photographs were cumulative proof of previously adduced evidence. In deferring to the trial judge's determination as to admissibility and probativeness, we responded that \"all photographic evidence is in some sense cumulative. The very purpose of photographic evidence is to clarify and communicate facts to the tribunal more accurately than by mere words.\" Id. at 503-04, 495 A.2d at 9.\nIn Smith v. State, 182 Md. 176, 32 A.2d 863 (1943) we stated that photographs also must be \"shown by competent extrinsic evidence to be true representations of the scene or object which they purport to represent at the time when the appearance of such scene or object is relevant to the inquiry in connection with which the photographs are offered....\" Id. at 187-88, 32 A.2d at 868. The trial judge's decision usually will not be questioned unless the admission was \"likely to so distort the jury's deliberations that its admission was `plainly arbitrary.' \" Mills v. State, 310 Md. at 44, 527 A.2d at 8.\nBedford argues that the admitted photographs were irrelevant to the only issue contested, that of criminal agency. He points out that the pictures did not corroborate or discredit any element of the defendant's or the State's case, and merely established what happened, not who committed the crime. Citing several Pennsylvania and Maine opinions, Bedford alleges that where a photograph has only minimal significance, and no essential evidentiary value, the trial judge should be more inclined to exclude it if it is inflammatory. Nonetheless, we have not adopted such a test and require only that the trial judge not abuse his discretion. Using this accepted standard of review, we cannot find that the trial judge here failed to engage in a reasoned balancing process or that the disputed photographs were likely to distort the jury's deliberations. Accordingly, we find that the photographs were properly admitted.\n\nIV\nBecause we do not regard the possession of the wire as a substantial step toward an escape and because Bedford's possession of the wire is subject to interpretations both consistent and inconsistent with his innocence, we think it equivocal and highly prejudicial. It should not have been admitted as evidence. Bedford is, therefore, entitled to a new trial.\nJUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR A NEW TRIAL. BALTIMORE COUNTY TO PAY THE COSTS.\nNOTES\n[1] We shall not address another question raised by Bedford: whether the testimony of the victim's daughter at trial was improperly admitted because it went to the impact of the crime upon her. Counsel for the State and Bedford have agreed that the death sentence must be vacated and a new sentencing hearing conducted under Article 27, § 413, since victim impact evidence was admitted over objection. See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).\n[2] Bedford subsequently was charged and convicted of the May attempted escape. The Court of Special Appeals affirmed the conviction in an unreported opinion.\n\n", "ocr": false, "opinion_id": 2002660 } ]

[ "2014 Ohio 2173" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/1/2014/2014-ohio-2173.pdf", "author_id": null, "opinion_text": " [Cite as Lockland v. Plotsker, 2014-Ohio-2173.]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n\nVILLAGE OF LOCKLAND, : APPEAL NO. C-130563\n TRIAL NO. M-13TRD-31376\n Plaintiff-Appellee, :\n O P I N I O N.\n vs. :\n\nPAUL PLOTSKER, :\n\n Defendant-Appellant. :\n\n\n\n\nCriminal Appeal From: Hamilton County Municipal Court\n\nJudgment Appealed From Is: Affirmed\n\nDate of Judgment Entry on Appeal: May 23, 2014\n\n\nGerald R. Grubbs, for Plaintiff-Appellee,\n\nPaul Plotsker, pro se.\n\n\n\n\nPlease note: this case has been removed from the accelerated calendar.\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n\nD E W INE , Judge.\n\n {¶1} Paul Plotsker hired an attorney to fight a speeding ticket. He lost. He\n\nappeals, arguing that his constitutional right to counsel was violated because his\n\nattorney was ineffective. But there is no constitutional right to counsel for a minor\n\nmisdemeanor speeding violation. So, we affirm.\n\n {¶2} The facts of the alleged offense are straightforward. Officer Anthony\n\nFocke clocked Mr. Plotsker driving 70 m.p.h. in a designated 55-m.p.h. zone. Officer\n\nFocke ticketed Mr. Plotsker, who entered a not guilty plea in the Lockland Mayor’s\n\nCourt. Mr. Plotsker, a licensed attorney, represented himself in the mayor’s court, and\n\nwas found guilty. He appealed to the Hamilton Municipal Court. This time, he was\n\nrepresented by counsel. The trial court found him guilty and fined him accordingly.\n\n {¶3} In his sole assignment of error, Mr. Plotsker asserts that he was deprived\n\nof a fair trial because his counsel provided ineffective assistance. As Mr. Plotsker tells it,\n\nhe had asked his trial counsel to question Officer Focke extensively about Lockland’s\n\nalleged ticketing quota, but his counsel did not. We question whether examination\n\nabout ticketing quotas would have been germane to the issue of whether Mr. Plotsker\n\nexceeded the speed limit, but we do not reach the issue. Rather, we overrule Mr.\n\nPlotsker’s assignment of error because he did not have a constitutional right to effective\n\ncounsel.\n\n {¶4} The right to effective counsel is derived from the right to counsel\n\nconferred by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 686, 104\n\nS.Ct. 2052, 80 L.Ed.2d 674 (1984), citing McMann v. Richardson, 397 U.S. 759, 771,\n\nfn. 14, 90 S.Ct. 1441, 25 L.Ed.2d 73 (1970). A defendant is “not constitutionally\n\nentitled to appointed counsel for a minor misdemeanor case where the sentence\n\n\n\n\n 2\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nupon conviction cannot and does not result in the imposition of jail time.” State v.\n\nWilliams, 2d Dist. Greene No. 2011CA18, 2012-Ohio-725, ¶ 14, citing Scott v. Illinois,\n\n440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), and State v. Brandon, 45 Ohio\n\nSt.3d 85, 543 N.E.2d 501 (1989). If a defendant does not have the right to counsel,\n\nhe does not have the associated right to effective counsel. Thus, in Wainwright v.\n\nTorna, 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), the United\n\nStates Supreme Court held that a defendant may not raise ineffective assistance of\n\ncounsel where he has no constitutional right to counsel. See State v. Carter, 93 Ohio\n\nSt.3d 581, 757 N.E.2d 362 (2001) (where defendant had no constitutional right to\n\ncounsel to pursue an appeal, he could not be unconstitutionally deprived of the\n\neffective assistance of counsel).\n\n {¶5} Mr. Plotsker was cited for speeding, which is a minor misdemeanor\n\npunishable by only a fine. Because he was not subject to imprisonment, Mr. Plotsker\n\ndid not have the benefit of the Sixth Amendment’s right to effective counsel. The\n\nsole assignment of error is overruled, and we affirm the judgment of the trial court.\n\n Judgment affirmed.\n\nH ENDON , P.J., and D INKELACKER , J., concur.\n\n\nPlease note:\n\n The court has recorded its own entry on the date of the release of this opinion.\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 2692136 } ]

[ "741 So. 2d 14" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4583, "opinion_text": "\n741 So. 2d 14 (1999)\nAaron K. FOSTER\nv.\nCONSOLIDATED EMPLOYMENT SYSTEMS, INC., Billy Smith and ABC Insurance Company.\nNo. 99-C-0523.\nSupreme Court of Louisiana.\nApril 30, 1999.\nDenied on showing.\nJOHNSON, J. not on panel.\n", "ocr": false, "opinion_id": 1095303 } ]

[ "2012 Ohio 302" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 17, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/9/2012/2012-ohio-302.pdf", "author_id": 8047, "opinion_text": "[Cite as In re L.F., 2012-Ohio-302.]\n\n\nSTATE OF OHIO ) IN THE COURT OF APPEALS\n )ss: NINTH JUDICIAL DISTRICT\nCOUNTY OF LORAIN )\n\nIN RE: L.F. C.A. No. 10CA09880\n\n\n\n APPEAL FROM JUDGMENT\n ENTERED IN THE\n COURT OF COMMON PLEAS\n COUNTY OF LORAIN, OHIO\n CASE No. 09JD25789\n\n DECISION AND JOURNAL ENTRY\n\nDated: January 30, 2012\n\n\n\n BELFANCE, Presiding Judge.\n\n {¶1} Appellant, L.F., appeals from a judgment of the Lorain County Court of Common\n\nPleas, Juvenile Division, that adjudicated him a delinquent child for committing two counts of\n\ngross sexual imposition pursuant to R.C. 2907.05(A)(4). For the reasons set forth below, we\n\nreverse and remand the judgment of the trial court.\n\n I.\n\n {¶2} During early January 2009, Z.F., then nine years old, was playing a computer\n\ngame with his father and older half-brother, when the father reminisced about when he had\n\npunished the older child for accessing pornographic websites on the family’s computer. The\n\nfather explained that he had been able to trace the boy’s internet activity on the computer\n\nbecause each computer records a history of the websites it accesses. Immediately after that\n\ndiscussion, Z.F. told his father about an incident that he remembered from the prior summer\n\f 2\n\n\nduring which two of his cousins, eight-year-old J.F. and fifteen-year-old L.F.,1 were viewing a\n\npornographic website and “sucking wieners.” After his father asked him if anything else had\n\nhappened, Z.F. further disclosed that L.F. had him sit on his lap while L.F. had his pants off.\n\nZ.F.’s mother immediately contacted Lorain County Children Services and J.F.’s mother.\n\n {¶3} The next day, Z.F. and J.F. were separately interviewed by a children services\n\ncaseworker, with some follow-up questioning by a police detective who sat in the room during\n\neach interview. Aside from Z.F. and J.F. each stating that the three cousins went with a laptop\n\ncomputer to J.F.’s bedroom, where L.F. pulled up a pornographic website, the statements of Z.F.\n\nand J.F. varied sharply about anything else that happened in the room. Specifically, each child\n\nrecounted entirely different versions of where L.F. touched each of them. Despite the\n\ninconsistencies in the witnesses’ statements, the Lorain County Prosecutor’s Office later filed a\n\ncomplaint, alleging that L.F. was a delinquent child because he committed acts against Z.F. and\n\nJ.F. that would constitute gross sexual imposition if committed by an adult. The matter\n\nproceeded to an adjudicatory hearing.\n\n {¶4} When Z.F. and J.F. testified at the adjudicatory hearing, they continued to\n\ncontradict each other and each boy detailed the incident differently than he had before,\n\ncontradicted himself as he testified, and responded to numerous questions with the answer, “I\n\ndon’t know.” Neither witness neither explained the sequence of events in J.F.’s bedroom, nor\n\ndid either testify about what L.F. said or how he behaved before, during, or after the alleged\n\nincidents. Nevertheless, the trial court found that L.F. had committed two counts of gross sexual\n\nimposition by having sexual contact with Z.F. and J.F.\n\n\n\n\n 1\n J.F. and Z.F. are first cousins; L.F. is their first cousin, once removed.\n\f 3\n\n\n {¶5} Pursuant to Juv.R. 29(F)(3), L.F. requested written findings of fact and\n\nconclusions of law, which the trial judge later issued. Through its findings of fact and\n\nconclusions of law, the trial judge implicitly indicated that he did not believe the statements or\n\ntestimony about L.F. “sucking [J.F.’s] wiener,” but he did believe other statements and testimony\n\nof Z.F. and J.F. that L.F. took J.F.’s hand by the wrist and forced him to touch L.F.’s penis and\n\nthat L.F. touched his penis to J.F.’s buttocks and Z.F.’s leg. L.F. appeals and raises two\n\nassignments of error.\n\n II.\n\n ASSIGNMENT OF ERROR I\n\n THE TRIAL COURT VIOLATED L.F.’S RIGHT TO DUE PROCESS UNDER\n THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED\n STATES CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO\n CONSTITUTION, AND JUV.R. 29(E)(4) WHEN IT ADJUDICATED L.F.\n DELINQUENT OF GROSS SEXUAL IMPOSITION ABSENT PROOF OF\n EVERY ELEMENT OF THE CHARGE AGAINST HIM BY SUFFICIENT,\n COMPETENT, AND CREDIBLE EVIDENCE.\n\n {¶6} L.F.’s first assignment of error challenges the sufficiency of evidence supporting\n\nhis delinquency adjudication. Although juvenile delinquency cases are technically civil in\n\nnature, this Court applies the same sufficiency and manifest weight standards of review in a\n\njuvenile delinquency case that it applies in an adult criminal appeal due to the “‘inherently\n\ncriminal aspects’ of delinquency proceedings * * *.” In re Z.B., 9th Dist. No. 09CA0039-M,\n\n2010-Ohio-1345, ¶ 6; In re R.D.U., 9th Dist. No. 24225, 2008-Ohio-6131, ¶ 6.\n\n {¶7} Although L.F.’s argument focuses primarily on contradictions between the\n\ntestimony of Z.F. and J.F. and challenges their credibility as witnesses against him, this Court’s\n\nsufficiency review does not allow us to assess “whether the state’s evidence is to be believed,”\n\nbut instead requires us to determine “whether, if believed, the evidence against a defendant\n\f 4\n\n\nwould support a [delinquency adjudication].” State v. Thompkins, 78 Ohio St. 3d 380, 390\n\n(Cook, J., concurring). The relevant inquiry is whether, after viewing the evidence in a light\n\nmost favorable to the State, any rational trier of fact could have found the essential elements of\n\nthe crime proven beyond a reasonable doubt. In re M.M., 6th Dist. Nos. L-10-1267, L-10-1309,\n\nand L-10-1310, 2011-Ohio-2962, ¶ 17, citing Thompkins at 386 (1997). This Court conducts its\n\nsufficiency review de novo. State v. Williams, 9th Dist. No. 24731, 2009-Ohio-6955, ¶ 18, citing\n\nThompkins at 386.\n\n {¶8} L.F. was adjudicated delinquent based on two counts of violating R.C.\n\n2907.05(A)(4), which provides that “[n]o person shall have sexual contact with another [or] * * *\n\ncause another * * * to have sexual contact with the offender * * * when * * * [t]he other person *\n\n* * is less than thirteen years of age[.]” R.C. 2907.01(B) defines “sexual contact” as “any\n\ntouching of an erogenous zone of another, including without limitation the thigh, genitals, [or]\n\nbuttock * * * for the purpose of sexually arousing or gratifying either person.”\n\n {¶9} The evidence before the trial court consisted of the testimony of J.F. and Z.F and\n\nthe statements that they made to others. Through their prior statements and testimony at the\n\nhearing, J.F. and Z.F. stated that L.F. had committed several acts of inappropriately touching\n\nthem, including that L.F. had exposed his penis and forced J.F. to touch it with his hand, touched\n\nhis penis to the outside of J.F.’s jeans on his buttocks, and touched Z.F.’s pants with his exposed\n\npenis. Also, J.F.’s testimony on cross-examination and Z.F.’s prior statements included brief\n\nallegations that L.F. had performed fellatio on J.F.\n\n {¶10} Because the State presented evidence that L.F. had touched each boy with his\n\nexposed penis or required them to touch his penis, there was sufficient evidence that he\n\ncommitted the requisite touching to constitute two acts of sexual contact because he caused each\n\f 5\n\n\nof them to touch his genitals, an erogenous zone explicitly identified in R.C. 2907.01(B). R.C.\n\n2907.05(A)(4). The State was also required to demonstrate that L.F. committed the acts of\n\ntouching “for the purpose of sexually arousing or gratifying either person.” R.C. 2907.01(B).\n\nThis Court has held that the trier of fact must infer from the evidence whether the defendant’s\n\npurpose in touching the victim was to achieve sexual arousal or gratification of either person. In\n\nre A.L., 12th Dist. No. CA2005-12-520, 2006-Ohio-4329, ¶ 19, quoting State v. Cobb, 81 Ohio\n\nApp.3d 179, 185 (9th Dist.1991). “In making its decision the trier of fact may consider the type,\n\nnature and circumstances of the contact, along with the personality of the defendant.” Cobb at\n\n185. Accord In re Anderson, 116 Ohio App. 3d 441, 444 (12th Dist.1996).\n\n {¶11} Because each child gave only a vague and brief description of what transpired\n\ninside J.F.’s bedroom that summer afternoon, the evidence before the trial court consisted almost\n\nexclusively of L.F.’s acts of inappropriate touching, as neither child elaborated about anything\n\nelse that L.F. said or did before, during, or after the alleged acts. Nonetheless, the totality of the\n\nacts themselves created an inference that L.F. touched his cousins for the purpose of sexual\n\narousal or gratification, as the evidence included testimony of J.F. and the prior statement of Z.F.\n\nthat L.F. performed fellatio on J.F.\n\n {¶12} The act of fellatio is more serious than an act of “sexual contact,” as it falls within\n\nthe definition of “[s]exual conduct” under R.C. 2907.01(A) and the crime of rape under R.C.\n\n2907.02. Because acts of sexual conduct are explicitly sexual in nature, “the definitions of\n\nsexual conduct in R.C. 2907.01(A) necessarily imply that the actor’s motive is sexual\n\ngratification, and so no further proof of sexual gratification is required when sexual conduct is\n\nproved.” State v. Gillingham, 2nd Dist. No. 20671, 2006-Ohio-5758, ¶ 31. Accord In re Amos,\n\n3rd Dist. No. 3-04-07, 2004-Ohio-7037, ¶ 10 (a purpose of sexual arousal or gratification could\n\f 6\n\n\nbe inferred for purposes of satisfying the definition of “sexual contact” because the conduct\n\nsatisfied the more serious act of “sexual conduct”); State ex rel. Montgomery v. Pakrats\n\nMotorcycle Club, Inc., 118 Ohio App. 3d 458, 464 (9th Dist.1997) (emphasizing that the very\n\nnature of sexual conduct implies sexual arousal and gratification).\n\n {¶13} The victims’ statements about L.F. performing fellatio on J.F. created an\n\ninference that he committed that act for the purpose of his own sexual arousal or gratification.\n\nAs there was also evidence that the sequence of events included the additional acts of L.F.\n\nrequiring J.F. and Z.F. to touch his penis, it can be inferred from the totality of the evidence that\n\nL.F. committed those acts for the same purpose. Consequently, L.F.’s adjudication of\n\ndelinquency for committing two counts of gross sexual imposition was supported by sufficient\n\nevidence. The first assignment of error is overruled.\n\n ASSIGNMENT OF ERROR II\n\n THE TRIAL COURT VIOLATED L.F.’S RIGHT TO DUE PROCESS WHEN\n IT ADJUDICATED HIM DELINQUENT OF GROSS SEXUAL IMPOSITION\n WHEN THOSE FINDINGS WERE AGAINST THE MANIFEST WEIGHT OF\n THE EVIDENCE.\n\n {¶14} L.F.’s second assignment of error is that his adjudication was against the manifest\n\nweight of the evidence. In reviewing a challenge to the manifest weight of the evidence, this\n\nCourt:\n\n must review the entire record, weigh the evidence and all reasonable inferences,\n consider the credibility of witnesses and determine whether, in resolving conflicts\n in the evidence, the trier of fact clearly lost its way and created such a manifest\n miscarriage of justice that the conviction must be reversed and a new trial\n ordered.\n\nState v. Otten, 33 Ohio App. 3d 339, 340 (1986). When reversing a judgment on the basis that it\n\nwas against the manifest weight of the evidence, “the appellate court sits as a ‘thirteenth juror,’\n\nand disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins, 78 Ohio\n\f 7\n\n\nSt.3d at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). “The discretionary power to\n\ngrant a new trial should be exercised only in the exceptional case in which the evidence weighs\n\nheavily against the conviction.” State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).\n\n {¶15} In State v. Mattison, 23 Ohio App. 3d 10 (8th Dist.1985), the court noted several\n\nfactors to be considered when determining whether a conviction is against the manifest weight of\n\nthe evidence. Those factors include whether the evidence was uncontradicted, whether a witness\n\nwas impeached, what was not proved, that the reviewing court is not required to accept the\n\nincredible as true, the certainty of the evidence, the reliability of the evidence, and whether the\n\nevidence is vague, uncertain, conflicting, or fragmentary. Accord State v. Apanovitch, 33 Ohio\n\nSt.3d 19, 23-24 (1987) (citing the factors with apparent approval).\n\n {¶16} L.F. was adjudicated delinquent for committing two counts of gross sexual\n\nimposition under R.C. 2907.05(A)(4), one against Z.F. and one against J.F., each of whom was\n\nunder the age of thirteen at the time of the alleged offenses. L.F. does not dispute that the\n\nevidence established that each of the alleged victims was under the age of thirteen during the\n\nsummer of 2008. To prove each violation of R.C. 2907.05(A)(4), the State was also required to\n\nprove that L.F. had sexual contact with the alleged victim, or required the child to have sexual\n\ncontact with him. R.C. 2907.01(B) defines “sexual contact” as “any touching of an erogenous\n\nzone of another * * * for the purpose of sexually arousing or gratifying either person.”\n\n {¶17} L.F. argues that the trial court’s adjudication was against the manifest weight of\n\nthe evidence because of the sharp contradictions between the statements and testimony of each\n\nalleged victim, the fact that each child gave incomplete information and even contradicted\n\nhimself while testifying, and that their allegations were unreliable due to the circumstances under\n\nwhich Z.F.’s initial disclosure arose and the improper techniques that were used by the\n\f 8\n\n\ncaseworker and police detective to interview each child. Essentially, L.F. argues that there were\n\nso many problems with the statements and testimony of the alleged victims that the trial court, as\n\ntrier of fact, created a manifest miscarriage of justice by finding that L.F. had committed gross\n\nsexual imposition against each alleged victim. We agree.\n\n CONTRADICTIONS AND INCONSISTENCIES\n\n {¶18} The State attempted to prove that L.F. committed one act of gross sexual\n\nimposition against each child, Z.F. and J.F. The evidence of the alleged acts committed by L.F.\n\ncame solely from the statements and testimony of the two alleged victims. Their testimony and\n\nstatements were far from “uncontradicted,” however. In fact, there was no consistency between\n\nthe recollections of the two witnesses as to what L.F. did to either of them. The contradictions\n\nand inconsistencies in the witnesses’ statements and testimony are most apparent by addressing\n\nthe two counts separately.\n\n Count (1) Gross Sexual Imposition of Z.F.\n\n {¶19} Although both Z.F. and J.F. were in the room with L.F. at the same time, the only\n\nevidence that L.F. committed an offense of gross sexual imposition against Z.F. came through\n\nthe statements and testimony of Z.F., who repeatedly contradicted himself.\n\n Z.F.’s statements and testimony\n\n {¶20} The evidence began with Z.F.’s initial disclosure to his parents, which was\n\npresented through the testimony of his father. Z.F.’s father testified that, on January 5, 2009, he\n\nwas playing a computer game with Z.F. and his older half-brother, D., when the father began\n\nreminiscing about when D. had been punished for visiting a pornographic website on the family\n\ncomputer. Because D. was the only one who used the family computer at that time and the father\n\f 9\n\n\nwas able to check the computer’s internet history to determine what websites had been visited,\n\nthe father confronted D., who admitted that he had viewed pornography.\n\n {¶21} Almost immediately after that conversation, while his father had stepped out of\n\nthe room, Z.F. apparently became upset and made a disclosure to his mother, who became so\n\nconcerned that she called the father back into the room. Z.F. then disclosed to his father that L.F.\n\nhad been “sucking wieners” with J.F. After his father continued to question him, Z.F. further\n\ndisclosed that L.F. “made me sit on his lap and [L.F.] didn’t have any pants on.”\n\n {¶22} The next day, when Z.F. was interviewed by the caseworker and police detective,\n\nhe made the following statements about L.F. touching him. When the three cousins went into\n\nJ.F.’s bedroom, J.F. told L.F. to turn on the pornography, and J.F. and L.F. watched the\n\npornography, but Z.F. did not. Z.F. said that he thought that they were going into J.F.’s bedroom\n\nto play video games. While the pornography was playing on the laptop computer, L.F. asked\n\nZ.F. to sit on his lap. When Z.F. got on L.F.’s lap, he saw that L.F.’s “wiener was there,” so he\n\njumped off. Although Z.F. had stated earlier that he and L.F. both had all of their clothes on, the\n\ncaseworker did not ask Z.F. what he meant by L.F.’s wiener being “there.” Instead, she\n\nimmediately concluded that L.F. must have had his penis “out” and redirected the remainder of\n\nher questioning accordingly. Z.F. gave no further details about what L.F. did to him and did not\n\nstate that L.F.’s penis touched him.\n\n {¶23} At the adjudicatory hearing, Z.F. testified that he went to the other side of J.F.’s\n\nbedroom when L.F. turned on the pornography because he did not want to watch it. After L.F.\n\ntried to touch J.F. with his “wiener” outside his clothing, L.F. called Z.F. over to sit on his lap\n\nand Z.F. complied, even though he had just observed what happened to J.F. Although Z.F.\n\nclaimed to have just seen L.F.’s “wiener” outside his clothing, he testified that when he got on\n\f 10\n\n\nL.F.’s lap, he was surprised to see that L.F’s “wiener” was outside his clothing, so he jumped off.\n\nZ.F. testified that L.F.’s “wiener” touched his pants, but he could not recall where on his pants it\n\ntouched him. When asked to explain where he sat on L.F.’s lap or to describe L.F.’s “wiener,”\n\nZ.F. was unable to do so.\n\n J.F.’s statements and testimony\n\n {¶24} J.F., on the other hand, consistently maintained that L.F. never touched Z.F.\n\nWhen J.F. was interviewed by the caseworker, he did not mention anything about L.F. touching\n\nZ.F., even though he was asked repeatedly about what had happened in the room. Similarly, at\n\nthe adjudicatory hearing, J.F. testified that he and Z.F. were in his bedroom with L.F. at the same\n\ntime, but that he did not see L.F. do anything to Z.F. J.F. testified that Z.F. was lying or jumping\n\non J.F.’s bed on the other side of the room the entire time that the three cousins were in the room.\n\n Count (2) Gross Sexual Imposition of J.F.\n\n {¶25} The evidence that L.F. committed the offense of gross sexual imposition against\n\nJ.F. consisted of the statements and testimony of both Z.F. and J.F., but each witness sharply\n\ndisputed the other about where L.F. touched J.F. Moreover, their recollections of the incident\n\nchanged each time they were questioned.\n\n Z.F.’s statements and testimony\n\n {¶26} The evidence about L.F. touching J.F. again began with Z.F.’s initial disclosure to\n\nhis father and was presented through the testimony of Z.F.’s father. Z.F. told his father that,\n\nwhile in J.F.’s bedroom watching pornography, L.F. and J.F. had been “sucking wieners.” When\n\nasked what else Z.F. disclosed to him about the crime against J.F., Z.F.’s father testified, without\n\nany further details, “everything that happened to [J.F.]”\n\f 11\n\n\n {¶27} At the beginning of Z.F.’s interview the day after the initial disclosure, the\n\ncaseworker asked him if he knew that she was interviewing him because someone said that\n\nsomething happened to J.F. Z.F. meekly responded that L.F. was “sucking [J.F.’s] wiener.”\n\nDuring the remainder of his interview, however. Z.F. did not mention that act again. Instead,\n\nwhen directly asked to tell what L.F. was doing in the room, Z.F. stated that L.F. tried to put his\n\n“wiener” up J.F.’s “butt,” that J.F. said, “no” and “it stings.” Z.F. gave no further details about\n\nL.F. touching J.F. and stated that all three boys had their pants on.\n\n {¶28} At the adjudicatory hearing, Z.F. did not refer to an act of fellatio. Instead, he\n\ntestified that he went over to the other side of the room after L.F. pulled up the pornographic\n\nwebsite. Z.F. testified that he did not watch the pornography or what L.F. and J.F. were doing,\n\nbut that he “saw a little bit.” Z.F. testified that, from the other side of the room, he saw L.F. “put\n\nhis wiener up [J.F.’s] butt.” Z.F. initially testified that L.F. and J.F. were on the chair, but later\n\nstated that they were both standing up near the chair when the offense occurred. Z.F.’s\n\ntestimony went back and forth between whether L.F. had his pants on, off, or pulled down when\n\nhe tried to touch J.F. with his penis.\n\n J.F.’s statements and testimony\n\n {¶29} On the other hand, J.F., the one who was closer to L.F. and allegedly touched by\n\nhim, consistently maintained that, although L.F. had “tried” to touch his penis to J.F.’s buttocks,\n\nL.F. never actually made contact. Instead, the act of touching alleged by J.F. was that L.F. took\n\nJ.F.’s hand by the wrist and forced him to touch L.F.’s penis.\n\n {¶30} During J.F.’s initial interview, when the caseworker asked him to tell what\n\nhappened at his house, J.F. said that L.F. took his hand and made him touch L.F.’s “nasty thing,”\n\nwhich J.F. indicated on an anatomical drawing was L.F.’s penis. J.F. further told her that L.F.\n\f 12\n\n\ntried to put his face “down there” and that L.F. tried to touch J.F.’s backside with his “nasty\n\nthing.” J.F. later stated that L.F. had his pants off and shirt on and that J.F.’s own clothes\n\nremained on the entire time. J.F. insisted that nothing else happened to him.\n\n {¶31} At the adjudicatory hearing, J.F. testified that L.F. was sitting in a chair when he\n\npulled up the pornographic website. When L.F. called J.F. over to the chair, L.F. stood up and\n\nleft the laptop computer resting on the armrest of the chair. L.F. then tried to pull J.F.’s pants\n\ndown, but did not, tried to make J.F. suck his “pee-pee,” and took J.F.’s hand by the wrist and\n\nforced him to touch L.F.’s “pee-pee.” Although J.F. later testified that L.F. tried to touch J.F.’s\n\nbuttocks with his “pee-pee,” J.F. consistently testified that L.F.’s penis never actually touched his\n\nbuttocks.\n\n {¶32} Although J.F. did not mention an act of fellatio during his direct testimony, on\n\ncross-examination, defense counsel asked him whether L.F. had “sucked his wiener” and J.F.\n\nresponded, “Uh (pause) yeah.” Nonetheless, J.F. repeatedly testified that his own clothes\n\nremained on the entire time.\n\n {¶33} Defense counsel also showed a video recording of the furnishings in J.F.’s\n\nbedroom, which depicted the chair in the bedroom with wooden armrests that were only a few\n\ninches wide. Counsel attempted to demonstrate the unlikelihood that L.F. could have balanced\n\nthe laptop computer on the armrest of that chair while he got up, pulled down his pants, tried to\n\npull down J.F.’s pants, forced J.F. to touch him, and tried to touch his “pee-pee” to J.F.’s\n\nbuttocks.\n\n VAGUENESS OF THE EVIDENCE\n\n {¶34} In addition to the sharp discrepancies between the recollections of Z.F. and J.F. as\n\nto how, if at all, L.F. touched each of them, neither child was able to remember anything about\n\f 13\n\n\nthe circumstances surrounding the alleged touching. Aside from explaining that the three boys\n\ncame into J.F.’s bedroom and L.F. pulled up pornography on the laptop computer, their\n\ndescription of the events lacked any detail about how long the pornography was playing, how\n\nL.F. or any of them reacted to it, how long any of them was in the room, or anything that L.F.\n\nsaid to them or they said to him or each other before, during, or after the alleged incidents.\n\n CIRCUMSTANCES SURROUNDING THEIR DISCLOSURES\n\n {¶35} The reliability of each child’s allegations was further called into question by the\n\ncircumstances surrounding their initial disclosures. Z.F.’s initial disclosure arose immediately\n\nafter his father told him about punishing his older half-brother for viewing pornography and\n\nexplained to him that one cannot conceal a visit to a pornographic website because each\n\ncomputer stores a history of the internet sites it accesses. When Z.F. and J.F. were initially\n\nquestioned, each insisted that he had not watched the pornography when L.F. pulled up the\n\nwebsite, but Z.F. stated that J.F. had watched it and he thought that J.F. had done so before. J.F.\n\nalso initially testified that he did not watch the pornography, but, when cross-examined with\n\nZ.F.’s prior statement, admitted that he had. Z.F.’s father testified that Z.F. spent a lot of\n\nunsupervised time on the computer and that he would be upset if he learned that Z.F. had looked\n\nat a pornographic website.\n\n {¶36} There was also evidence that Z.F.’s older half-brother, D., had been the victim of\n\na sexual molestation by an adult male approximately six years earlier. Although Z.F. denied ever\n\ntalking to his half-brother about the incident, defense counsel presented evidence that there were\n\ndetails about the molester posted on the public MySpace page of Z.F.’s father. Although Z.F.’s\n\nfather denied posting anything on the MySpace page, he conceded that it was posted there for\n\f 14\n\n\npublic viewing because L.F.’s attorney had been able to access it and some of the father’s own\n\nfriends had seen the page and commented about it.\n\n {¶37} Defense counsel also called an expert witness to challenge the reliability of the\n\nstatements Z.F. and J.F. made during their interviews by the caseworker and police detective. A\n\nforensic psychologist testified about the proper techniques to use when interviewing children\n\nabout allegations of sexual abuse. He emphasized that, because a report about child sexual abuse\n\ntypically comes from the child himself, it is critical that the interviewer be trained to question the\n\nalleged victim using an accepted protocol, to avoid contaminating the veracity of the child’s\n\ndisclosures. He emphasized that, before questioning the child about the alleged incident, the\n\ninterviewer must first determine the intelligence and developmental level of the child, his prior\n\nrelationship with the alleged perpetrator, his prior exposure to sexual material, and what prior\n\ndisclosures he has made about the alleged incident. As the interview focuses on the alleged\n\nincident, the interviewer must avoid using leading questions, being too quick to refer to\n\nanatomical drawings or dolls, or otherwise inserting new information into the interview. For\n\nexample, he explained that the interviewer should not paraphrase what the child said by using\n\ndifferent words, because changing the child’s words increases the risk that new, false\n\ninformation will be inserted into the interview.\n\n {¶38} After reviewing the video recordings of the interviews of Z.F. and J.F., the expert\n\nnoted several examples of how the caseworker did not follow the proper interview protocol,\n\nwhich may have compromised the veracity of each child’s initial statement. To begin with, the\n\ncaseworker did no preliminary questioning of either child to determine his intelligence or\n\ndevelopmental level, his prior exposure to sexual material, his prior relationship with L.F., or his\n\nprior discussions with others about the alleged incidents.\n\f 15\n\n\n {¶39} Moreover, the defense expert explained how the caseworker failed to follow\n\nproper protocol while questioning each child about the alleged incidents. For example, while\n\nquestioning Z.F., after he stated that he jumped off L.F.’s lap when he saw that L.F.’s “wiener\n\nwas there,” the caseworker immediately substituted the word “out” for “there” during the\n\nremainder of the questioning. The expert explained that the caseworker changed the meaning of\n\nZ.F.’s actual statement and inserted new, potentially false, information into the interview. The\n\nexpert pointed to further examples of the caseworker compromising the veracity of each child’s\n\nstatement by paraphrasing their answers or jumping to conclusions about the meaning of what\n\nthey said, by using leading questions, and by using other questions that were too vague to elicit\n\naccurate information from children their age.\n\n {¶40} The forensic expert further testified that, during the interview of J.F., the\n\ncaseworker introduced anatomical drawings “way too earl[y]” which “can have a major\n\nsuggestive effect on children.” The expert also testified that the caseworker approached each\n\ninterview with a “confirmative bias[,]” explaining that her questioning sought simply to elicit the\n\ndisclosures of abuse that she was expecting to hear from each child, rather than searching for the\n\ntruth by exploring alternative explanations of what may have happened to each child. He\n\nemphasized that there were significant inconsistencies between the statements of the two boys,\n\nwho were supposed to have been in the same room at the time of the alleged incidents, which\n\nshould have prompted the interviewer to more carefully question the veracity of their statements.\n\n {¶41} The caseworker conceded on cross-examination that she had received minimal\n\ntraining in techniques for interviewing children about suspected sexual abuse. She testified that\n\nshe had received some training, but could not recall much about it, whether it was one or more\n\ndays, or whether it covered many of the basics of the interview protocol that the forensic expert\n\f 16\n\n\nhad discussed. The caseworker admitted that she may have introduced new information into\n\nZ.F.’s interview by substituting the word “out” for his statement that L.F.’s wiener was “there.”\n\nShe explained that she substituted the word based on her assumption that Z.F. meant that L.F.’s\n\npenis was outside his clothing, even though Z.F. had not told her that L.F.’s penis was exposed.\n\n {¶42} The caseworker also admitted that, although she had received information that\n\nZ.F.’s older half-sibling had been the victim of a sexual assault, she did not explore that fact with\n\nZ.F., nor did it influence her questioning of him. The caseworker also conceded that there were\n\nmany, significant inconsistencies between the statements of Z.F. and J.F.\n\n CONCLUSION\n\n {¶43} Due to many inconsistencies and contradictions in the eyewitness testimony, the\n\nvagueness of the witnesses’ recollections, and the questionable reliability of their initial\n\ndisclosures due to the manner in which they were questioned and the circumstances surrounding\n\ntheir disclosures, the adjudication of delinquency based on L.F. committing two counts of gross\n\nsexual imposition was against the manifest weight of the evidence. L.F.’s second assignment of\n\nerror is sustained.\n\n III.\n\n {¶44} L.F.’s first assignment of error is overruled because his delinquency adjudication\n\nwas supported by sufficient evidence. Because the adjudication was against the manifest weight\n\nof the evidence, however, L.F.’s second assignment of error is sustained. The judgment of the\n\nLorain County Court of Common Pleas, Juvenile Division, is reversed and remanded for a new\n\nadjudicatory hearing.\n\n Judgment reversed and\n cause remanded.\n\f 17\n\n\n\n\n There were reasonable grounds for this appeal.\n\n We order that a special mandate issue out of this Court, directing the Court of Common\n\nPleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of\n\nthis journal entry shall constitute the mandate, pursuant to App.R. 27.\n\n Immediately upon the filing hereof, this document shall constitute the journal entry of\n\njudgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the\n\nperiod for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is\n\ninstructed to mail a notice of entry of this judgment to the parties and to make a notation of the\n\nmailing in the docket, pursuant to App.R. 30.\n\n Costs taxed to Appellee.\n\n\n\n\n EVE V. BELFANCE\n FOR THE COURT\n\n\n\nWHITMORE, J.\nDICKINSON, J.\nCONCUR\n\n\nAPPEARANCES:\n\nROBERT CABRERA, Attorney at Law, for Appellant.\n\nDENNIS P. WILL, Prosecuting Attorney, and STEPHEN LIST, Assistant Prosecuting Attorney,\nfor Appellee.\n\f", "ocr": false, "opinion_id": 2706200 } ]

[ "2014 Ohio 1262" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": 8, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/1/2014/2014-ohio-1262.pdf", "author_id": null, "opinion_text": " [Cite as Berger v. Wade, 2014-Ohio-1262.]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n\nALFRED J. BERGER, JR., : APPEAL NO. C-120863\n TRIAL NO. A-1102145\n Plaintiff-Appellant, :\n\n vs. : O P I N I O N.\n\nMARTIN WADE, :\n\n Defendant-Appellee/Third- :\n Party Plaintiff,\n :\n and\n :\nCHRISTOPHER ROSE,\n\n Third-Party Defendant. :\n\n\n\n\nCivil Appeal From: Hamilton County Common Pleas Court\n\nJudgment Appealed From Is: Reversed And Cause Remanded\n\nDate of Judgment Entry on Appeal: March 28, 2014\n\n\nJustin Fernandez, for Plaintiff-Appellant,\n\nTaft Stettinius & Hollister LLP, Russell S. Sayre and Nicholas J. Pieczonka, for\nDefendant-Appellee/Third-Party Plaintiff.\n\n\n\n\nPlease note: this case has been removed from the accelerated calendar.\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n\nPer Curiam.\n\n {¶1} Following a bench trial, plaintiff-appellant Alfred J. Berger, Jr., appeals\n\nfrom the trial court’s judgment in favor of defendant-appellee/third-party plaintiff\n\nMartin Wade, on Berger’s claim that Wade had failed to repay a business loan that he\n\nhad personally guaranteed. Berger contends that the trial court erred when it found\n\nthat he had fraudulently induced Wade into executing the guaranty agreement. We\n\nagree and reverse.\n\n {¶2} In 2006, third-party defendant Christopher Rose, a local developer,\n\napproached Wade about investing in The Rookwood Corporation, doing business as\n\nThe Rookwood Pottery Company (“Rookwood”). By 2009, Wade had invested over $1\n\nmillion in the corporation and was its largest shareholder. Though he was not involved\n\nin the day-to-day operations of the company, Wade had access to the corporation’s\n\nbooks, records, and financial information.\n\n {¶3} In 2009, Rose obtained a loan commitment for Rookwood from the\n\nOhio Department of Development. Because the proceeds of the Ohio loan took longer\n\nthan expected to reach the company, funding difficulties imperiled the development.\n\nTo cover the shortfall, Rose sought temporary financing. He approached Berger about\n\nthe possibility of making a short-term loan to the company. After negotiations between\n\nRose and Berger, Berger agreed to lend Rookwood $100,000 to fund operations until\n\nthe proceeds of the Ohio loan were delivered.\n\n {¶4} Berger was given the opportunity to examine the books of Rookwood.\n\nGiven Rookwood’s poor financial condition, Berger was unwilling to lend the company\n\nthe funds without additional security. Therefore, as a condition of making the loan,\n\nBerger insisted that Rose and Wade co-sign the promissory note, and that Rose and\n\nWade personally guarantee the debt.\n\n\n 2\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶5} The debt was to be evidenced by a promissory note which Berger had\n\ndrafted. Berger ultimately admitted that he had copied documents originally prepared\n\nby a Cincinnati law firm for another transaction that also involved a promissory note\n\nand guaranty. Though not a lawyer, Berger “changed [the documents] to fit the\n\ncircumstances” of the Rookwood deal. The changes took less than ten minutes. The\n\ndocuments provided that Berger would loan the corporation $100,000 in August 2009.\n\nThe corporation, Rose, and Wade promised to repay the loan in one month with\n\n$10,000 in interest also due at that time. In a separate guaranty agreement, Rose and\n\nWade personally guaranteed the loan repayment.\n\n {¶6} Rose presented Berger’s note and guaranty to Wade. Despite examining\n\nthe note for less than three minutes, and the guaranty for less than five, Wade signed\n\nthe documents. He had not met with or spoken to Berger before signing the\n\ndocuments.\n\n {¶7} The promissory note provided, on its first page, that:\n\n This Note is secured by a first-priority security interest in the\n\n Assets of The Rookwood Corporation pursuant to the terms of a\n\n Security Agreement dated of even date herewith between The\n\n Rookwood Corporation and [Berger] (the “Security Agreement”).\n\nAs it turned out, however, there was no security agreement and, therefore, no security\n\ninterest existed.\n\n {¶8} The guaranty agreement, signed with the note, provided that Wade, as a\n\nguarantor, “absolutely and unconditionally” guaranteed the full and punctual payment\n\ndue to Berger under the note. Section 1(b)(i) of the guaranty provided that Wade\n\nauthorized Berger, “as he may elect” and without prior notice, to alter any of the terms\n\nof the note including “releasing” any security for payment of the note.\n\n\n\n 3\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶9} Section 1(c) of the guaranty provided that Wade’s obligation to pay the\n\nfunds due under the note was not affected by “any of the following,” all of which Wade,\n\nas a guarantor, waived: (1) any failure to perfect any security interest in any collateral\n\nsecuring payment under the note; (2) the invalidity, unenforceability, or loss or change\n\nin priority of any security interest guaranteeing payment; (3) the right to require Berger\n\nto proceed against other borrowers or any security held by Berger; (4) “any defense\n\narising by reason of the cessation from any cause whatsoever of liability of [Rookwood,\n\nWade and Rose] including, without limitation, any failure, negligence or omission” of\n\nBerger; and (5) any defense based upon Wade’s lack of knowledge of the borrowers’\n\nfinancial condition, and the invalidity or unenforceability of any of the underlying\n\nobligations.\n\n {¶10} In other sections of the guaranty, Wade acknowledged that Berger could\n\nproceed to recover the obligations due under the note from Wade without first\n\nproceeding against any other party. Wade also waived the performance or enforcement\n\nof any terms or provisions of the note or guaranty, including the security agreement.\n\n {¶11} In sections 5 and 6 of the guaranty, Wade warranted that he had had\n\nfull and complete access to the note and all other documents relating to the obligation\n\nand that he had “reviewed them and [wa]s fully aware of the meaning and effect of their\n\ncontent.” He also agreed that he had delivered “this Guaranty based solely upon [his]\n\nown independent investigation * * * and not upon any representations or statements of\n\n[Berger].”\n\n {¶12} Rookwood and its guarantors failed to pay the note at maturity. By\n\nNovember 2010, less than $35,000 of the principal had been repaid. When Rookwood\n\ncould not repay the loan, and Wade refused to honor the guaranty agreement, Berger\n\nbrought suit for breach of contract. In December 2011, the trial court granted Wade’s\n\n\n\n 4\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nthird-party complaint against Rose for indemnity and contribution of any amounts due\n\nto Berger.\n\n {¶13} In his amended answer, Wade raised the affirmative defense of\n\nfraudulent inducement. He asserted that he had been induced to sign the note and\n\nguaranty because the note provided that the debt was secured by the assets of\n\nRookwood pursuant to a security agreement between Berger and The Rookwood\n\nCorporation. But, as Berger admitted at trial, no security agreement existed and no\n\nsecurity interest had been created or perfected. Berger admitted that his representation\n\nabout the security interest was “not accurate.”\n\n {¶14} Notwithstanding the provisions of the guaranty agreement, and Wade’s\n\nstatements that he had read the guaranty and had no questions about it, that it “seemed\n\nlike a standard guaranty” with no unfair terms, Wade testified that he “probably would\n\nnot have signed” the note without the first-priority security interest in the assets of The\n\nRookwood Corporation.\n\n {¶15} The trial court agreed and found that Berger’s false representation\n\nabout the existence of a security agreement was “material and fraudulent” and voided\n\nWade’s guaranty and promise to pay. The court found that the “demonstrably false\n\nclause was inserted to induce [Wade] to sign the note.” The trial court then entered\n\njudgment in Wade’s favor on his defense of fraudulent inducement. This appeal\n\nfollowed.\n\n {¶16} In his third assignment of error, Berger argues that the trial court’s\n\nfinding that Berger had fraudulently induced Wade to sign the note and guaranty was\n\nerroneous and that the court’s judgment was against the manifest weight of the\n\nevidence and must be reversed. We agree.\n\n\n\n\n 5\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶17} When addressing a challenge to the manifest weight of the evidence,\n\nthis court must review the entire record, weigh the evidence and all reasonable\n\ninferences, consider the credibility of the witnesses, and determine whether, in\n\nresolving conflicts in the evidence, the trier of fact clearly lost its way and created such a\n\nmanifest miscarriage of justice that the case must be reversed and a new trial ordered.\n\nSee Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517; see also\n\nState v. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541 (1997).\n\n {¶18} Fraud in the inducement is a valid defense to the enforcement of a\n\npromissory note and guaranty. To establish the defense that he was fraudulently\n\ninduced to enter into the note and guaranty, Wade had to show: (1) a false\n\nrepresentation concerning a fact material to the transaction; (2) knowledge of the\n\nfalsity of the representation or utter disregard for its truthfulness; (3) intent to induce\n\nreliance on the representation; (4) justifiable reliance upon the representation under\n\ncircumstances manifesting a right to rely; and (5) injury proximately caused by the\n\nreliance. See Lepera v. Fuson, 83 Ohio App.3d 17, 23, 613 N.E.2d 1060 (1st Dist.1992);\n\nsee also Curran v. Vincent, 175 Ohio App.3d 146, 2007-Ohio-3680, 885 N.E.2d 964\n\n(1st Dist.); Information Leasing Corp. v. Chambers, 152 Ohio App.3d 715, 2003-Ohio-\n\n2670, 789 N.E.2d 1155, ¶ 84 (1st Dist.). Berger argues that Wade failed to demonstrate\n\njustifiable reliance on Berger’s representation as to the security agreement.\n\n {¶19} The requirement of justifiable reliance is best understood as testing the\n\ncredibility of the claim that fraud induced a party to act. The necessity that the reliance\n\nis justified screens out pretextual claims or defenses put forward after adverse facts on\n\nthe ground have rendered a party’s promise unprofitable. See Keeton, Dobbs, Keeton &\n\nOwens, Prosser and Keeton on the Law of Torts, Section 108, 750-753 (5th Ed.1984).\n\n\n\n\n 6\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶20} The question of justifiable reliance is one of fact, and the court must\n\ninquire into the nature of the transaction, the representation, and the relationship of\n\nthe parties. See Lepera v. Fuson, 83 Ohio App.3d 17, 26, 613 N.E.2d 1060 (1st\n\nDist.1992); see also Hubbard Family Trust v. TNT Land Holdings, LLC, 4th Dist. Pike\n\nNo. 12CA833, 2014-Ohio-772, ¶ 30; Crown Property Dev., Inc. v. Omega Oil Co., 113\n\nOhio App.3d 647, 657, 681 N.E.2d 1343 (12th Dist.1996).\n\n {¶21} Wade testified that he would “probably not” have signed the note and\n\nguaranty if he had known that the first-priority security agreement identified in the\n\nnote did not exist. He stated that he assumed that Berger would enforce the security\n\ninterest to pay the debt rather than proceed against him.\n\n {¶22} Yet, the overwhelming weight of the evidence in the record reflects that\n\nWade’s assumption and his reliance on the fictitious representation were not justified.\n\nWade was a principal investor in Rookwood. Before signing the note and guaranty, he\n\nhad examined the corporation’s financial statements. Although Berger’s note stated\n\nthat it was secured by a first-priority security interest, Wade knew that Rookwood had\n\nalready given security interests in its assets and real property to another investor and to\n\nthe Ohio development agency. Wade admitted that he had already personally\n\nguaranteed the payment of some of those loans.\n\n {¶23} Before signing Berger’s note and guaranty, Wade, an experienced\n\ncertified public accountant and former attorney, reviewed the documents, albeit very\n\nbriefly. He admitted that under the guaranty’s express terms, whether Berger’s security\n\nagreement existed or not, Berger could proceed against Wade personally if the note was\n\nnot repaid. Wade acknowledged that he had waived the right to require Berger to\n\nproceed first against “any other person or any security.” In light of these facts, Wade’s\n\n\n\n\n 7\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nassumption that Berger would not elect to proceed against him for the funds, and his\n\nreliance on that assumption, was simply not sustainable.\n\n {¶24} We hold that Wade’s belief that the fictitious security agreement would\n\nprotect him from having to satisfy the amount due on the note was not justified under\n\nthe circumstances. Accordingly, we conclude that the judgment as to the fraudulent-\n\ninducement defense was against the manifest weight of the evidence. The third\n\nassignment of error is sustained.\n\n {¶25} Berger’s second assignment of error, in which he asserts that the trial\n\ncourt committed plain error, is feckless. Plain error contemplates an appellate court\n\nreviewing trial errors claimed to be so basic and fundamental that despite the absence\n\nof objection at trial, prejudice must be found. Goldfuss v. Davidson, 79 Ohio St.3d 116,\n\n679 N.E.2d 1099 (1997), syllabus. As Wade correctly notes, Berger has failed to identify\n\nin the record the supposed basic and fundamental errors to which his trial counsel did\n\nnot object. To receive consideration on appeal, trial-court errors must be argued and\n\nsupported by citation to the record. See App.R. 16(A); see also 1st Dist. Loc.R.\n\n16(A)(3)(e). It is not this court’s duty to search the record to root them out. The second\n\nassignment of error is overruled.\n\n {¶26} In light of our resolution of the third assignment of error, Berger’s first\n\nand fourth assignments of error are rendered moot. See App.R. 12(A)(1)(c).\n\n {¶27} Therefore, the judgment of the trial court is reversed and this cause is\n\nremanded for further proceedings consistent with law and this opinion.\n\n Judgment reversed and cause remanded.\n\nH ENDON , P.J., C UNNINGHAM and D E W INE , JJ.\n\n\nPlease note:\n\n The court has recorded its own entry on the date of the release of this opinion.\n\n 8\n\f", "ocr": false, "opinion_id": 2692166 } ]

[ "992 F.2d 324" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/992/992.F2d.324.92-4765.html", "author_id": null, "opinion_text": "992 F.2d 324\n Guajardov.Collin County Sheriff's*\n NO. 92-4765\n United States Court of Appeals,Fifth Circuit.\n Apr 27, 1993\n \n 1\n Appeal From: E.D.Tex.\n \n \n 2\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ", "ocr": false, "opinion_id": 605856 } ]

[ "856 F.2d 1169" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/856/856.F2d.1169.86-2268.html", "author_id": null, "opinion_text": "856 F.2d 1169\n 62 A.F.T.R.2d 88-5715, 88-2 USTC P 9510\n James A. ALLAN and Eileen Allan; Dennis M. Evavold andJoanne L. Evavold; Lowell Gordon; Donald J. Hamm andBeverly J. Hamm; William D.C. Mattison and Barbara A.Mattison; Bruce M. Nelson and Doris A. Nelson; RobertOsterbauer; Daniel R. Vaughan and Roberta E. Vaughan, Appellees,v.COMMISSIONER OF INTERNAL REVENUE, Appellant.\n No. 86-2268.\n United States Court of Appeals,Eighth Circuit.\n Submitted Dec. 14, 1987.Decided Sept. 16, 1988.\n \n Bruce R. Ellisen, Washington, D.C., for appellant.\n Steven L. Ross, Minneapolis, Minn., for appellees.\n Before LAY, Chief Judge, and HEANEY and MAGILL, Circuit Judges.\n MAGILL, Circuit Judge.\n \n \n 1\n In this case, we review that part of a decision of the United States Tax Court1 holding that the entire amount of a nonrecourse obligation, including the original mortgage principal and advances made by the mortgagee for interest payments, was properly included in the \"amount realized\" upon the transfer of the property. For the following reasons, we affirm.\n \n I. BACKGROUND\n \n 2\n Appellees were partners in Stevens House Co. (Partnership), a Minnesota limited partnership. On November 1, 1971, the Partnership agreed to purchase a 72-unit apartment building and related personal property (the Apartment) for $989,000. The Partnership acquired the Apartment subject to a $943,500 nonrecourse mortgage in favor of George C. Jones Co. (Jones). The mortgage was insured by the Department of Housing and Urban Development (HUD) pursuant to section 221(d)(4) of the National Housing Act, 12 U.S.C. Sec. 1715l (d)(4). Subsequent to purchasing the property, the Partnership took deductions for interest and real estate taxes on the accrual basis, and paid all expenses associated with the property.\n \n \n 3\n In 1974, upon the Partnership's default, HUD acquired the mortgage from Jones, pursuant to the provisions of the mortgage insurance contract. Upon acquiring the mortgage, HUD paid the real estate taxes associated with the Apartment as they became due and charged the Partnership for interest payments on the mortgage. Pursuant to paragraph 10 of the mortgage,2 both types of advances were added to the mortgage principal, thus becoming nonrecourse; interest was charged, at the mortgage rate, on the increased principal amount. The Partnership deducted these amounts as they accrued.\n \n \n 4\n The Partnership's financial difficulties continued unabated. In 1978, HUD initiated foreclosure proceedings. Ultimately, the Partnership transferred, in lieu of foreclosure, all of its interest in the Apartment to HUD. The Partnership also paid $56,956 to HUD in connection with the transfer. The Partnership was absolved of all further liability.\n \n \n 5\n During the period that HUD had been paying the real estate taxes and interest on behalf of the Partnership, and adding the amount of the advances to the nonrecourse obligation, the Partnership accrued and claimed deductions for $297,482 in interest and $260,005 in real estate taxes. See 86 T.C. at 658. The Commissioner does not challenge those deductions.\n \n \n 6\n At the time of transfer, the property's fair market value was substantially less than the outstanding mortgage. The Partnership reported a capital gain of $700,633 as a result of the transfer.3\n \n \n 7\n Appellees argued that the entire amount of the outstanding mortgage debt to HUD, including the original principal, the interest payments charged and the real estate taxes paid, was properly included in amount realized under Commissioner v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983).\n \n \n 8\n The Commissioner, on the other hand, argued that the transaction was properly bifurcated into two components: relief from the mortgage principal and relief from the liability for accrued interest and taxes. The Commissioner contended that the interest and real estate taxes had not actually been paid by the Partnership, and that \"unpaid\" expenses do not fall within the ambit of Tufts, and should therefore be considered separately.4 The Commissioner concluded that if these amounts were not included in amount realized, they were properly recognized as ordinary income under the \"tax benefit rule,\" because the discharge of the liabilities was \"fundamentally inconsistent\" with the prior deductions. In essence, the Commissioner did not wish to allow appellees to receive a deduction at ordinary income rates, and then recognize the discharge of the obligation upon which the deductions were based at capital gains rates.\n \n \n 9\n The Tax Court held for appellees, concluding inter alia, that the advances made by HUD were deemed paid by the Partnership through their addition to the outstanding mortgage principal amount, and that the rationale of Tufts required their inclusion in amount realized; leaving no room for application of the tax benefit rule.\n \n \n 10\n On appeal, the Commissioner reasserts his position that the interest advances made by HUD were accrued but \"unpaid\" by the Partnership; that the rationale of Tufts does not apply to \"unpaid\" interest; and that therefore the tax benefit rule should apply to properly account for the relief from the obligation to pay the interest. The Commissioner has conceded that the Tufts rule should apply to the real estate taxes because the taxes were paid to the local taxing authorities by a third party, HUD, who then added those amounts to the outstanding debt. \"In essence, the [P]artnership borrowed money from HUD and used the money to pay the taxes.\" Commissioner's Brief at 13.\n \n \n 11\n Because we believe that the same analysis applies to the interest payments, we affirm the judgment of the Tax Court.\n \n II. DISCUSSION\n \n 12\n It is well settled that the transfer of property by deed in lieu of foreclosure constitutes a \"sale or exchange\" for federal income tax purposes. Millar v. Commissioner, 67 T.C. 656 (1977), aff'd, 577 F.2d 212 (3d Cir.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58 L.Ed.2d 704 (1978); Freeland v. Commissioner, 74 T.C. 970 (1980).\n \n \n 13\n Section 1001 of the Internal Revenue Code (the Code), 26 U.S.C. Sec. 1001,5 governs the determination of gains and losses on the sale or exchange of property. Code Sec. 1001(a) provides that the gain from the sale or other disposition of property shall be the excess of the amount realized over the adjusted basis of the property. Code Sec. 1001(b) defines amount realized as the sum of any money received plus the fair market value of any property received.\n \n \n 14\n In Crane v. Commissioner, 331 U.S. 1, 67 S.Ct. 1047, 91 L.Ed. 1301 (1947), the Supreme Court held that upon the sale of property subject to a nonrecourse debt, the amount realized by the taxpayer includes the balance of the nonrecourse debt. The Crane Court left open the possibility that amount realized might not include nonrecourse obligations in excess of the fair market value of the property, Crane, 331 U.S. at 14 n. 37, 67 S.Ct. at 1054-55 n. 37; however, subsequent lower court decisions rejected this suggestion and held that the full balance of the nonrecourse debt was properly included in amount realized. See, e.g., Millar, 67 T.C. at 660.\n \n \n 15\n In Commissioner v. Tufts, 461 U.S. 300, 103 S.Ct. 1826, 75 L.Ed.2d 863 (1983), the Supreme Court answered the question left open in Crane. The Court held:\n \n \n 16\n When a taxpayer sells or disposes of property encumbered by a nonrecourse obligation, the Commissioner properly requires him to include among the assets realized the outstanding amount of the obligation. The fair market value of the property is irrelevant to this calculation.\n \n \n 17\n Tufts, 461 U.S. at 317, 103 S.Ct. at 1836.\n \n \n 18\n The Tufts Court noted that Crane approved the Commissioner's decision to treat a nonrecourse mortgage in this context as a true loan. The Court went on to discuss the rationale for including the full amount of a nonrecourse obligation in amount realized: When a taxpayer receives loan proceeds, he does not include them in income on the assumption that the loan will be repaid; if the taxpayer applies the loan proceeds to the purchase of property used to secure the loan, and the obligation to repay is subsequently extinguished, it must be accounted for in amount realized when the property is sold. Tufts, 461 U.S. at 307-09, 103 S.Ct. at 1831-32.\n \n \n 19\n We agree with the Tax Court's reading of Tufts, that the amount realized is the full amount of the nonrecourse liabilities which are discharged as a result of the transfer of the property. 86 T.C. at 666-67. Therefore, our inquiry is whether the advances for interest added to the nonrecourse mortgage principal, pursuant to paragraph 10 of the mortgage, was a legitimate debt obligation, i.e., a true loan.\n \n \n 20\n Appellees contend that HUD loaned the Partnership the money to pay the interest and real estate taxes as they became due, accounting for the advances by adding them to the principal amount of the total nonrecourse loan, and then charging the mortgage rate of interest on the entire amount. They argue that the Partnership thus actually became obligated to repay the new principal amount as well as interest on that amount.\n \n \n 21\n Our review of the record indicates that the advances made by HUD were \"true loans,\" which were secured by the Apartment. It is clear that the relationship between the Partnership and HUD was arms length, and there is no evidence to suggest that the mortgage or any of its terms, including paragraph 10, were entered into for tax-motivated reasons unrelated to standard commercial practice. Moreover, the record supports the contention that HUD advanced the carrying costs for legitimate business reasons; specifically, HUD apparently hoped that its loan would afford the Partnership additional time to work out of its financial difficulties, and thereby be able to repay HUD the full amount of the mortgage obligation. Finally, there is no doubt that had the Apartment recovered financially, the Partnership would have been legally obligated to repay the entire outstanding principal amount of the mortgage, including the advances and the interest thereon.\n \n \n 22\n The Commissioner, while now conceding that the advances constituted a \"true loan\" with respect to the advances for real estate taxes, claims that the Partnership did not actually borrow the money used to pay the interest because HUD cannot pay itself interest. We are unpersuaded by this analysis.\n \n \n 23\n If the Partnership had borrowed the money to pay the interest to HUD from a different lender, giving that lender a junior nonrecourse mortgage on the Apartment, no challenge would apparently be made to the Partnership's assertion that the interest was paid. It is only because the Partnership secured additional loans from HUD, equal to the interest paid, that the Commissioner claims the interest was \"unpaid,\" in that no money actually changed hands, and that therefore the advance was not legitimately added to the outstanding nonrecourse obligation.\n \n \n 24\n The Tax Court noted that \"in essence, [appellees] borrowed money from a third party, took the cash and paid expenses connected with the property, i.e., interest and taxes * * * ,\" and secured the loan only by the property. 86 T.C. at 666. We see no distinction in economic substance in this instance between borrowing from a third party to make the interest payments to HUD or borrowing that money from HUD. See Battelstein v. Internal Revenue Service, 631 F.2d 1182 (5th Cir.1980) (en banc) (Politz, J., dissenting). In both cases, the Partnership is liable for the increased principal amount of the loan.6 This is particularly true where there is no evidence that the transaction was tax motivated.\n \n \n 25\n Because we hold that the advances made by HUD to pay interest on behalf of the Partnership constituted a true loan properly added to the nonrecourse obligation, it follows inexorably that those amounts are properly included in \"amount realized\" under Tufts. Our holding that the interest advances were properly taken into income under Tufts precludes the application of the tax benefit rule to those same items, notwithstanding the fact that the Partnership took deductions at ordinary income rates, see Tufts, 461 U.S. at 310 n. 8, 103 S.Ct. at 1832 n. 8.\n \n \n 26\n Accordingly, the judgment of the Tax Court is affirmed.\n \n \n \n 1\n The Honorable Charles E. Clapp II, United States Tax Court Judge. Judge Clapp's opinion is reported at 86 T.C. 655 (1986)\n \n \n 2\n Paragraph 10 provides, in pertinent part, as follows:\n In the event of Mortgagor's failure to pay any sums provided for in this Mortgage, the Mortgagee, at its option, may pay the same. * * * [I]f the Mortgagor shall fail to pay any other governmental or municipal charge, the Mortgagor shall forthwith make good the deficiency or pay the charge before the same become delinquent or subject to interest or penalties and in default thereof the Mortgagee may pay the same. All sums paid by the Mortgagee and any sums which the Mortgagee may be required to advance to pay mortgage insurance premiums shall be added to the principal of the debt secured hereby and shall bear interest from the date of payment at the rate specified in the Note and shall be due and payable on demand. * * *\n \n \n 3\n This amount was computed by taking the difference between the total debt owed to HUD, including the additional principal representing advances for interest and real estate taxes ($1,455,941) and the adjusted basis ($650,653). A portion of this difference ($104,655) was reported as ordinary income and was not in dispute\n \n \n 4\n The Commissioner had also argued in the Tax Court that because the Partnership had accrued and deducted the amounts representing real estate taxes and interest, rather than treating those items as capital assets, the tax benefit rule requires inclusion of those items in ordinary income. The Tax Court rejected this argument, quoting Tufts: \"Our analysis applies even in the situation in which no deductions are taken. It focuses on the obligation to repay and its subsequent extinguishment, not on the taking and recovery of deductions.\" 86 T.C. at 662, quoting Tufts, 471 U.S. at 310 n. 8, 103 S.Ct. at 1832 n. 8. The Commissioner has not taken issue with this holding on appeal\n \n \n 5\n Unless otherwise indicated, all Code section references are to the Internal Revenue Code of 1954, as amended and in effect for the year in issue\n \n \n 6\n The Commissioner suggests that the Partnership could not have borrowed the money from another lender because it had no equity in the property, and thus no way to induce a new lender to take a junior nonrecourse debt. The thrust of the Commissioner's argument seems to be that the borrowing from HUD was not legitimate debt because the debt clearly exceeded the fair market value of the Apartment. We disagree. First, the record is not clear as to the value of the property at the time of the loan; second, as noted earlier, the record indicates that HUD loaned the money for legitimate business reasons; and third, the Commissioner has conceded that the nonrecourse debt incurred as to the real estate taxes should be included in \"amount realized,\" and was therefore legitimate debt. It is inconsistent to argue in favor of a dissimilar conclusion as to the advances for interest payments\n \n \n ", "ocr": false, "opinion_id": 511684 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 41, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\12/12-60757-CV0.pdf", "author_id": null, "opinion_text": " Case: 12-60757 Document: 00512448918 Page: 1 Date Filed: 11/21/2013\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n November 21, 2013\n\n No. 12-60757 Lyle W. Cayce\n Clerk\n\nCAREY SALT COMPANY, a Subsidiary of Compass Minerals International,\nIncorporated,\n\n Petitioner Cross-Respondent\nv.\n\nNATIONAL LABOR RELATIONS BOARD,\n\n Respondent Cross-Petitioner\n\n\n\n On Petition for Review and Cross-Application for Enforcement\n of an Order of the National Labor Relations Board\n\n\nBefore SMITH, GARZA, and SOUTHWICK, Circuit Judges.\nEMILIO M. GARZA, Circuit Judge:\n Carey Salt Company (“Carey Salt”) petitions for review of a National\nLabor Relations Board (“Board”) decision finding that the company violated\nSection 8(a)(1), (3), and (5) of the National Labor Relations Act (“the Act”), 29\nU.S.C. § 158(a)(1), (3), (5). See Carey Salt Co., 358 N.L.R.B. No. 124, 2012 WL\n4021866 (Sept. 12, 2012) [hereinafter Board Decision]. The Board cross-petitions\nfor enforcement of its order. Because we conclude that substantial evidence on\nthe record considered as a whole supports findings material to all terms of the\norder except for the order’s mandate that Carey Salt cease and desist from\n\f Case: 12-60757 Document: 00512448918 Page: 2 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\npresenting regressive bargaining proposals for the purpose of frustrating\nnegotiations, we enforce the order in part and vacate it in part.\n I\n Carey Salt operates a rock salt mine in Cote Blanche, Louisiana. In\nFebruary of 2010,1 the company entered into negotiations with the United Steel,\nPaper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and\nService Workers International Union and Local Union 14425 (“Union”) over the\nterms of a new collective-bargaining agreement. Carey Salt and the Union\nenjoyed forty years of successful bargaining history. Twice during the course of\nthe 2010 negotiations, however, Carey Salt unilaterally implemented offers after\nclaiming, over Union protests, that talks had reached a valid impasse. In\nresponse to the first implementation and other alleged unfair labor practices,\nemployees went on strike from April 7 to June 15.\n The disputes underlying this case arose in March of 2010. Between\nFebruary 8 and March 19, the parties had met fourteen times to bargain over\nthe terms of a new agreement that would replace the one expiring on March 24.\nBy March 10, Union negotiators had accepted Carey Salt’s proposals on benefits\nand severance, but they had largely refused to yield on Carey Salt’s three “core”\nissues of overtime distribution, alternate shifts, and cross-assignment. These\nissues had been the subject of the company’s long-standing operational concerns,\nand even the Union had conceded that vague overtime policies invited abuse and\nexcessive overtime levels. On March 10, the Union proposed a one-year trial\nperiod for the new shift schedule, but the parties failed to agree on an escape\nclause governing the parties’ options following the trial period. The March 12\nmeeting witnessed no progress.\n\n\n\n\n 1\n All dates are in the year 2010 unless otherwise noted.\n\n 2\n\f Case: 12-60757 Document: 00512448918 Page: 3 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n On March 18, after an initial confrontational discussion of wages, the\nUnion requested a “final” offer from Carey Salt. According to the Union\nrepresentative, when making this request, he had explained to Carey Salt\nrepresentatives that his purpose was merely to obtain membership feedback on\nthe offer’s terms ahead of the prior contract’s expiration. Moreover, he claims\nthat he explicitly conveyed his intent to return to negotiations in the event of the\noffer’s rejection by the membership vote. Carey Salt representatives claim that\nthey asked for confirmation that the Union wanted a final offer, and deny that\nthey understood the requested offer to be a potential basis for continued talks.\n On March 19, Carey Salt negotiators presented their final offer. Featured\nin the offer were terms consistent with the company’s position on its three core\nissues—new overtime rules, new shift schedules, and the elimination of a letter\nof understanding restricting cross-assignment. The offer included all items on\nwhich tentative agreement had been reached but omitted certain items that,\nwhile not yet secured by tentative agreement, Carey Salt had integrated into its\nown earlier proposals. These omitted items consisted of expanded job\nclassifications eligible for hazard pay and the new shift trial period. On the\nother hand, the offer included a 2.5 percent year-on-year wage increase, a\ndeparture from the company’s previous proposal to not increase wages at all.\n The Union negotiator confirmed that Carey Salt’s omissions were\n“intentional” and was disappointed that the offer’s terms were not as favorable\nas what earlier talks had seemed to place within reach. A Carey Salt negotiator\nlater conceded that he suspected the omissions would make the offer harder to\n“sell” to the membership. Indeed, on March 24, the Union membership voted to\nreject the offer. The Union representative immediately contacted the Carey Salt\nteam and requested to meet; the latter agreed and extended the existing contract\nto March 31.\n\n\n\n 3\n\f Case: 12-60757 Document: 00512448918 Page: 4 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n On the morning of March 31, the parties met for a short, but\nconsequential, two-and-a-half hours. The Union representative explained\nmembership concerns, which both sides acknowledged surfaced no new issues.\nCarey Salt negotiators, having confirmed the Union’s rejection of the final offer,\nthen declared impasse over Union protest. Company negotiators explained that\nthe Union had asked for a final offer, and then departed from the meeting site\nby approximately 11:30 A.M., thereby executing the “end game” outlined by\nCarey Salt’s CEO the previous day. In the afternoon, the Union representative\ntried unsuccessfully by phone and email to bring Carey Salt negotiators back to\nthe table by explaining that he had new proposals that would “move in a\nmeaningful way” toward Carey Salt’s positions on shift scheduling and other\nissues, and that a federal mediator was available. The Union membership, at\na special meeting later in the day, reconsidered but again voted to reject the final\noffer. That night, a Carey Salt negotiator confirmed that the company was\nunilaterally implementing its March 19 offer.\n The parties communicated minimally in April. On April 1, in the wake of\nthe March 19 offer’s implementation, the company confirmed that, having\nreached impasse, it would not meet again unless the Union accepted the offer in\nfull. On April 7, the Union, believing the March 31 implementation to be an\nunfair labor practice, voted to strike. At the Union’s request, the parties held an\noff-the-record meeting on April 20 to allow the Union’s director to understand\nCarey Salt’s concerns.\n On April 30, the federal mediator’s efforts succeeded in bringing the\nparties back to the negotiating table, and the revived talks produced a “modified\nfinal proposal.” However, on May 6, the Union membership rejected this offer\nand continued its strike. On May 25, Carey Salt negotiators presented a revised\noffer that rolled back prior concessions and increased the number of core issues\n\n\n\n 4\n\f Case: 12-60757 Document: 00512448918 Page: 5 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nto seven. This offer included a merit-based system for recalling workers that\nreplaced the expired agreement’s seniority-based system.\n In June, the parties faced continued stumbling blocks. Carey Salt rejected\nUnion proposals and insisted on acceptance of its seven core issues. On June 15,\nemployees ended their strike, but little progress resulted. The company recalled\nstrikers by merit rather than by seniority, prompting further Union discontent.\nAfter more meetings, a failure to agree, and the Union’s refusal to vote on a June\n23 offer, Carey Salt, claiming impasse, again unilaterally implemented changes\nin terms and conditions of employment.\n The Union brought charges alleging unfair labor practices, and the Board’s\nGeneral Counsel issued a complaint. Administrative Law Judge (“ALJ”)\nMargaret G. Brakebusch found that Carey Salt had violated Section 8(a)(3) and\n(1) of the Act by failing to reinstate employees engaged in the unfair labor\npractice strike, and Section 8(a)(5) of the Act by failing to bargain with the\nUnion in April 2010. Additionally, the ALJ found that the company had violated\nSection 8(a)(5) and (1) of the Act by making unilateral changes in employment\nterms and conditions in the absence of impasse, conditioning bargaining over\nmandatory subjects of bargaining on Union concessions, presenting a regressive\nproposal on or about May 25 that aimed to frustrate agreement, and improperly\ntreating employees who engaged in the unfair labor practice strike beginning on\nApril 7.2 Board Decision at 29–30. Carey Salt filed exceptions to the ALJ’s\ndecision, but the Board adopted the ALJ’s findings and order, with certain\nmodifications. Id. at 1–4.\n The Board’s final order requires Carey Salt to cease and desist from its\nviolations of the Act and to affirmatively remedy its violations. Specifically,\nCarey Salt was ordered to restore terms and conditions of employment to their\n\n\n 2\n Other violations are not challenged by Carey Salt, as noted infra.\n\n 5\n\f Case: 12-60757 Document: 00512448918 Page: 6 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\npre-March 31 status until agreement or valid impasse is reached, make whole\nemployees who suffered losses as a result of the March 31 implementation or the\ncompany’s failure to reinstate strikers, and post at the mine copies of a notice\nexplaining the company’s obligations. Id. at 2–4.\n Carey Salt petitions us for review of the order and submits that the\nBoard’s findings are not supported by substantial evidence. The Board cross-\npetitions for enforcement of its order.\n II\n Section 10(e) of the Act instructs us to accept the factual determinations\nof the Board that are “supported by substantial evidence on the record\nconsidered as a whole.” 29 U.S.C. § 160(e). “Substantial evidence is that which\nis relevant and sufficient for a reasonable mind to accept as adequate to support\na conclusion. It is more than a mere scintilla, and less than a preponderance.”\nEl Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012). Furthermore, we\nmust uphold the Board’s “credibility determinations . . . unless they are\n‘inherently unreasonable or self-contradictory.’” Id. at 665 (quoting Cent. Freight\nLines, Inc. v. NLRB, 666 F.2d 238, 239 (5th Cir. 1982)). In particular, an ALJ’s\ncredibility choice, adopted by the Board, merits “special deference, unless it is\nbased on inadequate reasons, or no reasons.” Reef Indus., Inc. v. NLRB, 952\nF.2d 830, 836 (5th Cir. 1991). Additionally, we must have a “compelling reason”\nbased in evidence to overturn a credibility choice, beyond merely a party’s urging\nus to adopt its version of the facts. Poly-America, Inc. v. NLRB, 260 F.3d 465,\n482 (5th Cir. 2001) (refusing to disturb credibility determination “[i]n the\nabsence of any showing” that testimony relied upon by ALJ was “incredible”).\n Our deference, however, has limits. We must “consider the whole record,”\nand “[t]he substantiality of evidence must take into account whatever in the\nrecord fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340\nU.S. 474, 488 (1951). Moreover, a decision by the Board that “ignores a portion\n\n 6\n\f Case: 12-60757 Document: 00512448918 Page: 7 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nof the record” cannot survive review under the “substantial evidence” standard.\nLord & Taylor v. NLRB, 703 F.2d 163, 169 (5th Cir. 1983) (reversing finding of\nemployer’s anti-union animus where Board ignored all management testimony\nand unfavorable testimony by discharged employee).\n We review the Board’s conclusions on matters of law de novo. NLRB v.\nArkema, Inc., 710 F.3d 308, 315 (5th Cir. 2013) (citing El Paso Elec., 681 F.3d at\n656).\n III\n The Board, adopting the ALJ’s decision, found that Carey Salt violated\nSection 8(a)(5) and (1) of the Act on both March 31 and June 27, by unilaterally\nimplementing changes to employment terms during negotiations in the absence\nof impasse. On appeal, Carey Salt contends that because the parties had\nbargained to impasse, both implementations were lawful.3 The parties agree\nthat if the March 31 implementation is deemed unlawful, then the strike, which\nresponded to the implementation, was a protected unfair labor practice strike\nfrom its commencement on April 7.4\n\n\n 3\n On appeal, Carey Salt submits that, alternatively, its unilateral changes were lawful\nunder another exception that allows unilateral changes when an employer provides notice and\nan opportunity to respond, and when the union fails to bargain with appropriate diligence.\nSee NLRB v. Pinkston-Hollar Constr. Servs., Inc., 954 F.2d 306, 311–13, 313 n.6 (5th Cir.\n1992). Carey Salt concedes that before the Board, it did not raise this particular defense and\ninstead relied only on the impasse defense. Carey Salt Reply Br. 12 n.2. Accordingly, under\nSection 10(e) of the Act, Carey Salt has waived its alternative defense. 29 U.S.C. § 160(e) (“No\nobjection that has not been urged before the Board . . . shall be considered by the court, unless\nthe failure or neglect to urge such objection shall be excused because of extraordinary\ncircumstances.”).\n 4\n Carey Salt does not contest the Board’s third finding of an unlawful implementation\nof various terms and conditions of employment, occurring on May 22. We do not disturb this\nfinding, but we cannot automatically enforce Part 1(d) of the order, mandating in general\nprospective terms that Carey Salt cease and desist from unlawful unilateral implementation,\nwithout examining the company’s challenges to the two other findings of unilateral\nimplementation. We further note that neither the May 22 nor June 27 implementation, even\nif an unlawful unfair labor practice, affects the Board’s determination of whether the strike\nis a protected unfair labor practice strike. An unfair labor practice strike must be caused by\n\n 7\n\f Case: 12-60757 Document: 00512448918 Page: 8 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n The determination of whether a negotiation reached impasse “is\nparticularly suited to the Board’s expertise as fact finder.” NLRB v. Powell Elec.\nMfg. Co., 906 F.2d 1007, 1011 (5th Cir. 1990) (citing Huck Mfg. Co. v. NLRB, 693\nF.2d 1176, 1186 (5th Cir. 1982)). Accordingly, we review determinations about\nimpasse as we would any factual finding, under the “substantial evidence”\nstandard. Id. (citing Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1317 (5th\nCir. 1988)).\n Section 8(a)(5) of the Act imposes on employers a duty to bargain\ncollectively with employee representatives. 29 U.S.C. § 158(a)(5). Section 8(a)(1)\nobligates the employer to refrain from limiting employees’ exercise of their\nrights. Id. § 158(a)(1). Generally, an employer breaches these duties when it\nunilaterally implements a change in the terms and conditions of employment\nduring contract negotiations. See id. § 158(d) (“[N]o party” to a collective-\nbargaining contract covered by the Act “shall terminate or modify such contract”\nabsent specified conditions.); Huck Mfg., 693 F.2d at 1186.\n We have recognized, however, that when an employer and union bargain\nto impasse, the employer may unilaterally implement changes in contract terms,\nso long as the changes were previously offered during negotiations. See Huck\nMfg., 693 F.2d at 1186. Impasse is reached when “further discussion [is] futile\n. . . in view of all the circumstances of the bargaining.” Powell Elec. Mfg., 906\nF.2d at 1011. In particular, this futility requires that “neither party . . . be\n\n\n\n\nan unfair labor practice. Gulf States Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1327 (5th Cir. 1978).\nThe May 22 violation, conceded by Carey Salt, did not in fact cause the strike. This unilateral\nimplementation was not alleged by the Acting General Counsel until facts surfaced during\ntestimony in preparation for administrative hearings. The union cannot and does not claim\nto have been motivated to strike by what was unknown to it at the time. As for the June 27\nimplementation, because the strike ended on June 15, any action by the company following the\nstrike could not have caused it.\n\n 8\n\f Case: 12-60757 Document: 00512448918 Page: 9 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nwilling to compromise.” Id. at 1011–12 (quoting Huck Mfg., 693 F.2d at 1186)\n(emphasis in original).5\n Good-faith bargaining is a “necessary precondition” to a finding of impasse.\nElec. Mach. Co. v. NLRB, 653 F.2d 958, 963 (5th Cir. 1981); see also Raven Servs.\nCorp. v. NLRB, 315 F.3d 499, 505 (5th Cir. 2002) (concluding that failure to\nsupply necessary information constituted bad faith and thereby “preclude[d] a\nfinding of a genuine impasse”). At impasse, “the parties, despite the best of faith,\nare simply deadlocked.” Huck Mfg., 693 F.2d at 1186 (quoting NLRB v. Tex-Tan,\nInc., 318 F.2d 472, 482 (5th Cir. 1963)) (emphasis added). The precondition of\ngood faith comports with the statutory requirement for good-faith collective\nbargaining; without good faith, the bargaining itself is unlawful, as is any\nimpasse purportedly reached therein. See 29 U.S.C. § 158(d) (requiring parties\nto “confer in good faith”). The statute provides explicitly, however, that the duty\nof good-faith bargaining does not “compel either party to agree to a proposal or\nrequire the making of a concession.” Id.\n We review the Board’s findings regarding good faith with heightened\ndeference in light of the complex subjective inquiry required. The determination\nof an “absence of good faith [is] one for the judgment of the Labor Board, unless\nthe record as a whole leaves such judgment without reasonable foundation.”\nNLRB v. Big Three Indus., Inc., 497 F.2d 43, 46–47 (5th Cir. 1974). To assess\nthe Board’s finding of a lack of good faith, we must “examine the totality of the\nemployer’s conduct, both at and away from the bargaining table.” NLRB v. Hi-\nTech Cable Corp., 128 F.3d 271, 276 (5th Cir. 1997); see also Overstreet v. El Paso\nDisposal, L.P., 625 F.3d 844, 854–55 (5th Cir. 2010) (engaging in fact-specific\nanalysis). But misconduct away from the bargaining table must relate to\n\n\n 5\n Carey Salt does not seek to invoke the narrow “business necessity” exception, which\nallows an employer to sustain operations during an “emergency situation caused by a strike.”\nPowell Elec. Mfg., 906 F.2d at 1014.\n\n 9\n\f Case: 12-60757 Document: 00512448918 Page: 10 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nconduct at the table to justify an inference of bad faith. Hi-Tech Cable, 128 F.3d\nat 277. In undertaking this often complex inquiry, we have vigilantly enforced\nthe Act’s protection of a party’s good-faith bargaining position. See, e.g., NLRB\nv. Bancroft Mfg. Co., Inc., 635 F.2d 492, 494 (5th Cir. 1981) (concluding that\nemployer’s mere refusal to yield did not constitute bad faith); Chevron Oil Co. v.\nNLRB, 442 F.2d 1067, 1072–73 (5th Cir. 1971) (same). Notwithstanding this\nprohibition of substantive judgment, the Board is not barred from considering\nthe substance of proposals in order to ferret out “empty talk,” the “mere surface\nnotions of collective bargaining.” NLRB v. F. Strauss & Son, Inc., 536 F.2d 60,\n64 (5th Cir. 1976) (quoting NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134\n(1st Cir. 1953)). Good faith is inconsistent with a “charade concealing a desire\nto frustrate agreement,” notwithstanding conduct that “on its face” resembles\nbargaining. Glomac Plastics, Inc. v. NLRB, 592 F.2d 94, 98 (2d Cir. 1979).\n The Supreme Court, too, has signaled the importance of good faith by\nrecognizing that parties may “intentionally” bring about impasse, but only as a\n“device to further, rather than destroy, the bargaining process.” Charles D.\nBonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412 (1982) (quoting Charles\nD. Bonanno Linen Serv., Inc., 243 N.L.R.B. 1093, 1094 (1979)). Moreover, the\nCourt has explained that the duty to bargain in good faith requires more than\n“the mere meeting” of the parties; negotiations must grow out of a “serious intent\nto adjust differences and to reach an acceptable common ground.” NLRB v. Ins.\nAgents’ Int’l Union, AFL-CIO, 361 U.S. 477, 485 (1960).\n Even in Taft Broadcasting Company, good faith was the central factor in\nthe Board’s analysis. In that case, the Board enumerated five factors that aid\nin determining whether an impasse existed, and both parties here urge us to\napply them. These factors are (1) the parties’ bargaining history; (2) the parties’\ngood faith; (3) the duration of negotiations; (4) the importance of issues\ngenerating disagreement; and (5) the parties’ contemporaneous understanding\n\n 10\n\f Case: 12-60757 Document: 00512448918 Page: 11 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nof the state of negotiations. Taft Broad. Co., 163 N.L.R.B. 475, 478 (1967),\nenforced sub. nom Am. Fed’n Television & Radio Artists v. NLRB, 395 F.2d 622\n(D.C. Cir. 1968). All five factors are probative of impasse, but in the very same\nsection of its decision, the Board explained that impasse is reached “after good-\nfaith negotiations have exhausted the prospects of concluding an agreement.”\nId. (emphasis added). In applying the factors, the Board emphasized that “no\nevidence” suggested bad faith had tainted the parties’ ultimately unfruitful\nefforts during twenty-three bargaining sessions. Id. Indeed, the D.C. Circuit,\nin enforcing the Taft decision, determined that this understanding of impasse\n“governed” the case and cited the Board’s formulation verbatim, including the\nrequirement of good faith. Am. Fed’n Television & Radio Artists, 395 F.2d at\n624.\n We use the Taft factors to frame our analysis, mindful, however, that\nunder our precedents and Taft itself, substantial evidence of a lack of good faith\nmust preclude an impasse finding.\n A\n Carey Salt contends that substantial evidence does not support the Board’s\nconclusion that no impasse existed on March 31, when the company unilaterally\nimplemented its March 19 offer. Specifically, Carey Salt alleges that the Board\noverlooked evidence that undermines its analysis under each of the Taft factors.\nWe consider each of the alleged errors.\n 1\n Carey Salt challenges many aspects of the ALJ’s findings under the first\nthree Taft factors, emphasizing that it had a right to stand on its final offer and,\ngiven the Union’s rejection, to seek impasse after many weeks of good-faith\nnegotiations.\n The ALJ’s decision consolidated its analysis of the first three Taft\nfactors—the bargaining history, length of negotiations, and good faith of the\n\n 11\n\f Case: 12-60757 Document: 00512448918 Page: 12 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nparties—and concluded that the factors collectively favor a no-impasse finding.\nThe ALJ first conceded that, viewed over the long term, the factors suggest\nimpasse. For instance, the parties enjoyed a forty-year history of successful\nnegotiations, and there was no complaint of bad faith in the instant negotiation\nprior to Carey Salt’s March 31 implementation. Board Decision at 11. The ALJ,\nhowever, then narrowed her temporal focus to the final days of negotiation and,\nin particular, Carey Salt’s plan to swiftly declare impasse on March 31. The ALJ\ntook issue with “sometimes short” meetings toward the end of the bargaining\nperiod, late commencement of negotiation over wages on March 18, Carey Salt’s\nregressive March 19 proposal that “effectively insured that no meaningful\nnegotiations could follow,” and Carey Salt’s desire to end negotiations using an\nimpasse declaration. Id.\n The ALJ concluded that impasse was precluded by the “immediate”\nbargaining history and Carey Salt’s bad-faith conduct. Id. at 12. The Board\nchose not to rely on the ALJ’s finding that the substance of the March 19\nproposal eliminated the possibility of future negotiation, and the Board\nemphasized that regressive proposals were not per se illegal. Id. at 1 n.5.\nNonetheless, the Board concluded that the regressive March 19 proposal was an\nelement of Carey Salt’s “overall plan to frustrate agreement,” and that therefore\nno valid impasse existed on March 31.6 Id.\n We must determine whether the Board’s and ALJ’s analyses under the\nfirst three Taft factors point us to substantial evidence on the record considered\n\n\n 6\n Carey Salt suggests that by disclaiming elements of the ALJ’s reasoning and finding\nan “overall plan to frustrate agreement,” the Board might have intended to replace completely\nthe ALJ’s factual analysis under Taft, and that the phrase signals an entirely new conclusion\nwithout an evidentiary basis. We see no grounds for such an interpretation, especially since\nthe Board explained its modifications as only “minor analytical differences.” Board Decision\nat 2. The phrase “overall plan to frustrate agreement” merely re-characterizes the ALJ’s\noriginal analysis of Carey Salt’s activities on and just before March 31, under the three factors\nof bargaining history, good faith, and negotiation length.\n\n 12\n\f Case: 12-60757 Document: 00512448918 Page: 13 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nas a whole supporting the no-impasse finding. We conclude that there is such\nevidence, based on facts in the record establishing Carey Salt’s bad faith, since\nbad faith precludes any finding of impasse. Elec. Mach., 653 F.2d at 963\n(holding that good faith is “precondition” for impasse).7\n The evidence of Carey Salt’s bad faith hinges, we believe, on the Union’s\nexplanation, credited by the ALJ and Board, that when it requested the final\noffer on March 18, it made explicit to Carey Salt negotiators that talks would\nresume in the event of a membership vote rejecting the offer. If the Union’s\naccount were untrue, and both parties in fact understood the final offer to be\ntruly “final” without recourse to further talks, then the Board has no basis for\nfaulting Carey Salt’s plan to declare impasse on March 31. If, however, the\nUnion’s request for the offer made it clear that the parties would continue\nnegotiations in the event of rejection, then we will need to examine whether\nCarey Salt’s actions are consistent with good-faith bargaining. We begin, then,\nwith the ALJ’s discussion of the final offer request.8\n The facts surrounding the final offer are somewhat murky. The company\nclaims that because the Union had asked explicitly for a “final offer” on March\n18, the Union necessarily understood the parties to be at impasse on March 31,\nwhen Carey Salt chose to stand on its offer after the Union membership’s vote\n\n\n 7\n We are further bound by the Supreme Court’s explication of the duty to bargain in\ngood faith as requiring more than “the mere meeting” of the parties; negotiations must grow\nout of a “serious intent to adjust differences and to reach an acceptable common ground.” Ins.\nAgents’ Int’l Union, AFL-CIO, 361 U.S. at 485. As explained below, the Court has not\nsuspended this duty when parties have expressed and acted upon a mutual intent to continue\ntalks, and likewise we see no basis for articulating an exception on these facts.\n 8\n Although the ALJ discussed the final offer in her analysis of the fifth Taft factor (the\nparties’ contemporaneous understanding), we cannot read the decision in a rigidly piecemeal\nfashion. Rather, we must consider the record in its entirety, which includes the ALJ decision.\nSee NLRB v. Yeshiva Univ., 444 U.S. 672, 679 (1980) (affirming reviewing court’s own factual\nfindings on the record, where Board had made no relevant findings itself); Universal Camera,\n340 U.S. at 493–94 (holding that ALJ decision is part of record, which reviewing court must\nconsider in full).\n\n 13\n\f Case: 12-60757 Document: 00512448918 Page: 14 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nto reject it. A Carey Salt negotiator testified that company representatives had\nasked for confirmation that the Union was “sure” that it wanted a final offer, and\nthat he never understood that the offer might serve as a basis for continued\ntalks. Tr. at 902–903.9 On the other hand, after delivering the purportedly final\noffer, the same Carey Salt negotiator asked what would happen if talks\ncontinued, as conceded by his colleague on cross-examination. Tr. at 1127. The\nUnion negotiator testified on both direct and cross-examination that, when\nrequesting the final offer, he had explicitly informed the company of his plan to\ncontinue talks even if the membership rejected the offer, and that the purpose\nof the request was merely to obtain membership feedback before the prior\ncontract’s expiration. Tr. at 261, 461.10\n Faced with evidence supporting these conflicting accounts, the ALJ\npermissibly credited the Union representative’s testimony that the parties did\nnot in fact understand the final offer to be truly “final,” and that follow-on\nnegotiations were expected. Board Decision at 13. The ALJ justified this choice\nwith adequate reasons. See Reef Indus., 952 F.2d at 836. The decision recounted\nthe Union representative’s statements to Carey Salt negotiators that future\ntalks were not foreclosed and explained that “no credible record evidence” proved\nthat the request for a final offer “directly communicated or even implied” that\nthe Union would give up negotiating thereafter. Board Decision at 13. Absent\nindications that the Board ignored substantial parts of the record, we cannot\n\n\n\n\n 9\n In response to a question on cross-examination about whether he understood that the\nrequest for a final offer was merely an attempt “to take the temperature of the membership,”\nGord Bull testified that he “didn’t understand that.” Tr. at 903.\n 10\n Union representative Gary Fuslier testified: “So the purpose of asking the company\nto give us a proposal, I needed to get that back to the membership, so I could—and I told [lead\nCarey Salt negotiator Victoria Heider], in case this gets rejected, so we can get back to the\ntable and share with the company the true feelings of the membership . . . .” Tr. at 261.\n\n 14\n\f Case: 12-60757 Document: 00512448918 Page: 15 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\ndisturb this credibility determination. El Paso Elec., 681 F.3d at 665; Lord &\nTaylor, 703 F.2d at 169.\n Crucially, Carey Salt never conclusively refuted the Union’s account of the\nMarch 18 request for a final offer, and we thus have no “compelling reason” to\noverturn the ALJ’s credibility choice. Poly-America, Inc., 260 F.3d at 482.\nBefore the ALJ, Carey Salt representatives never directly contradicted the\nUnion negotiator’s account of his request for the final offer. Tr. at 90, 831\n(claiming only that Union team suddenly asked for the final offer). Rather, one\nCarey Salt negotiator testified that he “didn’t understand” that the purpose of\nthe request was to seek membership feedback. Tr. at 903. Carey Salt focused\nits arguments before the ALJ on the meaning of the word “final,” but even this\nlinguistic analysis did not fatally undermine the Union’s account. While the\nUnion negotiator explained that “final” can have a special meaning and asking\nfor such an offer entails certain risks, Tr. at 460, he also explained that in many\ncontexts, a “final” offer can merely mark the end of an intermediate stage in\nnegotiation, Tr. at 426.11 Finally, on appeal, Carey Salt does not challenge this\ncredibility choice.\n If the final offer was in fact neither explained nor understood as truly\nfinal, then the sequence of events “both at and away from the bargaining table”\nsupports the Board’s faulting Carey Salt’s bad-faith conduct in the last days of\nnegotiations leading up to March 31. Hi-Tech Cable, 128 F.3d at 276. First, as\nalready established, the Union had explicitly informed Carey Salt that it would\nreturn to negotiations in the event the membership rejected the “final” offer. On\nMarch 24, immediately after the rejection vote, Carey Salt confirmed its\nwillingness to meet again on March 31. Next, the lead Carey Salt negotiator\n\n\n 11\n Gary Fuslier explained: “Final doesn’t mean final, because they [the offers] continue\nto change. This is my final. Tomorrow this is my last final. Tomorrow this is my best final\n. . . I’ve heard them all.” Tr. at 426.\n\n 15\n\f Case: 12-60757 Document: 00512448918 Page: 16 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nmade travels plans that would require her to depart the site of the final meeting\nafter just a few hours. Then, the CEO detailed the “end game,” a plan for a swift\nimpasse declaration and unilateral implementation following the anticipated\nrejection. Board Ex. 10 at 1. Finally, at the March 31 meeting, company\nnegotiators merely confirmed the Union’s rejection of the offer before declaring\nimpasse, departing abruptly, and refusing further talks. Board Decision at\n11–12; Tr. at 270–72. The ALJ concluded that this sequence of events evinced\na lack of desire to reach agreement, Board Decision at 11–12, and the Board\nadopted the same finding in faulting Carey Salt’s “overall plan to frustrate\nagreement,” id. at 1 n.5.\n Bearing in mind our deferential posture in reviewing determinations of\nbad faith, Big Three Indus., 497 F.2d at 46–47, we are satisfied that the evidence\nrelied upon is substantial enough. Carey Salt deployed impasse not to “further,”\nbut to “destroy” the negotiation, at a critical point when the parties had\nexplicitly agreed to return to the table. Bonanno Linen, 454 U.S. at 412.\nDespite the company’s claims that it satisfied the formal requirements of good-\nfaith bargaining by providing an offer, agreeing to meet, and listening to Union\nconcerns, substantial evidence supports the Board’s conclusion that the\ncompany’s true intent was to forgo agreement and rush to unilateral\nimplementation. In explaining why conduct consistent with formal bargaining\ncan still fall short of good faith, the Board aptly invoked the Supreme Court’s\nguidance in Insurance Agents’ International Union; ultimately, the Board must\ndetermine whether the parties manifested a “serious intent to adjust\ndifferences.” Ins. Agents’ Int’l Union, 361 U.S. at 485; see also Glomac Plastics,\n592 F.2d at 97–99 (upholding Board finding of bad faith where withdrawal of\nconcessions aimed to prevent agreement). Here, the Board permissibly\nconcluded that although Carey Salt representatives met with the Union\nnegotiator on March 31, they had already paved the way for impasse by planning\n\n 16\n\f Case: 12-60757 Document: 00512448918 Page: 17 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\ndirectly for an impasse declaration and then failing to return earnestly to talks\nas the Union had expressly requested.\n We acknowledge that the company had good-faith reasons behind its\npositions on the core issues, and that the Board may not “sit in judgment on the\nterms of the agreement.” Gulf States Mfrs., 579 F.2d at 1317. Nonetheless,\nhere, the Board was not making a substantive judgment, but calling a\nprocedural foul. Here, the Union had expected continued bargaining, had made\nthat expectation explicit when requesting the final offer, and had come to the\ntable on March 31 prepared to begin a discussion of items on which Carey Salt\nhad expressed tentative openness. Tr. at 275.12 Under these circumstances, an\nemployer may not use a “final” offer’s anticipated rejection to engineer a\npremature impasse and swift unilateral implementation. If an employer wishes\nto bring an end to talks, it must do so by good-faith bargaining, not by seizing\nupon magic words, abstracted from their context. Cf. TruServ Corp. v. NLRB,\n254 F.3d 1105, 1115 (D.C. Cir. 2001) (explaining that although merely labeling\nan offer as “final” is not dispositive, rejection of final offer led to impasse where\ncompany bargained in good faith and no record evidence controverted offer’s\nstatus as “last, best, and final”).\n\n\n\n\n 12\n The Union’s lack of a proposal, however, does suggest that at least by 11 A.M., it did\nnot see further room for compromise, as discussed under our review of the fifth Taft factor\n(contemporaneous understanding of the parties). See infra Section III.A.3. This inference,\nhowever, does not detract from the weight of the substantial evidence of Carey Salt’s bad faith\nin executing a plan to bring talks to an abrupt end. The two inquiries are fundamentally\ndistinct: Assessment of bad-faith bargaining requires the Board to analyze the parties’ conduct\nand intentions leading up to the impasse declaration, while the contemporaneous\nunderstanding of the parties is concerned with whether the parties shared a belief that further\ntalks would be futile. In other words, to reach a valid impasse, the parties must not only\nbelieve that they have nothing more to give, but also arrive at this belief through good-faith\nbargaining. Here, Carey Salt’s sudden, bad-faith refusal to bargain where further talks had\nbeen planned negates a finding of impasse, even if no substantial evidence proves that the\nUnion was willing to bargain further at the moment that Carey Salt declared impasse.\n\n 17\n\f Case: 12-60757 Document: 00512448918 Page: 18 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n Although there is substantial evidence that Carey Salt’s conduct fell short\nof good faith during the week leading up to March 31, we recognize its good-faith\nefforts throughout most of this negotiation. Nonetheless, good-faith bargaining\nis a “necessary precondition” to reaching valid impasse. Elec. Mach., 653 F.2d at\n963. In determining whether this precondition is satisfied, we do not think that\nthe Board or this court must balance the entirety of conduct in negotiations to\ndetermine whether certain bad-faith conduct is outweighed by other indications\nof good faith, thereby redeeming a party’s “net” good-faith score. Taft provides\nthat parties reach impasse only after “good-faith negotiations have exhausted the\nprospects of concluding an agreement,” and we understand such “exhaust[ion]”\nto mean that good-faith efforts must persist until all avenues for compromise are\nclosed. Taft Broad., 163 N.L.R.B. at 478 (emphasis added).13 The Act itself sets\na high bar and requires parties in collective bargaining to “confer in good faith.”\n29 U.S.C. § 158(d). We decline today to create a new exception to this duty that\nwould apply after a number of weeks of bargaining, when an employer, weary\nof discussion, finds it more convenient to declare impasse rather than honor the\nparties’ stated plans to make another genuine attempt to seek common ground.\n However, we do take issue with one component of the Board’s reasoning\nabout Carey Salt’s bad faith. There is no substantial evidence supporting the\nBoard’s finding that the March 19 regressive proposal was part of the company’s\n“overall plan to frustrate agreement.” Accordingly, the Board’s narrative of bad-\nfaith bargaining should not have encompassed the March 19 offer.\n\n\n\n 13\n Other circuits have held that impasse on “a single critical issue” alone could lead to\noverall impasse. See, e.g., Erie Brush & Mfg. Co. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012)\n(citing CalMat Co., 331 N.L.R.B. 1084, 1097 (2000)). Even if we were to recognize such a\nprinciple, we do not see how good-faith bargaining “exhausted” negotiations even for the core\nissues, when the parties had agreed to meet again following rejection by the Union, and\nsubstantial evidence supports the Board’s finding that Carey Salt’s conduct at and leading up\nto the March 31 meeting did not reflect a genuine desire to reach agreement.\n\n 18\n\f Case: 12-60757 Document: 00512448918 Page: 19 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n In challenging this finding, Carey Salt directs us to two other findings by\nthe Board that it claims are inconsistent with locating bad faith in the March 19\noffer itself. The Board found first that the Union did not complain of any bad-\nfaith conduct before March 31, Board Decision at 11, and, secondly, that the\nsubstance of the March 19 offer was not so patently regressive as to foreclose\nbargaining, id. at 1 n.5. In our view, these two findings do not alone preclude a\nlinkage between the March 19 offer and the plan to frustrate bargaining detailed\nabove. Nonetheless, no substantial evidence supports such a linkage, and we\ntherefore decline to fault the March 19 offer on this basis.\n We first explain why Carey Salt’s two contentions fall short. First, as to\nthe lack of a Union complaint about any pre-March 31 conduct, we have held\nthat any findings not based strictly on the complaint still merit enforcement so\nlong as the issues were fully litigated. See Huck Mfg., 693 F.2d at 1187–88.\nCarey Salt’s “end game” did not come to fruition until March 31, when company\nnegotiators declared impasse and refused to engage in further discussion, and\nthe Union’s complaint targeted this conduct rather than the March 19 offer\nitself. However, the issue of Carey Salt’s plans to end the March 31 meeting\nwith an impasse declaration was fully litigated before the Board, and the plan’s\ncenterpiece was the Union’s rejection of the March 19 offer. Board Decision at\n11. Therefore, the lack of any specific complaint about the company’s conduct\nprior to the March 31 impasse declaration does not alone preclude the Board’s\nfinding that the March 19 offer was a regressive proposal that fit into an “overall\nplan to frustrate agreement.”\n Second, we consider the effect of the Board’s modification, disagreeing with\nthe ALJ and explaining that the March 19 offer was not so substantively\nregressive as to foreclose future talks and, relatedly, that no per se rule bars\nregressive offers. Preliminarily, we recall that we are not bound by the Board’s\nmodifications. Universal Camera, 340 U.S. at 493–97 (explaining that reviewing\n\n 19\n\f Case: 12-60757 Document: 00512448918 Page: 20 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\ncourts consider findings by the Board as part of the record). Nonetheless, our\nown review of the record leads us to agree with the Board that the March 19\noffer, while less favorable than the Union expected, did not necessarily foreclose\nall future bargaining. Its terms, after all, included an increase in wages not\npreviously offered and all items on which “tentative agreement” had been\nreached. Tr. at 263–64, 469. Furthermore, we underscore our agreement with\nthe Board’s clarification that as a matter of law, regressive offers are not per se\nillegal. That is, the label “regressive” has no independent legal force absent\nother circumstances. However, we reject the proposition that just because the\nregressive March 19 offer was not so substantively egregious as to ensure the\nend of talks, it could not have been part of a plan to derail discussions after its\nanticipated rejection.\n The proper question, then, is whether in fact the link between the March\n19 offer and Carey Salt’s plan to frustrate agreement rests on substantial\nevidence. We conclude that it does not. The ALJ bases her reasoning solely on\nthe purported admission by a Carey Salt negotiator that “the regressive changes\nin the March 19, 2010 proposal made it less attractive and harder for the union\nbargaining committee to present to the membership.” Board Decision at 11. In\nreviewing the Board’s finding of bad faith, we are obligated to consider the\n“totality of the employer’s conduct.” Hi-Tech Cable, 128 F.3d at 276. While we\ndo not engage in de novo review, “[t]he substantiality of evidence” must\nwithstand “whatever in the record fairly detracts from its weight.” Universal\nCamera, 340 U.S. at 488. Our review of the record does not support the\nconclusion that the March 19 offer was part of Carey Salt’s plan to frustrate\nagreement.\n First, we clarify precisely what was omitted from the final offer. Carey\nSalt had removed items proposed by the Union and incorporated into company\nproposals during previous sessions, but on which tentative agreement had not\n\n 20\n\f Case: 12-60757 Document: 00512448918 Page: 21 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nbeen reached—specifically, provisions regarding hazard pay terms and the\nalternate shift trial period. The second deletion was inconsequential, since\nCarey Salt never completely adopted the trial period, even in its own counter-\nproposals; debate persisted over the escape clause that could terminate the trial\nperiod. See infra Section III.A.2. As for the hazard pay provisions, the parties\nhad not reached tentative agreement, and even the Union negotiator testified\nthat he merely found the offer to be “unsettling.” Tr. at 264; see also Tr. at 449\n(explaining parties’ prior agreement that “nothing was to be deemed final as part\nof the negotiations until it was a tentative agreement”).\n Second, the ALJ misconstrues the Carey Salt negotiator’s admission. The\nnegotiator conceded on cross-examination only that the omissions “made that\npart of the contract [to which the omissions pertained] less attractive,” and that\nas a result, it would be harder for the Union negotiator to sell the March 19\nproposal to the membership. Tr. at 897–98 (emphasis added). As even Counsel\nfor the Board conceded twice during this questioning, the fact that certain\ndeletions would make the relevant portion of the proposal less attractive was\nmerely “a common sense thing.” Tr. at 898. Such inconsequential testimony\ndoes not prove that the offer overall was somehow calibrated for rejection.\nFurthermore, the ALJ decision obscures the fact that the March 19 offer\nincluded a 2.5 percent year-on-year wage increase. Board Decision at 11.14 Even\nif this increase had been in line with what the Union membership had expected,\nTr. at 898, it still represented an increase over Carey Salt’s prior formal offer of\nzero. Finally, the March 19 offer included numerous company concessions on\nbenefits, granted over the course of the entire negotiation. Board Decision at 6\n(discussing items on which tentative agreement had been reached). Nothing in\nthe March 19 offer suggests that it rises to the level of “empty talk,” F. Strauss\n\n 14\n The ALJ observes in passing that “The March 19, 2010 final offer not only included\na new wage proposal, but also eliminated a number of items . . . .” Board Decision at 11.\n\n 21\n\f Case: 12-60757 Document: 00512448918 Page: 22 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n& Son, 536 F.2d at 64, or that it was a mere “charade” that in fact betrayed “a\ndesire to frustrate agreement,” Glomac Plastics, 592 F.2d at 98.\n The Board is correct in contending that Carey Salt’s plan to discontinue\nnegotiations and declare impasse on March 31 was predicated on the Union’s\nrejection of the March 19 offer. However, the terms and context of the offer do\nnot establish that it was intentionally crafted as part of this overall plan.\nRather, we conclude that substantial evidence supports a far more plausible\nalternate account: Carey Salt assembled a final offer in good faith, which the\nUnion membership rejected on March 24. This rejection, and not the March 19\noffer itself, set in motion Carey Salt’s plan to terminate bargaining and declare\nimpasse, which was made and executed in bad faith and contravened\ncontemporaneous indications to the Union that it would return to bargaining.\nIn other words, the facts do not bear out a connection between the impermissible\nplan to frustrate bargaining and either the substance or formation of the March\n19 offer.\n In attempting to construct such a relationship, the ALJ erroneously\napplied the Board's prior decision in Valley Oil Company. 210 N.L.R.B. 370\n(1974). The ALJ read Valley Oil to stand for the proposition that withdrawal of\nprior agreed-upon items constitutes bad-faith bargaining. Id. at 384–86. First,\nValley Oil is inapposite because the withdrawn provisions here had not even\nattained “tentative agreement” status, as the ALJ acknowledged. Board\nDecision at 11. Furthermore, the Board in that case undertook a highly\ncontextual analysis and explained that changes in position “must be based on\nsome development in the negotiations and not merely because the negotiator\nchanges his mind.” Id. at 385. The Board found no material “development,” and\nconcluded that employer negotiators were merely using fickle tactics to\n“frustrat[e] arrival at a contract.” Id. Here, the Union’s request for a final offer\nto take to the membership did signal a significant “development,” and Carey Salt\n\n 22\n\f Case: 12-60757 Document: 00512448918 Page: 23 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\naccordingly made holistic adjustments to its prior bargaining position, such as\nincreasing wage growth and decreasing hazard pay. Cf. Chicago Local No.\n458-3M, Graphic Commc’ns Int’l Union v. NLRB, 206 F.3d 22, 29–34 (D.C. Cir.\n2000) (discussing Driftwood Convalescent Hosp., 312 N.L.R.B. 247 (1993), and\nholding employer withdrawal of agreed-upon terms to be lawful where Union\nfailure to ratify proposal before stated deadline provided good cause).\n Having reviewed the record, we conclude that substantial evidence\nsupports the Board’s finding that Carey Salt acted in bad faith leading up to its\nimpasse declaration on March 31. Good faith bargaining is a prerequisite to\nachieving a valid impasse. Elec. Mach., 653 F.2d at 963. Accordingly, we hold\nthat substantial evidence on the record considered as a whole supports the\nBoard’s finding that on March 31, in the absence of a valid impasse, Carey Salt\nunilaterally implemented changes to terms and conditions of employment.\n However, we hold that substantial evidence does not support the Board’s\nfinding that the regressive March 19 proposal was “part of [Carey Salt’s] overall\nplan to frustrate agreement.” The link to Carey Salt’s plan is too conjectural,\nand no feature of the March 19 offer or its context suggests bad-faith bargaining.\n 2\n Although the foregoing analysis already shows that substantial evidence\nsupports the Board’s no-impasse finding, we turn to the remaining two Taft\nfactors to clarify points of fact and law on which the Board erred. The fourth\nTaft factor is the importance of the issues giving rise to disagreement. The more\nimportant the issues, the more likely that impasse is genuine and not contrived.\nCarey Salt claims that the Board improperly minimized this factor.\n The ALJ began her analysis by acknowledging that the three “core” issues\nof overtime distribution, alternate shifts, and cross-assignment were of great\nimportance to both the Union and Carey Salt. At stake were significant changes\nto employees’ hours and pay, on the one hand, and long-sought improvements\n\n 23\n\f Case: 12-60757 Document: 00512448918 Page: 24 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nto the company’s operational efficiency, on the other. Board Decision at 12. But\nthe ALJ then cited evidence of “movement” on both sides that purportedly belied\nclaims of importance. According to the ALJ, on March 10, just over a week\nbefore the final offer was requested, the Union suggested changes to Carey Salt’s\nalternate shift proposal, and company negotiators incorporated the Union’s\nsuggestions into their own proposals. Id. at 6, 12.\n The ALJ explained that this March 10 exchange signified “movement,”\nwhich weakened the salience of the core issues’ importance, for two reasons.\nFirst, the ALJ reasoned that because Carey Salt was willing at one point to\ncompromise, and by implication might continue to display flexibility, the\nimportance of the issues “does not overshadow the other Taft factors in the\nimpasse analysis.” Id. at 12. Second, and similarly, the Union’s open\n“concession . . . on a significant issue” suggested that future compromise was\npossible, notwithstanding a persistent “wide gap” between bargaining positions.\nId. at 12 (quoting Saunders House v. NLRB, 719 F.2d 683, 688 (3d Cir. 1983)).\n We cannot agree with either reason. Regarding the first, the ALJ’s\ndetermination is based on a flawed reading of the record. As Carey Salt explains\non appeal, the company never made any “movement” because it never adopted\nthe Union’s trial period proposal in full. Rather, the company had incorporated\nthe general concept of a trial period into its own proposal, with a note that the\nescape clause was an outstanding point of dispute, and had consistently rejected\nthe Union’s escape clause option to revert to the original shifts.15 Moreover,\n\n\n 15\n According to Carey Salt, the ALJ mistook as the company’s own proposal a March 10\ndocument summarizing an alternate shift arrangement with a trial period and Union option\nto revert to the original shifts. As Carey Salt explains, this document was not a company\nproposal, since it lacked the “DRAFT” label appearing at the top of all company proposals.\nRather, this was merely a discussion document capturing the Union’s proposal. Board Ex. 5\nat 17. Carey Salt’s counter-proposal, by contrast, incorporated the trial period proposal, but\nexplicitly removed the Union’s option to revert to the original schedule, and tabled the escape\nclause issue for future discussion. Board Ex. 5 at 18.\n\n 24\n\f Case: 12-60757 Document: 00512448918 Page: 25 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\naccording to Carey Salt, the Union negotiator himself disclaimed his earlier\ntestimony that the company had incorporated the Union’s trial period in full into\nits own proposals. Tr. at 468.\n On appeal, neither the Union nor the Board contests Carey Salt’s detailed\ntreatment of the record, and the Board asserts that the ALJ correctly found that\nthe company adopted the Union’s trial period proposal in full. After reviewing\nthe record, we agree with Carey Salt that its receptiveness to the Union’s\ngeneral suggestion of a trial period does not constitute “movement,” given the\nabsence of agreement over the critical escape clause. Thus, the ALJ’s flawed\nfactual findings regarding the company’s “movement” do not provide substantial\nevidence in support of the Board’s no-impasse finding.16\n The ALJ’s second path of reasoning rests upon a conclusion of law, which\nwe review de novo. Arkema, 710 F.3d at 315. The ALJ invoked a sweeping\nproposition, purportedly extracted from the Third Circuit’s opinion in Saunders\nHouse v. NLRB, that a party’s un-withdrawn concession, however slight, on any\nsingle important issue precludes a finding of overall impasse. See Board\nDecision at 12 (citing Saunders House, 719 F.2d at 688). Even if we were to\naccept the persuasive value of Saunders House, the ALJ misstated the holding\nof that case.\n In Saunders House, the Third Circuit addressed the narrow question of\nwhether a union’s on-the-record concession regarding wage increases constituted\n\n\n 16\n Carey Salt contends that the ALJ’s misreading of the record, here and elsewhere,\nrises to the level of “ignoring” the record and, because we have held that such a blatant\noversight is incompatible with a decision based on substantial evidence on the record\nconsidered as a whole, that the Board’s no-impasse conclusion must be reversed. See Lord &\nTaylor, 703 F.2d at 169 (holding that when the Board ignores a portion of the record, the\nsubstantial evidence standard cannot be satisfied). This claim is without merit. Here, the\nBoard interpreted Carey Salt’s adoption of the general proposal for a trial period as sufficient\n“movement.” This interpretation was erroneous, and, therefore, no substantial evidence\ntherein can support the Board’s no-impasse finding. But this ultimate finding is not\ninvalidated by any ignoring of the record.\n\n 25\n\f Case: 12-60757 Document: 00512448918 Page: 26 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nsufficient movement to preclude impasse, when the employer had not directly\nrejected the concession, but had previously rejected the same offer\ncommunicated in an off-the-record exchange. The court held that while the on-\nthe-record offer was a “significant” concession given its departure from earlier\non-the-record offers, it was not “sufficient” to avert an impasse finding.\nSaunders House, 719 F.2d at 687–88. In explaining its decision, the court\nreasoned that a concession on an important issue could preclude impasse despite\n“a wide gap between the parties,” but that such a concession “must be one that\nshould encourage the parties to believe that further negotiations would not be\nfutile.” Id. at 688. The move from off- to on-the-record did not clear the\nsufficiency hurdle, given the employer’s prior knowledge of the union’s position.\nFurthermore, in the same case, the court accepted that impasse existed on the\nequally critical issue of union security despite a significant union concession\nbecause, as the court explained, the employer had flatly rejected that “attempted\ncompromise.” Id.\n Here, like the union security concession in Saunders House, the Union’s\nproposed trial period with reversion to the original shifts had been roundly\nrejected by Carey Salt when its March 10 counter-proposal did not incorporate\nthe Union’s escape clause. Board Ex. 5 at 18; see also Tr. at 468. Even accepting\narguendo that there was no explicit rejection, the Union’s trial period proposal\nwould be equivalent to the insufficient wage concession in Saunders House,\nbecause sharp disagreement over the escape clause did not encourage confidence\nin the fruitfulness of future talks. Tr. at 468 (Union negotiator conceded on\ncross-examination that Carey Salt representatives had emphasized that a Union\noption to revert to the prior schedule “would never be acceptable.”).\n The Board thus erred as a matter of law in reasoning that any kind of\nextended concession, despite rejection and remote chances of fueling future\ntalks, precludes impasse. Such a broad rule would stifle open, exploratory\n\n 26\n\f Case: 12-60757 Document: 00512448918 Page: 27 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nnegotiations on the most critical issues, for fear that even brainstorming would\nlater be deemed “movement” undermining a legitimate claim of impasse.\nAccordingly, the Board’s explication of the importance of the issues presents no\nsubstantial evidence to support its no-impasse determination.\n 3\n We come to the fifth and final Taft factor—the contemporaneous\nunderstanding of the parties. The Board determined that the parties had no\nshared belief that negotiations had, in fact, reached impasse. Carey Salt\ncontends on appeal that no substantial evidence under this factor supports the\noverall no-impasse finding.\n As explained above, Carey Salt submits that the Union’s request for a\n“final” offer was ample evidence of the Union’s belief on March 31 that further\ntalks were futile, but we determined that the ALJ made a proper credibility\ndetermination, and that therefore, neither party in fact understood the “final”\noffer request to signal the end of negotiations.17 However, this conclusion does\nnot end our inquiry. Whether the March 19 offer was truly “final” is an ancillary\nmatter under this particular Taft factor. As the ALJ and Board correctly intuit,\nthe core question is whether both parties believed further negotiation to be futile\nwhen impasse was declared. Cf. Powell Elec. Mfg., 906 F.2d at 1011–12\n(explaining that at impasse, “neither party” must be willing to yield). Even if the\nUnion negotiator returned to the table on March 31 expecting to bargain from\nCarey Salt’s “final” offer, we must determine whether substantial evidence of the\nlack of a contemporaneous sense of deadlock supports the Board’s finding that\ntalks were not at impasse.\n The ALJ first explains that the Union’s surprise and repeated denials of\nimpasse on March 31 suggest that no impasse existed. Board Decision at 12–13.\n\n\n 17\n See supra Section III.A.1.\n\n 27\n\f Case: 12-60757 Document: 00512448918 Page: 28 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nInitial surprise, however, is irrelevant to the question of whether the Union\nultimately believed that no further negotiation was possible. Cf. TruServ, 254\nF.3d at 1118 (reasoning that Board’s “focus on abruptness of the Company’s\nFinal Offer [and] on the Union’s surprise upon receiving it . . . misses the mark”).\nThe Union’s denials of impasse, while relevant, are likewise not substantial\nevidence of its beliefs about the state of negotiations, because as the ALJ herself\nreasoned, terms such as “impasse” and “deadlock” are non-binding legal\nconclusions. Board Decision at 12; see also TruServ, 254 F.3d at 1117\n(concluding that union’s “bald statement of disagreement” was insufficient to\ndefeat impasse, without “conduct demonstrating a willingness to compromise\nfurther”).\n The ALJ then cites the Union’s conduct as evidence of its genuine belief\nthat negotiations were ongoing. Engaging a federal mediator and taking time\nto explain the membership’s objections would have made no sense, explains the\nALJ, had the Union truly believed that further negotiations were futile. Board\nDecision at 13. This logic, however, is akin to the ALJ’s emphasis on the Union’s\nsurprise. The proper inquiry is not whether the Union expected or wished to\nprolong discussions, but whether both parties realized that any discussions\nwould be useless when Carey Salt negotiators declared impasse at 11 A.M. on\nMarch 31. Compare NLRB v. Hi-Way Billboards, Inc., 473 F.2d 649, 654–55 (5th\nCir. 1973) (parties reached impasse notwithstanding meeting with federal\nmediator on same day), with Huck Mfg., 693 F.2d at 1186 (explaining that\npresence of federal mediator at negotiations “immediately before and after the\nalleged impasse date” is evidence that talks “were continuing at that time” and\nthat no impasse existed). We thus conclude that the Board did not point to\n\n\n\n\n 28\n\f Case: 12-60757 Document: 00512448918 Page: 29 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nsubstantial evidence regarding the contemporaneous understanding of the\nparties in order to support its finding of no impasse.18\n Nonetheless, because there was substantial evidence of Carey Salt’s bad\nfaith leading up to the impasse declaration, we hold that the Board’s conclusion\nthat no impasse existed as of the March 31 implementation is supported by\nsubstantial evidence on the record considered as a whole. See supra Section\nIII.A.1; cf. Teamsters Local Union No. 639 v. NLRB, 924 F.2d 1078, 1083–84\n(D.C. Cir. 1991) (declining to review contested finding of bad faith determination\nand concluding that substantial evidence of short negotiations and lack of\ncontemporaneous understanding sufficed to support Board’s no-impasse finding);\nColfor Inc. v. NLRB, 838 F.2d 164, 167 (6th Cir. 1988) (declining to review four\ncontested Taft factors and concluding that substantial evidence of lack of\ncontemporaneous understanding alone supported Board’s no-impasse finding).19\nFor the same reasons, we hold that substantial evidence supports the Board’s\nconclusion that the strike commencing on April 7 was an unfair labor practice\nstrike. Accordingly, we enforce the relevant portions of the Board’s order.\n B\n\n\n 18\n The ALJ, responding to Carey Salt’s arguments, also explains that the Union’s failure\nto submit new proposals at the March 31 meeting would not have established impasse “in and\nof itself.” Board Decision at 13. This failure should not have been viewed in strict isolation.\nBy doing so, the ALJ minimized the arc of the entire negotiation, the importance of the core\nissues, and the disagreements over whether the offer was indeed “final.” However, this error\nis inconsequential. We are concerned strictly with whether substantial evidence supports the\nultimate no-impasse conclusion, and we have already determined that there is such evidence.\n 19\n Two members of the Board held that even if an impasse existed at the moment of\nCarey Salt’s 11 A.M. impasse declaration on March 31, the Union successfully broke this\nimpasse later in the day by its persistent requests for negotiations and explanations of its new\nproposals. See Gulf States Mfg. Co. v. NLRB, 704 F.2d 1390, 1399 (5th Cir. 1983) (“Anything\nthat creates a new possibility of fruitful discussion (even if it does not create a likelihood of\nagreement) breaks an impasse,” including “bargaining concessions, implied or explicit.”\n(internal citations omitted)). We need not consider this alternative no-impasse finding based\non the afternoon exchanges because we have already determined that the Board’s finding a\nlack of impasse after the morning meeting is supported by substantial evidence.\n\n 29\n\f Case: 12-60757 Document: 00512448918 Page: 30 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n Carey Salt further contends that the Board’s finding of an unlawful\nimplementation on June 27 in the absence of impasse is not supported by\nsubstantial evidence.\n The ALJ explained that the Taft factors reveal an even clearer lack of\nimpasse at the late June unilateral implementation, as compared to the March\nimplementation. The ALJ noted the shorter bargaining period of seven days, the\nlack of a contemporaneous understanding of impasse, and a history of\nnegotiations tainted by Carey Salt’s earlier bad faith. Board Decision at 24.\nMoreover, certain terms implemented on June 27 were not previously offered to\nthe Union, thereby bringing the implementation beyond the limits of even the\nimpasse exception. Id. at 25.\n Carey Salt’s claims on appeal are limited. It asserts that under the Taft\nrubric, the parties reached a good-faith impasse after the Union refused to\naccept the company’s seven core issues—three issues that had persisted since\nthe start of negotiations, and four more demands made in May. But the\ncompany essentially concedes that the Board may rely on findings of the\ncompany’s past bad faith if such findings are upheld on appeal.20\n Carey Salt’s claims regarding the June 27 implementation are without\nmerit. As noted above, the Board pointed to a shorter negotiations period and\nthe Union’s willingness to continue bargaining on open issues. Furthermore, the\nBoard’s uncontested reliance on Carey Salt’s earlier bad faith was permissible.\nAs the Board noted, previous bad-faith conduct does not automatically preclude\na later finding of good-faith impasse, but in certain cases, unilateral changes can\n“move the baseline for negotiations” and “alter the parties’ expectations about\nwhat they can achieve,” thereby frustrating the bargaining process. Id. at 24\n\n\n 20\n “If [the Board’s] unfair labor practices conclusions [regarding March 31 and May 22]\nare not supported by substantial evidence, as contended for herein, the June 27\nimplementation should be allowed to stand.” Carey Salt Br. at 43.\n\n 30\n\f Case: 12-60757 Document: 00512448918 Page: 31 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n(quoting Alwin Mfg. Co., Inc. v. NLRB, 192 F.3d 133, 139 (D.C. Cir. 1999)). In\nthis case, such spillover effects are evident in the record, found in the Union\nnegotiator’s direct references to the March 31 unlawful implementation in his\nprotestations of Carey Salt’s new assertions of impasse. Id. at 25. Finally,\nCarey Salt does not challenge the Board’s findings that certain implemented\nterms were never offered in negotiations, and such findings are based directly\non the Union negotiator’s testimony on this matter. See Tr. at 407–411.\n Accordingly, we hold that substantial evidence on the record considered\nas a whole supports the Board’s no-impasse determination regarding the June\n27 implementation, and we enforce the relevant portions of the order.\n IV\n The Board, adopting the ALJ’s conclusions, found that on three occasions,\nCarey Salt failed to bargain in good faith as required by Section 8(d) of the Act.\n29 U.S.C. § 158(d). The Board found that Carey Salt (1) failed to bargain and\nconditioned mandatory bargaining upon Union concessions between March 31\nand April 30; (2) presented a regressive proposal on May 25 that aimed to\nfrustrate agreement; and (3) conditioned mandatory bargaining on acceptance\nof certain terms from June 3 to June 22. On appeal, Carey Salt challenges each\nfinding.21\n Although our review of the Board’s findings here is governed by the\n“substantial evidence standard,” we are sensitive to the heightened complexity\nof assessing the subjective state of good faith. “The line between protected and\nproscribed conduct is a faint one that shifts with the circumstances of\n\n 21\n The parties agree that if the May 25 bargaining proposal is found to be unlawful,\nthen the proposal constitutes an unfair labor practice that prolonged the strike. Additionally,\nthe parties agree that if Carey Salt’s bargaining beginning on June 3 is unlawful, then it\nlikewise is an unfair labor practice that prolonged the strike through its final date of June 15.\nBecause we determined that no impasse existed on March 31 and that the strike was thus a\nprotected unfair labor practice strike from its inception, we need not hold that these incidents\nwere additional, later causes of the unfair labor practice strike.\n\n 31\n\f Case: 12-60757 Document: 00512448918 Page: 32 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nnegotiation.” Huck Mfg., 693 F.2d at 1187. Therefore, we must give “great\nweight” to the Board’s findings. Id.; see also Big Three Indus., 497 F.2d at 46–47\n(deferring to the Board’s finding of lack of good faith, unless “the record as a\nwhole leaves such judgment without reasonable foundation”).\n Section 8(d) of the Act defines the act of collective bargaining as a mutual\nduty “to meet at reasonable times and confer in good faith with respect to wages,\nhours, and other terms and conditions of employment . . . .” Id. § 158(d). The\nstatute provides explicitly, however, that such a duty does not “compel either\nparty to agree to a proposal or require the making of a concession.” Id. We need\nnot review again our and other courts’ interpretations of the duty to bargain in\ngood faith. See supra Section III. We note only one additional principle that\nguides our analysis below: The Board has held previously that the duty to\nbargain in good faith is suspended, though not terminated, during impasse.\nMcClatchy Newspapers, Inc., 321 N.L.R.B. 1386, 1389 (1996), enforced, 131 F.3d\n1026 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998).\n A\n Carey Salt first challenges the Board’s two findings regarding the period\nfrom March 31 to April 30—that the company refused to bargain in good faith\nand that it conditioned bargaining over mandatory subjects of bargaining on\nUnion concessions. The facts are sparse but largely undisputed. Just prior to\nthe March 31 implementation, Carey Salt negotiators refused to bargain further,\nabsent the Union’s total acceptance of its final offer. An April 1 email exchange\nconfirmed the company’s stance. Board Decision at 15. Representatives from\nboth parties met on April 20 for a less formal discussion to inform the Union’s\ndirector of the company’s views, at which “no bargaining” occurred by the\nUnion’s request, though Carey Salt contests this characterization. Id. at 16.\nThe parties did not meet again until April 30. Id. at 15.\n\n\n\n 32\n\f Case: 12-60757 Document: 00512448918 Page: 33 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n The ALJ’s reasoning is supported by substantial evidence: Carey Salt\nrefused to bargain and required the Union to agree to its final proposal before\nhaving further meetings, thereby violating its statutory duty to bargain in good\nfaith in the absence of valid impasse. See 29 U.S.C. § 158(a)(5), (d). In the April\n1 email exchange that froze discussion for weeks, the lead Carey Salt negotiator\nexplicitly premised her refusal to meet on the earlier impasse declaration.22 Had\nthe parties reached impasse, the duty to bargain might have been suspended\nabsent changed circumstances.23 See McClatchy, 321 N.L.R.B. at 1389.\nHowever, the impasse defense was invalid here, and Carey Salt’s refusal to meet\ntherefore evinced a lack of good faith.\n Carey Salt’s submissions on appeal are unpersuasive. According to Carey\nSalt, the Union concedes that the company never refused to meet after April 7\n\n\n\n 22\n In an April 1 email responding to the Union representative’s request for bargaining,\nlead Carey Salt negotiator Victoria Heider explained: “I will again remind you that it was you\nwho specifically asked the Company to put a final offer on the table . . . [H]aving given a final,\nit does not make any sense to have more meetings like yesterday where all I can say is to\nrepeat that you have our final . . . The Company is not interested in meeting somewhere\nbetween our final offer and your current position, whatever that is.” Carey Salt Ex. 13 at 10.\n 23\n We cannot accept the Board’s legal conclusion that even if impasse exists, any\nexercise of economic force, such as a union strike or employer unilateral implementation,\nautomatically and immediately breaks the impasse, thereby reviving the duty to bargain.\nSuch a principle is inconsistent with the very decisions cited by the Board. In Bonanno Linen,\nthe Supreme Court explained that impasse is a “temporary deadlock or hiatus in negotiations\n‘which in almost all cases is eventually broken, through either a change of mind or the\napplication of economic force.’” Bonanno Linen, 454 U.S. at 412 (quoting Board’s decision\nbelow, Bonanno Linen, 243 N.L.R.B. 1093, 1093–94 (1979)) (emphasis added). One party’s\napplication of economic force, in other words, “usually breaks the stalemate” and brings the\nother party back to the table, but whether such “changed circumstances” actually end the\nimpasse is a fact-specific inquiry. Hi-Way Billboards, Inc., 206 N.L.R.B. 22, 23 (1973)\n(emphasis added); see also Transport Co. of Tex., 175 N.L.R.B. 763, 763 n.1 (1969) (finding that\nend of impasse resulted from changes “under all the circumstances,” not from an intervening\nstrike alone (emphasis in original)). Therefore, had impasse existed here on March 31, neither\nCarey Salt’s unilateral implementation nor the Union’s strike would have broken the impasse\nand effected a new bargaining duty absent factual findings that circumstances had changed\nsuch that at least one party was willing to re-open negotiations. Because we concluded that\nno impasse existed, we need not venture further.\n\n 33\n\f Case: 12-60757 Document: 00512448918 Page: 34 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nand even agreed to the April 20 meeting in Houston. But we see nothing in the\ncircumstances of the Houston meeting to support either the Board’s or Carey\nSalt’s positions because the parties had agreed at the time that the meeting was\nnot a negotiation session.24 Carey Salt alternatively characterizes the parties’\nsilence as a permissible “delay” in talks, but its reliance on Chevron Oil is\nmisplaced. In that case, a mutual misunderstanding about when an employer\nneeded to submit information delayed a meeting by one month, and the company\nnever refused requests to bargain, as Carey Salt did. Chevron Oil, 442 F.2d at\n1070–71. Carey Salt, in the end, falls back on its assertion that the impasse\ncommencing on March 31 persisted into April, thereby removing any obligation\nto bargain; we have already disposed of the impasse claim. See supra Section\nIII.A.\n We conclude that the Board’s finding of Carey Salt’s failure to bargain in\ngood faith in April is supported by substantial evidence of the aforementioned\nlack of impasse and of the company’s refusal to negotiate throughout April. We\naccordingly enforce the relevant parts of the order.\n B\n Carey Salt challenges the Board’s finding that its “regressive” May 25\nproposal also constituted a failure to bargain in good faith. The ALJ emphasized\nthe May 25 offer’s role in an “entire pattern of conduct” to prolong the strike and\n“to avoid an agreement rather than reach one.” Board Decision at 19–20 (citing\nCent. Mo. Elec. Coop., 222 N.L.R.B. 1037, 1042 (1976)).25 Echoing the ALJ, the\n\n 24\n On the matter of the April 20 meeting in Houston, Carey Salt misconstrues the facts.\nThe session was not a bona fide bargaining session, because the Union explicitly requested an\noff-the-record bargaining-free informational session to enhance the Union director’s\nunderstanding of the situation, Tr. at 303, and Carey Salt agreed to the proposal, id., and no\nevidence suggests that genuine bargaining took place. See also Tr. at 1088.\n 25\n The Board modified one portion of the ALJ’s findings and order and explained that\ncontrary to the ALJ’s conclusions, the May 25 offer did not “leave the Union without any\nrepresentational rights and employees in a worse position than if they did not have the Union\n\n 34\n\f Case: 12-60757 Document: 00512448918 Page: 35 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nBoard explained that its adoption of the ALJ’s findings was based on “evidence\nthat [Carey Salt] presented its proposal in an intentional effort to frustrate\nagreement.” Id. at 1 n.7.\n The ALJ’s finding a violation in the May 25 offer is based on a contextual\nanalysis. Here, according to the ALJ, Carey Salt’s regressive offer effected a\nconcerted plan to lengthen the strike and to enable the hiring of more\nreplacement workers in the interim. In particular, the ALJ reasoned that Carey\nSalt not only withdrew concessions, but “knowingly added more demands” that\ncompany negotiators knew would be rejected. Id. at 19. The ALJ accepted that\nno per se rule outlaws regressive proposals and that Carey Salt enjoyed greater\nleverage after surviving the initial weeks of the strike. Notwithstanding these\nconsiderations, the ALJ concluded that Carey Salt failed to fulfill its legal duty\nof good-faith bargaining.\n Having examined the record, we conclude that there is no substantial\nevidence that Carey Salt transgressed the bounds of good faith. The ALJ first\nrecalls Carey Salt’s uncontested violation of threatening on April 30 to step up\nhiring of replacement workers in the absence of agreement. Tr. at 1089.\nHowever, this pressure tactic, while unlawful, aimed to expedite negotiations,\nnot delay or avoid agreement. The Board’s reliance on an email progress update\nto the CEO regarding the late May meetings is similarly misplaced. The text of\nthe email update, rather than expressing a desire to delay agreement, in fact\nconveys precisely the opposite intent. Negotiators wanted to bolster their\narguments for “implementing [absence control and safety policies] ASAP,” to\n“move [the Union] along a little quicker [sic]” when they sensed the pace of talks\n\n\nas their collective-bargaining representative.” Board Decision at 2. Carey Salt calls our\nattention to this modification but does not claim that this change alone fatally undermined the\nALJ’s reasoning. After all, the finding that the May 25 offer was regressive was based on\nother contextual evidence regarding Carey Salt’s “entire pattern of conduct,” which evidence\nwe examine and reject below. Id. at 19–21.\n\n 35\n\f Case: 12-60757 Document: 00512448918 Page: 36 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nwas slackening, and to “try[] aggressively to overcome potential stalling tactics.”\nBoard Ex. 10 at 11.26\n The Board’s strongest evidence is another internal email, in which the lead\nCarey Salt negotiator explains to the CEO that her proposing a meeting date for\nthe following week should “forestall the union calling off the strike before\nthen.”27 Board Ex. 10 at 6. Yet the record reveals no direct “nexus” between the\nCarey Salt’s conduct away from the bargaining table—the email at issue—and\nits actions at the bargaining table. Hi-Tech Cable, 128 F.3d at 277 (concluding\nthat bargaining conduct was not linked to isolated unlawful statements to\nemployee). The email was nothing more than an internal explanation of a\nscheduling proposal. The Union, fully aware of the risks of prolonging the strike,\nwas free to reject that proposal, and it did not. The Carey Salt negotiator’s hope\nthat a later meeting date would lengthen the strike, while justifying heightened\nscrutiny by the Board, is not alone sufficient evidence of a concerted plan to\navert agreement, in light of other evidence to the contrary. Carey Salt rightly\nreminds us that collective bargaining is a messy process, and that the law\npermits each side to extract concessions when it has the upper hand. See NLRB\nv. Randle-Eastern Ambulance Servs., Inc., 584 F.2d 720, 726 (5th Cir. 1978).\nAlthough the Board may examine bargaining proposals to detect surface\nbargaining, having reviewed the record, we determine that there is no\nsubstantial evidence to support such a finding here.\n We pause to distinguish the permissible May 25 offer from Carey Salt’s\nplans for late March, which the Board properly found to be aimed at frustrating\n\n\n\n 26\n As further evidence that the team was not planning to frustrate agreement, the\nCEO’s email response cautions against moving too quickly, explaining his preference for a\nslower road to a more robust agreement, over rushing to a weaker contract.\n 27\n During cross-examination before the ALJ, Heider’s testimony on this point was\nequivocal at best; in the end, she conceded that “this is what it is.” Tr. at 126.\n\n 36\n\f Case: 12-60757 Document: 00512448918 Page: 37 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nagreement. In late March, Carey Salt seized upon the Union’s use of the words\n“final offer” to terminate a meeting prematurely, swiftly implemented a planned\nimpasse, and refused to bargain further, despite the Union’s previously stated\nexpectation of continuing talks in the event of the offer’s rejection. As we have\ndiscussed, under those facts, substantial evidence of bad faith supports the\nBoard’s no-impasse conclusion. By contrast, in late May, company negotiators\nengaged their Union counterparts in two full-day sessions, had a plan of action\nin case the Union did agree, and expressed no intention to abandon talks.28 To\nbe sure, the May 25 offer contained elements that Carey Salt expected the Union\nwould reject initially, and company negotiators knew that impasse was an\neventual possibility looming in the distance.29 But unlike in March, they were\nnot seeking to derail the negotiation and to declare impasse abruptly, in order\nto enable unilateral implementation of contract changes.\n In light of the foregoing, we hold that substantial evidence does not\nsupport the Board’s finding that, on May 25, Carey Salt failed to bargain in good\nfaith by presenting a regressive proposal aiming to frustrate agreement. We\nhave already made the same determination with respect to the March 19 offer.\nSee supra Section III.A.1. Accordingly, we vacate Part 1(f) of the order, which\nrequires Carey Salt to cease and desist from “[p]resenting the Union with\nregressive bargaining proposals for the purpose of frustrating the negotiation of\na collective-bargaining agreement.”\n\n\n 28\n See Tr. at 322–42 (Heider’s testimony summarizing May 25 negotiation); Tr. at\n342–53 (Heider’s testimony summarizing May 26 negotiation). Heider’s email update to the\nCEO explains her consideration of the possibility of agreement and her plans to continue talks.\nSee Board Ex. 10 at 12 (“If by chance [the Union] did agree on [the five key issues], we would\nthen move on to other issues.”); id. (“The negotiations are scheduled to continue next\nWednesday and Thursday (June 2 and 3).”).\n 29\n Heider explained in her email update that the Carey Salt team was “on target either\nto reach the perfect contract or bargain to impasse within the ~30 day time frame.” See Board\nEx. 10 at 11.\n\n 37\n\f Case: 12-60757 Document: 00512448918 Page: 38 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\n C\n Carey Salt challenges the Board’s finding that from June 3 to June 22, it\nconditioned further mandatory bargaining on the Union’s acceptance of certain\nterms.30 The ALJ found that Carey Salt rejected Union proposals and insisted\nthat Union acceptance of its seven core issues would be a precondition to further\ntalks. Board Decision at 23–24.\n Carey Salt claims that the ALJ misinterpreted the company’s position. It\ndirects us to the Union negotiator’s notes explaining that company negotiators\nsought alignment on core issues not as a condition for further bargaining, but as\na requirement “in order to get to a [collective-bargaining agreement].” See Carey\nSalt Ex. 31 at 21. While this distinction is important, it does not undermine the\nsubstantial evidence that the company indeed established conditions not only for\nagreement, but also for bargaining over topics including the mandatory subject\nof wages.31 Carey Salt then asserts that its additional offers on June 17 and\nJune 22, which took a more conciliatory stance, preclude a finding of unlawful\nconditional bargaining. While these offers demonstrated certain flexibility, the\n\n\n\n\n 30\n We do not consider evidence from June 23, discussed in the Board decision, because\nthe ALJ’s conclusion states explicitly that Carey Salt “engaged in the unlawful conduct [of\nconditioning mandatory bargaining upon Union concessions] only during the period of time\nbetween June 3 and June 22, 2010 . . . .” Board Decision at 24 (emphasis added).\n 31\n See Tr. at 365; Tr. at 373 (indicating that Union had proposed higher wage increases\non June 2, and that wages were one of the other issues over which Carey Salt, on June 3,\nrefused to bargain until the Union accepted the core issues); Tr. at 373 (“[Carey Salt\nnegotiators] were not going to discuss those issues [including wages] . . . we had to accept their\nseven core issues, or we would not get a contract.”) (emphasis added); Tr. at 1137 (Heider’s\ntestimony on cross-examination conceding that she stated on June 3 that although the\ncompany had “movement,” negotiators would not “use it unless and until the union accepts .\n. . [its] priorities,” and that “[t]here is no incentive for [Carey Salt] to talk about other things\nthat are not priorities . . . .”).\n\n 38\n\f Case: 12-60757 Document: 00512448918 Page: 39 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nrecord shows that Carey Salt maintained its position of refusing to discuss wages\nand other issues until the Union acquiesced to its core demands.32\n Substantial evidence thus supports the ALJ’s finding that Carey Salt\nunlawfully conditioned mandatory bargaining on first obtaining concessions. We\nenforce the relevant parts of the order.33\n V\n The Board, adopting the ALJ’s findings, determined that Carey Salt’s\nvarious actions toward strikers violated Section 8(a)(1), (3), and (5) of the Act.\n29 U.S.C. § 158(a)(1), (3), (5). Specifically, the Board found that Carey Salt (1)\nthreatened to replace strikers; (2) failed to reinstate strikers; (3) failed to use\nseniority in recalling strikers; (4) continued to honor job offers to replacement\nworkers; and (5) changed the time period for strikers to accept re-employment\noffers. Carey Salt does not contest the first and last findings. As to the second\nand fourth, Carey Salt’s only line of defense is that because the strike was not\n\n\n 32\n Heider, in a June 17 email to Union negotiators, again refused to bargain about\nwages absent certain conditions: “You say that if the money is right, everything else can\ndisappear.? [sic] Well, here, if you can give me the merit, shared work and contracting\nlanguage, like money for your folks, this will open up things on my end.” Board Ex. 33(b).\n 33\n The ALJ cited an early Board decision for the principle that a “take it or leave it”\nattitude violates the duty to bargain in good faith, even when a party genuinely desires\nagreement. Board Decision at 23 (citing Gen. Elec. Co., 150 N.L.R.B. 192, 194 (1964).\nAlthough we generally extend a degree of deference to prior Board decisions under Skidmore\nv. Swift, 323 U.S. 134 (1944), here, we decline to adopt the reasoning of General Electric. In\nGeneral Electric, the Board, in a fractured decision, declared that a “take it or leave it”\nattitude constitutes bad faith, and therefore a violation of the duty to bargain, even where the\noffending party desires agreement. Gen. Elec. Co., 150 N.L.R.B. at 194. In this proclamation,\nthe Board purported to rely on the Supreme Court’s decision in NLRB v. Insurance Agents’\nInternational Union, AFL-CIO, 361 U.S. 477 (1960). We need not determine today the precise\nmeaning of the phrase “take it or leave it,” but note only that the Board in General Electric\nimproperly broadened its scope. The Supreme Court explained that a “take it or leave it”\nattitude is mutually exclusive of a genuine “desire to reach ultimate agreement.” Ins. Agents’\nInt’l Union, 361 U.S. at 485. Therefore, a “take it or leave it” attitude, wherever the Board\nchooses to find it, must presuppose at least indifference to agreement. Because the Board\nmade no findings regarding such indifference during the conditional bargaining at issue in\nJune, the prohibition on a “take it or leave it” attitude is inapplicable.\n\n 39\n\f Case: 12-60757 Document: 00512448918 Page: 40 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\na protected unfair labor practice strike, it had no duties toward strikers. This\ndefense must fail; we found above that the strike was indeed an unfair labor\npractice strike caused by the unlawful March 31 implementation. See Poly-\nAmerica, 260 F.3d at 476 (holding that strikers who protest unfair labor\npractices are entitled to unconditional reinstatement).\n Carey Salt’s only remaining claim on appeal regarding its treatment of\nstrikers is that because it had no pre-existing duty to recall strikers by seniority,\nits merit-based recall was lawful. Under Section 8(a)(5) and 8(d) of the Act,\nemployers must preserve the “status quo” during negotiations until the parties\nreach agreement or impasse, and this status quo can be defined by an expired\ncollective-bargaining agreement. See Litton Fin. Printing Div. v. NLRB, 501\nU.S. 190, 206–207 (1991) (holding that expired contract terms remain “imposed\nby law” during negotiations). Carey Salt contends that the post-strike recall\npresented an entirely new scenario for the company, to which no prior “status\nquo” agreement applied.34 The parties do not dispute that the expired collective-\nbargaining agreement required that recalls be based on seniority, but Carey Salt\nasserts, without any factual basis, that those provisions governed only recalls\nfollowing lay-offs, not those after strikes. In essence, Carey Salt attempts to\ncharacterize its merit-based recall as a wholly new measure, which, without a\nstatus quo corollary, was entirely lawful.\n This contention is unpersuasive. Carey Salt’s own mine manager conceded\nthat the expired contract’s seniority-based recall procedures would have applied\nin the post-strike context as well. Board Decision at 28; Tr. at 155–56. This\nconclusion comports with our own reading of the expired agreement, which does\n\n\n 34\n Carey Salt’s briefing on this point is not entirely lucid, but it seems first to argue that\nthe unilateral change in recall procedure was justified under Pinkston-Hollar because it tried\nto engage the Union on the recall issue, but the Union only rejected the offer without\nrequesting further bargaining. We do not address this alternative defense further, as Carey\nSalt concedes that it is waived for lack of assertion before the Board. See supra Section III n.3.\n\n 40\n\f Case: 12-60757 Document: 00512448918 Page: 41 Date Filed: 11/21/2013\n\n\n\n No. 12-60757\n\nnot exempt post-strike recalls. Board Ex. 3(b); see In re Liljeberg Enters., Inc.,\n304 F.3d 410, 439 (5th Cir. 2002) (contract interpretation is a question of law).\nThus, given the absence of either impasse or any superseding agreement when\nthe strike ended on June 15, Carey Salt had no power to effect a new merit-\nbased recall procedure. Substantial evidence thus supports the Board’s finding\nthat Carey Salt unlawfully failed to recall striking employees by seniority. We\naccordingly enforce the relevant portion of the order.\n VI\n Accordingly, the Board’s order is ENFORCED in part and VACATED in\npart.\n\n\n\n\n 41\n\f", "ocr": false, "opinion_id": 2650239 } ]

[ "2013 Ohio 5214" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/1/2013/2013-ohio-5214.pdf", "author_id": null, "opinion_text": " [Cite as State v. Harrington, 2013-Ohio-5214.]\n IN THE COURT OF APPEALS\n FIRST APPELLATE DISTRICT OF OHIO\n HAMILTON COUNTY, OHIO\n\n\n\nSTATE OF OHIO, : APPEAL NO. C-120850\n TRIAL NO. 12TRC-7520A\n Plaintiff-Appellant, :\n O P I N I O N.\n vs. :\n\nMAGGIE HARRINGTON, :\n\n Defendant-Appellee. :\n\n\n\n\nCriminal Appeal From: Hamilton County Municipal Court\n\nJudgment Appealed From Is: Reversed and Cause Remanded\n\nDate of Judgment Entry on Appeal: November 27, 2013\n\n\nJohn P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Jennifer\nBishop, Assistant City Prosecutor, for Plaintiff-Appellant,\n\nMatt Ernst, for Defendant-Appellee.\n\n\n\n\nPlease note: this case has been removed from the accelerated calendar.\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n\nD E W INE , Judge.\n\n {¶1} This is an appeal by the city of Cincinnati from a decision suppressing\n\nthe result of a breathalyzer test. In this case, we deal once again with the loss of certain\n\ndata from a computer server maintained by the Ohio Department of Health (“ODH”).\n\nWe previously have held that the lost data did not require the suppression of\n\nbreathalyzer test results for violating Ohio Adm.Code 3701-53-01(A), which requires\n\nthat breathalyzer test results be maintained for three years. See, e.g., State v. Wirth, 1st\n\nDist. Hamilton No. C-120070, 2013-Ohio-___. This case, however, raises the additional\n\nissue of whether the data loss results in a violation of Ohio Adm.Code 3701-53-04(G),\n\nwhich mandates that the results of dry gas controls be retained for three years. We hold\n\nthat it does not, and we reverse the decision of the trial court.\n\n I.\n\n {¶2} On February 15, 2012, Maggie Harrington was arrested and charged\n\nwith driving under the influence of alcohol under R.C. 4511.19(A)(1)(a), driving with a\n\nprohibited level of alcohol in her breath under R.C. 4511.19(A)(1)(d), and speeding under\n\nR.C. 4511.21(C). She submitted to a breath test on Intoxilyzer 8000 machine No. 80-\n\n004096, which revealed a breath-alcohol content in excess of the legal limit. Ms.\n\nHarrington filed a motion to suppress the test result. After an evidentiary hearing, the\n\ntrial court found that the city failed to demonstrate substantial compliance with the\n\nODH regulations and granted the motion.\n\n {¶3} The testimony at the hearing revealed that the test sequence on an\n\nIntoxilyzer 8000 consists of a series of “air blanks” and “dry gas controls,” which ensure\n\nthat the machine is producing accurate measurements, as well as two breath samples,\n\nthe lower of which is used as the final breath-alcohol result. The machine prints a\n\n\n\n\n 2\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n“subject test report” containing the test sequence information after each breath test, and\n\nMs. Harrington received a copy of the report for her test. The ODH maintains this\n\ninformation in its database for a minimum of three years. As a result of an ODH server\n\nerror, however, data from breath tests administered on the same machine between\n\nDecember 15, 2011, and December 22, 2011, was not uploaded from the machine to the\n\nODH database. This machine had been placed into service at the District 2 police station\n\nin June 2011. A logbook kept at District 2 contains the results of the breath tests, but no\n\nadditional data. By comparing its records with the logbook, the ODH determined that it\n\nhad lost data for ten breath tests during this time. The ODH duplicated the missing\n\nbreath results from the logbook and obtained copies of some of the ten subject test\n\nreports printed from the machine, but it is not clear from the record exactly how many\n\nsubject test reports ODH obtained. Extrinsic data not included in the logbook or subject\n\ntest printouts has been irretrievably lost.\n\n {¶4} As a result of the lost data, the trial court found that the city had not\n\ndemonstrated substantial compliance with Ohio Adm.Code 3701-53-01(A) and 3701-53-\n\n04(G),1 which require that the results of breath tests and dry gas controls be retained for\n\nat least three years. The trial court also determined that the ODH had not established\n\nprocedures for issuing permits for Intoxilyzer 8000 operators, as required by R.C.\n\n4511.19 and 3701.143. The city raises two assignments of error challenging each of these\n\nconclusions.\n\n\n\n\n1 Both the trial court’s decision and Ms. Harrington’s appellate brief refer to Ohio Adm.Code\n3701-53-01(G), but this provision does not exist. We presume that they were referring instead to\nOhio Adm.Code 3701-53-04(G), as defense counsel used language from this section in support of\nhis closing argument on the record-retention issue.\n\n\n 3\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n II.A.\n\n {¶5} The city contends in its first assignment of error that the trial court erred\n\nin suppressing the test based on noncompliance with the record-retention provisions.\n\n {¶6} There are two issues here: compliance with Ohio Adm.Code 3701-53-\n\n01(A), which requires that the results of “tests” be retained for three years, and\n\ncompliance with Ohio Adm.Code 3701-53-04(G), which requires that the results of\n\n“controls” be maintained for three years.\n\n {¶7} We have dealt with the Ohio Adm.Code 3701-53-01(A) test-result issue\n\npreviously. See State v. Muchmore, 1st Dist. Hamilton No. C-120830, 2013-Ohio-5100;\n\nState v. Wirth, 1st Dist. Hamilton No. C-120070, 2013-Ohio-___. In those opinions, we\n\nheld that the “test result” is the lower of the two breath-alcohol measurements taken\n\nduring the test. Muchmore at ¶ 31; Wirth at ¶ 6. Since the test results were maintained,\n\nthere was no basis for suppression, notwithstanding the loss of other extrinsic data.\n\nBased upon our holdings in Muchmore and Wirth, we reject Ms. Harrington’s argument\n\nthat her breathalyzer test should be suppressed for failure to comply with Ohio\n\nAdm.Code 3701-53-01(A).\n\n {¶8} The new issue in this case is whether the tests should be suppressed\n\nunder Ohio Adm.Code 3701-53-04(G) because of the loss of the results of “controls”\n\nfrom tests administered to other individuals during the seven-day period when the\n\ncomputer glitch occurred. We apply a burden-shifting analysis. The state must show\n\nsubstantial compliance with ODH regulations, and if the state meets that burden, a\n\nrebuttable presumption arises that the test results are admissible. State v. Burnside,\n\n100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71; State v. Booth, 1st Dist. Hamilton\n\nNo. C-070184, 2008-Ohio-1274. Then, the burden shifts back to the defendant to show\n\nthat he or she “was prejudiced by anything less than strict compliance.” Id.\n\n\n\n 4\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\n {¶9} Here, dry gas control results from ten breathalyzer tests were not\n\ntransmitted from the machine to the ODH database. The ODH has duplicated some, but\n\nnot all, of the missing dry gas control results by obtaining copies of the subject test\n\nreport printouts from the machine, and the evidence indicates that the ODH has\n\notherwise maintained dry gas control results from this machine for the requisite three\n\nyears. We cannot say that the loss of dry gas control results from fewer than ten tests\n\nover the eight months in which the machine was in service prior to Ms. Harrington’s test\n\nnegates the city’s evidence of retention of all other dry gas control results from this\n\nmachine. Were we to hold otherwise, it would follow that “any deviation whatsoever\n\nfrom the regulation render[s] the results of a [test] inadmissible.” Burnside at ¶ 34,\n\nquoting State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986). The Ohio\n\nSupreme Court explicitly rejected such a harsh standard, recognizing instead that “strict\n\ncompliance is not always realistically or humanly possible.” Id. We, therefore, find the\n\ncity’s evidence of retention sufficient to meet the substantial-compliance standard.\n\n {¶10} Furthermore, Ms. Harrington has not demonstrated any prejudice. Her\n\nbreath-test result and the results of the dry gas controls performed during her test were\n\nnot lost. Likewise, the results of all ten missing breath tests have been duplicated, and\n\nshe has not shown that the loss of dry gas control results from a few tests compromises\n\nthe accuracy or evidentiary value of her own breath-alcohol result. The first assignment\n\nof error is sustained.\n\n II.B.\n\n {¶11} In its second assignment of error, the city asserts that the trial court\n\nerred by finding that the ODH failed to establish procedures for issuing Intoxilyzer 8000\n\noperator permits, as required by R.C. 4511.19 and 3701.143. Based upon our decision in\n\n\n\n\n 5\n\f OHIO FIRST DISTRICT COURT OF APPEALS\n\n\n\nState v. McMahon, 1st Dist. Hamilton No. C-120728, 2013-Ohio-2557, we sustain this\n\nassignment of error as well.\n\n III.\n\n {¶12} The trial court’s judgment granting Ms. Harrington’s motion to suppress\n\nis reversed, and this case is remanded for further proceedings.\n\n\nD INKELACKER , P.J., and F ISCHER , J., concur.\n\n\nPlease note:\n\n The court has recorded its own entry on the date of the release of this opinion.\n\n\n\n\n 6\n\f", "ocr": false, "opinion_id": 2692232 } ]

[ "190 N.E.2d 215", "346 Mass. 62" ]

[ { "author_str": "Reardon", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4749, "opinion_text": "\n346 Mass. 62 (1963)\n190 N.E.2d 215\nJAMES F. MADIGAN\nvs.\nMARK J. McCANN, SR., &amp; others.\nSupreme Judicial Court of Massachusetts, Suffolk.\nFebruary 5, 1963.\nMay 7, 1963.\nPresent: WILKINS, C.J., SPALDING, WHITTEMORE, KIRK, &amp; REARDON, JJ.\nGeorge N. Prifti &amp; John P. Nalty, for the defendants, submitted a brief.\nJames R. DeGiacomo for the plaintiff.\n*63 REARDON, J.\nThe plaintiff seeks to rescind his purchase of an alleged fifty per cent partnership interest in a hardware business conducted as \"McCann Bros.\" in West Roxbury, because of the fraud and misrepresentations of the defendants. There was no appeal from an interlocutory decree confirming the master's report and the case is here on appeal from a final decree ordering the defendants (save Dorothy J. McCann to whom reference is not hereinafter made) to pay the plaintiff the total sum due him as found by the master, together with interest and costs.\nThe plaintiff was found to have been the victim of calculated deceit practised upon him in concert by the defendants. The defendants, in various ways and at various times, represented that one of them owned and was entitled to sell a half interest in the business when, in fact, that interest was owned by another person and, further, that the business was profitable when, in fact, it showed constant losses. Among the specific deliberate misrepresentations made by them with intent to deceive were these: that no books or records were available other than a simplified sales book which set forth daily receipts only; that accounts payable were $5,600 when they were at least $10,000; that accounts receivable were $3,000 when they were $2,000; and that inventory was more than $20,000 when it was $9,000. The plaintiff reposed great confidence in the defendants to the extent that he never retained the services of an attorney or an accountant in any of the negotiations or transactions. On or about August 3, 1960, the plaintiff purchased the alleged fifty per cent interest in the business and commenced conducting the enterprise in partnership with the defendant Richard K. McCann. Within three and one-half months after that date the plaintiff made additional contributions of $21,500 to the business. In September, 1961, the lawful owner of the interest allegedly sold appeared and, for the first time, the plaintiff saw the situation in its true light. He thereupon took action to terminate the partnership and brought this bill. The plaintiff acted promptly after ascertaining the facts, and in no way acquiesced in the actions of *64 the defendants which affected him. Pursuant to court order, the partnership property was sold and the proceeds employed to pay creditors of the partnership, the balance being retained until further order of the court.\nWe are concerned solely with \"whether the findings of the master are mutually inconsistent or plainly wrong ... and whether the decree is within the scope of the pleadings and supported by the facts found.\" Lukas v. Leventhal, 344 Mass. 762. His findings are final and binding upon us unless they are mutually inconsistent, contradictory, or plainly wrong. Sykes v. Smith, 333 Mass. 560, 565. Spencer v. Rabidou, 340 Mass. 91, 92. Flynn v. Korsack, 343 Mass. 15, 17. No such defects mar the master's report here. Since the master has stated that his conclusions are based upon all the evidence, the court is bound by them unless the subsidiary findings clearly demonstrate that they are unsound, or unless it is unmistakably apparent that they could not be justified upon any evidence before the master. Norton v. Chioda, 317 Mass. 446, 450. De Angelis v. Palladino, 318 Mass. 251, 256. Shoer v. Daffe, 337 Mass. 420, 423.\nThe court may draw reasonable inferences from the findings. American Window Cleaning Co. of Springfield, Mass. v. Cohen, 343 Mass. 195, 200. Apparently the master and the judge inferred on justifiable and proper grounds that the plaintiff made his purchase and subsequent further investments in this business in reliance on false representations made in a legerdemain which caused the plaintiff to do as the defendants desired and expected. Their fraud and wrongdoing directly produced the plaintiff's successive contributions. See McCarthy v. Brockton Natl. Bank, 314 Mass. 318, 328. All the essential elements of deceit were present and proved, and the defendants are liable for the consequences of their fraud which snared the plaintiff and his contributions into their net. Richards v. Todd, 127 Mass. 167, 173. Grossman v. Lewis, 226 Mass. 163, 167. Acting in combination as they did, they are jointly and severally liable, ibid, 167, and the plaintiff is entitled to be returned to a position as good as that he would have been in *65 had he not been defrauded.[1]Stewart v. Joyce, 205 Mass. 371, 373. Rice v. Price, 340 Mass. 502, 508-511. Williston, Contracts (Rev. ed.) § 1523. See G.L.c. 108A, § 39. He is also entitled to adequate compensation for those services rendered by him prior to the termination of the partnership. Richards v. Todd, 127 Mass. 167, 173. Williston, Contracts (Rev. ed.) §§ 1459 and 1525. The master found that he had drawn $100 weekly from the business and that such an amount was adequate.\nThe contention of the defendants that they should escape liability because accounts receivable cards were accessible to the plaintiff and because he made no effort to ascertain the exact value of the inventory is without merit. He was entitled to rely within reason on their misrepresentations as being facts within their knowledge and he was under no obligation to investigate the truth of their statements. Yorke v. Taylor, 332 Mass. 368, 374.\nDecree affirmed with costs.\nNOTES\n[1] The final decree ordered the defendants jointly and severally to pay to the plaintiff $8,000 which he had paid for a one-half interest in the business, and further sums totalling $21,500, together with interest and costs. REPORTER.\n\n", "ocr": false, "opinion_id": 2193255 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/0584992.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\nPresent: Judges Benton, Coleman and Lemons ∗\nArgued at Richmond, Virginia\n\n\nEDDIE LEE GILLS\n MEMORANDUM OPINION ∗∗ BY\nv. Record No. 0584-99-2 JUDGE SAM W. COLEMAN III\n JULY 5, 2000\nCOMMONWEALTH OF VIRGINIA\n\n\n FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY\n Robert G. O'Hara, Jr., Judge\n\n Steven D. Benjamin (Betty Layne DesPortes;\n Benjamin & DesPortes, P.C., on briefs), for\n appellant.\n\n Amy L. Marshall, Assistant Attorney General\n (Mark L. Earley, Attorney General, on brief),\n for appellee.\n\n\n Eddie Lee Gills was convicted following a bench trial of\n\nfeloniously driving after having been declared an habitual\n\noffender, a second or subsequent offense, in violation of Code\n\n§ 46.2-357. On appeal, Gills argues that the trial court erred\n\nby admitting the certified copy of a district court warrant,\n\nwith certain dispositional notations thereon, as evidence of a\n\nprior habitual offender violation. He contends that the\n\n ∗\n Justice Lemons participated in the hearing and decision of\nthis case prior to his investiture as a Justice of the Supreme\nCourt of Virginia.\n ∗∗\n Pursuant to Code § 17.1-413, recodifying Code\n§ 17-116.010, this opinion is not designated for publication.\n\fnotations on the warrant are insufficient to support the\n\nconviction because they do not prove a prior conviction of\n\ndriving after having been declared an habitual offender. We\n\nagree that the notations on the warrant are insufficient to\n\nprove a prior conviction of driving after having been declared\n\nan habitual offender. Accordingly, we reverse the habitual\n\noffender conviction as a second or subsequent offense and remand\n\nthe case to the trial court for sentencing as a first offense\n\nunder Code § 46.2-357.\n\n BACKGROUND\n\n On review of a challenge to the sufficiency of the\n\nevidence, we view the evidence in the light most favorable to\n\nthe Commonwealth, the prevailing party, and grant to it all\n\nreasonable inferences fairly deducible therefrom. See\n\nCommonwealth v. Jenkins, 225 Va. 516, 521, 499 S.E.2d 263, 265\n\n(1998). On October 18, 1997, Gills was arrested and charged\n\nwith feloniously driving after having been declared an habitual\n\noffender, a second or subsequent offense. At trial, the\n\nCommonwealth introduced a certified copy of an order of the\n\nCircuit Court for Stafford County to prove that Gills had been\n\ndeclared an habitual offender. The Commonwealth also proffered\n\na certified copy of a warrant from a district court proceeding\n\nas evidence that Gills had previously been convicted of driving\n\nafter being declared an habitual offender in violation of Code\n\n\n - 2 -\n\f§ 46.2-357(B)(1). 1 Gills, relying on the holding in McBride v.\n\nCommonwealth, 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997),\n\nobjected to the introduction of the warrant. He argued that the\n\nwarrant failed to indicate the offense of which he was\n\nconvicted; thus, it failed to prove that he had been convicted\n\nof driving after having been declared an habitual offender in\n\nviolation of Code § 46.2-357(B)(1). The trial court admitted\n\nthe evidence, finding that McBride was factually distinguishable\n\nfrom the instant case. The Commonwealth offered no other\n\nevidence to prove the prior conviction.\n\n ANALYSIS\n\n Gills argues that the trial court erred by admitting the\n\nwarrant as evidence of his prior conviction because the warrant\n\n\n 1\n The relevant portion of the warrant, which charged Gills\nwith driving in Stafford County on February 14, 1997, after\nhaving been declared an habitual offender, also showed the\nfollowing:\n\n The Accused Pleaded:\n ____ not guilty\n ____ nolo contendere\n X guilty\n\n And was TRIED and FOUND by me:\n ____ not guilty\n ____ guilty as charged\n ____ guilty of _____________\n\nThe warrant also contained notations that Gills was present and\nrepresented by counsel and that the judge imposed a $300 fine\nand a ninety day jail sentence with sixty days suspended for\nthree years conditioned upon good behavior and keeping the\npeace.\n\n\n - 3 -\n\fwas irrelevant, incompetent, and insufficient to prove the prior\n\nviolation, an element which the Commonwealth was required to\n\nprove under the statute. Gills argues that, although the\n\nnotation on the warrant indicates that Gills pled guilty and was\n\nsentenced, the warrant fails to indicate that Gills was found\n\nguilty of the charged offense.\n\n Despite the Commonwealth's assertion that Gills failed to\n\nchallenge the sufficiency of the evidence below, we find that\n\nGills preserved the issue for appeal. See Rule 5A:18; see also\n\nMounce v. Commonwealth, 4 Va. App. 433, 434, 357 S.E.2d 742, 743\n\n(1987). As a basis for objecting to the admissibility of the\n\nwarrant for the prior offense, Gills expressly relied on the\n\nholding in McBride. Gills discussed the holding in McBride and\n\nits applicability to this case. He argued that based on the\n\nwarrant, \"there's no indication that he was convicted of having\n\nbeen declared a habitual offender, a misdemeanor, which is a\n\nprerequisite and a necessary element of the charge that he is\n\nnow facing in court.\" Although the trial court factually\n\ndistinguished McBride and overruled the objection, the trial\n\ncourt was fully aware of the nature of Gills' objection and was\n\naware that Gills was challenging the sufficiency of the\n\nevidence. Thus, the issue was preserved for appeal.\n\n \"As with all elements of a crime, the burden is on the\n\nCommonwealth to prove the prior conviction beyond a reasonable\n\n\n - 4 -\n\fdoubt.\" McBride, 24 Va. App. at 33, 480 S.E.2d at 123. \"The most\n\nefficient way to prove the prior . . . conviction is to offer in\n\nevidence an authenticated copy of the prior conviction.\" Essex v.\n\nCommonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994).\n\n Here, Gills was charged with the felony of driving after\n\nhaving been declared an habitual offender, a second or subsequent\n\noffense, in violation of Code § 46.2-357. An element of the crime\n\nwhich the Commonwealth had to prove was a previous conviction for\n\ndriving after having been declared an habitual offender.\n\n\"Evidence which 'tends to cast any light upon the subject of the\n\ninquiry' is relevant\" and admissible, unless excluded by some\n\nother principle or rule of law or by statute. Cash v.\n\nCommonwealth, 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988); see\n\nalso Crews v. Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407,\n\n409 (1994) (finding that the admissibility of evidence is reviewed\n\nfor an abuse of discretion); Evans-Smith v. Commonwealth, 5 Va.\n\nApp. 188, 196, 361 S.E.2d 436, 441 (1987) (stating that the\n\ngeneral rule for the admissibility of evidence is that it be\n\nrelevant and material). Therefore, under the general rule, a\n\nwarrant that shows that the defendant has been previously charged\n\nand convicted of driving after having been declared an habitual\n\noffender is relevant and admissible. Although the warrant was\n\nadmissible, Gills contends the warrant and the notation thereon\n\nwere insufficient to establish the prior conviction. Gills argues\n\n\n - 5 -\n\fthat the warrant merely shows that he was charged with a violation\n\nof Code § 46.2-357 and that he pled guilty and was sentenced.\n\nThus, he contends it does not prove that the court found him\n\nguilty of the charged offense as opposed to a lesser or\n\nlesser-included offense. The Commonwealth, citing Savino v.\n\nCommonwealth, 239 Va. 534, 539, 391 S.E.3d 276, 278 (1990), argues\n\nthat a plea of guilty is a self-executing conviction and that the\n\npresumption of regularity justified the trial court's conclusion\n\nthat Gills pled guilty to the charged offense.\n\n We find that this case is controlled by our holding in\n\nMcBride. In McBride, the defendant was convicted of a second\n\noffense of driving under the influence. At trial, the\n\nCommonwealth introduced a certified copy of an arrest warrant,\n\nindicating that the defendant was charged with previously\n\nviolating Code § 18.2-266. The warrant contained a printed form\n\nupon which the district court had reported the proceedings. The\n\nform indicated that the defendant was charged, pled not guilty,\n\nand was sentenced. However, the form was blank in the space where\n\nthe court is to designate whether the defendant was tried and\n\nfound guilty of the charged offense. The Commonwealth offered no\n\nother evidence to prove a prior conviction. The defendant moved\n\nto strike the evidence, arguing that the evidence did not prove\n\nthat he had been previously convicted of violating Code\n\n\n\n\n - 6 -\n\f§ 18.2-266. The trial court denied the motion and found the\n\ndefendant guilty of the second offense.\n\n We reversed McBride's conviction, finding that the evidence\n\nwas insufficient to prove that he had been previously convicted of\n\nviolating Code § 18.2-266. We found that the warrant from the\n\nprevious proceeding failed to prove that the defendant was\n\nconvicted of the charged offense, rather than some other offense\n\nor a lesser-included offense. Moreover, we declined to infer or\n\nspeculate the nature of the actual judgment of conviction based on\n\nthe sentence imposed by the trial court.\n\n \"It is the firmly established law of this Commonwealth that a\n\ntrial court speaks only through its written orders.\" Davis v.\n\nMullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996) (citation\n\nomitted). Here, the warrant proffered by the Commonwealth\n\nindicated only that Gills was charged with violating Code\n\n§ 46.2-357(B)(1), that he pled guilty at that proceeding, and that\n\nhe was sentenced. The warrant contained no notation indicating of\n\nwhat offense Gills was convicted. Often charges are amended or a\n\ndefendant is permitted to plead guilty to a reduced charge other\n\nthan the charged offense. So that district court judges will not\n\nhave to prepare dispositional orders for each case, the Supreme\n\nCourt provides pre-printed forms on the warrants which contain\n\nblocks or blanks that enable judges to specify, by merely checking\n\nthe section or filling in a blank, the disposition of a case, the\n\n\n - 7 -\n\foffense of which the accused is found guilty, and the amount of a\n\nfine and/or jail sentence. Moreover \"every act of a court of\n\ncompetent jurisdiction shall be presumed to have been rightly\n\ndone, till the contrary appears.\" Nicely v. Commonwealth, 25 Va.\n\nApp. 579, 584, 490 S.E.2d 281, 283 (1997) (internal quotation and\n\ncitation omitted). But, we apply a presumption of regularity\n\nwhere a proceeding appears in all respects regular on its face and\n\nsome procedural issue is being challenged, such as whether a\n\ndefendant was represented by counsel in a prior conviction. The\n\npresumption does not apply where the proceeding is irregular on\n\nits face, in that it fails to specify the offense for which a\n\ndefendant was convicted. In the absence of a notation or\n\nspecification on the warrant stating the offense of which Gills\n\nwas convicted, we will not presume or surmise as to the offense of\n\nwhich Gills was convicted.\n\n Accordingly, we hold that the warrant was insufficient to\n\nprove the prior conviction. We, therefore, reverse Gills'\n\nconviction and remand the case to the trial court for\n\nresentencing.\n\n Reversed and remanded.\n\n\n\n\n - 8 -\n\f", "ocr": false, "opinion_id": 1070589 } ]