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118 F.2d 744 (1941)
RYAN
v.
ALEXANDER, Formerly Collector of Internal Revenue.
No. 2192.
Circuit Court of Appeals, Tenth Circuit.
March 18, 1941.
*745 Charles H. Garnett, of Oklahoma City, Okl. (W. K. Garnett, of Oklahoma City, Okl., on the brief), for appellant.
Warren F. Wattles, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and William L. Cary, Sp. Assts. to Atty. Gen., and Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
Thomas Ryan brought this action against Alexander, formerly Collector of Internal Revenue for the District of Oklahoma, to recover upon a claim for refund of income taxes. During the pendency of the action Ryan died and May Ryan, as executrix under his will, was substituted as party plaintiff.
Prior to 1923, Ryan acquired title to the North Half and the Northwest Quarter of the Southeast Quarter of Section 2, Township 9 North, Range 9 East, in Hughes County, Oklahoma. The land had no oil or mineral value when acquired. In March, *746 1920, he executed an oil and gas lease covering the West Half of the Northwest Quarter and the Southeast Quarter of the Northwest Quarter of Section 2. This lease was owned by Wittmer Property Trustees, a business trust, throughout 1923 and 1924. In December, 1923, Ryan executed an oil and gas lease on the Northeast Quarter of the Northwest Quarter of Section 2 to O. F. Cashdollar. The lease provided that it would be void unless a well should be drilled to a depth of 3500 feet on the Southwest Quarter of the Southeast Quarter of Section 35, Township 10 North, Range 9 East, Okfuskee County, Oklahoma, unless oil should be found in paying quantities at a lesser depth, and that the lease should be delivered when the well had been drilled to a depth of 3000 feet, or when oil was found if discovered at a lesser depth.
The lease reserved a one-eighth royalty. It was placed in escrow in the American National Bank at Wetumka, Oklahoma, under the provision of a written escrow statement directing the bank to deliver it to the lessee when the well had been drilled to a depth of 3000 feet, or when oil was found if discovered at a lesser depth. Cashdollar took the lease as the agent of Wittmer Property Trustees and for the benefit of the trust. On March 29, 1924, Wittmer Property Trustees entered into a contract with T. B. Slick whereby, in consideration of a one-half interest in the leases of Wittmer Property Trustees covering the Northeast Quarter of Section 35, Township 10 North, Range 9 East, the South Half of the Southeast Quarter of Section 35, Township 10 North, Range 9 East, and in the lease first above-mentioned, he agreed to drill a well in the Southwest Quarter of the Southeast Quarter of Section 35 to the Papoose Sand found at approximately 3500 feet, unless oil should be found in paying quantities at a lesser depth, and to commence such well not later than April 17, 1924, and to complete it by September 1, 1924. Slick completed the well on August 16, 1924. Its initial production was 1200 barrels per day. In a few days, the production increased to about 2500 barrels per day. On June 28, 1924, the lease from Ryan to Cashdollar was delivered by the bank to the lessee. The well was located 320 feet north of the south line and 320 feet east of the west line of the Southwest Quarter of the Southeast Quarter of Section 35. It was an offset to the Ryan land and evinced a strong probability that oil would be found in paying quantities in the North Half of Section 2, and greatly increased its market value.
On August 18, 1924, two days after the well came in, Ryan executed and delivered an oil and gas lease on the West Half of the Northeast Quarter of Section 2 to the Independent Oil and Gas Company for a bonus of $80,000, reserving a one-eighth royalty. On September 18, 1924, 33 days after the well came in, Ryan executed and delivered to the Independent Oil and Gas Company an oil and gas lease on the East Half of the Northeast Quarter of Section 2 for a bonus of $100,000, of which $60,000 was paid in cash, and $40,000 was to be paid out of one-half of the first oil produced from the leased premises. On September 24, 1924, 39 days after the well came in, Ryan executed and delivered to the Skelly Oil Company an oil and gas lease on the Northwest Quarter of the Southeast Quarter of Section 2 for a cash bonus of $20,000. Ryan paid broker's commissions on the sale of these leases, amounting to $10,000. During 1924, but after the last two above-mentioned leases were given, five producing wells were brought in on Ryan's land and other wells were drilling.
On March 16, 1925, Ryan filed with Alexander, Collector, his income tax return for the year 1924 in which he reported $43,254.33 received from oil and gas royalties, and $190,000 received as net bonuses from the sale of oil and gas leases. He reported the $190,000 as gain on the sale of capital assets held more than two years. He also reported as gain from business $9,883.57. His tax liability as computed on his return was $25,731.12, which was paid in due course.
$8,391.69 of the $40,000 in oil payment was received December 12, 1924. The balance thereof was received in January, 1925. $27,135.11 of the amount reported as oil royalties was received in 1924. The balance was received in January, 1925. Hence, the amounts reported for 1924 were $47,727.53 in excess of the income actually received in that year.
During the years 1924 to 1937, inclusive, Ryan employed Tom F. Carey, a certified public accountant, to prepare his tax returns and represent him in tax matters. On April 15, 1925, Carey wrote the Collector at Oklahoma City requesting a ruling on whether the bonuses were properly taxable as capital gains. Harry A. Sproles, a Deputy Collector of Internal Revenue, made an examination *747 of the Ryan return, prepared an amended return and presented it to Ryan for his signature. Ryan refused to sign it. In the amended return the $190,000 was treated as ordinary gain. This resulted in a proposed additional tax of $47,514.59 and $108.90 interest.
Carey testified that he told Sproles in April, 1925, that the 1924 return included some income received in 1925; that he also called that fact to the attention of Revenue Agent, V. V. Hardcastle, in the early part of 1928. Sproles testified that he had no recollection of any such statement made by Carey, that it was not covered in his written report, and that it would have been dealt with had the facts been brought to his attention.
In making his report on Form O, filed in May, 1928, Carey again reported the amounts received in January, 1925, as income for 1924, and claimed a depletion deduction based thereon.
Ryan did not file an amended return or otherwise formally call to the attention of the Collector or the Commissioner the fact that the 1924 return included items received in 1925 until April, 1933, when he filed a claim for refund of the taxes collected on such amounts. Taxation thereof for 1925 was then barred by the statute.
On December 26, 1928, a 60-day letter giving notice of a deficiency was duly mailed to Ryan in care of Carey. It was undelivered. A second letter giving notice of a deficiency for 1924 of $36,743.62 was mailed to Ryan in care of Carey on January 15, 1929. The latter letter was delivered in due course of mail. On March 11, 1929, Ryan filed an appeal from the Commissioner's determination to the Board of Tax Appeals. On October 1, 1929, Carey, acting as agent for Ryan, forwarded to the Collector at Oklahoma City a draft for $36,500, accompanied by a letter stating that it was for the credit of Ryan and to apply against a proposed additional assessment for the year 1924, and that the payment was made to stop the accumulation of further interest while the matter was pending decision, in the event the decision should be adverse. The Commissioner was informed of the payment and on November 23, 1929, assessed the sum of $36,500, with interest to the date of payment in the sum of $9,135.73. Ryan was advised by the Commissioner that the assessment was made "to clear your account of the payment reported," but that it would not "change the status of the case which is pending action before" the Board of Tax Appeals. Demand was made for the interest and it was paid under protest on December 10, 1929. Ryan took no action by a proceeding in court or otherwise to enjoin the collection of any part of the interest assessed.
On September 26, 1932, the Board of Tax Appeals sustained the motion of the Commissioner to dismiss the appeal, confessed by counsel for the taxpayer, upon the ground the Board was without jurisdiction, since the appeal was not filed within 60 days from the mailing of the first notice of deficiency.
On April 7, 1933, the taxpayer filed with the Collector a claim for a refund. On October 1, 1933, and on November 5, 1933, amended claims were filed which amplified the grounds stated in the original claim. The claim for refund was based on the inclusion in the 1924 return of income actually received in 1925, discovery depletion on oil bonuses received in 1924, based on the discovery well in Section 35, and the making of the assessment of the deficiency in November, 1929, while the appeal was pending before the Board of Tax Appeals. In June, 1936, the Commissioner made a certificate of overassessment and the claim for refund was allowed to the extent of $6,065.27, with interest in the sum of $1,518.10, and was otherwise rejected.
The trial court found that neither Ryan nor Carey had advised the Collector or the Commissioner, prior to the filing of the claim for refund, that the 1924 return included the items received in 1925, and that the executrix was estopped to recover the taxes assessed on those items; that she was not entitled to discovery depletion; and that the assessment of the deficiency tax before the appeal was dismissed but after the voluntary payment, was not a void assessment. From a judgment for the Collector, the executrix has appealed.
The finding of the trial court, that Ryan did not advise the Collector or the Commissioner prior to 1933 that the 1924 return included income received in 1925, was not clearly erroneous. We seriously doubt that Carey knew, prior to May, 1928, that the 1924 return included income received in 1925. Carey, in his letter of April 15, 1925, to the Collector, called attention to the fact that the taxpayer reported the bonuses as capital gain from the sale of assets held *748 more than two years, and, in that respect, it conflicted with the Bureau's ruling I T 2077, III-38-1789, and asked a specific ruling thereon. It is inconceivable that Carey, a certified public accountant experienced in tax matters, would not have called attention at that time to the error in the return, had he had knowledge thereof. Furthermore, Carey again reported the amounts as 1924 income in Form O, filed in May, 1928.
The Commissioner had the right to accept Ryan's sworn return as to the amount of 1924 income. He was not called upon to audit Ryan's books and records or the books and records of the oil companies. Only through such an audit could he have discovered the error. See Commissioner v. Liberty Bank & Trust Co., 6 Cir., 59 F.2d 320, 325.
Ryan included amounts received in January, 1925, in his 1924 return. He did not include such amounts in his 1925 return. At the time the claim for refund was filed, the assessment of such amounts as income for 1925 was barred by the statute. The Collector and Commissioner accepted the amount of income reported for 1924 as correct and acted in reliance on the return. These facts, in our opinion, estopped the executrix from claiming a refund on the ground that the amounts were actually received in 1925.[1]
Furthermore, an action to recover a tax erroneously paid is in the nature of a common law action for money had and received and like it is governed by equitable principles.[2] In such an action the plaintiff must recover by virtue of a right measured by equitable standards and it is open to the defendant to show any state of facts which, according to those standards, would deny the right.[3] The fact that the right to assess the income for 1925 is barred by statute does not preclude a defense, asserted not as a setoff or counterclaim, but as an equitable reason, growing out of the circumstances of the erroneous payment, why the refund should not be granted.[4]
Ryan's income for 1924, including the amounts received in January, 1925, and reported as 1924 income, was $192,461.22. His income for 1925, exclusive of the amounts received in January, 1925, and reported as 1924 income, was $194,524.62. Because the rates applicable in 1925 were less than the rates applicable in 1924, the return of the amounts received in January, 1925, as 1924 income resulted in a greater tax being imposed upon Ryan. Whether he would have been entitled to a refund of the difference we do not undertake to determine. Ryan did not present to the Commissioner nor to the trial court, and has not urged here, a claim of right to recover the difference between the amount of tax that was imposed under the 1924 rates on income received in 1925 and reported as 1924 income and the amount of tax that would have been assessed under the 1925 act, had such income been reported for 1925.
Since the mineral property had no cost value, the claim for depletion is predicated on Sec. 204(c) of the Revenue Act of 1924, 43 Stat. 260, 26 U.S.C.A.Int.Rev.Acts, page 10, which in part reads as follows:
"* * * in the case of mines, oil and gas wells, discovered by the taxpayer after February 28, 1913, and not acquired as the result of purchase of a proven tract or lease, where the fair market value of the property is materially disproportionate to the cost, the basis for depletion shall be the fair market value of the property at the date of discovery or within thirty days thereafter; * * *."
Article 222(1) (3), Regulations 65, promulgated pursuant to § 214(a) (9) of *749 the Revenue Act of 1924, 26 U.S.C.A.Int. Rev.Acts, page 23, in part reads as follows:
"For the purpose of Section 204(c) * * * an oil or gas well may be said to be discovered when there is either a natural exposure * * * or a drilling that discloses the actual and physical presence of oil or gas * * *.
"The `property' which may be valued after discovery is the `well.' For the purposes of these sections the `well' is the drill hole, * * * in which the discovery was made by the drilling, and from which the production is drawn, to the limit of the taxpayer's private bounding lines, but not beyond the limits of the proven area as heretofore provided."
The claimed discovery well was not on Ryan's land. It was not discovered by Ryan, the taxpayer. It did not disclose the actual or physical presence of oil in the Ryan land. It merely indicated the probability of its presence. Under the Regulations, the property to be valued was the well to the limits of the taxpayer's private bounding lines. Here, the well relied on as a discovery well was beyond the taxpayer's boundary lines.
A taxpayer is not entitled to a depletion allowance as a matter of right.[5] A provision for depletion is an act of grace.[6] To entitle a taxpayer to depletion he must bring himself within the applicable statute providing therefor.[7]
To bring the taxpayer within § 204(c), supra, there must be a discovery by the taxpayer of the actual and physical presence of oil on the taxpayer's land. It was so held in Security-First National Bank of Los Angeles v. Welch, 9 Cir., 92 F.2d 357, 359. We conclude that the discovery relied upon did not entitle Ryan to a depletion allowance nor to a refund predicated thereon.
Sec. 274(a) of the Revenue Act of 1926, 44 Stat. 55, 26 U.S.C.A.Int.Rev.Acts, page 203, provides that when the Commissioner determines a deficiency he shall send to the taxpayer by registered mail a notice of such deficiency: that the taxpayer may, within 60 days after such notice is mailed, petition the Board of Tax Appeals for a redetermination of the deficiency; and, except as otherwise provided in subdivision (d) of § 274, that no assessment of the deficiency shall be made and no proceeding for collection shall be begun or prosecuted "until such notice has been mailed to the taxpayer, nor until the expiration of such 60-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final." It further provides that notwithstanding the provisions of § 3224 of the Revised Statutes, 26 U.S.C.A.Int.Rev.Code, § 3653(a), the making of such assessment or the beginning of a proceeding in court or by distraint for the collection of the tax may be enjoined by a proceeding in the proper court.
Sec. 274(d) of the Revenue Act of 1926 provides that the taxpayer shall at any time have the right, by a signed notice in writing filed with the Commissioner, to waive the restrictions provided in § 274(a) on the assessment and collection of the whole or any part of the deficiency.[8]
*750 The first deficiency notice was forwarded by registered mail addressed to Carey at 709 Braniff Building, Oklahoma City, his correct address. Carey was the duly authorized agent of Ryan in charge of his income tax matters. The notice was returned to the Commissioner undelivered due to Carey's absence from Oklahoma City. Ryan's petition for appeal to the Board of Tax Appeals was not filed until after the 60-day period from the mailing of the first deficiency notice had expired. Filing of the petition for appeal within the 60-day period was a jurisdictional requirement.[9] We are of the opinion that the provision "nor, if a petition has been filed with the Board, until the decision of the Board has become final" means a petition filed within the 60-day period conferring jurisdiction upon the Board to render a final decision respecting the deficiency. It follows that the abortive effort to appeal to the Board of Tax Appeals did not operate as a stay and that the Commissioner had power to make the deficiency assessment, the 60-day period from the giving of the notice having expired before the assessment was made.
The assessment was made after Ryan had forwarded to the Collector a draft for $36,500, accompanied by a letter requesting that it be applied as a credit against a proposed additional assessment to stop the accumulation of interest, and the assessment was in the exact amount of the draft. We are of the opinion that the payment was a voluntary payment and that the letter amounted to a waiver under § 274(d).
Furthermore, if the appeal to the Board of Tax Appeals operated as a stay, the assessment was not void but merely premature and irregular and it became effective when the appeal was dismissed.[10]
Finally, this is an action to recover a tax. The executrix must recover by virtue of a right measured by equitable standards. It was incumbent upon her to show that Ryan did not owe the tax. It was not sufficient to establish that the tax was prematurely assessed. See Van Antwerp v. United States, 9 Cir., 92 F.2d 871; Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 146, 76 L.Ed. 293. In the last cited case the court said:
"Although the statute of limitations may have barred the assessment and collection of any additional sum, it does not obliterate the right of the United States to retain payments already received when they do not exceed the amount which might have been properly assessed and demanded."
We think it clear that Ryan was not entitled to a refund on the grounds presented to the Commissioner and the trial court.
The judgment is affirmed and the costs will be assessed against the executrix.
NOTES
[1] See Adler v. Commissioner, 5 Cir., 77 F.2d 733;
Lofquist Realty Co. v. Commissioner, 7 Cir., 102 F.2d 945;
Bothwell v. Commissioner, 10 Cir., 77 F.2d 35;
Commissioner v. Farren, 10 Cir., 82 F. 2d 141, affirmed, 299 U.S. 617, 57 S.Ct. 108, 81 L.Ed. 456;
Commissioner v. Liberty Bank & Trust Co., 6 Cir., 59 F.2d 320, 325; Doneghy and St. Louis Union Trust Co. v. Alexander, Collector, 10 Cir., 118 F.2d 521 (decided March 6, 1941).
[2] Stone v. White, 301 U.S. 532, 534, 535, 57 S.Ct. 851, 81 L.Ed. 1265;
Lewis v. Reynolds, 10 Cir., 48 F.2d 515, affirmed 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293.
[3] Stone v. White, 301 U.S. 532, 537, 57 S.Ct. 851, 81 L.Ed. 1265;
Moses v. Macferlan, 2 Burr. 1005, 1010 (K.B. 1750);
Myers v. Hurley Motor Co., 273 U.S. 18, 24, 47 S.Ct. 277, 71 L.Ed. 515, 50 A.L.R. 1181.
[4] Stone v. White, 301 U.S. 532, 538, 539, 57 S.Ct. 851, 81 L.Ed. 1265.
[5] Darby-Lynde Co. v. Commissioner, 10 Cir., 51 F.2d 32, 33;
New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348.
[6] Helvering v. Mountain Producers Corp., 303 U.S. 376, 381, 58 S.Ct. 623, 82 L.Ed. 907;
Prairie Oil & Gas Co. v. Motter, 10 Cir., 66 F.2d 309, 310;
Aldrew Oil & Gas Co. v. Alexander, 10 Cir., 70 F.2d 160, 161;
Champlin v. Commissioner, 10 Cir., 78 F.2d 905, 909;
Weber Flour Mills Co. v. Commissioner, 10 Cir., 82 F.2d 764;
Hurley v. United States, D.C.Okl., 10 F.Supp. 365, 367.
[7] Darby-Lynde Co. v. Commissioner, 10 Cir., 51 F.2d 32, 33;
Prairie Oil & Gas Co. v. Motter, 10 Cir., 66 F.2d 309, 310;
Weber Flour Mills Co. v. Commissioner, 10 Cir., 82 F.2d 764, 765;
Hurley v. United States, D.C.Okl., 10 F.Supp. 365, 367;
New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348.
[8] In referring to Sec. 274(d), the House Report on the bill (H. R. No. 1, 69th Cong., 1st Sess., 1939-1 Cum. Bull. [Part 2] 352) states:
"In order to permit the taxpayer to pay the tax and stop the running of interest, the committee recommends in section 274 (d) of the bill that the taxpayer at any time be permitted to waive in writing the restrictions on the Commissioner against assessing and collecting the tax, but without taking away the right of the taxpayer to take the case to the Board. It is provided in such cases that the 6 per cent interest stops running on the thirtieth day after the filing of such waiver unless assessment is made before such time."
[9] Continental Petroleum Co. v. United States, 10 Cir., 87 F.2d 91, 94, certiorari denied 300 U.S. 679, 57 S.Ct. 670, 81 L. Ed. 883;
Lewis-Hall Iron Works v. Blair, 57 App.D.C. 364, 23 F.2d 972, 974;
Chambers v. Lucas, 59 App.D.C. 327, 41 F.2d 299.
[10] Lehigh Portland Cement Co. v. United States, Ct.Cl., 30 F.Supp. 217, 224-233.
| {
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0189p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
STATE OF TENNESSEE (15-3291); STATE OF NORTH ┐
CAROLINA (15-3555), │
Petitioners, │
│
NATIONAL ASSOCIATION OF REGULATORY UTILITY │
COMMISSIONERS, > Nos. 15-3291/3555
│
Intervenor,
│
│
v. │
│
│
FEDERAL COMMUNICATIONS COMMISSION; UNITED
│
STATES OF AMERICA,
│
Respondents, │
ELECTRIC POWER BOARD OF CHATTANOOGA; CITY │
OF WILSON, N.C., │
Intervenors. │
┘
On Petitions for Review of an Order of
the Federal Communications Commission.
No. 15-25.
Argued: March 17, 2016
Decided and Filed: August 10, 2016
Before: ROGERS and WHITE, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Joshua S. Turner, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291.
John F. Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Petitioner in 15-3555. Matthew J. Dunne, FEDERAL COMMUNICATIONS
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
1
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 2
COMMISSION, Washington, D.C., for Respondents. ON BRIEF: Joshua S. Turner, Megan L.
Brown, WILEY REIN LLP, Washington, D.C., for Petitioner in 15-3291. John F. Maddrey,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner in
15-3555. Matthew J. Dunne, Richard K. Welch, FEDERAL COMMUNICATIONS
COMMISSION, Washington, D.C., for Respondents. James Bradford Ramsay, NATIONAL
ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Washington, D.C., for
Intervenor National Association of Regulatory Utility Commissioners. James Baller, Sean A.
Stokes, Ashley Stelfox, BALLER HERBST STOKES & LIDE, PC, Washington, D.C., James P.
Cauley III, Gabriel Du Sablon, CAULEY PRIDGEN, P.A., Wilson, North Carolina, for
Intervenor City of Wilson. Frederick L. Hitchcock, Willa B. Kalaidjian, CHAMBLISS,
BAHNER & STOPHEL, P.C., Chattanooga, Tennessee, for Intervenor Electric Power Board of
Chattanooga. William J. Kirsch, Arlington, Virginia, Andrew L. Brasher, OFFICE OF THE
ALABAMA ATTORNEY GENERAL, Montgomery, Alabama, Conor B. Dugan, WARNER
NORCROSS & JUDD LLP, Grand Rapids, Michigan, Richard A. Samp, WASHINGTON
LEGAL FOUNDATION, Washington, D.C., David Parkhurst, NATIONAL GOVERNORS
ASSOCIATION, Washington, D.C., Bartlett Cleland, Jonathan Hauenschild, AMERICAN
LEGISLATIVE EXCHANGE COUNCIL, Arlington, Virginia, Ashley Stelfox, BALLER
HERBST STOKES & LIDE, PC, Washington, D.C., Mark C. Del Bianco, LAW OFFICE OF
MARK C. DEL BIANCO, Kensington, Maryland, Andrew Jay Schwartzman, Eric G. Null,
INSTITUTE FOR PUBLIC REPRESENTATION, Washington, D.C., Lani L. Williams, LOCAL
GOVERNMENT LAWYER’S ROUNDTABLE, INC., Oconomowoc, Wisconsin, Kimberly
Hibbard, NORTH CAROLINA LEAGUE OF MUNICIPALITIES, Raleigh, North Carolina,
Markham C. Erickson, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici Curiae.
ROGERS, J., delivered the opinion of the court in which HOOD, D.J., joined, and
WHITE, J., joined in part. WHITE, J. (pp. 23–25), delivered a separate opinion concurring in
part and dissenting in part.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Municipalities in Tennessee and North Carolina providing
broadband service would like to expand their networks beyond their current territorial boundaries
to underserved nearby areas. The legislatures of Tennessee and North Carolina have passed laws
either forbidding or putting onerous restrictions on such expansion by municipal
telecommunications providers. The Federal Communications Commission (FCC), citing its
statutory mandates to remove barriers to broadband service and to promote competition in the
telecommunications market, has issued an order purporting to preempt these state statutory
provisions. Tennessee and North Carolina now seek review of the FCC’s order.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 3
The FCC order essentially serves to re-allocate decision-making power between the states
and their municipalities. This is shown by the fact that no federal statute or FCC regulation
requires the municipalities to expand or otherwise to act in contravention of the preempted state
statutory provisions. This preemption by the FCC of the allocation of power between a state and
its subdivisions requires at least a clear statement in the authorizing federal legislation. The FCC
relies upon § 706 of the Telecommunications Act of 1996 for the authority to preempt in this
case, but that statute falls far short of such a clear statement. The preemption order must
accordingly be reversed.
Tennessee Law
Under a Tennessee law enacted in 1999, any municipality operating an electric plant is
authorized to offer cable services, video services, and Internet services. Tenn. Code Ann. § 7-
52-601. However, this authority is limited—the statute grants a municipality this authority only
“within its service area.” Id. This geographic limitation forbids a municipality from offering
Internet services to surrounding areas that are not served by that municipality’s electric plant.
The territorial restriction in § 601 does not require municipalities to violate any FCC
requirement. There are no FCC rules or regulations requiring municipalities to expand their
service offerings beyond their territorial boundaries. Tennessee, in enacting § 601, has simply
made the choice for its municipalities on the issue of expansion, which is a discretionary decision
under the current FCC regulatory scheme.
Chattanooga, Tennessee operates an electric provider known as the Electric Power Board
(EPB). In re City of Wilson, North Carolina, 30 FCC Rcd. 2408, 2015 WL 1120113, at *7
(2015). The EPB offers high-speed broadband Internet service with speeds up to one Gigabit per
second (Gbps). Id. The EPB offers this service to 170,000 residential and commercial
customers in its 600-square-mile service area, which includes counties in Tennessee and
Georgia. Id. at *7, *10. In 1996, the EPB began developing a high-capacity fiber-optic
communications infrastructure. Id. at *10. In 2009, the EPB made its fiber-optic
communications services available to residential customers and, in 2010, became the first
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 4
broadband provider in the nation to offer Gigabit services to all its customers. Id. About 63,000
of the EPB’s electric service customers subscribe to the fiber services. Id.
The EPB’s fiber-optic network has received uniform praise. It has led to job growth and
attracted businesses to the area. Id. at *7–8. Its introduction led established Internet providers to
lower rates while increasing the quality of their services. Id. at *7. The fiber network has also
put more money in Chattanooga’s coffers, which contributed to Standard and Poor’s upgrading
of the EPB’s bond rating to AA+ in 2012. Id. at *8.
Educational institutions within the EPB’s service area have benefitted from the fiber
network. Id. The high-speed network is available to Chattanooga schools and allows the schools
to offer services not available in many parts of the country. Id. Further, Chattanooga’s public
library system—with a 14,000 square foot space dedicated to innovation—is a leading one in the
nation. Id. The New York Public Library has announced that it sees Chattanooga’s library as a
model for its renovations. Id.
Neighboring communities outside of the EPB’s service area, however, cannot partake in
the EPB’s high-speed Internet service due to the geographic limitation in § 601. Residents from
those communities have repeatedly requested expansions of the EPB’s services to the
surrounding areas. Id. at *9. The EPB’s surrounding communities allegedly constitute a “digital
desert” in which the Internet services are abysmal or nonexistent. Id. These areas are known as
“unserved” and “underserved” areas. Id.
North Carolina Law
Under a North Carolina law originally enacted in 1971, municipalities were authorized to
provide broadband Internet services. See N.C. Gen. Stat. Ann. § 160A-311; BellSouth
Telecomm., Inc. v. City of Laurinburg, 606 S.E.2d 721, 726–28 (N.C. Ct. App. 2005). In 2011,
North Carolina’s General Assembly passed Session Law 2011-84, entitled “An Act to Protect
Jobs and Investment by Regulating Local Government Competition with Private Business,”
which among other things imposed requirements on city-owned communications service
providers. See N.C. Gen. Stat. Ann. §§ 160A-340 to -340.6. Under § 160A-340.1(a)(3), city-
owned communications service providers are directed to “[l]imit the provision of
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 5
communications service to within the corporate limits of the city providing the communications
service.” Thus, municipalities in North Carolina may not offer Internet services to anyone
beyond their municipal boundaries.
The Session Law contains additional restrictions that focus on the financial operation of
municipal providers. Sections 160A-340.1(a)(9) and -340.5 of Session Law 2011-84 require
municipalities to make payments in lieu of taxes that would equal the amount a private-sector
provider would have to pay in taxes and fees. Section 340.1(a)(8) requires municipalities to
impute the costs of private providers when pricing the municipal services. Section 340.1(a)(1)
requires municipalities to comply with all of the laws and rules that apply to private providers
(without exempting municipalities from generally applicable municipal regulations). Section
340.1(a)(5) requires municipalities to open their facilities for private providers at no charge if the
municipalities themselves would not have to pay. Section 340.1(a)(7) forbids municipalities
from subsidizing their “communications service with funds from any other non-communications
service.” A separate part of Session Law 2011-84 amended the state’s definition of “public
utility” to include municipal providers of broadband, which exposes them to regulation from the
state’s Utilities Commission.
The Session Law also contains restrictions on the implementation of municipal services.
Section 340.3 requires a 75-day public hearing process before a municipality can provide
communications services, and § 340.4 requires a special election on the issue of municipal entry
into communications services. Section 3 of Session Law 2011-84 mandates a period for private
providers to comment on municipal entry. Under § 340.6, municipalities must solicit public-
private partnership proposals before a municipality can begin construction on a communications
network.
The Session Law, in § 340.2, includes three provisions that exempt municipalities from
the restrictions. The first of these provisions, § 340.2(a), exempts city providers from the
Session Law restrictions if the providers use the telecommunications services only for “internal
governmental purposes” or within another city’s corporate limits so long as the other city is a
party to an “interlocal agreement.” Section 340.2(b) exempts municipalities serving “unserved
areas” from the restrictions. An “unserved area” is defined as a “census block . . . in which at
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 6
least fifty percent (50%) of households either have no access to high-speed Internet service or
have access to [such] service only from a satellite provider.” Lastly, in § 340.2(c), there is a
series of “grandfather” exemptions, which exempt municipalities “providing communications
service as of January 1, 2011,” from the restrictions so long as those municipalities abide by
certain limitations.
Like Tennessee’s restriction, the North Carolina provisions do not require municipalities
to violate any FCC rule or regulation. This is clear from the record, and in any event was
conceded by the FCC’s counsel at oral argument. The Session Law is simply an instance of
North Carolina making choices for its municipalities on the issues of expansion and municipal
offering of telecommunications services.
In 2005, the City of Wilson, North Carolina constructed the backbone of a fiber-optic
network connecting all City-owned facilities. In re City of Wilson, 2015 WL 1120113, at *10.
Many residents, medical facilities, businesses, and educational institutions requested access to
and expansion of the network. Id. at *11. In 2006, the Wilson City Council responded to these
requests by unanimously voting to build a municipal broadband network that would eventually
become known as “Greenlight.” Id. at *10. In 2013, Wilson rolled out Greenlight to residential
customers, offering Gigabit Internet service. Id.
Greenlight has provided benefits for Wilson. Wilson states that its “triple play”
services—phone, Internet, and cable—are cheaper than its competitors’ and that it offers its
Gigabit Internet while maintaining a positive cash flow. Id. at *11. Wilson also provides free
Wi-Fi to its entire downtown area, which in turn frees up money that downtown businesses
would normally spend for Internet. Id. Each of the top seven employers in Wilson is a customer
of the fiber network. Id. Local schools benefit from using Greenlight, as does the City’s main
public library. Id.
Wilson has only deployed Greenlight in one county, Wilson County. Id. at *10. It has
five other counties for which it provides electric service. Id. Individuals in those five counties
have repeatedly requested that Wilson expand its offering of Greenlight. Id. at *13. Wilson is
currently exempt from the restrictions in §§ 160A-340 to -340.6 due to the grandfather
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 7
provisions contained in § 340.2. If Wilson attempted to expand its offering beyond its corporate
limits, however, it would no longer fall under the grandfather exemption and would have to
abide by all of the restrictions, which would include the territorial restriction in § 340.1(a)(3).
Therefore, due to the restrictions in §§ 160A-340 to -340.6, Wilson is unable to expand its
offering beyond its municipal limits.
The FCC’s Order
The EPB and the City of Wilson separately petitioned the FCC to preempt the restrictions
in their respective states’ laws. The EPB asked the FCC to preempt the phrase “within its service
area” and excise those four words from § 7-52-601. In re City of Wilson, 2015 WL 1120113, at
*10. Wilson asked the FCC to preempt the entirety of Session Law 2011-84. Id. at *13.
The FCC concluded that preemption of most of the Tennessee and North Carolina
statutes at issue would further the purposes of § 706 of the Telecommunications Act of 1996 by
increasing broadband investment. Both Wilson and the EPB sought expansion because the
private cable providers in their areas were unsatisfactory to the local residents and businesses.
Id. at *14. The EPB deployed its Internet services to “take advantages of synergies with existing
municipal services,” such as its smart power grid for its electric service. Id. Wilson likewise
deployed Internet in part to save money. Id. Further, by virtue of their being municipal
providers, the EPB and Wilson are concerned with more than just the “bottom line”—they are
also concerned with benefitting the communities they serve. Id. According to the FCC, these
differing interests support the conclusion that municipal-provider entry into the surrounding
areas would increase investment in broadband Internet.
The FCC additionally concluded that preemption of the Tennessee restrictions and
allowing the EPB to serve the surrounding areas would promote competition in the broadband
marketplace, which is a goal of § 706. In response to the EPB’s constructing its fiber network,
Comcast stopped raising its rates—which had risen sharply for years—and subsequently reduced
them. Id. at *15. Both of the private providers in the EPB’s electric service area, Comcast and
AT&T, have vastly improved their Internet download speeds since the EPB’s entry. Id. This
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 8
demonstrates the benefits of increased broadband competition and how a possible expansion for
the EPB could promote such competition.
The FCC likewise found that preemption of most of the North Carolina restrictions would
promote and increase competition. In response to Wilson’s entry into the broadband market,
Time Warner held rates steady in Wilson while simultaneously raising rates in places without
such competition. Id. Like the private providers’ responses to the EPB’s entry, Time Warner
improved its top download speeds in response to Wilson’s entry. Id. The FCC concluded that
these reactions from Time Warner show that municipal-provider entry into the broadband market
increases competition.
Commenters’ objections to preemption failed to persuade the FCC. The arguments that
municipal providers and private providers are not on “a level playing field” were unpersuasive
because, according to the FCC, they show only that municipal providers like the EPB and
Wilson differ from private providers but not that the differences are problematic. Id. at *16.
Some commenters argued that municipal entry would “crowd out” or be unfair to private
providers, but the FCC found that Wilson’s 33.7% market penetration indeed left room for
private providers. Id. at *17. The FCC likewise found no evidence to support some
commenters’ claims that municipal-service providers would act anti-competitively or that such
providers would be economically inefficient. Id. In response to claims that municipal-
broadband providers fail at a high rate, the FCC stated: “We do not read [§] 706 to require us to
find that any particular municipal system is certain to succeed if barriers are removed; only that
the law is a barrier and that removal is reasonably likely to lead to increased broadband
deployment or promote competition.” Id. at *18. Addressing the substance of the failure claims,
the FCC found them meritless. Id. at *18–21. Finally, the FCC disposed of what it considered to
be weaker objections, finding them unpersuasive or underdeveloped. Id. at *21.
The FCC also found that the Tennessee statute constitutes a “barrier” to broadband
investment and competition. Tennessee’s territorial restriction in § 601—the language “within
its service area”—is, according to the FCC, “an explicit barrier to broadband infrastructure
investment and competition under [§] 706.” Id. at *22. Furthermore, “[the] EPB would likely
meet the substantial customer demand in surrounding areas absent [§] 601’s territorial
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 9
restriction.” Id. at *23. Thus, the FCC stated that Tennessee’s territorial restriction falls under
the FCC’s authorized power to preempt “barriers to infrastructure investment” pursuant to § 706.
North Carolina’s Session Law 2011-84, however, required a more in-depth analysis. The
law as a general matter was found to constitute a barrier to infrastructure investment and
competition. According to the FCC, “this is so even though any single regulatory provision of
the statute, if considered independently, might not appear to impose a significant burden.” Id. at
*27. The FCC found that the passage of 2011-84 chilled deployment of municipal broadband in
North Carolina. Id.
The FCC divided the North Carolina provisions into three categories of restrictions:
measures to raise economic costs, obligations that would “level the playing field,” and measures
to impose delay. Id. at *23.
The FCC first considered multiple measures to raise economic costs in Session law 2011-
84 and deemed them to constitute barriers. The first provision analyzed was the territorial
restriction contained in § 160A-340.1(3), which limits the provision of telecommunication
services to “within the corporate limits” of the municipal provider. Id. at *28. According to the
FCC, there is “no doubt” that the territorial restriction is a “barrier to deployment and
competition.” Id. This is because, absent the restriction, “Wilson and other North Carolina
municipalities would . . . be able to invest in broadband networks outside a city’s corporate limits
‘within reasonable limitations.’” Id. Finally, the three limited exemptions to the territorial
restriction—labeled the “grandfathering,” “interlocal,” and “unserved” exemptions—fail to
provide meaningful opportunities for municipal-provider entry, according to the FCC. Id. The
first two exemptions do not allow for municipalities to serve residents and businesses outside of
their current service areas, and the “unserved” exemption uses improperly low benchmarks for
determining what was an “unserved” location. Id. at *28–29. Further, the real-world application
of the “unserved” exemption would render service to those areas “economically infeasible” due
to the impracticability of obtaining the required information for an area to be labeled “unserved.”
Id. at *30.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 10
The next provisions analyzed were §§ 340.1(a)(9) and 340.5 of Session Law 2011-84,
which are provisions requiring payments in lieu of taxes. Id. According to the FCC, these
provisions, “on their face,” constitute barriers by raising the cost of providing service. Id.
The third and final “measure to raise economic costs” in the North Carolina law that the
FCC analyzed was § 160A-340.1(a)(8), which requires municipalities to impute the costs of
private providers when pricing the municipal services. The FCC found that this provision
hampers municipalities’ ability to offer introductory or other discounts to compete for customers
and therefore “limits the competitive pressure on the [private providers] to lower their rates.” Id.
at *30–31.
The FCC next considered North Carolina’s provisions that sought to “level the playing
field” between municipal providers and private providers. The FCC stated that § 340.1(a)(1),
which requires the municipalities to comply with all of the laws and rules that apply to private
providers but does not exempt those municipalities from regulations that apply to general
municipal operations, results in a double burden for municipal providers rather than a level
playing field. Id. at *31. The FCC reached a similar conclusion regarding § 340.1(a)(5), which
requires the municipalities to open their facilities for private providers at no charge if the
municipalities themselves would not have to pay. Id. at *32. Private providers of
telecommunications services are also exempt from regulation by the state’s Utilities
Commission, but a separate part of Session Law 2011-84 subjects municipal providers to such
regulation. Id. With regard to § 340.1(a)(7), which forbids a municipal provider from
subsidizing its “communications service with funds from any other non-communications
service,” the FCC noted that there is no similar limitation on private providers, who could use
funds from multiple lines of business to subsidize their communications-service offerings. Id.
These provisions, the FCC concluded, do not “level the playing field” but rather “function as
barriers to and have the effect of increasing the expense of and causing delay in broadband
deployment and infrastructure investment.” Id. at *33.
The final provisions that the FCC analyzed were the “measures to impose delay.” The
FCC found that “these interrelated provisions lead to significant delay” and that “the time period
. . . could be approximately 27 months before a municipality can even launch a municipal
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 11
broadband project.” Id. at *34. Thus, the FCC concluded that §§ 340.3, 340.4, 340.6, and § 3 of
Session Law 2011-84 are collectively “a barrier to timely deployment of broadband and
infrastructure investment.” Id. The FCC also concluded that the provisions’ application to video
and phone services—which are necessary for a municipality’s offering of “triple play service”—
was a barrier, because municipalities needed to bundle those services with Internet in order to
maintain profitability. Id. at *35.
The FCC order preempted portions of the Tennessee and North Carolina statutes. The
FCC found that Congress, in enacting § 706(a)–(b) of the Telecommunications Act of 1996,
vested the agency with the authority to preempt the laws. Id. at *37–43. Section 706, entitled
“Advanced Telecommunications Incentives” and codified at 47 U.S.C. § 1302, reads in part:
(a) In general
The Commission and each State commission with regulatory jurisdiction over
telecommunications services shall encourage the deployment on a reasonable and
timely basis of advanced telecommunications capability to all Americans
(including, in particular, elementary and secondary schools and classrooms) by
utilizing, in a manner consistent with the public interest, convenience, and
necessity, price cap regulation, regulatory forbearance, measures that promote
competition in the local telecommunications market, or other regulating methods
that remove barriers to infrastructure investment.
(b) Inquiry
The Commission shall, within 30 months after February 8, 1996, and annually
thereafter, initiate a notice of inquiry concerning the availability of advanced
telecommunications capability to all Americans (including, in particular,
elementary and secondary schools and classrooms) and shall complete the inquiry
within 180 days after its initiation. In the inquiry, the Commission shall
determine whether advanced telecommunications capability is being deployed to
all Americans in a reasonable and timely fashion. If the Commission’s
determination is negative, it shall take immediate action to accelerate deployment
of such capability by removing barriers to infrastructure investment and by
promoting competition in the telecommunications market.
The FCC, in its order, seized upon language in both subsections. The FCC stated at the outset
that Congress desired to give the FCC broad authority regarding telecommunications:
131. Encouraging broadband deployment is central to federal
communications policy. . . . Section 2 of the Communications Act grants the
Commission jurisdiction over “all interstate and foreign communication by wire
or radio,” and broadband Internet access “falls comfortably within the
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 12
Commission’s jurisdiction” under section 2, and has historically been supervised
by the Commission.
132. Within the bounds of these jurisdictional grants, Congress has
empowered the Commission with broad authority to “make the major policy
decisions and select the mix of regulatory and deregulatory tools the Commission
deems most appropriate in the public interest to facilitate broadband deployment
and competition.”
Id. at *38 (footnotes omitted).
The FCC discussed how the preamble of the Telecommunications Act of 1996 states the
Act’s purposes: the promotion of competition in the telecommunications market and the
encouragement of both infrastructure investment and deployment of technologies. Id.
Section 706, according to the FCC, is the statute that authorizes the FCC to further these
purposes:
135. Section 706 shows a unique level of Congressional concern with
broadband deployment. Both sections 706(a) and (b) direct that the Commission
“shall” take action to promote broadband deployment. Section 706(b), moreover,
is unique in requiring the Commission to study broadband deployment and
requiring it to take action if the Commission finds that broadband is not being
deployed to all Americans in a reasonable and timely fashion. Both sections, in
targeting broadband deployment to “all Americans,” also reflect Congress’s
concern with unserved and underserved areas. . . .
137. We have found, . . . in our 2015 Broadband Progress Report,
adopted on January 29, 2015, that broadband has not been deployed in a
reasonable and timely fashion to all Americans. In light of this negative finding,
section 706(b) commands that we “take immediate action to accelerate
deployment of such capability by removing barriers to infrastructure investment
and by promoting competition in the telecommunications market.” Preemption
constitutes one such “immediate action” available to us under this independent
grant of authority to “fulfill Congress’s broadband deployment objectives.” . . .
139. In sum, Congress has granted us broad jurisdiction over broadband
in the United States, and has specifically mandated that we promote broadband
deployment, in section 706.
Id. at *39–40 (footnotes omitted).
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After concluding that § 706 gives the FCC some authority, the FCC analyzed whether
that authority includes the ability to preempt state law:
142. In light of Congress’s delegation of authority to the Commission to
“encourage” and “accelerate” the deployment of broadband to all Americans, we
interpret Sections 706(a) and (b) to give us authority to preempt state laws that
stand as barriers to broadband infrastructure investment or as barriers to
competition. . . . [U]nder City of New York and Crisp, the relevant inquiry when
an agency acts to preempt state law is whether Congress delegated the authority to
act in this sphere. In both of those cases, the Supreme Court found “that the
Commission’s authority” over cable video programming “extends to all
regulatory actions ‘necessary to ensure the achievement of the Commission’s
statutory responsibilities,’” including the preemption of otherwise valid state
laws. . . .
144. Our preemption authority falls within the “measures to promote
competition in the local telecommunications market” and “other regulating
methods” of section 706(a) that Congress directed the Commission to use to
remove barriers to infrastructure investment. It likewise falls within the available
“action[s] to accelerate deployment” we may take in order to “remove barriers to
infrastructure investment” and to “promote competition” described in section
706(b). As Congress would have been aware in passing the 1996 Act, the
Commission has in the past used preemption as a regulatory tool where state
regulation conflicts with federal communications policy. Given this history
against which Congress legislated, the best reading of section 706 is therefore that
Congress understood preemption to be among the regulatory tools that the
Commission might use to act under section 706.
Id. at *40–41 (footnotes omitted). The FCC defended this conclusion against various
counterarguments to the effect that Congress may authorize preemption only with explicit
statutory language:
145. . . . The law is clear that Congress need not “explicitly delegate” the
authority to preempt. In fact, Congress’s decision not to specifically identify
preemption is to be expected where, as here, the Commission had previously
preempted state law even where the relevant statutes contained no express
discussion of preemption. Consistent with that practice, Congress drafted section
706 in broad terms, directing the Commission to use “measures that promote
competition” and to do so in “a manner consistent with the public interest,
convenience, and necessity.” That Congress provided a small number of specific
examples in section 706(a), such as price cap regulation and regulatory
forbearance, does not exclude other measures within the Commission’s authority.
Indeed, the language of section 706(a) supports this understanding, directing the
Commission and State commissions to use “measures that promote competition in
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 14
the local telecommunications market” or “other regulating methods that remove
barriers to infrastructure investment.” Such methods would of course include
those listed, but would also include additional methods, including preemption,
rulemaking, or other appropriate methods. In sum, we find that section 706
incorporates the rule common throughout communications law: the Commission
may preempt state laws regarding interstate communications where they conflict
with federal communications policy.
Id. at *41 (footnotes omitted).
After reaching the conclusion that § 706 delegates to the FCC the general authority to
preempt state laws, the FCC then analyzed whether § 706 authorizes preemption in the context of
state laws regulating municipal subdivisions:
146. . . . [W]e now address whether [§ 706] may at least sometimes
provide authority to preempt state laws that regulate the provision of broadband
by a state’s political subdivisions. We find that sections 706(a) and (b) both do
give us that authority in certain circumstances. Two different views support our
authority. First, the Commission has concluded that broadband services are
jurisdictionally interstate for regulatory purposes. Congress has delegated
authority to the Commission to regulate interstate services. Second, even if that
were not sufficient, section 706 makes clear that Congress has mandated that the
Commission remove “barriers” to broadband deployment and infrastructure
investment and promote competition in the local telecommunications market.
Whether something constitutes a barrier or promotes competition is a question of
the kind that Congress intended the Commission, as the Nation’s expert agency of
communications, to answer and to govern. For these reasons, we find that where
a state law regulating the provision of broadband by a political subdivision serves
to effectuate communications policy as opposed to core state control of political
subdivisions, and where that law stands as a barrier to broadband infrastructure
investment or an impediment to competition, such laws conflict with our authority
to ensure the deployment of broadband to all Americans on a reasonable and
timely basis and so may be preempted. . . .
147. . . . [W]here a state has authorized municipalities to provide
broadband, and then chooses to impose regulations on that municipal provider in
order to effectuate the state’s preferred communications policy objectives, we find
that such laws fall within our authority to preempt. To take an example, where a
state allows political subdivisions to provide broadband, but then imposes
regulations to “level the playing field” by creating obligations apparently intended
to mirror those borne by private providers, it does so in order to further its own
policy goals about optimal competitive and investment conditions in the
broadband marketplace. The states here are deciding that incumbent broadband
providers require protection from what they regard as unfair competition and
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 15
regulating to restrict that competition. This steps into the federal role in
regulating interstate communications. Where those laws conflict with federal
communications policy and regulation, they may be preempted. We thus interpret
[sub]sections 706(a) and 706(b) to give us authority to preempt state laws that
regulate the provision of broadband by political subdivisions, provided that the
law in question serves to effect communications policy and would frustrate
broadband deployment “on a reasonable and timely basis . . . to all Americans.”
Id. at *42 (footnotes omitted).
According to the FCC, § 706 provides this preemption authority because
telecommunications is an area in which a federal law preempts a state law when the two laws
conflict. Further, the FCC reasoned that “a state law that effectuates a policy preference
regarding the provisions of broadband is not shielded from all scrutiny simply because it is cast
in terms that affect only municipal providers.” The FCC, however, noted limitations on its
ability to preempt such state laws:
149. Conversely, we do not read this preemptive authority under section
706 to reach all state laws that may have an effect, however indirect, on the
provision of broadband by municipalities. Although a law could have an indirect
effect of restricting the class of entities that may provide broadband in the state, it
may not rise to the level of a restriction on competition or barrier to broadband
deployment or infrastructure investment within our section 706 authority to
preempt.
150. We have before us specific petitions to preempt specific laws. . . .
[O]ur authority to preempt is limited to laws that serve to effect state policy
regarding the provision of broadband, as opposed to laws that have an indirect
effect on the provision of broadband, such as those that serve the traditional state
function of granting or withholding authority to political subdivisions.
Id. at *43 (footnotes omitted). The FCC thus found that Congress granted it authority to preempt
most of the Tennessee and North Carolina laws. It found this authority notwithstanding
commenters’ counterarguments based on the Telecommunications Act as well as Supreme Court
decisions and the Tenth Amendment.1 Id. at *43–44.
Bringing its analyses together, the FCC preempted the territorial restriction in the
Tennessee statute as well as the provisions in the North Carolina Session Law that it deemed to
1
These counterarguments are addressed in depth below.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 16
be “barriers.” Because the territorial restriction in Tennessee’s § 601 “serves as a state law
communications policy regulation, as opposed to a core state function in controlling its political
subdivisions,” the FCC found the restriction to fall within its authority to preempt under § 706 of
the Telecommunications Act of 1996. Id. at *49–50. It further reasoned that the “level playing
field” provisions, “measures to raise economic costs,” and “measures to impose delay” of North
Carolina’s Session Law 2011-84 regulated “not issues of state sovereignty and political
determination, but rather the mechanics of how a city may provide a service it is authorized to
provide.”2 Id. at *50–54. The sections of the Session Law that were not deemed to constitute
barriers were left untouched by the FCC’s preemption.3 The FCC therefore granted the EPB’s
petition and granted in part the City of Wilson’s petition.
The FCC’s grant of these petitions did not result in a requirement for either the EPB or
the City of Wilson to expand their offerings, to charge a certain rate, or to roll out their services
promptly. Instead, the FCC’s grant required Tennessee and North Carolina to give their
municipalities the choice of whether to undertake these discretionary actions.
Commissioner Pai, in dissent, contended that Nixon v. Missouri Municipal League,
541 U.S. 125 (2004), interpreting principles underlying the Constitution, compelled the
conclusion that the FCC had no power to preempt the Tennessee and North Carolina laws
without a clear statement from Congress. Id. at *71–76. Commissioner Pai also contended that
§ 706 did not grant the FCC any preemption authority whatsoever. Id. at *78–81.
Judicial Review
Tennessee filed a petition for review of the FCC’s order with this court. North Carolina
filed its petition for review with the Fourth Circuit. The Fourth Circuit then transferred the case
to this court, and the cases were consolidated. We granted petitions to intervene brought by the
National Association of Regulatory Utility Commissioners (NARUC), the EPB, and the City of
2
The provisions that were preempted: §§ 340.1(a)(1), (3), and (5)–(9); 340.3; 340.4; 340.5; 340.6; and
Session Law 2011-84 §§ 1.(a) and (b); 2.(a); 3; and 5.
3
The provisions that did not constitute barriers and were therefore not preempted: §§ 160A-340(1), (2), (3),
(4), (5), and (6); 340.1(a)(2) and (4); 340.1(b), 340.2; and Session Law 2011-84 §§ 1.(c), 2.(b), 4, 6, 7, and 8. Id. at
*55.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 17
Wilson. The United States is also a party, but the Department of Justice’s Antitrust Division—
on behalf of the United States—filed a letter stating without elaboration that it “takes no position
in these cases.”
Tennessee argues that the FCC’s order violates the Constitution by infringing on the
state’s right to determine the boundaries of its political subdivisions. Tennessee, North Carolina,
and NARUC argue that even if Congress has the power to authorize such orders, it has failed to
provide the necessary clear statement as required by Nixon. The latter argument is persuasive, at
least where—as here—the FCC order purports only to restrict the states’ power to make
decisions for municipalities that the FCC does not otherwise forbid.
The Clear Statement Rule Applies
Under federal law, municipal telecommunications providers currently have the option to
expand their geographic service areas or to restrict their service areas to their municipal
boundaries. There are no federal statutes or regulations requiring telecommunications providers
to have a set geographic service area. Providers thus have discretion to choose the geographic
areas that they serve, whether that means expansion or restriction. Providers likewise have
discretion to choose the rates they charge for their services and how long the services-rollout
process takes.
What the FCC seeks to accomplish through preemption is to decide who—the state or its
political subdivisions—gets to make these choices. The FCC wants to pick the decision maker
for the discretionary issues of expansion, rate setting, and timeliness of rollout of services. It
wants to provide the EPB and the City of Wilson with these options notwithstanding Tennessee’s
and North Carolina’s statutes that have already made these choices.
Precedent makes clear, however, that if Congress has the power to allocate state decision
making, it must be very clear that it is doing so. As the Supreme Court stated in Nixon, the clear
statement rule applies when federal-government preemption results in “interposing federal
authority between a State and its municipal subdivisions, which our precedents teach, ‘are
created as convenient agencies for exercising such of the governmental powers of the State as
may be entrusted to them in its absolute discretion.’” 541 U.S. 125, 140 (2004) (citing Wis.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 18
Public Intervenor v. Mortier, 501 U.S. 597, 607–08 (1991); Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 433 (2002)); see also City of Abilene, Tex. v. F.C.C., 164 F.3d
49, 53 (D.C. Cir. 1999). The political subdivisions of a state are nothing more than that state’s
“convenient agencies,” and the state generally retains the power to make discretionary decisions
for its subdivisions, just as a board of directors generally retains the power to make discretionary
decisions for a company. Any attempt by the federal government to interpose itself into this
state–subdivision relationship therefore must come about by a clear directive from Congress, and
the FCC can only pick the decision maker here if there exists a clear statement to do so in § 706.
Nixon supports the conclusion that the clear statement rule applies here. In Nixon, a
Missouri state statute forbade municipalities from entering the telecommunications market
altogether. 541 U.S. at 129. The FCC, under § 253 of the same Telecommunications Act at
issue in this case, held that there was no clear statement from Congress to preempt the Missouri
law. Id. The Supreme Court agreed with the FCC and held that a clear statement was needed
because federal preemption of Missouri’s law threatened “to trench on the States’ arrangements
for conducting their own governments.” Id. at 140–41. This case similarly involves Tennessee’s
and North Carolina’s arrangements for conducting their own governments: if there is a decision
to make, one way for states to conduct their own governments is to make the decision for their
municipalities. Any attempt by the federal government to reorder the decision-making structure
of a state and its municipalities trenches on the core sovereignty of that state. Nixon involved
Missouri’s making a choice for its municipalities on the issue of whether to provide
telecommunications services at all. No federal regulation or statute existed that required
municipalities to provide telecommunications; the decision whether to provide services was left
to the discretion of the provider. The present case involves two states that likewise have made
discretionary determinations for their political subdivisions. Nixon is therefore analogous
regarding the clear statement rule and supports the rule’s applicability in this case.
The FCC sought to distinguish Nixon on the ground that there is a difference between
preempting a state-law ban on municipal telecommunications providers and preempting state
laws regulating municipal broadband providers for which the state has given an underlying
authorization. In re City of Wilson, 2015 WL 1120113, at *47–48. The distinction, however,
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 19
does not hold up. It is true that the Nixon Court, in identifying the “strange and indeterminate
results” that would arise, reasoned that if the FCC preempted the ban on municipal providers,
“[t]he municipality would be free of the statute, but freedom is not authority, and in the absence
of some further, authorizing legislation the municipality would still be powerless to enter the
telecommunications business.” Nixon, 541 U.S. at 135. This would produce a “national crazy
quilt” of municipalities in some states being able to provide services based on state laws
authorizing them to do so while municipalities in other states would still be without any power
due to the absence of an authorizing statute. Id. at 136. It is true that this particular anomaly
does not arise when the FCC’s preemption applies only to municipalities authorized to provide
telecommunications services. But a related anomaly, and one equally intrusive on state-
municipal relations, is presented. States can flatly prohibit municipalities from engaging in
telecommunications altogether, but they cannot do it in limited steps or with conditions based on
the governmental nature of the municipalities. This state of affairs, in short, would be at least as
anomalous a result.
In any event, the anomalous result of the preemption was only one of the two bases for
the Court’s decision in Nixon. In the alternative, the Court reasoned, if the preemption in Nixon
“could operate straightforwardly to provide local choice,” then “the liberating preemption would
come only by interposing federal authority between a State and its municipal subdivision,” thus
triggering the clear statement rule. Id. at 140–41. The same is true here.
The FCC falls short in its attempt to distinguish Nixon on the ground that the state laws
here do not implicate concerns about core state sovereignty like Nixon’s Missouri law. The FCC
stated in its order and argues on appeal that Tennessee’s and North Carolina’s laws “target the
regulation of broadband . . . as opposed to . . . go[ing] to the historic police powers of the states.”
In re City of Wilson, 2015 WL 1120113, at *45. Based on this purported distinction, the FCC
concluded in its order that “the Tennessee and North Carolina statutes do not implicate core
attributes of state sovereignty but rather regulate interstate communications services that are at
the heart of the [FCC]’s jurisdiction.” Id. But the same was true in Nixon, because the Missouri
statute there forbade municipalities from entering the telecommunications market. 541 U.S. at
129. The statutes at issue here implicate core attributes of state sovereignty and regulate
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 20
interstate communications services, just like the statute in Nixon. These effects are not mutually
exclusive.
Finally, the FCC sought to distinguish Nixon on the ground that the Court was upholding
the agency’s order, rather than reversing it as we do today. In re City of Wilson, 2015 WL
1120113, at *47. The distinction only makes a difference if we are required to apply Chevron
deference to the agency ruling in this case. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). The first step of Chevron, however, requires that, “if the intent of
Congress is clear, that is the end of the matter.” Id. at 842–43. The force of the clear statement
rule, as applied in the next section, makes the intent of Congress clear in this case: § 706 does
not authorize the preemption attempted by the FCC. There is certainly room for the application
of canons of construction to ascertain whether the first step of Chevron has been met. Id. at 843
n.9; Alliance for Cmty. Media v. F.C.C., 529 F.3d 763, 777 (6th Cir. 2008); Gerson v. Comm’r,
507 F.3d 435, 439 (6th Cir. 2007). Perhaps the strongest case for using a canon of construction
at the first step of Chevron is where, as here, the canon is strong enough to act as a clear
statement rule, and where the canon is firmly based not only on what Congress is presumed to
intend, see Nixon, 541 U.S. at 140–41, and on fundamental constitutional policy.
Chattanooga’s home-rule status likewise does not compel a different conclusion. When a
Tennessee municipality adopts home-rule status, it elects to govern itself, and the state
legislature may only interfere with municipalities via “laws which are general in terms and
effect.” See Tenn. Const. Art. XI, § 9. The EPB argues that because Chattanooga is a home-rule
municipality, the relationship between Tennessee and the EPB is weaker, and the FCC’s
preemption is correct. Chattanooga’s home-rule status is hardly relevant to the issues in this
appeal—the validity of § 7-52-601 under the Tennessee constitution is not contested.
A different issue would be presented if there were a federal regulation or statute that
removed all discretion from providers, and a state then enacted a law requiring a municipality to
violate the regulation. For example, assume a federal regulation requiring a class of
telecommunications providers to provide services to areas of at least fifty square miles, and a
state law restricting the geographic area municipal providers could serve to areas of twenty-five
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 21
square miles or less. We need not decide whether the clear statement rule would apply in that
situation. That simply is not the case here.
Similarly, the examples put forward by the FCC are not analogous to the present case.
The FCC’s examples of federal regulations on radio licensees’ broadcast frequency and strength,
bandwidth size, and other non-communications regulations such as OSHA workplace safety
standards all involve situations in which the federal government has removed discretion from
regulated parties in a particular area.4
Section 706 Lacks a Clear Statement
Section 706 does not contain a clear statement authorizing preemption of Tennessee’s
and North Carolina’s statutes that govern the decisions of their municipal subdivisions.
Section 706(a) instructs the FCC to utilize “measures that promote competition in the local
telecommunications market, or other regulating methods that remove barriers to infrastructure
investment.” Subsection (b) is a similar but broader instruction—it directs the FCC to “remov[e]
barriers to infrastructure investment and . . . promot[e] competition in the telecommunications
market.” “Remove barriers to infrastructure investment” is unclear regarding whether it applies
to public and private infrastructure investment or only private infrastructure investment.
“Infrastructure,” by itself, is not specific to the public sphere. Furthermore, nowhere in the
general charge to “promote competition in the telecommunications market” is a directive to do so
by preempting a state’s allocation of powers between itself and its subdivisions. Although
preemption authority does not have to be explicit, see Gregory v. Ashcroft, 501 U.S. 453, 467
(1991), the authority to preempt such allocations must be delegated by way of a clear statement.
In applying the clear statement rule, the federal statute “should be treated with great skepticism[]
and read in a way that preserves a State’s chosen disposition of its own power, in the absence of
4
The FCC quotes out of context the Supreme Court’s statement that “an ‘assumption’ of non-preemption is
not triggered when the State regulates in an area where there has been a history of significant federal presence.”
United States v. Locke, 529 U.S. 89, 107–08 (2000). The assumption that Locke referred to was the general
assumption “that the historic police powers of the States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.” This general presumption, overcome in Locke itself, is not the
same as the clear statement rule at issue in the instant case. Indeed, Locke involved rules regarding the design and
operation of oil tankers without regard to whether the tankers were operated by municipalities. Locke had no hint of
a municipal-powers issue.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 22
the plain statement that Gregory requires.” Nixon, 541 U.S. at 141. Because § 706 cannot be
read to limit a state’s ability to trump a municipality’s exercise of discretion otherwise permitted
by FCC regulations, § 706 cannot be read to authorize such preemption.
A comparison to the provision at issue in Nixon demonstrates § 706’s lack of a clear
statement. In Nixon, municipalities sought the FCC’s preemption of state laws under 47 U.S.C.
§ 253. Nixon, 541 U.S. at 129. That provision states that “[n]o State or local statute or
regulation . . . may prohibit or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service.” 47 U.S.C. § 253(a). The Nixon Court
found the language “any entity” to be ambiguous and susceptible to readings that included either
private entities alone or public and private entities. 541 U.S. at 132–33. Thus, following the
clear statement rule, the Court found that the federal statute did not authorize preemption of
Missouri’s regulations of its municipalities. Id. at 140–41. It can hardly be argued that § 706 is
a clearer directive than § 253; the directives in § 706—to remove barriers and to promote
competition—do not make clear whether public entities are included.
Our holding today is a limited one. We do not question the public benefits that the FCC
identifies in permitting municipalities to expand Gigabit Internet coverage. Furthermore, we
need not, and do not, address a number of legal issues debated by the parties, including
(1) whether § 706 provides the FCC any preemptive power at all, (2) whether Congress, if it is
clear enough, could give the FCC the power to preempt as it did in this case, (3) whether, if the
FCC had such power, its exercise of it was arbitrary or capricious in this case, and (4) whether
and to what extent the clear statement rule would apply to FCC preemption if a State required its
municipality to act contrary to otherwise valid FCC regulations.
The petitions for review are accordingly granted, and the FCC’s order is reversed.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 23
____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I agree
that Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), compels us to reverse the FCC’s
preemption of the geographical restrictions of both States’ statutes as well as several other
provisions of the North Carolina statute. I write separately to address a few issues left open by
the majority, to explain what I understand to be the scope of the clear-statement rule, and
because I conclude that at least one of the North Carolina provisions was validly judged by the
FCC as pertaining solely to the regulation of broadband, and not the State’s ordering of its
government.
The FCC correctly finds in § 706 of the Telecommunications Act of 1996, 47 U.S.C.
§ 1302, a Congressional grant of authority to preempt the enforcement of state laws that directly
conflict with Congress’ intent as expressed in the Telecommunications Act. Section 706’s
directive is broad; if the FCC finds that advanced telecommunications capability is not being
deployed to all Americans in a reasonable and timely fashion, “it shall take immediate action to
accelerate deployment of such capability by removing barriers to infrastructure investment and
by promoting competition in the telecommunications market.” 47 U.S.C. 1302(b). Thus, if
telecommunications resources are not being reasonably and timely deployed, the FCC is directed
to remove barriers and promote competition. Id. If a state statute is a barrier to infrastructure
investment and competition, § 706 authorizes the FCC to remove it by preempting its
enforcement. For me, the only question is whether Congress intended to grant the FCC authority
to preempt enforcement of state laws restricting municipal authority.
As the majority explains, Nixon makes clear that Gregory’s1 clear-statement requirement
applies to the FCC’s powers under the Telecommunications Act to preempt state laws
concerning municipal authority to provide telecommunications services. Maj. Op. at 21-22. The
FCC is no doubt accurate in its characterization of the statutes at issue as legislation intended to
1
Gregory v. Ashcroft, 501 U.S. 452 (1991).
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 24
further the States’ “own policy goals about optimal competitive and investment conditions in the
broadband marketplace,” and as effectuating a judgment that “incumbent broadband providers
require protection from what they regard as unfair competition.” In re City of Wilson, N.C.
Petition for Preemption of N.C. General Statute Sections 160A-340 et seq., 30 FCC Rcd. 2408
(March 12, 2015). Nevertheless, as the majority observes, a statute can address both
governmental authority and the effectuation of substantive policy. Maj. Op. at 19-20. The
statutory provisions imposing geographical limitations on the provision of broadband clearly
concern the States’ arrangements for conducting their own governments, including how
municipalities interact with each other. Likewise, the provisions of the North Carolina law that
require notice, comment, a hearing process, and a special election before a municipality can
construct a telecommunications network clearly involve the core of the State’s regulation and
control of the power granted to its municipalities, as does the provision barring a municipality
from subsidizing its communications service with funds from other services. Because these
provisions address the States’ historic authority to govern through its subdivisions, a clear
statement of Congressional intent to preempt that authority is necessary.
I do not, however, understand the clear-statement cases to require a clear statement
whenever the state statute or regulation sought to be preempted affects local government in any
fashion. The rationale for requiring a clear statement is that certain powers and spheres are
historically so clearly confided to the States that Congress should not be understood to preempt
the States’ authority to act freely in those areas unless its intent is clear. North Carolina’s
requirement that municipalities impute the costs of private providers when pricing municipal
services, including telecommunication services, N.C. Gen. Stat. § 160A-340.1(a)(8), has little to
do with the State’s core sovereign power to order its government. Rather, it is an expression of
its telecommunications policy that private providers must be protected from a municipal
provider’s unfair advantage. While the other provisions discussed above serve dual purposes
that preclude their preemption even if the communications-policy purpose is in reality
paramount, the provision requiring the imputation of costs is exclusively regulatory and
commercial.
Nos. 15-3291/3555 State of Tenn., et al. v. FCC, et al. Page 25
Lastly, I agree that the FCC’s preemption decision is not entitled to Chevron deference.
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron applies
only where “Congress has not directly addressed the precise question at issue” and the “statute is
silent or ambiguous with respect to the specific issue” leaving the agency to fill the gap. Id. at
842–43. But that very silence or ambiguity with respect to whether Congress intended to
preempt the states’ regulation of their subdivisions triggers application of the clear statement
rule; thus, application of Chevron deference to the FCC’s determination that it has the authority
to preempt in this situation—as distinguished from the decision whether to exercise the authority
to preempt––would turn the clear statement rule on its head.
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64 Cal.App.3d 297 (1976)
134 Cal. Rptr. 338
THE PEOPLE, Plaintiff and Appellant,
v.
REYMUNDO FRAUSTO PEREZ, Defendant and Respondent.
Docket No. 28260.
Court of Appeals of California, Second District, Division Three.
November 29, 1976.
*298 COUNSEL
John K. Van de Kamp, District Attorney, Donald J. Kaplan and Jay J. Becker, Deputy District Attorneys, for Plaintiff and Appellant.
Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Bradley Brunon and Maitland Montgomery, Deputy Public Defenders, for Defendant and Respondent.
OPINION
COBEY, Acting P.J.
The People of the State of California appeal from a judgment of dismissal following the grant of a Penal Code section 1538.5 motion by defendant, Reymundo Frausto Perez, to suppress certain evidence (a balloon of heroin). The appeal lies. (Pen. Code, § 1238, subd. (a)(7).)
Defendant was charged with possession of heroin, a violation of Health and Safety Code section 11350. The charge stemmed from a search made by the police incident to booking defendant for violation of Penal Code section 647, subdivision (f) being drunk in a public place.
*299 FACTS
On August 24, 1975, at approximately 10:15 p.m., uniformed Police Officers Thomas Herman and Carl Tomlinson were on routine patrol when they were waved down by Rosa Duarte, defendant's estranged wife. She was upset and excited and told the officers in broken English that her husband had returned to her home, had argued with her, and had struck her in the face. She asked that the officers come back to her apartment to talk with him.
Officers Herman and Tomlinson were then shown to her apartment, room 303. This opened onto an interior hallway common to all apartments on the third floor of the building. Officer Herman knocked on the door and called out, "Police officers." Defendant opened the door and stepped out into the hallway with an empty whiskey bottle raised above his head. He was unsteady on his feet and his eyes were bloodshot. Officer Herman several times ordered defendant to drop the bottle. Defendant did not comply. Officer Herman determined that defendant was drunk and that he was unable to care for himself.
Defendant stepped toward Officer Herman and tried to swing at him with the bottle, but he missed his target by approximately six inches, staggered and was caught by Herman, who disarmed him. The officers controlled the defendant, handcuffed him and placed him under arrest for being drunk in a public place. He was then taken to the police station for booking.
After booking approval was obtained from a patrol supervisor, a search of defendant's person was conducted at the police station. The search of defendant's pockets revealed a cellophane bag containing a brown substance subsequently identified as heroin in its pure state.
The trial court granted the motion to suppress because it found that defendant had not come into the hallway of his own volition. There is no evidence to support this finding. We may therefore disregard it.[1]
The question remains whether the hallway in which defendant was arrested for being drunk in a public place actually constituted such a *300 place within the meaning of the term "public place" as used in Penal Code section 647, subdivision (f).
DISCUSSION
As just indicated, prosecution under Penal Code section 647, subdivision (f),[2] is dependent on the accused's being in a public place. Defendant argues that the hallway was not a public place within the meaning of section 647, subdivision (f), and that his arrest was therefore invalid and the subsequent booking search of his person unconstitutional.
In the context of section 647, subdivision (f), California courts have defined a public place variously as "[c]ommon to all or many; general; open to common use" (In re Zorn, 59 Cal.2d 650, 652 [30 Cal. Rptr. 811, 381 P.2d 635] (barbershop is a public place); see In re Koehne, 59 Cal.2d 646, 649 [30 Cal. Rptr. 809, 381 P.2d 633]); "a place where the public has a right to go and to be.... [o]pen to the free and unrestricted use of the public" (People v. Belanger, 243 Cal. App.2d 654, 657 [52 Cal. Rptr. 660] (inside a parked automobile on a public street is a public place)); and a place where a "stranger ... was able to walk through the outside area of [a] home to the front door without challenge." (People v. Olson, supra, 18 Cal. App.3d at 598 (area outside private home, including lawn, driveway or front porch is a public place).)
New York's former public intoxication statute[3] has been construed to define a public place as one where the public has a right to go, not necessarily a place solely for the use of the public, but a place which is merely accessible to the neighboring public. (People v. Soule (1913) 30 N.Y.Crim. 214 [142 N.Y.S. 876, 880].) In People v. Richardson (1951) 104 N.Y.S.2d 336, 339, a defendant who used abusive language and threats *301 against a neighbor in violation of the disorderly conduct statute[4] in the interior hallway of their multiple unit dwelling was held to have committed a breach of the peace and the hallway held to be a public place within the context of the statute. Hallways of multiple unit dwellings have also been considered public places within a trespass statute. (People v. Beltrand (1970) 314 N.Y.S.2d 276, 283.)
(1) The hallway in this case is the kind of public place contemplated in the California and New York cases. There were no locked gates or doors to keep the public from entering. Hallways and stairways of multiple dwellings are open to delivery men, service men, solicitors, visitors and other strangers, whether those hallways are interior or exterior to the buildings,[5] and are therefore public places within the meaning of section 647, subdivision (f). In other words, a "public place" within the meaning of this subdivision is a location readily accessible to all those who wish to go there rather than a place which the general public frequents.
The judgment of dismissal is reversed.
Allport, J., and Potter, J., concurred.
NOTES
[1] In any event, People v. Olson, 18 Cal. App.3d 592, 594-595 [96 Cal. Rptr. 132], indicates that whether the person under the influence of intoxicating liquor or a drug comes into a public place of his or her own volition is without legal consequence in determining whether that person has violated the subdivision.
[2] Section 647, subdivision (f), reads in relevant part:
"Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
".... .... .... .... .... .
"(f) Who is found in any public place under the influence of intoxicating liquor, any drug, ... in such condition that he is unable to exercise care for his own safety or the safety of others...."
[3] New York Penal Law section 240.40, subsequently amended, stated:
"A person is guilty of public intoxication when he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.
"Public intoxication is a violation." (Italics added.)
[4] New York Penal Law Section 240.20 states in pertinent part:
"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
".... .... .... .... .... .
"3. In a public place, he uses abusive or obscene language, or makes an obscene gesture". (Italics added.)
[5] There is no requirement in subdivision (f) that the place be "exposed to the public view." This language is included only in subdivision (a), prohibiting solicitation of lewd or dissolute conduct "in any public place or in any place open to the public or exposed to public view."
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 8, 2005
STATE OF TENNESSEE v. ROBERT WAYNE PRYOR
Direct Appeal from the Circuit Court for Bedford County
No. 15244 Charles Lee, Judge
No. M2003-03124-CCA-R3-CD - Filed April 26, 2005
A Bedford County jury convicted the defendant, Robert Wayne Pryor, of robbery, a Class C felony.
Following a sentencing hearing, the trial court sentenced him as a Range I, standard offender to five
years and six months in the Department of Correction consecutive to sentences in another case for
which he was on probation. In this appeal, the single issue presented for our review is whether the
evidence was sufficient to support the conviction. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA MCGEE
OGLE, JJ., joined.
Gregory D. Smith, Clarksville, Tennessee (on appeal) and Andrew Jackson Dearing, III., Assistant
Public Defender (at trial), for the appellant, Robert Wayne Pryor.
Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Michael Randles and Ann Filer, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
Kevin Taylor, the victim in this case, testified at trial that he was watching television at
approximately 12:40 a.m. on the couch in his trailer on the evening of December 31, 2002, when
Benny Lotty, John “John Boy” Bingham, and the defendant knocked on his door. After a brief visit,
Taylor asked the three men to leave and went to sleep. Taylor stated that he was awakened shortly
thereafter by the sound of something “prying at the door.” He testified that, upon opening the door,
Bingham and the defendant forced their way back into the trailer, armed with butcher knives. Taylor
testified that he then grabbed a knife and fled to the nearby home of Robert Taylor (“Uncle Bay”),
his uncle.
Uncle Bay testified that he accompanied Taylor back to the trailer and that Taylor was visibly
nervous, excited, and scared. Taylor testified that, upon his return, he found his stereo “busted” in
the yard, his grill thrown against his window, and saw Bingham and the defendant carrying his
television set behind the trailer and over a fence. Uncle Bay also testified that “the stereo was laying
on the sidewalk between the door and the window, and they was putting the television over the fence
into the next trailer park.” Upon seeing Bingham and the defendant carrying the television, Uncle
Bay yelled, “[h]old it. I have got a gun,” causing Bingham and the defendant to drop the television
and leave.
David Stemper lived near Taylor in the trailer park. Stemper testified that he observed “two
gentlemen pushing a large television over a fence.” He stated that “you could hear them pushing it
end over end near the rear of it to get it over the hump, near the back of the trailer.”
Patrolman Cody King of the Shelbyville Police Department testified that, when he arrived,
Taylor still appeared scared and upset. Patrolman King stated that he saw “[a] stereo on the
sidewalk, outside of the front door [and] a TV across the fence in front of another trailer” and that
Taylor’s window was “shattered.” Patrolman King testified that, while the stereo was broken, “[he]
didn’t see anything broken on [the television].” Patrolman King also acknowledged that he did not
find any knives during the investigation.
Patrolman Billy Smith of the Shelbyville Police Department arrived at the scene at roughly
the same time as Patrolman King. Patrolman Smith also testified that “[t]here was a stereo system
laying in the front yard and a TV across the chain link fence.” After Taylor gave a description of
Bingham and the defendant, Patrolman Smith and other officers searched the surrounding area.
Patrolman Smith testified that, when Bingham and the defendant were located and arrested, Bingham
stated, “they ripped us in a drug deal” and that “they deserved what they got.”
Patrolman Rod Lewis Stacy of the Shelbyville Police Department was also present at the time
the defendant and Bingham were arrested. Patrolman Stacy testified that Bingham made the
statements, “[t]hey deserved it” and “[t]hey shouldn’t have screwed us on the drug deal.”
The defendant testified that he and Bingham were attempting to trade Taylor some marijuana
and money for cocaine the night of the offense. However, the defendant stated that, upon entering
Taylor’s trailer, a fight ensued and that he was robbed of his marijuana and money. The defendant
testified that, out of anger, he threw a grill “through the window” and told Bingham that “[t]hese
sons of bitches just robbed me. They took everything I had, pot and money.” The defendant testified
that Taylor then came out with a knife. The defendant stated that, after he and Bingham wrestled
the knife away, Taylor ran down the street. The defendant stated that he then “went in and started
breaking stuff.” He stated:
I grabbed the TV. I got John Boy to help me grab the TV. We threw it
outside. I went outside and stomped the stereo a couple of times. I kicked the TV
a couple of times.
-2-
....
I didn’t want to steal nothing. I wanted to break a lot of stuff.
....
Because they had stole my pot and my money.
Bingham corroborated the defendant’s testimony at trial, adding that “[w]e slung [the TV]
over the fence . . . jumped over the fence and started kicking it. Just kicking the heck out of it, trying
to break it.” Bingham also testified that, when Taylor and Uncle Bay returned to the trailer, “[w]e
turned around and walked off. We [were] still mad. . . . Somebody could have got shot over it.”
At the conclusion of the evidence, the jury found the defendant guilty of robbery. Following
a sentencing hearing, he was sentenced to five years and six months in the Department of Correction.
The defendant then filed a timely notice of appeal.
Analysis
The defendant’s sole issue on appeal is whether the evidence is sufficient to sustain his
conviction for robbery. He argues that the testimony of the victim in this case is “incredible and
should be discounted” and asks this Court to bolster the credibility of the defense witnesses in order
to overturn his conviction.
Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e) (“Findings of
guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.”).
On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See State v. Carruthers, 35
S.W.3d 516, 558 (Tenn. 2000). A guilty verdict removes the presumption of innocence so that, on
appeal, a convicted criminal defendant who challenges the sufficiency of the evidence bears the
burden of demonstrating why the evidence is insufficient to support the verdict. See State v. Evans,
108 S.W.3d 231, 237 (Tenn. 2003); Carruthers, 35 S.W.3d at 557-58; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). We will not reweigh the evidence, but must presume that the jury has
resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions about the
credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by
the evidence are to be resolved by the trier of fact. See Evans, 108 S.W.3d at 236; State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997).
Robbery is defined as “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2003). The
-3-
victim testified that the defendant forcibly entered his home. Three witnesses testified to seeing the
defendant in the act of removing the victim’s television set, from which the jury could infer the
defendant’s intent to deprive the owner. Viewing the evidence in a light most favorable to the State,
the evidence supports the defendant’s conviction.
The defendant’s argument on appeal challenges the credibility of the witnesses. In this case,
the testimony of the victim was divergent from the testimonies of defense witnesses regarding the
underlying facts. As stated, questions concerning the credibility of witnesses and factual
discrepancies raised by the evidence are reserved for the trier of fact. By their verdict, the jury chose
to accredit the testimony of the State’s witnesses. We conclude that the evidence is sufficient to
support this finding. Accordingly, this issue is without merit.
Conclusion
The judgment of the trial court is affirmed.
___________________________________
J.C. McLIN, JUDGE
-4-
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[Cite as Romans v. Texas Instruments, Inc., 2013-Ohio-5089.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
PETER ROMANS, Individually and as :
Administrator of the Estate of Billi, Ami
and Caleb Romans, Deceased, : CASE NO. CA2013-04-012
Plaintiff-Appellant, : OPINION
11/18/2013
:
- vs -
:
TEXAS INSTRUMENTS, INC., et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case Nos. CVC20090074 and CVC20100126
Vorys, Sater, Seymour and Pease LLP, Perry W. Doran, II, William G. Porter, Peter A.
Lusenhop, 52 E. Gay Street, Columbus, Ohio 43215, for plaintiff-appellant
Carpenter Lipps & Leland LLP, Michael H. Carpenter, Timothy R. Bricker, 280 Plaza, Suite
1300, 280 N. High Street, Columbus, Ohio 43215, for defendant-appellee, Texas
Instruments, Inc. nka Sensata Technologies, Inc.
Susman Godfrey LLP, Eric J. Mayer, Matthew Behncke, 1000 Louisiana Street, Suite 5100,
Houston, Texas 77002-5096, for defendant-appellee, Texas Instruments, Inc. nka Sensata
Technologies, Inc.
Porter Wright Morris & Arthur LLP, Terrance M. Miller, 41 S. High Street, Columbus, Ohio
43215, for defendant-appellee, Bridgestone Retail Operations, LLC
Thompson Hine LLP, Michele L. Noble, 41 S. High Street, Suite 1700, Columbus, Ohio
43215, for defendant, Ford Motor Company
Thompson Hine LLP, Elizabeth B. Wright, 3900 Key Center, 127 Public Square, Cleveland,
Ohio 44114, for defendant, Ford Motor Company
Madison CA2013-04-012
Dykema Gossett PLLC, Clay Guise, 39577 Woodward Avenue, Suite 300, Bloomfield Hills,
Michigan 48304, Ford Motor Company
HENDRICKSON, P.J.
{¶ 1} Plaintiff-appellant, Peter Romans, individually and as the Administrator for the
Estates of Billi, Ami, and Caleb Romans, appeals a decision from the Madison County Court
of Common Pleas granting summary judgment in favor of defendants-appellees, Sensata
Technologies, Inc. (Sensata) and Bridgestone Retail Operations, LLC (Bridgestone).
I. Background
{¶ 2} In the early morning hours of April 6, 2008, a fire started in Romans' 2001 Ford
Expedition, which was parked in the carport adjacent to the Romans' home, and quickly
spread to the house. While Romans was able to escape the house, unfortunately, Romans'
wife, Billi, and two children, Ami and Caleb, were unable to escape and tragically died in the
fire.1 At the time of the fire, the Expedition's engine was off and the key was not in the
ignition.
{¶ 3} On February 24, 2009, Romans filed a products liability wrongful death action
against Ford Motor Company (Ford), the manufacturer of the Expedition. Romans alleged
that Ford's negligence and various defects in the Expedition resulted in the electrical fire that
caused personal injury to Romans and the death of his wife and children.
{¶ 4} Romans filed a second lawsuit on March 29, 2010, against Sensata and
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Bridgestone. Sensata manufactured the speed control deactivation switch (SCDS), a
1. The Madison County Coroner declared the deaths of Billi, Ami, and Caleb to be homicides. The parties
disagree as to whether the fire originated in the SCDS or if it was an act of arson as determined by the State Fire
Marshall; however, this issue is not before this court. As stated in Romans' brief, this appeal "addresses two
purely legal questions involving the component parts doctrine and the legal duty of automobile service
technicians."
2. Sensata was formerly a part of Texas Instruments, Inc. Texas Instruments had a division called the Sensors
and Controls Division, and in 2006 Texas Instruments divested that division and it became Sensata. Although
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component part of the Expedition's brake and cruise control systems. The SCDS disengages
the cruise control system when the brake pedal is depressed and the hydraulic pressure of
the brake fluid increases. Romans brought several claims against Sensata including
negligence and statutory products liability under R.C. 2307.74, R.C. 2307.75, and R.C.
2307.76. In his complaint, Romans alleged that the SCDS was (1) defective in the
manufacture, construction, and design of the switch, and (2) defective due to inadequate
warnings, and that such defects caused the fire in his Expedition.
{¶ 5} Romans also brought claims against Bridgestone, which arose out of service
work Bridgestone performed on Romans' Expedition a few weeks before the fire. Romans
alleged that Bridgestone was negligent in failing to repair the Expedition's braking and
electrical systems, failing to warn of the defects and fire hazards associated with the cruise
control system and the SCDS, and failing to disable or disconnect the Expedition's cruise
control system and the SCDS. Romans' claims against Ford, Sensata, and Bridgestone were
consolidated into one action.
A. Sensata's Development of the SCDS
{¶ 6} To appreciate Sensata's role in the manufacture of the SCDS, it is necessary to
understand the function of the SCDS within the Expedition's speed control mechanism. The
SCDS is a hydraulic pressure switch that functions as a redundant safety shut off for the
vehicle's cruise control. As the driver applies pressure to the brake pedal, the switch opens,
breaking the circuit to the speed control system and causing the speed control to disengage.
The SCDS is mounted on the brake master cylinder, which is generally located on the driver's
side of the engine compartment. The SCDS may be mounted on the master cylinder in a
vertically up, vertically down, or angled down position depending on the Ford model. The
the record often refers to Texas Instruments, as that was the entity involved during the relevant time period, for
ease of discussion, we refer to Texas Instruments as its successor entity, Sensata.
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SCDS was divided into a "wet" hydraulic side containing brake fluid and a "dry" electrical
side. The "wet" side interfaces with the brake master cylinder and the "dry" side interfaces
with the electrical wiring to the cruise control system and contains electrical contacts that
open and close, disengaging the cruise control when the brakes are applied. The two sides
were separated by a thin diaphragm of flexible material called Kapton. This diaphragm was
often referred to as the Kapton seal. The Kapton seal consisted of three layers of Kapton,
each layer coated with Teflon on both sides. The Teflon was used to seal or prevent brake
fluid from leaking into the electrical side of the device. In some vehicles, including Romans'
Expedition, the switch was powered at all times, meaning the switch received electrical
current even when the engine was turned off and the key removed from the ignition.
{¶ 7} In the late 1980's, Ford requested Sensata design and develop the SCDS.
Sensata had provided Ford with similar pressure switches in the past for other operations in
its vehicles. Sensata agreed that it would be able to provide this type of switch. Sensata
began developing the SCDS to be used in two different platforms for Ford: (1) the panther
platform, consisting of the Lincoln Town Car, the Ford Crown Victoria, and the Mercury
Grand Marquis, and (2) Ford's truck platform, which included the Expedition.
{¶ 8} During the development phase of the SCDS, Sensata and Ford worked
together to develop the Engineering Specification (Specification) for the SCDS. The
Specification defined the basic function of the SCDS, as well as what testing the switch was
required to meet to determine whether it was ready to be launched into production. Sensata
often provided feedback to Ford regarding requirements within the Specification, including
the practicality of a requirement, and at times, proposed changes to the Specification.
Ultimately, however, Ford determined the requirements for the Specification and how the
switch would interface and interact with other components of the vehicle. During
development of the SCDS, the switch went through extensive testing to ensure that it
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continued to meet the Specification. Once the testing was complete and Sensata
demonstrated the SCDS met Ford's Specification, Ford approved the SCDS, and Sensata
began production.
{¶ 9} Sensata then shipped the SCDS to Tokico, a Ford supplier which manufactured
the master cylinder of the Expedition's brake system. Tokico would mount the SCDS on the
master cylinder and ship the combined master cylinder to Ford. Ford then integrated the
combined master cylinder into the Expedition's brake and cruise control systems. The SCDS
was integrated into the truck platform starting in 1992.
{¶ 10} In 1999, Sensata learned from Ford that there was a high incidence of under-
hood fires in the panther platform; Ford believed these fires were originating in the SCDS.
Ford reported to Sensata that in some of these vehicles, the Kapton seal contained cracks or
perforations which allowed brake fluid to leak into the electrical side of the SCDS. According
to Ford, the truck platform was not experiencing similar issues. Sensata supported Ford in
testing and investigating the SCDS. During its testing, Sensata discovered that once fluid
leaked into the electrical side of the SCDS, an electrolytic cell could form inside that side of
the SCDS and create a short to ground and cause a fire. However, Sensata could only
create this situation with the use of salt water. After extensive testing, Sensata determined
that the SCDS continued to meet Ford's Specification and did not make any changes to the
SCDS. However, Sensata expressed to Ford its concern that the high incidence of fires may
be related to the manner in which the SCDS was integrated into the vehicles. Specifically,
Sensata suggested that Ford remove the SCDS from the constant electrical supply because
it felt this may be a factor in causing a fire to originate in the SCDS. Ford ultimately attributed
the breach in the Kapton seal and the high incidence of fires to a change in Sensata's
manufacturing process from a manual to automatic process. As a result, Ford made no
changes to the manner in which it integrated the SCDS in its vehicles and continued to
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incorporate the SCDS within a powered-at-all-times circuit.3 However, Ford recalled its 1992
and 1993 panther platform vehicles and replaced the old SCDS with a new identical SCDS.4
At the end of 2001, Sensata decided to stop supplying Ford with the SCDS as Ford had not
made any changes in the way the SCDS was integrated into Ford vehicles.
{¶ 11} In 2004, the National Highway Traffic Safety Administration (NHTSA) began a
two-year investigation into the cause of under-hood fires in certain Ford vehicles, including
Expeditions manufactured in 2001. NHTSA had received numerous complaints of fires
starting when vehicles were parked and the ignition was in the off position. Sensata became
aware of fires in the truck platform when this investigation began. As part of the
investigation, NHTSA collected and tested numerous SCDSs. NHTSA's Office of Defects
Investigation (ODI) "developed an extensive testing and analysis program during this
investigation to understand the root cause of the SCDS failures and understand why certain
Ford model/model year vehicles had very high rates of key off engine compartment fires,
while other models using the same part number SCDS had very low rates of fires." ODI
contacted the National Institute of Standards and Technology (NIST) to compare three
categories of switches: (1) switches that had already failed, (2) switches "that were not likely
to fail during their lifetime and [(3)] switches that were likely to fail during their lifetime."
(Emphasis sic.) The purpose of this comparison was to determine if there were certain
characteristics in the "likely to fail" switches that would cause them to fail. In September
2005, before NHTSA concluded its investigation, Ford recalled certain 2001 Ford
Expeditions, including Romans' Expedition because "the underhood speed control
deactivation switch may overheat, smoke, or burn, which could result in an underhood fire."
3. The record indicates that Ford made some changes to the manner in which the SCDS was being integrated in
the Ford Explorer model such that a relay was installed on the circuit in which the SCDS was located.
4. The SCDSs that were installed as a result of this recall were still produced by Sensata and were of the same
original design.
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{¶ 12} NHTSA completed its investigation and issued Engineering Analysis Closing
Report EA05-005 (Closing Report) in August 2006. In this report, NHTSA explained that the
NIST analyses found that there were no unique characteristics in the design of the SCDS or
issues with the brake fluid that might lead to SCDS failures. Rather, NHTSA found that the
"damaged" switches had a common failure pattern which was caused by fatiguing of the
Kapton. Based on these results, "ODI began to focus on what vehicle characteristics might
be causing the Kapton diaphragm to be experiencing a change in orientation * * * that would
fatigue the Kapton material." NHTSA ultimately concluded that normal braking actuation
fatigued the Kapton seal, causing cracks within the seal which permitted brake fluid to leak
from the wet side to the dry side of the SCDS. NHTSA determined that once the leak
develops, water-contaminated brake fluid finds its way into the dry electrical side and
corrodes the switch's electrical contacts. Once the contacts are corroded, the once dry side
of the SCDS becomes a "resistive short to ground that generates heat in the switch cavity"
which, in some cases, can cause a fire. In order for a SCDS to fail in this manner and start
fire while the vehicle is parked with the ignition in the off position, NHTSA concluded that the
following three factors must be present, "the vehicle must: (1) have a PAT [powered at all
times] SCDS circuit; [sic.] (2) have a brake system that generates a high enough vacuum to
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flip the Kapton orientation, and (3) have a SCDS orientation that is not vertically down." The
Closing Report made it clear that there must be a combination of all three factors to result in
a fire.
{¶ 13} Romans' vehicle was manufactured during the last few months of 2000. On the
5. Some Ford model vehicles experienced a vacuum pressure just after a braking event, when the driver
released the brake pedal. The vacuum pressure varied among vehicles and model years; however, in some
models NHTSA discovered that "the magnitude of the vacuum pressure was great enough to cause the Kapton
'set' to invert or 'oil can.' This change in orientation of the Kapton material each time the brake pedal is released
causes the Kapton material to fatigue and wear out much sooner than if the diaphragm had only experienced
pressure applications in one direction." The Specification did not account for this vacuum pressure.
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2001 Expedition, such as Romans', the SCDS was mounted on the brake master cylinder in
a vertical up position and was on a circuit that was powered at all times. In addition, the
brake system experienced a "high" level of vacuum pressure just after a braking event.
B. Bridgestone's Repair and Service of Romans' Expedition
{¶ 14} The parties agree that there is no dispute as to any of the facts relevant to this
appeal and the record confirms the following undisputed facts. On March 1, 2008, a few
weeks before the fire, Romans took the Expedition to Bridgestone for service because
Romans and his wife had been experiencing problems with the Expedition. They had
difficulty getting the vehicle out of park and when they applied the brakes, a fuse would blow.
After changing the fuse approximately four times, Romans decided to take the vehicle to
Bridgestone to determine the source of the problem. To ensure the Expedition would not
blow the fuse on the way to the Bridgestone service center, Romans replaced the
manufacturer's 5 amp recommended fuse with a larger, 30 amp fuse.
{¶ 15} At Bridgestone, Romans spoke with the service manager, Michael Hoskin, and
explained the issue. He reported: "I put a bigger fuse in" and "it keeps blowing the fuse.
When you turn the ignition on, touch the brake, and try to put it into reverse, * * * it just blows
the fuse." Based on these symptoms, Hoskin generated a work order which stated: "Non-
system services-when apply brake 1st time or last time, fuse blows for anti-thef, window etc. .
. . Has a 30 A[mp] fuse in to keep from blowing * * *." As part of Bridgestone's normal
operating procedure, this work order was forwarded to service technician James Cole to
diagnose the problem and perform the necessary repairs.
{¶ 16} Cole, Bridgestone's lead service technician, completed the mechanical work on
the Expedition. Based on Cole's standard procedure, he first replaced the 30 amp fuse with
a proper 5 amp fuse. Then, he recreated the problem complained of by the customer. Cole
explained:
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And then I would blow the fuse as it did when they blew it, and
then find out why. * * * I would access on our Mitchell
OnDemand computer system, which contains vehicle
information pertaining to the particular vehicle, with wiring
diagrams to find out what's on that circuit for that fuse that's
blowing and proceed with pinpoint testing from that point." 6
{¶ 17} Cole manually performed the pinpoint testing. To complete this test, Cole, using
the wiring diagram, would "[f]ind out what is on the circuit for that fuse and backtrack it. And
since [the customer] said that it blows when they apply the brake pedal for the first and last
time, [I] would look on that circuit." After running these diagnostic tests on the Expedition,
Cole discovered that the Expedition's brake switch, which controls the brake lights, was
malfunctioning. Cole then replaced the brake switch. Cole retested the switch to determine if
the new switch resolved the issue. Cole again rechecked to see if the fuse continued to blow
when the brakes were applied. Because the fuse did not blow, Cole believed the repair was
complete. Romans and his wife subsequently picked up the Expedition and had no further
contact with Bridgestone.
C. Motions for Summary Judgment
{¶ 18} Following Romans' initiation of the lawsuit, extensive discovery was conducted
by the parties. At the close of discovery, Ford, Sensata, and Bridgestone all moved for
summary judgment. Sensata submitted various summary judgment materials in support of its
motion, including NHTSA's Closing Report, the deposition of Steven Beringhause, a
representative for Sensata who headed the pressure switches group from 1998 through
2000, and the depositions of several expert witnesses. Romans also submitted various
exhibits in opposition to summary judgment including the deposition of Mark Hoffman, a Ford
design and analysis engineer, and the depositions of two of his expert witnesses, Robert S.
6. The Mitchell OnDemand computer system is a vehicle information source that contains certain information for
multiple vehicles, such as the number of quarts of oil required for the vehicle or, as used in this case, a diagram
of the electrical wiring for the vehicle the technician is working on.
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Carbonara, Ph.D. and Gary A. Derian, P.E. Dr. Carbonara, an expert in materials science,
examined the SCDS in Romans' Expedition to determine the origin of the fire. Derian, a
mechanical engineer, evaluated the design of the SCDS, the circuit it was located on, and
the actions that led to the SCDS's failure.
{¶ 19} On March 18, 2013, the trial court entered judgment for Sensata on each claim,
finding the component parts doctrine applied as the SCDS was not defective and there was
no evidence that Sensata participated in the design or manufacture of the Expedition. The
trial court also granted summary judgment in favor of Bridgestone, finding that Bridgestone
had no duty to inspect, repair, or disable the SCDS when it serviced the Expedition. As to
Ford, the trial court denied Ford's partial motion for summary judgment, and the claims
against Ford remain pending. The trial court's entry included Civ. R. 54 language stating
there was "no just cause to delay appeal of the rulings in favor of Bridgestone and Sensata."
Accordingly, Romans timely appealed the judgments in favor of Sensata and Bridgestone,
raising the following two assignments of error:
{¶ 20} Assignment of Error No. 1:
{¶ 21} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE SENSATA.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BRIDGESTONE.
II. Analysis
A. Standard of Review
{¶ 24} This court's review of a trial court's ruling on a motion for summary judgment is
de novo. Natl. Mut. Ins. Co. v. Gano, 12th Dist. Madison No. CA2013-04-016, 2013-Ohio-
3408, ¶ 10. "De novo review means that this court uses the same standard that the trial
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court should have used, and we examine the evidence to determine whether as a matter of
law no genuine issues exist for trial." Id.
{¶ 25} Under Civ.R. 56, summary judgment is appropriate when "(1) there is no
genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law,
and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to
the nonmoving party, said party being entitled to have the evidence construed most strongly
in his favor." Simmons v. Yingling, 12th Dist. Warren No. CA2010-11-117, 2011-Ohio-4041, ¶
19, quoting Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370 (1998). The
moving party has the burden of demonstrating that there is no genuine issue of material fact.
McQueen v. Kings Island, 12th Dist. Warren No. CA2011-11-117, 2012-Ohio-3539, ¶ 6, citing
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). Once the party moving
for summary judgment satisfies its initial burden, the nonmoving party "may not rest on the
mere allegations of his pleading, but his response, by affidavit or as otherwise provided in
Civ.R. 56, must set forth specific facts showing the existence of a genuine triable issue."
Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996).
{¶ 26} With this standard in mind, we address Romans' specific arguments related to
Sensata and Bridgestone.
B. Claims against Sensata
{¶ 27} The trial court granted Sensata summary judgment on the basis that the
component parts doctrine applied and shielded Sensata from liability. On appeal, Romans
asserts that the two exceptions within the component parts doctrine apply, requiring the trial
7
court's decision to be reversed on his products liability claims.
7. The trial court also granted summary judgment to Sensata on Romans' negligence claims. On appeal,
Romans does not challenge this finding by the trial court. Accordingly, we only address Romans' arguments as
they relate to his statutory products liability claims.
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1. Component Parts Doctrine
{¶ 28} Under the component parts doctrine, a manufacturer of a component part is not
liable for a defect in a completed product unless: (1) the component itself is defective or
dangerous, or (2) the component manufacturer constructs or assembles the completed
product or substantially participated in the design of the final completed product. Wells v.
Komatsu Am. Internatl. Co., 1st Dist. Hamilton No. C-040089, 2005-Ohio-4415, ¶ 12;
Aldridge v. Reckart Equip. Co., 4th Dist. Gallia No. 04CA17, 2006-Ohio-4964, ¶ 69-71; see
also Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 271-272 (1993); Temple v. Wean
United Inc., 50 Ohio St.2d 317 (1977), paragraph four of the syllabus; Searls v. Doe, 29 Ohio
App.3d 309 (10th Dist.1986), syllabus. Although the Supreme Court of Ohio in Temple
initially adopted the component parts doctrine in the context of common law failure to warn
claims, it has also been applied to statutory product liability claims. See Webb v. S.R.S.
Liquidation Co., 6th Cir. No. 02-4009, 2004 WL 445162 (Mar. 8, 2004); Runyon v. Briggs &
Stratton Crop., 2d Dist. Montgomery Nos. 10987 and 11185, 1989 WL 49475, *3 (May 5,
1989); Aldridge at ¶ 69; Wells at ¶ 12.
{¶ 29} Romans contends that the component parts doctrine does not apply because
the SCDS itself was dangerous and defective and because Sensata knew that the specific
way in which Ford incorporated the SCDS was causing spontaneous fires.
a. The SCDS was not defective or dangerous.
{¶ 30} Under the product liability statutes, a product may be defective (1) in
manufacture or construction, (2) in design or formulation, (3) due to inadequate warning or
instruction, or (4) because the product does not conform to the manufacturer's
representations. See R.C. 2307.74 to 2307.77. Romans maintains that the SCDS was
defective in three respects: (1) defective in manufacture or construction under R.C. 2307.74;
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(2) defective in design or formulation under R.C. 2307.75; and (3) defective due to
inadequate warnings under R.C. 2307.76.
{¶ 31} After a review of the record, we find that Romans has failed to prove that the
SCDS itself was defective under any of the theories advanced in this case. In order to
overcome the component parts doctrine and impose liability on Sensata, Romans was
required to present evidence which indicated the SCDS was defective. This he did not do.
Rather, the evidence submitted to the trial court demonstrated that only after the SCDS was
integrated into the Expedition did it become defective and create a risk of fire. Both parties
and their respective experts relied on the findings contained in NHTSA's Closing Report. In
this report, NHTSA concluded that a fire could only ignite when the SCDS was integrated into
Expeditions in such a way that the following three vehicle characteristics were present: (1)
the SCDS was powered at all times, (2) the SCDS was oriented in a vertical up or an angled
down position, and (3) the brake system produced sufficient vacuum pressure to flip the
orientation of the Kapton seal. The record demonstrates that Sensata had no control or
knowledge of these three vehicle conditions as they related to the final product, the
Expedition. It was Ford, not Sensata that decided the orientation of the SCDS when placed
on the master cylinder. Further, it was Ford, not Sensata that decided to place the SCDS on
a "powered at all times" circuit. It was also Ford that did not consider (1) the vacuum
pressure created just after the driver released the brake pedal and (2) the vacuum pressure's
effect on the orientation of the Kapton seal when the Specification was created.
{¶ 32} Romans has failed to present any evidence that indicates or creates a genuine
issue of material fact regarding whether the SCDS could ignite on its own. Rather, it is clear
that the danger here arose only when the SCDS was integrated into Ford vehicles under the
three conditions set forth above. As discussed in further detail below, Romans' evidence
does not establish that the SCDS was defective in any way apart from its use in the
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Expedition designed by Ford.
i. Manufacture or Construction Defect
{¶ 33} Under R.C. 2307.74, a product is defective in manufacture or construction if,
"when it left the control of its manufacturer, it deviated in a material way from the design
specifications, formula, or performance standards of the manufacturer * * *."
{¶ 34} Romans contends that the SCDS contained a manufacturing defect because it
deviated from its own performance standard. Romans maintains that the SCDS was required
to prevent brake fluid from leaking into the switch's electrical side for the life of the vehicle,
that is 10 years or 150,000 miles of use. Romans further contends there is substantial
evidence Sensata materially deviated from this performance standard as, at the time of the
fire, his Expedition was 8 years old and had approximately 100,000 miles on it. Romans
asserts that Sensata was aware in 1992 that the SCDS was not meeting this performance
standard. He further asserts that Sensata knew as of 1999 that its product was defective
because it learned that the failure to prevent brake fluid in the electrical side of the switch
caused electrolytic corrosion which could result in a fire.
{¶ 35} As an initial matter, we note that Ford's Specification did not require the SCDS
to last 10 years or 150,000 miles. Rather, the Specification required the SCDS to withstand
"500,000 impulse cycles." The impulse cycle testing was performed on the switches to
demonstrate that the switch was capable of surviving the expected lifetime brake applications
of the vehicle. It is undisputed that the SCDS met Ford's Specification. Romans' experts,
Carbonara and Derian, both admitted that at the time the SCDS left Sensata's control, it met
each of the requirements in Ford's Specification. Romans cannot create additional
requirements to the SCDS's performance standards. Accordingly, the fact that the SCDS did
not last 10 years or 150,000 miles cannot be the basis for Romans' claim that the SCDS
failed to meet a performance standard.
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{¶ 36} Furthermore, the evidence in the record does not support a finding that the
SCDS in Ford's truck platform, including the Expedition, failed to meet any of the
performance standards of the switch. There was testimony that one of the performance
requirements for the SCDS was a "leakage current requirement. To meet that requirement,
you could not have fluid in that [electrical] cavity." However, the record does not indicate
Sensata had any knowledge, prior to the manufacture of Roman's Expedition, that the SCDS
in Ford's truck platforms, were leaking brake fluid through the Kapton seal and creating a
potential risk of fire. In 1992 and in 1999, Sensata was only aware of this problem in the
SCDS used in Ford's panther platform of vehicles. Specifically, Beringhause testified that in
1992 while Sensata was performing production validation testing for the panther platform, it
discovered that some Kapton seals started leaking brake fluid before reaching 500,000
cycles. However, Sensata discovered that a piece of its manufacturing equipment was
causing the leaks. Once the equipment was modified and new switches made, the switches
met the Specification and were no longer leaking. Moreover in 1999, although Sensata did
indeed learn that an electrolytic cell could form inside the electrical side of the SCDS and
create a short to ground causing a fire, it could only create this phenomenon when salt water,
not brake fluid was used. Again, this testing only related to the panther platform. Romans
failed to present evidence that Sensata was aware that a similar condition could occur in the
truck platform.
{¶ 37} Based on the foregoing, there is no evidence that the SCDS in Roman's 2001
Expedition contained a manufacture defect.
ii. Design Defect
{¶ 38} Romans argues the SCDS was defective in design because "[t]here are no
benefits of the SCDS's design that outweigh the known risk of fire." In his reply brief,
Romans asserts the SCDS was defective in design based on Sensata's decision to use a
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Kapton seal to prevent brake fluid from entering the "dry" side of the switch. Romans
contends that Sensata knew the Kapton seals leaked and again asserts that Sensata learned
from its testing in 1999 that the presence of conductive fluid in the electrical side of the SCDS
could ignite a fire. Romans further argues Sensata recognized this obvious risk of harm
because in 1999 it recommended Ford change the electrical systems of its vehicles so the
SCDS did not receive constant power.
{¶ 39} A product contains a design defect if, at the time it left the control of its
manufacturer, the foreseeable risks associated with the product's design exceed the benefits
of the design. R.C. 2307.75(A). R.C. 2307.75 provides a list of factors to determine the
foreseeable risks and benefits associated with the product's design. Some of the factors for
assessing the foreseeable risks associated with the design include the nature and magnitude
of the risks of harm associated with the design in light of the intended and reasonably
foreseeable uses of the product and the consumer's expectations. R.C. 2307.75(B)(1)-(5). In
evaluating the benefits of the design of the product, factors such as the intended utility of the
product, the safety advantages associated with the design, the technical and economic
feasibility of an alternative design and any foreseeable risks associated with the alternative
design should be considered. R.C. 2307.75(C)(1)-(3).
{¶ 40} Again, as mentioned above and contrary to Romans assertions, there is no
evidence that Sensata was aware in 1999 that its use of Kapton in the SCDS in the truck
platform posed a risk of fire. The record does indicate that in 1999 Sensata recognized that
a potential cause of fires in the panther platform could be because the switch was powered at
all times, and it therefore suggested the SCDS be placed on a circuit that was powered only
when in use. However, this recommendation related to the operation of the final product, the
Expedition, and not the design of the SCDS. Sensata had no control over the manner in
which the SCDS was being integrated into Ford vehicles. Moreover, although Sensata
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expressed concerns that there could be "problems" in the other platforms, Ford reassured
Sensata that it was reviewing the data and it had not seen "any issues on any other
platforms." Finally, the evidence demonstrates that the SCDS on its own, prior to being
integrated into the final product was operating as it was intended, including preventing brake
fluid from entering the electrical cavity of the switch.
{¶ 41} Romans also asserts that the SCDS was defective in design because there was
a technically feasible alternative design available which eliminated the fire hazard. Romans
points to Sensata's competitor, Hi-Stat and its design for a speed control deactivation switch
as evidence of a feasible alternative design. A plaintiff asserting a design defect must
present expert testimony that an alternative design was economically and technically feasible
where the existence of such an alternative design is beyond the knowledge possessed by an
average lay person. Aldridge v. Reckart Equip. Co., 4th Dist. Gallia No. 04CA17, 2006-Ohio-
4964, ¶ 57; See also Bloomer v. Van-Kow Enterprises, 8th Dist. Cuyahoga No. 096462, 1994
WL 173651, *3 (May 5, 1994).
{¶ 42} In the present case, Romans has merely pointed to a competing manufacturer
and claims that it used a design that did not create a risk of fire. Romans failed to present
evidence of the specific design used by Hi-Stat in 2000, the time the SCDS left Sensata's
control and was integrated into his 2001 Expedition. Romans suggests the Hi-Stat design
was a feasible alternative design because in 2002 Ford began using the Hi-Stat switch in its
vehicles. Romans points to a reference in Sensata's internal documents which indicates it
conducted a "competitive evaluation of this device" and suggests that Sensata was aware of
an alternative design in 1992. However, Romans has not presented evidence that Hi-Stat's
design in 1992 would not similarly pose a risk of fire when integrated into the Ford vehicles.
Romans suggests the Hi-Stat design does not pose a risk of fire because there have been no
complaints of fires in those vehicles with a Hi-Stat switch. However, these vehicles were
- 17 -
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produced two years after Romans' Expedition. There is no evidence in the record which
indicates the Hi-Stat design in 1992 is the same design Ford began using in 2002. In
addition, the document referenced by Romans indicates that at that time, Hi-Stat was also
using a Kapton insulator. It is Sensata's use of Kapton which Romans criticizes as a design
defect. Moreover, according to Sensata's testing, the Hi-Stat device developed a leak at
100,000 cycles, well below the 500,000 cycles requirement in Ford's Specification.
Accordingly, this document is insufficient to support Romans' claim that Hi-Stat's 1992 switch
design represented a feasible alternative design. This fact, without more, is insufficient to
show that this design was technically and economically feasible and able to function in the
2001 Expedition. Accordingly, Romans failed to meet his burden of proving an alternative
design was available.
{¶ 43} Based on the foregoing Romans has failed to present any evidence which
creates a genuine issue of material fact regarding whether the SCDS was defective in its
design.
iii. Defective due to inadequate warning
{¶ 44} Romans asserts there is a genuine issue of material fact as to whether the
SCDS was defective due to inadequate warnings because Sensata "knew the danger of fire
when brake fluid leaked through the Kapton seal and it knew the Kapton seals were cracking"
yet did not provide a warning concerning the SCDS fire hazard.
{¶ 45} Pursuant to R.C. 2307.76(A)(1), a product is defective if the
manufacturer knew or, in the exercise of reasonable care,
should have known about a risk that is associated with the
product * * * [and] failed to provide the warning or instruction that
a manufacturer exercising reasonable care would have provided
concerning that risk, in light of the likelihood that the product
would cause harm of the type for which the claimant seeks to
recover compensatory damages and in light of the likely
seriousness of that harm.
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This duty applies at the time of marketing and continues after the product is sold. R.C.
2307.76(A)(1) and (2).
{¶ 46} Although a manufacturer is subject to potential liability based on a failure to
warn under R.C. 2307.76, pursuant to the component parts doctrine, a component
manufacturer's duty to warn the end user of the final product does not extend "to the
speculative anticipation of how manufactured components * * * can become potentially
dangerous dependent upon their integration into a unit designed and assembled by another."
Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977), paragraph four of the syllabus.
However, "if a manufacturer has knowledge of a specific use of the component and a
possible danger from such use" there is a duty to warn. Phan v. Presrite Corp., 100 Ohio
App.3d 195, 200 (8th Dist.1994).
{¶ 47} Romans contends Sensata knew that Ford's specific use of its SCDS was
causing fires, yet did not warn the end user of this potential hazard. Beringhause testified
that in 1999 Ford informed Sensata of the high incidence of fires in the panther platform and
that it believed the fires were originating in the SCDS. In 1999, Sensata supported Ford in its
testing and investigation as to the origination of these fires. As part of its testing, Sensata
tested the parts beyond specification and confirmed that the SCDS was still meeting the
Specification provided by Ford. Sensata expressed its concerns that the Specification might
not be adequate and that other vehicles could experience the same or similar "problems"
observed in the panther platform. However, Ford reassured Sensata it was "reviewing the
data and watching the data and [it] was not seeing any issues on any other platforms."
Beringhause testified it was not until NHTSA opened its investigation in 2004 and 2005 that
Sensata became aware of fires in the truck platform. Accordingly, although there is some
evidence Sensata was aware that there may be a risk of fire related to the SCDS, Romans
has only presented evidence as it related to the specific use and integration of the SCDS in
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the panther platform and not the truck platform, the platform of Romans' Expedition. As of
1999, Sensata's knowledge regarding the integration of the SCDS into the truck platform and
any associated dangers was speculative at best. Accordingly, under these circumstances,
we find Sensata had no duty to warn of the potential risk of fire in the Expedition.
{¶ 48} As Romans failed to present evidence Sensata was aware of a fire risk of the
SCDS when integrated into the truck platform, more specifically Romans' 2001 Expedition,
there is no genuine issue of material fact regarding whether the SCDS was defective due to
inadequate warnings.
b. Sensata did not substantially participate in the design or assembly of the
Expedition.
{¶ 49} Romans maintains the component parts doctrine does not apply to absolve
Sensata of liability because "there was nothing speculative about Sensata's knowledge of the
specific way in which Ford incorporated the SCDS or its knowledge that the SCDS was
causing spontaneous fires."
{¶ 50} As mentioned above, under the component parts doctrine, a manufacturer of a
component part is not liable due to defects in the completed product unless the component
manufacturer assembled or constructed the final product or substantially participated in its
design. Wells v. Komatsu Am. Internatl. Co., 1st Dist. Hamilton No. C-040089, 2005-Ohio-
4415, ¶ 12. Where there is evidence the component manufacturer played a direct role in
designing the final product or installing and integrating its component into the final product,
then the manufacturer may be held strictly liable for a defect in the final product. See e.g.
Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 271 (1993) (reversing trial court's
grant of summary judgment to a component part manufacturer where the evidence indicated
the manufacturer played a direct role in designing the final product and installed its
component into the final product); see also Miles v. Kohli & Kaliher Assoc., Ltd., 917 F.2d
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235, 245 (6th Cir.1990). However, where a component manufacturer merely consults with
the assembler or manufacturer of the final product, this is insufficient to impose liability on the
component part manufacturer. See e.g. Searls. Martinez v. Yoho's Fast Food Equip., 10th
Dist. Franklin No. 02AP-79, 2002-Ohio-6756, ¶ 34; Acme Steak Co., Inc. v. Great Lakes
Mech. Co., 7th Dist. Mahoning Nos. 98-CA-146, 98-CA-243, 2000 WL 1506199, *3 (Sept. 29,
2000) (finding a component part manufacturer was not subject to liability for the completed
product where the manufacturer reviewed design drawings and specifications but was not
involved in the design or construction of the integrated system).
{¶ 51} The obligations of a component part manufacturer do not extend to the
"speculative anticipation of how manufactured components, not in and of themselves
dangerous or defective, can become potentially dangerous dependent upon the nature of
their integration into a unit designed and assembled by another." Acme Steak Co., Inc. at *3.
Ohio appellate courts have held that component part manufacturers are "not required to
procure plans of the entire system, review those plans, and independently determine whether
their respective component parts would function in a safe fashion." Searls v. Doe, 29 Ohio
App.3d 309, 311 (10th Dist.1986); Roberts v. Performance Site Management, Inc., 10th Dist.
Franklin No. 03AP0784, 2004-Ohio-2820, ¶ 21. In addition, the mere fact that the
component part manufacturer consults with the manufacturer of the final product is
insufficient to impose liability for a defect in the completed production. Acme Steak Co., Inc.
v. Great Lakes Mech. Co., 7th Dist. Mahoning Nos. 98-CA-146, 98-CA-243, 2000 WL
1506199, *3 (Sept. 29, 2000). "A component parts supplier cannot be expected to operate in
a factual vacuum when attempting to match its products to the needs of its customers."
Acme at *3.
{¶ 52} In support of his argument, Romans relies on Hoffman's and Beringhause's
testimony that Sensata and Ford worked in a "back and forth team effort" to develop the
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Specification for the SCDS. Romans asserts that Sensata became aware of the SCDS's
location in the vehicle and the operating environment as a result of this "active dialogue."
After a review of the record, we find that the record simply does not support Romans'
characterization of Sensata and Ford's relationship as it relates to the SCDS. Rather, we
agree with the trial court's conclusion that the "active dialogue" and the "back and forth"
communications arose as part of the normal process of development and cannot be
construed as anything more.
{¶ 53} It is undisputed that Ford went to Sensata to develop the SCDS based on its
expertise in manufacturing pressure switches. According to Beringhause, during the
development phase of the SCDS, there was "active dialogue" between Ford and Sensata
regarding the Specification for the SCDS:
We would discuss the specification with Ford. So Ford would
say, this is what we think we need, give us specifications.
We may come back and say, look, we don't think we can meet
this specification, but we think we can do this.
And then Ford would look at that and make decisions on
ultimately what the specification would be.
So there would be active dialogue, but ultimately it would be the
Ford specification and they would * * * be responsible for
defining what specification was required.
Hoffman confirmed this arrangement and described the development process as a "team
effort." Hoffman also explained that because Sensata was an expert in the field, Ford
basically left the internal workings of that part to its expertise. Ford's design for the switch
was more "concerned about its requirements as far as how [the switch] interfaces and
interacts with the vehicle." Accordingly, the discussions between Sensata and Ford
ultimately related to the Specification of the SCDS and its design and not the overall design
of the Expedition or how the SCDS would be integrated into the Expedition. Moreover, the
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Specification for the SCDS was set and controlled by Ford, not Sensata. The mere fact that
Sensata was involved in the design of the switch does not indicate that it had intimate
knowledge of the inner workings of the master cylinder or the Expedition. Rather, the
evidence submitted to the trial court demonstrated the exact opposite.
{¶ 54} Beringhause testified that Sensata only knew the basic parameters of how the
SCDS would be configured based on the Specification, but it "didn't understand the entire
system" or have the capability to understand the full system. In particular, Beringhause
testified Sensata was unaware of the amount of electrical current flowing through the switch,
the amount of pressure in the brake lines, or location where the SCDS would be installed and
in which vehicles. Sensata relied on Ford to define those aspects within the Specification as
they related to the vehicles' architecture and design.
{¶ 55} Moreover, the evidence established Sensata had no control over the integration
of the SCDS into the overall brake system of the Expedition. Even in 1999, when Sensata
suggested the switch be removed from a circuit that was powered at all times after its
investigation into the panther platform fires, Ford did not make any changes to the SCDS's
integration into the Expedition. Finally, it is undisputed that Sensata had no role in designing
8
or assembling the Expedition.
{¶ 56} Although Sensata materially participated in the design of the SCDS, this fact is
insufficient to establish that the exception applies. First, the process of development
necessarily requires "back and forth" communication as a component manufacturer, as
Sensata, cannot be "expected to operate in a factual vacuum." Acme at *3. Furthermore,
Ohio law requires the component manufacturer substantially participate in the design of the
8. In fact, the record demonstrates that Sensata would ship the SCDS to Tokico, the Ford supplier which
manufactured the master cylinder. Tokico would then incorporate the SCDS into the master cylinder and deliver
the completed master cylinder to Ford to be installed in the vehicles.
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final product, not the component part in order to be held liable. Searls at 311. Romans
cannot avoid the component parts doctrine by arguing that Sensata was intimately involved in
the design of the SCDS. See Searls at 311. The evidence demonstrates that Ford
maintained overall control over the Specification of the SCDS as well as the design and
manufacture of the Expedition. Sensata's concern and responsibility was to ensure that the
SCDS met the Specification provided by Ford. It is undisputed that the SCDS met the
requirements contained in Ford's Specification.
{¶ 57} Based on the foregoing, Romans has failed to present any evidence that
Sensata either substantially participated in the design of the Expedition or constructed or
assembled the Expedition.
{¶ 58} As Romans failed to present evidence establishing a genuine issue of material
fact regarding whether the SCDS itself was defective or that Sensata participated in the
design or integration of the SCDS into the Expedition, we find that Sensata was entitled to
judgment as a matter of law. Accordingly, the trial court did not err in granting summary
judgment to Sensata. Romans first assignment of error is overruled.
C. Claims against Bridgestone
{¶ 59} The trial court granted summary judgment in favor of Bridgestone on Romans'
negligence claims finding that Bridgestone had no duty to "go beyond the [work] order" and
warn of, repair, or disable the Expedition's SCDS when the vehicle was in Bridgestone's
shop. In his second assignment of error, Romans contends the trial court erred in finding
Bridgestone "owed no duty" to check whether the SCDS was malfunctioning or to inform
Romans about the danger of a spontaneous fire. Essentially, Romans asserts the trial court
erred in defining the scope of Bridgestone's undertaking in servicing the Expedition, and
therefore its duty in this case. Romans further argues Bridgestone had a duty to warn, repair,
or disable the SCDS because it was aware of the symptoms of a malfunctioning SCDS and
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the resulting fire hazard.
1. Scope of Bridgestone's Duty.
{¶ 60} Romans contends he requested Bridgestone inspect and make the necessary
repairs that were appropriate to fix the symptoms he reported, which included a fuse blowing
and being unable to shift the vehicle into gear. Romans asserts he did not request
Bridgestone repair and replace only a specific part of the Expedition. Based on the
requested service, Romans asserts Bridgestone had a duty to use reasonable care to
diagnose and repair the problem that was causing the vehicle to sporadically blow a fuse,
preventing it from shifting into gear. Bridgestone, however, contends that it had no duty to
inspect, repair, or disable the SCDS because the SCDS, if defective, was a latent defect and
servicing it was outside the scope of Bridgestone's agreed undertaking in servicing the
vehicle.
{¶ 61} In order to establish a claim for negligence, a plaintiff must show that a
defendant breached a duty owed to plaintiff, and that duty breached proximately resulted in
injury to plaintiff. Risk v. Woeste Eastside Motors, Inc., 119 Ohio App.3d 761, 764 (12th
Dist.1997). The existence of a duty is a question of law that this court reviews de novo. Id.
at 764, citing Mussivand v. David, 45 Ohio St.3d 314, 318 (1989).
{¶ 62} As to the duty of an automobile repair shop, the Ohio Supreme Court has held
that an automobile repair shop is liable for damages proximately resulting from the negligent
or unskillful manner in which it makes repairs or performs services. State Farm Fire & Cas.
Co. v. Chrysler Corp., 37 Ohio St.3d 1, 8 (1988); Landon v. Lee Motors, Inc., 161 Ohio St. 82
(1954), paragraph seven of the syllabus. Essentially, a repair shop owes the customer a duty
to use ordinary skill and judgment in performing the services and repairs requested by the
customer. See Landon at 101. Therefore, a repair shop's duty in a given case generally
depends upon the services and repairs requested by the customer. See e.g., Gerber v. Jim's
- 25 -
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Goodyear, 12th Dist. Butler No. CA97-05-107, 1998 WL 142404 (Mar. 30, 1998) (finding
repair shop did not breach a duty to replace the timing belt in the customer's car where
customer only requested the shop to replace the water pump); see also Risk at 764. "[A]
repairman is not liable for failing to discover a latent defect, unless it is shown that he
undertook to discover such defect and negligently failed to do so." Risk at 764. A latent
defect is a defect that is not obvious by visual inspection. May v. Northern Propane Gas Co.,
1st Dist. Hamilton No. C-790007, 1980 WL 352757, *2 (Apr. 16, 1980); see also Goens v.
Torco Companies, 12th Dist. Butler No. CA89-06-092, 1990 WL 4259, *2 (Jan. 22, 1990).
{¶ 63} There is no evidence in the record that indicates Bridgestone had a duty to
inspect, repair, or disable the SCDS. The undisputed evidence in the record reveals Romans
reported to Hoskin the following problems with the Expedition: "I put a bigger fuse in" and "it
keeps blowing the fuse. When you turn the ignition on, touch the brake, and try to put it into
reverse, * * * it just blows the fuse." Similarly, the work order states: "Non-system services-
when apply brake 1st time or last time, fuse blows for anti-theft, window etc. . . . Has a 30
A[mp] fuse in to keep from blowing * * *." The record does not indicate Romans reported any
issues with the cruise control, reported observing brake fluid leakage, or informed Hoskins
that the Expedition was subject to a recall due to the SCDS. There is nothing in the
conversation between Hoskin and Romans or in the work order which indicated that the
inspection or repair of the SCDS was part of the service requested by Romans. Rather, the
evidence demonstrates that Romans only requested Bridgestone fix the symptoms he
reported. Accordingly, Bridgestone had a duty to repair the Expedition in such a manner that
the fuse would stop blowing when the brake pedal was depressed and the vehicle could be
shifted out of park.
{¶ 64} Based on the undisputed evidence in this case, we find that Bridgestone
discharged its duty. After Cole replaced the brake switch, the fuse stopped blowing. In fact,
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Romans even testified: "I didn't think there was any problem with their service work," and he
had no further contact with Bridgestone.
{¶ 65} Moreover, nothing in Cole's inspection of the vehicle triggered the need for Cole
9
to continue his inspection beyond the malfunctioning brake switch to the SCDS. As Cole
testified, installing a new brake switch resolved the problem with the fuse blowing. Cole
reiterated on multiple occasions that after determining the problem was resolved, he would
not go beyond that circuit to look for additional problems, unless, in the course of his
diagnostic testing, he discovered more problems on the circuit. Cole testified that by using
"voltmeters or ohmmeters, and test lights" he identified the Generic Electric Module (GEM),
which is basically a computer within the vehicle, as the circuit where the problem originated.
After identifying the circuit, and isolating each individual part, he located the problem as the
brake switch. After replacing the brake switch, Cole pressed the brake pedal and the fuse
did not blow. Cole further testified that he did not find any additional problems within this
circuit, and therefore he did not continue his investigation of the circuit once he isolated the
brake switch as the problem. Even if Cole did discover an additional problem, in this case, a
defective SCDS, the evidence in the record reveals that any repair to the SCDS would have
been a separate service that would have required authorization by the customer.
{¶ 66} Cole reiterated that as a matter of practice, if in performing his diagnostic
testing, he discovered additional problems on the circuit he was working on, he would relay
these to the salesperson. The salesperson would then discuss the available repair options
with the customer. Ultimately, the customer would have to authorize any additional repairs.
Moreover, the evidence indicates that Bridgestone did not have the authority to complete any
of the repairs related to the recall of the SCDS. Only Ford dealerships were authorized to
9. Although Cole does not remember specifically servicing Romans' Expedition, he based his testimony
regarding the repair of this vehicle, on his typical procedure in servicing vehicles and his notes on the work order.
- 27 -
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complete the necessary repairs on vehicles with a defective SCDS.
{¶ 67} Finally, the record indicates that the SCDS, if defective, was a latent defect.
The SCDS was located in the engine compartment. The malfunctioning brake switch,
however, was located in the passenger compartment. Both compartments are enclosed and
even if they were not enclosed, electrical circuits, upon inspection, have no "visual identifiers"
to indicate a defect. Moreover, Cole testified that there was no machinery or diagnostic tool
available to him that would allow him to check the "effectiveness of the [entire] electrical
system." Based on the diagnostic tools available to Cole and the location of the SCDS, we
find that the SCDS falls squarely within the definition of a latent defect. See May at *2.
There is nothing in the record which suggests Romans requested Bridgestone undertake an
extensive examination of the vehicle's entire electrical system, its cruise control, or braking
system. Moreover, the record does not show that Bridgestone attempted to discover such a
defect and failed to do so.
{¶ 68} Based on the foregoing, the record contains no evidence that Bridgestone had
a duty to inspect, repair, or disable the SCDS as part of the service requested and performed
on Romans' Expedition.
2. Duty to Warn of a Defective SCDS
{¶ 69} Within his second assignment of error, Romans also contends Bridgestone had
a duty to repair, disable, or warn him of the dangerous condition of the SCDS based on
Bridgestone's alleged knowledge of the symptoms of a defective SCDS and the resulting fire
hazard. Romans asserts that Bridgestone was aware of the symptoms of a defective SCDS
and had "specific knowledge that the SCDS in Mr. Romans' Expedition was defective and
posed a substantial risk of fire" yet failed to inform Romans of this risk of fire.
{¶ 70} To support his argument that Bridgestone was aware of the symptoms of a
defective SCDS, Romans relies on a memorandum sent to Bridgestone employees which
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detailed symptoms of a defective SCDS, including: "the speed control may become
inoperable, the vehicle may not shift out of park, * * * or a fuse in the system may open."
However, this memorandum was sent to all Bridgestone employees on June 3, 2008, three
months after Bridgestone serviced Romans' Expedition in March 2008. Romans also argues
that Bridgestone was aware of the specific risk of fire due to a lawsuit Bridgestone filed
against Ford in December 2008 based on a fire at a Texas Bridgestone repair shop. Yet,
there was no indication that Hoskin or Cole was aware of this lawsuit. Accordingly, neither
the memorandum nor Bridgestone's 2008 lawsuit is sufficient to impute knowledge to Cole or
Hoskin of the symptoms of a defective SCDS or the risk of fire at the time Bridgestone
serviced Romans' Expedition.
{¶ 71} Finally, Romans argues that Hoskin was aware Ford had issued a recall
regarding the SCDS. Hoskin testified that prior to March 1, 2008, he recalled seeing a few
news stories regarding certain Ford vehicles "burning up" and Ford issuing a recall regarding
SCDSs. Based on this testimony, Romans asserts that Bridgestone had a duty to inform
Romans about the "'issue' of spontaneous fires when he reported precisely the same
electrical symptoms associated with SCDS failure." First, as mentioned above, at the time
Hoskin spoke with Romans, there is no evidence that Hoskin was aware of the symptoms of
a defective SCDS. The record instead reveals that Hoskin was only generally aware that
Ford had issued a recall due to defective SCDSs causing fires. Even with this knowledge,
there is nothing in the record which would suggest and that Hoskin had a duty to inform
Romans of the recall. Romans failed to present evidence demonstrating that a repair shop
owes a legal duty to advise customers that their vehicle is subject to a recall. Rather, both
Cole and Hoskin testified that they would inform customers of recalls only if they
"remembered" that a vehicle was subject to a recall. This was done as a "courtesy" to the
customer. According to both Hoskin and Cole, Bridgestone did not have any type of system
- 29 -
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with "automatic identifiers of recalls or bulletins" which would warn a technician or a
salesperson that the customer's vehicle was subject to a recall. Imposing a legal duty upon a
repairman to advise customers of recalls under these types of circumstances would be
burdensome and unreasonable.10 See Risk at 764.
{¶ 72} Based on the foregoing, Bridgestone had no duty to repair, disable, or warn
Romans of the dangerous condition of the SCDS.
{¶ 73} As Romans failed to establish that Bridgestone owed him a duty to warn of,
repair, or disable the Expedition's SCDS, we find the trial court properly granted summary
judgment in Bridgestone's favor.
{¶ 74} Romans' second assignment of error is overruled.
III. Conclusion
{¶ 75} Having found no merit to Romans' assignments of error, we conclude that the
trial court properly granted summary judgment to Sensata and Bridgestone.
{¶ 76} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.
10. As pointed out by Bridgestone, the Federal government, through NHTSA, has developed an extensive
system with stringent guidelines and rules to inform consumers of recalls and potential defects in their vehicles.
- 30 -
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} |
Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-19-00522-CR
Marcell Lawrence CALVIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR3378
Honorable Ray Olivarri, Judge Presiding
BEFORE JUSTICE CHAPA, JUSTICE RIOS, AND JUSTICE RODRIGUEZ
In accordance with this court’s opinion of this date, the Motion to Dismiss Appeal is
GRANTED, and this appeal is DISMISSED.
SIGNED February 26, 2020.
_____________________________
Irene Rios, Justice
| {
"pile_set_name": "FreeLaw"
} |
393 S.W.2d 864 (1965)
Lloyd E. LINDSEY et al., Appellants,
v.
CITY OF CAMDEN, Arkansas, Appellee.
No. 5-3612.
Supreme Court of Arkansas.
September 27, 1965.
Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellants.
Gaughan & Laney, Camden, for appellee.
*865 McFADDIN, Justice.
This is a zoning case. Appellants sought the rezoning of four pieces of property in the City of Camden from Residential (R-2) property to Business (B-2) property. After the Camden Planning Commission unanimously refused the request, and after the City Board of Directors likewise unanimously refused the request, the appellants filed suit in the Chancery Court. They alleged, inter alia:
"The action of the city in refusing to rezone the property from residential to business or commercial zone was arbitrary, without legal foundation, and is depriving plaintiffs of their property without due process of law in violation of their constitutional rights under both the state and federal constitutions. Plaintiffs allege that the said property is in fact commercial property and that it should have been rezoned as such."
There was an extended and patient hearing in the Chancery Court. More than a score of witnesses testified. The record before us contains 560 pages with several scores of exhibits, consisting of maps, diagrams, and photographs. The Chancery Court found that the petition was without equity and dismissed it. From that decree appellants bring this appeal, urging only one point:
"The action of the Chancellor in restricting the growth of an established business district is arbitrary, and his findings are contrary to the preponderance of the evidence."
To abstract the testimony, even briefly, would serve no useful purpose. Witnesses for the appellants supported their claim; and witnesses for the City testified equally strong in opposing the claim for rezoning. If we would believe the appellants the Planning Commission and the City Board of Directors of Camden are opposed to all development of the business district of Camden. If we would believe the appellee then the appellants are real estate speculators who purchased their holdings for the purpose of reaping an enormous profit from rezoning, and this seems to be the third attempt to get such rezoning.
Which side is right? The Chancellorand he was a splendid and discerning Judgeheard the witnesses and knew the property. He found that the petition for rezoning "was without equity." In City of Little Rock v. Garner, 235 Ark. 362, 360 S.W.2d 116, we pointed out: (a) that in the chancery court the burden was on the petitioners to prove by the preponderance of the evidence that the action of the Cityin refusing rezoninghad been arbitrary; and (b) that when the case reaches this Court on appeal the question before us is whether the finding of the Chancery Court is contrary to the preponderance of the evidence. Testing the present case by our previous holdings, as reflected by the Garner case, we are unable to say that the Chancery decree is against the preponderance of the evidence; so the decree is affirmed.
ROBINSON, J., dissents.
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155 F.3d 674
UNITED STATES of Americav.Jazz HAYWOOD,Jazz Haywood a/k/a Torrie Graham, Appellant.
No. 97-1652.
United States Court of Appeals,Third Circuit.
Argued June 9, 1998.Decided Sept. 9, 1998.
Stephen J. Britt (Argued), Assistant U.S. Attorney, Philadelphia, PA, for Appellee.
Mark D. Mungello (Argued), Blackwood, NJ, for Appellant.
Before: STAPLETON, COWEN and RENDELL, Circuit Judges.OPINION OF THE COURT
STAPLETON, Circuit Judge:
1
Jazz Haywood was convicted of conspiring to distribute heroin and distributing heroin within 1000 yards of a school. On direct appeal, Haywood seeks a new trial on the grounds that he was denied effective assistance of counsel. Haywood also argues that the government failed its burden of proof concerning the amount of drugs attributable to him and that the court erred by failing to order a hearing sua sponte on his competence to stand trial. We will affirm with respect to the ineffective assistance and sufficiency of the evidence claims but remand based on the court's failure to order a competency hearing.
I.
2
In 1992, the federal Drug Enforcement Agency initiated an investigation of an alleged heroin distribution ring, the "Nissan Heroin Organization" ("NHO"), and began surveillance of the corner of Birch and Hancock Streets in Philadelphia. On December 17, 1992, a DEA Agent purchased 19 packets of heroin from appellant Haywood at that location. Two years later, a federal grand jury indicted 24 people in a 51-count indictment. The indictment alleged that Haywood was a "shift worker" in a structured heroin distribution organization and charged him with conspiracy to distribute heroin in violation of 21 U.S.C. § 846, distribution of heroin in violation of 21 U.S.C. § 841(a)(1), and distribution of heroin within 1000 feet of an elementary school in violation of 21 U.S.C. § 860.
3
Haywood was arrested and trial was scheduled for April 1996. On April 1, Haywood exhibited psychiatric problems while awaiting trial at the Federal Correction Center in Fairton, New Jersey. The Fairton staff psychologist examined Haywood and concluded that he had "a psychotic condition that has become worse since October 1995 and is in need of attention in an acute forensic psychiatric setting." App. at 17. Consequently, the United States Marshal's Service moved Haywood to the Philadelphia Detention Center. Haywood's trial counsel, James Garrett, informed the United States Attorney's Office that Haywood was on "suicide watch" at the Detention Center and that, in his opinion, Haywood was unable to participate in his own defense.
4
In response to these developments, the government asked the district court to order a competency examination for Haywood, and the court complied. On April 15 1996, the examining physician, Dr. Edward B. Guy, diagnosed Haywood as having schizophrenia and determined that he was not then competent to assist in his defense. Dr. Guy reported the following observations:
5
During my evaluation, Mr. Haywood was very withdrawn, had great difficulty concentrating, and was a poor historian.
6
He complained that he was hearing accusatory voices who were telling him to harm himself.
7
He was very distracted during the interview and seemed to be responding to internal stimuli at times.
8
He does not express any organized delusional system, but he is suspicious and fearful that he is going to be harmed.
9
Mr. Haywood was not able to give abstract answers to proverbs and he also did poorly on similarity questions.
10
He was so withdrawn that he could not participate in much of the mental status examination and it was difficult for me to maintain his focus on the questions I was asking. He does understand that he is in prison. He understands that he is charged by federal authorities on a drug charge, but he did not seem to know the details. At the same time, he understands the possible consequences of these charges to him, and he was able to answer questions about the functions of the various participants in a criminal trial situation.
11
At the same time, his general functioning is compromised by his mental illness and his distractibility. I feel that his attorney will have difficulty in working with him at this time in the preparation of a defense.
12
App. at 24-25. Dr. Guy also opined, however, that Haywood could "regain his competence with intensive treatment." App. at 25.
13
Dr. Guy served as Program Director of the Hahnemann University Correctional Mental Health Services Program. On his recommendation, Haywood was transferred to the Program's Inpatient Psychiatric Unit in the Philadelphia Prison System for treatment and observation. The court ordered a continuance of the trial.
14
On May 20, again on the government's motion, the court ordered another competency examination. In a letter dated that day and addressed to the trial judge, Dr. Guy reported that Haywood was still suffering from schizophrenia, that he was being treated daily with substantial doses of antipsychotic medication, and that he purported to lack an understanding of his legal circumstances. Dr. Guy also reported, without further explanation, that Haywood's attorney could expect "considerable frustration in trying to defend this young man." App. at 28. Nevertheless, Dr. Guy's professional opinion at that time was that Haywood "had a clearer understanding of his legal circumstances than he was willing to admit" (App. at 27) and that he was "competent to proceed" (App. at 28). The report concluded with the recommendation that Haywood's then current "treatment continue into the foreseeable future in order that he maintain his present level of functioning." Id.
15
The trial commenced nine weeks later without any further inquiry into Haywood's mental state. During trial, the court asked Haywood's counsel whether the defense intended to offer evidence. The following colloquy ensued:
16
MR. GARRETT: ... My client has told me that he is in no shape to testify.
17
THE COURT: Very well. So, he's not going to testify?
18
MR. GARRETT: No, he's not.
19
THE COURT: Very well. All right.
20
App. at 30-31; N.T. 7/24/96 at 71-72.
21
The jury returned a guilty verdict on the conspiracy and "schoolyard" counts on July 25, 1996. Within a week, Haywood's counsel filed a motion for a new trial. In that motion, counsel represented that "Mr. Graham's psychological profile on the days of trial was such that he could not effectively participate in the defense of his case." Appellant's Br. at 8; Def.'s Mot. for Judgment of Acquittal or for a New Trial at p 5. Despite counsel's representations to the court, at no time did he move for a competency hearing; nor did the court ever order such a hearing on its own motion.
22
In preparing the Presentence Investigation (PSI) Report, the probation officer estimated the total amount of drugs sold during the 25-month conspiracy and allocated the sales to the individual defendants according to a mathematical formula.1 In Haywood's case, the officer determined that Haywood was a member of the conspiracy for about 5-6 months, and that his shift distributed about 980 grams of heroin during that time period. Accordingly, the PSI Report recommended that Haywood be sentenced to 210-262 months imprisonment. Paragraph 123 of the PSI Report stated that there were no factors warranting a downward departure.
23
Haywood's counsel moved for a downward departure for significantly reduced mental capacity pursuant to USSG § 5K2.13.2 In attempting to determine whether Haywood indeed suffered from a significantly reduced mental capacity at the time of the offense, the court considered a psychiatric report made contemporaneously with the date of the offense. On October 30, 1992, Dr. Richard Saul observed that Haywood's social adjustment was within acceptable limits and that he was oriented as to time, person, and place. Nonetheless, Dr. Saul diagnosed Haywood as suffering from a "Schizoid Personality Disorder" and described his prognosis as guarded. Suppl. App. at 27-28.
24
The district court found that Haywood had established by a preponderance of the evidence that he suffered from a significantly reduced mental capacity at the time of his offense. However, it also found that Haywood had not shown that such reduced capacity contributed to the commission of the offense. Consequently, the district court reserved a ruling on the motion "pending a hearing and in anticipation of Dr. Guy's, Dr. Saul's or another expert's testimony regarding the likelihood that Schizoid Personality Disorder contributed to defendant's offense." App. at 34.
25
Haywood's counsel did not present the court with expert reports on the reduced capacity departure issue. He did present lay witnesses, Haywood's mother and his aunt, at the sentencing hearing who testified that Haywood had been afflicted with mental and emotional problems for much of his life. In its ensuing order, the district court made the following finding: "Based on Dr. Guy's two reports and my own observations, I conclude the defendant was suffering from a significantly reduced mental capacity at the time of trial." App. at 33. Nonetheless, the court also concluded that there was an insufficient showing of a nexus between Haywood's mental affliction and his offense, and denied the downward departure. The court sentenced Haywood to 210 months of imprisonment.
26
Haywood appeals his sentence, asserting that his counsel was ineffective because he failed to: (1) argue that Haywood was incompetent to stand trial; (2) present expert testimony that Haywood suffered from a significantly reduced mental capacity that contributed to his commission of the offense; and (3) object to statements in the PSI Report regarding the amount of drugs attributable to Haywood. Relatedly, Haywood argues that the government failed to prove by a preponderance of the evidence the amount of drugs attributable to Haywood. Finally, Haywood assigns as error the trial court's failure to conduct a competency hearing pursuant to 18 U.S.C. § 4241.
II.
27
Claims of ineffective assistance of counsel generally are not entertained on direct appeal. See United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.1989), overruled on other grounds by United States v. Price, 76 F.3d 526 (3d Cir.1996). We have repeatedly held that "the proper avenue for pursuing such claims is through a collateral proceeding in which the factual basis for the claim may be developed." Id. "There is, however, a narrow exception to the rule that defendants cannot attack the efficacy of their counsel on direct appeal. Where the record is sufficient to allow a determination of ineffective assistance of counsel, an evidentiary hearing to develop the facts is not needed." United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.1991); see also Theodoropoulos, 866 F.2d at 598.
28
Nonetheless, Haywood's ineffective assistance claims do not fall within this exception. At oral argument, Haywood's counsel conceded that there is not enough information in the record upon which we could base a judgment of trial counsel's performance. We find this concession well-advised and thus affirm Haywood's conviction regarding his ineffective assistance claims. This disposition leaves Haywood free to pursue these claims in a habeas corpus proceeding under 28 U.S.C. § 2255.3
III.
29
At oral argument, Haywood's counsel advanced the claim that the government failed to prove by a preponderance of the evidence that 980 grams of heroin were attributable to Haywood. Although ordinarily we do not entertain arguments raised for the first time at oral argument, Haywood's belief that "there was no evidence in existence from which the Government could have proven by a preponderance of the evidence that Mr. Haywood was involved in the Nissan Heroin Organization (NHO) for a period of 5 to 6 months" was the explicit premise of one of his claims for ineffective assistance of counsel. Appellant's Br. at 17. Therefore, we will consider this argument.
30
Pursuant to the Federal Rules of Criminal Procedure, a district court, at a sentencing hearing, may accept the presentence report as its findings of fact. Fed. R.Crim. Proc. 32(b)(6)(D). At the same time, the Rules afford a defendant numerous opportunities to object to the report's findings and recommendations. E.g., Fed. R.Crim. Proc. 32(b)(6)(B). At the sentencing hearing, the district court must rule on any unresolved objections to the presentence report. The court must either make a finding on the issue or determine that no finding is necessary because it will not rely upon the controverted matter in sentencing the defendant. Fed. R.Crim. Proc. 32(c)(1).
31
The record reveals that at the sentencing hearing, the court asked Haywood and his counsel whether they had "any objections or comments on the presentence report." Sentencing Tr. at 14. Haywood's counsel responded that they had both reviewed it and that "it appeared to be correct." Id. Accordingly, the court adopted the factual findings and guideline application in the PSI Report.
32
As we have previously held, "Information used as a basis for sentencing under the Guidelines must have 'sufficient indicia of reliability to support its probable accuracy.' " United States v. Miele, 989 F.2d 659, 663 (3d Cir.1993). We find that the information contained in the PSI Report contained the requisite indicia of reliability, and the court was thus justified in relying upon it as well as counsel's representations as to its accuracy. Regarding the amount of drugs attributable to Haywood, the PSI Report stated:
33
Jazz Haywood ... was a seller of heroin during the night shift and was a member of the NHO for a period of 5 to 6 months. Haywood is being held responsible for 980 grams of the heroin distributed during the night shift.
34
PSI Rep. at p 60. Additionally, paragraph 94 of the PSI Report indicated that police had observed Haywood conducting a cocaine transaction at 2930 Hancock Street on May 14, 1992, which was seven months before his sale of heroin to the undercover agent. In connection with that incident, Haywood was convicted of knowingly possessing a controlled substance and possessing a controlled substance with intent to distribute. Thus, there was evidence in the PSI Report to support its finding that Haywood was a member of the NHO for at least 5 to 6 months. In contrast, there was nothing in the PSI Report that undermined this finding. Nor did Haywood or his trial counsel indicate to the court that there was any reason to doubt the information contained in the PSI Report. In short, we find that sufficient indicia of reliability supported the PSI Report's conclusion that Haywood had been a member of the NHO for 5 to 6 months and was, therefore, responsible for 980 grams of heroin; hence, the trial court's adoption of the PSI Report's finding was not error.
IV.
35
Title 18 U.S.C. § 4241 provides in pertinent part:
36
(a) Motion to determine competency of defendant.--At any time ... prior to the sentencing of the defendant, the ... court shall grant [a motion for a competency hearing], or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
37
(b) Psychiatric or psychological examination and report.--Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted....
38
* * *
39
(d) Determination and disposition.--If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility--....
40
(e) Discharge.--When the director of the facility in which a defendant is hospitalized pursuant to subsection (d) determines that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment.... The court shall hold a hearing ... to determine the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense, the court ... shall set the date for trial.
41
Section 4241 provides a mandatory process. The steps in that process are intended to culminate in a record-based judicial determination of competence in every case in which there is reason to doubt the defendant's competence to stand trial. The Due Process Clause of the Constitution requires no less. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); United States v. DiGilio, 538 F.2d 972, 987 (3d Cir.1976).
42
Under subsection (a), a district court has a duty to order a competency hearing sua sponte "at any time prior to the sentencing of the defendant ... if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent." Under subsection (b), the court may order "a psychiatric ... examination" to provide evidence for the hearing. Under subsection (d), if a preponderance of the evidence at the hearing indicates that he or she is incompetent, the defendant will be hospitalized for treatment in a suitable facility. Finally, under subsection (e), if the director of the facility subsequently certifies that the defendant is then competent, the court has a duty to hold a hearing sua sponte to determine if "the defendant has recovered to such an extent that he is able to understand the nature and consequence of the proceedings against him and to assist properly in his defense."
43
Here, the district court expressly invoked the authority of section 4241(b) and ordered a psychiatric examination into Haywood's competency to stand trial. Dr. Guy's April 15th report expressed the opinion, supported by clinical observation and history, that Haywood was suffering from schizophrenia and was incompetent to stand trial. The government does not, and could not, contend that this document failed to provide the "reasonable cause" that makes a hearing mandatory under subsection (a). While the district court did not conduct a hearing, on the basis of Dr. Guy's report and without objection from the government, it did authorize the transfer of Haywood's custody to Hahnemann's Inpatient Psychiatric Unit in the Philadelphia Prison System. Thirty-five days later, the director of that facility supplied an updated report representing that Haywood had become competent to stand trial. Thereafter, on at least two occasions prior to sentencing, the court received additional information suggesting that Haywood might not be competent to proceed. No hearing was ever held, however, to provide an evidentiary basis for a judicial finding of competence and no such finding was ever made.
44
We conclude that under these circumstances section 4241 required the district court to order a hearing on Haywood's competency and thereafter to make a finding of competence before proceeding to trial. Under that statute, receipt of Dr. Guy's April 15th report imposed a duty on the district court to hold a competency hearing. Assuming that it was relieved of the duty to do so immediately by its belief in the accuracy of the report and the government's tacit consent, the court was not free to dispense entirely with the requisite hearing and finding based solely on an expert's opinion that Haywood's mental condition had improved. Subsection (e) of section 4241 expressly assumes the existence of an expert opinion that the defendant is competent and nevertheless mandates in no uncertain terms that a hearing be held and a finding made.
45
We are mindful of the fact that the psychiatrist giving the opinion upon which the court relied in proceeding to trial was the same professional who provided "reasonable cause" to believe Haywood might be incompetent. A trial court might conceivably be justified in proceeding to trial without a hearing when error is confessed and the opinion giving "reasonable cause" is withdrawn by the psychiatrist for credibly explained reasons. This is not such a case, however. Dr. Guy did not withdraw his April 15th opinion; rather his opinion was that Haywood's condition had been improved with treatment. Indeed, we believe the circumstances of the May 20th opinion and events at trial rendered the need for a judicial determination particularly compelling in this case. The reported change in condition was attributed to a scant thirty-five days of treatment and the opinion that Haywood was competent was predicated on a credibility judgment--Dr. Guy's disbelief of Haywood's insistence that he lacked a clear understanding of the nature and consequences of the proceedings against him. Further, the trial then commenced on July 23, 1996, after the passage of an additional nine weeks, during which Haywood's mental condition could well have changed. Given these facts and the additional information received by the court in the subsequent proceedings, the integrity of the court's judgment was seriously impaired by the absence of an independent judicial inquiry into Haywood's competency as close to the time of trial as possible.
46
Having determined that the court erred in not conducting a competency hearing, we turn to the question of the appropriate remedy. We have previously addressed this issue in United States v. Renfroe, 825 F.2d 763 (3d Cir.1987), where we also concluded that there was reasonable cause to question the defendant's competency at trial and sentencing, and that the district court erred in not conducting a competency hearing. We there questioned whether it would be appropriate to remand for a hearing to determine the defendant's competency at the time of his trial rather than for a new trial. We gave only conditional approval to that approach:
47
Given the inherent difficulties in retrospective competency determinations, such nunc pro tunc evaluations are not favored.
48
However, such a determination may be conducted if a meaningful hearing on the issue of the competency of the defendant at the prior proceedings is still possible. The district court is in the best position to determine whether it can make a retrospective determination of [the defendant's] competency during his trial and sentencing. Here, because of the sparse testimony before the district court, we envision the taking of additional testimony to inform the district court's determination in that regard.
49
If the court concludes that a retrospective determination is still possible, a competency hearing will be held, and if the conclusion is that [the defendant] was competent, no new trial will be required. If the district court determines that a meaningful hearing is no longer possible, [the defendant's] conviction must be overturned and a new trial may be granted when he is competent to stand trial.
50
825 F.2d at 767-68 (citations omitted).
51
We will remand so that the court can make the determinations called for in Renfroe.
CONCLUSION
52
We decline to adjudicate Haywood's ineffective assistance of counsel claims. We will affirm the district court's determination of the quantity of drugs to be attributed to Haywood. We conclude, however, that the district court erred in failing to conduct a hearing and make a finding regarding Haywood's competence to stand trial. We will remand with instructions that the district court evaluate whether a retrospective determination of Haywood's competency to stand trial would be reasonably reliable. If the court concludes that a reliable retrospective determination is still possible, a competency hearing should be held. If the court determines that such a determination is no longer possible, Haywood's conviction must be overturned. In that event, a new trial may be held when he is found competent.
1
Paragraph 52 of the PSI Report explained:
Based on the evidence (buys, surveillance, video and audio recordings, proffers), it is estimated that the Nissan Heroin Organization sold approximately 700 bundles of heroin weekly. The following weekly sales percentages have been adduced through extrapolation, as to each individual shift: ... night shift, 28% or 196 bundles....
Each bundle contained 10 to 12 packets; each packet contained approximately 0.025 grams of heroin. PSI Rep. at 2 n. 1.
2
USSG § 5K2.13 provides:
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.
3
Although Haywood has asked us to remand the case so that the district court might create a "fuller record" on the ineffective assistance claims, see Appellant's Br. at 8,16,18, our case law establishes that this would be an inappropriate disposition. See Theodoropoulos, 866 F.2d at 598
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-21-2005
Rahimov v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1799
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 04-1799
____________
UMED RAHIMOV
Petitioner
v.
ALBERTO R. GONZALES, Attorney General
of the United States of America *
Respondent
____________
On Petition for Review from the
United States Department of Justice
Board of Immigration Appeals
BIA No. A78 817 484
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 20, 2005
BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and
ALDISERT, Circuit Judges
(Filed: October 21, 2005)
____________
OPINION OF THE COURT
____________
*
Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney
General of the United States, pursuant to Fed. R. App. P. 43(c)(2).
VAN ANTWERPEN, Circuit Judge.
Because we write only for the parties, we need not restate the facts. At issue in
this case is whether the Immigration Judge (“IJ”) and the Board of Immigration Appeals
(“BIA”) erred in denying Petitioner Rahimov’s Motion to Reopen his removal
proceedings after the IJ entered a removal order in absentia against Rahimov. This Court
has jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen
a removal proceeding for abuse of discretion. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d
Cir. 2004). “Discretionary decisions of the BIA will not be disturbed unless they are
found to be ‘arbitrary, irrational or contrary to law.’” Tipu v. INS, 20 F.3d 580, 582 (3d
Cir. 1994) (quoting So Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1979)). Our
review is further confined by the nature of the underlying order. Our review of an order
of removal entered in absentia is “confined to (i) the validity of the notice provided to the
alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not
the alien is removable.” 8 U.S.C. § 1229a(b)(5)(D).
A.
An IJ must enter an order of removal in absentia against an alien if the alien does
not attend a removal proceeding and it is “establishe[d] by clear, unequivocal, and
convincing evidence” that the alien is removable and was provided with written notice of
the proceeding. 8 U.S.C. § 1229a(b)(5)(A). Rahimov does not contest his removability,
but instead argues that he did not receive notice of his removal proceeding.
2
Pursuant to 8 U.S.C. § 1229(a), an alien facing removal proceedings is entitled to
adequate notice of the proceeding, including specific information about the nature of the
proceeding, the legal authority under which the proceeding is conducted, and several
other statutorily delineated elements. 8 U.S.C. § 1229(a)(1)(A)-(G). Notice may be given
in person, or if this is impractical, through service by the mail to the alien or his counsel.
8 U.S.C. § 1229(a)(1)&(2)(A).
On November 6, 2001, Rahimov was served with a notice of removal containing
all of the statutorily required elements except the date and time of the removal
proceeding. Although this notice incorrectly listed an address for Rahimov in Cincinnati,
Ohio, the address is unimportant because the notice was personally served upon Rahimov
as permitted by 8 U.S.C. § 1229(a)(1). On January 2, 2002, Rahimov filed with the INS a
Form I-830, “Notice to EOIR: Alien Address,” on which he reported his address as 9
Stella Drive in Churchville, Pennsylvania. App. at 155. Rahimov does not dispute that
he resided at this address and only this address during the time period at issue in this
proceeding. On March 1, 2002, the Immigration Court notified Rahimov that his Master
Calendar hearing had been rescheduled for August 6, 2002, at 9:00 a.m. Id. at 154. This
notice, which also described the consequences for not attending the proceeding, was
mailed to Rahimov at his Churchville, Pennsylvania address, id., as permitted by 8 U.S.C.
§ 1229(a)(2)(A). Although Rahimov claims he never received this notice, he offered no
evidence to dispute the above facts, and we can therefore only conclude that adequate
3
notice was sent to Rahimov. Thus, the underlying order for removal was proper.
B.
Having established that the underlying order was properly entered, we must next
determine whether the IJ should have ordered the removal proceedings reopened. An
order of removal granted in absentia may only be rescinded upon a motion to reopen if the
alien demonstrates (1) that he was in Federal or State custody and his failure to appear
was through no fault of his own, (2) he did not receive adequate notice of the proceeding,
or (3) his failure to appear was because of exceptional circumstances. 8 U.S.C. §
1229a(b)(5)(C). Rahimov does not argue that he was in custody at the time of his
hearing, therefore, he is entitled to have his proceeding reopened only if he demonstrates
that he did not receive notice of the hearing or that exceptional circumstances prevented
him from attending the hearing. Id.
On a motion to reopen, the burden is on the alien to demonstrate that he or she did
not receive notice of the proceeding. 8 U.S.C. § 1229a(b)(5)(C)(ii) (“[A]n order may be
rescinded only . . . (ii) upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with paragraph (1) or (2) of section
239(a) [8 USCS § 1229(a)] . . . .”). Furthermore, the motion must be “supported by
affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). Here, Rahimov’s
motion to reopen was accompanied only by an unsworn, three-sentence statement by
Rahimov in which he claims that he never received the notice of hearing. We conclude
4
that the BIA did not abuse its discretion when it determined that Rahimov failed to meet
his burden of demonstrating that he did not receive notice of the proceedings.
Likewise, Rahimov failed to demonstrate that exceptional circumstances prevented
him from attending the removal proceedings. “The term ‘exceptional circumstances’
refers to exceptional circumstances (such as serious illness of the alien or serious illness
or death of the spouse, child, or parent of the alien, but not including less compelling
circumstances) beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). Rahimov’s only
claim is that he never received notice of the hearing. Not only does “lack of notice”
appear to be less compelling than those circumstances otherwise deemed “exceptional,”
but its status as an independent ground upon which an alien may base a motion to reopen
suggests that it cannot be considered an “exceptional circumstance” as well. As Rahimov
presented no other evidence of exceptional circumstances preventing his attendance at the
removal proceeding, we conclude that the BIA properly denied his appeal.
Nor are we persuaded that Rahimov was denied due process. As the Ninth Circuit
explained, “[d]ue process, in deportation proceedings, ‘includes the right to a full and fair
hearing.’” Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996) (quoting Getachew v. INS, 25
F.3d 841, 845 (9th Cir. 1994)). “Petitioners cannot complain of an order entered in
absentia, however, if they ‘voluntarily choose[] not to attend a deportation hearing which
may affect [them] adversely.’” Id. (quoting United States v. Dekermenjian, 508 F.2d 812,
814 (9th Cir. 1974)) (alterations in the original). Here, the record indicates that the
5
government notified Rahimov of his hearing and Rahimov did not attend; the IJ did not
violate due process by proceeding in his absence.
In conclusion, we note that although Rahimov dedicated more than the majority of
his brief to the merits of his claims for relief from removal, a meritorious claim is not
grounds for a reversal. For this reason, and those stated above, the petition is denied.
6
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JERONIMO LINARES, Appellant.
No. 1 CA-CR 15-0614
FILED 9-13-2016
Appeal from the Superior Court in Maricopa County
No. CR2015-103476-001
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
STATE v. LINARES
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Lawrence F. Winthrop joined.
H O W E, Judge:
¶1 Jeronimo Linares appeals his conviction and imposition of
probation for child abuse. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One January day in 2015, Linares dropped his two-year old
daughter off at daycare. Two daycare workers noticed that the child had
numerous bruises on her legs, torso, arms, and neck that she did not have
the day before. When asked where she got the “owies,” the child
responded, “Daddy.” The daycare then reported the bruises to law
enforcement.
¶3 An investigator from the Office of Child Welfare
Investigations and an investigator from the Department of Child Safety
went to the daycare to speak with the daycare workers and see the child.
Based on his observations, one investigator called Mesa police to take over
the investigation at the daycare. When the officers arrived, the investigator
took the child for a forensic examination at a nearby wellness center. A
forensic nurse examiner counted about 25 bruises on the child and
concluded that their locations were consistent with non-accidental injuries.
¶4 After the forensic examination, the investigator returned to
the daycare to wait with the police officers for Linares to arrive. When
Linares arrived, the investigators and two officers recorded an interview
with him in one of the daycare’s offices. During the interview, Linares was
not handcuffed and was seated nearest the door, across from the officers.
Before the officers or investigators asked any questions, Linares asked if
they were there to talk about the bruises on the child’s body and stated that
he did not know how they got there. He said that he had taken his daughter
to a clinic, which told him that the bruises were the result of an allergic
reaction. Because Linares is a native Spanish speaker, one of the
investigators translated the conversation.
2
STATE v. LINARES
Decision of the Court
¶5 Midway through the interview, one officer warned Linares to
stop “playing games” and threatened to charge him with lying to a police
officer. One investigator added that he would make sure that the State
would remove the child from Linares. Linares did not change his story
despite the threats, however, and continued to deny knowing what caused
the bruises. Ultimately, the officers decided to arrest Linares. Because the
arrest concluded the interview, the investigator turned off the recording
device.
¶6 But once in handcuffs, Linares started crying and said that he
had grabbed his daughter the night before when she tried to run out of the
bathroom as he was trying to bathe her. He told the officers and
investigators, “I didn’t mean to go as far as I did.” After Linares made this
statement, the investigator turned the recording device back on and read
Linares his Miranda1 rights, after which Linares agreed to answer questions.
One officer then repeated what Linares had told them and Linares
responded by apologizing for his actions and saying that it would never
happen again. The State charged Linares with one count of child abuse.
¶7 Before his jury trial, Linares moved to preclude the forensic
nurse examiner from testifying that the injuries were “non-accidental” or
“inflicted injuries.” Linares also moved to preclude her from offering any
diagnoses of the causes of the child’s injuries, arguing that, as a nurse, she
was only qualified to make observations, not diagnoses. At the evidentiary
hearing, Linares further argued that Arizona Rule of Evidence 704(b)
—which prohibits expert witnesses in a criminal case from opining whether
the defendant had a “mental state or condition that constitutes an element
of the crime charged or of a defense”—prohibited the forensic nurse’s
testimony because “inflicted” is a term used in the statute defining child
abuse. The forensic nurse testified that she had training in examining
children and expertise in children’s injuries that would help the jurors
better understand the extent and nature of the injuries and the significance
of their locations.
¶8 The trial court denied Linares’ motion to preclude. The court
concluded that Arizona Rule of Evidence 702—relating to expert
testimony—permitted the forensic nurse’s opinion that the injuries were
consistent with non-accidental injuries. The court also noted that the
testimony was relevant and not otherwise inadmissible under Rule 704(b).
Later during the forensic nurse’s trial testimony, she identified and
described the locations of the child’s injuries for the jury and explained that,
based on scientific research and studies she had read, she concluded that
1 Miranda v. Arizona, 384 U.S. 436 (1966).
3
STATE v. LINARES
Decision of the Court
the injuries may have been the result of “inflicted trauma.” Upon
cross-examination, Linares had the forensic nurse clarify that, although she
believed the injuries to be non-accidental, she could not determine whether
the injuries were inflicted “with intent to cause injury.”
¶9 As part of its case-in-chief, the State notified the trial court and
Linares that it intended to introduce and play the portions of the recorded
interview during which Linares admitted that he grabbed the child. The
State argued, however, that because the officer that conducted the interview
was not testifying at trial, his statements on the recording were hearsay and
should be omitted. Linares objected to the State’s use of only portions of the
interview, arguing that such use violated the rule of completeness under
Arizona Rule of Evidence 106 because the jury would not hear the officer’s
and investigator’s threatening comments. Linares and the State then
worked together to redact the recording, and the trial court ultimately
admitted it into evidence upon the parties’ stipulation.
¶10 After deliberating, the jury convicted Linares of child abuse
and found that the offense was a domestic violence offense. The court
suspended sentencing and imposed three years’ probation. Linares timely
appealed.
DISCUSSION
1. Voluntariness
¶11 Linares first argues that the trial court fundamentally erred
by failing to sua sponte conduct a voluntariness hearing regarding Linares’
recorded confession, which could have led to the confession’s preclusion.
Because Linares did not raise this objection at trial, we review his claim for
fundamental error only. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22, 115
P.3d 601, 608 (2005). To prevail under a fundamental error review, a
defendant must prove that the trial court erred, the error was fundamental,
and the error prejudiced him. Id. at 567 ¶ 20, 115 P.3d at 607. Error is
fundamental when it goes to the foundation of the defendant’s case, takes
from him a right essential to his defense, and is error of such magnitude
that he could not possibly have received a fair trial. Id. at ¶ 19, 115 P.3d at
607. But because the trial court did not have an obligation to conduct a
voluntariness hearing on its own accord, the court did not err, much less
fundamentally, by failing to determine voluntariness before admitting the
confession.
¶12 Due process affords a defendant a constitutional right at some
stage in the criminal proceedings to object to the use of a confession and to
4
STATE v. LINARES
Decision of the Court
have a fair hearing and reliable determination on the issue of voluntariness.
Jackson v. Denno, 378 U.S. 368, 376–77 (1964). However, “absent some
contemporaneous challenge to the use of the confession,” the United States
Constitution does not require the trial court to conduct a voluntariness
hearing. Wainwright v. Sykes, 433 U.S. 72, 86 (1977). Although A.R.S.
§ 13–3988 requires the trial court to “determine any issue as to
voluntariness” before admitting a statement into evidence, the burden of
raising any issue of voluntariness rests in the first instance with the
defendant, State v. Alvarado, 121 Ariz. 485, 487, 591 P.2d 973, 975 (1979). The
trial court is not required to determine the voluntariness of evidence sua
sponte. State v. Smith, 114 Ariz. 415, 419, 561 P.2d 739, 743 (1977).
¶13 Here, Linares did not request a voluntariness hearing, object
to the confession’s admission, or otherwise raise issue of involuntariness.
In fact, although Linares moved to preclude the State from introducing
several portions of the State’s evidence before trial, he did not move to
suppress his recorded statement. Additionally, not only did Linares fail to
object to the admission of the recorded interview during trial, but he argued
that the rule of completeness required the State to play additional parts of
the recording for the jury. Linares worked with the State to redact the
recording and the trial court admitted it upon the State’s and Linares’
stipulation.
¶14 Nor did the evidence otherwise present a question regarding
the voluntariness of Linares’ confession to require the court to conduct a
hearing, as Linares argues. Nothing in the record suggests that the officers
or investigator coerced Linares to confess or that Linares’ will was
overborne. See State v. Boggs, 218 Ariz. 325, 335–36 ¶ 44, 185 P.3d 111, 121–
22 (2008) (“To find a confession involuntary, we must find both coercive
police behavior and a causal relation between the coercive behavior and the
defendant’s overborne will.”). Despite the officer’s demeanor and the
investigator’s threat to remove the child from him, Linares maintained his
innocence and repeatedly insisted that he did not know where the bruises
on his daughter’s body came from. During this time, Linares was not in
handcuffs and was seated closest to the daycare office’s door. Only after the
interview had concluded and police had arrested him did Linares’ own
demeanor change and—crying—he confessed that he grabbed his daughter
the night before. After Linares said that he did not mean to go as far as he
did, the investigator turned the recorder back on and read Linares his
Miranda rights, which he waived. The officer then repeated Linares’
statement to Linares. Linares acknowledged the statement and apologized.
Thus, because Linares failed to raise an issue regarding his confession’s
voluntariness and the evidence did not otherwise present a question
5
STATE v. LINARES
Decision of the Court
regarding voluntariness, the trial court did not err—much less
fundamentally err—by not conducting a hearing sua sponte.
2. Expert Testimony
¶15 Linares next argues that the forensic nurse’s testimony
identifying and describing the injuries was inadmissible under Arizona
Rule of Evidence 702(a) because the bruises’ locations were within the
common knowledge of jurors and did not help the jurors understand the
evidence. Generally, we review a court’s admissibility ruling for abuse of
discretion. State v. Dann, 220 Ariz. 351, 368 ¶ 89, 207 P.3d 604, 621 (2009).
But because Linares did not object to the forensic nurse’s testimony on this
ground during trial, we review his argument for fundamental error only.
Henderson, 210 Ariz. at 567 ¶ 20, 115 P.3d at 607. Linares fails to meet his
burden on fundamental error review.
¶16 Rule 702(a) provides that an expert may testify if “the expert’s
scientific, technical, or otherwise specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.” Here, the
forensic nurse testified that she had training in examining children and an
expertise in children’s injuries. This expertise would help the jurors better
understand the extent and nature of the child’s injuries and the significance
of their locations. The forensic nurse explained that, based on research and
studies she had read, the locations and degrees of healing of the bruises on
the child’s body led her to believe that the injuries had been inflicted. Thus,
because the forensic nurse had expertise in children’s injuries that was
outside the jurors’ common knowledge and her testimony helped the jurors
understand the evidence, the court committed no error—much less
fundamental error—in allowing this testimony.
¶17 Linares also argues that he was deprived of a fair trial because
the forensic nurse’s opinion that the injuries were consistent with non-
accidental injuries was an opinion “as to an ultimate issue in the trial.” But
Linares offers no argument and cites no authority for this proposition and
has accordingly waived this claim of error. See Ariz. R. Crim. P.
31.13(c)(1)(vi) (requiring that an appellant’s brief contain arguments with
the proper standard of review on appeal and “citations to relevant
authority”); see also State v. Moody, 208 Ariz. 424, 452 ¶ 101 n.9, 94 P.3d 1119,
1147 n.9 (2004) (providing that failure to present “significant arguments,
supported by authority” in opening brief constitutes a waiver of the issue).
¶18 Waiver notwithstanding, Linares’ argument lacks support in
both the law and the facts. Arizona Rule of Evidence 704 provides that “[a]n
opinion is not objectionable just because it embraces an ultimate issue” and
6
STATE v. LINARES
Decision of the Court
prohibits only an opinion that addresses “whether the defendant did or did
not have a mental state or condition that constitutes an element of the crime
charged or of a defense.” Ariz. R. Evid. 704(a), (b). As relevant here, a
person commits child abuse if he intentionally or knowingly causes the
child to suffer physical injury or abuse, under circumstances other than
those likely to produce death or serious physical injury. See A.R.S.
§ 13–3623(B). The forensic nurse’s opinion that the injuries were consistent
with non-accidental injuries was based on her expertise. Her opinion did
not address whether Linares had any particular mental state at the time
necessary for commission of child abuse, much less whether he had an
“intentional” or “knowing” mental state when he committed the abuse.
Linares even elicited clarification from the forensic nurse that she could not
determine whether the injuries were inflicted “with intent to cause injury.”
Thus, Linares’ argument fails.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
7
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Case: 12-20752 Document: 00512472887 Page: 1 Date Filed: 12/17/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 12-20752
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 17, 2013
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
VICTOR PASTRANA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-101-1
Before DAVIS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Victor Pastrana has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Pastrana has not filed a response. We have reviewed counsel’s brief and the
relevant portions of the record reflected therein. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 12-20752 Document: 00512472887 Page: 2 Date Filed: 12/17/2013
No. 12-20752
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
2
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Order entered July 19, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01641-CV
GARY M. KORNMAN, Appellant
V.
DENNIS S. FAULKNER, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-08489
ORDER
Before the Court is appellant’s July 18, 2013 opposed emergency motion to extend
briefing deadline for appellant’s reply brief. Appellant’s motion is GRANTED. Appellant’s
reply brief shall be filed on or before July 25, 2013. No further extensions will be granted absent
extraordinary circumstances.
/s/ ELIZABETH LANG-MIERS
JUSTICE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 17, 2015
Plaintiff-Appellee,
v No. 322653
Saginaw Circuit Court
JAQAVICE DEONNELL GRACE, LC No. 14-039775-FC
Defendant-Appellant.
Before: METER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
A jury convicted defendant of unlawful imprisonment, MCL 750.349b, felonious assault,
MCL 750.82, and interference with electronic communications, MCL 750.540. He was
acquitted of kidnapping, MCL 750.349, first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(e) (aggravating circumstance of armed with a weapon), and an additional charge of
felonious assault, MCL 750.82. Defendant was sentenced to 86 months to 15 years’ for unlawful
imprisonment, 2 to 4 years’ for felonious assault, and 1 to 2 years’ for interference with
electronic communications. Defendant appeals as of right. For the reasons set forth in this
opinion, we affirm in part, vacate in part and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
The charges against defendant arose from an incident occurring in February 2014
involving two female high school students. Defendant was also a high school student at the time.
Defendant and one of the alleged victims met on a social website. She, along with a friend,
picked defendant up in Saginaw, Michigan and attended a house party. After leaving the party,
the two victims, one driving and the other riding in the front passenger seat, began driving
defendant to an address that he provided. On the way, defendant allegedly started fondling the
victim in the passenger seat. The victims testified at trial that defendant brandished a gun, took
the driver’s cellphone, and forced the driver to pull over and the passenger to enter the backseat,
where he sexually assaulted her. As previously stated, defendant was acquitted of the crimes
allegedly committed against the passenger, but was convicted of the crimes committed against
the driver.
-1-
At sentencing, defense counsel argued that because defendant possessed a starter pistol
when convicted under MCL 750.82(1) and MCL 750.349(1)(a), a directed verdict should have
been entered with respect to the felonious assault and unlawful imprisonment charges. The trial
court stated that this issue should have been brought before the jury’s deliberations, and
nevertheless, a starter pistol can be used to strike someone, cause hearing damage, or physical
harm due to the pistol spark. The trial court reasoned that the pistol, not having bullets, will not
kill someone, but there are many different ways that it could be used as a weapon, and after
hearing the proper instructions, the jury decided that the pistol was used in that manner.
Defendant was sentenced as stated above. This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
A. FELONIOUS ASSAULT
Defendant argues that the evidence was insufficient to convict him of felonious assault
because the indictment was based on his use of a starter pistol. “[T]he Due Process Clause of the
Fourteenth Amendment protects a defendant in a criminal case against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” People v Patterson, 428 Mich 502, 525; 410 NW2d 733(1987) (internal quotation
marks and citation omitted). In viewing “the evidence in a light most favorable to the
prosecutor,” People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006), this Court “‘must consider
not whether there was any evidence to support the conviction but whether there was sufficient
evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt.’” People v
Wolfe, 440 Mich 508, 513-514; 489 NW2d 748 (1992), amended on other grounds 441 Mich
1201 (1992), quoting People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979).
On appeal, defendant first argues that his conviction for felonious assault should be
vacated based on our Supreme Court’s decision in People v Stevens, 409 Mich 564; 297 NW2d
120 (1980). Defendant was convicted of violating MCL 750.82(1) which states, as it did at the
time of our Supreme Court’s decision in Stevens:
(1) Except as provided in subsection (2), a person who assaults another
person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other
dangerous weapon without intending to commit murder or to inflict great bodily
harm less than murder is guilty of a felony punishable by imprisonment for not
more than 4 years or a fine of not more than $ 2,000.00, or both.
Under the felonious assault statute, MCL 750.82(1), there are weapons that “carry their
dangerous character because so designed and are, when employed, per se, deadly, while other
instrumentalities are not dangerous weapons unless turned to such purpose.” People v Goolsby,
284 Mich 375, 378; 279 NW 867 (1938). See People v Vaines, 310 Mich 500, 505-506; 17
NW2d 729 (1945). “The test as to the latter is whether the instrumentality was used as a weapon
and, when so employed in an assault, dangerous.” Goolsby, 284 Mich at 378; see also People v
Hale, 96 Mich App 343; 292 NW2d 204 (1980), vacated on other grounds, 409 Mich 937 (1980)
(holding that a shoe could supply the dangerous weapon element of felonious assault). Whether
such instrumentality was employed in an assault as a “dangerous weapon” is generally a question
-2-
of fact for the jury. See People v McCadney, 111 Mich App 545, 550; 315 NW2d 175 (1981).
Weapons that are “per se, deadly” include “a gun, revolver, pistol, knife, iron bar, club, brass
knuckles.” MCL 750.82(1).
In this case, a starter pistol is at issue, and several statutes define “pistol” by referencing
“firearm.” See Stevens, 409 Mich at 567 n 3. The term “firearm” includes “‘any weapon from
which a dangerous projectile may be propelled by using explosives, gas or air as a means of
propulsion . . . .’” Id. at 567, quoting MCL 8.3t. See also MCL 750.222(d). Stevens addressed
whether a starter pistol that had a “barrel bored out, containing eight live .22 caliber shells, but
with the firing pin filed down to the point that it would not be possible to fire the pistol” fell
within the scope of the felonious assault statute. Stevens, 409 Mich at 566.
In Stevens, our Supreme Court held, in relevant part:
In this case, there is nothing to suggest a basis for concluding that the
starter pistol was a “dangerous weapon” other than the theory that it was a “gun,
revolver, [or] pistol.” While the statutes do not define the terms “gun” or
“revolver”, we can see no other plausible interpretation of that series of words
than that it applies to assaults with firearms. The term “firearm” is defined by
law:
“The word ‘firearm’, except as otherwise specifically defined in the
statutes, shall be construed to include any weapon from which a dangerous
projectile may be propelled by using explosives, gas or air as a means of
propulsion.” MCL 8.3t [].
The starter pistol in this case was not capable of propelling a dangerous
projectile, and thus its use in an assault did not violate MCL 750.82 []. [Stevens,
409 Mich at 567 (footnotes omitted).]
Contrary to defendant’s arguments on appeal, we do not read Stevens to stand for the
proposition that there exists a bright-line rule that a starter pistol can never constitute a
“dangerous weapon” pursuant to MCL 750.82(1). Nor do we concur with the state’s argument
that Stevens is limited only to cases where the parties stipulate in advance of trial that the weapon
is incapable of propelling a projectile. As evidenced by the afore-mentioned passage in Stevens,
when rendering its analysis as to whether the starter pistol constituted a dangerous weapon
within the meaning of MCL 750.82(1), our Supreme Court gave no consideration to the
stipulation of fact relied on by the state to distinguish Stevens from this case. In contrast to the
arguments set forth by the parties on this issue, we hold that Stevens stands for the proposition
that the inquiry into whether the weapon that forms the basis for a conviction under the MCL
750.82(1) is simple: in the absence of proof that the weapon was used in any manner other than
-3-
to point at the intended victim, Stevens requires proof beyond a reasonable doubt that the weapon
at issue is “capable of propelling a dangerous projectile.”1
We begin our examination of the record to determine if defendant used the starter pistol
in a manner which, even if it were incapable of projecting a dangerous projectile, could
transform it into a dangerous weapon. The state argues that the trial court was correct in its
assertions at sentencing that the starter pistol could be construed as an “other dangerous weapon”
for purposes of the felonious assault statute because it could be used to strike a person, cause
hearing damage, or physical harm from a pistol spark. However, the state has failed to produce
any evidence from the record to support its assertion that defendant used the starter pistol in the
manner put forth by the trial court. Additionally, our review of the record reveals no evidence
that defendant used the starter pistol to strike someone or to cause hearing damage or physical
damage from a pistol spark. Rather, the record reveals that defendant’s alleged use of the starter
pistol indicates intent to use it as a firearm, not as a blunt metal object. Our Supreme Court in
Stevens similarly noted that there was “no claim that the defendant attempted or appeared to use
the starter pistol as a striking weapon.” Id. at 567 n 2.2 Consequently, there was insufficient
evidence presented at trial to conclude that defendant used a dangerous weapon as an
instrumentality adapted to inflict serious injury to effectuate an assault against the driver of the
vehicle.
Having found no evidence to substantiate the trial court’s findings that defendant used the
starter pistol in any manner such that it would constitute an “other dangerous weapon,” we next
turn to the issue of whether there was legally sufficient evidence introduced at trial to show that
1
Relative to the inquiry of whether the weapon is capable of propelling a projectile, the parties
have erroneously conflated this inquiry with an inquiry into the operability of the weapon as well
as inquiries into whether the weapon was loaded or unloaded. To make clear, Stevens confined
the inquiry under MCL 750.82(1) to whether the weapon is capable of firing a projectile.
Stevens makes no mention of whether the weapon must be operable, nor does it mention any
inquiry into whether the weapon was loaded. Thus, this attempt, particularly by the state, to
expand the inquiry set forth in Stevens inevitably leads to erroneous conclusions of law as to the
inquiry to be conducted when ascertaining what constitutes a dangerous weapon under MCL
750.82(1). Consequently, we need not address the erroneous arguments advanced by the state’s
reliance on this Court’s opinion in People v Prather, 121 Mich App 324; 328 NW2d 556 (1982).
2
Furthermore, the trial court erred when, in response to a question from the jury as to what
constituted “assaulted” it responded, “And once again, it’s a dangerous weapon or an article
fashioned or used in a manner to lead somebody to reasonably believe it to be a dangerous
weapon.” Stevens expressly refutes such a definition in its holding that: “[t]he victim’s
reasonable apprehension can establish the element of an assault in a felonious assault prosecution
under MCL 750.82 . . . However, those cases provide no authority for the conclusion that the
victim’s apprehension of an object can transform it into a ‘dangerous weapon.’” Stevens, 409
Mich at 567. Hence, there is no legal authority for the trial court’s instruction that the victim’s
apprehension of an object can transform it into a dangerous weapon.
-4-
the starter pistol was capable of propelling a dangerous projectile, thereby rendering it a
“dangerous weapon” for purposes of MCL 750.82(1).
The warrant and felony information in this case provided that the charge of felonious
assault was predicated on defendant’s use of a starter pistol against the victim. The starter pistol
was admitted into evidence as Exhibit 3, and one of the victims confirmed that Exhibit 3 was the
instrument that defendant used on the night of the alleged assault. At trial, defendant’s
grandmother testified that the pistol was her father’s, which she kept in a lockbox under her bed.
When defendant’s grandmother was asked whether she thought that it was a “real gun with
bullets,” she answered, “no.” Michigan State Police Officer Clint Korpalski testified that while
.22 caliber ammunition was found in the grandmother’s home, in response to a question from
defense counsel, Officer Korpalski seemingly agreed with counsel’s assertion that there was
something about the construction of the starter pistol which would prevent it from firing a
projectile. Though Officer Korpalski later testified that he could not say whether .22 caliber
ammunition could fit inside of the weapon, he never stated that the weapon was capable of
propelling a dangerous projectile. Additionally, Officer Donald Pisha testified that the weapon
was a “starter pistol,” and he did not believe the starter pistol was capable of shooting
ammunition.
Thus, our review of the evidence, viewed in the light most favorable to the state, leads us
to conclude that the state failed to meet its burden of proof that the starter pistol was used as a
dangerous weapon for purposes of MCL 750.82(1). Because the state failed to meet its burden
of proof that the weapon used constituted a dangerous weapon as stated in MCL 750.82(1), and
pursuant to our Supreme Court’s decision in Stevens, 409 Mich at 567, we vacate defendant’s
conviction of felonious assault.3
B. UNLAWFUL IMPRISONMENT
Defendant next argues that there was insufficient evidence to sustain his conviction for
unlawful imprisonment. The unlawful imprisonment statute, MCL 750.349b, states in relevant
part as follows:
(1) A person commits the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:
(a) The person is restrained by means of a weapon or dangerous
instrument.
(b) The restrained person was secretly confined.
3
Though not binding, we note this Court reached a similar result in People v Geibig,
unpublished opinion of the Court of Appeals, issued June 14, 1996 (Docket No. 184993).
-5-
(c) The person was restrained to facilitate the commission of another
felony or to facilitate flight after commission of another felony. [Emphasis
added.]
The jury was instructed as to MCL 750.349b(1) subsections (a) and (c). Because defendant was
acquitted of the prerequisite—i.e. CSC-I— necessary to sustain a conviction under subsection
(c), we direct our analysis solely to subsection (a).
On this issue, defendant’s arguments on appeal are limited to asking this Court to
conclude that the starter pistol was “not a weapon or dangerous weapon.” Defendant makes no
citations to this argument, rather leaving it to this Court to develop the argument for him.
Typically, the failure of counsel to provide authority for their position renders the argument
abandoned. See People v Schumacher, 276 Mich App 165, 178; 740 NW2d 534 (2008) (stating
that “[a]n appellant may not merely announce his position and leave it to this Court to discover
and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority”) (citation and quotation marks omitted).
However, in order to fully adjudicate the issues before this Court, we will address
whether the starter pistol constitutes a “weapon or dangerous instrument” within the confines of
MCL 750.349b(1)(a).
MCL 750.349b(1)(a) does not define what comprises a “weapon or dangerous
instrument.” Hence, by the Legislature not expressly defining the language “weapon or
dangerous instrument,” those words are open to more than one reasonable meaning. People v
Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008). Therefore, we construe the statute to give
effect to the Legislature’s intent. People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012).
“Unless they are otherwise defined in the statute or are terms of art or technical words, we assign
the words of a statute their plain and ordinary meanings.” People v Haynes, 281 Mich App 27,
29; 760 NW2d 283 (2008).
Recently, in People v Ackah-Essien, ___ Mich App ___; ___NW2d ___ (2015), this
Court defined the term “weapon” for purposes of MCL 750.226 as “something (as a club, knife
or gun) used to injure, defeat or destroy.” Slip op. at 6 (quotation marks omitted). It is therefore
important to note that contrary to the implications set forth in defendant’s brief on appeal, the
analysis employed pursuant to Stevens, 409 Mich at 564 is inapplicable to MCL 750.349b.
Unlike MCL 750.82, MCL 750.349b does not require proof that defendant used a “dangerous
weapon.” Rather, conviction under MCL 750.349b(1)(a) merely requires proof beyond a
reasonable doubt that the defendant used “a weapon” to restrain another person.
The distinction between a “dangerous weapon” and “a weapon” is significant because
“[i]t is well known that a term can be defined in a number of different ways; therefore, when
interpreting a statute, this Court is to determine the most pertinent definition of a word in light of
its context.” People v Hershey (On Remand), 303 Mich App 330, 339; 844 NW2d 127 (2013)
(citation and internal quotation marks omitted). Additionally, the Legislature is “presumed to
know of and legislate in harmony with existing laws.” People v Cash, 419 Mich 230, 241; 351
NW2d 822 (1984) (citation omitted). Therefore, to resolve whether the starter pistol constituted
a weapon, we turn to the evidence produced at trial to determine if the starter pistol was
-6-
something defendant used to “injure, defeat or destroy” the victim. Achah-Essien, ___ Mich
App at ___; slip op at 6.
Testimony of the driver reveals that defendant pulled out the starter pistol, pointed it at
her and ordered her to “pull the car over.” Next, defendant pointed the starter pistol at her,
ordered her to turn around so that she was facing the front while he ordered the other victim into
the back seat. Testimony of the driver also revealed that defendant pointed the starter pistol at
her when he took her cell phone.4 The driver further testified that defendant was pulling the
hammer back on the starter pistol, which she presumed was intended to frighten her. From this
record evidence, we conclude that the starter pistol constituted a weapon within the meaning of
MCL 750.349b(1)(a). Defendant used the starter pistol as a means to prevent the driver from
leaving the car and in doing so he defeated any intention the driver had of assisting her friend
during the alleged sexual assault. Achah-Essien, ___Mich App at ___; slip op at 6.
Additionally, defendant used the starter pistol as a means to acquire the driver’s cell phone.
Viewed in a light most favorable to the prosecution, we find that the evidence at trial would have
allowed a jury to find beyond a reasonable doubt that defendant used the starter pistol as a
weapon in order to restrain the driver. Therefore, contrary to defendant’s argument on appeal,
there was sufficient evidence to sustain his conviction of unlawful imprisonment. Accordingly,
defendant is not entitled to relief on this issue.
III. INCONSISTENT VERDICTS
Next, defendant argues that due process requires dismissal of the charges due to an
inconsistent verdict. While defendant acknowledges “ . . . the Michigan rule in criminal cases,
inconsistent verdicts are permitted on the rationale that juries possess inherent power of leniency
that trial judges do not . . . ,” defendant requests that this Court adopt the approaches taken in
Maryland and Iowa. We decline defendant’s invitation to do so because we find the arguments
unpersuasive and also because we are bound by our Supreme Court’s decision in People v
Vaughn, 409 Mich 463, 465-466; 295 NW2d 354 (1980). Accordingly, defendant is not entitled
to relief on this issue.
IV. SENTENCING
Defense counsel raised several objections to the scoring of offense and prior record
variables at the sentencing hearing and also raises a Sixth Amendment issue relative to People v
Lockridge, ___ Mich ___; ___ NW2d ___ (2015). We proceed by first addressing the scoring
challenges before addressing the Sixth Amendment issue.
i. Scoring of the Variables
With respect to scoring of the variables, a circuit court’s factual determinations are
reviewed for clear error and must be supported by a preponderance of the evidence. People v
4
On appeal, defendant does not contest his conviction for interference with electronic
communications, MCL 750.540.
-7-
Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). Whether the facts, as found, are adequate to
satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is
a question of statutory interpretation, which an appellate court reviews de novo. Id. We review
de novo the proper interpretation of the sentencing guidelines. People v Gullett, 277 Mich App
214, 217; 744 NW2d 200 (2007).
The sentencing offense in this case was unlawful imprisonment, MCL 750.349b, a class-
C offense. MCL 777.16q. Defendant’s total OV score was 90 points and his total PRV score
was 20 for an OV level VI and a PRV level C, for a recommended minimum sentencing range of
43 to 86 months. MCL 777.64. The trial court sentenced defendant at the top of the guidelines
to 86 months to 15 years. Defendant challenges the scoring of PRV 7, OV 1, OV 3, OV 4, OV 7,
and OV 8.
With respect to PRV 7, for the reasons previously stated, we vacate defendant’s felonious
assault conviction. However, PRV 7 (two or more subsequent or concurrent convictions) should
remain scored at 20 points because defendant was convicted of unlawful imprisonment and
interference with electronic communications. See MCL 777.57(1).
Defendant challenges the scoring of OV 1 at five points. MCL 777.31(1)(e) governs the
scoring of OV 1 and directs a trial court to assess five points where a “weapon was displayed or
implied.” Here, the trial court did not clearly err in finding that defendant displayed or implied
that he had a weapon. As discussed above, there was evidence that defendant used a weapon for
purposes of his unlawful imprisonment conviction. Defendant’s use of the starter pistol implied
that he had a weapon. See People v Lange, 251 Mich App 247, 256-58; 650 NW2d 691 (2002)
(stating that 5 points is proper under OV 1 where a defendant “merely us[es] an object to imply
the presence of a weapon”). The court did not err in scoring OV 1 at five points.
Next, defendant argues that the trial court erred in scoring OV 3 (physical injury to a
victim) at 10 points. MCL 777.33(1)(e) governs the scoring of OV 3 and directs the trial court to
assess 10 points where “[b]odily injury requiring medical treatment occurred to a victim.” Here,
the sentencing offense was unlawful imprisonment. OV 3 is offense-specific. People v Mushatt,
486 Mich 934; 782 NW2d 202 (2010). Here, a preponderance of the evidence supported the trial
court’s finding that a victim suffered a bodily injury that required medical treatment. The
unlawful imprisonment continued through the sexual conduct and there was evidence that the
passenger sought medical treatment after the incident. Thus, the scoring of OV 3 was supported
by a preponderance of the evidence and the trial court did not clearly err in assessing 10 points.
Moreover, even if we were to agree with defendant, reducing his total OV score by 10 points
would not remove him from OV level VI or result in a different recommended minimum
sentencing range. See MCL 777.64.
Next, defendant argues that the trial court erred in scoring OV 4 at 10 points (serious
psychological injury requiring professional treatment). MCL 777.34(1)(a) governs the scoring of
OV 4 and directs a trial court to assess 10 points where “[s]erious psychological injury requiring
professional treatment occurred to a victim.”
In this case, in addition to Officer Koralski’s testimony that the victims were “very
shaken up,” “very scared,” had “watery eyes,” and their “hands were shaky” at the hospital, one
-8-
of the victims testified that both victims were “crying and freaking out” during the incident.
Further, defendant is incorrect that the passenger testified that she only required one counseling
session. The passenger testified that she attended counseling at the women’s shelter, and went
back on another occasion. See People v Williams, 298 Mich App 121, 124; 825 NW2d 671
(2012) (holding that a victim’s statement that he or she was fearful or angry during the incident
supports a trial court’s assessment of 10 points for OV 4). On this record, the trial court did not
clearly err in finding that a preponderance of the evidence supported scoring OV 4 at 10 points.
Given our conclusion with respect to this variable, we reject defendant’s argument that counsel
was ineffective for failing to object to the scoring of OV 4. See People v Thomas, 260 Mich App
450, 457; 678 NW2d 631 (2004) (counsel is not ineffective for failing to raise a futile objection).
Next, defendant argues that OV 7 was improperly scored at 50 points. MCL 777.37
requires that 50 points be assessed against an offender when “[a] victim was treated with sadism,
torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense.” MCL 777.37(1)(a). In Hardy, 494 Mich at 441, 443, our
Supreme Court interpreted the phrase “conduct designed to substantially increase the fear and
anxiety of a victim” to mean “conduct that was intended to make a victim’s fear or anxiety
greater by a considerable amount” and was “beyond the minimum necessary to commit the
crime.” In applying that standard to the facts surrounding the prosecution in Hardy, our
Supreme Court concluded that “racking a shotgun” supported scoring OV 7. Id. at 445. The
Court explained that the victim was threatened with violence, “even though merely displaying
the weapon or pointing it at the victim would have been enough to issue a threat,” and that
conduct was designed to substantially increase the fear of the defendant’s victim beyond the
“usual level that accompanies” the crime of carjacking because the “victim feared imminent
death.” Id. (emphasis added).
In this case, a preponderance of the evidence supported that the trial court did not clearly
err in scoring OV 7 at 50 points. Evidence showed that defendant was “playing with the trigger”
of the starter pistol in a manner that was intended to frighten the victim. One of the victims
testified that defendant was “playing with the trigger” of the pistol and mentioned that defendant
was pulling back the “hammer” a bit with the probable intent to scare her. That conduct is
analogous to racking a shotgun because in both instances the offender had the intent to place the
victim in imminent fear of death. Hardy, 494 Mich at 445. Accordingly, the trial court did not
clearly err in scoring OV 7.
Defendant argues that the trial court erred in scoring OV 8 at 15 points for victim
asportation to “another place of greater danger or to a situation of greater danger or was held
captive beyond the time necessary to commit the offense.” MCL 777.38(1)(a). The evidence
showed that defendant directed the driver of the vehicle to pull over into a dimly lit parking lot of
closed businesses behind snowbanks before he proceeded to commit unlawful imprisonment. By
moving the victims into this location, defendant was more able to commit the offense.
Accordingly, the trial court did not clearly err in scoring OV 8 at 15 points.
ii. Sixth Amendment
In Lockridge, our Supreme Court held that “the rule from Apprendi v New Jersey, 530 US
466; 120 S Ct 2348 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US___;
-9-
133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders
them constitutionally deficient,” Lockridge, ___ Mich at ___; slip op at 3. The Court explained
that, therefore, “to the extent that the OVs scored on the basis of facts not admitted by the
defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e.
the defendant’s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment.”
Id. at 11.
As a remedy, the Lockridge Court made the sentencing guidelines advisory only as
opposed to mandatory and struck down the requirement in MCL 769.34(3) “that a sentencing
court that departs from the applicable guidelines range must articulate a substantial and
compelling reason for that departure.” Id. at 2. Henceforth, “a sentencing court must determine
the applicable guidelines range and take it into account when imposing a sentence . . . [however]
a guidelines minimum sentence range . . . is advisory only and . . . sentences that depart from that
threshold are to be reviewed by appellate courts for reasonableness.” Id. Stated differently, a
sentencing court may engage in judicial fact finding to score the OVs—indeed it must continue
to score the OVs—but the recommended minimum sentencing range that such fact-finding
produces is no longer mandatory, but rather is advisory only.
In sum, pursuant to Lockridge, a sentencing court has discretion to consider the
recommended minimum sentencing range and fashion a sentence that is reasonable and it need
not articulate substantial and compelling reasons for departing from the guidelines’
recommended sentencing range. See slip op at 29 (explaining “[b]ecause sentencing courts will
hereafter not be bound by the applicable sentencing guidelines range, this remedy cures the Sixth
Amendment flaw in our guidelines scheme by removing the unconstitutional constraint on the
court’s discretion.”) See also People v Steanhouse, ___ Mich App ___; ___ NW2d ___ (2015)
(Docket No. 318329) (discussing what should be considered when imposing a sentence that
departs from the guidelines).
In this case, the jury did not find the facts to support the scoring of the OVs beyond a
reasonable doubt as they were not part of the elements of unlawful imprisonment and defendant
did not admit to these facts. Accordingly, because those facts established the guidelines’
minimum sentence, “an unconstitutional constraint [on the judge’s discretion] actually impaired
the defendant’s Sixth Amendment right.” Lockridge, ––– Mich at ––––; slip op at 32. The
Lockridge Court explained the remedy for this type of situation as follows:
[I]n accordance with [United States v Crosby, 397 F 3d 103, 117-118 (CA
2, 2005)] . . . in cases in which a defendant’s minimum sentence was established
by application of the sentencing guidelines in a manner that violated the Sixth
Amendment, the case should be remanded to the trial court to determine whether
that court would have imposed a materially different sentence but for the
constitutional error. If the trial court determines that the answer to that question
is yes, the court shall order resentencing. [Id. at 34 (emphasis added).]
In this case, defendant’s minimum sentence was established by application of the
sentencing guidelines in a manner that violated the Sixth Amendment. Accordingly, we remand
the matter to the trial court to follow the Crosby procedure outlined in Lockridge. Because
defendant may be sentenced to a more severe sentence, defendant may provide prompt notice of
-10-
his intent to forgo resentencing. People v Stokes, ___Mich App___; ___NW2d___(2015); slip
op at 15. If notification is not received in a timely manner, the trial court shall continue with the
Crosby remand as explained in Lockridge. See generally, Stokes, ___ Mich App at ___; slip op
at 12; Steanhouse, ___ Mich App at ___.
We vacate defendant’s conviction for felonious assault, and affirm his other convictions.
Pursuant to Lockridge and Stokes, we remand this matter to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
-11-
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672 P.2d 1006 (1983)
Clarence HALLIBURTON, Petitioner,
v.
COUNTY COURT In and For the CITY AND COUNTY OF DENVER, and the Honorable Theodore H. Chrysler, one of the Judges thereof, and County Court In and For the County of Arapahoe, and the Honorable Richard B. Cossaboom, one of the Judges thereof, Respondents.
No. 83SA352.
Supreme Court of Colorado, En Banc.
December 5, 1983.
*1008 Linda J. Olson, LeRoy L. Miller, Denver, for petitioner.
Stephen H. Kaplan, City Atty., Lee G. Rallis, William C. Murray, Jr., Asst. City Attys., Denver, for respondent Denver County Court.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Ruthanne Gartland, First Asst. Atty. Gen., Denver, for respondent Arapahoe County Court.
LOHR, Justice.
In this original proceeding under C.A.R. 21, the petitioner, Clarence Halliburton, asks that we direct either the Arapahoe County Court or the Denver County Court to afford him a jury trial on a date certain to resolve the civil claims that the petitioner has asserted against United Bank of Aurora (Bank). We conclude that both respondent courts abused their discretion but hold that the appropriate relief is to make absolute the rule directed to the Arapahoe County Court and to discharge the rule issued to the Denver County Court.
On November 3, 1981, the petitioner commenced an action in tort and for breach of contract[1] against the Bank in Arapahoe County Court and endorsed on his complaint a demand for a jury trial. After an answer had been filed by the Bank, a jury trial was set for March 8, 1982. The parties appeared, prepared for trial, but the court on its own motion ordered the trial continued to May 17, 1982, in order to accord speedy trials to persons charged with crimes. The petitioner's case was again continued on May 17, 1982, October 4, 1982, and January 10, 1983, each time on the court's own motion because of the need to provide speedy trials in criminal cases. On each occasion, the petitioner and the defendant appeared, prepared for trial, before the court ordered the continuance. On January 10, 1983, after continuing the case for the fourth time, the judge advised counsel that he did not know when, if ever, a civil jury trial could be held in Arapahoe County Court in light of the continuing necessity to hear criminal matters.
In order to obtain a forum for resolution of their dispute, on January 28, 1983, the petitioner and the Bank entered into a written stipulation for dismissal of the Arapahoe County action without prejudice, with the express agreement that the petitioner could refile the case in Denver County Court and the Bank would accept service in Denver. Based on the stipulation, the Arapahoe County Court dismissed the case on March 29, 1983.
In the meantime, on February 8, 1983, the petitioner filed a complaint and demand for jury trial in Denver County Court. The complaint recited, "The Defendant has agreed to accept service and accepts venue in the Denver County Court to promote the interest of justice and serve the convenience of witnesses." The Bank accepted service at its counsel's office in Arapahoe County and filed an answer. The case was scheduled for jury trial on June 6, 1983, and the parties appeared, prepared for trial.
The Denver county judge reviewed the file, noted that the proper venue under C.C.R.C.P. 398 was Arapahoe County and, on the court's own motion and over the petitioner's objection, ordered the case transferred to Arapahoe County. In doing so, the judge observed that the caseload in Arapahoe County Court is much less than in the county courts in Denver. The judge expressed skepticism that the convenience of witnesses would be served by trial in Denver and stated that the court could not *1009 give assurance when the case could be heard in Denver County Court. When told of the scheduling problem that the parties had experienced in Arapahoe County and that had prompted the refiling in Denver, the court expressed the opinion that there were other courts with lesser caseloads in which the action could be filed.
The petitioner then brought this original proceeding. He contends that the Denver County Court's ruling deprived him of his right to a jury trial contrary to C.C.R.C.P. 339 and denied him due process of law, equality of justice, and the right to a speedy remedy, in contravention of Colo. Const. Art. II, §§ 3, 6 and 25. With respect to the Arapahoe County Court's action, the petitioner contends that by structuring the court system to require a civil litigant to undergo repeated continuances if a jury trial is requested, the court effectively forces that litigant to settle the action or waive a jury trial. As a practical result, the petitioner urges, a civil litigant is denied the right to a jury trial, and is deprived of his constitutional protections under Colo. Const. Art. II, §§ 3, 6 and 25. The petitioner asserts that he has suffered these adverse consequences in the present case.
The principles concerning the appropriateness of original proceedings under C.A.R. 21 are well-settled in Colorado. Although an original proceeding is not a substitute for an appeal and is discretionary, such a proceeding can be employed to test whether a trial court is acting without or in excess of its jurisdiction. A proceeding under C.A.R. 21 is also appropriate to review a serious abuse of discretion where an appellate remedy would not be adequate. Margolis v. District Court, 638 P.2d 297, 300-01 (Colo.1981); Sanchez v. District Court, 624 P.2d 1314, 1316 (Colo.1981); Coquina Oil Corp. v. District Court, 623 P.2d 40, 41 (Colo.1981). This court has not been reluctant to exercise its original jurisdiction when the circumstances of the case warrant extraordinary relief. Sanchez v. District Court, supra, 624 P.2d at 1316.
The circumstances of this case, in which the petitioner has attempted repeatedly to bring his case to trial before a jury and in which it is unlikely that he will be afforded a jury trial in the near future, are sufficiently suggestive of a serious abuse of discretion to warrant review of the trial courts' actions in an original proceeding. We first address the propriety of the Denver County Court's change of venue ruling in the action now pending and then consider whether the Arapahoe County Court abused its discretion by repeatedly continuing the earlier case.
The petitioner is a resident of Denver and the Bank has its place of business in Arapahoe County. The complaint filed in Denver County Court alleged claims for relief based on the theories of contract, negligence and conversion. The Bank was served in Arapahoe County. Under these circumstances, Arapahoe County was the proper venue.[2] It is settled law, however, that in a civil case where the defendant does not interpose a timely motion to change the place of trial, improper venue does not impair a court's jurisdiction. See Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955); Kirby v. Union Pacific Railway Co., 51 Colo. 509, 541, 119 P. 1042, 1054 (1911); C.C.R.C.P. 398(d)(3). The question to be determined is whether under such circumstances the Denver County Court acted properly in changing venue at its own instance, contrary to the agreement of the parties and over the express objection of one of them.
In Walsmith v. Lilly, 194 Colo. 270, 571 P.2d 1107 (1977), we held a change of venue initiated by the Denver District Court in order to help alleviate an overcrowded court docket to be improper. Neither party to that dissolution of marriage action resided in Denver, but the husband had filed a *1010 waiver and agreed to submit to the court's jurisdiction to determine all of the issues raised by the pleadings. In contrast to the county court rules, the district court rules at issue in Walsmith allowed a court to change venue on its own motion in certain circumstances, including those "where the convenience of witnesses and the ends of justice would be promoted by the change." C.R.C.P. 98(e)(1) and 98(f). Noting this specific authority in C.R.C.P. 98, we recognized in Walsmith that a directive or rule of court could properly authorize a court to change venue on its own motion if both parties to a dissolution case reside in another county and neither of the parties can show good cause why venue should be retained by the court in which the case is filed. We observed, however, that the parties should be given an opportunity to show why the court should retain venue.[3]
In the present case, the Bank agreed to accept service in Denver, although service was actually made at the office of the defendant's counsel in Aurora. At the time scheduled for trial in Denver County Court, the parties, their counsel and witnesses appeared, ready for trial. When the court noted that Denver was not a proper venue, the petitioner fully informed the judge of the procedural background of the case to explain why the parties had agreed to file the case in Denver. Contrary to the wishes of the parties, the court on its own motion ordered venue changed to the Arapahoe County Court. To justify this action, the court commented that the docket of the Denver County Court was considerably more overcrowded than that of Arapahoe County. Under these circumstances, and particularly in the absence of any express authorization in the county court rules for change of venue on a motion by the court, we hold that the Denver County Court grossly abused its discretion in ordering venue changed to Arapahoe County. See Walsmith v. Lilly, supra.[4]
In regard to the events in the Arapahoe County Court, we conclude that the repeated delays with no promise that a trial would ever be held impermissibly burdened the plaintiff's right to a jury trial under C.C.R.C.P. 339. Moreover, the Arapahoe County Court concedes on page two of its answer brief that "in all likelihood, [the second judge's] treatment of this case would not be any different from that of [the judge to whom the first case was assigned], and a civil jury trial scheduled before [the second judge] would probably be continued, repeatedly, due to the quantity and backlog of criminal cases set for jury trial in the Eighteenth Judicial District." This admission obviates any possible objection that this original proceeding is premature because of the plaintiff's failure to seek a trial date after venue had been transferred to Arapahoe County.
Respondent Arapahoe County Court asserts that the petitioner should have requested assignment of a visiting judge to hear the action originally filed there after the likelihood of repeated continuances became apparent. We hold, however, that a litigant has no such obligation. Such decisions are administrative, not judicial. *1011 Certainly, obtaining additional judges by special assignment is one possible way to address on a temporary basis the overall problem of court congestion that gives rise to this original proceeding, but these administrative matters are for the court to treat on its own initiative. The failure of the court to address the problem cannot be justified by the fact that the parties did not suggest an appropriate administrative solution.
We understand the problems imposed by oppressive caseloads and limited judicial resources, but it is the obligation of the judicial system to work out some accommodation that does not have the effect of denying substantial rights to litigants. We do not address the larger problem of overcrowded courts. We only determine that in this case each of the two county courts abused its discretion by denying the petitioner any means of obtaining a civil jury trial.
The present posture of the case is that venue has been changed to Arapahoe County. That is the proper venue and is where the dispute would have been resolved by jury trial had the Arapahoe County Court not abused its discretion. Therefore, we conclude that the appropriate remedy is to direct that a jury trial be set in Arapahoe County Court on a day certain to hear the plaintiff's action.
The rule is made absolute as to the respondent Arapahoe County Court and is discharged as to the respondent Denver County Court.
NOTES
[1] The petitioner claims that the Bank wrongfully opened a joint account, rather than a payable on death account, for him and that the Bank improperly withheld $3,313.53 from the proceeds of that account when it was closed. The amount was allegedly withheld to pay a debt owed to the Bank by an individual listed as a joint owner of the account.
[2] C.C.R.C.P. 398(c) provides in pertinent part: "[with exceptions not relevant here] an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county ...."
[3] In Walsmith, the court had acted pursuant to a chief judge's directive that dissolution of marriage proceedings involving litigants who both reside in counties outside Denver should be transferred to the appropriate county. We held it was improper to apply this directive without offering the parties an opportunity to show good cause why the venue should be retained in Denver. We also noted that any such "directive or rule of court is, of course, subject to the requirements of C.R.C.P. 83 which provides for Supreme Court approval prior to application." Walsmith v. Lilly, supra, 194 Colo. at 272, 571 P.2d at 1109. C.R.C.P. 83 has subsequently been repealed and replaced by C.R.C.P. 121(a). The comparable rule concerning supreme court approval of county court rules is C.C.R.C.P. 383.
[4] Respondent Denver County Court argues that it did not obtain jurisdiction when the case was originally filed because the filing preceded dismissal of the Arapahoe County action. The dismissal and refiling were accomplished pursuant to an express agreement of the parties. The earlier action had been dismissed for several months before the venue change complained of here. Under these circumstances, we find no merit in the contention that the Denver County Court never obtained jurisdiction.
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10-3404-cv
Mavrommatis v. Carey Limousine Westchester et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 7th day of September, two thousand eleven.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10
11 Circuit Judges.
12 ______________________________________________
13
14 PETER MAVROMMATIS,
15
16 Plaintiff-Appellant,
17
18 - v. - No. 10-3404-cv
19
20 CAREY LIMOUSINE WESTCHESTER, INC., d/b/a
21 COUNTY LIMOUSINE SVC; CAREY LIMOUSINE
22 STAMFORD, INC.; CAREY INTERNATIONAL, INC.,
23
24 Defendants-Appellees.
25 ______________________________________________
26
27 SCOTT R. LUCAS, Lucas Bagnell LLC, Westport, CT, for
28 Plaintiff-Appellant.
29
30 GUY R. COHEN (David J. Fisher, on the brief), Davis &
31 Gilbert LLP, New York, NY, for Defendants-Appellees.
1
1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
2 that the judgment of the district court be AFFIRMED.
3 Plaintiff-Appellant Peter Mavrommatis (“Mavrommatis”) appeals from a judgment of the
4 United States District Court for the District of Connecticut (Underhill, J.) granting summary
5 judgment to Defendants-Appellees Carey Limousine Westchester, Inc., d/b/a County Limousine
6 Service; Carey Limousine Stamford, Inc.; and Carey International, Inc. (collectively “Carey”).1
7 Mavrommatis alleged discrimination and unlawful retaliation in violation of Title VII of the Civil
8 Rights Act, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act
9 (“ADEA”), 29 U.S.C. § 621 et seq., and 42 U.S.C. § 1981. Mavrommatis also alleged violations
10 of Connecticut State common law. Carey moved for summary judgment on November 30, 2009,
11 which the district court granted via a Ruling and Order dated July 23, 2010. The district court
12 subsequently entered judgment for Carey and declined to exercise supplemental jurisdiction over
13 Mavrommatis’s state law claims. Mavrommatis timely appealed on August 12, 2010. We assume
14 the parties’ familiarity with the underlying facts and procedural history.
15 * * *
16 “In reviewing a district court’s determination of whether it has subject matter jurisdiction,
17 we review factual findings for clear error and legal conclusions de novo.” Gualandi v. Adams, 385
18 F.3d 236, 240 (2d Cir. 2004). We review de novo a district court’s order granting summary
19 judgment. Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). Summary judgment may not
20 be granted unless “the pleadings, depositions, answers to interrogatories, and admissions on file,
21 together with the affidavits, if any, show that there is no genuine issue as to any material fact and
1
For the purposes of the motion for summary judgment, the parties stipulated to treating all
three Defendants-Appellees as Mavrommatis’s single “employer.”
2
1 that the moving party is entitled to a judgment as a matter of law.” Gallo v. Prudential Residential
2 Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994) (internal quotation marks omitted). The
3 burden is on the moving party to demonstrate that no genuine issue respecting any material fact
4 exists. Id. In reviewing a court’s decision granting summary judgment, the appellate court must
5 consider “the evidence in the light most favorable to the non-moving party and draw[ ] all
6 reasonable inferences in its favor.” Palmieri v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006).
7 “Nevertheless, the non[-]moving party must come forward with specific facts showing that there is
8 a genuine issue of material fact for trial.” Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d
9 Cir. 2003). “Conclusory allegations, conjecture, and speculation . . . are insufficient to create a
10 genuine issue of fact.” Id. (internal quotation marks omitted); see also Weinstock v. Columbia Univ.,
11 224 F.3d 33, 41 (2d Cir. 2000) (“[U]nsupported allegations do not create a material issue of fact.”).
12 When deciding whether summary judgment should be granted in a discrimination case, we
13 must take additional considerations into account. Gallo, 22 F.3d at 1224. “A trial court must be
14 cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Id.
15 “[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof which, if
16 believed, would show discrimination.” Id. Summary judgment remains appropriate in
17 discrimination cases, as “the salutary purposes of summary judgment – avoiding protracted,
18 expensive and harassing trials – apply no less to discrimination cases than to . . . other areas of
19 litigation.” Weinstock, 224 F.3d at 41 (internal quotation marks omitted); see also Abdu-Brisson v.
20 Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary
21 judgment may be appropriate even in the fact-intensive context of discrimination cases.”). Finally,
22 we are free to affirm a district court’s grant of summary judgment “on any ground fairly supported
23 by the record,” including “for different reasons than those relied upon by the district court.” Abdu-
24 Brisson, 239 F.3d at 466.
3
1 A. Mavrommatis’s Discrimination Claims
2 On appeal, Mavrommatis argues that the district court erred in granting summary judgment
3 to Carey on his discrimination claims because disputed issues of material fact exist over whether he
4 was subject to unlawful discrimination. We examine discrimination claims brought pursuant to Title
5 VII, the ADEA, and § 1981 under the burden-shifting analysis articulated by the Supreme Court in
6 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Feingold v. New York, 366 F.3d
7 138, 152 (2d Cir. 2004) (Title VII); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.
8 2010) (Section 1981); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)
9 (ADEA). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie
10 case of discrimination. 411 U.S. at 802. We have held that the plaintiff’s burden of proof at this
11 stage is de minimis. Weinstock, 224 F.3d at 42. Once he has done so, the burden then shifts to the
12 employer to articulate a “legitimate, nondiscriminatory reason” for the employment action.
13 McDonnell Douglas, 411 U.S. at 802. In other words, “[t]he defendant must clearly set forth,
14 through the introduction of admissible evidence, reasons for its actions which, if believed by the trier
15 of fact, would support a finding that unlawful discrimination was not the cause of the employment
16 action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks
17 omitted).
18 Upon the defendant’s proffer of such a reason, the presumption of discrimination arising with
19 the prima facie case “drops from the picture.” Weinstock, 224 F.3d at 42 (citing St. Mary’s Honor
20 Ctr., 509 U.S. at 510-11). The plaintiff must then establish that the defendant’s proffered reason is
21 a mere pretext for actual discrimination. See McDonnell Douglas, 411 U.S. at 804; Weinstock, 224
22 F.3d at 42. The plaintiff must produce “sufficient evidence to support a rational finding that the
4
1 legitimate, non-discriminatory reasons” presented by the defendant were false, and that “more likely
2 than not discrimination was the real reason for the employment action.” Weinstock, 224 F.3d at 42
3 (internal quotation marks and alterations omitted). “In short, the question becomes whether the
4 evidence, taken as a whole, supports a sufficient rational inference of discrimination.” Id. “It is not
5 enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff’s explanation
6 of intentional discrimination.” St. Mary’s Honor Ctr., 509 U.S. at 519 (emphasis omitted).
7 Here, even assuming arguendo that Mavrommatis has established a prima facie case of age,
8 nationality, or ethnicity-based discrimination, he has not produced sufficient evidence for a
9 reasonable factfinder to conclude that Carey’s proffered reasons for the alleged adverse employment
10 actions comprised a mere pretext for unlawful discriminatory intent. See Leibowitz v. Cornell Univ.,
11 584 F.3d 487, 504 (2d Cir. 2009) (citing D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 196 (2d
12 Cir. 2007)). Mavrommatis’s primary evidence in support of his claim that Carey’s proffered reasons
13 are pretextual are: 1) Carey’s hiring of two General Managers who were in their thirties and
14 “American-born”; and 2) an incident where a co-worker told Mavrommatis to look up the word
15 “subordinate” in his “little black book.” J.A. at 637. With respect to the former, Carey submitted
16 evidence that between January 2004 and December 2008, Carey had seven General Managers who
17 were age forty or greater when they assumed the position of General Manager, six of whom were
18 older than Mavrommatis. As for the latter, the district court properly noted that Mavrommatis
19 neither explained how the phrase “black book” is an ethnic slur, nor pointed to evidence suggesting
20 that the term was used as such. He again fails to do so on appeal. In sum, Mavrommatis has failed
21 to submit evidence providing any basis on which a reasonable jury could conclude that he suffered
22 adverse employment actions as a result of discriminatory animus. We therefore find that the district
23 court did not err in granting summary judgment to Carey on Mavrommatis’s discrimination claims.
5
1 B. Mavrommatis’s Unlawful Retaliation Claims
2 Mavrommatis next argues that Carey’s management unlawfully retaliated against him for
3 complaining about his allegedly discriminatory treatment. We review Title VII, ADEA, and § 1981
4 retaliation claims under a three-step burden-shifting analysis similar to the McDonnell Douglas test
5 for disparate treatment. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)
6 (citing McDonnell Douglas, 411 U.S. at 802-05) (Title VII); see also Hicks v. Baines, 593 F.3d 159,
7 164 (2d Cir. 2010) (Section 1981); Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (ADEA).
8 As with McDonnell Douglas, the plaintiff’s burden of proof as to his prima facie case “has been
9 characterized as ‘minimal’ and ‘de minimis.’” Jute, 420 F.3d at 173 (internal quotation marks
10 omitted). Nevertheless, “[t]he ultimate burden of persuasion . . . remains with the plaintiff.” Sumner
11 v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
12 Here, assuming arguendo that Mavrommatis has established a prima facie case of unlawful
13 retaliation, he cannot establish that Carey’s proffered non-retaliatory reasons for its actions are
14 pretextual. We have recently held that, while “[t]he temporal proximity of events may give rise to
15 an inference of retaliation for the purposes of establishing a prima facie case of retaliation under
16 Title VII, . . . without more, such temporal proximity is insufficient to satisfy appellant’s burden to
17 bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d
18 Cir. 2010) (per curiam) (emphasis added). “Indeed, a plaintiff must come forward with some
19 evidence of pretext in order to raise a triable issue of fact.” Id. Mavrommatis’s sole evidence of
20 pretext other than temporal proximity is his positive performance evaluation in October 2006. That
21 evaluation, however, states that Mavrommatis’s “main responsibility” during the evaluation period
22 was “managing the Westchester operation” – not the Stamford operation – and makes clear that
23 while he was “well respected as a leader with the Westchester employees[,] . . . [h]e must gain the
6
1 same respect from Stamford/Hartford employees and chauffeurs.” J.A. 189-91. Carey, meanwhile,
2 provided evidence showing that Mavrommatis had numerous job performance issues arising from
3 his negative relationships with Carey’s Stamford employees. In fact, Mavrommatis himself admitted
4 that he did not have good working relationships with Stamford employees. As a result,
5 Mavrommatis’s retaliation claims must fail. The district court therefore did not err in granting
6 summary judgment to Carey on Mavrommatis’s retaliation claims.
7 C. Mavrommatis’s State Law Claims
8 Mavrommatis finally argues – for the first time on appeal – that he adequately pleaded
9 diversity jurisdiction and that the district court erred in dismissing his state law claims on
10 supplemental jurisdiction grounds. Mavrommatis contends that his civil cover sheet contained
11 sufficient allegations that the requirements of diversity jurisdiction were met. For the following
12 reasons, we reject Mavrommatis’s argument.
13 “Although a plaintiff premising federal jurisdiction on diversity of citizenship is required to
14 include in its complaint adequate allegations to show that the district court has subject matter
15 jurisdiction, its failure to do so does not always require that the action be dismissed, for ‘the actual
16 existence of diversity jurisdiction, ab initio, does not depend on the complaint’s compliance with
17 these procedural requirements.’” Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v.
18 Dupont, 565 F.3d 56, 64 (2d Cir. 2009) (quoting Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d
19 565, 568 (2d Cir. 2000)) (internal citation omitted). “Thus, where the facts necessary to the
20 establishment of diversity jurisdiction are subsequently determined to have obtained all along, a
21 federal court may . . . allow a complaint to be amended to assert those necessary facts.” Id. (ellipsis
22 in original, internal quotation marks omitted). “Or, when the record as a whole, as supplemented,
23 establishes the existence of the requisite diversity of citizenship between the parties, we may simply
7
1 deem the pleadings amended so as to properly allege diversity jurisdiction.” Id. (internal quotation
2 marks omitted).
3 Here, Mavrommatis’s complaint nowhere alleges diversity jurisdiction and instead alleges
4 solely supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. Moreover,
5 Mavrommatis never moved pursuant to 28 U.S.C. § 1653 to amend his complaint to allege diversity
6 jurisdiction. The complaint also fails to allege any amount in controversy, let alone that it exceeds
7 the sum or value of $75,000. See Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 273 (2d Cir. 1994)
8 (“[T]he party asserting diversity jurisdiction in federal court has the burden of establishing the
9 existence of the jurisdictional amount in controversy.”); Tongkook Am., Inc. v. Shipton Sportswear
10 Co., 14 F.3d 781, 784 (2d Cir. 1994) (“A party invoking the jurisdiction of the federal court has the
11 burden of proving that it appears to a reasonable probability that the claim is in excess of the
12 statutory jurisdictional amount.” (internal quotation marks omitted)). The district court thus had no
13 occasion to determine over the course of the proceedings that the amount in controversy requirement
14 of diversity jurisdiction was met. See Jacobs, 230 F.3d at 568.
15 Instead, Mavrommatis argues that he adequately alleged diversity of citizenship between the
16 parties and a sufficient amount in controversy in his civil cover sheet. The civil cover sheet,
17 however, states that it “and the information contained herein neither replace nor supplement the
18 filing and service of pleadings or other papers as required by law, except as provided by local rules
19 of court.” Special App. 1; see also Favors v. Coughlin, 877 F.2d 219, 220 (2d Cir. 1989) (per
20 curiam) (“The civil cover sheet, of course, is merely an administrative aid to the court clerk, and is
21 therefore not typically considered part of a litigant’s pleading papers.”). The District of
22 Connecticut’s Local Rules, meanwhile, nowhere permit a plaintiff to allege the necessary elements
23 of diversity jurisdiction in the civil cover sheet in lieu of the complaint. See D. Conn. L. Civ. R. 3(a)
8
1 (specifying that all civil complaints must be filed with a Civil Cover Sheet). To the contrary, the
2 Local Rules specify, for example, that “[a] Civil Cover Sheet indicating that a jury trial is desired
3 shall not suffice as a demand for jury trial.” Id.; see also Contino v. United States, 535 F.3d 124,
4 126 (2d Cir. 2008) (per curiam) (noting that “Local Rules have the force of law, as long as they do
5 not conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution”).
6 Moreover, to the extent that we have expressed a willingness to permit a plaintiff to rely on
7 a civil cover sheet in lieu of his complaint, we have done so where the plaintiff was proceeding pro
8 se or in forma pauperis. See Wright v. Lewis, 76 F.3d 57, 59 (2d Cir. 1996) (“[W]e find that the
9 outcome in [this] case is determined by [the plaintiff’s] in forma pauperis status.”); Favors, 877 F.2d
10 at 220 (noting that “pro se pleadings are held to less stringent standards than formal pleadings
11 drafted by lawyers” (internal quotation marks omitted)); see also D. Conn. L. Civ. R. 3(a) (noting
12 that “[p]ersons filing civil complaints who are in custody at the time of filing, and persons filing pro
13 se” are exempted from the civil cover sheet requirement (emphasis added)). As Mavrommatis is
14 neither proceeding pro se or in forma pauperis, we find no reason to permit him to rely on his civil
15 cover sheet here. We therefore conclude that the district court properly declined jurisdiction over
16 Mavrommatis’s state law claims.
17 D. Conclusion
18 We have reviewed the parties’ remaining arguments and find them to be moot, waived, or
19 without merit. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of the
20 district court is therefore AFFIRMED.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
9
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971 P.2d 270 (1998)
PILGRIM REST BAPTIST CHURCH, INC., Petitioner-Appellee, and
Board of Assessment Appeals, Appellee,
v.
PROPERTY TAX ADMINISTRATOR, Mary Huddleston, Respondent-Appellant.
No. 97CA1425.
Colorado Court of Appeals, Div. IV.
April 30, 1998.
As Modified on Denial of Rehearing June 25, 1998.
Certiorari Denied February 16, 1999.
*271 James Bretz, Denver, Colorado, for Petitioner-Appellee
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Eugene C. Cavaliere, Senior Assistant Attorney General, Denver, Colorado, for Appellee
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, James E. Heiser, Assistant Attorney General, Denver, Colorado, for Respondent-Appellant
Opinion by Judge NEY.
In this property tax case, respondent, the Property Tax Administrator (PTA), appeals from an order of the Board of Assessment Appeals (BAA) which overturned a ruling of the PTA and granted a religious use property tax exemption to petitioner, Pilgrim Rest Baptist Church, Inc. (church), as to two vacant parcels of real property owned by the church for the 1993, 1994, 1995, and 1996 tax years. We affirm.
The relevant facts are not in dispute. The subject property consists of two vacant lots owned by the church, one in Denver, near the church, and the other in Park County, near Fairplay.
The evidence at the hearing before the BAA established that the church was the only user of the lots and that it used each of the subject lots essentially one day each year *272 for certain outdoor activities which it claimed were in furtherance of its religious mission and purposes. The church expressed hope to improve the lots in the future as funds might permit. The PTA conceded that the church actually used the subject lots at least once a year, but asserted that such use was insufficient for exemption and that more "continual" or "regular" use was required.
Following the hearing, the BAA ruled that the church had presented sufficient evidence of religious use to show that the subject lots should be exempt from property taxation for the 1993 to 1996 tax years at issue. Specifically, the BAA ruled that the evidence presented showed that the church actually used the properties "on a limited basis" and was "the only user" of the properties, and that the "limited funding" available to the church to improve the properties should not "keep the properties from being tax exempt." This appeal by the PTA followed.
I.
In this appeal, PTA attempts to challenge the exemption ordered by the BAA on the basis that the character of the church's use of the subject lots was secular rather than religious. However, judicial review of administrative agency action is limited to the record made before the agency. Hancock v. State, 758 P.2d 1372 (Colo.1988). And, since the PTA failed to raise any issues concerning the allegedly non-religious, secular character of the church's use of the subject lots in the proceedings before the BAA, we will not consider such arguments now for the first time on appeal. See Hancock v. State, supra; Wyler/Pebble Creek Ranch v. Colorado Board of Assessment Appeals, 883 P.2d 597 (Colo.App.1994).
II.
We reject the PTA's challenge to the exemption ordered by the BAA based on its argument that the quantity and extent of the church's use of the subject lots was insufficient as a matter of law.
Initially, we note that the ultimate determination as to whether the subject lots qualified for a property tax exemption based on the church's use of them involves mixed issues of law and fact. Thus, under the applicable standard of review, the BAA's exemption determination must be sustained if it has a reasonable basis in law and is supported by substantial evidence in the record as a whole. See §§ 24-4-106(7) & 24-4-106(11)(e), C.R.S.1997; Board of Assessment Appeals v. AM/FM International, 940 P.2d 338 (Colo.1997).
Section 39-3-106(1), C.R.S.1997, as in effect since the 1989 amendments to the pertinent statutory scheme, provides for a property tax exemption as to property "which is owned and used solely and exclusively for religious purposes." See also Colo. Const. art. X, § 5 (similarly providing for property tax exemption as to property "used solely and exclusively for religious worship," among other things, "unless otherwise provided by general law").
Under these provisions, the test for exemption depends upon the character of the use to which the property is put. See Maurer v. Young Life, 779 P.2d 1317 (Colo.1989); St. Mark Coptic Orthodox Church v. Colorado State Board of Assessment Appeals, 762 P.2d 775 (Colo.App.1988).
Further, property tax exemptions based on religious use should not be narrowly construed, and each claim for tax exemption must be resolved on the basis of its own facts under the applicable legal standards. See Maurer v. Young Life, supra; see also Board of Assessment Appeals v. AM/FM International, supra.
We note that property tax exemptions are determined on an annual basis under the property tax scheme, based on the use of the property in each tax year. See § 39-2-117(3), C.R.S.1997; St. Mark Coptic Orthodox Church v. Colorado State Board of Assessment Appeals, supra. Implicit in this scheme is a requirement that, in order for that property to qualify for tax exemption for that tax year, there be at least some actual use of the property for tax exempt purposes in that tax year.
Apart from this minimal implicit requirement, however, we decline to hold, as a *273 matter of law, that any particular frequency or quantity of use religious in character is required to satisfy the foregoing constitutional and statutory standards for an exemption based on religious use. See Horton v. Fountain Valley School, 98 Colo. 480, 485, 56 P.2d 933, 936 (1936) (overturning denial of property tax exemption for outlying acreage of nonprofit school, rejecting contention of taxing authorities that use of such acreage was "insignificant" and stating that it was "not for [the taxing authorities] to measure a use"); Gyurman v. Weld County Board of Equalization, 851 P.2d 307 (Colo.App.1993) (no prescribed limit on amount of acreage qualifying for residential classification based on its use as part of taxpayer's residence under applicable constitutional and statutory standards).
Here, although the PTA's witness testified that the church's use of the subject lots for religious purposes once each year was "not sufficient" for an exemption, this witness, on cross-examination, was also unable to quantify the frequency or amount of such use that would be considered to be sufficient by the PTA to qualify for such an exemption. It was undisputed that the church had actually used each of the subject lots at least once each year.
There was testimony in the record that the PTA had told the church that once a year usage would satisfy the usage requirement. Also, evidence showed the church had limited funds to improve the properties. Under these circumstances, we decline to set aside the BAA's determination that use of a property for religious purposes once during a twelve month period constitutes sufficient use to qualify under an exemption under §39-3-66(1).
Therefore, the BAA's determination that the subject lots should be exempt from property taxation based on such limited religious use is fully supported by the evidentiary record.
Finally, we view the PTA's reliance on First Christian Church v. Board of Assessment Appeals, 711 P.2d 721 (Colo.App.1985), in support of a contrary result to be misplaced.
In that case, a division of this court upheld the BAA's denial of a religious use property tax exemption as to certain vacant land owned by a church. However, that case is both factually and legally distinguishable from the situation here in that there it was undisputed that the land was not then being used for any religious purposes. Also, that case was decided under the significantly more restrictive provisions of the former statutory scheme, which are no longer in effect.
The BAA's order is affirmed.
RULAND and VOGT, JJ., concur.
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190 F.3d 926 (8th Cir. 1999)
United States of America, Plaintiff - Appellee,v.Donald Deavault, Defendant - Appellant.
No. 98-3992
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: May 11, 1999Filed: September 9, 1999
Appeal from the United States District Court for the Eastern District of Missouri.[Copyrighted Material Omitted]
Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and WATERS,* District Judge.
LOKEN, Circuit Judge.
1
Donald Deavault appeals his conviction for carjacking and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. 2119(a) and 924(c)(1). Deavault argues there was insufficient evidence to convict, the district court1 abused its discretion by denying his post-trial motion for a new trial based upon newly discovered evidence the government had improperly withheld, and the court erred in not suppressing evidence of the victim's impermissibly suggestive pretrial identification and her unreliable in-court identification. We affirm.
I. Sufficiency of the Evidence
2
At about 8:30 p.m. on February 21, 1998, medical student Kara Ann Cummins returned to her car after shopping at the Galleria Mall in Richmond Heights, Missouri. She put her packages in the back seat. As she opened the driver's side door, she was attacked from behind. The armed assailant pushed her across to the passenger side and drove to a Mall exit, holding Cummins with his right hand and warning her not to leave the car. When the car stopped at the stoplight at the Mall's perimeter, Cummins managed to fight off the carjacker, open the passenger door, and roll to safety before the car drove away. Though the carjacker put a scarf over his face once they were in the car, Cummins testified that she got a close-up look at his face during their initial struggle. She gave the police a detailed description later that evening, picked Deavault out of a six-person photo lineup the morning of February 23, and unequivocally identified him as her assailant at trial. In addition, the government introduced evidence that Deavault was in possession of the stolen car before it was recovered the next day, and that he made incriminating statements when arrested in early May.
3
On appeal, Deavault argues this evidence was insufficient to prove that he was the armed carjacker. When sufficiency of the government's evidence is challenged, we review the trial evidence in the light most favorable to the jury's verdict. See United States v. Willis, 89 F.3d 1371, 1376 (8th Cir.), cert. denied, 519 U.S. 909 (1996). Though the defense presented three alibi witnesses who testified that Deavault was not at the Mall when the carjacking occurred, we conclude the government's evidence was more than sufficient to support the jury's verdict.
II. The New Trial Motion
4
At trial, the defense called three witnesses who placed Deavault at his residence the entire afternoon and evening of the carjacking. In rebuttal, the government called Renee Farwell, who testified that Deavault was in a group of young African-American males who approached the Arby's restaurant counter in the food court at the Galleria Mall between 3:00 and 3:30 p.m. on the afternoon of February 21, some five hours before the carjacking. According to Farwell, three of the group asked for and filled out job applications. After the trial but before sentencing, Deavault moved for a new trial on the ground that the videotape of a surveillance camera in the Mall's food court showed that no group of African-American males came to the Arby's counter between 2:00 and 4:00 p.m. that day. The district court held an evidentiary hearing on this motion. Deavault presented testimony by the defense investigator who had obtained and watched the tape; the government presented testimony by the Galleria Mall employee responsible for the video surveillance system, who had also watched the tape. Commenting that "[t]he evidence of guilt was very strong," the district court denied the motion, concluding that Deavault "fails in his burden to show that he is entitled to a new trial based upon what is classified as newly-discovered evidence."
5
On appeal, Deavault seeks to augment this newly discovered evidence issue by arguing that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding the exculpatory videotape. This contention does not change the standard of review. We review the denial of a motion for new trial based upon newly discovered evidence or based upon a Brady violation for abuse of discretion. See United States v. Ryan, 153 F.3d 708, 711 (8th Cir. 1998), cert. denied, 119 S. Ct. 1454 (1999).
6
We conclude the government did not violate Brady because the videotape evidence was not suppressed. During pretrial discovery, the government provided police reports revealing the existence of Mall surveillance tapes from the day in question. The defense subpoenaed tapes of the outside area where the carjacking occurred but not tapes of areas inside the Mall, even though the defense investigator interviewed Farwell and learned the substance of her later testimony. "Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence." United States v. Stuart, 150 F.3d 935, 937 (8th Cir. 1998).
7
For the same reason, the district court did not abuse its discretion in denying Deavault's motion for new trial based upon newly discovered evidence. Newly discovered evidence does not warrant a new trial if the failure to discover it before trial was "attributable to a lack of due diligence on the part of the movant." Ryan, 153 F.3d at 713. In addition, Deavault cannot meet the rigorous new trial standard because the evidence was neither material nor likely to produce an acquittal given the strong evidence of Deavault's guilt. It is undisputed that the camera swept a broad area of the food court, returning to the Arby's counter every seventy seconds, and that there were "blind spots" not within the camera's view. In addition, the two witnesses at the motion hearing disagreed as to whether the tape showed a group of African-American males in the food court area. The tape was not evidence of the crime itself, and it provided only questionable impeachment of the government's rebuttal witness. Thus, its absence from the trial was at most harmless error.
III. The Identification Evidence
8
After St. Louis police officers recovered the victim's car, Richmond Heights Detective Michael Brown, who had interviewed Cummins the night of the carjacking, showed Cummins a spread of six photographs. The photos were of Deavault, three African-American males who were in or around the car when it was recovered, and two randomly selected African-American males who resembled Deavault. Cummins identified Deavault as her assailant. At trial, both Cummins and Brown described this pretrial identification, and Cummins also made an unequivocal in-court identification. Deavault argues the district court erred in not suppressing this evidence because the three men who were in or around the car do not look like Deavault, and therefore the photo lineup was impermissibly suggestive. We disagree.
9
In conducting the photo lineup, Detective Brown had two legitimate purposes to find out whether the victim could either identify or exclude each of the four suspects.To accomplish both objectives, he had to show Cummins photos of all four, whether or not they resembled each other. Perhaps a more perfect procedure would have been to construct a photo lineup spread for each of the four suspects and show the four spreads sequentially. But the law does not require perfect identification procedures, only the absence of any procedure so impermissibly suggestive that it "created a very substantial likelihood of irreparable misidentification." United States v. Triplett, 104 F.3d 1074, 1079 (8th Cir.), cert. denied, 520 U.S. 1236 and 1270 (1997). In this case, the photo lineup procedure used by Detective Brown was not particularly suggestive of Deavault, as opposed to any of the other three suspects. In addition, we have carefully reviewed the transcript of Cummins's in-court identification of Deavault as her assailant. Using the reliability factors summarized in Manson v. Brathwaite, 432 U.S. 98, 114 (1977), we have no difficulty concluding that Cummins's identification testimony had sufficient indicia of reliability to be admissible. Accordingly, the district court did not err in denying Deavault's objections to this evidence.
10
The judgment of the district court is affirmed. Deavault's pro se motion to compel is denied.
Notes:
*
The HONORABLE H. FRANKLIN WATERS, United States District Judge for the District of Arkansas, sitting by designation.
1
The HONORABLE E. RICHARD WEBBER, United States District Judge for the Eastern District of Missouri.
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356 F.Supp. 1221 (1973)
McCOY LUMBER INDUSTRIES, INC., Plaintiff,
v.
NIEDERMEYER-MARTIN CO., Defendant.
No. C-249-G-72.
United States District Court, M. D. North Carolina, Greensboro Division.
March 1, 1973.
*1222 William Zuckerman, of Forman, Zuckerman & Graham, Greensboro, N. C., for plaintiff.
Hubert B. Humphrey and John L. Sarratt, of McLendon, Brim, Brooks, Pierce & Daniels, Greensboro, N. C., for defendant.
MEMORANDUM OPINION
GORDON, Chief Judge.
The plaintiff, McCoy Lumber Industries, Inc. (McCoy), a North Carolina corporation, originally instituted this action on July 21, 1972, in the North Carolina Superior Court for Guilford County against the defendant, Niedermeyer-Martin Company (Niedermeyer), an Oregon corporation. Service of process was made on the defendant by service of a copy of the summons and a copy of the complaint upon an officer of the defendant corporation in Portland, Oregon by the Sheriff of Multnomah County, Oregon. On August 24, 1972, the defendant petitioned for removal of the case to this Court on the basis of diversity jurisdiction.
Before answering and pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the defendant moved to dismiss for lack of jurisdiction over the person of the defendant by reason of insufficient service of process. Paragraph four of the plaintiff's complaint claims jurisdiction over the defendant pursuant to the provisions of N.C.G.S. 1-75.4 (5)(a) and (c), but this sentence of the complaint was subsequently amended by the plaintiff to read N.C.G.S. 1-75.4 (5)(a) and (d). The defendant contends that these sections are not applicable to the facts of this case, and further, that if applicable, they are unconstitutional in this factual situation because the application of the statute would deprive the defendant of his property without due process of law in violation of the Fourteenth Amendment.
*1223 After careful consideration and study of the defendant's motion to dismiss and the briefs and affidavits filed in support and opposition to the motion, the Court is of the opinion, and so finds, that the service of process was proper and that this Court has jurisdiction over the person of the defendant, and therefore the defendant's motion to dismiss is denied.
The defendant, Niedermeyer, lists Portland, Oregon as its principal and only place of business where it is engaged in the business of selling forest products. The plaintiff, McCoy, has its main office in Greensboro, North Carolina, and is engaged in the wholesale lumber business. McCoy maintains inventories of lumber and forest products, operates sawmills, and employs lumber inspectors, buyers and salesmen for sales made to retail lumber dealers, industrial lumber users, general contractors and lumber wholesalers and brokers. It is apparently conceded by the plaintiff that Niedermeyer is not licensed to do business in North Carolina nor has it engaged in any of the usual practices associated with doing business in North Carolina. The only contact with North Carolina by Niedermeyer was by mail and telephone over the purchase of lumber from the plaintiff.
The affidavit of Harold V. McCoy, President of the plaintiff corporation, states that he has done business with the defendant since 1961 but does not state how much or how often. In January of 1972 the defendant contacted the plaintiff in its Greensboro office and inquired whether the plaintiff could furnish the defendant with lumber supplies which the defendant planned to turn into bowling alleys to be shipped to Japan. Over a five month period, the plaintiff states that it received an estimated 50 person-to-person calls from the defendant concerning the furnishing of Southern Yellow Pine which would be supplied from North Carolina sources and Northern Hard Maple which the plaintiff would obtain through its buyers from Pennsylvania, Wisconsin, and New York. In February, 1972, the defendant sent by mail the first of six purchase orders to the plaintiff. A total of 168,490 board feet of maple was shipped to the defendant by the plaintiff at the invoice amount of $124,728.12, and a total of 107,134 board feet of pine was shipped at a cost of $34,818.56. The defendant points out that only 38.9 per cent of the total board feet was actually shipped from North Carolina and that a substantial amount of the contract was performed outside of North Carolina.
The plaintiff claims there is a balance of $130,976.08 still owing on the purchases and this suit was instituted to recover that amount. The defendant has moved to dismiss the North Carolina action on grounds of lack of personal jurisdiction. In jurisdictional disputes of this nature the Court must decide two questions: Does the defendant's activity come under the provisions of N.C.G.S. 1-75.4(5)(a) and (d), and if it does, would the statute's application in this factual situation violate the defendant's due process rights under the Fourteenth Amendment?
A close reading of N.C.G.S. 1-75.4(5)(a) and (d), convinces the Court that the defendant's activity in this state would at least bring the defendant within the ambit of section (d) and probably under section (a). The statute provides jurisdiction over a person properly served in an action which:
"(a) Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or
"(d) Relates to goods, documents of title, or other things of value shipped from this State by the plaintiff to the defendant on his order or direction. . . ."
Certainly the shipment of lumber from this state would fall under the definition of goods or other things of value in section *1224 (d), and since this statute has no relation to the performance of contracts, the fact that only part of the defendant's orders were filled in North Carolina is irrelevant.
If the plaintiff were just selling lumber to the defendant, it is doubtful that jurisdiction could be asserted under section (a) which deals with the performance of services within this state. However, according to the affidavit of Harold V. McCoy, the agreement with the defendant involved more than just providing lumber. The affidavit states that the plaintiff's employees not only procured and produced the lumber, but they also inspected the lumber, had it kiln-dried and then shipped it to the defendant. The plaintiff contends that the contract included these services, and according to the affidavit of Thomas J. Niedermeyer, the defendant does not have the facilities to perform some of these operations. Therefore, based on these limited facts, the Court is of the opinion that the defendant's activities also come under section (a).
The more difficult question facing the Court is whether the defendant's activity in North Carolina meets the "minimum contact" rule required by due process as set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The defendant has cited to the Court several cases in which various courts have dismissed complaints because the defendant had not had sufficient contact with the forum state to warrant that state assuming jurisdiction over the defendant. These cases, however, can be distinguished from the instant fact situation.
In Putnam v. Triangle Publications, Inc., 245 N.C. 432, 96 S.E.2d 445 (1957), the North Carolina Supreme Court held that a publisher of a detective magazine was not subject to a libel suit in North Carolina where the magazine was circulated by independent contractors in North Carolina. Legal title and ownership passed from the publisher to the independent contractors when the magazines were delivered to a common carrier in a foreign state. The Court held that the defendant's contact with North Carolina had been "casual, incidental and insubstantial" and therefore not sufficient under traditional concepts of fair play and substantial justice to submit the defendant to suit in North Carolina.
One of the leading cases in this area of the law is Erlanger Mills v. Cohoes Fibre Mills, 239 F.2d 502 (4th Cir. 1956), and it too involves a North Carolina plaintiff trying to sue an out-of-state defendant. One of the plaintiff's representatives went to the defendant in New York and purchased goods to be shipped to North Carolina. This single transaction was the defendant's only contact with North Carolina, and when the plaintiff brought suit because some of the goods were defective, the case was dismissed because the defendant was not doing business and was not present in North Carolina. In affirming the district court, the Fourth Circuit Court of Appeals held that a single interstate shipment was not sufficient contact to sustain jurisdiction.
The Erlanger Mills decision has been criticized for its apparent reliance on the more conventional test of doing business in the forum state than the minimum contacts of the defendant with the state, Williams v. Connolly, 227 F.Supp. 539, 547 (D.Minn.1964), Wisconsin Metal & Chemical Corp. v. DeZurik Corp., 222 F.Supp. 119, 123 (E.D.Wis.1963), but even so, the factual situation of the instant case is different from that in Erlanger Mills. In Erlanger Mills the plaintiff approached the defendant at the defendant's place of business, consummated the sale there, and the goods were shipped f. o. b. New York, but in the instant case, the defendant contacted the plaintiff by telephone at the plaintiff's place of business in North Carolina and over a period of five months conducted extensive communications with the plaintiff. There was not just one interstate shipment, but a total of six purchase orders from the defendant, and the lumber was sent f. o. b. North Carolina *1225 or other place of shipment. These facts would seem to raise the defendant's activity above the single interstate shipment that occurred in Erlanger Mills.
The case of Chassis-Trak, Inc. v. Federated Purchaser, Inc., 179 F.Supp. 780 (D.N.J.1960) is much closer to the fact situation of the instant case. In this case an Indiana plaintiff was awarded a judgment in the Indiana state court against a New Jersey defendant as a result of the defendant's ordering a shipment of goods from the plaintiff and not paying for them. The Indiana judgment was taken to New Jersey but the federal district court for New Jersey declared the Indiana judgment void for lack of jurisdiction. The district court relied heavily on the Erlanger Mills case and in fact the court stated that it "feels bound to adopt the limitation of the International Shoe doctrine expressed in the Erlanger Mills case" and the court then quoted the Erlanger Mills decision concerning the single interstate shipment.
This Court is of course not bound by the Chassis-Trak decision and would not be bound anyway since its reliance on Erlanger Mills is an indication that it is distinguishable from the instant case. There was just the one interstate shipment which resulted from a single telephone call from the New Jersey defendant and the follow-up purchase order. The affidavit of Harold V. McCoy states that after "numerous telephone calls" he received the defendant's first order. There was a total of six purchase orders which distinguished the instant case from the cases involving a single interstate shipment.
One final feature that distinguishes the Erlanger Mills case and the Chassis-Trak case from the instant case is the amount of money involved in this dispute. As is stated in Erlanger Mills, the bounds of due process cannot be staked out by the amount of the controversy, but in some circumstances the amount may be pertinent. The sum involved in Erlanger Mills was $17,000.00, and in Chassis-Trak the Indiana judgment was for $11,592.15, but in the instant case, the plaintiff is trying to recover $130,976.08. This figure may not automatically establish the minimum contacts required by due process of law, but it graphically illustrates the size and dimension of the transaction that the defendant initiated with the plaintiff.
After a lengthy review of the leading United States Supreme Court cases dealing with the problem of what is minimum contact, Judge Blackmun (now Justice Blackmun) commented in Aftanase v. Economy Baler Company, 343 F. 2d 187 (8th Cir. 1965), that these cases establish only general principles and not precise guidelines, but he further stated:
"We observe, however, that, at one time or another in the opinions, three primary factors, namely, the quantity of the contacts, the nature and quality of the contacts, and the source and connection of the cause of action with those contacts, are stressed, and that two others, interest of the forum state and convenience, receive mention." 343 F.2d at 197.
Applying this criteria to the facts before this Court, it is noted that the plaintiff alleges through affidavit that over a five-month period the plaintiff received "perhaps 50 person-to-person calls" from Linus J. Niedermeyer, a vice president of the defendant. From the affidavit of Thomas J. Niedermeyer, a vice president and corporate secretary of the defendant corporation, the Court is informed that the lumber was purchased "under six separate written orders." As already stated, the six different orders removes the case from the single shipment category of the Erlanger Mills case, but more important, the quantity of the contacts can hardly be considered insignificant or casual.
*1226 The Court also finds the element of quality present in the defendant's contact with North Carolina. The defendant places a great deal of importance on the fact that a substantial part of the lumber was supplied from sources other than North Carolina and that the lumber actually shipped from North Carolina amounted to only 38.9 per cent of the total order. The total order that the defendant placed with the plaintiff was 275,624 board feet of lumber at an invoice price of $159,546.68, and even though the portion actually shipped from North Carolina is only 38.9 per cent of the total order, the 38.9 per cent still amounts to 107,134 board feet at an invoice price of $34,818.56. If the Court ignored the rest of the contract and looked only at the amount shipped from North Carolina, it could hardly be called insubstantial in either amount or cost.
The source of this cause of action stems from the defendant's alleged refusal to pay the balance owing on the lumber shipments. The defendant voluntarily, it is contended, sought out the plaintiff, negotiated the sale, and placed orders with the plaintiff. Again, this type of action is different from the unilateral action of the plaintiff in Erlanger Mills where the plaintiff went to New York and sought out the defendant.
And finally, North Carolina has an interest in providing a forum for its residents to try to collect alleged obligations owing to them. This interest would seem to be as compelling as any interest Oregon has in litigating the issues. The question of convenience seems to be equally divided; the defendant claims to have witnesses in Oregon who will be needed to testify as to the condition of the shipments, but the plaintiff likewise contends that it has witnesses in North Carolina, Ohio, Pennsylvania and New York who will be called to testify.
The Court concludes that the facts of this case meet the criteria set forth in the Aftanase case and further, the rule of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) is met. In Hanson the court stated:
"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." 357 U.S. at 253, 78 S.Ct. at 1239.
In the instant case there was no unilateral activity by the plaintiff; the defendant acted unilaterally in seeking out the plaintiff. The defendant's repeated calls and inquiries to the plaintiff and the six purchase orders sent to the plaintiff certainly constitute acts by which the defendant sought the privilege of conducting activities in North Carolina.
Therefore, the Court finds the service of process under N.C.G.S. 1-75.4(5)(a) and (d) was proper and that the defendant's activity in this State comes within the purview of that statute. The Court further finds that the statute's application in this factual situation is consistent with fair play and substantial justice and does not violate the defendant's due process rights under the Fourteenth Amendment.
Accordingly, an order will be entered.
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963 P.2d 552 (1998)
125 N.M. 475
1998-NMCA-092.
Ronald Dale MADSEN and Terrisa Ruth Madsen, individually and as Personal Representatives of the Estate of Jason Madsen, Deceased, Plaintiffs-Appellants,
v.
Shawn D. SCOTT, Defendant-Appellee.
No. 17211.
Court of Appeals of New Mexico.
May 13, 1998.
Certiorari Granted July 7, 1998.
*553 Steven L. Tucker, Tucker Law Firm, P.C., Santa Fe, for Plaintiffs-Appellants.
Robin E. Sabin, Victoria Davis Armstrong, Atwood, Malone, Turner & Sabin, P.A., Roswell, for Defendant-Appellee.
OPINION
PICKARD, Judge.
{1} This case requires us to consider under what circumstances a housesitting arrangement will create an employer-employee relationship such that a homeowner may be held vicariously liable for the negligent acts of the housesitter. As a related issue, we consider whether an employee's failure to act can be an omission occurring within the scope of employment.
{2} Plaintiffs brought suit seeking damages for the injury and wrongful death of their son, Jason Madsen, as the result of a shooting at Shawn Scott's home. The trial court entered summary judgment on Scott's motion, finding that Scott's housesitting arrangement with two brothers did not create an agency relationship such that Scott could be held vicariously liable for their negligence. On appeal, Plaintiffs present two issues: (1) whether the housesitting arrangement in this case could create an employer-employee relationship; and (2) whether Scott's instruction to his housesitter not to let anyone touch his guns, and the housesitter's failure to carry out that instruction, could constitute negligence for failure to act. We answer both questions in the affirmative and reverse.
FACTS
{3} In January 1992, Shawn Scott (Homeowner) planned to take an out-of-town trip. Homeowner engaged Melvin Franklin *554 (Melvin) to take care of his home. Homeowner and Melvin were good friends and worked together at a doughnut shop. Prior to leaving on his trip, Homeowner took Melvin to his home and instructed him to stay at the house, water the plants, not to have any wild parties, and not to let anyone, other than Melvin, touch his guns. Both Homeowner and Melvin had an interest in guns. Homeowner collected guns as a hobby and would take them shooting. Melvin also owned guns and would use them for hunting and shooting. At the time Homeowner was out of town, he left behind five rifles in an unlocked gun case. On top of the gun case was a .22 pistol. However, the guns were unloaded and no ammunition was left in the house. Homeowner told Melvin that if he wanted to take the guns out shooting he would have to bring his own ammunition.
{4} A few days after Homeowner left, he called to check on his house. Melvin's deposition equivocated as to whether Homeowner asked Melvin if anyone was touching his guns. Melvin testified that Homeowner "may" have asked such a question. When asked, "What did [Homeowner] say," Melvin responded, "He just wanted to know if the guns." Melvin then rephrased the answer to, "he probably would have just asked" if anyone touched the guns. At the time of that conversation, Melvin asked Homeowner whether Melvin's brother Richard Franklin (Richard) could also stay at the house. Homeowner gave his permission for Richard to stay at his home. Homeowner knew Richard, as he worked at the doughnut shop with Homeowner and Melvin. Homeowner also knew that Richard had an interest in guns. Richard had previously sold a gun to Homeowner and on one occasion, Richard had taken a gun he had purchased to the doughnut shop to show Homeowner.
{5} On January 26, 1992, while the brothers were staying at the house, they invited Jason Madsen (Jason) and two female friends over to watch the Super Bowl. Prior to the party, Richard and Jason had gone shooting with Richard's gun. During the party, Richard and Jason continued to play with guns, and guns were at various locations in the living room. Richard left his .38 pistol on the TV, and Homeowner's Daisy Pistol was on the coffee table along with ammunition. Richard also took Homeowner's .22 from the gun rack in the living room.
{6} During the time that Richard and Jason were playing with the guns, Melvin was also in the living room. Richard was sitting on a sofa a few feet from where Melvin was lying with his head resting on the sofa, watching TV. During the Super Bowl game, Richard and Jason decided to play "quick draw." Jason had Homeowner's gun and Richard had his own gun. Jason told Richard that he wanted to draw first. Jason reached for his gun, and then Richard drew his gun and pulled the trigger, the gun fired, and Jason was shot and killed.
{7} Jason's parents brought this suit against Richard, who fired the fatal shot, and Homeowner. Melvin, the person responsible for housesitting, was not sued. Plaintiffs' complaint alleged that Richard was negligent and that Homeowner was also negligent for his acts and omissions, particularly in leaving the guns unsecured. Plaintiffs also filed an amended complaint stating that: (1) Richard and Melvin were the employees/agents of Homeowner, (2) Melvin was negligent in failing to control and supervise the use and misuse of Homeowner's weapons, and (3) Homeowner was vicariously liable for the negligence of Melvin and Richard. Homeowner answered the complaint and moved for summary judgment on the basis that under these circumstances, he owed no duty to Jason because he could not have reasonably anticipated the shooting. The trial court granted Plaintiffs' motion to amend the complaint and granted Homeowner's motion for summary judgment. In its ruling, the trial court stated that "a[ ] principal agent relationship did not exist between Shawn Scott and Melvin Franklin with respect to any of the circumstances contributing to the death of Jason Madsen."
STANDARD OF REVIEW
{8} An award of summary judgment will be upheld if no genuine issues of material fact exist or the moving party is entitled to judgment as a matter of law. See Sarracino v. Martinez, 117 N.M. 193, 194, 870 P.2d 155, 156 (Ct.App.1994). We consider the facts *555 relating to each of the issues raised on appeal in the light most "favorable to support a trial on the issues because the purpose of summary judgment is not to preclude a trial on the merits if a triable issue of fact exists." Ruiz v. Garcia, 115 N.M. 269, 271, 850 P.2d 972, 974 (1993). In reviewing the grant of summary judgment, "we take note of any evidence in the record which puts a material fact in issue." Gillin v. Carrows Restaurants, Inc., 118 N.M. 120, 122, 879 P.2d 121, 123 (Ct.App.1994).
DISCUSSIONRESPONDEAT SUPERIOR
{9} The principal question before us is whether the trial court erred as a matter of law when it granted summary judgment. The trial court granted the motion for summary judgment based upon its determination that Homeowner owed no duty to Jason because Homeowner did not have an employer-employee relationship with Melvin or Richard. Because the trial court determined that there was an absence of any relationship which would create a duty in Homeowner toward Jason, our first inquiry focuses upon the correctness of this conclusion.
{10} Homeowner contends that the housesitting arrangement with Melvin did not create an employer-employee relationship. Plaintiffs argue that an employer-employee relationship was created or, alternatively, that there are genuine material facts in dispute that would preclude summary judgment.
{11} If one or both of the brothers was an employee of Homeowner then, under the doctrine of respondeat superior, Homeowner may be held liable for the tortious acts of his employees which are done in the scope of their employment. See Reynolds v. Swigert, 102 N.M. 504, 507-08, 697 P.2d 504, 507-08 (Ct.App.1984); see also Romero v. Mervyn's, 109 N.M. 249, 254, 784 P.2d 992, 997 (1989) (respondeat superior applies "when the claim is based in tort and the plaintiff alleges the employer is liable for the conduct of an employee because the employee was acting within the scope of employment.")
A. Right of Control
{12} In determining whether an employer-employee relationship exists, the employer must have someone perform work or a service and must have the "right to control the manner in which the details of the work are to be done, even though the right of control may not be exercised." UJI 13-403 NMRA 1998; see also Restatement (Second) of Agency § 220(1) (1958) ("A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control."). The fact that an employee does not receive any wages is not controlling. See California First Bank v. State, 111 N.M. 64, 70, 801 P.2d 646, 652 (1990) (an employer-employee relationship may be gratuitous); Restatement, supra § 225 cmt. a ("Consideration is not necessary to create the relation of ... master and servant.").
{13} It is undisputed that Homeowner engaged Melvin to housesit. Homeowner asked Melvin to keep an eye on the house, to water the plants, and not to let anyone touch Homeowner's guns. Thus, Melvin was performing a service for Homeowner.
{14} However, the issue in contention is whether Homeowner had the right to control the manner in which the details of the work were to be performed. Homeowner contends that he did not have the right to control the manner in which the housesitting arrangement was carried out. Homeowner argues that the instructions he gave to Melvin to watch the house, to water the plants, and not to let anyone touch the guns were not specific or detailed enough to provide him with the right to control Melvin's performance of those duties. In support of his argument, Homeowner refers our attention to the Hawaii case of Lai v. St. Peter, 10 Haw.App. 298, 869 P.2d 1352 (1994).
{15} In Lai, the court considered whether a housesitting arrangement created an employer-employee relationship so as to hold the homeowner liable for the tortious acts of his housesitter. Id. 869 P.2d at 1357. The Lai court distinguished between the right to direct the manner in which the details of the *556 work are to be performed and rules which govern the general conduct of a person while on the property of another. Id. at 1357-58. The court held that a list containing general information about the operation of the house and requests was not sufficient to provide the homeowner control over the housesitter and thus create an employer-employee relationship. Id. at 1358.
{16} Lai is distinguishable from the present case. Most importantly, the facts are very different. Lai involved an arrangement in which the housesitter flew to Hawaii, paying her own expenses, for a vacation. Id. at 1357. The homeowner was going to be out of town during that period and allowed the housesitter to stay in his home. Id. at 1356. Moreover, the list of directions that the homeowner left did not appear to require the housesitter to do anything affirmatively for the homeowner other than water the plants. Id. at 1358. Rather, the list contained information regarding the daily operation of the home and other general information such as phone numbers. Id. As to the homeowner's request that the housesitter not wear shoes in the house, lie on the couch with wet or sweaty bodies, or leave valuables in the car, these requests were only to govern the conduct of the housesitter while she stayed in the home, were not related to any duty she was performing, and were not related to any negligence. Id.
{17} Additionally, Lai is also distinguishable because it appears to have been decided, in part, on the fact that the injury to the plaintiff caused by the housesitter occurred outside the "scope of employment." Id. The housesitter was driving the homeowner's car for her own personal use and not for any purpose related to the housesitting arrangement. Id. For reasons to be explained below, a factual issue is raised in this case whether Melvin was acting within or outside the scope of his employment.
{18} Nonetheless, Homeowner contends that his case is similar to Lai in that his instruction to Melvin regarding the guns was only to govern Melvin's conduct. We disagree. In this case, the instruction to Melvin not to let anyone touch Homeowner's guns appears to be part of the duties Melvin was to perform and not an instruction to govern Melvin's conduct. This is so particularly when Homeowner's intent for giving this instruction was for the safekeeping of his gunshis "prized possessions." Moreover, a factfinder could find that when Homeowner called Melvin to check up on things, he inquired whether anyone had been touching his guns. Thus, considering the facts in the light most favorable to a trial on the merits, an issue of whether Melvin's duties included supervising the use or misuse of Homeowner's guns is raised.
{19} To be sure, Homeowner's instructions to Melvin concerning the housesitting arrangement were not very specific or detailed. However, we do not agree with Homeowner's argument that the specificity of the instructions given is the sole factor to be considered in determining whether an employer-employee relationship was created. Other factors must be considered in determining whether a housesitting arrangement created an employer-employee relationship. As Prosser explains:
The traditional definition of a servant is that he is a person employed to perform services in the affairs of another, whose physical conduct in the performance of the service is controlled, or is subject to a right of control, by the other.
This is, however, a great over-simplification of a complex matter. In determining the existence of "control" or the right to it, many factors are to be taken into account and balanced against one anotherthe extent to which, by agreement, the employer may determine the details of the work; the kind of occupation and the customs of the community as to whether the work usually is supervised by the employer; whether the one employed is engaged in a distinct business or occupation, and the skill required of him; who supplies the place and instrumentalities of the work; the length of time the employment is to last; the method of payment, and many others.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70 (5th ed.1984) (footnote omitted).
*557 {20} Our case law recognizes a similar proposition. As the Court in McCauley v. Ray acknowledged:
"Although control or right to control the physical conduct of the person giving service is important and in many situations is determinative, the control or right to control needed to establish the relation of master and servant may be very attenuated. In some types of cases which involve persons customarily considered as servants, there may even be an understanding that the employer shall not exercise control. Thus, the full-time cook is regarded as a servant although it is understood that the employer will exercise no control over the cooking."
McCauley v. Ray, 80 N.M. 171, 180, 453 P.2d 192, 201 (1968) (quoting Restatement, supra § 220 cmt. (d)(1)).
{21} The customs related to the supervision of the type of work being performed must be considered. A housesitting arrangement assumes that the homeowner will be gone and will not be present to supervise the details of the arrangement. Moreover, the homeowner supplies the instrumentalities of the workthe home. This is the object of the relationshipto safekeep the homeand is also the place where the work is to be carried out. Additionally, as noted previously, whether compensation is paid is not determinative; an employer-employee relationship may still be found even where no compensation is paid. See California First Bank, 111 N.M. at 70, 801 P.2d at 652.
{22} Finally, our case law has previously recognized a situation where a housesitting arrangement created an employer-employee relationship. See State Farm Fire & Cas. Co. v. Miller Metal Co., 83 N.M. 516, 519-20, 494 P.2d 178, 181-82 (Ct.App.1971). Home-owner attempts to distinguish this case by arguing that the homeowner in State Farm Fire & Casualty Co. left very detailed instructions to the housesitter regarding a furnace. Id. at 519, 494 P.2d at 181. It was in failing to pay attention to those details that the injury in State Farm Fire & Casualty Co. was precipitated. Homeowner's attempt to distinguish State Farm Fire & Casualty Co. is unpersuasive. Just as the injury in State Farm Fire & Casualty Co. was precipitated by the housesitter's failure to follow the involved instructions regarding the furnace, the injury in this case may be viewed as precipitated by the housesitter's failure to follow the less involved, but nonetheless specific, instruction not to let anyone touch the guns. Thus, it may be said that a master-servant relationship exists with "respect to the very thing from which the injury arose," see Benham v. All Seasons Child Care, Inc., 101 N.M. 636, 638, 686 P.2d 978, 980 (Ct.App.1984), making this case more like State Farm Fire & Cas. Co. and less like Lai.
{23} Further, as we have just discussed, many factors are to be taken into account in determining the right to control, not just the specificity of the instructions given to the purported employee. Thus, we hold that the trial court erred in granting summary judgment on the basis that Homeowner did not have a right to control Melvin.
B. Scope of Employment
{24} Under the doctrine of respondeat superior, an employer is liable for an employee's negligent act only if the employee was acting within the scope of employment. See UJI 13-406 NMRA 1998; Richardson v. Glass, 114 N.M. 119, 122, 835 P.2d 835, 838 (1992); Benham, 101 N.M. at 638, 686 P.2d at 980. Therefore, assuming an employment relationship did exist in this case, the question now becomes whether the brothers were acting within the scope of their employment at the time of the accident.
{25} Homeowner argues that the brothers were furthering their own interests and engaging in horseplay at the time of the accident. See UJI 13-407 NMRA 1998 (defining scope of employment); Rivera v. New Mexico Highway & Transp. Dep't, 115 N.M. 562, 564, 855 P.2d 136, 138 (Ct.App.1993) (stating that the general rule is that an employer is not responsible for an employee's acts of horseplay because such acts are for the employee's personal amusement and not in furtherance of the employer's interests); Valdez v. Warner, 106 N.M. 305, 306, 742 P.2d 517, 518 (Ct.App.1987) (employee furthering his own interests is not acting within the scope of employment); Benham, 101 *558 N.M. at 638, 686 P.2d at 980 (stating that for an employee's act to be within the scope of employment it must have been done with the intent to perform a service for the employer). Specifically, Homeowner contends that the brothers, by inviting guests over for a Super Bowl party, and by playing with a loaded gun brought onto the premises by Richard, had departed from their employment and Homeowner cannot be held liable for their actions. Accordingly, Homeowner argues, no reasonable trier of fact could conclude that Melvin or Richard were acting within the scope of their employment at the time of the accident. See Rivera, 115 N.M. at 564, 855 P.2d at 138 (stating that "when no reasonable trier of fact could conclude that an employee is acting in the course and scope of employment, summary judgment is properly granted").
{26} Plaintiffs do not dispute that Richard may have been engaging in horseplay at the time of the accident. Rather, Plaintiffs focus upon the actions of Melvin. Plaintiffs contend that at the time of the accident, Melvin was not participating in any horseplay but instead simply neglected to perform the specific duties given to him by Homeowner not to have wild parties and not to let anyone touch his guns. Plaintiffs explain that an employee's failure to act, where the employer has a duty to the person injured, renders the omission one occurring within the scope of the employment. The Restatement (Second) of Agency provides the rule in such cases.
§ 232. Failure to Act
The failure of a servant to act may be conduct within the scope of employment.
Comment:
a. Necessity of duty of action by servant. In order that the failure of a servant to act can constitute conduct within the scope of employment, for which the master is responsible, the servant must have duties to perform at the time and the master must owe to the person injured a duty that the servant should act.
Illustrations:
1. P employs A as a watchman from 8 P.M. to 6 A.M. to guard against fires and burglaries. During this period A discovers a fire on the premises which endangers the adjoining house of T, but neglectfully fails either to put it out or give the alarm. The fire spreads to T's house. A's conduct is within the scope of employment.
Restatement, supra § 232 cmt. a & illus. 1.
{27} The Restatement applies when the employer owes a duty to the injured person. Homeowner argues that he did not owe a duty to Jason. Homeowner contends that he did not know the brothers would invite underage guests to his house. This argument is unpersuasive. Homeowner expressly gave the brothers permission to invite guests over with one limitationno wild parties. While the brothers invited only three guests and there were no drugs or alcohol, we do not believe it would be unreasonable for a factfinder to find that a party in which loaded guns are being casually played with is "wild."
{28} When an employee has the authority to invite a guest onto the employer's premises, then "a person so invited is a guest of the [employer]" and the employer owes a duty to the guest as an invitee. Restatement, supra § 242 cmt. b. The duty of a landowner to an invitee is a duty of ordinary care to keep the premises safe for the visitor. See Ford v. Board of County Comm'rs, 118 N.M. 134, 139, 879 P.2d 766, 771 (1994). Plaintiffs argue that Melvin failed to abide by the duty of ordinary care that he owed to Jason and Homeowner may be held vicariously liable for this failure. This situation is similar to Restatement, supra Section 232 Illustration 1 quoted above in which the employee, who had a duty to report the fire to the neighbor, failed to respond and this conduct was within the scope of employment. In this case, Melvin had a duty to prevent Richard and Jason from misusing the guns and his failure to do so, as in the example above, renders this an omission occurring within the scope of employment.
{29} Furthermore, the fact that Melvin was watching TV at the time and ignoring the conduct of his guests does not place his conduct outside the scope of his employment. As the Restatement (Second) of Agency Section 232 provides:
*559 c.Where servant acts for his own purposes. Unless there is a non-delegable duty, the master is not responsible if the servant's failure to perform is due to the fact that at the time the servant has departed from his employment. See § 235. As in other situations, it is a question of degree whether or not the servant has departed from the employment. The mere fact that at the time he is doing something for his own purposes so that he neglects to act for the master is not sufficient to prevent responsibility of the master for his failure to act.
Illustration:
5. P employs A to drive his team. A leaves the team, properly hitched, by the roadside while he enters a tavern for the forbidden purpose of obtaining a drink. While in the tavern, he sees that the horses have become unhitched and are about to run away. He refrains from acting in order to finish his drink. A's conduct is negligent and within the scope of employment.
Restatement, supra § 232 cmt. c & illus. 5 (emphasis added).
{30} Nonetheless, Homeowner attempts to distinguish this illustration by noting that the instrumentalities that would cause harm, the horses, were the very thing that the servant was responsible for. In this case, Homeowner argues, the injury did not arise from the use of his gun. Rather, the injury occurred because Richard brought his own gun and his own ammunition onto the premises and then played a game of quick draw with Jason.
{31} Homeowner further argues that there was nothing inherently unsafe about the premises. The guns which he left in Melvin's care were unloaded and there was no ammunition in the house. Homeowner contends that the presence of guns alone is not sufficient to make a landowner liable for an injury occurring on the premises absent some knowledge that a person is reckless in the handling of guns. See Lopez v. Chewiwie, 51 N.M. 421, 424, 186 P.2d 512, 513 (1947). Homeowner explains that he could not have anticipated that anything like this would happen.
{32} However, Homeowner's arguments raise more questions than they answer and illustrate why this case is an inappropriate one to dispose of by summary judgment. Many factual questions are raised by the circumstances of this case, chief among them what Homeowner and Melvin knew regarding Richard's conduct with guns. Both Melvin and Homeowner knew that Richard had a great interest in guns. As Melvin stated, "part of being Richard's friend is [going] shooting." Melvin also knew that guns and ammunition were lying around the house, but took no action because it is normal for the brothers to have guns lying about, and it is normal for ammunition to be out when Richard is doing his "tricks."
{33} Homeowner's position also raises questions about what Melvin knew or should have known in regard to his brother's conduct leading up to the shooting. Melvin knew there were guns in the house. Also, one of Homeowner's guns was on the coffee table in the living room where Melvin was watching TV. Another gun was on top of the television that Melvin was watching. Ammunition was on the coffee table close to where Melvin was lying. Richard and Jason were also in the same room as Melvin when they began to play quick draw. Melvin claims that he did not know that the brothers were playing quick draw. However, the testimony shows that at the time of the shooting, Melvin was lying against the same sofa that Richard was sitting ononly a few feet away from where the game of quick draw was being played with one of Homeowner's guns. A question is raised whether Melvin should have known of the game but did not stop it or did know yet continued to watch TV, both of which would be contrary to the explicit instructions and duties that he was given.
{34} There are also issues of material fact raised as to whether Homeowner could have foreseen that someone could be injured by a gun. Homeowner knew that both brothers liked guns. In fact, Richard had previously taken a gun over to the doughnut shop to show Homeowner. It is reasonable to infer that Homeowner knew or should have known that by giving permission *560 for Richard to stay at the house, he might bring along some of his own guns, some of which might be loaded. Moreover, although Homeowner did not leave any ammunition in the house for his guns, he told Melvin he could bring his own ammunition if he wanted to take the guns out shooting. Thus, it is also reasonable to infer that Homeowner knew or should have known that there would be loaded weapons in his home.
{35} Homeowner also expressly gave the brothers permission to have guests at the house. It is reasonable to infer that Homeowner knew that the brothers would have guests in his home while the brothers also had their firearms with them. Yet, Homeowner did not prohibit the brothers from bringing their own guns; nor did he prohibit Melvin from handling guns in front of the guests. Finally, Melvin could be viewed as negligently performing his duties of having no wild parties when he allowed a game of quick draw to be played with loaded guns in his presence during a party. Viewing these facts in the light most favorable to a trial on the merits, we hold that there are genuine issues of material fact precluding summary judgment in this case.
CONCLUSION
{36} Thus, because there are issues of material fact regarding whether an employer-employee relationship was created, whether Melvin was acting within the scope of his employment when he failed to act, and whether this type of accident was foreseeable by either Melvin or Homeowner, we reverse the trial court's order granting summary judgment.
{37} IT IS SO ORDERED.
WECHSLER, J., concurs.
ALARID, J., dissents.
ALARID, Judge, dissenting.
{38} Plaintiffs appeal entry of summary judgment in an action for wrongful death. Plaintiffs filed suit against both Richard, who fired the gun killing their son, and the owner of the home where the incident occurred. The trial court entered summary judgment upon Homeowner's motion, finding as a matter of law that an agency relationship between Homeowner and Melvin did not exist. I agree. Also, I would affirm on the grounds that the incident was not foreseeable and therefore, we cannot impose liability on Homeowner as a matter of law. Homeowner had no reason to anticipate that adults would be playing quick draw. Furthermore, he was not aware that the decedent was in his home. Richard shot Jason with his own gun. Additionally, the actions leading to the accident were horseplay which also precludes liability. See Rivera v. New Mexico Highway & Transp., Dept., 115 N.M. 562, 563-64, 855 P.2d 136, 137-38 (1993).
DISCUSSION
{39} Plaintiffs argue that summary judgment was improper. Summary judgment is proper when there are no genuine issues of material fact in question and the moving party is entitled to judgment as a matter of law. Monett v. Dona Ana Sheriff's Posse, 114 N.M. 452, 454, 840 P.2d 599, 601 (Ct.App.1992). Summary judgment is only proper when the facts before the court are not in dispute or are sufficiently developed to require no further factual resolution for determination of the central legal issues. National Excess Ins. Co. v. Bingham, 106 N.M. 325, 328, 742 P.2d 537, 540 (Ct.App.1987). Once the movant has made a prima facie showing that he is entitled to summary judgment, "the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 (1992).
{40} The trial court found that the agency relationship necessary to impose liability upon Homeowner did not exist. The trial court granted summary judgment because the actions leading to the accident could not be construed to fall within the scope of employment. Therefore, the trial court could not impute liability to Homeowner.
{41} When no reasonable trier of fact could conclude that an employee is acting in the course and scope of employment, summary judgment is proper. Rivera, 115 N.M. at 564, 855 P.2d at 138. Here, there are no *561 material facts in dispute, and in fact Plaintiffs have conceded this point.
A. Foreseeability
{42} In New Mexico foreseeability of an injury or harm is an element of negligence. Martin v. Board. of Ed. of the City of Albuquerque, 79 N.M. 636, 638, 447 P.2d 516, 518 (1968); Kelly v.. Montoya, 81 N.M. 591, 593, 470 P.2d 563, 565 (Ct.App.1970). Negligence includes "`the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.'" Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990) (quoting Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983)); see also UJI 13-1601 NMRA 1998. This Court may decide the question of negligence and proximate cause if there are no facts presented to allow a reasonable jury to find proximate cause. Calkins, 110 N.M. at 65 n. 6, 792 P.2d at 42 n. 6 (citing Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963)); see also, Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 101 (1928).
Black's Law Dictionary defines foreseeability as:
[t]he ability to see or know in advance; e.g. the reasonable anticipation that harm or injury is a likely result from certain acts or omissions. In tort law, the "foreseeability" element of proximate cause is established by proof that actor, as person of ordinary intelligence and prudence, should reasonably have anticipated danger to others created by his negligent act. That which is objectively reasonable to expect, not merely what might conceivably occur.
Black's Law Dictionary 449 (6th ed.1990). In Saiz v. Belen School Dist., 113 N.M. 387, 402, 827 P.2d 102, 117 (1992), the New Mexico Supreme Court defined foreseeability. Foreseeability is an "act or failure to act [that] will result in an unreasonable risk of injury." Id. Foreseeability, however, is limited to "`that which is objectively reasonable to expect, not merely what might conceivably occur.'" Van De Valde v. Volvo of America Corp., 106 N.M. 457, 459, 744 P.2d 930, 931 (Ct.App.1987) (quoting Mata v. Clark Equip. Co., 58 Ill.App.3d 418, 15 Ill.Dec. 980, 374 N.E.2d 763, 766 (1978)).
{43} Homeowner should not be held liable for an injury caused to a third person, Jason, by his house-sitter's brother, Richard, and by his house-sitter's brother's gun and ammunition. Homeowner did not authorize or encourage Richard to bring his gun into the house; bringing the gun into the house was of no benefit to Homeowner. Homeowner had no knowledge of the propensity Richard and Jason had for playing quick draw.
{44} A reasonably prudent person could not have foreseen that Melvin's failure to care for Homeowner's guns would have caused Jason such an injury. A reasonable person would not anticipate that someone would bring guns into his home. Even more so, a reasonable person would not anticipate that Richard's loaded gun would be used to play a fatal game of quick draw involving Homeowner's unloaded weapon. The guns, the ammunition, and the game of quick draw were intervening causes that Homeowner could not foresee. To expect Homeowner to have anticipated this would be to require every homeowner to anticipate total disaster each and every time they left their home in the care of a house-sitter.
B. Agency Principles and Respondeat Superior
{45} Even if this accident had been foreseeable, no agency relationship was present in this case. Plaintiffs argue that a principal-agent relationship existed between Melvin, Richard, and Homeowner and that Melvin and Richard were subject to Homeowner's control at the time of the accident. In the alternative, Plaintiffs argue that there are genuine material facts in dispute that would preclude summary judgment. I first address the agency relationship in general. An agency relationship is a mutual agreement between two parties by which one party, the agent, undertakes to act on behalf of another person or entity, the principal, subject to the principal's control. Daniel S. Kleinberger, Agency and Partnership §§ 1.1, 3.2 (1995). A subset of an agency relationship is respondeat superior to the employer-employee relationship. Restatement (Second) of Agency § 2 cmt. a (1993). An employer-employee *562 relationship exists where an individual, the employer, employs the services of another, the employee, to perform services for him or her. The employee may or may not be paid a salary or wages. See Lai v. St. Peter, 10 Haw.App. 298, 869 P.2d 1352, 1357 (1994) (defining employee as "one who works for a salary or wages under directions.") (citation omitted); but see California First Bank v. State, 111 N.M. 64, 70, 801 P.2d 646, 652 (1990) (stating that an employer-employee relationship may be gratuitous). The employer retains control or the right to control the physical conduct of the other in performance of the service. See Gallegos v.. Citizens Ins. Agency, 108 N.M. 722, 729, 779 P.2d 99, 106 (1989); Restatement (Second) of Agency § 220; Black's Law Dictionary 363 (6th ed.1990) (defining employee). Both the principles of agency and respondeat superior may impose liability on a principal or employer for the acts of an agent or employee.
{46} The general rule is that an employer is liable for the torts of an employee committed while the employee is acting within the scope of employment. W. Edward Sell, Sell on Agency, 84 (1975) [hereinafter Sell]. To have an employer-employee relationship, the employer must have the right of control and the actions of the employee must have been within the scope of employment. McCauley v. Ray, 80 N.M. 171, 180-81, 453 P.2d 192, 201-02 (1968); Romero v. Shelton, 70 N.M. 425, 428-29, 374 P.2d 301, 303-04 (1962) overruled on other grounds by Archuleta v. Pina, 86 N.M. 94, 519 P.2d 1175 (1974); Sell, supra at 86, 88.
1. Right of Control
{47} To determine whether the employer has the right to control the details of the employee's work, we are to consider direct evidence of the employer's power to control the manner and means of the employee's performance, the method of payment of compensation, whether the employer furnishes equipment for the employee, and whether the employer has the power to terminate the employee at will. Houghland v. Grant, 119 N.M. 422, 425, 891 P.2d 563, 566 (Ct.App. 1995).The right of control is not just dictating the results to be obtained but it is also directing "the manner in which the details of the work are to be accomplished." Triple B. Corp. v. Brown & Root, Inc., 106 N.M. 99, 101, 739 P.2d 968, 971 (1987). Additionally, if rules are made to govern the general conduct of a person while on the property of another, conformity to those rules does not establish that the people involved are employees of the person making those rules. Lai, 869 P.2d at 1358 (citing Manchester Avenue Co. v. Stewart, 50 Cal.2d 307, 313-14, 325 P.2d 457, 461 (1958) (citing Restatement (Second) of Agency § 220 cmt. h (1933)).
{48} In Lai, the court determined whether a homeowner's directions to a house-sitter exerted enough control over the house-sitter to establish an employment relationship. The house-sitter's list of duties included directions regarding the
daily operation of [homeowners] home, such as yard service, bug extermination service, sprinkler system, home appliances, swimming pool care, trash pickup, location of keys, and watering the plants.... Furthermore, the list requested that [house-sitter] not wear shoes in the house, sit on the furniture with wet or damp clothes or sweaty bodies, or leave valuables in the car when visiting the beach or other tourist shops.
Lai, 869 P.2d at 1358. The court determined that this list of duties was not sufficient for the homeowner to retain control over the house-sitter and therefore, an employer-employee relationship did not exist between the homeowner and house-sitter. Id.
2. Scope of Employment
{49} To be within the scope of employment means that employee's actions must be done with the intent to "perform a service for the employer." Benham v. All Seasons Child Care, Inc., 101 N.M. 636, 638, 686 P.2d 978, 980 (Ct.App.1984). An act of employment is within the scope of employment if:
1. It was something fairly and naturally incidental to the employer's business assigned to the employee, and
2. It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some *563 external, independent and personal motive on the part of the employee.
UJI 13-407 NMRA 1998; see also Miera v. George, 55 N.M. 535, 540, 237 P.2d 102, 105 (1951); Gonzales v. Southwest Security and Protection Agency, Inc., 100 N.M. 54, 55, 665 P.2d 810, 811 (Ct.App.1983); Narney v. Daniels, 115 N.M. 41, 49, 846 P.2d 347, 355 (Ct.App.1992). Injuries that result from an employee engaging in horseplay are usually not considered within the scope of employment. Rivera, 115 N.M. at 563-64, 855 P.2d at 137-38. In Rivera, this Court held a spontaneous water fight between two road crew laborers was not within the scope of employment and affirmed the trial court's grant of summary judgment. Id. at 566, 855 P.2d at 140. In Rivera, it was noted that:
"The general rule is that an employer is not liable to a customer, patron or other person for an assault arising out of acts of mischief or horseplay indulged in by the employee unless it is shown that the employer was or should have been so aware of the propensities of the employee in that direction as to make him negligent for having retained him in the employ since such acts are not to be considered incidental to the work which he is hired to perform but are of a personal nature, indulged in for the personal amusement of the employee and not in furtherance of the master's interest."
Id. at 564, 855 P.2d at 138 (quoting Lane v. Modern Music, Inc., 244 S.C. 299, 136 S.E.2d 713, 717 (1964)). The Court also noted that there are no common law tort cases where an employer was liable when the horseplay was not in some way connected to the employment. Id. at 565, 855 P.2d at 139. Finding that the actions of the employee in Rivera were horseplay and not within the scope of employment, the Court affirmed the trial court's award of summary judgment for the employer.
{50} This case does not involve an employer-employee relationship. Homeowner did not have the right of control over the manner in which Melvin performed his duties nor was the game of quick draw within the scope of employment. To show control, there must be direct evidence of the power to control the employee's performance, how the employee was compensated, whether the employee's equipment is furnished and if the employer can terminate the employee at will. Houghland, 119 N.M. at 425, 891 P.2d at 566. There is no such direct evidence here. Homeowner left only very general instructions for Melvin. There were no guidelines or steps for Melvin to follow. Additionally, there is no evidence that Homeowner paid Melvin or that Homeowner furnished any kind of equipment for him. Homeowner did not direct the manner in which Melvin would accomplish the detail of his work. See Triple B Corp., 106 N.M. at 102, 739 P.2d at 972.
{51} We can analogize this situation to the Lai case. The homeowner's instructions for house sitting in Lai were much more detailed than those given by Homeowner. The homeowner, in Lai, requested that the house sitter refrain from doing many things, such as not wearing shoes in the house or leaving valuables in the car. Homeowner, likewise asked Melvin to refrain from doing certain things but the instructions were not as exhaustive as those in Lai. Even with the detailed instructions in Lai the court did not find that the homeowner retained control sufficient to establish an employer-employee relationship. Likewise, here, Homeowner did not retain sufficient control over Melvin to establish an employer-employee relationship.
{52} Plaintiffs rely on the proposition that a homeowner who turns over the safekeeping of his home to another creates an employer-employee relationship and that the homeowner is liable for the acts of that person. State Farm Fire & Cas. Co. v. Miller Metal Co., 83 N.M. 516, 494 P.2d 178 (Ct. App.1971). In State Farm, the homeowners asked their daughter and son-in-law to watch their house while they were out-of-town. The homeowners called and asked their daughter and son-in-law to prepare their house for the winter, including turning off the air-conditioning and turning on the furnace. The homeowner gave very specific instructions regarding opening the dampers on the furnace, as homeowner knew that if they were not open it would be dangerous. State Farm, 83 N.M. at 518, 494 P.2d at 180. *564 The homeowner's home was subsequently damaged by a fire because the dampers were not open. The Court determined that in this instance the daughter and son-in-law were agents of the homeowner. Id. at 519, 494 P.2d at 181. The Court based this determination on the very specific and detailed instructions the homeowner gave to his daughter. Id.
{53} Here, Homeowner did not give detailed or specific instructions to the Franklins regarding his home. Homeowner merely told them not to have any wild parties and not to mess with his guns. There were no step-by step instructions left for Melvin and Richard regarding any aspect of caring for Homeowner's home. The instructions given by Homeowner did not create an employer-employee relationship.
{54} Plaintiffs also assert that this is a failure to act case. However, as discussed above, this is not a case involving an employer-employee relationship. The failure to act discussed in § 232 of the Restatement (Second) Agency applies to an employer-employee relationship. Plaintiffs assert that illustration 5 of the Restatement (Second) Agency § 232 is dispositive of this case. That illustration provides:
5. P employs A to drive his team. A leaves the team, properly hitched, by the roadside while he enters a tavern for the forbidden purpose of obtaining a drink. While in the tavern, he sees that the horses have become unhitched and are about to run away. He refrains from acting in order to finish his drink. A's conduct is negligent and within the scope of employment.
First, the Plaintiffs' argument presupposes that Melvin knew that this game of quick draw was occurring, that Richard's gun was loaded, and that, despite this knowledge, he continued to watch the Super Bowl. There is no evidence to support this supposition. Melvin stated that he had never seen the boys playing quick draw. In fact, Melvin never saw the game of quick draw nor the shooting occur. The Majority is inferring from where they believe Melvin was in the room, which is unclear, that he knew they were playing quick draw. The Majority misperceives the facts and from this draws an impermissible inference. Spectron Dev. v. American Hollow, 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (stating that " `[we] review the case litigated below, not the case that is fleshed out for the first time on appeal.'" (quoting In re T.B., 121 N.M. 465, 469, 913 P.2d 272, 276 (Ct.App.1996)); Butler v. Hoover Nature Trail, Inc., 530 N.W.2d 85, 88 (Iowa Ct.App.1994) (stating "[a]n inference based on speculation or conjecture does not generate a material factual dispute[.]").
{55} Second, in the Restatement illustration the instrumentalities that would cause any harm, the horses, are the exact thing for which the agent was responsible. There is a nexus between the negligence, allowing the horses to become unhitched, and the agent's employment, driving the horses. Here, such a nexus does not exist. Homeowner instructed Melvin not to let anyone touch his guns because they are his prized possessions, not out of fear of someone being shot in his home. Additionally, Homeowner did not absolutely forbid anyone from touching his guns. He gave Melvin permission to use them. The Majority argues that Homeowner was concerned about some kind of negligence occurring in his home and that this is evidenced by Homeowner calling to inquire about his guns. However, Melvin stated that he may have inquired about his guns and continually qualified his statements in this manner. Further, the instrumentality of the accident here was Richard's gun, not one of Homeowner's guns. Therefore, there is not a nexus between safeguarding Homeowner's guns and Jason being shot with Richard's gun.
{56} Even if I was to determine that there was an employer-employee relationship, the activities engaged in at the time of the accident were clearly outside the scope of employment. The specific activity of quick draw can only be characterized as horseplay. Horseplay is not within the scope of employment and is not in furtherance of the interest of an employer. Rivera, 115 N.M. at 563, 855 P.2d at 137.
*565 3. Agency
{57} Generally, a principal will not be liable for the unauthorized negligent or willful conduct of a non-employee agent even if such conduct causes harm to third parties. A non-employee agent is one who is not subject to the right of control of the principal as to the manner of performing the object of the agency. The principal will only be liable if he authorized the conduct of the agent. Restatement (Second) Agency § 250 (1993); Sell, supra at 95 (citing Southern Nat'l Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955)).
{58} The New Mexico Supreme Court has recognized a distinction between an employer-employee relationship and a principal-agent relationship. Romero, 70 N.M. at 428-29, 374 P.2d at 303-04; Jaramillo v. Thomas, 75 N.M. 612, 614-15, 409 P.2d 131, 132-33 (1965). All principals are not employers, nor are all agents employees. Romero, 70 N.M. at 428-29, 374 P.2d at 303. A non-employee agent's physical actions are not subject to the direct control of the principal. Id. at 429, 374 P.2d at 304. Only when the principal controls the details and manner of performance of the agent does the principal become liable for the physical conduct of the agent. Jaramillo, 75 N.M. at 614, 409 P.2d at 132-33.
{59} As discussed above, Homeowner did not retain control over Melvin. As such, Melvin's relationship to Homeowner can only be characterized as that of a non-employee agent. Therefore, I would not hold Homeowner liable for the unauthorized conduct of Melvin, a non-employee agent.
C. Policy
{60} Determining that an agency relationship exists and that liability can be imposed upon a homeowner under the circumstances of this case expands agency liability to include a ridiculous number of situations. For example, liability could be imposed on a homeowner who gave instructions to a house-sitter not to allow any one to play with the homeowner's dog and subsequently someone visits house-sitter and is bitten by the neighbor's dog. Or, liability could be imposed on a homeowner who gave instructions not to touch his fifty-year-old bottle of scotch and subsequently someone brings their own alcohol over, drinks it, gets alcohol poisoning and dies. There is simply no connection between the instructions in these scenarios and the instrumentality causing the harm. The same is true in this case. There is no connection between Homeowner instructing Melvin not to let anyone touch his guns and Jason being shot by Richard's gun.
{61} Additionally, imposing liability in a case as tenuous as this creates a standard of strict liability. Any time a homeowner leaves their home in the care of another, they are automatically liable for any accident on their property, foreseeable or not. This standard of strict liability sends a clear message to the insurance companies that they must revise homeowners' policies to encompass this new development. We should not send this message.
{62} This is not to say that individuals with meritorious claims do not deserve their day in court. Indeed, we have a solemn duty to uphold this premise. However, we also have an equally solemn duty to protect the rest of the public from unjustifiably being involved in litigation which is based on an erroneous interpretation of the law.
CONCLUSION
{63} The actions of Richard and Jason were not foreseeable, there are no facts to show that Melvin was an employee of Homeowner, and there are no material facts in dispute. Homeowner is, therefore, entitled to judgment as a matter of law. Accordingly, I would affirm the trial court's grant of summary judgment. The majority having decided otherwise, I must respectfully dissent.
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788 F.2d 2
U.S.v.Rodriguez
85-1320
United States Court of Appeals,Second Circuit.
12/6/85
1
S.D.N.Y.
AFFIRMED
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"pile_set_name": "FreeLaw"
} |
488 S.E.2d 699 (1997)
227 Ga. App. 137
NATIONSBANK, N.A. (SOUTH)
v.
PEAVY.
No. A97A0757.
Court of Appeals of Georgia.
July 3, 1997.
*700 King & Carragher, Joseph R. Carragher, Stone Mtn., for appellant.
Berrien L. Sutton, Homerville, for appellee.
McMURRAY, Presiding Judge.
This is an interlocutory appeal from a denial of summary judgment in a suit on a note. The original plaintiff, Bank South, sought and obtained permission to file an appeal from the state court's order entered May 30, 1996. However, in the interval of time following the filing of the interlocutory application, Bank South merged into NationsBank, N.A., which filed a notice of appeal as successor in interest to Bank South. But the record sent up for that appeal did not show any assignment of interest from Bank South or *701 any other indication that NationsBank, N.A. was a party to the action. The case was remanded to the state court in order to permit NationsBank, N.A. to seek an order of the state court pursuant to OCGA § 9-11-25(c), by which it was substituted in the action as party plaintiff. This Court's remand order authorized NationsBank, N.A., to initiate the present appeal upon being substituted as party plaintiff. No cross-appeal has been taken challenging the substitution order.
We conclude that summary judgment should have been granted in favor of plaintiff and reverse. In August 1988, defendant Peavy executed a promissory note, payable to the predecessor of plaintiff NationsBank, that was secured by an automobile. Defendant defaulted on the note and in June 1989 surrendered possession of the car. The car was sold for less than the remaining indebtedness, and under threat of a lawsuit, defendant signed an unsecured second note on March 5, 1990. Defendant also defaulted on the second note, and this action was commenced to collect on that note. Defendant raised a number of defenses including a failure to pay intangible taxes on the note and failure of consideration. A counterclaim asserted claims for fraud and for violation of the federal Fair Debt Collection Practices Act. Held:
1. "`On a motion for summary judgment, the movant carries the burden of proving that there are no genuine issues of fact requiring jury resolution and that he is entitled to judgment as a matter of law. (Cit.)... The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.)' Kelly v. American Fed. Savings, etc., Assn., 178 Ga. App. 542-543 (1), 343 S.E.2d 755 (1986)." Phillips v. Plymale, 191 Ga.App. 338, 340(1), 381 S.E.2d 580. A prima facie case was proven by showing that defendant signed the promissory note and was in default. Summary judgment must follow unless defendant has provided rebuttal evidence which raises a genuine issue of material fact. Id.
Defendant has presented no such evidence in support of its contention that former OCGA § 48-6-32 bars plaintiff's action. This statute, which was repealed effective March 21, 1996, by Ga. L.1996, p. 117, provided that a failure to return any property for taxation as required thereunder would be a bar to any action on the property. Application of this bar resulted in the reversal of a grant of summary judgment to the plaintiff in Lagrone v. Telecash Investments, 220 Ga. App. 876, 470 S.E.2d 445, but that case may be distinguished on the facts since it involved a defendant who presented evidence that the plaintiff had failed to pay the intangible taxes required under the statute. The defendant in the case sub judice has continued to rely solely upon his allegations so that even if this theory of defense survived the repeal of the statute, the absence of any supporting evidence is fatal.
Similarly, defendant has failed to provide any support for the defense of laches by failing to show prejudice from the delay. Therefore, this defense must be presumed to lack merit. Troup v. Loden, 266 Ga. 650, 469 S.E.2d 664.
2. Defendant's allegation that he was fraudulently induced to sign the note which plaintiff seeks to collect must fail. The source of the alleged fraud is plaintiff's predecessor's insistence that defendant was required to sign the note and failure to inform defendant that it was not entitled to a judgment against defendant for the deficiency on the first note. However, defendant admits that he took no steps to determine his rights prior to the execution of the note but relied upon the representations of plaintiff's predecessor. Thus, defendant has clearly conceded his lack of diligence and seeks to excuse it by contending that there was a confidential relationship involved. But there is no evidence to support such a hypothesis. The record reveals nothing more than an arms-length money lending transaction which does not constitute a confidential relationship. Saffar v. Chrysler First Business Credit Corp., 215 Ga.App. 239, 240(2), 450 S.E.2d 267.
3. Also, defendant's reliance upon the defense of failure of consideration is not *702 well founded. The defense of failure of consideration is not available where the note has been renewed. First State Bank, etc., Co. v. Young, 202 Ga.App. 566, 415 S.E.2d 18; Richards v. Southern Finance Corp., 171 Ga.App. 268, 319 S.E.2d 103. Furthermore, "`[t]he renewal cuts off all defenses of which the maker then had knowledge.' [Cits.]" Id. at 269(1), 319 S.E.2d 103. In the case sub judice this includes defendant's defenses and counterclaims based on the first note, on an alleged oral agreement with plaintiff's predecessor, and arising from the repossession and sale of the automobile. Defendant had knowledge of all these circumstances when he executed the renewal or second note which is the basis of this action. Also, a negotiable note given in liquidation of a disputed claim is not without consideration. Littlegreen v. Gardner, 208 Ga. 523(3), 67 S.E.2d 713.
Nor does defendant's denial that the second note was a renewal of the first note present a jury issue. Defendant's inconsistent statements as to the facts must be construed against him. Kersey v. U. S. Shoe Corp., 211 Ga.App. 655, 657, 440 S.E.2d 250. Therefore, his admission that the second note was signed under threat of suit for the deficiency on the first note and that he expected there to be a deficiency following the repossession is sufficient to establish that the second note was a renewal of the first note, as well as an accord and satisfaction resolving any dispute over any deficiency under the first note. See also Mobley v. Fulton Roofing Co., 173 Ga.App. 563, 564(1), 327 S.E.2d 540.
4. Additionally, defendant's reliance upon the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., is misplaced. This statute does not apply to an "officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor." 15 U.S.C. § 1692a(6)(A).
Judgment reversed.
BEASLEY and SMITH, JJ., concur.
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46 Ill. App.3d 427 (1977)
361 N.E.2d 33
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
HOWARD REEDUS, Defendant-Appellant.
No. 62814.
Illinois Appellate Court First District (1st Division).
Opinion filed February 22, 1977.
Lawrence Wolf Levin, of Chicago, for appellant.
Bernard Carey, State's Attorney, of Chicago (Laurence J. Bolon, Joan S. Cherry, and Salvatore R. Marzullo, Assistant State's Attorneys, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE BUA delivered the opinion of this court:
Howard Reedus, hereafter defendant, was charged by indictment with the rape and armed robbery of Mrs. Evelyn Richardson. Following a bench trial in the Circuit Court of Cook County, he was found guilty of *428 the charges and sentenced to a term of four to six years in the penitentiary. Defendant appeals, contending that the victim's in-court identification was improperly suggestive and highly prejudicial; and that the State failed to prove him guilty beyond a reasonable doubt.
Evelyn Richardson testified that she was returning home from a shopping trip on May 4, 1973, at 3:30 p.m. While walking westbound on 74th Street at Yale, in Chicago, she was accosted at gunpoint by the defendant and another man, taken into a nearby alley, robbed of $11, and raped by each man. She stated that the defendant told her not to call the police because neither man had ejaculated and there would be no evidence. Mrs. Richardson testified she was in the alley with the men for a period of from five to 15 minutes, and that she got a good look at both men. Upon reaching her house, she notified the police, and gave them a description of her assailants. The following day after viewing police photographs she made a tentative identification of the second of her assailants, not the defendant. Subsequently, on May 22, 1973, a police investigator showed Mrs. Richardson four to six individual photographs and one group photograph. She positively identified the defendant from the group photograph as one of the men who had raped and robbed her. The following day Mrs. Richardson positively identified the defendant in open court at a preliminary hearing. Later, at the trial, Mrs. Richardson once again unequivocally identified the defendant as one of the men who had raped and robbed her.
The defendant initially contends that the trial court erred in admitting evidence concerning his identification. The basis of the claim of error is the fact that the complainant, on the day after identifying the defendant from a group photograph, identified him at a preliminary hearing. Defendant claims this one-on-one identification at the preliminary hearing was the result of complainant's prior viewing of the group photograph, and as such lacked an independent origin and was unduly suggestive. We do not agree.
1, 2 In People v. Mitchell (1975), 34 Ill. App.3d 311, 318, 340 N.E.2d 226, 231, we quoted Stovall v. Denno, 388 U.S. 293, 302, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967, and People v. Blumenshine (1969), 42 Ill.2d 508, 512, 250 N.E.2d 152, in holding that:
"`The practice of showing suspects singly to persons for the purpose of identification, and not as part of a line-up, has been widely condemned' [citation]; but not every viewing of a suspect alone will be considered a denial of due process if there are justifying or saving circumstances."
The burden is on the defendant to show that the confrontation conducted was unnecessarily suggestive and conducive to irreparable mistaken identification. (People v. Blumenshine.) Where the courtroom identification was based on an observation of independent origin and not on *429 improper pretrial confrontation, it is admissible. (People v. Winfrey (1973), 11 Ill. App.3d 164, 298 N.E.2d 413; People v. Johnson (1976), 43 Ill. App.3d 549, 357 N.E.2d 587.) The record herein discloses that the complainant viewed the defendant for a period of from five to 15 minutes, in midafternoon, and at close range while he raped and robbed her. Under these circumstances, we find that her courtroom identification was of independent origin and not the product of any suggestive or improper procedure. We find no merit in defendant's claim that his constitutional right to be assisted by counsel was violated at the preliminary hearing. The record disclosed that defendant was in fact represented by counsel at all times during the preliminary hearing.
3, 4 Finally, defendant claims that the evidence failed to prove him guilty beyond a reasonable doubt. Specifically defendant contends that Mrs. Richardson's testimony concerning his physical description was sufficiently contradictory to create reasonable doubt. We do not agree. Mrs. Richardson testified that she described defendant to the police as 5'7" to 5'9", with a slender build, and medium brown skin. On cross-examination she described the defendant as a male Negro, 5'7" to 5'8" tall. Previously Mrs. Richardson had positively identified the defendant from a group photograph, at the preliminary hearing, and at the trial. The defendant testified that he was 5'11" tall and weighed 155 or 160 pounds. He did not know whether his 5'11" height was with or without platform shoes. The testimony of one witness, if positive, and if the witness is credible, is sufficient to convict even though contradicted by the accused. (People v. Gray (1962), 24 Ill.2d 229, 232, 181 N.E.2d 162, 163.) In the instant case we find the complainant's identification testimony positive, credible, and persisted in after cross-examination. Precise description of a defendant is not necessary where the identification is positive. (People v. Brooks (1973), 13 Ill. App.3d 1003, 301 N.E.2d 496; People v. Carroll (1973), 12 Ill. App.3d 869, 299 N.E.2d 134.) The function of the trial judge as a trier of fact is to determine the credibility of all the witnesses and the weight to be given to their testimony and his finding of guilt will be disturbed only where the evidence is so unreliable, improbable, and unsatisfactory as to leave a reasonable doubt as to defendant's guilt. (People v. Catlett (1971), 48 Ill.2d 56, 64, 268 N.E.2d 378, 382.) A minor discrepancy as to height by a witness during a vigorous cross-examination is not evidence so unreliable, improbable, or unsatisfactory as to leave a reasonable doubt as to defendant's guilt.
For the foregoing reasons the judgment of the Circuit Court of Cook County is affirmed.
Affirmed.
GOLDBERG, P.J., and O'CONNOR, J., concur.
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129 F.3d 1256
U.S.v.Kerop Hazar, a/k/a 'Tony'
NO. 95-5544
United States Court of Appeals,Third Circuit
1
.
Sept 19, 1997
Appeal From: D.N.J. ,No.92cr007061
2
Affirmed.
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990 S.W.2d 526 (1999)
337 Ark. 524
John HOLLOWAY, Appellant,
v.
RAY WHITE LUMBER COMPANY and Silvey Companies, Appellees.
No. 98-1217.
Supreme Court of Arkansas.
May 20, 1999.
*527 Eric G. Hughes, Donald Price Chaney, Jr., Arkadelphia, for appellant.
Womack, Landis, Phelps, McNeill & McDaniel, by: Carl David Landis and Mark Alan Mayfield, for appellee.
TOM GLAZE, Justice.
Ray White Lumber Company and Silvey Companies (hereafter Ray White or Company) petitioned our court for review of an unpublished opinion of the court of appeals delivered on September 16, 1998, wherein the appellate court remanded John Holloway's workers' compensation claim. The court of appeals concluded that, because the Workers' Compensation Commission made some statements that were contrary to the record in its decision denying Holloway's claim, the case should be remanded so the Commission could reexamine its findings and reconcile the discrepancies. In other words, the appellate court declined to draw any conclusions or decide the case because it found factual inconsistencies in the record. Ray White counters that the court of appeals' decision to remand this case conflicts with this court's standard of review in these matters as set out in Buckeye Cotton Oil v. McCoy, 272 Ark. 272, 613 S.W.2d 590 (1981). Because the Company argues that the record reflects there is substantial medical evidence to support the Commission's decision, it asserts the appellate court erred in refusing to affirm the Commission. We granted jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(5) and (e)(ii). To decide whether the Commission should be affirmed or reversed requires us to consider the relevant procedural and substantive history of this case.
This litigation stems from Holloway's claim that, on August 13, 1991, he sustained a compensable injury as a result of pulling lumber off a "green-chain." He said that, when he pulled a one-by-twelve, his feet slipped out from under him and the board "jumped" and popped his arm into the air like a slingshot. He related that it felt like someone stuck a knife or an *528 ice pick in his wrist. Holloway was initially seen on August 26, 1991, by Dr. Michael Ford who subsequently referred Holloway to Kevin McLeod, an orthopedist. Thereafter, Ray White sent Holloway to Dr. Marcia Hixson, a Little Rock orthopedist, who became Holloway's treating physician.
Ray White recognized Holloway's injury as compensable and paid for surgery on his median nerve. However, the Company later denied that the diagnosis of carpal tunnel syndrome (CTS) was work related and refused to pay for surgery to release the carpal tunnel. After a hearing in 1995, the administrative law judge agreed with the Company. The law judge found that, in 1981, Holloway sustained a nonrelated work injury to the same arm he injured on August 13, 1991, and that Dr. Edward Saer, the then-treating physician, opined Holloway would never have a totally normal hand. After additionally setting out some of Holloway's medical history since his August 13, 1991 accident, the law judge concluded Holloway had failed to prove by a preponderance of the evidence that his carpal tunnel condition was related to his compensable injury. Holloway appealed the law judge's decision to the Commission, which affirmed. Holloway then appealed to the court of appeals, and because the Commission failed to adopt the law judge's opinion or to make its own findings of fact, the court of appeals, in June of 1997, returned the case to the Commission with directions to make findings. Ray White did not appeal that decision. Instead, the Commission received the case on remand and, in a 2-1 decision rendered on August 27, 1997, it again found Holloway failed to prove his carpal tunnel condition was related to his August 13, 1991 compensable injury. This time the Commission adopted the administrative law judge's findings and opinion. It is this second opinion of the Commission, which the court of appeals determined should be remanded because of factual inconsistencies, that is at issue here.
As alluded to earlier, Ray White argues the appellate court was obliged to view the evidence in the light most favorable to the Commission's decision and uphold that decision if supported by substantial evidence. While we agree with the rule of review espoused by the Company, we disagree that the McCoy holding it cites controls the situation now before us. In McCoy, upon conflicting medical testimony, the Commission found the claimant had failed to prove her condition arose out of her employment. On appeal, the court of appeals, without directly addressing the question of substantial evidence, found the proof to be inconclusive and sent the case back to the Commission for further investigation with the possible employment of a medical examiner pursuant to Ark. Stat. Ann. § 81-1319(i) (Repl.1976) (current version at Ark.Code Ann. § 11-9-811 (Repl. 1996)). The McCoy court reversed the court of appeals and held that only the Commission could require a medical examination. Because there was medical testimony in the record to support the Commission's decision denying the employee's claim, this court affirmed.
We do not view the instant case as one where the court of appeals found the medical proof before the Commission to be inconclusive or where there was no substantial evidence in the record that could support the Commission's denial of Holloway's claim. Rather, Holloway submits that the Commission based its decision on certain erroneous factual findings, and as a result, the case should be reversed and remanded.[1] We agree.
It is well settled, as pointed out by Ray White and the McCoy decision, that appellate courts view the evidence in the light most favorable to the Commission's decision and affirm that decision when it is supported by substantial evidence. *529 See Williams v. Prostaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). Our court has defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 513, 988 S.W.2d 1. The Commission has the duty of weighing evidence, and if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Id.
In reviewing the Commission's second opinion now on appeal, Holloway points out that the Commission determined that four highly competent physicians were unable to attribute Holloway's carpal tunnel problems to his August 13, 1991 compensable injury,[2] and in making that finding, the Commission mentioned only three of the four doctorsMarcia Hixson, Earl Peeples, and Paul Tucker. Of course, the Commission was not required to set out all four doctors' opinions, but when it mentioned Hixson's opinion, the Commission did so erroneously. As already discussed, Dr. Hixson was Holloway's treating physician, and while not noted in the Commission's findings, she opined on March 11 and March 25 of 1994 that Holloway's CTS was a result of his August 13, 1991 injury. Instead, the Commission seemed to base its decision on an earlier statement made by Hixson in June of 1992 where she said that Holloway should be assigned a 20% impairment rating of the right upper extremity, but was unable to state how much of that impairment rating was attributable to the old injury. Whether the Commission simply chose to rely on the earlier Hixson statement over her clear opinions given in 1994 is further confused by its adoption of the administrative law judge's opinion, which mistakenly states that Holloway failed to seek medical attention after his visit to Dr. Hixson on May 22, 1992, until he returned to her office on October 7, 1993. Ray White concedes Hixson saw Holloway on at least four (our review reveals at least seven) separate visits during that time period.
As stated above, the Commission was not required to believe the testimony of the claimant or any other witness; it may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. However, in the present case, the Commission erred in its translation and the error involved relevant medical evidence which the Commission expressly relied on in reaching its decision. In short, because of the Commission's errors in making its findings, an appellate court is left to speculate concerning what evidence the Commission intended to rely on when making its decision.
In conclusion, we note that our standards in the review of workers' compensation cases remain the same. Here, like in the McCoy case, conflicting medical opinions have been given by competent physicians, and it became the duty of the Commission to weigh and resolve the evidence. Once the Commission does so, its resolution will be given the force and effect of a jury verdict. Williams, 336 Ark. at 513, 988 S.W.2d 1. The error in issue here is not that substantial evidence was not presented or considered in this case; instead, the reversible error is found in the Commission's failing to make a proper de novo review of the record. That failure resulted in the making of erroneous factual findings that patently fail to support its decision.
For the reasons above, we reverse and remand.
NOTES
[1] The court of appeals appeared only to remand this case, but the reason for remanding is based on error which requires a reversal.
[2] The record reflects Holloway had been seen by doctors Michael Ford, Kevin McLeod, Paul Tucker, David A. Miles, Marcia Hixson, and Earl Peeples. However, Ford offered no opinion about the relationship of Holloway's CTS to his compensable injury, and McLeod merely quoted Dr. Tucker's opinion on the issue.
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650 F.2d 610
Van HOWELL, Plaintiff-Appellant,v.Joe D. TANNER, Individually and as Commissioner ofDepartment of Natural Resources, et al.,Defendants-Appellees.
No. 79-3374.
United States Court of Appeals,Fifth Circuit.
Unit B
July 13, 1981.
J. E. B. Stewart, Jonesboro, Ga., for plaintiff-appellant.
Mark A. Dickerson, Isaac Byrd, Asst. Attys. Gen., Atlanta, Ga., William P. Langdale, Jr., Valdosta, Ga., for defendants-appellees.
Ronald A. Lowry, Atlanta, Ga., for Raulerson.
Appeal from the United States District Court for the Middle District of Georgia.
Before JONES, FAY and HENDERSON, Circuit Judges.
HENDERSON, Circuit Judge:
1
The appellant, Van Howell, filed suit in the United States District Court for the Northern District of Georgia pursuant to provisions of 42 U.S.C. §§ 1983 and 1985(3)1 alleging that he was maliciously arrested and prosecuted as well as physically accosted in violation of his constitutional rights. Named as defendants were the Georgia Department of Natural Resources (DNR); Joe D. Tanner, Commissioner of the DNR; Louis T. Raulerson, Ross Knowlton and Wallace King, employees of the DNR; J. Leon Raulerson, the former sheriff of Echols County, Georgia; and The Langdale Company, the owner of the land subject to a game management contract with the DNR.
2
On June 21, 1975, Howell was arrested and cited by state game and fish officers Knowlton and King on charges of criminal trespass and possession of a firearm. Louis T. Raulerson conferred with the officers at the arrest site. Shortly thereafter warrants on the same charges were sworn out against Howell by Raulerson. On January 28, 1976, J. Leon Raulerson, brother of Louis Raulerson and the sheriff of Echols County, drew up an affidavit in support of the accusations which were then pending in Echols Superior Court.
3
Meanwhile earlier that month, on January 3, 1976, Louis T. Raulerson had had a previous encounter with Howell. While driving near Halo, Georgia in the company of his daughter, Howell was waved down by Raulerson, who was standing by the DNR car which had been assigned to him. Raulerson was dressed in his DNR uniform but was off-duty. When he had stopped, Howell was questioned by Louis Raulerson about nails which had been placed on the property leased by The Langdale Company to DNR. The parties disagree on the sequence of events which followed. Howell contends that Raulerson maliciously and without warning shot him several times with a DNR rifle and then beat and kicked him while he lay unconscious on the roadway. By Raulerson's account the trouble began when Howell became argumentative and waved a pistol at him. Allegedly Raulerson shot Howell in self defense. Three days later, on January 6, 1976, a warrant based on an affidavit by Raulerson was issued for the arrest of Howell and his daughter on the charge of aggravated assault against Raulerson. The criminal proceeding on this charge was terminated a month later, however, when the county grand jury returned a "no bill".2
4
Eventually Howell also prevailed on the charges against him for criminal trespass and unlawful possession of a firearm. These counts came on for trial on February 5, 1976. The jury found Howell not guilty of trespass but guilty of a firearm offense. On appeal of the firearm conviction to the Supreme Court of Georgia, Howell's conviction was reversed on grounds that the Georgia statute permitting prosecution was unconstitutional.3
5
Howell filed this civil suit in the Northern District of Georgia on January 2, 1978. The district court judge dismissed DNR as a party defendant, but denied the motion to dismiss filed by the other defendants. Thereafter a motion for change of venue filed by the defendants was granted and the cause was transferred to the Middle District of Georgia, Valdosta Division.
6
Additional motions were filed by the defendants in the Middle District of Georgia. The district judge granted motions for summary judgment as to all the defendants except Louis Raulerson "for the reasons asserted by counsel" in their briefs. He dismissed the claim against Louis Raulerson because he found it to be "too nebulous to rise to the constitutional proportions". The final judgment from which this appeal is taken was rendered on August 30, 1979.
7
Howell assigns as error (1) the award of summary judgment to all defendants except Louis Raulerson and the granting of Louis Raulerson's motion to dismiss; (2) the change of venue from the Northern District of Georgia to the Middle District of Georgia; (3) the refusal to remand the case to the Northern District of Georgia; (4) the entry of final judgment by the clerk; (5) the denial of his motion to amend his complaint; (6) the refusal to reinstate the DNR as a party defendant; and (7) the dismissal of the "summary of events" filed by Howell.
8
The appellant attacks the summary judgment ruling on procedural as well as substantive grounds. He first focuses on the fact that he received no notice of the date of the hearing on the motion. He purportedly had affidavits he would have filed had he known that a decision on the motion would be forthcoming so quickly. At oral argument, Howell's counsel identified this lack of notice as the principal error in the case and the main reason for reversal of the summary judgment.
9
Howell's counsel reads the Fed.R.Civ.P. 56(c) requirement for notice of the hearing date to mean that he will know the outside time in which opposing affidavits must be served.4 The appellant cannot dispute the fact that he had notice of the pendency of the motion, though, because he filed a response. The appellees answer that the litigants' rights are preserved by a local rule for the Middle District of Georgia which provides that (1) a respondent to a motion for summary judgment must submit all responses, briefs or affidavits within ten days of service of the motion; and (2) all motions are decided without hearing unless otherwise ordered by the court on its own motion or at the request of counsel.5 M.D.Ga.R. (b), (e) (1960). Fed.R.Civ.P. 56(c) contemplates that the ten-day advance notice of the earliest possible hearing date must be given so that the adverse party will have an opportunity to fully prepare his case. The respondent's Rule 56 interests were fully protected by the local rule which defined a ten-day period within which all materials must be filed in order to receive consideration from the court. Kibort v. Hampton, 538 F.2d 90, 91 n. 1 (5th Cir. 1976).
10
Howell also maintains that the adverse summary judgment was erroneously rendered as a matter of law. We do not agree with the appellant. We find, as did the district judge, that the facts and law were adequately and accurately presented by the parties in their briefs on motion in the trial court. For the following reasons, the district judge was correct in entering summary judgment favorable to the appellees.
11
Game and Fish rangers Knowlton, King and Raulerson are charged with deprivation of Howell's constitutionally-protected interests in arrest and prosecution accomplished with due process of law. See Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980); Reeves v. City of Jackson, Mississippi, 608 F.2d 644 (5th Cir. 1979). The appellees had probable cause to believe in good faith that Howell broke the law on June 21, 1975. Howell admitted that the area in which he was approached was a game management area. (Appellant's Reply Brief at 24). He further concedes that he was carrying a firearm, but he says the possession was lawful because the gun was broken. (Transcript at 173). The defense of probable cause negates a § 1983 claim based on an alleged false arrest. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 228 (1967); Hunter v. Clardy, 558 F.2d 290, 291 (5th Cir. 1977); Rodriguez v. Jones, 473 F.2d 599, 604-05 (5th Cir.), cert. denied 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). Once probable cause has been established, the legality of the arrest is not affected by collateral bad faith of the arresting officer or a subsequent dismissal or acquittal of the charges.6 Hunter v. Clardy, 558 F.2d at 292; Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975). Knowlton, King and Louis T. Raulerson were entitled to summary judgment as a matter of law.
12
Joe D. Tanner's lack of personal participation in Howell's arrest dictates the summary judgment in his favor. The arrest was not effected pursuant to either a direct order from Tanner or a custom or policy instituted by Tanner. Since there is no showing of direct involvement by Tanner in the arrest, he cannot be liable under § 1983. See Reimer v. Short, 578 F.2d 621, 625 (5th Cir. 1978) cert. denied 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979); Locust v. DeGiovanni, 485 F.Supp. 551, 552 (E.D.Pa.1980).7
13
Summary judgment was also authorized for Sheriff Leon Raulerson. In his deposition, Howell stated that he included Raulerson as a party only because his action in swearing out the accusations for the trespass and firearms offenses made him a "prosecutor". Raulerson is required by state law to issue accusations upon receipt of instructions from the district attorney as was the case here. Ga.Code Ann. § 27-704 (1972) (current version at Ga.Code Ann. § 27-704 (Supp.1980)). Where state law obligates an official to perform a ministerial duty, good faith is presumed absent express evidence on the record of bad motive. Tucker v. Maher, 497 F.2d 1309, 1313 (2d Cir.) cert. denied 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974).8
14
With respect to the claim against Louis Raulerson arising from the January 3, 1976 shooting incident, however, we think the appellant alleged sufficient facts to withstand a motion to dismiss. A claimant must state facts showing that the state has deprived him of a liberty or property interest without due process of law. Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980) (U.S. app. pending). If these facts, when proven, would establish that the officer acted under color of state law and the conduct deprived the claimant of a constitutionally protected interest, then the plaintiff must have an opportunity to prove his case.
15
In the complaint, Howell asserted that Louis Raulerson, while dressed in his ranger uniform and standing beside a DNR vehicle, stopped him and threatened him with death if Howell were found to have placed "nails in the access road to the reserve". Given these references in the pleading to indicia of official state authority, coupled with the contention that the dispute centered on a DNR-related problem, we find that the appellant sufficiently pleaded state action. The magic words "under color of state law" are not absolutely necessary to state a § 1983 claim when factual allegations in the complaint clearly point in this direction. Geach v. Moynahan, 207 F.2d 714, 716-17 (7th Cir. 1953). Unquestionably, the malicious infliction of bodily injury as alleged by Howell constitutes deprivation of a property interest without due process of law. Hence, we are compelled to reverse the judgment of the district court granting Louis Raulerson's motion to dismiss for failure to state a cause of action and remand Howell's claim for a hearing on the merits.9
16
Assignments of error two and three are directed to the venue orders entered by the district judges in this case. The appellant argues that both judges abused their discretion in holding that the Middle District of Georgia was the appropriate venue because they did not consider the "interests of justice".
17
A district judge has the authority to transfer an action to any district in which it might have been brought for the convenience of parties and witnesses and in the interest of justice. 28 U.S.C. § 1404 (1976). The plaintiff's choice of forum should not be disturbed unless it is clearly outweighed by other considerations. Simmons Ford, Inc. v. Consumers Union of United States, Inc., 490 F.Supp. 106, 107 (W.D.Mich., S.D.1980). Once a trial judge decides that a transfer is justified, though, his ruling can only be overturned for a clear abuse of discretion. The presumption in favor of the district court judge is heavy. Appellate review is limited because it serves little purpose to reappraise such an inherently subjective decision. Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735, 737 (1st Cir.) cert. denied 434 U.S. 860, 98 S.Ct. 185, 54 L.Ed.2d 133 (1977).
18
The appellant suggests that justice is not served by hearing his case in a district where he believes his likelihood of success on the merits would be prejudiced by extraneous factors. This argument manifests a misconception of the "interests of justice" standard. In applying § 1404, efforts to select one district to avoid or obtain particular rulings of another district is disfavored. Cheeseman v. Carey, 485 F.Supp. 203, 215 (S.D.N.Y.) remanded for dismissal 623 F.2d 1387 (2d Cir. 1980); McCrystal v. Barnwell County, 422 F.Supp. 219, 225 (S.D.N.Y.1976). The judges took proper account of the interests of justice when they considered the forum in which judicial resources could most efficiently be utilized and the place in which the trial would be most "easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947); ROC, Inc. v. Progress Drillers, Inc., 481 F.Supp. 147, 152 (W.D.Okl.1979); Bartolacci v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 476 F.Supp. 381, 382-83 (E.D.Pa.1979); Pope v. Missouri Pacific Railroad Co., 446 F.Supp. 447, 451 (W.D.Okl.1978). We affirm both venue determinations.
19
We have carefully reviewed the record and find no merit in assignments of error four through seven.10
20
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and REVERSED in part.
1
The § 1985(3) claims were dismissed by order of May 22, 1978, because the complaint was devoid of factual allegations from which it could be concluded that Howell was a member of a class against which invidious bias might exist. See McLellan v. Mississippi Power & Light Company, 526 F.2d 870 (5th Cir. 1976) modified 545 F.2d 919 (5th Cir. 1977); Fallis v. Toastmasters International, Inc., 467 F.2d 1389 (5th Cir. 1972); Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972)
2
The Echols County Grand Jury also returned a "no bill" with respect to Howell's aggravated assault charge against Raulerson arising from the same January 3, 1976 incident
3
Howell v. State, 238 Ga. 95, 230 S.E.2d 853 (1976). Ga.Code Ann. § 45-116 provides that anyone who violates regulations promulgated by a commission is guilty of a misdemeanor and can be punished accordingly. In the opinion of the Georgia Supreme Court, the statute unconstitutionally delegated legislative authority to the commission by permitting it to make regulations the violations of which constituted a misdemeanor. No consideration was given to the evidentiary merits of the case
4
Fed.R.Civ.P. 56(c) (1971) states in pertinent part:
"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits."
5
An oral hearing is not required by Fed.R.Civ.P. 56(c). Davis v. Howard, 561 F.2d 565, 570-71 (5th Cir. 1977); Benson v. Matthews, 554 F.2d 860, 862 (8th Cir. 1977); Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir. 1976)
6
Howell's conviction for the firearm offense conclusively established that the arrest was made with probable cause, absent a showing of fraud, perjury or corrupt means. Bergstralh v. Lowe, 504 F.2d 1276, 1278 (9th Cir. 1974), cert. denied 420 U.S. 930, 95 S.Ct. 1131, 43 L.Ed.2d 402 (1975). Arguably this presumption survived intact after the Georgia Supreme Court's reversal on other than evidentiary grounds. Furthermore, the officers could not have known that the Georgia statute would be declared unconstitutional. The Howell decision was the opinion of a divided court and represented a shift in view which was foreshadowed by the most recent of precedent only. See Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975)
7
It is clear that Tanner would not be responsible on a respondeat superior theory, even if the rangers' actions were unconstitutional. Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir. 1980), cert. denied -- U.S. --, 101 S.Ct. 399, 66 L.Ed.2d 245 (1981)
8
In his complaint Howell alleged that The Langdale Company entered a lease agreement with the State of Georgia so that certain lands in Echols County were established as a "game and fish management area". He further averred that Louis T. Raulerson and J. Leon Raulerson acted as agents of The Langdale Company in signing warrants and executing accusations respectively against him. The Langdale Company offered evidence proving that it did not employ any other of the named defendants, nor did it authorize any of the named defendants to perform any of the acts upon which Howell bases his claims. Furthermore, respondeat superior would provide no right of recovery against The Langdale Company pursuant to § 1983. Thompson v. Bass, 616 F.2d 1259, 1268 (5th Cir. 1980) cert. denied -- U.S. --, 101 S.Ct. 399, 66 L.Ed.2d 245 (1981). Finally, the contractual lease agreement does not constitute concerted action with the state such as is necessary to make out an independent cause of action against a private individual under § 1983. See generally Vance v. Billingsly, 487 F.Supp. 439, 442 (E.D.Tenn., N.D.1980)
9
The same set of facts may give rise to violations of both the federal statute and Georgia tort law. The rights protected by each are not necessarily identical, however, nor are the elements composing each cause of action. Accordingly, the existence of a state tort claim does not negate the entitlement of a litigant to a federal action as well. Briley v. State of California, 564 F.2d 849, 854 n. 4 (9th Cir. 1977)
10
We do think assignment of error six warrants some mention. At the time it issued the order dismissing the DNR, the district court did not have the benefit of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) which overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the case relied upon by the trial court. Monell holds that a municipal governing body may be a "person" subject to liability under 42 U.S.C. § 1983. However, Monell has no relevance to the dismissal of DNR, because the Supreme Court's decision is " 'limited to local government units which are not considered part of the State for Eleventh Amendment purposes'." Bogard v. Cook, 586 F.2d 399, 410 (5th Cir. 1978) cert. denied 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979) (citing Monell v. New York City Dept. of Social Services, 436 U.S. at 690 n. 54, 98 S.Ct. at 2035-36 n. 54, 56 L.Ed.2d at 635 n. 54 (1978)
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145 F.3d 360
Yankee Entv.Dunkin' Donuts*
NO. 97-41192
United States Court of Appeals,Fifth Circuit.
May 21, 1998
Appeal From: E.D.Tex. ,No.1:95-CV-136
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
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853 F.Supp. 1413 (1994)
UNITED STATES of America, Plaintiff,
v.
Steven Charles CRAIG, et al., Defendants.
No. 93-585-CR.
United States District Court, S.D. Florida, Miami Division.
May 13, 1994.
*1414 Cynthia Hawkins, Asst. U.S. Atty., Orlando, FL, for U.S.
Donald L. Ferguson, Boca Raton, FL, for defendant Steven Charles Craig.
Samuel J. Rabin, Jr., Miami, FL, for defendant Armond Steven Davila.
David J. Joffe, Miami, FL, for defendant Chris DiFranco.
Stephen J. Bronis, Miami, FL, for defendant Craig Steven Lindback.
Richard J. Diaz, Miami, FL, for defendant Roy John Lindback.
Russell E. Crawford, Orlando, FL, for defendant Mary Margaret Buxbaum.
Ronald S. Guralnick, Miami, FL, for defendant Christopher Schofield.
Robert A. Rosenblatt, Miami, FL, for defendant Jimmy Rodriguez.
Paul A. McKenna, Miami, FL, for defendant Francisco Jesus Cabrera.
Vincent Farina, Miami, FL, for defendant Frank DiFranco.
Hy Shapiro, Miami, FL, for Brian Edward Lindback.
William M. Moran, Miami, FL, for defendant Ernesto Santalla.
Donald A. Lykkebak, Orlando, FL, for defendant Stevan Laury Buxbaum.
Richard Docobo, Miami, FL, for defendant Michael J. Copeland.
Michael H. Tarkoff, Miami, FL, for defendant Michael Lee London.
George M. Evans, Miami, FL, for defendant David L. Smith.
Russell F. McLatchey, Longwood, FL, for defendant Ralph Eugene Cencebaugh.
Jay M. Kolsky, Miami, FL, for defendant Daniel John Sims.
Robert N. Scola, Jr., Miami, FL, for defendant Jeffrey Yost.
Douglas C. Hartman, Miami, FL, for defendant Roger Allen Yost.
Dennis N. Urbano, Miami, FL, for defendant Dana Randall Banks.
Kenneth D. Noel, San Diego, CA, for defendant David C. Balzerzak.
Rick Freedman, Miami, FL, for defendant Edward Wellmore Abele.
Leonard P. Fenn, Coral Gables, FL, for defendant Kevin McIsaac.
Armando Oliveros, Jr., Miami, FL, for defendant Randy B. Ramsauer.
Stuart Adelstein, Miami, FL, for defendant John Thurman Segars.
Richard A. Sharpstein, Miami, FL, for defendant Roger Lee Yost, Sr.
Eric Bensen, Orlando, FL, for defendant Michael R. McClain.
George M. Evans, Miami, FL, for defendant Steve Lambert.
David B. Rothman, Miami, FL, for defendant David K. Futch.
ORDER
ROETTGER, Chief Judge.
THIS CAUSE is before the court upon defendants' objection to the order issued by the Honorable Shelby Highsmith referring their joint motion for disqualification of the court to this district's chief judge for determination. Defendants contend the chief judge lacks authority to rule on the matter. They argue that Title 28, United States Code, Section 455 was designed to be exclusively self-enforcing and precludes transfer *1415 of the disqualification motion to another judge for resolution. Their contention is based on the fact that Title 28, United States Code, Section 144, mandates the transfer of recusal motions but that Section 455 does not.
However, Section 455 is silent concerning procedure. It does not bar transfer of a recusal motion for determination by another judge. In fact, courts have acknowledged that the challenged judge may either opt to refer the matter to another judge for decision or rule on it himself. See, e.g., Levitt v. University of Texas, 847 F.2d 221, 226 (5th Cir.), cert. denied, 488 U.S. 984, 109 S.Ct. 536, 102 L.Ed.2d 567 (1988); United States v. Heldt, 668 F.2d 1238, 1271 (D.C.Cir. 1981), cert. denied sub nom. Hubbard v. United States, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).
In addition, it is clearly within the province of the chief judge to take jurisdiction of any matter similar to this pending motion to disqualify Judge Highsmith, particularly at the request of the district judge assigned to the case, where the underlying dispute involves which district should exercise venue over a particular case, and one in which the circuit court of appeals has become involved[1]. Furthermore, it has been the policy of this court for at least 20 years to refer such or similar motions to the chief judge for consideration. See, e.g., Huff v. Standard Life Ins. Co., 643 F.Supp. 705, 707 (S.D.Fla. 1986); Lozano v. Maryland Cas. Co., 111 F.R.D. 455 (S.D.Fla.1986). The Honorable James Lawrence King handled approximately six such motions a year during his seven-year tenure as chief judge from 1984-1991 and stated at one point that he had heard three disqualification motions in one three-week interval. Lozano, 111 F.R.D. at 459.
The undersigned finds he has the inherent authority to handle the disqualification motion at issue as there is "no express authority to the contrary, and because it is a reasonable and practical solution to the problem." Huff, 643 F.Supp. at 707. Accordingly, it is
ORDERED AND ADJUDGED that defendants' objections to Judge Highsmith's order requesting that the chief judge or his designee assume limited jurisdiction over their motion to disqualify are OVERRULED.
DONE AND ORDERED.
NOTES
[1] The Eleventh Circuit Court of Appeals entered a writ of mandamus vacating Judge Highsmith's order of retransfer in an unpublished opinion on March 21, 1994.
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58 Wn.2d 514 (1961)
364 P.2d 237
BANGASSER & ASSOCIATES, INC., Appellant,
v.
DONALD HUGH HEDGES et al., Respondents.[*]
No. 35678.
The Supreme Court of Washington, Department One.
August 24, 1961.
John Spiller, for appellant.
Engst & Phelps, by Edward T. Engst, for respondents.
FOSTER, J.
The appellants, Bangasser and Associates, sued to quiet title to a tract of four hundred fifty-one acres of timber in Chelan county, and appeal from an adverse judgment impressing a trust and quieting title in respondent. The appellants' assignment, that some of the findings of fact are not supported by the evidence, is refuted by the record, and factual disputes are no longer resolved upon appeal. Thorndike v. Hesperian Orchards, Inc., 54 Wn. (2d) 570, 343 P. (2d) 183.
The appellants' contention that the findings of fact do not support the conclusions of law necessitates a statement *515 of the circumstances. Richard Scales and his partner, Erwin Myhre, purchased the property on contract in 1957 for eighteen thousand dollars. They logged during the latter part of 1957 until early 1958 when Myhre withdrew from the partnership. He sold his interest to Scales and took a mortgage back for twenty-five hundred dollars, half of which matured September 1, 1958.
Scales continued logging throughout the summer of 1958. Beset by equipment breakdowns, high labor costs, and other financial pressures, Scales turned to his friend and experienced business adviser, Paul Bangasser and Associates. Letters were exchanged in mid-August. Scales indicated a desire to abandon the project, but Bangasser urged him not to do so and promised:
"... We will do everything we can do to help. Have no solution in mind at this moment but will go to work on it.
"Walking away is not the answer. We must find a way to save it...."
Thereafter, within three days, on August 22, 1958, Scales appeared in Bangasser's Seattle office, where, under Bangasser's direction, Scales assigned the contract and executed a deed, the ostensible purpose of which was to transfer everything to Bangasser. Bangasser did not record the conveyance until May 6, 1959. No additional consideration was mentioned even though through stumpage payments Scales had reduced the contract balance to about four thousand dollars, increasing his equity to nearly fourteen thousand dollars.
With Bangasser's knowledge, Scales continued his logging for several weeks. He also resumed logging after the snow melted in the following spring.
Meanwhile, Bangasser attempted to solve the financial tangle. He unsuccessfully attempted to secure a moratorium upon the Erwin Myhre payment on September 1, 1958. He negotiated with the attorney for Scales' vendors for the purpose of determining the precise contract balance and preventing forfeiture. Bangasser tendered four hundred dollars as an interest payment, which amount, however, was returned. He also expended $105.63 for a local *516 assessment and an insurance premium. In addition, sometime before the end of 1958, he made an oral promise to pay Scales five thousand dollars if and when he sold the property.
Bangasser listed the property with several brokers, advertised it in the papers, and, in the spring of 1959, had the timber cruised. The property was appraised at $23,580 and a consultant advised that the river frontage property had even greater value for residential use. On June 22, 1959, Pope & Talbot, Inc., took an option on the property at $42,845, and exercised it on July 21, 1959.
The trial court found that Scales did not have Bangasser's business sagacity, and that he was of flighty disposition, which weaknesses were known to Bangasser. The court also found that Scales never intended to give up the property, but that the assignment was for security purposes to cover possible advances by Bangasser in straightening out Scales' affairs. Such was the basis for the conclusion that Bangasser held legal title in constructive trust for Scales.
[1] The constructive trust is equity's antidote for the pain wrought by freedom of contract between persons of unequal ability. Cardozo described it as "the formula through which the conscience of equity finds expression" (Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378), and as "the remedial device through which preference of self is made subordinate to loyalty to others." Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1.
The rule stated in 2 Pomeroy's Equity Jurisprudence, § 1053, was adopted in Rozell v. Vansyckle, 11 Wash. 79, 83, 39 Pac. 270:
"`In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably *517 entitled to the same; ... and a court of equity has jurisdiction to reach the property either in the hands of the original wrong-doer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust.'"
Accord: Kausky v. Kosten, 27 Wn. (2d) 721, 179 P. (2d) 950; Nicolai v. Desilets, 185 Wash. 435, 55 P. (2d) 604; Seventh Elect Church in Israel v. First Seattle Dexter Horton Nat. Bank, 162 Wash. 437, 299 Pac. 359; Pacheco v. Mello, 139 Wash. 566, 247 Pac. 927.
[2] There was a constructive trust. Scales was in financial distress and apparently unable to work out of it by his own ingenuity. Assuming an irrevocable assignment was intended by both parties, Bangasser could easily be said to have taken advantage of Scales' weakness or necessity, but we need not go that far. There is considerable doubt the parties actually intended an outright assignment. Scales continued in possession and continued his logging operations. Bangasser negotiated with Scales' creditors in an effort to put off overdue payments, not to settle them, and always with a view to save Scales' investment. Moreover, he offered, long after the assignment, to pay five thousand dollars in event he found a buyer for the property. This offer indicates that the disposition of the property was not clearly settled by the written assignment. Moreover, the consideration for the assignment, that is the assumption of the existing liabilities without any reference to Scales' fourteen thousand dollar equity in the contract, strongly indicates the unequal competence and bargaining power of the parties. The $42,845 offer less than a year later makes such conclusion inescapable.
The unequal position plus the lack of any clear-cut intention to consummate an assignment support the judgment impressing a constructive trust upon Bangasser which is affirmed.
FINLEY, C.J., WEAVER, ROSELLINI, and OTT, JJ., concur.
NOTES
[*] Reported in 364 P. (2d) 237.
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Bushra Company ) ASBCA No. 59918
)
Under Contract No. M68450-06-M-7233 )
APPEARANCE FOR THE APPELLANT: Mrs. Bushra Mohammed
Owner
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
ChristinaLynn E. McCoy, Esq.
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE PROUTY ON THE GOVERNMENT'S
MOTION TO DISMISS FOR LACK OF JURISDICTION
Before the Board is the government's motion to dismiss for lack of jurisdiction,
which has two bases: first, the government contends, appellant Bushra Company
(Bushra) failed to file its appeal with the Board within 90 days of receipt of the
contracting officer's final decision (COFD) terminating the subject contract for
default; second, the government argues, Bushra's later claim to the contracting officer
(CO) was (if timely) jurisdictionally defective because it did not include a sum certain.
Bushra's response is confined to a defense on the merits of this action, arguing that it
should not have had its contract terminated because of problems with the contracting
officer's email. Bushra makes no effort, whatsoever, to address the government's
challenges to our jurisdiction. The government's arguments prevail.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On 25 September 2006, the government's Joint Contracting Command for Iraq
and Afghanistan (JCC-1/A) awarded Contract No. M68450-06-M-7233 (the contract) to
appellant Bushra in the amount of $328,440.00 for the delivery of limestone at various
sites within Iraq (R4, tab 1 at 2-3). The contract's statement of work anticipated that
performance would begin within 7 days of the contract award and take no longer than
30 days to complete (id. at 3). The contract also included a clause from the Department
of Defense Federal Acquisition Regulation Supplement (DFARS) that provided that all
correspondence with the government would be conducted in English (id. at DFARS
252.225-7041, CORRESPONDENCE IN ENGLISH (JUN 1997)).
2. Bushra never made the deliveries required by the contract (R4, tab 14 at 11
(Bushra's 2015 "Claim for settlement for limestone contract")). Whether this was the
fault ofBushra, the government, or neither party is not relevant for resolution of the
pending motion.
3. The government terminated Bushra's contract for cause 1 on 18 February
2007 (R4, tab 4). The termination was received the same day (R4, tab 14 at 15). The
letter informed Bushra of its "right to appeal [the] determination under the Disputes
clause cited in [Federal Acquisition Regulation (FAR)] Part 33.211" (R4, tab 4 at 1).
The letter did not include language required by the FAR explaining the right to appeal
to the agency board of contract appeals within 90 days (see id., FAR 33.21 l(a)(3)(v)).
In addition to a letter to Bushra stating so, the government also issued a contract
modification effecting the termination on the same date (R4, tab 5 at 1).
4. On 25 June 2012, Bushra sent an email to the Army stating that it had been out of
Iraq "because of the security situation" and now wished to close out its contracts with the
United States military (R4, tab 5 at 2). The email requested that the Army inform Bushra
of the payments made on the contract (id.). The Army apparently responded to Bushra by
forwarding it a copy of the contract modification terminating it for cause (id. at 1).
5. Bushra made no attempt to challenge the termination for cause in any manner
until 5 August 2013, when it sent an email to Army contract closeout personnel
inquiring about the status of the contract (R4, tab 6). After some back and forth with
Army personnel, Ms. Joan Wysoske, Chief ofReachback Closeouts for the Army
Contracting Command, wrote to Bushra that the contract had been terminated for
Bushra's "failure to perform" and that a copy of the modification was sent to Bushra on
29 June 2012 2 (R4, tab 10 at 4). Ms. Wysoske also wrote that, "no compensation is
coming to you" (id. at 3). Bushra responded that its failure to perform was the Army's
fault (id.).
6. More email traffic followed, including a statement from Bushra
on 2 September 2013 that it "want[ ed] compensation equals to our lost money" (R4,
tab 10 at 2). On 3 September 2013, the Army told Bushra that it needed to submit a
claim telling the Army, "the exact amount of the money you wish the government to pay
you and why the government should pay you any compensation" (id.). On 10 September
2013, Bushra sent to the Army an email with an attachment that it characterized as its
"claim for settlement" (see id. at 1-2; R4, tab 13 (the apparent attachment)).
1
As in the referenced clause in the Federal Acquisition Regulation (FAR),
FAR 52.212-4(m), the government could use the terms "termination for cause"
and "termination for default" interchangeably.
2
The 29 June 2012 correspondence, itself, is not in any of the files produced in this
case, though the statement that there was such correspondence is consistent
with the documents in tab 5 of the Rule 4 file.
2
7. The 17-page attachment (Bushra's claim) consisted largely of "screen shots" of
email between Bushra and various Army personnel discussing performance of the
contract with a narrative interspersed between the screenshots (see R4, tab 13). We
construe it to be solely a challenge to the Army's termination for cause, and to constitute
an effort to recoup money that Bushra lost as a consequence of that termination (R4,
tab 13 at 15). In general, Bushra argued that its designated point of contact with the
Army, lLT Todd Lohstreter, was not receiving his emails as a result of a problem on
lLT Lohstreter's end and that this prevented Bushra from performing (R4, tab 13 at 4).
On page 15 ofBushra's claim, it stated that it needed to make a settlement for "all the
cost we spent under this contract" and then referred the reader to its agreement with the
Boad Almada company for limestone, which it purportedly paid (id. at 15). The
remaining two pages ofBushra's claim appear to be in Arabic and include some tables
with numbers in them, but it is not clear what the numbers represent or in what
denomination they would be if the figures actually are costs (see id. at 16-17).
8. Ms. Wysoske informed Bushra, on 26 September 2013, that the document
referred to as Bushra' s claim did not, in fact, constitute a claim because it did not include
the amount of money requested from the government and, ifthat amount were greater than
$100,000, it needed to be certified (R4, tab 10 at 1). She also attached a sheet of
instructions about how to file a claim (id.). On 17 October 2013, Ms. Wysoske, in
response to a follow-up email from Bushra, informed it that she "reject[ed]" its claim as
"untimely and unsupported" and added that Bushra never gave her a "dollar amount of the
claim" (R4, tab 11 ).
9. There, things laid for a little more than a year, until 28 October 2014, when
Bushra sent another email to the Army, essentially resubmitting the identical claim,
dated 10 September 2013, that Ms. Wysoske had earlier "reject[ed]" (R4, tab 13). The
Army responded on the same date, explaining that it had reviewed the documentation
provided by Bushra and that "[n]o payment will be made" (R4, tab 12 at 1). On
5 January 2015, Bushra again sent an email to the Army attaching the same claim and
requesting a response (R4, tab 14).
10. On 8 January 2015, CO Thomas Petkunas issued what he characterized as a
"final decision," rejecting the claim (R4, tab 15 at 1). This "final decision" noted that
the claim was "untimely and unsupported" and that Bushra never gave a dollar amount
for the claim (id.). It also noted that the contract had been terminated for cause on
18 February 2007 and went on to explain Bushra's appeal rights under the Contract
Disputes Act (id.).
11. Bushra filed an appeal with the Board on 7 April 2015 - within 90 days of
the 8 January 2015 letter.
3
DECISION
We do not possess jurisdiction to consider this appeal because Bushra's appeal
of the CO's decision to terminate the contract for default was presented to us more
than 90 days after receipt of the final decision terminating the contract for cause.
The timeliness of appealing a CO' s final decision is a matter of the
Board's jurisdiction. See 41U.S.C.§7104 (2011) (formerly 41U.S.C.§606);
Cosmic Construction Co. v. United States, 697 F.2d 1389, 1390 (Fed. Cir. 1982)
(requirement that appeal be made within 90 days is jurisdictional).
By statute, any challenge to a CO's decision must be brought before the Board
within 90 days of that decision being received by the contractor. 41 U.S.C. § 7104;
Cosmic Constr., 697 F.2d at 1390; Decker & Co. v. West, 76 F.3d 1573, 1578
(Fed. Cir. 1996) (citing Cosmic Constr., 697 F.2d at 1390). In the case of a
termination for cause, such as the one presented here, receipt of notification of the
CO's decision to terminate for cause begins the 90-day clock. Placeway Constr. Corp.
v. United States, 920 F.2d 903, 906-07 (Fed. Cir. 1990).
Here, it is undisputed that Bushra was informed of its termination for default more
than 90 days before its appeal. The first such notification occurred on 18 February 2007,
when the Army notified Bushra of its termination, and Bushra, in fact, received this
termination letter the same day (SOF ii 3). Bushra did not file an appeal before 19 May
2007, the 91 st day after notification of contract termination. At that date, this Board lost
its jurisdiction to consider Bushra's appeal.
Although the Army's termination letter failed to include language required by
the FAR fully explaining its appeal rights, that deficiency, alone, does not prevent the
letter from triggering the limitation period. The letter did refer Bushra to the proper
FAR provisions explaining how to appeal the CO's decision (see SOF ii 3), and if
Bushra does not prove that the letter's failure to more directly set forth the means
of appeal caused it actual prejudice, it cannot use the deficiency to invalidate the
decision and vitiate its finality. See Decker & Co., 76 F.3d at 1579 (requiring proof of
detrimental reliance); see also Mansoor International Development Services,
ASBCA No. 58423, 14-1 BCA ii 35,742 at 174,926. Bushra, quite simply, has made
no allegation that it was misled by the letter (indeed, it made no allegation in defense
of the government's motion, whatsoever), and thus, the deficient notice of appellate
rights does not invalidate the termination letter's starting of the appellate clock.
See Medina Contracting Co., ASBCA No. 53783, 02-2 BCA ii 31,979 at 158,020
(declining to presume prejudice when not alleged by appellant).
Similarly, Bushra's oblique reference, in its 25 June 2012 email to the
government, to having been absent from Iraq for a time due to "the security situation"
there (see SOF ii 4 ), does not change matters. Bushra has not alleged that its absence
4
from Iraq (during an unspecified period of time that apparently ended some time prior to
25 June 2012) in any way prevented it from accessing its email and being aware of its
termination for cause or that in any way it was hindered from pursuing its appeal rights in
a timely manner. Moreover, even if "the security situation" provided a full and complete
factual and legal excuse for Bushra to withhold its appeal until the situation were
resolved (which it does not), by 25 June 2012, at the latest, Bushra was free enough of
those concerns to be corresponding with the government about its contract. No
correspondence beyond the 25 June 2012 inquiry was filed before 24 September 2012,
the 91 st day. Thus, under no circumstances can the security situation in Iraq justify
Bushra's failure to file a timely appeal.
We further note that the government's communication with Bushra in 2013 and
2014, acceptance of its claim3 and issuance of an apparently superfluous COFD has no
effect upon our jurisdiction here. To be sure, there are cases in which the
government's signaling to the parties that it was reconsidering a claim acted to stay the
running of the appeal period, see, e.g., Guardian Angels Medical Service Dogs, Inc. v.
United States, 809 F.3d 1244 (Fed. Cir. 2016); Sach Sinha and Associates, Inc.,
ASBCA No. 46916, 95-1ii27,499 at 137,040, but there is no evidence in this record
that reconsideration occurred, nor does Bushra claim that it did. Moreover, it is
well settled that communications after conclusion of the appeal period "perforce
could not have had any effect" on the view of the finality of the termination decision
during the appeal period. Shafi Nasimi Constr. & Logistics Co., ASBCA No. 59916,
16-1BCAii36,215.
Thus, we conclude that Bushra did not file a timely notice of appeal.
CONCLUSION
For the reasons stated herein, we dismiss ASBCA No. 59918 for lack of
jurisdiction.
Dated: 22 April 2016
J.~
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
3
To be clear, the only claim in this case is the government's termination for default.
5
I concur I concur
deM/,/M---
N. STEMPLER
Administrative Judge
~CKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of
the Armed Services Board of Contract Appeals in ASBCA No. 59918, Appeal of
Bushra Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
6
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN HERMAN,
Plaintiff-Appellant,
v. No. 99-8054
(D.C. No. 97-CV-1063)
DAVID DOVALA, Sheriff, in his (D. Wyo.)
official capacity as Natrona County
Sheriff; WILLIAM H. SCHREFFLER,
Lieutenant, in his official capacity as a
Natrona County Sheriff’s Officer,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant John Herman appeals from the district court’s order
granting summary judgment in favor of appellees on his complaint brought
pursuant to 42 U.S.C. § 1983. We affirm.
Appellant and his fiancée, Dara Kinion, sought permission to marry while
they were incarcerated together at the Natrona County Detention Center (NCDC)
in Casper, Wyoming. Appellant was in pretrial detention and Ms. Kinion
was awaiting transportation to Wyoming’s state prison for women in Lusk.
Ms. Kinion was eight months pregnant. Appellant asserted that he was the father
of the child to be born and that his religious beliefs required him to be married to
Ms. Kinion prior to the child’s birth.
Appellee Schreffler responded to appellant’s request as follows:
Our Policy is and has been that we do not allow marriages within the
facility or transport inmates to have a ceremony p[er]formed.
Permitting marriages on demand would put a great burden on our
resources and create security concerns that would greatly
jeop[a]rdize the security of this facility and put officers in un[due]
danger.
R. doc. 28, ex. 3.
Appellant thereafter brought this action, asserting violation of his right
to marry under Turner v. Safley , 482 U.S. 78 (1987) and Zablocki v. Redhail ,
434 U.S. 374 (1978), and violation of his First and Eighth Amendment rights.
Appellees filed an initial motion for summary judgment, in which they asserted
that their policy of prohibiting pretrial detainees from marrying was “entirely
-2-
reasonable and supported by legitimate penological objectives.” R. doc. 17 at 3.
This motion was supported by an affidavit from Lieutenant Schreffler justifying
NCDC’s policy against marriages at the facility. The district court denied this
motion for summary judgment.
Just over a month before the scheduled trial date, appellees filed a renewed
motion for summary judgment. In this motion, they asserted that appellant lacked
standing to raise his claim because he had not obtained a marriage license as
required under Wyoming law. 1
The district court granted the renewed summary
judgment motion.
We review the district court’s order of summary judgment de novo,
applying the same standards that the district court applied. See McKnight v.
Kimberly Clark Corp ., 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment
should be granted if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
1
The second motion was supported by a supplemental affidavit from
Lt. Schreffler. In this affidavit, he averred: “Had a marriage license been issued
and plans previously arranged, my response [to appellant’s request to be married]
might have been different.” R. doc. 28 at 3. We need not try to reconcile this
new approach with the sweeping prohibition on marriage asserted in Schreffler’s
first affidavit. Our decision here would be the same even without this belated
concession to the rights of prisoners.
-3-
Standing is a threshold requirement of any proceeding in federal court.
See Baca v. King , 92 F.3d 1031, 1035 (10th Cir. 1996). At a minimum, the
constitutional dimension of standing requires: (1) that the plaintiff suffered an
injury in fact, an invasion of a legally protected interest; (2) that the injury is
fairly traceable to the defendant’s action which plaintiff challenges; and (3) that
it is likely the injury will be redressed by a favorable decision. See id.
The summary judgment evidence shows that although appellant obtained
an application for a marriage license, he never actually obtained the license. 2
Under Wyoming law, appellant could not have been married without a license.
Wyo. Stat. § 20-1-103(a) (Lexis 1999). The Natrona County Clerk testified that
she would not have granted appellant a marriage license unless either he or his
fiancée appeared personally before her, or he obtained a court order waiving the
personal appearance requirement. 3
Appellant satisfied neither of these criteria.
2
Although appellant mistakenly stated in his answers to interrogatories that
he had obtained a marriage license, he now appears to concede that he only
obtained and completed an application form for the license, but never actually
obtained it. See Appellant’s Br. at 9, 13.
3
Appellant does not assert that appellees were constitutionally required to
transport him or his fiancée to the offices of the Natrona County Clerk. The
Clerk is not a party to this action.
-4-
Nor does the evidence show that appellees affirmatively prevented appellant
from obtaining the license. 4
Appellant correctly states that he did not have to actually possess a license
to have standing, so long as he retained some possibility of obtaining one. In
Village of Arlington Heights v. Metropolitan Housing Development Corp. ,
429 U.S. 252 (1977), for example, a contractor seeking injunctive and declaratory
relief challenged an allegedly racially discriminatory city housing ordinance.
The contractor, MHDC, sought to construct a low-income housing project called
Lincoln Green. The city argued that the contractor lacked standing. The Supreme
Court disagreed, stating:
An injunction would not, of course, guarantee that Lincoln Green
will be built. MHDC would still have to secure financing, qualify for
federal subsidies, and carry through with construction. But all
housing developments are subject to some extent to similar
uncertainties. When a project is as detailed and specific as Lincoln
Green, a court is not required to engage in undue speculation as a
predicate for finding that the plaintiff has the requisite personal stake
in the controversy.
Id. at 261.
4
Appellant claims the appellees moved his fiancée to Lusk to prevent the
marriage, and she took the application for marriage license with her. He claimed
that prison policy prevented him from writing to her about the application because
they were not married. Appellees presented unrebutted evidence that they were
obligated to transfer Ms. Kinion to Lusk. Appellant’s claim falls short of an
affirmative showing that appellees prevented appellant from obtaining the license.
-5-
In other words, even though the plaintiff in Arlington Heights did not show
that it had obtained all the requisite permits and approvals, and even though it had
not actually constructed the project, it still had standing to challenge the
discriminatory obstacle defendants had created that lay between it and the
ultimate goal of building a housing project. The plaintiff had standing because it
was still possible for it to obtain the required permits and approvals. Similarly,
appellant here had standing to seek prospective relief, so long as he could have
obtained a marriage license. Once appellant left NCDC in the fall of 1998,
however, his claim for prospective relief became moot. His remaining claim
for damages stood on quite a different footing. The question concerning standing
was no longer whether he could still obtain a marriage license, but whether he
had obtained one during the time period of his injury. 5
He had not.
5
In Northeastern Florida Chapter of the Associated General Contractors of
America v. City of Jacksonville , 508 U.S. 656 (1993), the Supreme Court
addressed an argument that a petitioner challenging a minority business set-aside
program lacked standing because he could not show that he would have been the
successful bidder. The Supreme Court stated that in that case, the injury in fact
was the denial of equal treatment from the imposition of the barrier, not the
ultimate inability to obtain the benefit. See id. at 666. This court has explained
that Northeastern Florida applies to cases where a plaintiff has been denied the
opportunity to compete for a benefit on the basis of race or gender. See Byers v.
City of Albuquerque , 150 F.3d 1271, 1276 (10th Cir. 1998). It does not have
application to the circumstances of this case. See Fulani v. Bentsen , 35 F.3d 49,
54 (2d Cir. 1994) (holding Northeastern Florida did not apply where plaintiff
would have been excluded from receiving benefit even if the defendants had taken
the action she sought).
-6-
The harm for which appellant seeks relief, his inability to marry his fiancée
while at NCDC, did not result from an action of the appellees. Rather, it was
due to appellant’s own failure to obtain a marriage license. Given this failure,
appellant lacks standing to bring this action for damages. See, e.g., Warth v.
Seldin , 422 U.S. 490, 506 (1975) (holding that petitioners challenging Penfield,
New York, zoning ordinance lacked standing because the evidence showed “that
their inability to reside in Penfield is the consequence of the economics of the
area housing market, rather than of respondents’ assertedly illegal acts.”); Byers
v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998) (holding that white
male police officers lacked standing to challenge allegedly discriminatory changes
in promotional process, where they would not have made the original proposed
promotional list even absent the challenged changes); cf. Moose Lodge No. 107 v.
Irvis , 407 U.S. 163, 166-67 (1972) (holding African-American lacked standing to
challenge lodge’s refusal to allow African-Americans to become members when
he never applied for membership).
Appellant also brings procedural challenges to the district court’s order.
He contends that appellees waived the standing defense by failing to raise it until
their renewed summary judgment motion. Standing is, however, a jurisdictional
defense that may be raised at any time. See Buchwald v. University of N.M. Sch.
of Med. , 159 F.3d 487, 492 (10th Cir. 1998). We therefore reject this contention.
-7-
Finally, appellant contends that the district court erred by allowing
appellees to file an untimely summary judgment motion asserting lack of
standing, which was not served on him in a timely manner. Given the district
court’s obligation to inquire into standing and the jurisdictional nature of its
determination, the district court did not abuse its discretion by considering the
motion, even if it was untimely. To the extent appellant claims he was deprived
of time for adequate research or preparation by what he calls appellees’
procedural “machinations,” he fails to show what additional evidence or argument
he could have presented that would have achieved a different result.
-8-
The judgment of the United States District Court for the District of
Wyoming is therefore AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
-9-
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Case: 14-10222 Date Filed: 12/12/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10222
Non-Argument Calendar
________________________
D.C. Docket No. 4:91-cr-00176-BAE-GRS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERMAINE GRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(December 12, 2014)
Before TJOFLAT, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Jermaine Graham is a federal-prison inmate serving consecutive sentences,
imposed on January 19, 1992, of 360 months for conspiracy to possess with intent
Case: 14-10222 Date Filed: 12/12/2014 Page: 2 of 5
to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and 60
months for use of a firearm in relation to that conspiracy, in violation of 18 U.S.C.
§ 924(c). On November 6, 2013, he moved the District Court to reduce his 360-
month sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court denied his
motion. He appeals the ruling, arguing that the District Court abused its discretion
in weighing the relevant purposes of sentencing set out in 18 U.S.C. § 3553(a)(2)
and in continuing to require that the 60-month sentence run consecutively.
Pursuant to § 3582, a district court may modify a term of imprisonment that
was based on a Guidelines sentence range that has subsequently been lowered by
the United States Sentencing Commission. 18 U.S.C. § 3582(c)(2). A
§ 3582(c)(2) proceeding does not constitute a de novo resentencing, and “all
original sentencing determinations remain unchanged with the sole exception of
the guideline range that has been amended since the original sentencing.” United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis omitted); see also
U.S.S.G. § 1B1.10(b)(1) (providing that all other Guidelines application decisions
remain unaffected).
Amendment 750 to the Guidelines amended the drug-quantity table in
U.S.S.G. § 2D1.1(c) to reduce offense levels in crack-cocaine cases. See U.S.S.G.
app. C, amend. 750 (2011). Amendment 750 was made retroactive by Amendment
2
Case: 14-10222 Date Filed: 12/12/2014 Page: 3 of 5
759, effective November 1, 2011. See id., amend. 759 (2011); see also U.S.S.G.
§ 1B1.10.
In deciding whether to apply a retroactive amendment to an eligible
defendant, the district court must follow a two-step process: (1) first, the district
court must determine what sentence it would have imposed after substituting the
amended Guidelines range for the original Guidelines range; and (2) second, the
district court must determine whether it will impose the newly calculated sentence
or retain the original sentence. United States v. Vautier, 144 F.3d 756, 760 (11th
Cir. 1998). Although the district court is required to complete both steps, the
decision of whether to reduce an eligible defendant’s sentence at all remains
entirely discretionary. Id.
In conducting the second step, the district court must first consider the
statutory factors listed in 18 U.S.C. § 3553(a). Bravo, 203 F.3d at 781; Vautier,
144 F.3d at 760; U.S.S.G. § 1B1.10 cmt. n.1(B)(i) (providing that the court “shall
consider the factors set forth in 18 U.S.C. § 3553(a) in determining” whether the
reduction is warranted and the extent of the reduction). Second, the district court
must consider public safety. See U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) (“The court
shall consider the nature and seriousness of the danger to any person or the
community that may be posed by a reduction in the defendant’s term of
imprisonment in determining: (I) Whether such a reduction is warranted; and (II)
3
Case: 14-10222 Date Filed: 12/12/2014 Page: 4 of 5
the extent of such reduction, but only within the limits described in subsection
(b).”). Third, the district court may consider the defendant’s post-sentencing
conduct that occurred after the original sentence was imposed. See id. at cmt.
n.1(B)(iii).
A district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the district court must also consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
the kinds of sentences available, the applicable Guidelines range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)–(7).
We find no abuse of discretion in the District Court’s denial of Graham’s
§ 3582(c)(2) motion and in retaining Graham’s original total sentence of
imprisonment, 420 months. Graham does not contend that the District Court erred
in calculating his new Guidelines sentence range, as required by Amendment 750.
The District Court fully considered the sentencing purposes set out in § 3553(a)(2),
4
Case: 14-10222 Date Filed: 12/12/2014 Page: 5 of 5
the public’s safety, and Graham’s post-sentencing conduct; it found that those
factors warranted the same sentence of 360 months it imposed for the conspiracy
offense. Section 924(c) required that the 60-month sentence be imposed
consecutively, so the District Court lacked the authority to disturb that sentence.
AFFIRMED.
5
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542 Pa. 568 (1995)
669 A.2d 315
COMMONWEALTH of Pennsylvania, Appellant,
v.
Stephon JOHNSON, Appellee.
Supreme Court of Pennsylvania.
Argued September 19, 1995.
Decided December 27, 1995.
*569 *570 *571 Jenifer Shirey, Erie, for the Commonwealth.
John M. Bonanti, Erie, for Appellee.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
OPINION
MONTEMURO, Justice.
This is an appeal from the Opinion and Order of the Superior Court of Pennsylvania (en banc), affirming the Order of the Court of Common Pleas of Erie County, Juvenile Division. While we disagree with the reasoning set forth by the Superior Court, we nevertheless affirm the result.
On October 28, 1991, Appellee Stephon Johnson was charged with the crimes of Criminal Homicide,[1] Criminal Conspiracy (to commit robbery),[2] Robbery,[3] Theft by Unlawful Taking,[4] and Receiving Stolen Property[5] for his involvement in an incident on October 18, 1991, which resulted in the death of Richard Stevens, an Erie cab driver.
The record reveals that on October 18, 1991, Johnson and his co-defendants had a friend call for a cab. Intending to rob *572 the cab driver, they directed the driver to a dark and deserted place. Eventually, one of Johnson's co-defendants, Ricardo Noble, shot the cab driver in the head. They all ran from the scene, with Johnson grabbing a clipboard and a satchel from the cab.
Johnson was only sixteen (16) years old at the time of the incident, but pursuant to 42 Pa.C.S. § 6355(e),[6] he was charged as an adult. Johnson filed a petition under 42 Pa.C.S. § 6322,[7] requesting that his case be transferred to the juvenile division. This petition was granted, and Johnson was adjudicated delinquent. The Commonwealth appealed, questioning the propriety of the order transferring the case to the juvenile division.
This case presents several important questions for our review. The first is whether an order transferring a murder case from the Criminal Division of the Court of Common Pleas to the Juvenile Division of the Court of Common Pleas, pursuant to section 6322 of the Juvenile Act, 42 Pa.C.S. § 6301, et. seq., is an interlocutory order that cannot be appealed until a final disposition of the case has been made. The second issue deals with whether the appeal of an order *573 transferring a murder case from the criminal division to the juvenile division, pursuant to section 6322, taken after the disposition of the case by the juvenile division, is barred by the double jeopardy protections of the United States and Pennsylvania Constitutions. Finally, assuming the appeal is timely and criminal prosecution is not barred, we must determine whether the lower court committed gross abuse of discretion by transferring Johnson's case to the juvenile division.
In support of its contention that the appeal is timely, the Commonwealth relying on section 6355(f)[8] of the Juvenile Act, asserts that all transfer orders are interlocutory; therefore, it was required to wait until Johnson's adjudication and disposition was final, before it could appeal the transfer order.
Section 6355(f) only expressly governs transfers from the juvenile division to the criminal division. The Commonwealth argues that we can infer that the legislature intended to treat all transfers between the two divisions in the same way. However, this argument ignores the practical difference between the two situations. Overwhelmingly, a challenge to an order transferring a case from the juvenile division to the criminal division will be made by the juvenile. Therefore, by asserting the challenge, the juvenile impliedly waives his claim to relief under the double jeopardy clause. Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960), reh'g denied, 362 U.S. 937, 80 S.Ct. 749, 4 L.Ed.2d 751 overruled on other grounds, United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). On the other hand, a challenge to an order transferring a case from the criminal division to the juvenile division will generally be asserted by the Commonwealth. As such, there is no waiver by the juvenile of his right to be free from double jeopardy.
*574 In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court of the United States established that the double jeopardy doctrine precludes criminal prosecution, following an adjudication of delinquency by a juvenile court. Id. However, this principle is premised on the assumption that the adjudicatory hearing was properly convened and the court was acting within its jurisdiction. 18 Pa.C.S. § 112. See also Commonwealth v. Keenan, 365 Pa.Super. 437, 530 A.2d 90 (1987) (reprosecution on same charges in court with jurisdiction not barred by double jeopardy, following setting aside of guilty verdict and ordering of new trial for lack of subject matter jurisdiction in original court). Accordingly, if a transfer to the juvenile division is proper, then jurisdiction would vest with the juvenile division, jeopardy would attach at the initiation of the adjudicatory hearing, and subsequent criminal prosecution would be barred. A problem arises, however, when the transfer is improper. In those instances, the case should have remained in the criminal division and no action should have been taken by the juvenile division. This raises the questions of whether jurisdiction ever vested with the juvenile division and whether jeopardy attached with the adjudication by that division.
In Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978), this Court dealt with the propriety of a transfer from the juvenile division to the criminal division. We concluded that the transfer was improper and that the criminal division had acted without authority to convict and sentence the juvenile. Accordingly, we vacated the sentence and remanded the case for disposition by the juvenile division.[9] This Court has *575 not, however, dealt with an appeal challenging the propriety of a transfer from the criminal division to the juvenile division and the repercussions that flow therefrom.
In this case, the Superior Court found that section 952 of the Judicial Code, 42 Pa.C.S. § 952, which provides:
The divisions of a court of common pleas are administrative units composed of those judges of the court responsible for the transaction of specified classes of business of the court. In a court of common pleas having two or more divisions each division of the court is vested with the full jurisdiction of the whole court, but the business of the court may be allocated among the divisions of the court by or pursuant to general rules.
controlled the jurisdictional issue. Id. The court interpreted this provision to mean that no division has separate or exclusive subject matter jurisdiction, rather every division has jurisdiction to hear any matter that could be brought in the court of common pleas.
To support its interpretation, the Superior Court cites Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978), on remand, 266 Pa.Super. 56, 403 A.2d 91 (1979), reversed on other grounds, 492 Pa. 35, 422 A.2d 124 (1980). However, this case is more appropriately cited for its resolution of a procedural flaw. Id. 485 Pa. at 255, 401 A.2d at 1133. Here, the appellant erroneously filed a petition for a writ of certiorari to the court of common pleas. Id. at 251, 401 A.2d at 1130. The proper procedure would have been to file a petition for a general appeal and a hearing de novo. Id. Before the restructuring of the court of common pleas, this latter appeal could only be heard by the Court of Quarter Sessions. As that court was abolished with the restructuring, a general appeal would now be heard by the court of common pleas. Therefore, the court was not confronted with a true conflict between jurisdiction of two divisions of the court of common pleas, rather it was simply required to determine what scope *576 of review to apply. As the court recognized that the problem was merely a procedural flaw in the filing of the petition, it treated the case as though appellant properly filed for a general appeal. Id. at 255, 401 A.2d at 1133.
The Superior Court also cites Guerin v. Guerin, 296 Pa.Super. 400, 442 A.2d 1112 (1982), which stated that since each division of a court of common pleas is vested with the full jurisdiction of the whole court, any division would have jurisdiction over the action at issue, regardless of whether it was the division to which this type of case had been administratively assigned. Id. at 404 n. 3, 442 A.2d at 1113-14 n. 3. However, this statement by the court is merely dicta, as the case did not question the jurisdiction of the lower court that dismissed the complaint.
Finally, the Superior Court cites Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985), for the proposition that the question of which division of the court of common pleas is the proper forum for commencing an action is not one of jurisdiction, but of internal common pleas court administration. Id. at 319, 500 A.2d at 852. The basis for the decision in Hollman can be traced to Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973). The court appears to treat a statement made in the opening paragraph of the Posner opinion as part of this Court's holding. In this paragraph, this Court stated that "[t]he question that this case presents is not one of jurisdiction but of internal common pleas court administration." Id. at 55, 299 A.2d at 311. However, reliance on Posner for this proposition seems to ignore the fact that this Court ultimately vacated the decree, stating that "the issue was improperly entertained in the family court division, and, more importantly, that court's decree was incorrect as a matter of law." Id. at 57, 299 A.2d at 312 (emphasis added). Moreover, this court went on to note that the case at bar fell within the jurisdiction of the civil division. Id. at 59 n. 7, 299 A.2d at 313 n. 7 (emphasis added).
If we were to follow the Superior Court's interpretation, we could encounter some rather absurd results. For example, an adult erroneously believed to be a juvenile could have his case *577 heard by the juvenile division. Obviously, the court would follow its own procedures and minimal set of rules. It would make its final determination and dispose of the case using the limited methods of rehabilitation available. This adjudication would, nonetheless, be binding and would preclude proper prosecution in the criminal division, due to the double jeopardy protections.
In light of this Court's actual holding in Posner and the practical differences between the juvenile and criminal divisions, a more reasonable reading of section 952 would give every division of the court of common pleas the jurisdiction to transfer any case properly heard in the court of common pleas to the proper division having subject matter jurisdiction over that particular matter. This would also take into account the fact that the power and authority of the court of common pleas is defined and limited by legislation.[10] Clearly, the Juvenile Act is the type of legislation which exemplifies the legislature's desire to vest limited and exclusive jurisdiction in one division of the court of common pleas, in order to meet the special needs of our youth.
This Court has on prior occasions found that the decision to transfer a case between the juvenile and criminal divisions is jurisdictional. Commonwealth v. Moyer, 497 Pa. 643, 646, 444 A.2d 101, 102 (1982) (issue of certification is jurisdictional); Commonwealth v. Greiner, 479 Pa. 364, 372, 388 A.2d 698, 702 (1978) (criminal court acted without authority in trying appellant as an adult); see also Commonwealth v. Leatherbury, 390 Pa.Super. 558, 560, 568 A.2d 1313, 1315 (1990) (motion to transfer criminal proceedings to juvenile court presents jurisdictional issues); Commonwealth v. Zoller, 345 Pa.Super. 350, 353, 498 A.2d 436, 438 (1985) (motion for transfer was a jurisdictional issue).
*578 However, the Superior Court interprets footnote 4 in Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975),[11] to mean that the propriety of the transfer orders in these cases actually raises "a `non-jurisdictional' question which would ordinarily have been waived by the defendant's guilty plea, but which was instead not waived because of `unusual circumstances.'" Commonwealth v. Johnson, 435 Pa.Super. 132, 148, 645 A.2d 234, 243 (1994).
This interpretation, however, does not comport with this Court's use of the term "jurisdictional" throughout the remainder of the Pyle opinion. Moreover, our subsequent opinion in Moyer, citing Pyle, which expressly stated that the issue of certification is jurisdictional and, therefore, not waivable, supports an alternative interpretation.
Furthermore, this Court has made the distinction between jurisdictional and non-jurisdictional non-waivable issues. For example, the issue of the legality of a sentence clearly is not jurisdictional, but it is not waivable. Commonwealth v. Padden, 335 Pa.Super. 51, 54, 483 A.2d 950, 951 (1984). If the Superior Court's interpretation of the issue in this case is correct, there would not have been any need to make this distinction. All the non-waivable issues would simply be either "jurisdictional" or "non-waivable."
We find that the term "jurisdictional," when used in this context, is best defined by its plain meaning "the power, right, or authority to interpret and apply the law" or "the limits or territory within which authority may be exercised." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 655 (1986). This definition is supported by our holding in Greiner, where we found that the criminal division was without the authority *579 to try and sentence the juvenile and vacated the sentence. 479 Pa. at 372, 388 A.2d at 702 (emphasis added). Accordingly, we find that the transfer order in question is jurisdictional in every sense of the term. Hence, if the challenged order is improper, jurisdiction does not vest with the receiving court. If jurisdiction does not vest with the court, then jeopardy likewise does not attach.
Consequently, we must turn to the propriety of the transfer order at issue in this case, in order to make a final determination as to the proper disposition of this case.
Section 6322 of the Juvenile Act clearly establishes that, in general, the prosecution of juveniles charged with criminal offenses is within the exclusive jurisdiction of the juvenile division. 42 Pa.C.S. § 6322. However, when the juvenile is charged with murder, jurisdiction remains with the criminal division, subject to the possibility of transfer to the juvenile division. Id. See Pyle, 462 Pa. at 622 n. 12, 342 A.2d at 106 n. 11 (1975) (In cases of delinquency, the juvenile court is given exclusive jurisdiction in the first instance. In cases of murder, however, jurisdiction is originally in criminal court.).
When a juvenile seeks to have his case transferred from the criminal division to the juvenile division, he must show that he is in need of and amenable to treatment, supervision or rehabilitation in the juvenile system. Id. at 622-23, 342 A.2d at 106. If the evidence presented fails to establish that the youth would benefit from the special features and programs of the juvenile system and there is no special reason for sparing the youth from adult prosecution, the petition must be denied and jurisdiction remains with the criminal division. Id. at 623, 342 A.2d at 107.
The legislature was silent as to what a court should consider, when reviewing a motion for transfer from the criminal division to the juvenile division. However, criteria relevant to this determination can be found in 42 Pa.C.S. § 6355(a)(4)(iii)(A), governing transfers from the juvenile division to the criminal division. These factors include the juvenile's age; mental capacity; maturity; degree of criminal *580 sophistication; previous record; nature and extent of any prior delinquent history; whether the child can be rehabilitated prior to expiration of Juvenile Court jurisdiction; probation or institutional reports; nature and circumstances of the acts for which the transfer is sought; and any other relevant factors. 42 Pa.C.S. § 6355(a)(4)(iii)(A).
It is clear from the language of the act that a transfer in a murder case is not a matter of right, and the determination of whether the interests of the state and society require prosecution as an adult is within the sound discretion of the trial court. Commonwealth v. Zoller, 345 Pa.Super. 350, 355, 498 A.2d 436, 439 (1985). Moreover, "[s]uch abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will." Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145 (1983), aff'd, 504 Pa. 124, 470 A.2d 498 (1983).
In this case, the trial court reviewed the preliminary hearing transcript and approximately six statements given by the defendant to the police. These documents revealed that Johnson turned himself in to the police and cooperated with them to the extent of giving numerous statements and testified at the preliminary hearing.
The trial court also noted that little or no evidence was presented to indicate that Johnson would be found guilty of first degree murder, thereby subjecting him to a possible death penalty. In fact, most, if not all, of the evidence presented indicated that Johnson would not be guilty of murder in the first degree.
Additionally, the trial court accepted the testimony, findings, conclusions, diagnosis and treatment recommendations of Russell Barton, M.D.[12] Dr. Barton testified that he reviewed various documents and conducted extensive interviews with Johnson's family, friends, ministers, etc., and Johnson himself. *581 He also administered a battery of psychological and intelligence tests. He concluded that Johnson had a mild identity disorder, which resulted in poor self-image, a lack of self-confidence, and an inability to assert himself. Dr. Barton found that Johnson had a good sense of right and wrong and that he had a history of amenability to authority, particularly with those he liked, respected and with whom he had established a rapport. Dr. Barton concluded, to a reasonable degree of psychiatric certainty, that the most appropriate form of treatment for Johnson would simply be access to a good counseling system one to three times per week and that Johnson would clearly be amenable to such treatment within the juvenile system. He also concluded that Johnson would be rehabilitated within the three to three and one-half years that he would be under the supervision of the juvenile system.
The trial court also accepted the testimony of Robert Blakely, an assistant supervisor involving treatment plans in the juvenile system, who stated that such ordinary counseling exists within the juvenile system.
The court noted that Johnson has had a stable home life, done housework regularly for his mother, obeyed most of her stringent rules, babysat for neighbors, volunteered at the City Mission and actively participated in church activities. He has attended school regularly, with no unexcused absences over a five year period.
The trial court considered that Johnson was seventeen (sixteen at the time of the offense), and that even though he was the oldest of the three co-defendants, he was the least criminally sophisticated, still somewhat immature and was physically the shortest, smallest and weakest. Moreover, the court acknowledged that Johnson had no prior record of delinquency, had never been involved with the juvenile system, and was the first to turn himself in to the police shortly after the incident.
The court found that Johnson was non-aggressive and nowhere near mature enough, physically, mentally or emotionally, to cope with adult placement. More importantly, he could be successfully rehabilitated within the juvenile system.
*582 Accordingly, the court found that Johnson met his burden of proving that he needs treatment in the juvenile system, that he is amenable to such treatment and that he can be rehabilitated with such treatment. Therefore, it granted Johnson's motion to transfer to the Juvenile Division.
Therefore, while we agree that the transfer order in question is interlocutory, we cannot agree that the Commonwealth must or should wait until final disposition by the juvenile division before seeking its appeal. Although, based on the analysis of this case, the double jeopardy clause would not have prevented prosecution in the criminal division had it been deemed proper, the resolution of the propriety of the transfer order does raise an important jurisdictional issue. Therefore, based on the rationale of the double jeopardy clause, we should endeavor to avoid unnecessarily placing an individual through the stress and burden of two separate proceedings for the same conduct. Accordingly, an appeal of an order transferring a case from the criminal division to the juvenile division is more appropriately aligned with cases falling under Pennsylvania Rule of Appellate Procedure 311(d).[13] Therefore, we hold that these orders are immediately appealable as of right.
As the court's explanation demonstrates that it fully considered the factors set forth in § 6355(a)(4)(iii)(A), we find that the trial court did not abuse its discretion when it transferred the case to the juvenile division. Accordingly, the adjudication and disposition of Johnson by the juvenile division must stand.
NIX, C.J., concurs in the result.
MONTEMURO, J., participates by designation as a senior judge as provided by Rule of Judicial Administration 701(f).
NOTES
[1] 18 Pa.C.S. § 2501.
[2] 18 Pa.C.S. § 903.
[3] 18 Pa.C.S. § 3701.
[4] 18 Pa.C.S. § 3921.
[5] 18 Pa.C.S. § 3925.
[6] This provision states:
§ 6355. Transfer to criminal proceedings
(e) Murder. Where the petition alleges conduct which if proven would constitute murder, the court shall require the offense to be prosecuted under the criminal law and procedures, except where the case has been transferred pursuant to section 6322 (relating to transfer from criminal proceedings) from the division or a judge of the court assigned to conduct criminal proceedings.
[7] This section provides in relevant part:
§ 6322. Transfer from criminal proceedings
(a) General rule. Except as provided in 75 Pa.C.S. § 6303 . . . if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this chapter applied.
[8] This section provides, in relevant part:
§ 6355. Transfer to criminal proceedings
(f) Transfer action interlocutory. The decision of the court to transfer or not to transfer the case shall be interlocutory.
[9] There was no evidence that the Commonwealth attempted to relitigate the case in the juvenile division. However, as stated earlier, a subsequent adjudicatory hearing would not have been barred, as the juvenile impliedly waived his claim to double jeopardy protection when he challenged the original conviction.
Although a subsequent hearing would be permissible, such a hearing would seem to be unnecessary, as the criminal proceedings would have been more than sufficient to establish delinquency. It should be noted that the converse would not hold true. A juvenile adjudicatory hearing would not satisfy the standards required in a criminal proceeding; therefore, the juvenile would have to be retried, applying the more stringent rules of criminal procedure.
[10] Article V, Section 5 of the Constitution of Pennsylvania provides:
There shall be one court of common pleas for each judicial district (a) having such divisions and such number of judges as shall be provided by law, one of whom shall be president judge; and (b) having original unlimited jurisdiction in all cases except as may be provided by law.
PA. CONST. art. V, § 5 (emphasis added).
[11] In footnote 4, this Court stated:
Absent unusual circumstances, a guilty plea constitutes a waiver of any non-jurisdictional defects or defenses. However, since one of the prime purposes of the Juvenile Act is to spare from adult punishment certain youths whose behavior would necessarily render them guilty of adult crimes (including in some instances, the crime of murder) and since the decision to, or not to transfer is interlocutory 11 P.S. 50-325(f) and thus only appealable after sentencing.
Id. 462 Pa. at 617 n. 4, 342 A.2d at 103 n. 4 (citations omitted).
[12] Dr. Barton was Johnson's expert medical witness. The court found that Dr. Barton had extensive education, training and experience in the areas of medicine and psychiatry and is Board Certified in psychiatry.
[13] Pa.R.App.P. 311(d) provides:
RULE 311. INTERLOCUTORY APPEALS AS OF RIGHT
(d) Commonwealth Appeals in Criminal Cases. In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case but where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution.
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537 U.S. 880
PROVOST UMPHREY LAW FIRM ET AL.v.COFFMAN.
No. 02-41.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 33 Fed. Appx. 705.
| {
"pile_set_name": "FreeLaw"
} |
Case: 17-10320 Document: 00514842193 Page: 1 Date Filed: 02/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2019
No. 17-10320
Lyle W. Cayce
Clerk
HENRY SEELIGSON; JOHN M. SEELIGSON; SUZANNE SEELIGSON
NASH; SHERRI PILCHER,
Plaintiffs - Appellees
v.
DEVON ENERGY PRODUCTION COMPANY, L.P.,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-82
Before WIENER, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
The petition for rehearing is DENIED and no member of this panel nor
judge in active service having requested that the court be polled on rehearing
en banc, the petition for rehearing en banc is also DENIED. The following is
substituted in place of our opinion.
Plaintiffs-Appellees in this class action case (“Plaintiffs”) are royalty
owners who allege that Defendant-Appellant, Devon Energy Production
* 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.
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No. 17-10320
Company, L.P. (“DEPCO”), breached its royalty obligations by violating the
duty to market implied in the class members’ mineral leases. According to
Plaintiffs, DEPCO breached this duty by selling the raw, unprocessed gas to
its corporate affiliate at the wellheads at a price artificially reduced by an
unreasonably high processing fee. Plaintiffs aver that DEPCO then passed this
processing fee on to the royalty owners.
Plaintiffs sought to certify a class comprising royalty owners who claim
that their royalty payments were reduced by DEPCO’s pricing scheme. The
district court held an evidentiary hearing, then certified the Class as follows:
All person or entities who, between January 1, 2008 and February
28, 2014, (i) are or were royalty owners in Texas wells producing
natural gas that was processed through the Bridgeport Gas
Processing Plant by Devon Gas Services, LP (“DGS”); (ii) received
royalties from Devon Production Company, L.P. (“DEPCO”) on
such gas; and (iii) had oil and gas leases that were on one of the
[specific forms] . . . (“The Class Lease Forms”). 1
DEPCO now appeals the district court’s certification decision.
I. FACTS AND PROCEEDINGS
Plaintiffs are royalty owners of natural gas wells operated by DEPCO in
the Barnett Shale gas field. DEPCO is an oil and gas exploration and
production company that is the lessee under numerous natural gas well leases.
Several thousand of the wells that DEPCO operates in the Barnett Shale are
serviced by the Bridgeport Rich Gathering System (the “Bridgeport System”),
a series of horizontal pipelines that gather natural gas from individual wells
and transport it to the Bridgeport Gas Processing Plant (the “Bridgeport
Plant”). During the period of class claims, the Bridgeport System and
Bridgeport Plant were owned and operated by Devon Gas Services (“DGS”). In
1 The court also indicated several persons or entities excluded from the Class.
2
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No. 17-10320
turn, DEPCO and DGS are both wholly-owned subsidiaries of Devon Energy
Corporation.
A. DEPCO sells gas to DGS
During all relevant times, DEPCO sold all the natural gas that it
produced from wells in the Bridgeport System to DGS under a 2005 Gas
Purchase and Processing Agreement (the “GPPA”). Under the terms of the
GPPA, DEPCO sold “wet” natural gas from the wells to DGS (1) at the
wellheads, (2) for a purchase price of “82.5% of the published industry index
value of the residue [“dry”] gas and natural gas liquids (“NGLs”).” DGS then
transported the wet gas from the individual wells, through the Bridgeport
System, to the Bridgeport Plant, where the wet gas was processed into (1)
NGLs and (2) dry residue gas. DGS then sold the processed dry residue gas to
third parties.
The parties characterize this transaction in different ways. DEPCO says
that it transferred ownership of the gas to DGS at the moment of sale at the
wellhead. DEPCO claims that, because it no longer owned the gas when it was
transported through the Bridgeport System and processed at the Bridgeport
Plant, it did not charge Plaintiffs a “processing fee”; neither was it the seller of
the NGLs or the residue gas.
According to Plaintiffs, however, these “sales” were sham transactions,
as DEPCO and DGS are closely related subsidiaries of the same corporate
parent, and DGS never transferred funds to DEPCO in payment for the gas.
Plaintiffs contend that DEPCO did not actually “sell” the gas to DGS at the
wellhead, but transported the gas to the Bridgeport Plant, where DGS
“charged” DEPCO a 17.5% processing fee—a percentage far greater than the
market rate for processing. Plaintiffs further contend that this processing fee
was passed on to the royalty owners by DEPCO’s artificial lowering of the
purchase price at the wellhead by 17.5%, uniformly using this methodology for
3
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No. 17-10320
every well within the Bridgeport System. Plaintiffs insist that all royalty
owners thus received lower payments as a result of DEPCO’s purely internal
pricing scheme.
B. Implied Duty to Market in Class Leases
Each Plaintiff’s royalty interest was memorialized on one of nine
standard oil and gas lease forms (the “Class Lease Forms”). Plaintiffs claim
that all Class Lease Forms are “proceeds” leases, in which royalty payments
are based on the net proceeds, viz., the amount realized by the lessee—here,
DEPCO—when the gas is sold at the well. 2 According to Plaintiffs, when a
mineral lease does not contain any provision regarding a duty to market, Texas
law implies a duty to market. This duty requires producers like DEPCO to act
in good faith to obtain “the best price reasonably attainable.” Plaintiffs argue
that DEPCO breached the implied duty to market when it artificially lowered
the price of the natural gas that it sold to DGS at the wellhead. Plaintiffs
contend that because (1) all of the Class Lease Forms are deemed to include
such an implied duty to market, and (2) DEPCO used a uniform pricing
methodology to artificially lower the wellhead price and the resulting royalty
payments, all class members have “identical duty-to-market claims.”
DEPCO maintains, however, that some of the Class Leases are not
subject to an implied duty to market. It claims that the district court did not
examine the Class Leases and only assumed that each of them was subject to
an implied duty to market. According to DEPCO, three of the named Plaintiffs’
nine leases were modified to change the lessee’s marketing duty, so that the
2 As discussed more fully below, Plaintiffs submitted expert testimony from an
“industry veteran” who reviewed more than 10,000 DEPCO leases. He identified 4,143 Leases
on the nine Class Lease Forms which did not include any modifications or addenda that
would modify the duty to market. Based on this evidence, the district court limited the Class
Leases to these 4,143 documents.
4
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No. 17-10320
implied duty to market does not apply to each of the named Plaintiff’s leases,
much less to each of the 4,143 Class Leases.
C. District Court Decision
Plaintiffs originally filed this suit in the Eastern District of Texas,
alleging that DEPCO improperly calculated and intentionally underpaid
royalties to Plaintiffs for gas that was processed through the Bridgeport Plant. 3
That court scheduled a day-long class certification hearing to receive evidence
on the certification issue. Shortly before the date scheduled for that hearing,
however, DEPCO filed an emergency motion to stay the proceedings pending
resolution of its motion to transfer venue. 4 The hearing was stayed and the
case was eventually transferred to the Northern District of Texas, where
Plaintiffs’ motion for class certification was eventually denied. 5 Plaintiffs then
filed a motion for reconsideration. Their motion requested an opportunity to
present evidence in support of certification, and the district court held a class
certification evidentiary hearing. After reviewing the additional evidence,
including “over one hundred exhibits, sizeable deposition designations, and the
testimony of four live witnesses[,]” the district court granted Plaintiffs’ motion
and certified the class. DEPCO timely appealed.
II. LAW AND ANALYSIS
A. Standard of Review
We review a district court’s class certification for abuse of discretion. 6
Abuse of discretion occurs only when all reasonable persons would reject the
3 These claims include gas that was processed at the Bridgeport Plant from January
1, 2008 until October 24, 2014.
4 The motion to stay was subsequently granted by a panel of this court. See No. 17-
90002, Henry Seeligson, et al v. Devon Energy Production Co. LP.
5 See ECF TX ND 3:16-CV-82, 139.
6 Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 482 F.3d 372, 380 (5th
Cir. 2007).
5
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No. 17-10320
view of the district court. 7 “Implicit in this deferential standard is a recognition
of the essentially factual basis of the certification inquiry and of the district
court’s inherent power to manage and control pending litigation.” 8 We review
de novo, however, whether the district court applied the correct legal
standard. 9
B. Federal Rule of Civil Procedure 23 Requirements
“[T]o maintain a class action, the class sought to be represented must be
adequately defined and clearly ascertainable.” 10 This requirement is an
implied prerequisite of Rule 23. 11 “However, the court need not know the
identity of each class member before certification; ascertainability requires
only that the court be able to identify class members at some stage of the
proceeding.” 12 If the proposed class is ascertainable, the party seeking
certification must also comply with Federal Rule of Civil Procedure 23. 13 That
party must first satisfy Rule 23(a)’s requirements of numerosity, commonality,
typicality, and adequacy of representation. 14 If successful, that party must
then satisfy the provisions of one of Rule 23(b)’s three subsections. 15 In this
case, Plaintiffs rely on Rule 23(b)(3), “which requires that questions of law or
fact common to the class predominate over questions affecting only individual
members, and that a class action is superior to other available methods for the
7 Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 638 (5th Cir. 2012).
8 In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004) (quoting Allison v.
Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998)).
9 Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 523 (5th Cir. 2007).
10 Union Asset Mgmt. Holding, 669 F.3d at 639 (quoting DeBremaecker v. Short, 433
F.2d 733, 734 (5th Cir. 1970) (per curiam)).
11 John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
12 Frey v. First Nat. Bank Sw., 602 F. App’x 164, 168 (5th Cir. 2015) (unpublished)
(quoting William B. Rubenstein, NEWBERG ON CLASS ACTIONS § 3:3 (5th ed. 2011)).
13 FED. R. CIV. P. 23.
14 FED. R. CIV. P. 23(a).
15 FED. R. CIV. P. 23(b).
6
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No. 17-10320
fair and efficient adjudication of the controversy.” 16 “The Rule 23(b)(3)
predominance inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” 17 Plaintiffs have the burden of
showing that Rule 23’s requirements are met. 18
i. Ascertainability
The district court did not abuse its discretion in determining that the
class of royalty owners was ascertainable. DEPCO relied on precedent from the
Third Circuit to claim that the Plaintiffs had to demonstrate “by a
preponderance of the evidence, that the class is ‘currently and readily
ascertainable based on objective criteria.’” 19 But, this court has not adopted
that heightened standard. Instead, a party need only demonstrate—“at some
stage of the proceeding” 20—that the class is “adequately defined and clearly
ascertainable.” 21 Here, both DEPCO and the public records provide sufficient
objective criteria from which to identify class members. 22 We conclude that the
district court did not abuse its discretion in finding that the class is
ascertainable.
16 Ahmad v. Old Republic Nat’l Title Ins., 690 F.3d 698, 702 (5th Cir. 2012) (citing
FED. R. CIV. P. 23(b)).
17 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
18 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011).
19 Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013) (quoting Marcus v. BMW
of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012)).
20 Frey, 602 F. App’x at 168 (quoting William B. Rubenstein, NEWBERG ON CLASS
ACTIONS § 3:3 (5th ed. 2011)).
21 Union Asset Mgmt. Holding, 669 F.3d at 639 (quoting DeBremaecker, 433 F.2d at
734).
22 DEPCO claims that it does not record ownership by lease and does not have
complete records on past ownership. It contends that Plaintiffs’ proposed alternative—
reviewing property and title records—is not administratively feasible and therefore fails to
satisfy Rule 23’s ascertainability requirements. We are not convinced. Before any individual
class member can recover, he must demonstrate that he was entitled to receive royalty
payments. “However, . . . ‘the possibility that some [claimants] may fail to prevail on their
individual claims will not defeat class membership’ on the basis of the ascertainability
requirement.” In re Deepwater Horizon, 739 F.3d 790, 821 (5th Cir. 2014).
7
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No. 17-10320
ii. Commonality
The parties do not dispute the district court’s rulings regarding
numerosity, typicality, or adequacy of representation; however, DEPCO does
challenge that court’s ruling on commonality. To satisfy Rule 23’s commonality
requirement, Plaintiffs had to demonstrate that there are questions of law or
fact common to the class. 23 A common question “must be of such a nature that
it is capable of classwide resolution—which means that determination of its
truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.” 24 This requirement “can be satisfied by an instance
of the defendant’s injurious conduct, even when the resulting injurious
effects—the damages—are diverse.” 25
The district court determined that the answers to two common questions
would determine whether DEPCO violated the implied duty to market: (1) “Did
the 82.5% value sale of residue gas and NGLs violate DEPCO’s duty to market
owed to royalty owners?” and (2) “Did DEPCO violate its duty to market owed
to royalty owners by failing to recover profits from DGS for gas sales DGS made
to third parties?”
DEPCO contends that these questions are based on incorrect application
of Texas law and erroneous factual findings, leading the district court to abuse
its discretion in concluding that the proposed class satisfies Rule 23(a)’s
commonality requirement. If these questions are not common to the class, or if
they are based on incorrect legal conclusions or factual findings, class
certification was an abuse of discretion. 26
23 FED. R. CIV. P. 23(a).
24 Wal-Mart Stores, Inc., 564 U.S. at 350.
25 Deepwater Horizon, 739 F.3d at 810–11.
26 Regents of Univ. of Cal., 482 F.3d at 380 (“Where a district court premises its legal
analysis on an erroneous understanding of governing law, it has abused its discretion.”).
8
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No. 17-10320
a. Duty to Market
DEPCO insists that the district court abused its discretion when it
determined that each of the Class Leases imposed the same marketing duty
without reviewing every individual lease and any “ancillary documents” that
might have modified DEPCO’s duty to market the gas. Relying on Dvorin v.
Chesapeake Exploration, DEPCO contends that, under Texas law, the district
court was required to review every Class Lease, as well as any ancillary
documents, before determining that all the Class Leases imposed the same
duty to market.
The district court in Dvorin determined that the leases of the proposed
class members were insufficient to demonstrate that the claims could be
resolved with a “common answer.” 27 The court explained that, even though the
“specific portions of the royalty provisions . . . are substantially the same, the
court is required to review the contracts as a whole.” 28 Once the court reviewed
the entire document, it was clear that the contracts varied regarding “the point
of sale,” and “cost at the well.” 29 Some even contained clauses that limited
royalty payments based on the price Chesapeake paid for its share of
production. 30 The Dvorin court held that, because other terms of the contract
modified the royalty clauses, the class members’ claims could not be resolved
with a common answer.
There is no evidence that such differences exist here. Dvorin did not hold
that a court must locate every potential ancillary document before determining
that a group of leases imposed the same duty. There, the plain language of the
27 Dvorin v. Chesapeake Expl., LLC, No. 3:12-CV-3728-G, 2013 WL 6003433, at *6
(N.D. Tex. Nov. 13, 2013).
28 Id.
29 Id.
30 Id.
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contracts varied so much that it was not possible to reach a “common answer”
to the plaintiffs’ claims. Here, in comparison, the court determined that “none
of the nine lease forms contain language that modifies the implied covenant to
market.” 31 Defendants have not provided any ancillary documents that modify
the duty to market in the Class Leases. 32 In fact, even six months after the
district court certified a class based on 4,143 individual leases, DEPCO’s expert
challenged only five of them.
DEPCO also claims that three of the Class Lease Forms contain express
marketing clauses and therefore cannot include the implied duty to market.
Those clauses state that DEPCO must “use reasonable diligence to produce,
utilize, or market the minerals.” DEPCO is correct that this language
precludes the implied duty to market; however, it does not necessarily impose
a different marketing duty on DEPCO. Neither DEPCO nor Plaintiffs cite any
case that stands for the proposition that an express duty to market requires
either the same or a different marketing duty than the implied duty to market.
In Bowden v. Phillips Petroleum Co., the Texas Supreme Court evaluated a
similar situation, yet declined to state a categorical rule on this issue. 33 There,
the plaintiffs claimed that a group of proceeds leases, some with both express
marketing clauses and, others with the implied duty to market, imposed the
same duty. The court explained that it could be possible that express and
implied duties to market may not “in practice require different conduct.” 34
31 See Seeligson v. Devon Energy Prod. Co., L.P., No. 3:16-CV-00082-K, 2017 WL
68013, at *17 (N.D. Tex. Jan. 6, 2017).
32 During the certification hearing, Plaintiffs presented testimony from an industry
expert who led a team in reviewing more than 10,000 leases received from DEPCO. The
expert testified that any leases which had exhibits or addenda that modified the duty to
market were excluded from the class.
33 247 S.W.3d 690, 701 (Tex. 2008).
34 Id.
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Here, the express marketing clause in three of the Class Leases Forms
imposes a duty to use “reasonable diligence,” which is virtually identical to the
implied duty to act as a “reasonably prudent operator.” 35 Given this close
similarity and the fact that Texas law acknowledges that express marketing
clauses might impose the same duty as the implied duty to market, the district
court did not abuse its discretion in holding that DEPCO owed all class
members the same duty, under either the express marketing clause or the
implied duty to market. 36
Owing a uniform duty, however, is not necessarily sufficient to establish
commonality. The duty DEPCO owed to the royalty owners was “an obligation
to obtain the best current price reasonably available.” 37 The court explained in
Bowden that even if a gas producer owed “an identical duty to market” to a
group of royalty owners, the jury would still need to determine “the price a
reasonably prudent operator would have received at the wellhead.” 38 The
Bowden court explained that “variations in well locations, quality of
production, and field regulations, among other factors, will require the jury to
conduct a well-by-well analysis . . . unless the class offers particular evidence
that the gas price at the wells can be evaluated classwide.” 39 For example, “if a
class offered evidence that [the defendant] was artificially lowering the prices
it charged [its affiliate] for gas sales across the board or that [it] was
systematically miscalculating the royalty payments, such claims might be
more susceptible to certification.” 40
35 See Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 567–68 (Tex. 1981).
36 This determination falls squarely within the “district court’s inherent power to
manage and control pending litigation.” See Monumental Life Ins. Co., 365 F.3d at 414
(quoting Allison, 151 F.3d at 408).
37 Union Pac. Res. Grp., Inc. v. Hankins, 111 S.W.3d 69, 72 (Tex. 2003).
38 Bowden, 247 S.W.3d at 701.
39 Id. at 701–02 (emphasis added).
40 Id. at n.5.
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Plaintiffs argue that such a well-by-well analysis is not necessary here
because DEPCO used a uniform pricing structure for every well in the
Bridgeport System. Plaintiffs contend that they do not need to adduce evidence
of a higher available price at each wellhead, but only evidence that DEPCO
could have processed the gas at a fee lower than the 17.5% it paid DGS. The
district court held that DEPCO used a classwide pricing structure determined
by the uniform processing fee, so that the gas price at the wells could be
evaluated using a classwide common damages model. 41
Plaintiffs have provided some evidence that DEPCO, using an artificial,
uniform processing fee, “was artificially lowering the prices it charged [its
affiliate, DGS,] for gas sales across the board.” It appears that Devon Energy
used its multi-subsidiary, uniform pricing gimmick for each and every well in
the system, regardless of location, lease differences, etc., so that it might be
possible to determine damages on a classwide model. However, on the facts
presently before the district court, it is unclear whether a well-by-well analysis
might be necessary.
Based on the evidence the district court did have, it is possible that
Plaintiffs could demonstrate that DEPCO breached its implied duty to market
by basing its price on a higher processing fee than the fee that a “reasonably
prudent operator would have received at the wellhead.” 42 If so, this issue is
41 Seeligson, 2017 WL 68013, at *10.
42 See Bowden, 247 S.W.3d at 701. As discussed more fully below, the district court
made the factual determination that the price was determined based on the processing fee
DGS charged DEPCO. This factual finding is reviewed for clear error. See Energy Mgmt.
Corp. v. City of Shreveport, 467 F.3d 471, 479 (5th Cir. 2006). Furthermore, given the limit
on conducting “merits inquiries” at this stage in the litigation, and the deference granted to
the district court’s factual findings, that court did not abuse its discretion in determining that
whether DEPCO breached its duty to Plaintiffs was a common question capable of classwide
resolution. See Deepwater Horizon, 739 F.3d at 810 (quoting Wal-Mart Stores, Inc., 564 U.S.
at 350) (citations omitted) (holding that an issue is capable of classwide resolution when the
“determination of its truth or falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.”).
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precisely the type of common question “that determination of its truth or falsity
will resolve an issue that is central to the validity of each one of the claims in
one stroke.” 43 However, this court remains open as to whether damages can be
ascertained on a classwide basis. We therefore remand for further
consideration whether additional specific evidence supports the conclusion
that the breach of the duty to market and damages from any breach can be
evaluated classwide or if a well-by-well analysis is required.
b. Duty to recover downstream profits
The second question the district court found common to all class
members was, “Did DEPCO violate its duty to market owed to royalty owners
by failing to recover profits from DGS for gas sales DGS made to third parties?”
Later in the order, the district court framed this issue as whether DEPCO
breached its duty “by not following its own policy to recoup the profits DGS
made on subsequent gas sales.” At no point, however, did the district court
explain why the implied duty to market includes a duty to recoup profits made
on downstream gas sales. 44
DEPCO insists that neither the Class Leases nor the implied duty to
market imposed a duty to recoup downstream profits; and Plaintiffs do not
address this alleged duty in their brief. At best, Plaintiffs aver that DEPCO
policies instructed that “DGS may not make profit at the expense of [DEPCO
by] … sell[ing] gas to third parties at higher prices than the transfer price
under the GPPA.” 45 The district court did not provide any legal basis for
43 Wal-Mart Stores, Inc., 564 U.S. at 350.
44 The court did not expressly find that DEPCO’s sales to DGS were a sham, but, based
on the way it phrased the second common question, it certainly seems to imply that the sale
was a sham. The validity of this possible conclusion, however, is not currently before this
panel.
45 Plaintiffs do not assert that they have standing to enforce these internal guidelines,
but contend that standing is a merits question which should not be resolved at this stage of
the litigation.
13
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imposing a duty to recover downstream profits on DEPCO, so it abused its
discretion when it determined that this was a common question which could
support class certification.
iii. Predominance
Federal Rule of Civil Procedure 23(b)(3) requires the court to determine
whether “the questions of law or fact common to class members predominate
over any questions affecting only individual members.” 46 This “entails
identifying the substantive issues that will control the outcome, assessing
which issues will predominate, and then determining whether the issues are
common to the class, a process that ultimately prevents the class from
degenerating into a series of individual trials.” 47 Absent this analysis, “it [is]
impossible for the court to know whether the common issues would be a
‘significant’ portion of the individual trials . . . much less whether the common
issues predominate.” 48
DEPCO insists that each lease raises individual issues regarding tolling
and the applicable statute of limitations, precluding predominance. DEPCO
explains that the class certification order includes two categories of claims that
are time barred: (1) claims that DEPCO breached the implied duty to market
when it entered the GPPA in 2005; and (2) claims that DEPCO breached this
duty beginning on January 1, 2008, when it failed to recoup profits on DGS’s
downstream sales. Plaintiffs counter that the limitations periods were tolled
by the discovery rule and fraudulent concealment. DEPCO responds to this by
stating that the determination whether the limitation periods were tolled will
require “thousands” of mini-trials. DEPCO raised these potential individual
46 FED. R. CIV. P. 23(b)(3).
47 Gene And Gene LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir. 2008) (quoting Bell
Atl. Corp. v. AT&T Corp., 339 F.3d 294, 302 (5th Cir. 2003)).
48 Madison v. Chalmette Ref., L.L.C., 637 F.3d 551, 557 (5th Cir. 2011).
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issues in the district court, but in its certification order, the court did not
discuss how limitations and tolling questions might affect predominance.
Despite the potential for individual questions based on DEPCO’s statute
of limitations defense, the district court did not mention the role, if any, the
tolling or limitations issues would play in this class action litigation. To
establish predominance, the district court must identify “the substantive
issues that will control the outcome, assess[] which issues will predominate,
and then determin[e] whether the issues are common to the class.” 49 Absent
this analysis, “it [is] impossible for the court to know whether the common
issues would be a ‘significant’ portion of the individual trials . . . much less
whether the common issues predominate.” 50 The district court did not consider
the statute of limitations and tolling questions in its predominance analysis,
so it abused its discretion when it determined that common questions would
predominate over individual issues and certified the class. 51
III. CONCLUSION
Because of the limited evidence before the district court, we remand for
further proceedings to determine whether there is sufficient additional
evidence to support a finding that breach of the duty to market and damages
from any breach can be ascertained on a classwide basis. Additionally, because
the district court failed to address whether the applicable statute of limitations
and potential tolling questions would raise individual issues, it abused its
discretion in certifying the class as written. We therefore REVERSE and
REMAND for further proceedings consistent with this opinion.
49 Bell Atl., 339 F.3d at 301.
50 Madison, 637 F.3d at 557.
51 See id. (“By failing to adequately analyze and balance the common issues against
the individualized issues, the district court abused its discretion in determining that common
issues predominated and in certifying the class.”).
15
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals for the Federal Circuit
ERRATA
March 10, 2008
Appeal No. 2007-1168, Erico Intl v. Vutec Corp
Precedential Opinion
Decided: February 19, 2008
In the dissenting opinion at, page 5, line 20, in the paragraph beginning “As used by my
colleagues,” the second sentence of that paragraph should read:
“Raising a “substantial question” concerning validity is not the same as . . .”
That is, after “validity” delete the comma and the word “it.”
| {
"pile_set_name": "FreeLaw"
} |
41 F.Supp.2d 932 (1999)
Joseph R. THEISEN and Richard A. Radintz, Plaintiffs,
v.
CITY OF MAPLE GROVE, Defendant.
Civil No. 97-2565(DSD/JMM).
United States District Court, D. Minnesota.
January 15, 1999.
*933 *934 Joseph B. Marshall, Marshall & Assoc., Circle Pines, MN, for plaintiffs.
Julie Anne Fleming-Wolfe, Fleming-Wolfe Law Office, St. Paul, MN, for defendant.
ORDER
DOTY, District Judge.
This matter is before the court for a determination of plaintiffs' damages and on plaintiffs' motions for judgment on the verdict and to compel defendant to provide data allegedly needed to calculate the proper measure of damages. By a special verdict returned on October 22, 1998, a jury determined that: (1) plaintiffs and defendant had not reached an agreement regarding compensation for work to be performed providing home care maintenance of certain police canines; (2) both plaintiffs had performed work for which they were improperly compensated, the defendant had actual or constructive knowledge of the work performed by plaintiffs or routinely permitted the work, and both plaintiffs had shown the amount and extent of the uncompensated work performed as a matter of just and reasonable inference; (3) both plaintiffs had performed 15.8 minutes of work on both on-duty and off-duty days providing home care maintenance of their canines for which they were not and should be compensated; and (4) defendant did not willfully violate the Fair Labor Standards Act. The question of damages was left to the court, and after allowing both parties to submit briefing on the proper measure of damages, that issue is now ripe for decision.
A number of issues must be addressed in computing plaintiffs' damages: (1) the proper time period for computing back wages under the statute of limitations contained in the Fair Labor Standards Act (hereafter "FLSA"); (2) the date of plaintiffs' claim; (3) the components properly included in plaintiffs' rate of pay; and (4) whether liquidated damages are appropriate in this case. The court will address each issue in turn, as well as plaintiffs' two related motions.
Under 29 U.S.C. § 255(a), the statute of limitations applicable to the FLSA bars claims arising more than two years after *935 "the cause of action accrued" unless the cause of action arises out of a willful violation, in which case a three year period applies. The jury in this case determined that defendant did not willfully violate the FLSA; therefore, plaintiffs' damages are retrospectively cognizable for two years from the time the cause of action accrued.
To determine the date from which the two year limitations period extends backwards, the court must establish the date of the claim. The parties take different positions as to when the cause of action accrued. Defendant argues that the cause of action accrued the day the complaint in this matter was filed, November 19, 1997. Plaintiffs, on the other hand, claim that plaintiff Theisen was told by Chief Otto that the date of the claim would be the date he and plaintiff Radintz met with Chief Otto to discuss plaintiffs' FLSA demands, August 28, 1997. They claim that at this meeting Chief Otto told them to research what other cities were doing with regard to their canine officers and the FLSA. When plaintiffs completed their research, they were forced to meet with Captain Richardson on two occasions rather than with Chief Otto, causing further delay in filing their complaint. Plaintiffs aver that if they had known on August 28, 1997, that they would not have another meeting with Chief Otto after compiling their data they would have immediately filed their complaint after the first meeting.
While plaintiffs concede that the date of the claim would normally be the date the complaint was filed, they contend that in this case their employer took actions that the employer should have understood would cause them to delay filing, and equitable estoppel should extend the date of the claim back to August 28, 1997. See Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 359 (8th Cir.1984), cert. denied, 469 U.S. 1036, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984) ("`The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.'") (quoting Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982)). See also Hamilton v. West, 30 F.3d 992, 994 (8th Cir.1994) (finding equitable estoppel not warranted where plaintiff failed to introduce evidence that defendant acted "pursuant to a `deliberate design' or an unmistakable understanding that [plaintiff] would delay filing his charges.").[1]
Plaintiffs' view of the August 28, 1997, meeting is undercut by a letter written by their counsel on November 13, 1997, to Alan Madsen, City of Maple Grove Administrator, and Chief Otto. In that letter, counsel suggests:
To facilitate an orderly examination of the issues in this case, and to further facilitate meaningful discussions as to the claim and defenses thereto, I request and I suggest that we enter into an agreement which will toll the statute of limitations thus allowing us to debate those matters without further damages to the officers, or litigation expenses to the city.
Letter Attached to Def.'s Response to Pls.' Post-Trial Mots. at 4. It is fair to assume that if Chief Otto had indeed told plaintiffs that August 28, 1997, would serve as the date of their claim plaintiffs would have related this information to their counsel, who would not have then requested a tolling agreement. Indeed, there is no evidence in the record of actions that defendant should unmistakably have understood would cause plaintiffs to delay filing their charge. The applicable two-year retrospective period for which plaintiffs are to *936 be compensated runs from November 19, 1995, to November 19, 1997, for Officer Radintz and November 19, 1995, to August 3, 1997, for Officer Theisen.[2]
The next step is to determine the regular hourly rate from which defendant's overtime compensation should be derived. The jury found plaintiffs had performed 15.8 minutes of overtime work on both on-duty and off-duty days providing home care maintenance of their canines for which they were not and should be compensated. The FLSA provides that employees must be paid overtime compensation "at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1). The "regular rate" is further defined as "all remuneration for employment paid to, or on behalf of, the employee[.]" 29 U.S.C. § 207(e). This definition has been construed to mean the hourly rate actually paid to the employee for the normal, non-overtime work week for which he or she is employed. See Aaron v. City of Wichita, Kan., 54 F.3d 652, 655 (10th Cir.1995) (citing 149 Madison Ave. Corp. v. Asselta, 331 U.S. 199, 203, 67 S.Ct. 1178, 91 L.Ed. 1432 (1947), modified, 331 U.S. 795, 67 S.Ct. 1726, 91 L.Ed. 1822 (1947) and Walling v. Helmerich & Payne, 323 U.S. 37, 40, 65 S.Ct. 11, 89 L.Ed. 29 (1944)). In determining the "regular rate," the court's focus should be on ensuring that employees are getting the full excess compensation called for under the FLSA. Herman v. Anderson Floor Co., Inc., 11 F.Supp.2d 1038, 1042 (E.D.Wis.1998) (citing Baker v. Barnard Constr. Co. Inc., 863 F.Supp. 1498, 1500 (D.N.M.1993)). "The key point in calculating the regular rate of an employee's compensation for purposes of the Act is whether it is compensation for work performed during that work week." Herman, 11 F.Supp.2d at 1042.
The parties take divergent views of what constitutes the hourly rate actually paid to plaintiffs. Plaintiffs contend that the hourly rate includes not only their actual wage rate, but also money paid in lieu of increased employer contributions to insurance, longevity payments, the specialist rate, and rates for being a field training officer and acting supervisor. Defendant, on the other hand, takes the position that only the actual wage rate should constitute the hourly rate for overtime purposes. While the actual wage rate is clearly included in the "regular rate" utilized for computing overtime compensation and merits no further discussion, the court will address in greater detail the other possible components of the "regular rate."
The first contested element is a monthly payment to plaintiffs made in lieu of increased employer contributions to insurance which is not added to the base wage rate set forth in Appendix A to the relevant collective bargaining agreements. This payment was $30 per month in 1995, $40 in 1996, $50 in 1997, and $60 in 1998. Plaintiffs assume in their calculations of the overtime compensation due that they should receive additional "insurance" payments for the 15.8 overtime minutes the jury found they worked each day. See Labor Agreement Between the City of Maple Grove and Law Enforcement Labor Services, Inc., Plaintiff's Trial Exhibit 1, 1994-95 Agreement and 1996-98 Agreement at 20.3. According to plaintiffs' calculations, this constitutes $0.173 per hour in 1995, $0.231 per hour in 1996, $0.289 per hour in 1997, and $0.346 per hour in 1998.[3]
The amount of cash paid to plaintiffs in lieu of increased insurance contributions is not measured by or dependent upon the hours worked by plaintiffs. The payment is a sum certain paid each month that does not vary if plaintiffs work more *937 or less than 40 hours per week. Because it is not part of the hourly rate paid to plaintiffs, such sum should not be included in the calculation of the "regular rate" used in determining overtime compensation. See 29 U.S.C. § 207(e)(2) ("[T]he `regular rate' ... shall not be deemed to include ... payments to an employee which are not made as compensation for his hours of employment[.]").
The next amount at issue is the inclusion of longevity payments in the determination of the "regular rate." These amounts are as follows:[4]
1995: Plaintiff Radintz $3,641 ($1.751 per hour)
Plaintiff Theisen $1,370 ($0.658 per hour)
1996: Plaintiff Radintz $3,750 ($1.802 per hour)
Plaintiff Theisen $1,411 ($0.678 per hour)
1997: Plaintiff Radintz $3,863 ($1.857 per hour)
Plaintiff Theisen $1,453 ($0.699 per hour)
1998: Plaintiff Radintz $3,979 ($1.913 per hour)
In considering whether longevity payments should be included in the "regular rate," a dearth of Eighth Circuit precedent has forced the court to consider authority from several other circuits. The Fifth Circuit has held that where neither a city ordinance nor a collective bargaining agreement between an employer and its employees addresses longevity pay, such payments are not properly included in the calculation of the "regular rate" of pay. Moreau v. Klevenhagen, 956 F.2d 516, 520-21 (5th Cir.1992), aff'd, 508 U.S. 22, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993). The basis of the Moreau decision was that in such a situation longevity payments are not tied to the number of hours worked by an employee or his or her production or efficiency and serve only as a reward for tenure. Id. at 521. However, in Featsent v. City of Youngstown, 859 F.Supp. 1134, 1136 (N.D.Ohio 1993), the court held that longevity payments made pursuant to a city ordinance or a collective bargaining agreement must be included in the "regular rate" used to compute overtime because the city was required to make the payments by law and by contract and such payments could not therefore be classified as gifts or discretionary bonuses. In so holding, the court relied on interpretations provided by the United States Department of Labor that: (1) non-discretionary bonuses must be included in the computation of overtime, while discretionary bonuses are excluded (29 C.F.R. §§ 778.208-211); (2) a bonus is discretionary if the employer retains discretion both as to the fact of payment and the amount of payment (29 C.F.R. § 778.211(b)); and (3) to be excluded the amount must be determined by the employer without prior contract, agreement, or promise (29 C.F.R. § 778.211(b)). Featsent, 859 F.Supp. at 1136. Based on these tenets, the court found that any bonus which was the result of collective bargaining is a non-discretionary bonus, and must be included in the "regular rate" of pay upon which overtime pay is calculated. Id. The Sixth Circuit specifically affirmed on this point. Featsent v. City of Youngstown, 70 F.3d 900, 905 (6th Cir .1995). Both Moreau and Featsent were discussed in Local 359 Gary Firefighters, AFL CIOCLC v. City of Gary, 1995 WL 934175 (N.D.Ind. Aug.17, 1995) (unpublished opinion). There, the court was presented with a situation where the amount of longevity pay received was not based on the number of hours worked in a pay period but rather on the number of years of employment. Local 359, 1995 WL 934175 at *6. Such payments, however, were not the result of a collective bargaining agreement or any other type of agreement between the parties. Id. After determining that the inclusion of longevity pay turns on whether the payment is construed as a gift or as a fixed amount given pursuant to a city policy, the court found that the amount of longevity pay was not discretionary and held that the city must therefore include such payments in the "regular rate." Id. at *7.
*938 Here, the collective bargaining agreements between the parties specifically set forth the applicable longevity rates in Appendix A of each agreement. Article XX of the applicable agreements states that "[t]he total employee compensation is wages, and an insurance contribution as shown in Appendix A." See Collective Bargaining Agreement at 20.1. Defendant has no discretion in making the longevity payments, as it is part of plaintiffs' compensation as delineated in the applicable collective bargaining agreements. The court therefore finds Feasent and Local 359 to be more persuasive than Moreau in this instance, as the former cases involved nondiscretionary longevity payments, while the latter case did not. The applicable longevity payments will therefore be included in the "regular rate."
The next amount at issue is the canine handler specialist rate paid plaintiffs. As canine officers, both plaintiffs received $125 per month in 1995, 1996, 1997[5] and plaintiff Radintz received $125 per month in 1998. This amounts to $1,500 for both plaintiffs in 1995, 1996, and 1997 and $1,500 for plaintiff Radintz in 1998, or $0.721 per hour in those years. Defendant cites Albanese v. Bergen County, N.J., 991 F.Supp. 410 (D.N.J.1997) in support of its argument that the canine handler rate should not only be excluded from the computation of the "regular rate," but that the total amount paid during the relevant period must also be deducted from the overtime found to be owing plaintiffs. In Albanese, canine officers and their employer negotiated for and included a stipend for K-9 activities in their collective bargaining agreement. After finding plaintiffs entitled to overtime compensation for home care of their dogs, the court was forced to determine whether this stipend should be included in the "regular rate" for purposes of calculating the overtime wages due. The court first examined the compensation specifically excluded from the "regular rate" by 29 U.S.C. § 207(e)(5)-(7),[6] and noted that "[t]he plain wording of the statute makes it clear that extra compensation provided by premium rates other than those described cannot be treated as overtime premiums." Albanese, 991 F.Supp. at 422-23 (citing 29 C.F.R. § 778.207). Those premiums not included in § 207(e)(5), (6), or (7) "must be included in the employee's regular rate before statutory overtime compensation is computed." Id. at 423. While the court found that the premium paid plaintiffs did not fall within any exception to inclusion in the "regular rate," the court concluded that under the facts of that case the usual deference paid to the Department of Labor's regulations was not warranted, and exclusion from the "regular rate" was appropriate. Id. The court's decision was based on its belief that inclusion would permit plaintiffs to recover a windfall by receiving the stipend for extra work related to K-9 activities while also using that money to determine their regular hourly rate. Id. The court also determined, without further explanation, that the stipends should serve as a credit against any award of overtime compensation. Id.
*939 Here, the jury determined that plaintiffs and defendant had not reached an agreement regarding compensation for work to be performed providing home care maintenance of certain police canines. A corollary of this finding is that the $125 monthly canine handler rate was not tied to the time plaintiffs spent handling the canines but instead served as compensation for specialized training and the increased responsibility of handling the canines. Defendant is therefore mistaken in asserting that the stipend is for "performing the dog handling work." Def. City of Maple Grove Post-Trial Mem. (Docket No. 69) at 9. If such were the case, the jury would have found that the parties had an agreement regarding compensation for the work to be performed. Like Albanese, the canine handler rate in this case does not fall within any exception to inclusion in the "regular rate." Unlike that case, however, the court here will not disregard the Department of Labor Guidelines. Based on the jury's finding that no agreement existed, the court finds that the canine handler rate compensates plaintiffs for their skills and responsibilities in caring for the canines during the 2080 hours called for by the relevant collective bargaining agreements. Because plaintiffs spent 15.8 minutes on both on-duty and off-duty days beyond the 2080 hours called for by the contract, they will not receive a windfall by recovering overtime compensation based in part on the skills they used and responsibility they exercised beyond the 2080 hours. Therefore, the court concludes that plaintiffs correctly included the canine handler rate in the "regular rate." This is in accord with the plain language of the statute and regulations promulgated by the Department of Labor.
The final components of the "regular rate" at issue are rates plaintiffs claim they have earned for being field training officers and acting supervisors. In their memorandum, plaintiffs claim that field training and acting supervisor rates should be included in the court's calculation of the "regular rate," but are unable to attach a specific dollar amount for these responsibilities for any of the years in question because this information "has not yet been provided by the defendant so this figure remains to be calculated." In conjunction with this issue, plaintiffs have filed a motion to compel defendant to provide data necessary to calculate both these rates. In its initial memorandum, anticipating that plaintiffs would seek inclusion of these rates, defendant contends that "[p]laintiffs' argument need not be addressed because plaintiffs did not receive ... any of the other items claimed to be necessarily included in the calculation of wages." Def. City of Maple of Grove Post-Trial Mem. (Docket No. 69) at 4 n. 2. In its response to plaintiffs' brief, defendant argues that plaintiffs' request for production is inappropriate because it seeks production of data that was produced during discovery or asks defendant to create data that otherwise does not exist. Further, defendant argues that because plaintiffs failed to introduce into evidence any testimony regarding their service as senior supervising or field training officers, these matters cannot be included in any calculation of damages.
The court initially notes that neither party makes any legal argument on the issue of whether the "FTO Rate" and "Acting Supervisor Rate" should be included in the court's calculation of the "regular rate." Legal uncertainty aside, the court also notes that both these rates are included in Appendix A in the relevant collective bargaining agreements. While the agreements clearly state the amount per hour of time worked that is due plaintiffs when acting as a field trainer or acting supervisor, there is no evidence before the court concerning the time plaintiffs acted in these capacities, if any, during the relevant time period. Whereas the longevity rate is always applicable, the acting supervisor or field trainer rate is not. Even if the court were to find these rates applicable, therefore, no evidence exists to make the necessary calculation. While making no *940 finding on the initial question of the legal propriety of including these rates in the "regular rate," the court concludes that plaintiffs' failure to introduce any evidence that they served in these roles for any specific period precludes their inclusion. Plaintiffs' motion to compel defendant to provide data will be denied.
Having determined the components of the "regular rate," the court is now in a position to determine what this rate is for each plaintiff in each year:
Plaintiff Radintz
1995 Base Pay (per hour) $20.479
Longevity Pay (per hour) $ 1.751
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $22.951
1996 Base Pay (per hour) $21.146
Longevity Pay (per hour) $ 1.802
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $23.669
1997 Base Pay (per hour) $21.543
Longevity Pay (per hour) $ 1.857
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $24.121
1998 Base Pay (per hour) $22.189
Longevity Pay (per hour) $ 1.913
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $24.823
1999[7] Base Pay (per hour) $22.189
Longevity Pay (per hour) $ 1.913
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $24.823
Plaintiff Theisen
1995 Base Pay (per hour) $20.479
Longevity Pay (per hour) $ 0.650
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $21.850
1996 Base Pay (per hour) $21.146
Longevity Pay (per hour) $ 0.678
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $22.545
1997 Base Pay (per hour) $21.543
Longevity Pay (per hour) $ 0.699
Specialist Pay (per hour) $ 0.721
_______
Total (per hour) $22.963
The Fair Labor Standards Act provides that plaintiffs shall be compensated at "one and one-half" time the regular rate at which they are employed for the 15.8 minutes per day spent caring for the canines. See 29 U.S.C. § 207(a)(1). This results in the following hourly overtime rates:
Plaintiff Radintz
1995 $22.951 × 1.5 $34.4265
1996 $23.669 × 1.5 $35.5035
1997 $24.121 × 1.5 $36.1815
1998 $24.823 × 1.5 $37.2345
1999 $24.823 × 1.5 $37.2345
Plaintiff Theisen
1995 $21.850 × 1.5 $32.7750
1996 $22.545 × 1.5 $33.8175
1997 $22.963 × 1.5 $34.4445
The date of the claim in this case has been established by the court as November 19, 1995, two years prior to the date of the filing of the complaint. The resulting number of days involved are:
Plaintiff Radintz
1995 42 days
1996 366 days
1997 355 days
1998 365 days
1999 15 days[8]
Plaintiff Theisen
1995 42 days
1996 366 days
1997 213 days[9]
*941 The jury established that each plaintiff spent 15.8 minutes per day in the home care maintenance of their canines. This is equivalent to .2633 hours per day. To determine plaintiffs' damages in each year, therefore, the court must multiply the number of hours spent each day by the number of days in each year and the overtime rate, as calculated above:
Plaintiff Radintz
1995 .2633 × 42 days × $34.4265 $ 380.71
1996 .2633 × 366 days × $35.5035 $ 3,421.39
1997 .2633 × 365 days × $36.1815 $ 3,477.21
1998 .2633 × 365 days × $37.2345 $ 3,578.40
1999 .2633 × 15 days × $37.2345 $ 147.06
Total Damages $11,004.77
Plaintiff Theisen
1995 .2633 × 42 days × $32.775 $ 362.45
1996 .2633 × 366 days × $33.8175 $ 3,258.92
1997 .2633 × 213 days × $34.4445 $ 1,931.75
Total Damages $ 5,553.12
The final damages question before the court is the applicability of liquidated damages. The FLSA provides that "[a]ny employer who violates the provisions of ... section 207 ... shall be liable to the employee or employees affected in the amount of ... their unpaid overtime compensation ... and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). However, "if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act ... the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified [in 29 U.S.C. § 216]." 29 U.S.C. § 260. See also Cross v. Arkansas Forestry Com'n, 938 F.2d 912, 917 (8th Cir.1991) ("The FLSA provides for an award of liquidated damages to an employee to remedy an employer's violation of the FLSA.... However, the trial court has discretion not to award liquidated damages if the employer demonstrates that the violation was in good faith and objectively reasonable."); Barrentine v. Arkansas-Best Freight System, Inc., 750 F.2d 47, 51 n. 5 (8th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985) ("[E]ven if the employer shows both subjective good faith and objectively reasonable grounds for believing that its actions were not in violation of the statute, remission of liquidated damages remains within the sound discretion of the trial court.").
The jury in this case, after finding that the parties had not reached an agreement regarding compensation for work to be performed providing home care maintenance of the canines and that plaintiffs had performed work for which they were improperly compensated, found that defendant had not willfully violated the FLSA. The question of willfulness was submitted to the jury to determine whether a two or three year statute of limitations period applies. Other courts have found that the same willfulness standard for the statute of limitations issue applies to the liquidated damages issue. See Brinkman v. Dept. of Corrections of State of Kan., 21 F.3d 370, 372-3 (10th Cir.1994), cert. denied, 513 U.S. 927, 115 S.Ct. 315, 130 L.Ed.2d 277 (1994); E.E.O.C. v. City of Detroit Health Dept., 920 F.2d 355, 359-60 (6th Cir.1990) (Guy, J., concurring). The court agrees with this conclusion, and finds that the same facts which supported the jury's determination that defendant had not acted willfully for statute of limitations purposes also militates against an award of liquidated damages.
The court has read the brief order of Judge Kyle in Rudolph v. Metropolitan Airports Commission, Civil No. 3-94-702 (Docket No. 98, dated June 23, 1995) attached as Appendix B to plaintiffs' memorandum on damages. In his order, Judge Kyle noted that in that case:
*942 [t]he jury concluded the Defendant's violation of the Fair Labor Standards Act was not "willful" for purposes of extending the applicable statute of limitations period under 29 U.S.C. § 255(a). This finding does not preclude an award of liquidated damages. Under § 255(a), the employee bears the burden of proving the employer knew or showed reckless disregard of whether its conduct violated the Fair Labor Standards Act. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). This is significantly different than the standard applicable to liquidated damages under § 260. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 907-908 (3rd Cir.1991).
Order dated June 23, 1995 at 2 n. 2. There is no mention in Judge Kyle's opinion of the holding in Brinkman that in a jury case the same willfulness standard for the statute of limitations issue applies to the liquidated damages issue. Given that Martin, relied upon by Judge Kyle for the proposition that showing an employer did not willfully violate the Act does not satisfy the requirements of § 260, involved a bench trial in which there were no jury findings on the issue of willfulness, the court has reservations regarding the correctness of this statement.
Further, even if the court were not bound by the jury's determination on willfulness, an independent review of the facts of this case demonstrates that defendant acted in good faith and had reasonable grounds for believing that its omission was not a violation of the FLSA. The primary issue in this case was whether a reasonable agreement existed between the parties for the home care of the canines. Defendant had always paid plaintiffs a canine handler rate, and the evidence demonstrated that plaintiffs had objected to the amount of this payment rather than any failure of defendant to compensate them at all for this work. Plaintiffs' exhibits 13 and 14 are illustrative of defendant's efforts to act in accordance with the law. These exhibits are memoranda directing that the Maple Grove Police Department take various actions to comply with the FLSA and limit defendant's liability. Given defendant's understanding that the payment of a canine handler rate for the time spent in the home care maintenance of the canines under the terms of a reasonable agreement was permissible and its belief that such an agreement existed, the court finds that defendant acted in good faith and had reasonable grounds for believing that its omission was not a violation of the FLSA.
In the absence of liquidated damages, plaintiffs in this case are entitled to recover prejudgment interest in order to fully compensate them for the losses they have suffered. See Hultgren v. County of Lancaster, Neb., 913 F.2d 498, 510 (8th Cir.1990); Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986) (citing cases from a number of circuits where prejudgment interest found warranted in the absence of a liquidated damage award). "Prejudgment interest serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress." West Virginia v. U.S., 479 U.S. 305, 310 n. 2, 107 S.Ct. 702, 93 L.Ed.2d 639 (1987).
The general interest rate utilized by the United States Code is set out at 28 U.S.C. § 1961(a):
Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment.
*943 The court finds such rate appropriate in this case from the date of judgment, January 15, 1998.
Finally, the court finds that plaintiffs are the prevailing parties in this litigation for purposes of recovering attorneys fees and costs. 29 U.S.C. § 216(b) provides that the court shall "in addition to any judgment awarded to the ... plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." The procedure for seeking attorney's fees is set forth by District of Minnesota Local Rule 54.3.
Defendant contends that plaintiffs are not the prevailing party on all of the issues presented by this case. While defendant acknowledges that the determination that no agreement existed between the parties regarding compensation for home care was in plaintiffs' favor, it points out that the jury also found that plaintiffs spent "only" 15.8 minutes per day to care for the animals and that defendant had not willfully violated the FLSA. Defendant argues that a judgment indicative of a verdict partially in plaintiffs' favor is appropriate in this case.
The court concludes that plaintiffs are the prevailing parties in this litigation and that judgment should be entered in their favor. The jury found that plaintiffs had performed work for which they were improperly compensated. While defendant's violation was found not to be willful, the jury did find that plaintiffs had established their prima facie case of a FLSA violation. The court will therefore entertain plaintiffs' request for attorney's fees and costs, and will determine the appropriate amount of such fees when presented with that issue.
Therefore, based on a review of the file, record, and all the evidence presented in this case, IT IS HEREBY ORDERED that:
1. Plaintiff Radintz is awarded judgment against defendant for earned but unpaid wages in the amount of $11,004.77 plus prejudgment interest;
2. Plaintiff Theisen is awarded judgment against defendant for earned but unpaid wages in the amount of $5,553.12 plus prejudgment interest;
3. Judgment against defendant and in favor of plaintiffs shall be entered as of today's date, January 15, 1998;
4. Plaintiffs' motion for leave to petition the court for an award of attorney's fees, costs, and expenses pursuant to 29 U.S.C. § 216(b) and District of Minnesota Local Rule 54.3 is granted;
5. Plaintiffs' motion to compel defendant to provide data needed to calculate damages is denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] Plaintiffs concede that because they were aware of the right to bring a cause of action directly in federal district court, equitable tolling is not warranted on the basis of any deliberate design on the part of defendant to confuse them of their rights.
[2] Officer Theisen's police canine died on August 3, 1997. Because he discontinued providing home care maintenance for the canine on that date, he may not recover damages from August 4, 1997, forward.
[3] Because plaintiff Theisen's canine died on August 3, 1997, only plaintiff Radintz is entitled to damages after that date.
[4] The amount per hour is determined by dividing the annual payment by the 2080 hours of non-overtime worked per year.
[5] Plaintiff Theisen received this amount through August 17, 1997.
[6] 29 U.S.C. § 207(e) provides that the following shall not be included in computation of the "regular rate":
(5) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee[;]
(6) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek[;]
(7) extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday ... or workweek ... applicable to such employee[.]
[7] The record before the court contains wage information only through calendar year 1998. Plaintiffs' counsel has informed the court that no wage scale exists for calendar year 1999 because the parties do not yet have a contract covering this period. Counsel avers that when a new contract is eventually entered into any wage changes will be applied retroactively. As the parties are currently operating under 1998 wages, the court will utilize the same for purposes of determining plaintiffs' damages for the first fifteen days of 1999.
[8] Judgment is entered as of today's date, January 15, 1999.
[9] Plaintiff Theisen's canine died on August 3, 1997. His claim therefore stops on this date. Although August 17, 1997, this two week interim period should be excluded from the damage calculation because Theisen spent no time during this period in the home care maintenance of a canine.
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 18, 2003 Session
CITY OF OAKLAND, TENNESSEE v. LENITA McCRAW, ET AL.
A Direct Appeal from the Chancery Court for Fayette County
No. 12253 The Honorable William H. Inman, Special Judge
No. W2002-01552-COA-R3-CV - Filed March 17, 2003
This is a municipal incorporation case which tests the constitutionality of Chapter 129, Public
Acts of 2001, codified as T.C.A. § 6-1-210(b) and also presents the issue of whether the action
instituted by an adjoining incorporated municipality to invalidate the incorporation of the
neighboring area is an election contest governed by the limitation period established by T.C.A. § 2-
17-105. The trial court held that Chapter 129, Public Acts of 2001, is unconstitutional and further
held that the incorporated municipality’s action to invalidate the unincorporated area’s referendum
election and to revoke its charter is not an election contest governed by T.C.A. § 2-17-105. The
territory seeking incorporation appeals, and the county election commission that certified the election
appeals by the Tennessee Attorney General, defending the constitutionality of the subject Act. We
affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Brian L. Kuhn and Thomas J. Walsh, Jr., For Appellants, Town of Hickory Withe, Tennessee and
Mayor David Shelton
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Ann Louise
Vix, Senior Counsel, Nashville, For Appellant, Members of the Fayette County Election
Commission
Richard J. Myers, Memphis, For Appellee, City of Oakland
OPINION
This case involves, inter alia, an analysis of the constitutionality of Chapter 129, Public Acts
of 2001, codified as T.C.A. § 6-1-210(b) (“Chapter 129”). Defendant, Town of Hickory Withe,
Tennessee (“Hickory Withe”), is a territory of 2,574 people located in Fayette County. Plaintiff, city
of Oakland, Tennessee (“Oakland”), is an existing municipality adjoining the proposed boundaries
of Hickory Withe. On August 1, 1996, the residents of Hickory Withe held an incorporation election
pursuant to the amendments posed in Chapter 666, Public Acts of 1996, to T.C.A. § 6-1-201, for the
explicit purpose of voting on whether to incorporate the town. The result of the election was a
majority vote in favor of incorporation. Soon thereafter, the Chancery Court of Fayette County,
Tennessee declared Chapter 666 unconstitutional.1
In 1997, the Tennessee General Assembly amended T.C.A. § 6-1-201 through Chapter 98,
Public Acts of 1997. The 1997 amendments reduced the number of actual residents required for the
incorporation of a territory from 1,500 to “not fewer than two hundred twenty-five.” Additionally,
the 1997 amendments added the following subsections under Section 10 of the statute:
(j) Any territory that has conducted an election under this section
before the effective date of this act is deemed to have satisfied the
requirements for incorporation under this chapter, including without
limitation, any petition, time, notice and distance requirements of this
chapter; any action of such newly incorporated municipality in such
territory is hereby validated, ratified and confirmed, and no additional
election under subsection (a) need be held. In addition, any ordinance
of annexation by another municipality for any territory within the
corporate limits such new municipality is void and of no effect.
(k) If a territory has proposed to be incorporated under the provisions
of this section after January 1, 1996, the new municipality shall have
priority over any annexation ordinance of an existing municipality
which encroaches upon any territory of the new municipality.
The 1997 amendments to T.C.A. § 6-1-201 were subsequently declared void pursuant to Article II,
Section 17 of the Tennessee Constitution, as the Supreme Court determined that “Sections 7 through
11 of Chapter 98 of the 1997 Tennessee Public Acts are broader than and outside the caption of the
Act.” Tennessee Mun. League v. Thompson, 958 S.W.2d 333, 338 (Tenn. 1997).
In 1998, the General Assembly again entertained and approved amendments to T.C.A. § 6-1-
201. Chapter 1101, Section 9(f)(3) of the Public Acts of 1998 provided:
(A) Notwithstanding any other provision of law to the contrary, if any
territory with not less than two hundred twenty-five (225) residents
acted pursuant to Chapter 98 of the Public Acts of 1997, or Chapter
1
According to the brief filed by the Attorney General on behalf of defendant members o f the Faye tte County
Election Commission, the chancery court concluded that Chapter 666 was an “unconstitutional special act that violated
Article 11, Section 9 of the Tennessee Constitution.”
-2-
666 of the Public Acts of 1996 from January 1, 1996 through
November 25, 1997, and held an incorporation election, and a
majority of the persons voting supported the incorporation, and
results of such election were certified, then such territory upon filing
a petition as provided in § 6-1-202, may conduct another
incorporation election.
(B) If such territory votes to incorporate, the new municipality shall
have priority over any prior or pending annexation ordinance of an
existing municipality which encroaches upon any territory of the new
municipality. Such new municipality shall comply with the
requirements of Section 13(c) of this act.
Soon after its passage, Chapter 1101, Section 9(f)(3) of Public Acts of 1998 was ruled an
unconstitutional violation of Article XI, Section 8 of the Tennessee Constitution because it created
a special classification in contravention of a general law, not supported by a rational basis.2 Town
of Huntsville v. Duncan, 15 S.W.3d 468, 473 (Tenn. Ct. App. 1999).
The residents of Hickory Withe petitioned to hold a second referendum on incorporation in
September 1998. Acting under the authority of T.C.A. § 6-1-201 and the amendments espoused in
Chapter 1101, Hickory Withe held a second incorporation election on October 24, 1998.3 Hickory
Withe again returned a majority vote in favor of incorporation, and approved a mayor-aldermanic
charter. Defendant David Shelton (“Shelton”) was elected mayor in the inaugural elections of
January 1999.
Defendants concede that the “geographic area describing the proposed corporate limits of the
Town of Hickory Withe includes territory within three miles of the boundaries of the Town of
Oakland.” The Attorney General, acting on behalf of the members of the Fayette County Election
2
In its examination of this section, the court noted:
Section 9(f)(3)(A) enables certain territories to hold elections even though they do
not have at least 1,500 residents and are within three miles of an existing
municipality. Furthermore, Section 9(f)(3)(B) gives these territories retroactive
priority over any prior or pending annexation ordinances of adjoining
municipalities, a priority not afforded to other territories seeking incorporation.
Thus, Sectio n 9(f)(3) creates a special classification o f territories that may hold
incorporation elections while other territories of similar size and location cannot do
so under the applicable general law.
Id. at 472 (emphasis in original).
3
As part of the incorporation and petitioning process, “Hickory Withe representatives prepared and submitted
a Proposed Plan of Services ... which set forth the services to be provided, along with projected revenues and
expenditures for the incorporated territory.”
-3-
Commission (“Election Commission”), further acknowledges that “[t]he Town of Oakland annexed
territory within the proposed corporate limits of the Town of Hickory Withe.” According to the
Affidavit of defendant Shelton, Hickory Withe has continuously operated as a municipal corporation
since the October 1998 election.
In April 2001, the General Assembly undertook to amend T.C.A. § 6-1-210 via Chapter 129,
Public Acts of 2001, adding the following subsection:
(b) Notwithstanding any provision of this chapter or any other law to
the contrary,
IF the registered voters of any unincorporated territory approved a
mayor-aldermanic charter and elected municipal officials, acting
pursuant to the provisions of this chapter on or before December 31,
1999; AND
IF, from the election of such officials until the effective date of this
act, the territory has continuously functioned as a mayor-aldermanic
municipality; AND
IF the territory, between the date of such election and the effective
date of this act, received and expended state funding allocated for
municipalities; THEN
The adoption of such charter, the incorporation of such territory as a
mayor-aldermanic municipality and the election of such officials are
hereby ratified and validated in all respects; and no flaw or defect or
failure to comply with any requirement of incorporation, set forth in
§ 6-1-201(b), shall invalidate the territory’s status as an incorporated
municipality or invalidate any ordinance passed by the board.
Chapter 129, Public Acts of 2001.
Chapter 129 was codified as T.C.A. § 6-1-210(b), and took effect on April 26, 2001, while this
action was still pending.
-4-
Oakland filed its original Complaint for Injunction and Declaratory Relief against defendants
Lenita McCraw, Fayette County Administrator of Elections,4 the Election Commission,5 Shelton,
and Hickory Withe on December 18, 1998. At the heart of Oakland’s complaint is the allegation that
Hickory Withe was incorporated pursuant to an unconstitutional Public Act, therefore rendering the
town’s election, and subsequent incorporation, invalid. Oakland advanced several arguments
attacking the constitutionality of Chapter 1101, including assertions that this act violated Sections
8 and 9 of Article XI of the Tennessee Constitution.6
The Attorney General filed a Motion for Partial Dismissal pursuant to Tenn. R. Civ. P.
12.02(6), or, in the alternative, a Motion for Partial Summary Judgment. As the basis for these
motions, the Attorney General rebuffed plaintiff’s claims that Chapter 1101 was unconstitutional,
and further asserted that “Section 9(f)(3) of the Act is a general law, does not interfere with vested
rights, and is supported by a rational basis.”
Mayor Shelton and the Town of Hickory Withe filed a joint Answer to Oakland’s Complaint
on February 26, 1999. In addition to denying plaintiff’s allegations that Chapter 1101 was
unconstitutional, defendants affirmatively pled that the action should be controlled by T.C.A. § 2-17-
105 as an election contest. Defendants set forth the following affirmative defenses:
38. This Complaint should be dismissed for lack of standing of the
Plaintiff.
39. The Complaint should be dismissed for lack of jurisdiction due to
Plaintiff’s failure to timely file a petition for writ of certiorari.
40. The Complaint should be dismissed for failure to be filed
pursuant to Tennessee Code Annotated 2-17-101, et seq. and for
failure to file within the time limit set forth in that statute.7
41. The Complaint should be dismissed based upon the equitable
principles of estoppel and laches.
4
Plaintiff voluntarily dismissed this cause of action as to defendant McCraw in July 2001, said dismissal being
granted by the court in an Order entered July 12, 2001.
5
The following individuals were sued in their official capacity as Election Commission members: Michael
Thoma s, Erne stine B rown, Maxine M iddlecoff, Alice P. M cClanahan, and W illiam P. Yan cey.
6
Oakland properly notified the Attorney General of the State of Tennessee of its intent to question the
constitutionality of Chapter 1101, Public Acts of 1998.
7
T.C.A . § 2-17-105 (1994) provide s:
Time for filing compla int. – The complaint contesting an election under § 2-17-
101 shall be filed within ten (10) days after the election.
-5-
On August 2, 1999, the Tennessee Supreme Court entered an Order designating Judge William H.
Inman to hear the case “to its conclusion.”
The Attorney General filed a Motion to Continue Trial on October 25, 1999. The Attorney
General sought continuance on the grounds that defendant was planning to appeal the Court of
Appeals’ decision in Town of Huntsville v. Duncan, in which the court found that “Section 9(f)(3)
of Chapter 1101 of the Public Acts of 1998 is unconstitutional because it offends Article XI, Section
8 of the Tennessee Constitution.” The trial court granted defendant’s motion, recognizing that “[a]
principal issue in this litigation involves the constitutionality of Section 9(f)(3) of Chapter 1101,
Public Acts of 1998.”
On November 1, 1999, the Attorney General filed a joint Motion for Partial Summary
Judgment asserting that defendants were entitled to judgment as a matter of law “as to the allegations
that these Defendants violated T.C.A. § 6-1-202(a).” In May 2000, Oakland countered with its own
Motion for Summary Judgment, insisting that Huntsville v. Duncan was controlling authority with
regard to the issue of whether Chapter 1101 was constitutional. As further support for this assertion,
Oakland noted that the Tennessee Supreme Court had recommended the Eastern Section’s amended
opinion in Huntsville for publication.
Upon the Supreme Court’s Order of May 1, 2000 designating Huntsville for publication, the
Attorney General filed a Notice of Withdrawal of defendants’ motions for partial dismissal and
partial summary judgment. Defendants, moreover, stipulated and agreed that “Section 9(f)(3) of
1998 Tenn. Pub. Acts Ch. 1101 is unconstitutional because it establishes a classification that is not
supported by a rational basis as required by Article XI, Section 8 of the Tennessee Constitution.”
The trial court subsequently granted Oakland’s Motion for Partial Summary Judgment to the extent
that “Section 9(f)(3)(B) of Chapter 1101 of the 1998 Public Acts is unconstitutional as held by the
Court of Appeals in Town of Huntsville et al. v. Duncan, C/A 03A01-9901-CH-00024.”
On April 26, 2001, Chapter 129 was signed into law. Immediately thereafter, Oakland
amended its complaint8 to challenge the constitutionality of Chapter 129 and to further request that
the court grant the following relief:
The Court declare [Chapter 129] unconstitutional generally, and/or as
it applies to the Plaintiff particularly and therefore void, and
permanently enjoin enforcement of said Act.
The Court grant plaintiff a permanent injunction prohibiting
defendants from conducting any further elections of any kind for the
Town of Hickory Withe.
8
The court permitted Oakland to amend its complaint pursuant to a Consent Order entered M ay 9, 2001 . We
note that Oakland properly notified the Attorney General of its intent to challenge the constitutionality of Chapter 129.
-6-
Defendants Shelton and Hickory Withe filed a joint Answer in response to Oakland’s
amended Complaint in May 2001.9 As part of their answer, defendants affirmatively pled “that the
passage and signing into law of House Bill 1930/Senate Bill 1903, Chapter 129 of the Public Acts
of 2001 (the “Ratification Act”) has cured any alleged violations of T.C.A. 6-1-201 et seq. that
occurred during the incorporation of Hickory Withe....”
On February 15, 2002, Oakland filed a Motion for Partial Summary Judgment challenging
the constitutionality of Chapter 129 on the following basis:
For grounds, Oakland will show that Chapter 129 is unconstitutional:
pursuant to Const. Art. 11, § 9, because it is a special law regarding
the incorporation of a municipality; and, pursuant to Const. Art. 11,
§ 8, because it is a special law in contravention of a general law that
creates an arbitrary class, and whose status as such has already been
adjudicated in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn.
Ct. App. 1999). There is thus no genuine issue of material fact that
as a matter of law Oakland is entitled to partial summary judgment
that Chapter 129 is unconstitutional and thus void.
The Attorney General filed a response to plaintiff’s motion, defending the constitutionality of
Chapter 129. Specifically, the Attorney General argued that Chapter 129 does not create a special
class, as it “validates the incorporation of every city that has incorporated in Tennessee since June
30, 1991 and is still actively operating.” Alternatively, the Attorney General suggested that if
Chapter 129 does, in fact, create a special class, such class is justified by a rational basis.
On April 15, 2002, the court entered an Order granting Oakland’s Motion for Partial
Summary Judgment. In concluding that Chapter 129 was an unconstitutional violation of Article XI,
Section 9 of the Tennessee Constitution, the court noted:
The intended effect of Chapter 129 is to validate the
incorporation of various small territories – such as Hickory Withe –
whether the general laws for incorporation were complied with or not.
Stated differently, Chapter 129 undertook to remove the shadow of
Duncan from various small towns whose creation and existence were
mirror images of Helenwood, the town involved in Duncan. Chapter
129 thus squarely offends Article 11 Section 9 of the Constitution
which declares “[t]he General Assembly shall by general law provide
the exclusive methods by which municipalities may be created,
merged, consolidated and dissolved and by which municipal
boundaries may be altered.” See Frost v. City of Chattanooga, 488
S.W.2d 370 (Tenn. 1972).
9
The Attorney General filed an Answer to Oakland’s Amended Complaint on May 25, 2001.
-7-
Oakland correctly points out that only those territories
incorporated under Chapter 98 of the 1997 Public Acts, which was
declared unconstitutional in Tenn. Mun. League v. Thompson, 958
S.W.2d 333 (Tenn. 1997), would require validation, if possible, and
that the only difference between Chapter 129 (in controversy here)
and Section 9(f)(3), (in controversy in Duncan), is “that the latter
made the [various small towns] continued existence contingent upon
another vote, while the former simply decrees it.” Chapter 129 is a
special law creating a number of small towns in stark contravention
of the Constitution.
Seven days after the filing and entrance of this Order, Hickory Withe filed a motion seeking
clarification of the status of the case, and the April 15 Order. The basis for Hickory Withe’s motion
was its assertion that the trial court’s April 15 Order did not provide a final judgment or resolution
on the following issues: (1) “whether the Court had jurisdiction of this matter because the Complaint
was not filed within ten (10) days of the election pursuant to T.C.A. §§ 2-17-101 et seq., and
specifically T.C.A. § 2-17-105 (1998);” (2) “whether or not laches and estoppel applied to the Town
of Oakland Complaint;” and (3) “whether or not it should have been filed as a Petition for Certiorari
within the proper deadline set forth in the Petition for Certiorari statute being T.C.A. § 27-9-101 et
seq.”
On May 13, 2002, the Attorney General, acting pursuant to T.R.C.P. 54.02, moved for entry
of a final judgment on the constitutionality of Chapter 129. The Attorney General’s motion was
granted by Order of the trial court on June 10, 2002. Shortly thereafter, the Attorney General filed
a Motion to Revise the June 10 Order, citing concern that the “Order may not be sufficient to support
an appeal under Rule 54.02.”
The Attorney General filed a Notice of Appeal, appealing the trial court’s April 15 Order on
June 27, 2002. Defendants Shelton and Hickory Withe followed the Attorney General’s lead, and
filed a joint Notice of Appeal on July 5, 2002, challenging the court’s April 15 ruling. The Attorney
General filed a Revised Notice of Appeal on July 9, 2002.
On October 9, 2002, the trial court entered a Final Order on the remaining issues10 raised by
Hickory Withe and Oakland in their cross motions for summary judgment. The court, in its
Memorandum Opinion, stated with regard to these issues:
Hickory Withe, in a fall-back position of sorts, argues that if
it cannot prevail under the Ratification Act (declared invalid by this
Court) its efforts to incorporate under prior law must be
10
The following issues were withdrawn prior to entry of the Final Order: (1) whether the Plan of Services
subm itted by H ickory W ithe complied with applicable statutory guideline s; and (2) whether O akland ’s complaint was
properly brought under T.C.A. § 29-35-101.
-8-
acknowledged as valid, notwithstanding its (1) admitted violation of
the three mile limit, (2) its assertion that it did not rely exclusively
upon a particular statute, (3) its concession that the boundaries of
Hickory Withe cannot be judicially redrawn to obviate the three mile
violation. Hickory Withe argues that the Oakland complaint is
untimely because not filed within the familiar ten day period
regarding election contests.
Keeping within the parameters of Rule 56, the undersigned is
of the opinion that (1) T.C.A. §§ 2-17-101 et seq. is not implicated in
this case, which does not involve an election contest. See, e.g.,
Brown v. Vaughn, 310 S.W.2d 444 (Tenn. 1957), and Forbes v. Bell,
816 S.W.2d 716 (Tenn. 1991). The standing to sue issue is clearly
not a defense to this action, see, e.g., Collierville v. Fayette County
Election Commission, 539 S.W.2d 334 (Tenn. 1976), and neither is
the equitable principle of laches.
Based on these findings, the court granted Oakland’s Motion for Summary Judgment, denied the
motion of defendant Hickory Withe, and ordered the immediate dissolution of Hickory Withe’s
Charter.
On October 16, 2002, defendants Shelton and Hickory Withe filed a joint Notice of Appeal,
challenging the Final Order of October 9. Defendants noted:
[T]hey currently have an appeal pending from a prior order of this
Court in this case, that being an appeal from the Court’s Order of
April 15, 2002, as made final by the Court’s order of June 10, 2002,
holding that the Tennessee Ratification Act, Tenn.Code Ann. § 6-1-
210(b), violates Article XI, Section 9 of the Tennessee Constitution.
The Final Order which is the subject of the present appeal addresses
other issues in the case. Approximately concurrently with the filing
of this Notice of Appeal, a joint motion is being filed with the Court
of Appeals on behalf of all parties to both appeals, moving the Court
of Appeals to consolidate the two appeals and to expedite their
resolution.
Therefore, on appeal, defendants Hickory Withe, Shelton, and Attorney General (acting on
behalf of Election Commission) present the following issue for review: Whether Chapter 129, Public
Acts of 2001, violates Article XI, Section 9, of the Tennessee Constitution. Defendants Hickory
Withe and Shelton present for review the additional issue of whether the court lacks jurisdiction over
this matter, “because the complaint was not filed within 10 days of the election in question, as
required by T.C.A. § 2-17-101 et seq. governing election contests.”
-9-
A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court said:
Once it is shown by the moving party that there is no genuine issue
of material fact, the nonmoving party must then demonstrate, by
affidavits or discovery materials, that there is a genuine, material fact
dispute to warrant trial. In this regard, Rule 56.05 provides that the
nonmoving party cannot simply rely upon his pleadings but must set
forth specific facts showing that there is a genuine issue of material
fact for trial.
Id. at 210-11 (citations omitted) (emphasis in original).
Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding
a trial court’s grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
I.
Because this court is required to abstain from ruling on the constitutionality of a statute
unless such a ruling is absolutely necessary, we begin by examining Hickory Withe’s second issue,
the question of whether the trial court lacks jurisdiction over this matter “because the complaint was
not filed within 10 days of the election in question, as required by T.C.A. § 2-17-101 et seq.
governing election contests.”
In arguing that Oakland’s complaint is time barred as an election contest under the 10-day
statute of limitations set forth in T.C.A. § 2-17-105, Hickory Withe relies primarily on the Tennessee
Supreme Court’s decision in Dehoff v. Attorney General, 564 S.W.2d 361 (Tenn. 1978). Dehoff
involved a referendum election, posing to voters the question of whether the term of the Rutherford
County judge should be changed from an eight-year term to a four-year term. Id. at 62. A majority
of the votes cast were for the four-year term. Id. More than three months following the election,
citizens and registered voters of Rutherford County filed a declaratory judgment suit seeking to have
the election declared invalid for, among other things, constitutional reasons. Id. The defendant
denied that there were any grounds for declaring the election invalid and asserted the further defense
-10-
that the action should be dismissed because it was not filed within the ten-day statute of limitations
as required by then T.C.A. § 2-1705. Id. at 362-63. The Supreme Court, in affirming the decision
of the chancellor that the action was in reality an election contest and was barred because it was not
timely filed, stated:
Accordingly, in the case at bar, it is clear that insofar as the
plaintiffs seek to contest the election of May 2, 1974, the applicable
period of limitations is the ten day period prescribed by T.C.A., § 2-
1705, and since the suit was not filed within that ten day period, it is,
to that extent, barred as held by the Chancellor.
The election code of this State does not specifically define
“election contest.” However, in Hatcher v. Bell, Tenn., 521 S.W.2d
799 (1974), this Court, speaking through Mr. Justice Cooper, has
given a broad interpretation to the words “election contest” as they
are used in the election code. Thus, we said:
There is no question but that a suit which attempts to
go behind the election returns, to recount the votes or
otherwise assail the manner and form of the election
is an election contest. (Citations omitted). But an
election contest is not limited to an attack on the
integrity of the election process, nor is it limited to an
attack by a candidate who makes claim to the office.
* * *
We also said in the Hatcher case that the target of an election
contest is the validity of the election.
Id. at 363.
Concerning contested elections, T.C.A. § 2-17-101 (1994) provides:
2-17-101. Jurisdiction - Standing. - (a) Except as otherwise
expressly provided in this chapter, election contests shall be tried in
the chancery court of the division in which the defendant resides. The
chief justice of the supreme court shall assign a chancellor from a
different division to decide a contested election of chancellor.
(b) The incumbent office holder and any candidate for the office may
contest the outcome of an election for the office. Any campaign
committee or individual which has charge of a campaign for the
-11-
adoption or rejection of a question submitted to the people may
contest the election on the question.
We believe that Hickory Withe’s reliance on Dehoff is misplaced. Under Dehoff, the
plaintiffs had standing to file an election contest. See Brackin v. Sumner County, 814 S.W.2d 57,
61 (Tenn. 1991); Rodgers v. White, 528 S.W.2d 810, 811 (Tenn. 1975).
Oakland, in contrast, has no standing to proceed in an election contest concerning a
referendum involving the citizens of the community of Hickory Withe. The City of Oakland is not
qualified to vote in that referendum, and it is not a “campaign committee or individual which has
charge of a campaign for the adoption or rejection of a question submitted to the people.” T.C.A.
§ 2-17-101(b). To adopt Hickory Withe’s argument would effectively deny Oakland a remedy while
it obviously has a remedy in a quo warranto proceeding. See Corp. of Collierville v. Fayette County
Election Comm’n, 539 S.W.2d 334 (Tenn. 1976) (wherein the town of Collierville, Tennessee filed
a proceeding to declare invalid the incorporation of Piperton for violation of the statute proscribing
encroachment within two miles of Collierville’s boundaries). The opinion presented the question:
“Does the existing city have standing to sue to invalidate the charter of the proposed city when the
two-mile provision and the resulting 15-month mandatory waiting period are ignored.” Id. The
Supreme Court answered this question in the affirmative. Id. at 336. The trial court had sustained
a motion to dismiss, holding that since this was a quo warranto proceeding, Collierville had no
standing to sue, as it would have to be brought in the name of the district attorney general. Id. at
335. The Supreme Court’s ruling was premised on its finding that Collierville, as an existing city,
was an “‘arm of the state,’and a repository of a portion of the state’s sovereign power,” which in turn
conferred the right to sue to challenge the corporate existence of Piperton. Id. at 337.
From the above authorities, we conclude that Oakland’s suit to challenge the corporate
existence of Hickory Withe is not an election contest, and therefore not barred by the ten-day
limitation provision established for election contests in T.C.A. § 2-17-105.
II.
The second issue presented for review is whether Chapter 129, codified as T.C.A. § 6-1-
210(b) (2002), violates the Municipal Boundaries Clause of Article XI, Section 9. Statutes enacted
by the legislature are presumed constitutional. Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856,
858 (Tenn. 1996). Thus, we must “indulge every presumption and resolve every doubt in favor of
constitutionality.” Id.
Oakland alleges that Chapter 129 is a special law in violation of Article XI, Section 9, of the
Tennessee Constitution as it validates the corporate existence of a “handful class” of municipalities,
despite said municipalities’ failure to comply with the three mile incorporation requirement set forth
in T.C.A. § 6-1-201(b). Defendants counter that Chapter 129 is a general law under the Municipal
Boundaries Clause and, in the event that Chapter 129 creates a special classification, the
classification is valid as it is supported by a rational basis.
-12-
The Municipal Boundaries clause of Article XI, Section 9 of the Tennessee Constitution
provides:
The General Assembly shall by general law provide the exclusive
methods by which municipalities may be created, merged,
consolidated and dissolved and by which municipal boundaries may
be altered.
Tenn. Const. art. XI, § 9 (emphasis added).
Under T.C.A. § 6-1-201, a territory is entitled to incorporate if it complies with certain
requirements. Included among these requirements is the provision that “no unincorporated territory
shall be incorporated within three (3) miles of an existing municipality....” It is undisputed that
Hickory Withe violated T.C.A. § 6-1-201(b) by incorporating within three miles of Oakland’s
corporate limits. Despite this infraction, Hickory Withe maintains that its corporate existence is
validated by Chapter 129.
To reiterate, Chapter 129, codified as T.C.A. § 6-1-210(b) (2002), provides:
Notwithstanding any provision of this chapter or any other law to the
contrary,
IF the registered voters of any unincorporated territory approved a
mayor-aldermanic charter and elected municipal officials, acting
pursuant to the provisions of this chapter on or before December 31,
1999; AND
IF, from the election of such officials until April 26, 2001, the
territory has continuously functioned as a mayor-aldermanic
municipality; AND
IF the territory, between the date of such election and April 26, 2001,
received and expended state funding allocated for municipalities;
THEN
The adoption of such charter, the incorporation of such territory as a
mayor-aldermanic municipality and the election of such officials are
hereby ratified and validated in all respects; and no flaw or defect or
failure to comply with any requirement of incorporation, set forth in
§ 6-1-201(b), shall invalidate the territory’s status as an incorporated
municipality or invalidate any ordinance passed by the board.
-13-
We turn to this court’s decision in Town of Huntsville v. Duncan, 15 S.W.3d 468 (Tenn. Ct.
App. 1999) for guidance in determining whether Chapter 129 is a special law in violation of the
Municipal Boundaries Clause of Article XI, Section 9.11 Although Huntsville was not decided upon
the same constitutional provision as the one before this court, the factual and legal analysis instituted
by the Huntsville court is analogous to the situation at bar. In Huntsville, the plaintiffs filed suit
challenging the constitutionality of Chapter 1101, Public Acts of 1998. Id. at 469. Defendant town
of Helenwood, an adjoining territory of less than 1,500 people, held an incorporation election in
November 1997 pursuant to Chapter 1101. Id. at 470-71. A majority of voters voted in favor of
incorporation, and Helenwood was thereby incorporated despite the fact that it had less than 1,500
citizens and was situated within three miles of Huntsville. Id. at 471.
11
Defendants appear to contend that Hu ntsville is not controlling authority because the statute involved in that
case was ruled unconstitutional and invalidated on the basis that the “act created a classification that was not supported
by a rational basis under Article XI, Section 8 of the Tennessee Constitution.” Because Hu ntsville involved the
application of Section 8, not Section 9, defendants suggest that Huntsville is not dispositive of the issue of whether
Chapter 1 29 violates the Municipal Bo unda ries Clause of Section 9.
Article XI, Section 8 pro vides:
The Legislature shall have no power to suspend any general law for the benefit of
any particular individual, nor to pass any law for the b enefit of ind ividuals
inconsistent with the general laws of the land; nor to pass any law granting to any
individual or individuals, rights, privileges, immunitie, [immunities] or exemptions
other than such as may be, b y the same law extended to any member of the
com munity, who m ay be a ble to bring himself within the provisions of such law.
No corp oration shall be created or its powers increased or diminished by special
laws but the General Assembly shall provide by general laws for the organization
of all corporations, hereafter created, which laws may, at any time, be altered or
repealed, and n o such alteration or rep eal shall interfere w ith or divest rights
which have become vested.
Tenn. Const. art. XI, § 8 (emphasis added).
According to the court in Hu ntsville, “Tennessee courts have long recognized the similarity between Article
XI, Section 8, and the Equal Protection Clause of the Federal Constitution, and have therefore applied an equal protection
analysis to constitutional challenges brought pursuant to Article XI, Section 8.” Id. at 472 (citations omitted). Section
8 is a broadly defined equal protection provision that assigns to the General Assembly the power to organize corporations
pursuant to ge neral laws, thereby prohibiting the cre ation o f corporatio ns through sp ecial laws.
In contrast, Section 9 is a more direct and precisely defined equal protection provision that gives the General
Assembly the exclusive power to create municipalities by general law. However, because Hickory W ithe is currently
operating as a municipal corporation, and recognizing that Sections 8 and 9 are both equal protection provisions that
prohibit the creation o f corporatio ns and municipalities respectively, we find that Hu ntsville is, at a minimum,
persuasive authority with regard to the issue o f whether Chapter 1 29 is a special law in violatio n of the Municipal
Boundaries Clause.
-14-
Plaintiff, Town of Huntsville, “specifically contest[ed] Section 9(f)(3) of Chapter 1101,
which permit[ted] certain territories to hold incorporation elections even though these territories
[did] not satisfy the minimum requirements for such elections as set forth in the general law.” Id.
at 469-70 (citing T.C.A. § 6-1-201 (1998)). The parties filed cross motions for summary judgment,
and the trial court granted summary judgment in favor of defendants, “finding that Section 9(f)(3)
is constitutional.” Id. at 470. Plaintiffs raised five issues on appeal, including the separate issues
of whether Section 9(f)(3) violated Article XI, Section 8, and Article XI, Section 9. Id.
Considering first the issue of whether Section 9(f)(3) violated Section 8 by “(a) creating a
class of territories that can incorporate despite the general population and distance requirements
applicable to municipalities statewide, [and] (b) without any rational basis for the classification,” the
court of appeals concluded that “Article XI, Section 8 is implicated in this case because Section
9(f)(3) contravenes the general law pertaining to the incorporation of municipalities.” Id. at 471-72.
As support for this holding, the court noted that the statute in question enabled a specific class of
territories to hold incorporation elections despite their failure to comply with the population and
distance requirements set forth in T.C.A. § 6-1-201. Id. at 472. The court further noted:
Section 9(f)(3) gives these territories retroactive priority over any
prior or pending annexation ordinances of adjoining municipalities,
a priority not afforded to other territories seeking incorporation.
Thus, Section 9(f)(3) creates a special classification of territories that
may hold incorporation elections while other territories of similar size
and location cannot do so under the applicable general law.
Id., (Emphasis in original).
Based on its conclusion that Section 9(f)(3) created a special classification, unsupported by a rational
basis (a point that will be discussed in further detail later in this opinion), the court pretermitted all
other issues presented on appeal, including the issue of whether Section 9(f)(3) violated Article XI,
Section 9. Id. at 473.
Similar to Chapter 1101, Chapter 129 enables a specific class of territories to incorporate
despite failure to comply with a particular provision established in T.C.A. § 6-1-201. Specifically,
Chapter 129 validates the corporate existence of certain territories, including Hickory Withe, even
though these territories violated the three mile requirement set forth in T.C.A. § 6-1-201(b). Further,
we note that Chapter 129 validates the corporate existence of territories that encroach upon the three
mile limit in violation of T.C.A. § 6-1-201(b), but does not validate the incorporation of territories
that fail to comply with the population provision of (a)(1), the plan of services requirement under
(a)(2), and the public hearing provision in (a)(3). By restricting the validation provision to those
territories that failed to comply with the distance requirement set forth in T.C.A. § 6-1-201(b), and
thereby refusing or neglecting to extend the same privilege or right to those territories whose only
incorporation flaw was its failure to comply with the population, plan of services, or public hearing
-15-
requirements of T.C.A. § 6-1-201(a), the legislature further limited the class of territories who are
entitled to benefit from Chapter 129.
By Hickory Withe’s own admission, Chapter 129 currently applies to only ten municipalities
in Tennessee. Under the language of this statute, only territories in which registered voters
“approved a mayor-aldermanic charter and elected municipal officials, acting pursuant to the
provisions of this chapter on or before December 31, 1999,” fall within the purview of subsection
(b). (emphasis added). This date restriction effectively prohibits the inclusion of any new territory
into this group. Simply stated, subsection (b) only applies to the ten specific territories
acknowledged by Hickory Withe, as the restriction date precludes application to any territory that
was not approved as a mayor-aldermanic municipality by a majority of registered voters, in an
election held on or before December 31, 1999.
For these reasons, we hold that Chapter 129 creates a special classification, and is therefore
a special law in violation of Article XI, Section 9.
Having determined that Chapter 129 is a special law in violation of Article XI, Section 9, we
now consider whether there is a rational basis supporting the special classification created by this
statute. We begin by noting that there is no Tennessee case law directly stating that a special law
violating Section 9 is valid if supported by a rational basis. Moreover, we do not hold that a court
is required to conduct a rational basis analysis when considering the constitutionality of a statute
under Article XI, Section 9. However, we recognize that the Tennessee Supreme Court, in the 1990
case of Hart v. City of Johnson City, applied a rational basis analysis in determining whether
population classifications set out in an amendment to a statute authorizing municipal annexation
contests violated Article XI, Section 9 because the amendment was a special law. 801 S.W.2d 512,
515 (Tenn. 1990) (“[W]e have never upheld class legislation in annexation statutes. Such statutes
are subject to an entirely different constitutional prohibition, the Municipal Boundaries Clause found
in art. XI, § 9.”). We therefore proceed with an analysis of whether there is a rational basis to
support Chapter 129.
“To withstand scrutiny under the rational basis standard, a classification must ‘have some
basis which bears a natural and reasonable relation to the object sought to be accomplished, and there
must be some good and valid reason why the particular individual or class upon whom the benefit
is conferred, or who are subject to the burden imposed, not given to or imposed upon others, should
be so preferred or discriminated against.’” Huntsville, 15 S.W.3d at 472 (citing State v. Nashville,
C. & S. L. R. Co., 124 Tenn. 1, 135 S.W. 773, 775 (1911); Knoxville’s Cmty. Dev. Corp. v. Knox
County, 665 S.W.2d 704, 705 (Tenn. 1984)). The reasonableness of a classification is determined
upon the facts of the particular case. Huntsville, 15 S.W.3d at 472 (citing Estrin v. Moss, 221 Tenn.
657, 430 S.W.2d 345, 349 (1968)).
In his brief, the Attorney General asserts that Chapter 129 is clearly supported by a rational
basis, and further notes:
-16-
The Ratification Act promotes predictability and protects the interests
of members of the public who have relied on the corporate existence
of these cities. It protects these cities from operating under the threat
that their existence may, any time in the future, be challenged and
even extinguished based on a technical failure many years in the past.
Hickory Withe echoes the rationale advanced by the Attorney General that Chapter 129 creates
predictability and stability, and further states:
In effect, the legislators exercised their judgment to declare that those
groups of citizens who have made a serious and sustained effort to
organize and function as a municipality, and who have been operating
as such for some period of time, deserve to be recognized as such.
Moreover, with the passage of time, such communities typically have
taken actions, have made contractual promises, have incurred debts,
have begun projects, and in general have created expectations, all of
which would be unduly disrupted if they are suddenly subject to
challenge. Indeed, in this very case, the challenge came on the eve of
the election of officers, after campaigns had been conducted.
While we are sympathetic to the notion that Chapter 129 creates stability and predictability
for residents of the ten territories covered under this provision, including Hickory Withe, we must
also consider the interests of existing municipal corporations such as Oakland, who are also directly
affected by this statute. Under T.C.A. § 6-1-201, existing municipal corporations are entitled to a
protected three mile zone between their corporate boundaries and the boundaries of municipalities
seeking incorporation. By exempting specific territories from the three-mile incorporation
requirement set forth in T.C.A. § 6-1-201, Chapter 129 threatens the reasonable expectations of
existing municipal corporations.
With regard to Hickory Withe’s assertion that the expenditure of time and money or the
creation of contracts in furtherance of, or reliance upon, incorporation provides a rational basis for
the statute in question, we note that Oakland filed its complaint challenging the validity of the
October 24, 1998 election less than two months after the election. There is no indication in the
record that Hickory Withe entered into any contracts or incurred any debts during this time. In his
affidavit, Mayor Shelton averred that he “spent a considerable amount of personal money and time
running for offices for the Town of Hickory Withe,” and noted that numerous citizens volunteered
“thousands of hours” in helping to organize the town. Mayor Shelton additionally suggested that the
town provided generous financial support to its volunteer fire department.12 In Huntsville, this court
determined that “[t]he mere fact that residents ... expended money and effort to incorporate cannot
justify exemption from a general law....” Town of Huntsville v. Duncan, 15 S.W.3d 468, 473
12
We note that the fire department was incorporated in February 1999, more than one year after Oakland filed
its complaint
-17-
(Tenn. Ct. App. 1999). On this basis, we find that the mere fact that Mayor Shelton and other
candidates spent time and money in campaigning for public office, even when combined with
evidence that several citizens volunteered thousands of hours toward the organization of Hickory
Withe, does not constitute a rational basis in support of the special classification established by
Chapter 129.
As a final note, we are unable to “discern a rational difference” between Hickory Withe in
the one instance, and the hundreds of other small Tennessee communities who are prohibited from
seeking incorporation because these communities lack 1,500 or more citizens, encroach too closely
upon the boundaries of existing municipalities, or failed to comply with the plan of services or public
hearing requirements set forth in T.C.A. § 6-1-201. See Huntsville, 15 S.W.3d at 473. “The record
does not reflect any intrinsic difference between the community of [Hickory Withe] and these other
small communities.” Id. We find simply that there is no rational basis to distinguish Hickory Withe
from other similar small communities.
Because we find no rational basis to support the special classification created by Chapter 129,
we hold that Chapter 129 is unconstitutional as it creates a special classification, unsupported by
rational basis, in contravention of Article XI, Section 9, of the Tennessee Constitution.
III.
In conclusion, we affirm the trial court’s order granting partial summary judgment for
plaintiff, City of Oakland, holding that Chapter 129, Public Acts of 2001, violates Article XI, Section
9, of the Tennessee Constitution. We further affirm the trial court’s order granting Oakland’s
Motion for Summary Judgment holding that Oakland’s action to invalidate Hickory Withe’s
referendum election and to revoke its charter is not an election contest governed by the 10-day
limitation period for such actions. Costs of appeal are assessed against defendants Town of Hickory
Withe, David Shelton, and Members of the Fayette County Election Commission and their sureties.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
-18-
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7284
HUGH ROYAL EPPS,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; MLP VICARTHUR FACTORA; DR.
KATHERINE LAYBOURNE; FBOP REGIONAL MEDICAL STAFF, Etc.;
FBOP WARDEN; DR. KHAN; DR. KALUR,
Defendants - Appellees,
and
FEDERAL BUREAU OF PRISONS, Medical Staff at FCI Low,
Defendant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:17-cv-00646-HEH-RCY)
Submitted: January 9, 2020 Decided: January 16, 2020
Before KING, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hugh Royal Epps, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Hugh Royal Epps appeals the district court’s memorandum opinions and orders
dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2) (2018), and denying Epps’
motion to reconsider under Fed. R. Civ. P. 59(e). We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons stated by the district court.
Epps v. United States, No. 3:17-cv-00646-HEH-RCY (E.D. Va. Feb. 6, 2019; Aug. 26,
2019). We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
3
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Matter of Alleyne v Ally (2015 NY Slip Op 05936)
Matter of Alleyne v Ally
2015 NY Slip Op 05936
Decided on July 8, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 8, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2014-11715
(Docket No. O-15718-14)
[*1]In the Matter of Donald Alleyne, respondent,
vDeuel J. Ally, appellant.
Shellon O. Washington, Brooklyn, N.Y., for appellant.
Ella Royzman, PLLC, Brooklyn, N.Y., for respondent.
DECISION & ORDER
Appeal from an order of protection of the Family Court, Kings County (Maria Arias, J.), dated December 2, 2014. The order of protection, upon a finding, after a hearing, in effect, that the appellant committed the family offense of harassment in the second degree, directed the appellant, inter alia, to stay away from the petitioner until and including December 1, 2016.
ORDERED that the order of protection is affirmed, without costs or disbursements.
"The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court" (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Kaur v Singh, 73 AD3d 1178). The hearing court's determination regarding the credibility of witnesses is entitled to considerable deference on appeal (see Hodiantov v Aronov, 110 AD3d 881; Matter of Cruz v Rodriguez, 96 AD3d 838, 838; Matter of Kaur v Singh, 73 AD3d at 1178; Matter of Creighton v Whitmore, 71 AD3d at 1141).
Here, contrary to the appellant's contention, a fair preponderance of the credible evidence supported the Family Court's determination that he committed acts which constituted the family offense of harassment in the second degree (see Penal Law § 240.26[1]; Family Ct Act § 812[1]; Hodiantov v Aronov, 110 AD3d at 882; Matter of Kaur v Singh, 73 AD3d at 1178). Thus, the issuance of the order of protection appealed from was warranted.
The appellant's remaining contention is without merit.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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340 F.Supp. 1385 (1972)
RANSBURG ELECTRO-COATING CORPORATION, Plaintiff-Counter Defendant,
v.
SPILLER AND SPILLER, INC., Defendant-Counter Claimant, Third-Party Plaintiff,
v.
IONIC ELECTROSTATIC CORPORATION, Third-Party Defendant.
No. 70-C-108.
United States District Court, N. D. Illinois, E. D.
April 3, 1972.
*1386 David J. Gibbons, Chadwell, Keck, Kayser & Ruggles, Clyde F. Willian, Hume, Clement, Hume, & Lee, Ltd., Chicago, Ill., for Ransburg Electro-Coating Corp., the plaintiff-counter-defendant.
Robert N. Caffarelli, Caffarelli & Wiczer, Robert E. Wagner, Walsh, Case & Coale, Chicago, Ill., for Spiller and Spiller, Inc., defendant-counter-plaintiff and third party plaintiff.
Myron C. Cass, Silverman & Cass, Chicago, Ill., for Ionic Electrostatic Corp., third party defendant.
MEMORANDUM, ORDER AND JUDGMENT
WILLIAM J. CAMPBELL, Senior District Judge.
This is an action on an agreement executed in settlement of a 1965 patent infringement suit between the plaintiff Ransburg Electro-Coating Corporation (hereafter "Ransburg") and Spiller and Spiller, Inc. (hereafter "Spiller"), the defendant in the prior action. Ransburg's complaint in the present action seeks to enforce the terms of a portion of the 1965 settlement agreement. Spiller through its supplemental answer has denied liability on the theory, inter alia, that the enforcement of the settlement agreement set forth in the plaintiff's complaint would contravene the public policy expressed in the federal patent laws since such enforcement, it is claimed, would allow the plaintiff to collect royalties on patents which have been judicially determined not to encompass the devices owned by the defendant. For this reason the defendant Spiller requests that the entire 1965 settlement agreement be declared unenforceable. Additionally, Spiller requests that all payments previously made pursuant to the terms of the settlement be ordered refunded. Finally, Spiller has also filed a third party action against the Ionic Electrostatic Corporation (hereafter Ionic), the manufacturer of the electrostatic spray painting systems which are involved in this litigation. The third party action alleges that if Spiller is unable to recover the monies previously paid to Ransburg and is further liable for additional royalties, then Ionic is liable to Spiller for all sums it has paid and to be paid to Ransburg for use of Ionic's spray painting systems.
Because of the complicated nature of the issues involved here and of the arguments advanced by the parties in support of their respective motions for summary judgment, some explanation of the history of this law suit and certain related litigation is necessary. At all pertinent times Ransburg was engaged in the business of manufacturing and marketing electrostatic spray painting systems and apparatus and owns a number of basic patents in the field. On November 21, 1957, Ransburg commenced a patent infringement suit against the Procter Electric Company in the United States District Court for the District of Maryland. Ionic voluntarily entered that law suit as a defendant, answered the complaint and conducted the defense for both defendants. In that case, the district court determined that certain patents of Ransburg were valid and that the use of the Ionic Model 50 Electrostatic Sprayer by Procter and its sale by Ionic constituted an infringement of those patents. Ransburg Electro-Coating Corporation v. Procter Electric Company, 203 F.Supp. 235 (D.Md.1962). The decision of the district court was affirmed by the Court of Appeals for the Fourth Circuit on May 14, 1963. Ransburg Electro-Coating Corporation v. Procter Electric Company, 317 F.2d 302 (4th Cir.1963). Following the district court's decision, but prior to the decision of the Court of Appeals, Ionic marketed a new electrostatic sprayer known as the Ionic Model 25 Electrostatic Sprayer. Subsequent to the decision of the Court of Appeals for the Fourth Circuit on the Ionic Model 50, Ransburg brought a contempt action against Ionic in the Maryland *1387 District Court, charging that the sale and use of the Ionic Model 25 violated an injunction which had previously been entered by the Court in the Ionic Model 50 case. In the contempt action the district court held that the manufacture and sale of the Ionic Model 25 infringed the Ransburg patents and thus violated the earlier injunction. Ionic was found to be in contempt and treble damages and attorneys' fees were assessed against it. Ransburg Electro-Coating Corporation v. Procter Electric Company, 242 F.Supp. 28 (D.Md., 1965). Ionic again appealed and on April 11, 1968 the Court of Appeals reversed the district court, holding that the Ionic Model 25 Electrostatic Sprayer did not infringe any of Ransburg's patents. Ransburg Electro-Coating Corporation v. Ionic Electrostatic Corporation, 395 F.2d 92 (4th Cir., 1968). The basis of the Appeals Court's lengthy and thoughtful opinion is succinctly stated in its opening paragraph. The Court remarked "In light of the prior art, which the patentee has no right to appropriate, we think the finding [of the district court] erroneous." 395 F.2d at 93. In effect the Fourth Circuit Court of Appeals found that to construe the Ransburg patents in such a manner as to encompass the Ionic Model 25 would make them read on the prior art, thus rendering them prima facie invalid.
While the Maryland litigation was proceeding Ransburg was also active in this District. In 1959 Spiller had purchased an Ionic Model 50 Electrostatic Sprayer. When the Model 50 was destroyed in early 1962, Spiller immediately purchased an Ionic Model 25 which it has been using on its premises since that time. Ransburg was aware of Spiller's use of both the Model 50 and the Model 25 and after attempts to reach an out of court settlement with Spiller were unsuccessful a patent infringement suit was filed by Ransburg against Spiller in this Court. Ransburg Electro-Coating Corporation v. Clifford Spiller and Spiller and Spiller, Inc., 65 C. 641 (N.D.Ill., 1965). On November 12, 1965 that case was dismissed pursuant to a settlement agreement signed by both Ransburg and Spiller. Formally, the suit was dismissed by the plaintiff without prejudice pursuant to Rule 41(a) (1), F.R.Civ.Proc.
The settlement agreement signed by the parties contained two essential provisions. The first provided that Spiller would pay Ransburg the sum of $70,000 in sixty monthly installments as compensation to Ransburg for infringement of specified Ransburg patents as a result of Spiller's use of the Ionic Model 50 and the Ionic Model 25 equipment prior to the time of the settlement.[1] The second portion of the agreement consisted of a standard patent license under which Spiller was granted a license upon Ransburg's customary terms and conditions to use the Ionic Model 25 apparatus free of any claim of infringement.
With respect to the outright patent license granted in the second part of the settlement agreement, payments in the amount of $10,679.34 were made thereunder by Spiller until approximately May, 1966 after which no further payments were made. Payments, the precise amount of which is disputed by the parties, on the settlement agreement as it relates to prior infringement were made by Spiller until July, 1968, but no payments have been made since that time.
As I have previously observed this action was filed on January 16, 1970 by Ransburg to recover the amounts due under the portion of the agreement relating to past infringement. Spiller contends that federal patent policy bars the enforcement of the entire agreement and entitles it to a refund of all amounts previously paid to Ransburg. Both parties have filed motions for summary judgment supported by numerous affidavits *1388 and exhibits. Although similar motions were denied by this court on November 2, 1970, the renewal of these motions by the parties persuades me that no genuine issue of material fact is presented in this case and that therefore disposition by summary judgment is proper. The facts as set forth above are those which I find to be material to the disposition of this cause. I further find, with one unimportant exception,[2] that none of these facts are even remotely contested by any of the parties. There being no issue for submission to a trier of fact, use of the summary judgment procedure authorized by Rule 56, (F.R.Civ.Proc.) is entirely proper. Kirk v. Home Indemnity Company, 431 F.2d 554 (7th Cir. 1970).
In varying degrees both Ransburg and Spiller have phrased the issues incorrectly. Ransburg suggests that the ultimate question is whether one of the parties can unilaterally rescind a settlement agreement after an arms-length negotiation of the agreement in the context of a patent infringement suit with the dismissal of the suit as the consideration for that agreement. No one disagrees with Ransburg's general propositions that the compromise of a bona fide claim is well recognized as a valid consideration, Galion Iron Works & Mfg. Co. v. J. D. Adams Manufacturing Co., 105 F.2d 943, 946 (7th Cir. 1939); Koelmel v. Kaelin, 374 Ill. 204, 210, 29 N.E.2d 106, 109 (1940), and that settlement agreements are highly favored by the courts, Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 54 L.Ed. 625 (1910). Nor do I quarrel with the general rule that a party may not avoid the impact of a settlement agreement where subsequent events have somehow vitiated or invalidated the consideration for that agreement. See Koelmel v. Kaelin, supra at 109. The problem with Ransburg's argument is that it does not address itself to the real issues in this case. This case cannot be disposed of by reference to principles of contract law alone. Ransburg's continued refusal to recognize the underlying federal patent policies involved in this litigation has prevented it from fully confronting the controlling issues in this case. Ransburg argues that the settlement agreement is merely a contract and should therefore be governed only by general principles of contract law. This thesis completely ignores the substance of the particular contract involved. This contract, including both of its parts, essentially calls for the payment of royalties by Spiller for its past and future use of two pieces of electrostatic paint spraying equipment which purportedly infringed on certain specified patents of Ransburg. Although executed in the context of a law suit, the agreement is nothing more than a patent licensing contract.
Spiller too has miscast its argument although in lesser degree than Ransburg. It submits that either because Ransburg's patents are invalid or because Spiller's Ionic Model 25 did not infringe upon any of Ransburg's valid patents, the consideration for the 1965 settlement agreement has been vitiated and that, therefore, the agreement is unenforceable. For this proposition Spiller principally relies on the decision of the Supreme Court in Lear v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610. In Lear, the Supreme Court held that a licensee under an otherwise valid royalty contract is not estopped from challenging the validity of the patents which are the subject of the contract. The holding of Lear is based on more than simply a lack of consideration due to the later determined invalidity of the underlying patents. Rather, Lear teaches that even though a royalty contract is supported by adequate consideration in the traditional contract law sense, the technical requirements of contract doctrine must *1389 give way before the strong federal policy that a licensor may not demand royalties for the use of an idea which is in reality part of the public domain. See Lear v. Adkins, 395 U.S. 653, 668-672, 89 S.Ct. 1902, 23 L.Ed.2d 610; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 342-345, 91 S.Ct. 1434, 28 L.Ed.2d 788; see also, Sears, Roebuck v. Stiffel Company, 376 U.S. 225, 84 S.Ct. 784, 11 L. Ed.2d 661 and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S. Ct. 779, 11 L.Ed.2d 669.
Other courts have adopted a similar reading of Lear. For example, in Product Engineering and Manufacturing Inc. v. Barnes, 424 F.2d 42, 44 (10th Cir. 1970) the court announced in dictum that after Lear "there would seem to be no doubt about the right of a licensee to raise the issue of the validity and noninfringement of a patent as a defense in a State action to enforce payment of royalties." Thus the Court of Appeals for the Tenth Circuit recognized that the requirements of federal patent law must be complied with before a patent licensing agreement may be enforced. Perhaps even more applicable to the case before me is the decision of the Court of Appeals for the Ninth Circuit in Massillon-Cleveland-Akron Sign Company v. Golden State Advertising Company, 444 F.2d 425, 427 (9th Cir. 1971). In that case, as in this case, a covenant to pay patent royalties was incorporated into a settlement agreement as distinguished from a typical patent licensing contract. There, as here, the court was asked to hold Lear inapplicable to royalty contracts which take the form of settlement agreements. The argument was premised on the strong policy in favor of the settlement of legal disputes. The Court responded that "if the recognized policy favoring settlement of disputes might be hindered by our holding on this question, that policy, in our opinion, must give way to the policy favoring free competition in ideas not meriting patent protection." 444 F.2d at 427. Finally, our own Court of Appeals for the Seventh Circuit has expressed a similar understanding of Lear. In Business Forms Finishing Service Inc. v. Carson, 452 F.2d 70 (7th Cir. 1971) the defendants agreed to recognize the validity of the plaintiff's patent in order to settle a prior patent infringement suit. When the second litigation was commenced the defendants, despite their agreement, sought to challenge the validity of the plaintiff's patent. Most significantly, their agreement to accept validity had been incorporated into a judicial consent decree in the prior law suit. Upon examining the recent decisions of the Supreme Court, which the court found to be "strikingly unanimous in result as well as reasoning", the Court of Appeals determined that "the desirability of settling a lawsuit would not in itself establish sufficient justification for such an agreement". The court went on to observe that the policy considerations expressed in Blonder-Tongue, Lear, Sears and Compco compelled the conclusion that such an agreement to accept the validity of a patent was unenforceable. It should be observed that this ruling was not predicated on the theory that the agreement was somehow not supported by valid consideration. The reason for the holding of unenforceability was not an absence of consideration but was rather the federal policy requiring that "all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent". See Lear v. Adkins, 395 U.S. at 668, 89 S.Ct. at 1910.
In the light of these decisions, the issue becomes whether in this case there is present an overriding federal policy which would be frustrated if the settlement agreement involved here is enforced. The position advanced by the defendant Spiller is difficult to follow since it travels ambivalently and indiscriminately between contentions of patent invalidity and claims of non-infringement. In substance, however, the Spiller argument, fairly described, is that as to its use of the Ionic Model 25 Electrostatic Sprayer the settlement *1390 agreement may not be enforced since to do so would frustrate the federal policy that "all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent". Lear v. Adkins, supra at 668, 89 S.Ct. at 1910. Specifically, Spiller submits that the concepts embodied in the Model 25 Electrostatic Sprayer, since they are predicated upon the prior art systems, "are in reality part of the public domain." Since these ideas fall within the public domain and because federal policy strongly favors free and full competition in the use of such ideas, their use by Spiller may not be subjected to the demand of patent royalty payments by Ransburg. Accordingly, I conclude that Spiller may properly defend this action on those grounds.
The second question is whether the defendant Spiller has under the facts carried the burden of its defense and is entitled to judgment as a matter of law. In this regard, Spiller argues that by reason of the Fourth Circuit decision in Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corporation, 395 F.2d 92 (1968), Ransburg is estopped from challenging Spiller's claim that the settlement agreement improperly calls for the payment of patent royalties for the use of ideas which are in fact part of the public domain. In support of this position it relies on the Supreme Court's decision in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788, which it argues permits a plea of estoppel in the circumstances of this case.
At issue in Blonder-Tongue was the validity of the judge-made doctrine of mutuality of estoppel, which found expression insofar as patent law was concerned in Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949. The doctrine proclaimed that unless both parties (or their privies) in a second law suit were bound by a judgment in a previous case, neither party (nor his privy) in the second action could use the prior judgment as determinative of an issue in the second action. Viewed narrowly, the holding in Blonder-Tongue could be restricted to the conclusion that Triplett "should be overruled to the extent it forecloses a plea of estoppel by one facing a charge of infringement of a patent that has once been declared invalid." Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 at 350, 91 S.Ct. 1434 at 1453. The ruling in Blonder-Tongue is not so easily circumscribed, however, for even a casual examination of the reasoning and analysis employed by the Court leads inescapably to the conclusion that mutuality of estoppel has also been abandoned where the prior judicial finding was that the process or apparatus involved did not infringe upon the plaintiff's patent. The Supreme Court carefully and exhaustively examined the judicial developments regarding the doctrine of mutuality of estoppel and concluded that there was a clear tendency to depart from the rigid requirements of mutuality and an equally pronounced inclination to impose an estoppel against a party who has already litigated an issue once and lost. The court observed that "when these judicial developments are considered in the light of our consistent view last presented in Lear, Inc. v. Adkins that the holder of a patent should not be insulated from the assertion of defenses and thus allowed to exact royalties for the use of an idea that is not in fact patentable or that is beyond the scope of the patent monopoly granted, it is apparent that the uncritical acceptance of the principle of mutuality of estoppel expressed in Triplett v. Lowell is today out of place." 402 U.S. 313 at 349-350, 91 S.Ct. 1434 at 1453. [emphasis supplied]. It should be clear then that if indeed the Court of Appeals for the Fourth Circuit in Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp. held, as the defendant Spiller contends, that its use of the Ionic Model 25 was "beyond the scope of the patent monopoly granted", then Ransburg is bound here by that Court's determination unless it can show that it did not have a fair opportunity procedurally, substantively and evidentially to *1391 pursue its claim in the Fourth Circuit.[3] See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 at 333, 91 S.Ct. 1434, 28 L.Ed. 2d 788.
The Court of Appeals for the Fourth Circuit characterized the issue before it as whether Ransburg's patents and the injunction previously entered against their infringement encompassed the Ionic Model 25 Electrostatic Sprayers that are also involved in the case before me. After a painstaking and careful analysis of both the prior art and the Ionic Model 25 device, the court concluded that the Model 25 did not infringe upon any of Ransburg's patents. The basis of the court's ruling was that the paint spraying devices' dependence upon electrostatic forces to atomize the paint was so insubstantial and minimal that it did not exceed the employment of those forces in the prior art systems. 395 F.2d at 97. In other words, adopting the language of Blonder-Tongue, the Fourth Circuit Court of Appeals reached a final determination on the merits that the Model 25 paint spraying devices were "beyond the scope of the monopoly granted" by reason of Ransburg's patents. Therefore, since Spiller has raised the identical question in this litigation and since the decision of Court of Appeals for the Fourth Circuit constitutes a final judgment on the merits,[4]Blonder-Tongue entitles Spiller to the benefits of the earlier adjudication.
Under the overriding federal policy expressed in Lear and reaffirmed in Blonder-Tongue that "all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent", I find based on the foregoing facts that the 1965 settlement agreement between Ransburg and Spiller is unenforceable because it represents a demand for royalties for the use of an idea (i. e. the Model 25) which because it belongs to the prior art system is a part of the public domain.[5]
The remaining issue[6] as between Ransburg and Spiller is whether Spiller should be permitted to prevail on its counterclaim and thereby recover all sums previously paid pursuant to the settlement agreement. In this regard Spiller relies on a statement in Lear that the licensee would be permitted to avoid the payment of all royalties accruing after Adkins' 1960 patent issued if he could prove the patent was invalid. The context in which the statement was made, however, demonstrates that it was *1392 not intended to create in a patent licensee the unfettered right to recover all royalties paid under a patent later declared invalid. The only thing decided in Lear was that a licensee in that situation would be relieved from the liability of paying royalties during the time he is challenging the validity of the patent. My reading of Lear on this point is buttressed by language appearing in the Supreme Court's opinion in Blonder-Tongue. There the court said "Lear permits an accused infringer to accept a license, pay royalties for a time, and cease paying when financially able to litigate validity, secure in the knowledge that invalidity may be urged when the patentee-licensor sues for unpaid royalties." Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 346, 91 S.Ct. 1434, 1451, 28 L.Ed.2d 788. I find no expression in either Lear or Blonder-Tongue which would create an independent cause of action in a licensee permitting the recovery of royalties paid on a patent which is subsequently held invalid. Therefore, with respect to its counterclaim, defendant Spiller's motion for summary judgment is denied and the counterclaim is ordered dismissed and judgment entered for Ransburg.
The only remaining issue before me is that presented by Spiller's third party action against the Ionic Electrostatic Corporation, the manufacturer of the paint spraying systems (i. e. the Model 25 and the Model 50) purchased by Spiller. It is the position of Spiller that Ionic is liable to it for the sums which it paid to Ransburg under the 1965 settlement agreement. Spiller's theory of Ionic's liability rests upon a claim of expressed and implied warranties that the equipment manufactured by Ionic did not infringe upon any of Ransburg's patents, and on the contention that Spiller is the third party beneficiary of an indemnification agreement between Ionic and a separate corporation known as the Ionic Midwest Corporation. With respect to the purported indemnification agreement Spiller alleges that Ionic agreed to indemnify the Ionic Midwest Corporation, a distributor of Ionic's paint spray equipment, as well as the customers of Ionic Midwest, for any damages resulting from any patent infringement actions brought by Ransburg against these parties. Spiller's warranty arguments are to the same effect.
Ionic has responded to Spiller's contention with three affirmative defenses. It claims that the subject matter of the third party complaint is not ancillary to the claim raised in the principal complaint; that the court lacks in personam jurisdiction over the third party defendant; and that the third party complaint fails to state a claim upon which relief may be granted. Both Spiller and Ionic have filed motions for summary judgment supported by affidavits and exhibits.
On February 26, 1971 I rejected the first two of Ionic's affirmative defenses in denying its motion to dismiss the third party complaint. Therefore, I shall not reconsider those contentions at this time. However, I agree with Ionic that Spiller's third party complaint fails to state a claim upon which relief can be granted and I find therefore that judgment must be granted in favor of Ionic and against Spiller on its third party complaint.
In connection with this ruling I find that Spiller's entire argument, under both the warranty and indemnification agreement theories, is premised upon its characterization of the payments made under the 1965 settlement agreement to Ransburg as damages which are attributable to a patent infringement law suit. This supposition by Spiller completely ignores the argument advanced by it in connection with its own motion for summary judgment against Ransburg. There Spiller characterized the payments made as royalties paid pursuant to what in substance is a license agreement. It should be apparent that Spiller can not have it both ways. Since I agree with Spiller's earlier characterization of the payments as essentially royalties, Spiller can not prevail on its third party complaint. Nowhere in any of Spiller's arguments or *1393 in any of the affidavits or exhibits submitted in connection therewith is the contention made that Ionic at any time agreed to reimburse Spiller for royalties paid to Ransburg pursuant to a license agreement. Absent a claim upon which relief can be granted, judgment will be entered in favor of Ionic on the third party complaint.
Summarizing, the motion of Ransburg Electro-Coating Corporation for summary judgment on the allegations in its complaint is denied. The motion of the defendants Spiller and Spiller, Inc. for summary judgment is granted in so far as it requests a determination that the 1965 settlement agreement is unenforceable. With respect to its counterclaim the motion for summary judgment of the defendant Spiller is denied and judgment entered in favor of Ransburg. Likewise, Spiller's motion for summary judgment on its third party complaint is denied and judgment is entered in favor of Ionic Electrostatic Corporation. All other motions still pending before me in this cause including Spiller's motion for sanctions against Ransburg are to the extent not granted herein expressly denied. Judgment shall enter accordingly.
NOTES
[1] The patents specified in the agreement, United States Patent Nos. 2,685,536, 2,794,417, 2,893,893, 2,893,894 and R.E. 24,602, were the same patents as those involved in the Maryland litigation.
[2] The apparent dispute over the amounts previously paid under the license agreement portion of the settlement contract need not be resolved. My ultimate resolution of the issues in this case makes this question irrelevant.
[3] No such lack of opportunity or disadvantage is claimed here by Ransburg.
[4] Although Ransburg contends here that the Fourth Circuit decision is void for lack of jurisdiction, that Circuit has already rejected Ransburg's theory characterizing it as "insubstantial and frivolous". Ransburg Electro-Coating Corp. v. Ionic Electrostatic Corp. 431 F.2d 947, 949 (1970).
[5] Although a portion of the sums generated by the settlement agreement is attributable to Spiller's improper use of a device known as the Ionic Model 50 Electrostatic Sprayer (see Ransburg Electro-Coating Corp. v. Procter Electric Company, 317 F.2d 302 (4th Cir. 1963)), I find that the entire agreement is unenforceable. In so ruling, I observe that there is no manageable procedure by which the portion of the agreement which is arguably lawful and enforceable can be severed from that portion of the agreement which is unenforceable. The agreement itself is silent regarding which of its terms could be allocated solely to Spiller's use of the Ionic Model 50. Moreover, neither of the parties before me have suggested any basis of allocation. Upon these considerations I judge that the entire settlement agreement must be voided.
[6] The plaintiff Ransburg's argument that the defendant Spiller has waived the defenses predicated upon Lear v. Adkins, supra, because of Spiller's failure to raise these defenses in the 1965 litigation must likewise be rejected. Ransburg's reliance on Standard Industries, Inc. v. Tigrett Industries, Inc., 397 U.S. 586, 90 S.Ct. 1310, 25 L.Ed.2d 590 (1970) is misplaced. In Standard Industries the prior action which triggered the waiver of the defense constituted a ruling on the merits. In the case at bar, however, the 1965 litigation was dismissed without prejudice pursuant to F.R.Civ.Proc. 41(a) (1). Since that dismissal was without prejudice the defendant Spiller cannot now be barred from raising any defenses which he might have raised in the prior action.
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123 T.C. No. 10
UNITED STATES TAX COURT
THOMAS CORSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1025-03. Filed August 11, 2004.
P was an investor in a partnership involved in tax
shelter litigation in this Court. In 1985, P entered
into settlement agreements with R, pursuant to which P
could not deduct losses in excess of payments he had
made to or on behalf of the partnership for taxable
years before 1980 or after 1982. In 1999, after the
partnership litigation concluded, R assessed additional
income tax and accrued interest for P’s taxable year
1983 attributable to P’s involvement in the
partnership. P filed a claim for abatement of the
interest. During P’s correspondence conference with R,
P provided to R a copy of the settlement agreements and
argued that he had settled the taxable year 1983. R
refused to consider the content or effect of the
settlement agreements and denied P’s request for
abatement of interest. P then filed a petition with
this Court, appealing R’s determination. After R filed
an answer to the petition, R decided that P was
entitled to a full abatement of interest for the
taxable year 1983. P then filed a motion with this
Court for reasonable litigation costs.
- 2 -
Held: The settlement agreements constituted
binding agreements between P and R; settled all taxable
years after 1982 with respect to the partnership; and
converted the partnership items into nonpartnership
items, giving R 1 year in which to assess any income
tax liabilities for taxable years included under the
settlement agreements’ terms. Held, further, R
delayed in performing the ministerial act of assessing
P’s 1983 tax liability. Held further, R’s position in
the answer was not substantially justified.
Held: P is entitled to an award of reasonable
litigation costs.
Thomas Corson, pro se.
Matthew J. Bailie, for respondent.
OPINION
MARVEL, Judge: This case is before the Court on
petitioner’s motion for reasonable litigation costs filed
pursuant to section 7430 and Rule 231. Unless otherwise
indicated, all section references are to the Internal Revenue
Code in effect at the time petitioner filed the petition, and all
Rule references are to the Tax Court Rules of Practice and
Procedure. Petitioner resided in Saratoga, California, when his
petition in this case was filed.
On December 12, 2003, we filed the parties’ stipulation of
settled issues,1 and petitioner’s motion for reasonable
litigation costs. On February 11, 2004, we filed respondent’s
1
On Oct. 28, 2003, we entered the parties’ stipulated
decision. Then, on Dec. 1, 2003, we filed petitioner’s motion to
vacate the decision. On Dec. 12, 2003, we granted petitioner’s
motion to vacate and filed the decision document as a stipulation
of settled issues.
- 3 -
response to petitioner’s motion. On March 15, 2004, we filed an
additional affidavit of petitioner pursuant to Rule 232(d), and
on March 25, 2004, we filed petitioner’s reply to respondent’s
response.
On February 19, 2004, in petitioner’s motion for leave to
file a reply, petitioner requested that we schedule a hearing
only if a relevant fact were in dispute. We have concluded,
however, that a hearing on this matter is not necessary. See
Rule 232(a)(2). In disposing of this motion, we rely on the
parties’ filings and attached exhibits.
Background
During the 1980s, petitioner was an investor in Boulder Oil
and Gas Associates (Boulder), a partnership involved in the
Elektra Hemisphere tax shelter litigation in this Court (the
partnership litigation).2 In 1985, petitioner signed Forms 906,
Closing Agreement on Final Determination Covering Specific
Matters, for the taxable years 1980 and 1982 (settlement
agreements). The settlement agreements provided that, for
taxable years before 1980 or after 1982, petitioner could not
deduct losses in excess of payments he had made to or on behalf
of the partnership. When petitioner executed the settlement
agreements, his taxable year 1981 remained open as a result of
2
See Krause v. Commissioner, 99 T.C. 132 (1992), affd. sub
nom. Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir. 1994).
- 4 -
the partnership litigation.
After the partnership litigation concluded, in a letter
dated September 14, 1999, respondent explained to petitioner that
respondent had adjusted petitioner’s 1983 income tax return as
described in an enclosed Form 4549A-CG, Income Tax Examination
Changes. The Form 4549A-CG indicated that petitioner owed
additional income tax for 1983 attributable to his involvement in
Boulder in the amount of $766 and interest in the amount of
$2,523.04.3 On November 29, 1999, respondent assessed the
additional income tax and accrued interest.
Believing that he had settled all taxable years other than
1981 when he signed the settlement agreements, petitioner first
attempted to resolve the matter with the Taxpayer Advocate’s
Office in January 2000. Then, on August 31, 2000, petitioner
submitted to respondent a Form 843, Claim for Refund and Request
for Abatement, requesting an abatement of interest for the
taxable year 1983. In a letter to Appeals Officer Paul Sivick
dated July 31, 2001 (July 31 letter), petitioner argued that he
had settled all taxable years other than 1981. As evidence,
petitioner attached copies of the settlement agreements.
In a letter dated September 18, 2001, Appeals Officer Sivick
addressed the arguments in petitioner’s July 31 letter.
Responding to petitioner’s argument that he had settled all
3
The interest was computed to Oct. 9, 1999.
- 5 -
taxable years other than 1981, Appeals Officer Sivick stated:
“Your desire and belief are not the relevant factors considered
under the law in abatement of interest cases. Therefore, I would
not consider this argument to have any merit for purposes of a
request for abatement of interest.” Appeals Officer Sivick did
not address the content or effect of the settlement agreements.
In closing, Appeals Officer Sivick gave petitioner until October
17, 2001, to continue to present arguments.
In a notice of final determination dated July 26, 2002,
respondent denied petitioner’s request for an abatement of
interest. Respondent explained the denial of petitioner’s
request as follows: “We did not find any errors or delays on our
part that merit the abatement of interest in our review of
available records and other information for the period from April
15, 1984 to October 9, 1995.”
On January 21, 2003, petitioner filed a petition with this
Court pursuant to section 6404(h) and Rule 280 seeking review of
respondent’s refusal to abate interest under section 6404(e). In
his petition, petitioner primarily contended that, pursuant to
section 6231(b)(1)(C), when the parties executed the settlement
agreements, partnership items converted to nonpartnership items;
the conversion to nonpartnership items triggered the 1-year
statutory limitations period on assessment contained in section
6229(f) (section 6229(f) assessment period); respondent failed to
- 6 -
assess petitioner’s 1983 tax liability during the section 6229(f)
assessment period; and respondent’s delay in making his demand
for payment was caused by respondent’s error or delay in
performing a ministerial or managerial act. In making the
section 6229(f) assessment period argument in his petition,
petitioner relied on Crnkovich v. United States, 41 Fed. Cl. 168
(1998), affd. per curiam 202 F.3d 1325 (Fed. Cir. 2000).
On March 7, 2003, respondent filed an answer to the
petition. In the answer, respondent maintained that his
determination not to abate interest pursuant to section 6404 was
not an abuse of discretion and that the interest for the taxable
year 1983 was timely assessed. Subsequently, the parties reached
a settlement, under which petitioner was entitled to a full
abatement of interest for the taxable year 1983.
From the preparation of the petition through the settlement
of the case, Stephen Benda served as petitioner’s attorney. On
January 11, 2003, petitioner had his first meeting with Mr.
Benda. Petitioner and Mr. Benda had a fee arrangement of $250
per hour. Petitioner now seeks litigation costs in the amount of
$2,676.32.4
4
In his motion for reasonable litigation costs filed on Dec.
12, 2003 (the motion), petitioner asked that we award litigation
costs in the amount of $2,536.32. When petitioner filed his
reply on Mar. 25, 2004, petitioner requested an additional $140
of litigation costs, part of which he had incurred since filing
the motion. After examining petitioner’s attorney’s additional
(continued...)
- 7 -
Discussion
Section 7430(a) authorizes the award of reasonable
litigation costs to the prevailing party in court proceedings
brought by or against the United States in connection with the
determination of income tax. In addition to being the prevailing
party, in order to receive an award of reasonable litigation
costs, a taxpayer must exhaust administrative remedies and not
unreasonably protract the court proceeding. Sec. 7430(b)(1),
(3). Unless the taxpayer satisfies all of the section 7430
requirements, we do not award costs. Minahan v. Commissioner, 88
T.C. 492, 497 (1987).
Section 7430(c)(4)(A) and (B)(i) provides that a taxpayer is
a prevailing party if (1) the taxpayer substantially prevailed
with respect to the amount in controversy or the most significant
issue or set of issues, (2) the taxpayer meets the net worth
requirements of 28 U.S.C. section 2412(d)(2)(B) (2000), and (3)
the Commissioner’s position in the court proceeding was not
substantially justified. See also sec. 301.7430-5(a), Proced. &
Admin. Regs. Although the taxpayer has the burden of proving
4
(...continued)
affidavit filed pursuant to Rule 232(d) and the attached detailed
summary of costs, we conclude that the court costs and “fees paid
or incurred for the services of attorneys in connection with the
court proceeding” totaled $2,676.32. See sec. 7430(c)(1); see
also Sokol v. Commissioner, 92 T.C. 760, 767 n.12 (1989) (“The
costs incurred in seeking an award of litigation costs may be
included in the award.”).
- 8 -
that the taxpayer meets requirements (1) and (2), supra, the
Commissioner must show that the Commissioner’s position was
substantially justified. See sec. 7430(c)(4)(B)(i); Rule 232(e).
Respondent concedes that petitioner did not unreasonably
protract the court proceeding and that petitioner meets the net
worth requirement of 28 U.S.C. section 2412(d)(2)(B). In
addition, respondent does not dispute that petitioner
substantially prevailed with respect to the amount in
controversy. Respondent alleges, however, that respondent’s
position was substantially justified, that petitioner did not
exhaust the administrative remedies available to him, and that
the costs petitioner claims are unreasonable.
A. Whether Respondent’s Position Was Substantially Justified
For purposes of deciding a motion for reasonable litigation
costs, section 7430(c)(7)(A) defines the Commissioner’s
“position” as the position taken in the court proceeding. In the
present case, respondent took a position when respondent filed an
answer to petitioner’s petition. See Huffman v. Commissioner,
978 F.2d 1139, 1148 (9th Cir. 1992), affg. in part, revg. in part
and remanding T.C. Memo. 1991-144; Maggie Mgmt. Co. v.
Commissioner, 108 T.C. 430, 442 (1997).
The Commissioner’s position is substantially justified if it
has a reasonable basis in both fact and law and is justified to a
degree that could satisfy a reasonable person. Huffman v.
- 9 -
Commissioner, supra at 1147 n.8 (citing Pierce v. Underwood, 487
U.S. 552, 565 (1988)); Rosario v. Commissioner, T.C. Memo. 2002-
247; sec. 301.7430-5(c)(1), Proced. & Admin. Regs. In deciding
whether the Commissioner’s position was substantially justified,
a significant factor is whether, on or before the date the
Commissioner assumed the position, the taxpayer provided “all
relevant information under the taxpayer’s control and relevant
legal arguments supporting the taxpayer’s position to the
appropriate Internal Revenue Service personnel.”5 Sec. 301.7430-
5(c)(1), Proced. & Admin. Regs.
1. Section 6404(e)(1)6
Under section 6404(e)(1), the Commissioner may abate part or
all of an assessment of interest on any deficiency or payment of
income tax to the extent that any error or delay in payment is
attributable to erroneous or dilatory performance of a
5
“Appropriate Internal Revenue Service personnel” are those
employees who are reviewing the taxpayer’s information or
arguments, or employees who, in the normal course of procedure
and administration, would transfer the information or arguments
to the reviewing employees. Sec. 301.7430-5(c)(1), Proced. &
Admin. Regs.
6
To the extent that petitioner’s allegations in the present
case are based on sec. 6404(a)(2) and are in the nature of a
claim for abatement that is prohibited by sec. 6404(b), we do not
consider them in deciding whether respondent’s position with
respect to petitioner’s petition for abatement of interest under
sec. 6404(e) was substantially justified. See sec. 6404(b);
Urbano v. Commissioner, 122 T.C. 384, 395 (2004); Kosbar v.
Commissioner, T.C. Memo. 2003-190.
- 10 -
ministerial act by an officer or employee of the IRS.7 A
ministerial act means a procedural or mechanical act that does
not involve the exercise of judgment or discretion and occurs
during the processing of a taxpayer’s case after all the
prerequisites to the act, such as conferences and review by
supervisors, have taken place. See Lee v. Commissioner, 113 T.C.
145 (1999); sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.
Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).8 In contrast, a
decision concerning the proper application of Federal tax law, or
other applicable Federal or State laws, is not a ministerial act.
See sec. 301.6404-2T(b)(1), Temporary Proced. & Admin. Regs.,
supra.
In the legislative history of section 6404(e), Congress
observed that “issuing either a statutory notice of deficiency or
7
Sec. 6404(e) was amended by the Taxpayer Bill of Rights 2,
Pub. L. 104-168, sec. 301(a)(1) and (2), 110 Stat. 1457 (1996),
to permit the Commissioner to abate interest with respect to an
“unreasonable” error or delay resulting from “managerial” or
ministerial acts. The amendment applies to interest accruing
with respect to deficiencies for taxable years beginning after
July 30, 1996, and is inapplicable to the instant case.
8
The final regulations under sec. 6404 were issued on Dec.
18, 1998, and generally apply to interest accruing with respect
to deficiencies or payments of tax described in sec. 6212(a) for
taxable years beginning after July 30, 1996. See sec. 301.6404-
2(d)(1), Proced. & Admin. Regs. As a result, sec. 301.6404-2T,
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,
1987), applies and is effective for interest accruing with
respect to deficiencies for those taxable years beginning after
Dec. 31, 1978, but before July 30, 1996. See sec. 301.6404-2(c),
Proced. & Admin. Regs.
- 11 -
notice and demand for payment[9] after all procedural and
substantive preliminaries have been completed” is a ministerial
act. H. Rept. 99-426, at 844 (1985), 1986-3 C.B. (Vol. 2) 1,
844; S. Rept. 99-313, at 208 (1986), 1986-3 C.B. (Vol. 3) 1, 208.
Congress further provided that “a ministerial act is a procedural
action * * *. For example, a delay in the issuance of a
statutory notice of deficiency after the IRS and the taxpayer
have completed efforts to resolve the matter could be grounds for
abatement of interest.” S. Rept. 99-313, supra at 209, 1986-3
C.B. (Vol. 3) at 209; see also H. Rept. 99-426, supra at 845,
1986-3 C.B. (Vol. 2) at 845.
Similar to the issuance of either a notice of deficiency or
a notice and demand for payment, the assessment of tax is a
procedural action that does not require the use of judgment or
discretion. In Fruit of the Loom, Inc. v. Commissioner, T.C.
Memo. 1994-492, affd. 72 F.3d 1338 (7th Cir. 1996), we observed
that “Assessment is the ministerial act of recording a taxpayer’s
Federal tax liability in the office of the District Director.”
Additionally, in Phillips v. Commissioner, 106 T.C. 176, 179-180
9
Sec. 6303(a) provides in part:
Where it is not otherwise provided by this title, the
Secretary shall, as soon as practicable, and within 60
days, after the making of an assessment of a tax
pursuant to section 6203, give notice to each person
liable for the unpaid tax, stating the amount and
demanding payment thereof. * * *
- 12 -
(1996), we stated that the “assessment of additional taxes shown
on an amended return is routine IRS procedure. * * * To ascribe
to this essentially ministerial act the same binding effect as a
considered judgment would make little sense as a practical
matter.”
2. The Parties’ Contentions
In arguing that respondent’s position was not substantially
justified, petitioner contends that respondent did not have a
reasonable basis in fact and law for the position that there were
no delays in the performance of ministerial acts. In particular,
petitioner alleges that respondent delayed in performing the
ministerial acts of assessing petitioner’s 1983 tax liability and
issuing notice and demand for payment. According to petitioner,
the terms of the settlement agreements clearly included the
taxable year 1983 and disallowed petitioner’s deductions of
partnership losses in excess of payments he had made to or on
behalf of the partnership. Once petitioner and respondent
entered into the settlement agreements, petitioner argues: “all
that remained was for Respondent to enforce the agreement
according to its terms, a ministerial act requiring no
discretion.”
In contrast, respondent disputes that there was a delay in
assessment that would reasonably warrant an abatement of
interest. According to respondent, the amount of time that
- 13 -
elapsed before respondent made an assessment was attributable to
the partnership litigation, and petitioner’s 1983 tax liability
was assessed within 1 year of the partnership litigation’s
conclusion pursuant to section 6229(d). Citing Beagles v.
Commissioner, T.C. Memo. 2003-67, respondent further contends
that (1) the mere passage of time during the litigation phase of
a tax dispute does not establish a delay in performing a
ministerial act, and (2) decisions on how to proceed during the
litigation phase require the exercise of judgment and are not
ministerial acts.
3. Reasonableness of Respondent’s Position
Although we agree with respondent that decisions on how to
proceed during litigation are not ministerial acts, see id.,
petitioner’s taxable year 1983 was not involved in the
partnership litigation. To the contrary, in 1985, petitioner
signed settlement agreements, the terms of which settled all
taxable years after 1982 with respect to Boulder. The settlement
agreements constituted binding agreements between petitioner and
respondent. See sec. 6224(c)(1). The legal effect of the
settlement agreements was that the partnership items converted to
nonpartnership items, and respondent had 1 year in which to
assess any income tax liabilities for taxable years included
under the settlement agreements’ terms. See secs. 6229(f),
6231(b)(1)(C). Respondent, however, did not assess petitioner’s
- 14 -
1983 tax liability until the partnership litigation concluded in
1999, even though the settlement agreements were not based on the
outcome of the partnership litigation.
Under the circumstances, respondent’s position that there
were no delays in the performance of a ministerial act lacked a
reasonable basis in both fact and law. Considering the
explicitness of the settlement agreements and the absence of
petitioner’s taxable year 1983 from the partnership litigation,
there is no reasonable explanation for respondent’s delay in
performing the ministerial act of assessment. If Appeals Officer
Sivick had consulted the Internal Revenue Manual, the section
pertaining to “Agreement Forms” for the settlement of tax shelter
cases would have informed him of the following:
Closing agreements should be avoided in settlements
when subsequent years are TEFRA. On the date they are
executed by the Service these agreements convert
partnership items to nonpartnership items for the
future years involved, triggering a one year assessment
period under I.R.C. Section 6229(f) for those years.
See 4 Administration, Internal Revenue Manual (CCH), sec.
8.3.1.2.4, at 27,134 (Apr. 13, 1998). Furthermore, the record
contains no evidence that any significant aspect of the delay was
attributable to petitioner. See S. Rept. 99-313, supra at 208,
1986-3 C.B. (Vol. 3) at 208.
The record also indicates that petitioner appropriately
provided all relevant information under his control and all
relevant legal arguments supporting his position. See sec.
- 15 -
301.7430-5(c)(1), Proced. & Admin. Regs. In the July 31 letter,
approximately a year and a half before respondent filed the
answer, petitioner alerted respondent to the possibility of an
error or delay in the assessment of his 1983 tax liability.
Petitioner argued that he had settled the taxable year 1983, and
petitioner enclosed copies of the settlement agreements.
Respondent does not dispute receiving the July 31 letter or
copies of the settlement agreements. Instead of considering the
effect of the settlement agreements on petitioner’s 1983 tax
liability and consulting the Internal Revenue Manual, respondent
brushed off petitioner’s settlement argument as petitioner’s
irrelevant “belief”.
At the time of the exchange with respondent regarding the
July 31 letter, petitioner was not represented by counsel, and
the record contains no evidence that petitioner had any legal
expertise. Nevertheless, petitioner provided respondent with the
factual information respondent needed to verify that respondent
delayed assessing petitioner’s 1983 interest liability.
Petitioner was entitled to expect that respondent would give due
consideration to petitioner’s claims.10
4. Conclusion
Respondent has not established that the position in the
10
In a letter dated June 18, 2001, Appeals Officer Sivick
provided to petitioner a “Review of the Law and related
material”. The review contained references to secs. 6224(c) and
6229(a) and (b) but did not mention secs. 6229(f) or 6231(b).
- 16 -
answer was substantially justified. Consequently, we conclude
that petitioner is the prevailing party.
B. Exhaustion of Administrative Remedies
Section 7430(b)(1) provides in part: “A judgment for
reasonable litigation costs shall not be awarded under subsection
(a) in any court proceeding unless the court determines that the
prevailing party has exhausted the administrative remedies
available to such party within the Internal Revenue Service.” In
general, in order to exhaust administrative remedies, the
taxpayer or the taxpayer’s qualified representative must
participate in an Appeals Office conference. Sec. 301.7430-
1(b)(1)(i), Proced. & Admin. Regs. “Participation” in an Appeals
Office conference is defined as “[disclosure] to the Appeals
office [of] all relevant information regarding the party’s tax
matter to the extent such information and its relevance were
known or should have been known to the party or qualified
representative at the time of such conference.” Sec. 301.7430-
1(b)(2), Proced. & Admin. Regs.
The documents in the record indicate that the parties
conducted petitioner’s conference through oral and written
correspondence and that the conference began in July 2001 and
ended on October 17, 2001. During this period, in the July 31
letter, petitioner argued that he had settled the taxable year
1983, and petitioner attached copies of the settlement
- 17 -
agreements. In responding to petitioner’s argument, Appeals
Officer Sivick did not address the content of the settlement
agreements or their possible effect on petitioner’s 1983 taxable
year. Indeed, the substance of Appeals Officer Sivick’s response
suggests that he was unaware of the settlement agreements’
relevance to petitioner’s tax matter.
Overall, petitioner made a reasonable and good-faith effort
to disclose to Appeals Officer Sivick all relevant information in
the context and development of the case at the time of the
conference. See Allen v. Commissioner, T.C. Memo. 2002-302.
Accordingly, we conclude that petitioner exhausted the
administrative remedies available to him.
C. Reasonableness of Costs Claimed
Section 7430(c)(1) defines reasonable litigation costs to
include, among other things, reasonable court costs and
reasonable fees paid or incurred for the services of attorneys in
connection with the court proceeding (attorney’s fees).
Attorney’s fees are limited by statute and adjusted for cost of
living. Sec. 7430(c)(1)(B)(iii) (and flush language). For
purposes of this motion, the statutory rate for attorney’s fees
is $150 per hour. See Rev. Proc. 2002-70, 2002-2 C.B. 845, 850.
A taxpayer may recover attorney’s fees in excess of the statutory
limit in the presence of one or more of the following special
factors: (1) Limited availability of qualified attorneys for the
- 18 -
proceeding, (2) difficulty of the issues presented in the case,
or (3) local availability of tax expertise. Sec.
7430(c)(1)(B)(iii).
Respondent contends that the costs petitioner claims are
unreasonable, because the $250 per hour fee arrangement between
petitioner and Mr. Benda exceeds the statutory limit, and
petitioner has not shown that any of the three special factors
applies. On the other hand, petitioner asserts that this case
involves an uncommon and difficult issue, which entitles him to
the full amount of attorney’s fees incurred in connection with
the court proceeding.11
We disagree with petitioner that he is entitled to enhanced
attorney’s fees. Petitioner has not established that the issue
in this case is of sufficient difficulty to qualify as a special
factor under section 7430(c)(1)(B)(iii). We award petitioner
reasonable litigation costs in the amount of $1,631.32.
We have considered the remaining arguments of both parties
for results contrary to those expressed herein, and, to the
extent not discussed above, we find those arguments to be
irrelevant, moot, or without merit.
11
Although petitioner established that Mr. Benda was
qualified to act as petitioner’s attorney in this proceeding,
petitioner submitted no evidence with respect to the availability
of qualified attorneys or the local availability of tax
expertise.
- 19 -
To reflect the foregoing,
An appropriate order and
decision will be entered.
| {
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285 F.3d 759
UNITED STATES of America, Plaintiff-Appellee,v.Frank Jesus RODRIGUEZ, a.k.a. Laprada, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Jose Ramon Laprada-Trevino, a.k.a. Jose Pepe Laprada, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Pedro Hernandez, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Pedro Hernandez, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Pedro Hernandez, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Roberta Hernandez, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Roberta Hernandez, Defendant-Appellant.
No. 99-30219.
No. 99-30220.
No. 99-30221.
No. 99-30222.
No. 99-30223.
No. 99-30224.
No. 99-30225.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 6, 2001.
Filed August 28, 2001.
Amended March 5, 2002.
Susan Bryson Fox, Stephen G. Ralls, Ralls, Fox & Jones, P.C., Tucson, AZ, for defendant-appellant Frank Jesus Rodriguez.
Francisco Leon, Tucson, AZ, for defendant-appellant Jose Ramon Laprada-Trevino.
Timothy J. Cavan, Federal Defenders of Montana, Billings, MT, for defendant-appellant Pedro Hernandez.
Kelly J. Varnes, Hendrickson, Everson, Noenning & Woodward, P.C., Billings, MT, for defendant-appellant Roberta Hernandez.
James E. Seykora, Bernard F. Hubley, Asssitant United States Attorneys, Billings, MT, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana, Jack D. Shanstrom, District Judge, Presiding. D.C. Nos. CR-97-00124-1-JDS, R-97-001243-JDS, CR-97-00124-4-JDS, CR-97-00124-5-JDS.
Before NOONAN, TASHIMA, and TALLMAN, Circuit Judges.
ORDER AND AMENDED OPINION
NOONAN, Circuit Judge:
ORDER
1
The opinion filed on August 28, 2001 is amended as follows:
2
At slip opinion, p. 11785, ¶ 5: Strike "the sentences were erroneous ... (9th Cir.2001)."
Substitute the following:
3
Their sentences were determined by the court pursuant to the Sentencing Guidelines, and so did not involve Apprendi error. United States v. Buckland, 277 F.3d 1173, 1185 (9th Cir.2002) (en banc). Because the guidelines maximums applicable to each defendant for their drug offenses were much higher than the 5-year statutory maximums for those offenses, the sentencing court must for each defendant "stack," or add together, his or her separate sentences under U.S.S.G. § 5G1.2(d). United States v. Kentz, 251 F.3d 835, 842 (9th Cir.2001). Each defendant was convicted of 8 counts each carrying a 5-year maximum, yielding imprisonment terms that exceed the actual sentences each defendant received.
4
With these amendments, the panel has voted to deny the petition for rehearing. Judges Tashima and Tallman voted to reject the petition for rehearing en banc and Judge Noonan recommended rejection of the petition for rehearing en banc.
5
The full court has been advised of the petition for en banc rehearing, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed.R.App. P. 35(b).
6
The petition for rehearing is DENIED, and the petition for rehearing en banc is REJECTED.
OPINION
7
Frank Rodriguez, Jose Ramon Laprada-Trevino, Pedro Hernandez and Roberta Hernandez appeal their convictions following a jury trial and sentences for drug dealing and money laundering. In a separate memorandum disposition filed with this opinion, we affirm the judgments of conviction. In this opinion, we address, the Apprendi issue raised by the sentences imposed.
PROCEEDINGS
8
Defendants were found guilty and sentenced as follows:
9
Pedro Hernandez Sentence
Count 1 Conspiracy to possess with intent to distribute and to Life imprisonment
distribute marijuana in violation of 21 U.S.C.
§§ 841(a)(1) & 846 and 18 U.S.C. § 2.
Count 2 Possession with intent to distribute and/or distribute Life imprisonment
over 100 kilograms of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2.
Count 3 Distribution of 6 to 8 pounds of marijuana in violation 10 years
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count 4 Distribution of 12 pounds of marijuana in violation of 21 10 years
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count 5 Distribution of marijuana in violation of 21 U.S.C. 10 years
§ 841(a)(1) and 18 U.S.C. § 2.
Count 6 Possession with intent to distribute and/or distribution Life imprisonment
of over 100 kilograms of marijuana in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count 7 Possession with intent to distribute and/or distribution 10 years
of 58 pounds of marijuana in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count 8 Possession with intent to distribute and/or distribution 30 years
of over 140 pounds of marijuana in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count 9 Transfer by wire of the proceeds from the distribution 20 years per count
through 18 of marijuana, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(1) and 18 U.S.C. § 2.
Roberta Hernandez
Count 1 10 years
Count 2 10 years
Count 3 5 years
Count 4 5 years
Count 5 5 years
Count 6 10 years
Count 7 5 years
10
Count 8 10 years
Counts 9-18 10 years per count
Jose Ramon Laprada-Trevino
Count 1 14 years 7 months
Count 2 14 years, 7 months
Count 3 10 years
Count 4 5 years
Count 5 5 years
Count 6 14 years, 7 months
Count 7 5 years
Count 8 14 years, 7 months
Counts 9-18 14 years, 7 months
per count
Frank Rodriguez
Count 1 20 years
Count 2 20 years
Count 3 10 years
Count 4 5 years
Count 5 5 years
Count 6 20 years
Count 7 5 years
Count 8 20 years
Count 9-18 20 years per count
11
All sentences are concurrent. They were imposed on June 16, 1999. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), holds that a judge cannot impose a criminal sentence exceeding the statutory maximum for the crime of which the jury has found the defendant guilty. Argument based on Apprendi could not have been made at the sentencing of these appellants. They now appeal their sentences, alleging a violation of Apprendi.
ANALYSIS
12
The "plain error" standard of review applies. The error must be shown to have "affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). At sentencing the district court found by a preponderance of the evidence that Pedro Hernandez had been responsible for the distribution of 1,000 kilograms or more of marijuana and imposed the maximum sentence of life imprisonment. The sentence was erroneous under Apprendi. The error resulted in the imposition of life sentences under 21 U.S.C. § 841(b)(1)(A)(vii).
13
The government attempts to salvage the sentence by pointing to Counts 2 and 6 in the indictment charging Hernandez with more than 100 kilograms of marijuana. The difficulty is that the jury was expressly instructed that the government was not required to prove "the amount or quantity of marijuana ... charged in the indictment. It need only prove beyond a reasonable doubt that there was a measurable or detectable amount. . . ." Under these instructions, the jury cannot be supposed to have determined the amount, and Pedro Hernandez's life sentence cannot stand.
14
Pedro Hernandez's sentences on counts 3, 4, 5, 7 and 9 through 18 are within the statutory maximums. The other sentences are not. As the total sentence was a package, United States v. Handa, 122 F.3d 690, 691-92 (9th Cir.1997), we remand for resentencing of Pedro Hernandez on all counts of conviction.
15
Pedro Hernandez's sentence in the money laundering case (No. 99-30222) was imposed during a consolidated sentencing hearing. Because the district court calculated the sentence in that case based on a guideline which considered the quantity of drugs involved in the marijuana conspiracy case, Pedro Hernandez's sentence in the money laundering case is vacated and remanded for sentencing separate from the marijuana conspiracy sentences.
16
Roberta Hernandez, Laprada-Trevino and Rodriguez received sentences as though it had been determined that they were responsible for 1,000 kilograms of marijuana. Their sentences were determined by the court pursuant to the Sentencing Guidelines, and so did not involve Apprendi error. United States v. Buckland, 277 F.3d 1173, 1185 (9th Cir.2002) (en banc). Because the guidelines maximums applicable to each defendant for their drug offenses were much higher than the 5-year statutory maximums for those offenses, the sentencing court must for each defendant "stack," or add together, his or her separate sentences under U.S.S.G. § 5G1.2(d). United States v. Kentz, 251 F.3d 835, 842 (9th Cir.2001). Each defendant was convicted of 8 counts each carrying a 5-year maximum, yielding imprisonment terms that exceed the actual sentences each defendant received.
17
The sentences of Roberta Hernandez, Laprada-Trevino and Rodriguez are AFFIRMED. Pedro Hernandez's sentences are VACATED and REMANDED for resentencing.
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314 F.2d 458
UNITED STATES of America ex rel., Commodore REED, Jr.,Petitioner-Appellant,v.Frank J. PATE, Warden, Illinois State Penitentiary,Respondent-Appellee.
No. 13800.
United States Court of Appeals Seventh Circuit.
Feb. 14, 1963, Rehearing Denied March 26, 1963.
Commodore Reed, Jr., pro se.
William G. Clark, Atty. Gen. of Illinois, Chicago, Ill., William C. Wines, Raymond S. Sarnow, A. Zola Groves, Asst. Attys. Gen., of counsel, for appellee.
Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit judges.
DUFFY, Circuit Judge.
1
This is an appeal from an order denying a petition for a writ of habeas corpus. As petitioner was unable to be present at the time this case was set for oral argument before this Court, the case was taken on the briefs and without any oral argument.
2
Charges were brought against the petitioner herein in an Illinois state court, for the unlawful sale and possession of narcotic drugs. In a trial before the Court, he was found guilty and sentenced to the Illinois penitentiary where he is presently confined.
3
He appealed his case to the Illinois Supreme Court which affirmed his conviction in People v. Reed, 21 Ill.2d 416, 173 N.E.2d 422. A petition for certiorari was filed. The Supreme Court of the United States requested the Attorney General of Illinois to respond to petitioner's application for a writ of certiorari. On being informed the petitioner had made no claim of federal constitutional rights in the trial court, the Supreme Court denied certiorari by memorandum order, and without opinion.
4
On April 30, 1962, the District Court entered a judgment order without hearing, denying the petition for a writ of habeas corpus '* * * for failure to exhaust State Court remedies.' On May 29, 1962, the clerk of the District Court received a petition for reconsideration of the order of April 30, 1962. On the same day, the District Court entered an order that the petition for reconsideration be denied.
5
Petitioner's principal contention is that the State of Illinois did not produce one Max Smith as a witness, and that the petitioner was denied compulsory process to require the attendance of Smith at the trial. Petitioner describes Smith as 'Max Smith who seems to have been an informer and effectuated the contact between Leek and Reed.'
6
This same contention was made on petitioner's appeal to the Supreme Court of Illinois. In its opinion, that Court commented 'There is no showing that Smith participated in the event of May 22nd or that his testimony in connection with the occurrence of May 9 would in any way be helpful to the defense.' 21 Ill.2d 416, 418, 173 N.Ed.2d 422, 423.
7
Respondent urges the appeal herein was not timely filed and that neither Rule 59 nor Rule 60, Federal Rules of Civil Procedure, covers the situation before us. However, petitioner is an incarcerated layman, and we shall assume the appeal was timely filed and proceed to consider the merits.
8
It appears that petitioner, although represented by counsel, did not invoke any claim under the Fourteenth Amendment in his trial. Furthermore, no sufficient showing was made that the failure to call Smith as a witness upon the trial was, in any way, a failure of due process.
9
The judgment of the District Court dismissing the petition for a writ of habeas corpus is
10
Affirmed.
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384 A.2d 429 (1978)
STATE of Maine
v.
Roxanne PORTER.
Supreme Judicial Court of Maine.
March 28, 1978.
*430 Joseph A. Wannemacher, Asst. Dist. Atty. (orally), Alfred, for plaintiff.
Roberts, Shirley & Humphrey by Thomas E. Humphrey (orally), James J. Shirley, Sanford, for defendant.
Before McKUSICK, C. J., and WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
McKUSICK, Chief Justice.
The defendant, Roxanne Porter, entered a plea of guilty to an indictment charging her with the offense of "terrorizing" in violation of section 210 of the Criminal Code.[1] She now appeals from the judgment entered on her guilty plea, alleging that the statute under which she was indicted is unconstitutional on its face for overbreadth.[2]
We deny the appeal.
I. Attack on Constitutionality of Section 210
The defendant concedes that she committed the acts charged by the indictment, namely:
"That on or about the 20th day of October, 1976, in the Town of Sanford, County of York and State of Maine the . . . defendant Roxanne Porter, did communicate to another person, namely Tina Fanjoy, an employee of Sprague Electric Co., a threat to commit a crime of violence, dangerous to human life, to wit: by then and there stating to said Tina Fanjoy that a bomb had been placed upon the premises of said Sprague Electric Co., thereby causing the evacuation of the said premises by the employees of Sprague Electric Co."
*431 Having admitted to the acts charged, the defendant claims that section 210 is unconstitutionally overbroad on its face in that it proscribes speech protected by the First Amendment. Since we find that the statute is not overbroad, we reject the appellant's attack.
Before proceeding, we note that appellant's standing to attack the constitutionality of the statute, if it otherwise existed, was not lost by her guilty plea. If section 210 suffers from fatal overbreadth, it follows that the defendant's indictment under that statute was invalid and that the Superior Court was without jurisdiction to entertain her plea and to enter judgment and sentence thereon. Jurisdictional questions, unique in degree of importance, are among the few exceptional issues which a defendant who has pled guilty may raise either by post-conviction habeas corpus proceeding or, as here, on direct appeal from the judgment. See State v. Small, Me., 381 A.2d 1130 (1978); Dow v. State, Me., 275 A.2d 815, 821 (1972).
Defendant's charge of over-breadth is predicated upon her argument that section 210 by its terms applies to a person who communicates a threat merely for the purpose of warning the person threatened by a third party, and that such a person comes within the protection of the First Amendment. We conclude that section 210 does in fact proscribe, under certain circumstances, the communication of a threat by one who has the intent of merely warning the person threatened. It is plain to us, in view of the language used in section 210 and the unspecified elements of the offense of "terrorizing," that the legislature intended to penalize him who actually "threatens," either (1) in the usual sense of one who, having originated the threat of a crime of violence, personally communicates that threat to another person, or (2) one who, although not the originator of the threat, transmits another's threats under such circumstances and in such a way that the threat, to any objective observer, has "become his own." In either sense, as the statute only penalizes one who "threatens," the statute suffers no overbreadth. Any-one who "communicates a threat" as we construe the statutory term forfeits the protection of the First Amendment.
Section 210 makes a person guilty of terrorizing if he "communicates to any person a threat", etc. That language is identical, for practical purposes, to the opening language of former section 3701 of Title 17, from which section 210 is largely derived, which penalized "[w]hoever makes, publishes or sends to another any communication. . . containing a threat".[3] Both word formulations, in common parlance and in legal effect, mean simply whoever "threatens."[4] In each statute, the more cumbersome form of expression was apparently adopted for grammatical convenience to fit with the balance of the sentence. The code's name for the section 210 crime"terrorizing"implies an intent to punish a particular type of "threatening."[5] In any event, insofar as ambiguity may be *432 found to exist in the phrase "communicates to any person a threat," that phrase must, to the extent consistent with the apparent intent of the statute, be given a narrow application, in keeping with the principle that penal statutes are to be strictly construed. State v. King, Me., 371 A.2d 640 (1977).
Section 210 thus punishes only him who "threatens" the crime of violence dangerous to human life. The word "threat" is by definition "an expression of intention to inflict evil or injury on another; the declaration or indication of an evil, loss, or pain to come . . .."[6] When the nub of the statutory language is focused upon, it becomes almost self-defining because of its commonly understood meaning, and
"[w]ords of a penal statute must be given their common and popular sense, unless the act discloses a legislative intent otherwise." State v. Heald, Me., 382 A.2d 290, 294 (1978).
Indeed, as discussed below, this court had no difficulty in defining the word "threat," standing alone in the predecessor statute, 17 M.R.S.A. § 3701, supra, in a constitutionally valid way. See e. g., State v. Cashman, Me., 217 A.2d 28, 29 (1966).
The Criminal Code, however, goes much further in delineating the crime than merely proscribing "threatening." In addition to the act of "threatening," the code expressly requires the crime to have the further element that the "natural and probable consequence of such a threat" is either "to place the person to whom the threat is communicated in reasonable fear that the crime will be committed," or "to cause evacuation of a building, place of assembly or facility of public transport." This requirement that the threatening have certain probable disruptive consequences restricts application of the statute to a kind of speech that produces or is likely to produce a clear and present danger of substantive evils that Maine constitutionally may seek to prevent. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
Our reading of section 210 is further supported by examination of this court's decisions under its predecessor statutes, the former crimes of "false bomb threats" and "threatening communications." 17 M.R. S.A. §§ 503,[7] 3071.[8] As the official comment to section 210 instructs, prior decisions construing section 3701 are helpful to understanding the scope of section 210. In State v. Cashman, supra at 30, this court first gave meaning to the term "threat" in section 3701. We there concluded that all the attendant circumstances, including the relationship between the parties, must be taken into account in determining whether the communication at issue is a "threat":
"In the instant case the threat must be found, if at all, in the words `they would take care of me' and `they would see that I was taken care of.' Such expressions may be completely devoid of menace under some circumstances and pregnant with the promise of evil in a different setting. Here the phrasing was designed to induce fright and alarm. . . . This was no mere warning or prediction *433 as to matters outside the control of the respondents. . . . The threat was real. The promise of evil was effectively conveyed." (Emphasis added)
Although this court had no occasion in Cashman to rule on the precise point, the language there employed implicitly recognized that section 3701 penalized only the communication of threatened harm from one who actually threatened it, or one who transmitted another's threat under such circumstances that, to the objective recipient of the threat, the promise of evil was the communicator's "own." In decisions subsequent to Cashman construing section 3701, we also consistently required as an additional element of the offense that the threat's "`promise of evil' must be in a context of circumstances by which it gives rise to reasonable likelihood that `alarm' or `fear . . to his disquiet' will be induced in some person." State v. Sondergaard, Me., 316 A.2d 367, 369 (1974); State v. Hotham, Me., 307 A.2d 185, 186 (1973); State v. Lizotte, Me., 256 A.2d 439, 442 (1969). A close identity thus exists between the express elements of section 210 and those elements this court by judicial construction found to be essential under section 3701. That similarity buttresses our conclusion that the legislature intended section 210 to cover the same type of threatening communication previously punishable under section 3701. As Cashman implied in speaking of the predecessor statute, section 210 is not intended to penalize the communication of a "mere warning or prediction as to matters outside" the control of the person communicating the threat. We conclude that the language of section 210, like that of section 3701 before it, generates no problem of unconstitutional overbreadth.
II. Sufficiency of the Section 210 Indictment
The present indictment for a violation of section 210 is framed exclusively in the words of section 210. It nowhere alleges in express terms that the defendant, Roxanne Porter, communicated the threat with any of the culpable mental states defined in section 10 of the code. See 17-A M.R.S.A. § 10 (1976). Because the insufficiency of an indictment to charge a criminal offense is noticeable by this court as a defect in jurisdiction,[9] we must consider whether an indictment so framed in the language of section 210 alone is defective for failure to plead any culpable state of mind beyond that implicit in the words of that section.
The starting point for analysis of the code's requirement of culpable mental states is section 11(1) of the code. That provision declares the general principle of criminal liability that a person is not guilty of a crime "unless he acted intentionally, knowingly, recklessly, or negligently, as the law defining the crime specifies, with respect to each element of the crime, except as provided in subsection 5."[10] (Emphasis added) Section 11(5) specifically addresses itself to those exceptional statutes, defining crimes within the code, which do not expressly prescribe a culpable mental state "with respect to some or all of the elements of the crime." As to such a statute, "a culpable mental state is nevertheless required pursuant to subsections 1, 2 and 3, unless either:
"A. The statute expressly provides that a person may be guilty of a crime without culpability as to those elements; or
"B. A legislative intent to impose liability without culpability otherwise appears." (Emphasis added)
Section 210 nowhere expressly prescribes a culpable mental state. Although section 210 does not otherwise expressly state the legislature's intention to impose *434 liability without culpability, such an intention appears upon fair examination of the language of section 210, as we construe it, in light of the relevant decisions of this court under the predecessor statute, section 3701 of Title 17. As a consequence, no culpable mental state need be pleaded or proven by virtue of the operation of section 11(5)'s general rule.
In State v. Lizotte, supra at 442, we observed of former section 3701:
"It matters not whether the defendant had or had not the intention later to carry out the threat. The essence of an oral threat is that it is a verbal act and if that act is of such a nature as to convey the menace to an ordinary hearer, the statute is violated." (Emphasis added)
Similarly, under section 210, whether a communication constitutes a "threat" within the plain meaning of that word does not depend upon the subjective motivation (or intention) of the communicator.[11] A communication is a threat if it carries the promise of evil under such circumstances that a reasonable person receiving the communication would believe that such was to ensue at the hands of the communicator, or his allies. See, e. g., State v. Cashman, supra.
Section 210 requires in addition that a threat, to be punishable, have as a natural and probable consequence either placing the recipient of the threat in reasonable fear that the threatened crime will be committed or causing the evacuation of a "building, place of assembly or facility of public transport." That express requirement is analogous to the requirement that a threat be attended by probable disruptive consequences which we held by statutory construction to be an element of former section 3701. That additional requirement functions not only to insulate the Maine statute from First-Fourteenth Amendment attacks, see State v. Sondergaard, supra, but also to narrow the class of punishable threats to those which, because of their particularly injurious societal effects, merit application of the criminal sanction.
The drafters' omission from section 210 of any of the code's culpable states of mind cannot be viewed as merely inadvertent. The legislature enacted section 210 in full awareness of the predecessor statutes and the case law interpreting them. See Advisory Committee's Comment to section 210. As previously noted, section 210 in language bears obvious similarities to its predecessors. A punishable threat, as restrictively defined in section 210 itself, adequately describes that conduct considered to be culpable for purposes of punishment as "terrorizing." Although section 210 does not expressly provide that a person may be guilty of terrorizing without "culpability" (in the sense of one of the code's states of mind defined in section 10), the legislature's intent that such should be the case "otherwise appears."[12]
The indictment under which the defendant was convicted alleges all essential elements of the offense of terrorizing under section 210.
*435 The entry must be:
Appeal denied.
Judgment affirmed.
POMEROY and DELAHANTY, JJ., did not sit.
NOTES
[1] 17-A M.R.S.A. § 210 (enacted 1975; eff. May 1, 1976) (1977 Supp.) provides:
"A person is guilty of terrorizing if he communicates to any person a threat to commit or cause to be committed a crime of violence dangerous to human life, against the person threatened or another, and the natural and probable consequence of such a threat, whether or not such consequence in fact occurs, is:
"A. To place the person to whom the threat is communicated in reasonable fear that the crime will be committed; or
"B. To cause evacuation of a building, place of assembly or facility of public transport."
[2] Prior to pleading guilty, the defendant moved to dismiss the indictment, Rule 12(b)(2), M.R. Crim.P., claiming that section 210 is both overbroad and void for vagueness. The vagueness issue, neither briefed nor argued on appeal, was waived. State v. DeCesere, Me., 379 A.2d 1221 (1977).
[3] 17 M.R.S.A. § 3701 (1964) (repealed by P.L. 1975, ch. 499, § 20, eff. May 1, 1976) provided in full: "Whoever makes, publishes or sends to another any communication, written or oral, containing a threat to injure the person or property of any person shall be punished by a fine of not more than $500 or by imprisonment for not more than 5 years, or by both. If the communication is written and is anonymous or signed by any other than the true name of the writer, the punishment shall be a fine of not more than $1,500 or imprisonment for not more than 10 years, or both. If any such threat is against the person or property or member of the family of any public official, the punishment shall be imprisonment for not more than 15 years."
[4] Cf. Model Penal Code § 211.3 (1962), which makes a person guilty of making "threats" if he "threatens to commit any crime with purpose to terrorize the person threatened . . .." (Emphasis added)
[5] Section 209 of the code, immediately preceding section 210, provides for the separate offense of "criminal threatening." As the official comment to section 210 observes, a major distinction between section 210 "terrorizing" and section 209 "criminal threatening" is that the former requires no showing that any person is put in actual fear of bodily injury, whereas fear of imminent bodily injury is a necessary element of the offense of "criminal threatening."
[6] Webster's New International Dictionary of the English Language (2d ed. 1961).
[7] 17 M.R.S.A. § 503 (1964) (repealed by P.L. 1975, ch. 499, § 5, eff. May 1, 1976) provided: "Whoever gives a false report, knowing such report to be false, to anyone as to the deposit of any bomb or infernal machine in any place shall be punished by a fine of not more than $500 or by imprisonment for not more than 11 months, or by both."
[8] See n.3 above. Section 3701 was originally enacted, with an emergency preamble, by P.L. 1921, ch. 146, § 3. Sections 1 and 2 of that chapter criminalized the sending or possession of any "bombs or infernal machines." Section 503, penalizing "[w]hoever gives a false report, knowing such report to be false, to anyone as to the deposit of any bomb or infernal machine in any place," was added by separate section to the existing provisions by R.S.1957, ch. 130, § 22-A (repealed and replaced by P.L.1963, ch. 70, § 1). A common purpose, the deterrence and punishment of terroristic violence, underlies both sections 3701 and 503, and in part explains their fusion now into the single offense of terrorizing under section 210 of the code.
[9] We are aware that a contrary view regarding the noticeability of such a defect is espoused in P. Ballou, "Jurisdictional" Indictments, Informations and Complaints: An Unnecessary Doctrine, 29 Me.L.Rev. 1 (1977). We need not at present address the merits of the argument there set forth, in view of our conclusion, infra, that this indictment is sufficient.
[10] The four culpable mental states required by section 11(1) of the code are defined in section 10.
[11] In the Lizotte case, the defendant had failed to preserve any objections to the jury charge. Nevertheless, this court inspected the charge to determine whether it contained any errors prejudicial to him. Those instructions stated, in part, that "[w]hen the unlawful threat is knowingly and wilfully made, the offense is complete" and that "[a] threat is knowingly made if the maker comprehends the meaning of the words used, and wilfully made if, in addition to comprehending their meaning, he voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution, and a bad purpose is not necessary." State v. Lizotte, supra at 440-41. After reviewing that charge as a totality, this court held that the jury had been fairly and accurately apprised of the law and, significantly, that "[i]n no respect were these instructions . . less favorable to the defendant than he could justly require." (Emphasis added) Id. at 442. Given the limited context in which Lizotte was decided, that case cannot reasonably be read as an indication by this court that the mental states of "knowingly and wilfully" constituted necessary elements of the offense of making a threatening communication under former section 3701.
[12] Of course, a person is only subject to criminal liability if he "engages in voluntary conduct, including a voluntary act, or the voluntary omission to perform an act of which he is physically capable." 17-A M.R.S.A. § 51 (1976).
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12/22/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 24, 2017 Session
IN RE BROOKE E. ET AL.
Appeal from the Juvenile Court for Stewart County
No. 81JC1-2015-JT-03 Andy Brigham, Judge
___________________________________
No. M2016-02370-COA-R3-PT
___________________________________
This is a termination of parental rights case involving an almost nine-year-old child, who
was removed from his parents’ custody after allegations of sexual abuse, physical abuse,
and a violation of the prior visitation order. On June 26, 2015, the Stewart County
Juvenile Court (“trial court”) granted temporary legal custody of the child to the
Tennessee Department of Children’s Services (“DCS”). The child was immediately
placed in foster care, where he has remained since that date. Following an adjudicatory
hearing, the trial court entered an order, finding the child dependent and neglected as to
both parents. The father filed a notice of appeal from the adjudicatory hearing order,
which appeal was still pending during trial in this matter. On September 1, 2015, DCS
filed a petition to terminate the parental rights of the father.1 Following a bench trial, the
trial court terminated the father’s parental rights to the child upon the grounds that (1)
prior to incarceration, the father had abandoned the child by exhibiting a wanton
disregard for the child’s welfare, (2) the conditions that led to the child’s removal from
the parents’ custody persisted, and (3) he had committed severe abuse against a half-
sibling of the child. The court also found clear and convincing evidence that termination
of the father’s parental rights was in the best interest of the child. The trial court declined
to terminate the mother’s parental rights after finding that said termination was not in the
best interest of the child. The father has appealed. Having determined that there was not
a final adjudicatory hearing order for purposes of res judicata due to a pending appeal,
we reverse the trial court’s ruling regarding the statutory ground of persistence of
conditions. We conclude that the trial court erred by including in its decision portions of
evidence from the adjudicatory hearing order, which was pending on appeal, but we
determine this error to be harmless. We affirm the trial court’s judgment in all other
respects, including the termination of Father’s parental rights to the child.
1
DCS had also filed a petition to terminate the mother’s parental rights, but the trial court denied that
petition. The mother is not participating in this appeal. Thus, we will limit our discussion to the facts and
legal analysis that are relevant to the termination of the father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.
Elizabeth A. Fendley Hahn, Clarksville, Tennessee, for the appellant, Toby E.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Factual and Procedural History
The Child, Steven E. (“the Child”) was born in October 2007 to Toby E.
(“Father”) and Kelly E. (“Mother”). The matter before us involves the termination of
Father’s parental rights to the Child, who was almost nine years old at the time of trial.
Although the Child’s siblings were also removed from the parents’ home around the
same time as the Child, this termination proceeding involves solely the Child.2 This
action began when DCS filed a petition with the trial court on September 1, 2015,
seeking to terminate Father’s and Mother’s parental rights to the Child. In its petition
regarding Father, DCS alleged as statutory grounds that (1) Father had abandoned the
Child by failing to provide a suitable home for him, (2) Father had abandoned the Child
by failing to support the Child, (3) Father had abandoned the Child by engaging in
conduct exhibiting a wanton disregard for the welfare of the Child prior to Father’s
incarceration, (4) Father had committed severe child abuse against a half-sibling of the
Child, and (5) the conditions leading to the Child’s removal from Father’s custody still
persisted. DCS further alleged that termination of Father’s parental rights was in the best
interest of the Child.
Prior to trial, DCS chose not to pursue the allegation regarding the ground of
abandonment by failure to support. The trial court conducted a bench trial on October
24, 2016, during which Mother, Father, Brooke, DCS representatives, and the Child’s
foster parent testified. Dr. Victor Pestrak presented testimony as an expert witness at the
2
The petition also initially involved the parental rights to Brooke E., who is a half-sibling of the Child.
However, DCS nonsuited the allegation underlying the petition to terminate parental rights to Brooke E.
prior to the termination hearing at issue. Only the parental rights to the Child, Steven E., are at issue in
this appeal.
2
adjudicatory hearing on October 29, 2012. Dr. Pestrak’s previous testimony was
admitted at trial because he was deceased and, therefore, unavailable at the time of the
termination trial. Father also appeared and testified during trial notwithstanding the fact
that he was incarcerated at the time.
The trial testimony established that Mother and Father began living together in
April 2007 with Father’s three children, Brooke, Jacob, and Haley, and Mother’s child,
Winter. The Child was born to Mother and Father in October 2007. Mother and Father
subsequently married in March 2010. After the children were removed from the parents’
custody, the parents had another child, Ethan, who remained in Mother’s custody.
Mother and Father eventually divorced in April or May of 2014. At trial, both Mother
and Father denied being together in an ongoing relationship. Father testified that his
children were previously removed from his custody briefly for excessive discipline to the
child, Brooke. The trial court’s judgment reflects that Brooke was placed in her
grandfather’s custody in 2005.
According to the trial court record, Haley and Brooke had disclosed sexual abuse
by Father, and Jacob and Haley had disclosed physical abuse by Father. Initially, the trial
court entered a temporary restraining order prohibiting all contact between Father and the
Child. Although Father’s children were placed into DCS custody, Mother was permitted
to retain custody of the Child and Winter. At some point, the trial court modified its
initial order to allow Father to exercise four hours of therapeutic visitation with the Child
each month. On May 17, 2012, the trial court removed the Child from Mother’s custody
and placed him into DCS custody. According to Mother, the Child was removed from
her custody after Father came onto the premises where she and the Child were residing,
violating the trial court’s visitation order.
The trial court conducted an adjudicatory hearing on October 29, 2012, and
subsequently entered an order on January 4, 2013, finding, inter alia, that Haley, Brooke,
Jacob, Winter, and the Child were dependent and neglected and that Haley and Brooke
had been severely abused by both Father and Mother. The dispositional hearing order,
entered in March 2013, provided that it was in the Child’s best interest to remain in DCS
custody and that DCS was relieved of its statutory duty to provide reasonable efforts to
reunite Father with the Child. The adjudicatory and dispositional hearing orders were
appealed by Father to the Stewart County Circuit Court, and that appeal was still pending
at the time of the hearing concerning the termination of parental rights petition.
At trial, Mother testified that Father had been emotionally and verbally abusive to
her since 2007 and that his behaviors had later escalated to physical abuse. Mother
described an incident that occurred shortly before the children were removed from the
parents’ custody when Father was physically abusive to her. According to Mother,
Father grabbed her by the neck, causing her to fall to the floor. Mother testified that she
3
told Father to “get off of [her]” but that he squeezed tighter and “told [her] to shut the
f*** up.” Mother explained that Father became angry when she informed him that she
would take the Child and leave. Father responded by saying, “he would dump [her] in
the well out back and nobody would ever know.” It is undisputed that both Haley and
Brooke were present at the time of this altercation. Brooke attempted to intervene to pull
Father off Mother. According to Father, Mother was threatening to take the Child away
from him when he lost control of his temper and placed his hands around Mother’s neck
for “a split second.” Brooke noted that she observed an incident when Father was on top
of Mother and choking her.
Mother further related that Father arrived at their home in December 2011, saw
her packed bag, and became angry. She observed Father entering the home to retrieve a
gun and heard him mention something about ending his life. According to Mother,
Father thereafter “headed down the street with a gun.” Father testified that he had lost
everything and did not deny that he left his home with a weapon and proceeded in the
direction of the home of Latisha H., who is the mother of Brooke, Haley, and Jacob.
Father further stated, “I was going to blow her head off.”
Mother also testified regarding an incident that occurred in May 2014, after the
Child was placed into DCS custody, resulting in Father’s arrest for domestic assault
against Mother. According to Mother’s account of the event, as Father followed her in
his truck while she was driving from his home, he nearly caused her to crash into his
vehicle. Mother explained that Father “sped in front of [her], spun out, [and] hit the
guardrail,” forcing Mother to “slam on [her] brakes to keep from hitting him.” Mother
then returned Ethan to Father’s home so that Father could tell him goodbye. Once they
arrived, Father opened the car door and removed the keys from the ignition of Mother’s
vehicle. According to Mother, Father also grabbed her cellular telephone and broke it by
throwing it upon the ground, informing Mother that she was not leaving until they
“talked.” Consequently, Mother ran to a neighbor’s home and contacted law
enforcement.
Father recounted the incident differently. According to Father, despite Mother’s
agreeing to talk, she decided to go out with friends while Father kept Ethan. During the
ensuing argument, Mother left. Father then entered his truck and “flashed her down.”
When Mother informed Father that she had been dating another man, Father instructed
her to bring Ethan back to his house, which she did. Father stated that he reached into
Mother’s open car door to grab her cellular telephone and keys, and that Mother ran
toward him. Father confirmed that he broke the cellular telephone but stated that it was
his phone that was broken, not Mother’s, because he had given Mother a cellular
telephone to use. According to Father, he cautioned Mother not to contact law
enforcement, warning her that DCS would become involved with Ethan. While Father
4
instructed Mother to take Ethan and leave, she ran to the neighbor’s home and called law
enforcement. Father acknowledged that he was subsequently arrested.
Additionally, Mother testified regarding a later incident in July 2014 when Father
pinned her against her vehicle so that she could not move. Mother reported that she “laid
on the horn” to get the children’s paternal grandfather’s attention inside the home. She
eventually punched or kicked Father and was able to escape. She, however, did not
report this incident to law enforcement. Mother testified that she “led [Father] on to
believe that [they] were still together” because she was afraid of him.
Mother articulated that she separated from Father a few times and returned during
their relationship because she did not wish to leave Brooke, Haley, and Jacob alone with
Father. She explained that she feared for Haley’s safety if left alone with Father. Mother
indicated that Father taught the Child to call her “a b****” and curse at her. Mother also
testified regarding an incident when Father washed Haley’s and Brooke’s hair in
kerosene because of lice. He ultimately shaved the girls’ heads. Father admitted that he
used kerosene as a lice treatment but denied pouring kerosene over their heads. Father
explained that the kerosene was in a towel that he placed on their heads.
Brooke testified during trial regarding the physical abuse she and her siblings,
Jacob and Haley, had experienced. Brooke witnessed Father pushing Haley and Jacob
against a wall and hitting each of them with an open hand. She also observed Father
pushing Haley to the floor, leaning over her, yelling, and holding her against the wall by
her throat. Brooke reported that she had several welts on her body resulting from Father
spanking her with a belt. According to Brooke, Father “stomp[ed]” on both her and
Haley. Brooke also testified that Father choked her often, at times causing her to “pass
out.” Brooke indicated that she observed Father choking Haley and Jacob. In response,
Father denied ever choking or stomping the children.
Mother related that Father had locked Haley out of the home on two occasions.
Father confirmed in his testimony that although he had locked Haley out of the home
because she had threatened to run away, Haley could have knocked to gain entrance,
which she never did. Mother also testified that Father once locked Haley in her bedroom
closet as a form of discipline, leaving her alone in the home. Mother stated that she had
observed Father hitting Haley and Jacob with an open hand but never with objects. She
also witnessed Father pushing Haley and Jacob against a wall on separate occasions.
According to Mother, Father became angry with Haley once, grabbing Haley by the
throat. Mother described another incident when Father had knocked Haley to the floor,
pinned her down, and leaned over while yelling at her. She stated that Father did not
touch Haley during this incident. Mother indicated that she did not observe Father
stomping the children. According to Father, he had spanked the children and had
previously grabbed Jacob and placed him against a wall by his shirt. Although Father
5
acknowledged that the children may have fallen to the ground when he whipped them, he
denied stomping them.
Brooke continued to relate that Father once disciplined Haley and her by driving
them to a gas station and leaving them there. According to Brooke, although Father
eventually returned and picked them up, he left them there long enough to cause them
worry. While Father acknowledged that he transported Haley and Brooke to a gas
station, he insisted that he only drove around the building, never leaving the children
alone at the establishment.
Brooke also testified at trial regarding sexual abuse perpetrated against her by
Father. She related that Father got into the shower with her to wash lice from her hair
while both of them were naked. According to Brooke, Father stood behind her in the
shower. When she tried to pull away from Father, Father attempted to draw her against
him. Brooke indicated feeling uncomfortable while in the shower with Father. She
stated that Mother was also present. In response, Father denied ever being in the shower
with Brooke and added that “she was old enough to wash her own hair.” Mother also
denied that Father ever entered the shower with Brooke, stating that she was present in
the bathroom the entire time during the lice incident.
Brooke described another incident when Father picked her up from school early
and took her home when no one else was present. According to Brooke, Father played a
pornographic video in her presence and removed his pants. Father directed her to put a
condom on him, which she did. Brooke reported that after Father instructed her to go
into the bedroom and remove her clothing, he entered the room. Brooke explained that
when Father told her to get on the bed and attempted to have sex with her, his private
parts touched her private parts. Brooke reported that when she voiced her refusal, Father
told her “that it was normal, that that’s what parents and kids do.” According to Brooke,
although she had previously feared Father, by the time of trial she no longer did because
he was incarcerated and she was now in a safe place.
Father denied ever inappropriately touching any of the children. According to
Father, Brooke was motivated to voice complaints against him because he maintained a
strict home environment. Conversely, Father stated that Brooke desired living with her
mother, Latisha H., where she was provided whatever she wanted. Father also suggested
that Latisha H. had coerced Brooke into making sexual allegations against Father because
Latisha H. purportedly owed a child support arrearage to Father of approximately
$46,000.
Two DCS case managers, Alexandra Timberlake and Rebecca Monsue, testified
during trial. Neither of them were involved with the case prior to 2014. Ms. Timberlake
had been the case manager from some time in 2014 until March 2015. According to Ms.
6
Timberlake, she was unable to contact Father except through his attorney. DCS had
previously been relieved of making reasonable efforts to reunify Father with the Child
when she was assigned to the case. Ms. Timberlake opined that she would be concerned
for the Child if he were to return to Father’s home. The current case manager, Ms.
Monsue, having been assigned the case in March 2015, explained that the Child had not
seen Father in five years. According to Ms. Monsue, inasmuch as the Child was thriving
in his foster home, it would be detrimental for him to be removed.
Although Dr. Pestrak had testified during the adjudicatory hearing on October 29,
2012, he was deceased by the time of the termination trial. Accordingly, the trial court
permitted a transcript of Dr. Pestrak’s prior testimony to be admitted into evidence in the
instant case. Dr. Pestrak had evaluated Father after his children were removed from
Father’s care and had recommended that Father complete mental health counseling or
treatment and therapy to address his anger issues. However, Dr. Pestrak had opined that
Father was a poor candidate for therapy because Father did not believe he needed
counseling.
The Child’s foster parent, Darryl H. (“Foster Father”), testified that the Child had
been residing in his and his wife’s home for approximately four years and four months
since first being placed into DCS custody. According to Foster Father, although the
Child was rambunctious and disrespectful to the foster family when he initially came into
their home, the Child’s behaviors had improved. Foster Father indicated that the Child
had been in therapy the entire time he had resided with them and that the therapy had
helped the Child. Foster Father opined that the Child was doing well in his home, and he
expressed a desire to adopt the Child if the Child were to become available for adoption.
Following the October 24, 2016 trial, the trial court granted the termination of
Father’s parental rights on the statutory grounds that (1) Father had abandoned the Child
by engaging in conduct that exhibited a wanton disregard for the Child, (2) Father had
committed severe child abuse against a half-sibling of the Child (Brooke), and (3) the
conditions that led to the removal of the Child from Father’s custody still persisted. The
trial court found insufficient evidence to prove that Father abandoned the Child by failing
to provide a suitable home upon finding a lack of reasonable efforts by DCS during the
four months following removal. Upon analyzing the statutory factors, the trial court
determined that it was in the best interest of the Child to terminate Father’s parental
rights. The trial court also found that grounds for termination existed against Mother but
that termination of her parental rights was not in the best interest of the Child.
Consequently, the trial court terminated Father’s parental rights to the Child but did not
terminate Mother’s parental rights. Father timely appealed.
7
II. Issues Presented
Father presents three issues for our review, which we have restated as follows:
1. Whether the trial court erred by relying on findings of fact and conclusions
of law contained in the dependency and neglect adjudicatory hearing order
when an appeal thereof was pending.
2. Whether the trial court erred by terminating Father’s parental rights to the
Child while not terminating Mother’s parental rights to the Child.
3. Whether the trial court erred by finding that DCS had met its burden of
proof to demonstrate grounds, warranting termination of Father’s parental
rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:
The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
8
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Evidentiary Issues
Father contends that the trial court erred by relying on its previous adjudicatory
hearing order from a separate and distinct matter. According to Father, DCS may not
9
rely on prior court orders from a separate action in a termination trial. It is well settled
that a trial court may rely on a prior court order finding severe abuse and is not required
to re-litigate the issue of severe abuse at the termination trial. See State, Dep’t of
Children’s Servs. v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10
(Tenn. Ct. App. Mar. 8, 2005). However, because the trial court may not rely on a court
order that is not final for purposes of res judicata, such an order may not be afforded
preclusive effect. See Creech v. Addington, 281 S.W.3d 363, 377-78 (Tenn. 2009); In re
Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *5 (Tenn. Ct.
App. July 7, 2011). As this Court has explained:
Importantly, both res judicata and collateral estoppel require a final
judgment from which to take their preclusive effect. State v. Thompson,
285 S.W.3d [840,] 847 [(Tenn. 2009)]; Richardson v. Tennessee Bd. of
Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995).
***
[A] judgment may be considered “final” in order to confer jurisdiction on
an appellate court pursuant to Tennessee Rules of Appellate Procedure Rule
3(a), while not being “final” for purposes of res judicata because such an
appeal is pending.
This is, in fact, the rule in Tennessee, where a “‘a judgment is not
final and res judicata where an appeal is pending.’” Creech, 281 S.W.3d
377-78 (quoting McBurney [v. Aldrich], 816 S.W.2d [30,] 34 [(Tenn. Ct.
App. 1991)]); see also Freeman v. Marco Transp. Co., 27 S.W.3d 909, 913
(Tenn. 2000). Our Supreme Court, citing the Restatement (Second) of
Judgments § 13 cmt. f, has noted that Tennessee’s rule is a minority
position and that the predominant view in other jurisdictions is that the
“taking of an appeal does not affect the finality of a judgment for res
judicata purposes.” Creech, 281 S.W.3d at 378 n.17 (collecting cases from
other jurisdictions). However, it is an inescapable conclusion that, in
Tennessee, a judgment from a case in which an appeal is pending is not
final and cannot be res judicata until all appellate remedies have been
exhausted.
In re Shyronne D.H., 2011 WL 2651097, at *5-6 (footnotes omitted).
This Court addressed a similar situation in the case of In re Adriana L., No.
M2013-00646-COA-R3-PT, 2013 WL 5434629, at *3 (Tenn. Ct. App. Sept. 25, 2013),
determining as follows:
10
Mother asserts that the trial court erred in admitting two prior orders
that adjudicated the children dependent and neglected and found the
children were subjected to severe abuse as exhibits at trial. Mother states
that she filed an appeal from those orders which was still pending at the
time of the termination hearing. She argues that because the orders were
being appealed, they were not final and should not have been admitted or
relied on by the trial court. Mother also asserts that the trial court erred in
using “the findings and conclusions from those trials instead of making
findings based upon the evidence presented at the termination of parental
rights trial.”
Mother cites In re Shyronne D.H. in support of her contentions. In
re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097
(Tenn. Ct. App. July 7, 2011). In In re Shyronne D.H., the trial court held
that a previous finding of severe child abuse from a dependency and neglect
proceeding was res judicata and excluded all evidence and argument on the
issue of severe abuse at the termination of parental rights hearing. Id. at *9.
Mother appealed, and this Court determined that the prior order the trial
court relied on was not yet a final judgment and that the trial court erred by
precluding Mother from asserting her defense. Id. at * 10. In re Shyronne
D.H. is distinguishable from the instant case. Here, the trial court heard
testimony from eight witnesses regarding the parties’ alleged child abuse
and made independent findings that the conduct of the parties constituted
severe child abuse. The trial court recognized it could not solely rely on the
prior order and did not apply the doctrine of res judicata, nor did it preclude
Mother from presenting evidence on the issue of severe abuse.
Furthermore, we have carefully reviewed the testimony and exhibits
presented at trial and find that the trial court did not adopt the findings of
fact and conclusions of law in the prior orders wholesale; rather, the court
allowed the parties to fully litigate the issues and made independent
findings based on the evidence presented. The introduction of the prior
orders is not reversible error.
In re Adriana L., 2013 WL 5434629, at *3 (footnotes omitted).
In this matter, the trial court admitted as an exhibit the previous adjudicatory
hearing order wherein the court found that the Child was dependent and neglected and
that Father had committed severe abuse against two of the other children. Following the
testimony of several witnesses, the trial court entered its order terminating Father’s
parental rights to the Child. The trial court included in its decision portions of evidence
from the previous adjudicatory hearing order presented in the prior trial, including
testimony from Jacob and Haley, who did not testify during the termination trial. We
11
determine that the trial court erred insofar as the court relied on the evidence in the
adjudicatory hearing order that was not presented at the termination trial. See In re
Adriana L., 2013 WL 5434629, at *3.
Such error was harmless, however, because the trial court did not apply res
judicata or afford the findings in the adjudicatory hearing order preclusive effect. The
parties were given the opportunity to re-litigate these issues during the termination trial.
In its order, the trial court provided a summary of the evidence presented in the
termination trial upon which it had relied in making its decision regarding termination of
parental rights. The trial court further stated regarding the severe child abuse finding:
“While the Adjudicatory Order was appealed to Circuit Court, this appeal is still pending
and this court further finds that the proof introduced herein is sufficient, independent of
the Adjudicatory Order, to sustain such finding.”
Although the trial court erred by relying on testimony supporting the adjudicatory
hearing order that was not presented during the termination trial, we determine this error
to be harmless because the trial court did not apply preclusive effect to the adjudicatory
hearing order. Instead, the parties were permitted to re-litigate the issues while the trial
court conducted its own independent analysis of the evidence presented in this action.
Furthermore, the clear and convincing evidence presented to the trial court in the
termination trial supports the trial court’s ultimate findings concerning the grounds of
wanton disregard and severe child abuse, as well as its finding that termination of
Father’s parental rights was in the best interest of the Child.
V. Grounds for Termination of Parental Rights
Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory
requirements for termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
12
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
While Father contends generally that DCS did not meet its burden of proof to
terminate his parental rights, he does not proffer a specific ground or the best interest
analysis as a predicate for his assertion. In its appellate brief, DCS states that it will not
defend the ground of persistence of conditions on appeal. Because the adjudicatory
hearing order was on appeal at the time of trial and was therefore not final for purposes of
res judicata, we reverse the trial court’s finding of persistence of conditions as a ground
for termination of Father’s parental rights. See In re S.S.-G., No. M2015-00055-COA-
R3-PT, 2015 WL 7259499, at *8 (Tenn. Ct. App. Nov. 16, 2015) (“[U]ntil the
dependency and neglect order has reached its ‘final completion,’ either because there has
been no appeal, or through the exhaustion of all appellate remedies, we hold that the prior
order, which is not res judicata, cannot form the basis, standing alone, for termination of
parental rights on any ground that contemplates reliance on a previous finding or order.”)
(citing Swift v. Campbell, 159 S.W.3d 565, 573 (Tenn. Ct. App. 2004)). We will examine
each remaining ground and the best interest analysis in turn to determine whether clear
and convincing evidence supported the trial court’s termination of Father’s parental
rights.
A. Abandonment through Wanton Disregard
The trial court found that Father abandoned the Child by exhibiting wanton
disregard for the Child’s welfare prior to Father’s incarceration. See Tenn. Code Ann. §
36-1-102(1)(A)(iv). Tennessee Code Annotated § 36-1-113(g)(4), as relevant to this
issue, provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred[.]
Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides in pertinent part:
13
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and . . . the parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child . . . .
(Emphasis added.)
A parent’s actions constituting wanton disregard for the welfare of a child are not
restricted to only the four-month period prior to incarceration. See In re Audrey S., 182
S.W.3d at 871. This Court has consistently held that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support for a child can, alone or in combination, constitute conduct that exhibits a wanton
disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68; see also In
re K.F.R.T., No. E2015-01459-COA-R3-PT, 2016 WL 908926 at *4 (Tenn. Ct. App.
Mar. 10, 2016). “Simply stated, a parent’s ‘poor judgment and bad acts that affect the
children constitute a wanton disregard for the welfare of the children.’” In re T.L.G., No.
E2014-01752-COA-R3-PT, 2015 WL 3380896, at *3 (Tenn. Ct. App. May 26, 2015)
(quoting State, Dep’t of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App.
2009)).
Sexual abuse by a parent can be the basis for a court’s finding that a parent has
engaged in behavior that constitutes wanton disregard for the child’s welfare. See In re
T.L.G., No. E2014-01752-COA-R3-PT, 2015 WL 3380896, at *3 (Tenn. Ct. App. May
26, 2015) (determining that multiple sexual acts committed by a parent against his or her
child, which led to a lengthy prison sentence “without question reflects a wanton
disregard for the [c]hild’s welfare.”). Furthermore, the parent’s conduct may constitute a
wanton disregard for the welfare of his or her child even though it be directed toward a
step-sibling of the children at issue in the termination of parental rights proceeding. See
In re G.M.H., No. M2006-02665-COA-R3-PT, 2007 WL 1527003, at *3 (Tenn. Ct. App.
May 24, 2007) (“The sexual abuse of Father’s stepdaughter, the children’s stepsister, is
sufficient to exhibit wanton disregard for their welfare.”)
Regarding its determination that Father had abandoned the Child by engaging in
conduct that exhibited a wanton disregard for the Child’s welfare prior to Father’s
incarceration, the trial court found as follows:
The relevant four month period [prior to the filing of the petition]
would be May 1, 2015, until September 1, 2015. Exhibit 5 reveals that
Father was incarcerated from April 6, 2015, until May 30, 2015. Therefore,
Father was incarcerated during “. . . part of the four (4) months immediately
14
preceding the institution . . .” of this action. Because Father was
incarcerated during this period, the court must assess whether the pre-
incarceration actions of Father constitute “wanton disregard for the welfare
of the child.”
***
In examining Exhibit 5, the court finds that Father has an extensive
incarceration and criminal history. He was charged on 4/6/15 with Rape of
a Child, Aggravated Sexual Battery, and Sexual Battery by an Authority
Figure, and spent 55 days in jail; he was charged on 12/5/14 with Failure to
Appear and spent 55 days in jail; he was charged on 5/10/14 with Domestic
Assault and Child Endangerment and spent 2 days in jail; he was charged
on 1/13/14 with Rape of a Child and Sexual Battery by an Authority Figure
and spent 6 days in jail; he was charged on 3/25/13 with Rape of a Child
and Sexual Battery by an Authority Figure and spent 2 days in jail; he was
charged on 1/17/13 with Failure to Appear and spent 1 day in jail; he was
charged on 8/27/12 with Failure to Appear and spent 1 day in jail; he was
charged on 6/2/08 with Failure to Appear and spent 1 day in jail; he was
charged on 7/22/05 with Conspiracy to Sell Cocaine Over 5 Grams and
Mfg/Del/Sell Controlled Substance (2 counts) and spent 3 days in jail.
The court recognizes that some of these charges may be duplicates
or charges regarding the same criminal activity (arrests and subsequent bind
overs, for instance), especially with regard to the later sexual charges.
Also, the court recognizes that this Exhibit is a compilation of jail records
only, and does not reflect the disposition of these charges. Nevertheless,
such a history raises significant and troubling issues concerning Father’s
ability to successfully raise a child. Continued arrests spread over an
extended amount of time is concerning, especially when one observes that
arrests require a probable cause determination by a neutral and detached
magistrate. This is not behavior exhibited by good parents. Certainly, such
a history brings to mind “wanton disregard” for the child’s welfare,
especially when considering that the sexual misconduct charges were for
actions against Father’s own children, and the domestic violence charge
relates to Mother as victim. Such continued arrests give meaning to Justice
Koch’s observation in Audrey [In re Audrey S., 182 S.W.3d at 866] that
continual incarceration “compromises a parent’s ability to perform his or
her parental duties.” Indeed, such a notion is “commonsense.”
Corroboration of a portion of the charges detailed above is Exhibit 1,
Parts 12, 13, and 14. Part 12 is True Bill 2013 CR-34, Stewart County
15
Circuit Court, dated March 18, 2013, in which Father was indicted for Rape
of a Child and Sexual Battery by an Authority Figure; Part 12 also contains
a [Judgment] dated August 22, 2016, wherein Father was convicted of
Child Abuse and Neglect in this matter.
Part 13 is True Bill 2014 CR-51, Stewart County Circuit Court,
dated May 19, 2014, wherein Father was indicted (superceding indictment)
for Rape of a Child, Sexual Battery by an Authority Figure, and Aggravated
Sexual Battery, Under Age 13; Part 13 also contains a [Judgment] dated
July 15, 2016, wherein Father was convicted of two counts of Child Abuse
and Neglect. The court notes that Parts 12 and 13 appear to be documents
relating to the same factual events.
Part 14 is True Bill 2014 CR-121, Stewart County Circuit Court,
dated November 17, 2014, wherein Father was indicted for Domestic
Assault and Reckless Endangerment. The court understands these charges
are still pending.
Part 15 of Exhibit 1 is a Stewart County General Sessions judgment
document dated April 12, 2016, wherein Father pled guilty to Driving
Without a License (amended from Driving on a Suspended License), with a
notation that accompanying Failure to Appear and Speeding charges were
nolled in settlement. Also included is a Capias/Bench Warrant for Failure
to Appear.
Part 17 of Exhibit 1 is a Petition For Contempt dated December 29,
2014, against Father for failure to pay child support.
The court next considers Exhibit 1, Parts 4, 5, 6, and 7. These
documents provide additional corroboration of some of Father’s behaviors
reflected in the charges and court records detailed above. Part 4 is a
Protective Custody Order dated May 21, 2012, in which [the Child] is
brought into the court’s protective jurisdiction. Part 5 is a Protective
Custody Order dated June 26, 2012, in which [the Child] is brought into the
court’s protective jurisdiction. The court notes that these documents appear
to be duplicative and relate to the same factual events.
***
Mother testified that Father became “physical” after [the Child] was
born. She stated Father “smacked” Haley in the mouth, locked Haley
inside her bedroom closet in 2010 and locked her outside the house twice,
16
once requiring Mother to take Haley a jacket because it was cold. Mother
said she saw Father “pin” the kids to the floor in a violent manner, saw
Father push Haley and Jacob against a wall, saw Father knock Haley to the
floor, saw Father hit Jacob with an open hand “a couple of times,” and said
that this type of discipline would occur “a lot” and “weekly.”
Mother testified that Father was abusive to her also, grabbing her by
the neck after an argument and forc[ing] her to the floor. Mother stated that
Father threatened to “dump her in a well” if she took [the Child] from
[him]. Mother stated that Father was verbally abusive also, calling her and
the children various names, including “whore,” “stupid,” “retarded,”
“b****,” “butt-head,” and “idiots.”
Mother also testified about an incident in July 2014 in which Father
pinned her in her car after an argument, smashed her cell phone, followed
her in his vehicle and stopped her on the road by “spinning out” in front of
her, and took her car keys, forcing her to retreat to a neighbor’s house for
aid. This led to criminal charges against Father.
Brooke confirmed that life with Father was “crazy,” meaning
Father’s parental methods were overly physical and violent.
The court particularly recalls Brooke’s testimony regarding Father’s
“stompings” and confirmed that Father would use his legs and feet to strike
Brooke in a downward motion while Brooke was “curled up” on the floor.
The image this brings to mind is heartbreaking.
Brooke testified that Father would choke her to the point of passing
out. When asked whether this was a unique occurrence, she stated that this
happened “a few times.” Brooke also stated that she saw Father choke
Haley and she witnessed Father assaulting Mother by choking her. Brooke
stated, confirmed by Mother, that she intervened to help Mother by
punching Father.
Dr. Pestrak also corroborated Father’s violent tendencies in relating
an episode that Father told him during Dr. Pestrak’s evaluation. This
episode concerned events occurring just after Father’s sexual abuse had
come to the attention of the authorities, with Father seeking retribution
against [Latisha H.] for the disclosure:
“Q. And what did [Father] admit to you about that?
17
A. Well, when asked about that incident, [Father]
indicated that he was upset with the children of — the
mother of his children, because he believed that she
was coaching them to report sexual abuse against him.
Q. Uh-huh (affirmative)
A. It made him angry enough that he indicated that he got
a gun and was driving to shoot her, and he — he
acknowledged that he would have done so except for
police intervention.
Q. Actual police intervention?
A. Actual police intervention, yes.
Q. Okay.
A. The police — he saw a police car coming opposite of
him knowing his wife had called, assuming his wife
had called, and then he said he threw the gun out of the
car, so when he was stopped, there was nothing to get
in trouble.
Q. Okay.
A. But he said if he had not been stopped, he would have
shot her.”
Dr. Pestrak’s testimony further corroborates Father’s violent
tendencies:
“A. [Father] was very clear about indicating he lost his
temper at le[a]st one time perhaps twice when he
spanked his daughter. And constant physical abuse,
when asked about it, he indicated that was something
that would not happen again and there was no reason
for concern. . . .”
***
18
Brooke also testified to an incident wherein Winter fell off the bed
and suffered a minor injury. Father blamed Haley and Brooke. Brooke
observed Father “stomp” Haley and then he took both girls to a gas station
and dropped them off telling Brooke that [Latisha H.] worked there.
Brooke said [Latisha H.] did not work there and they were left there for
some period of time before being retrieved by Father.
Ms. Timberlake, case manager for [DCS], confirmed that Mother
had told her “several times” that she was “terrified” of Father. She further
stated that her only concern was for [the Child’s] safety should [the Child]
have contact with Father. She stated that she did not know if Mother could
protect her children from Father. She also stated that Mother received
services to enable her to avoid and/or manage domestic violence.
Ms. Monsue, case manager for [DCS] with responsibility for this
case since March 2015 until present, confirmed Mother had been provided
“services” addressing domestic violence issues. She also stated that she
desired Mother to undergo individual counseling due to issues from the
“whole case,” indicating that Mother has experienced significant trauma
from this matter. Ms. Monsue conceded that this counseling, which Mother
has not yet begun, was required of Mother after the filing of the Petition
herein.
In addition to Father’s physical abuse of the children and Mother and
violent tendencies, further evidence of “wanton disregard” of the children’s
welfare can be found in Father’s sexual depredations upon Brooke. These
allegations led to a portion of the criminal charges detailed above and
Father’s two convictions for Child Abuse and Neglect (see discussion
above).
***
Brooke confirmed the sexual encounter incident in which Father
checked her out of school early one afternoon. Brooke stated she was age
12. Father took her home and made her watch pornographic films; Father
made her put a condom on him and sexually penetrated her on the bed. . . .
From all of the foregoing, the court concludes that [DCS] has met its
burden of proof regarding this ground. The proof introduced for this
ground satisfies the clear and convincing standard. Father’s pre-
incarceration actions clearly evidence a “broader pattern of conduct that
renders [Father] unfit or poses a risk of substantial harm to the welfare of
19
the child.” (quoting Justice Koch above [In re Audrey S., 182 S.W.3d at
866]).[3]
(Internal citations to record omitted.)
Upon careful review, we agree with the trial court. It is undisputed that Father
was incarcerated during part of the four months preceding the filing of the termination of
parental rights petition. DCS presented testimony at trial by Mother and Brooke that
Father had physically assaulted Mother, Brooke, Haley, and Jacob. It is undisputed that
Father had not physically harmed the Child. Mother testified and Brooke’s testimony
confirmed that Father had grabbed Mother by the throat on one occasion and pushed her
to the ground. This incident happened in the presence of Brooke and Haley. Brooke and
Mother testified that Brooke tried to intervene to assist Mother. At trial, Father admitted
to putting his hands around Mother’s neck but denied choking her. He indicated that it
only lasted for “a split second.”
Brooke and Mother both testified regarding Father’s abuse of the children.
Brooke related that Father choked her on one occasion and caused her to pass out.
According to Brooke, Father had “stomp[ed]” Brooke, Haley and Jacob on several
occasions. Mother testified that Father had locked Haley in her closet, leaving Haley
home alone as punishment. Mother further indicated that Father had hit the children with
an open hand. Father denied ever stomping or choking the children.
Brooke also testified to sexual abuse perpetrated against her by Father. At the
time of trial, Father was incarcerated on two charges of child abuse that involved Brooke
as the victim. According to Father, he was sentenced to eleven months and twenty-nine
days on each charge to run consecutively.
Despite Father’s denial of the physical and sexual abuse, the trial court found that
Father had abandoned the Child by exhibiting a wanton disregard for the Child based on
the testimony of Mother, the testimony of Brooke, and several exhibits regarding his
criminal charges. Based on the trial court’s findings, we can infer that the trial court
determined Brooke and Mother’s testimony on this issue to be more credible than
Father’s testimony. See In re Sidney J., 313 S.W.3d 772, 777 (Tenn. 2010) (“We may
infer the trial court’s findings on issues of credibility and weight of testimony from the
manner in which the trial court resolved conflicts in the testimony and decided the
case.”). Although no evidence was presented that the Child was physically or sexually
3
We have omitted the trial court’s recitation of certain facts found in the adjudicatory order because we
have concluded that the trial court erred in including those facts in its order regarding the termination of
parental rights proceeding inasmuch as the adjudicatory order was not final for purposes of res judicata
due to the pending appeal.
20
abused by Father, the evidence supports the trial court’s determinations that Father
physically abused Mother, Brooke, Haley, and Jacob and that Father sexually abused
Brooke. This Court has previously concluded that a parent’s sexual abuse against a step-
sibling is sufficient to support a finding of wanton disregard. See In re G.M.H., 2007 WL
1527003, at *3.
Additionally, Mother testified concerning an incident when Father had left the
home with a gun and headed for Latisha H.’s home. Father admitted that he had planned
to “blow her head off.” Father’s statements to Dr. Pestrak included that he would have
shot Latisha H. except for police intervention. However, Father continued to deny that he
had a problem to be addressed in therapy.
Upon a thorough review of the record and excluding any reference to the findings
contained only in the adjudicatory hearing order, we conclude that the evidence does not
preponderate against the trial court’s determination, by clear and convincing evidence,
that Father abandoned the Child in that his actions prior to incarceration constituted a
wanton disregard for the Child’s welfare. Therefore, the trial court did not err by
terminating Father’s parental rights based on this statutory ground.
B. Severe Child Abuse
The trial court also found that Father had severely abused a half-sibling of the
Child, Brooke. A court may terminate the parental rights of a parent if he or she has
committed severe child abuse against the child at issue or a half-sibling of such child.
See Tenn. Code Ann. § 36-1-113(g)(4). Tennessee Code Annotated § 36-1-113(g)(4),
as relevant to this action, provides:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and non-exclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:
***
(4) The parent or guardian has been found to have
committed severe child abuse as defined in § 37-1-102,
under any prior order of a court or is found by the
court hearing the petition to terminate parental rights
or the petition for adoption to have committed severe
child abuse against the child who is the subject of the
petition or against any sibling or half-sibling of such
21
child, or any other child residing temporarily or
permanently in the home of such parent or guardian . .
..
(Emphasis added.) Tennessee Code Annotated § 37-1-102(b)(21) (2015) defines “severe
child abuse,” in relevant part, as: 4
(C) The commission of any act towards the child prohibited by § 39-13-309, §§
39-13-502 – 39-13-504, § 39-13-515, § 39-13-522, § 39-15-302, § 39-15-
402, or § 39-17-1005 or the knowing failure to protect the child from the
commission of any such act towards the child[.]
Tennessee Code Annotated § 39-13-503 (2014) provides in relevant part:
(a) Rape is unlawful sexual penetration of a victim by the defendant or
of the defendant by a victim accompanied by any of the following
circumstances:
(1) Force or coercion is used to accomplish the act; [or]
(2) The sexual penetration is accomplished without the consent
of the victim and the defendant knows or has reason to know
at the time of the penetration that the victim did not consent[.]
Tennessee Code Annotated § 39-15-302 (2014) further provides in pertinent part:
(a) A person commits incest who engages in sexual penetration as
defined in § 39-13-501, with a person, knowing the person to be,
without regard to legitimacy:
(1) The person’s natural parent, child, grandparent, grandchild,
uncle, aunt, nephew, niece, stepparent, stepchild, adoptive
parent, adoptive child[.]
A judicial finding of severe child abuse has several statutory consequences to a
parent. This Court has elucidated those consequences as follows:
4
Effective July 1, 2016, the General Assembly amended this section, modifying Tennessee Code
Annotated § 37-1-102(b)(21) to Tennessee Code Annotated § 37-1-102(b)(22). See 2016 Pub. Acts Ch.
979 § 5 (S.B. 2121). We will cite to the version in effect at the time the petition was filed in September
2015.
22
A finding of severe abuse triggers other statutory provisions,
including a prohibition on returning the child to the home of any person
who engaged in or knowingly permitted the abuse absent consideration of
various reports and recommendations. Tenn. Code Ann. § 37-1-130(c).
Even with such consideration,
No child who has been found to be a victim of severe child
abuse shall be returned to such custody at any time unless the
court finds on the basis of clear and convincing evidence that
the child will be provided a safe home free from further such
brutality and abuse.
Tenn. Code Ann. § 37-1-130(d). Further, Tenn. Code Ann. § 37-1-
130(g)(4)(A) provides that reasonable efforts to reunify a family are not
required to be made if a court has determined that a parent has subjected the
child or a sibling to severe child [abuse].
The most serious consequence of a finding that a parent has
committed severe child abuse is that such a finding, in and of itself,
constitutes a ground for termination of parental rights. Tenn. Code Ann. §
37-1-130(g)(4) (“the parent or guardian has been found to have committed
severe child abuse as defined in § 37-1-102, under any prior order of a
court.”)[.] The ground itself is proved by a prior court order finding severe
child abuse, and the issue of whether abuse occurred is not re-litigated at
the termination hearing.
In re Samaria S., 347 S.W.3d at 201 (quoting Dep’t of Children’s Servs. v. M.S. & J.S.,
No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8,
2005)).
In its final judgment, the trial court made the following specific findings of fact
regarding the statutory ground of severe child abuse:
The court also finds that Brooke’s testimony in this hearing is
sufficient proof to conclude that Brooke is a victim of severe abuse at the
hands of Father. Her testimony, as discussed under Ground 3 [wanton
disregard] above, was clear and convincing that Father engaged in unlawful
sexual penetration of Brooke accompanied by coercion, and/or without her
consent, and that Father had reason to know that she did not consent.
The court further finds that Brooke is a “sibling or half-sibling” to
[the Child].
23
Accordingly, [DCS] has met its burden of proof under this ground as
to Father.
***
Father was found by this court to have committed severe abuse on [the
Child’s] siblings or half-siblings, who were living in the home with [the
Child]. While the Adjudicatory Order was appealed to Circuit Court, this
appeal is still pending and this court further finds that the proof introduced
herein is sufficient, independent of the Adjudicatory Order, to sustain such
finding.5
(Internal citations omitted.)
Upon careful review of the record, we agree with the trial court. It is undisputed
that Brooke E. is a half-sibling of the Child. Brooke testified regarding the sexual abuse
perpetrated against her by Father while she was in his custody. Brooke related that while
alone in the home with Father, he made her watch a pornographic video, put a condom on
him, and take off her clothing. Brooke reported that Father’s private parts touched her
private parts. According to Brooke, when she expressed to Father that she did not wish to
participate, he stated to her “that it was normal, that that’s what parents and kids do.”
Father denied the allegations that he had sexually abused Brooke, insisting that she
lied because she wanted to live with her mother, Latisha H. Despite Father’s denial,
clearly the trial court found Brooke’s testimony on this issue to be more credible than
Father’s based on the trial court’s resolution of the conflicts in testimony. See In re
Sidney J., 313 S.W.3d 772, 777 (Tenn. 2010) (“We may infer the trial court’s findings on
issues of credibility and weight of testimony from the manner in which the trial court
resolved conflicts in the testimony and decided the case.”). Furthermore, Father testified
that he proceeded to trial on criminal charges of rape of a child and sexual battery by an
authority figure as to Brooke. Consequently, Father was convicted of two counts of child
abuse and neglect.
Upon a thorough review of the record and excluding any reference to the facts
contained only in the adjudicatory hearing order, we conclude that the evidence does not
preponderate against the trial court’s determination, by clear and convincing evidence,
5
We have again omitted the trial court’s recitation of certain facts found in the adjudicatory order because
we have concluded that the trial court erred in including those facts in its order regarding the termination
of parental rights proceeding.
24
that Father severely abused Brooke, a half-sibling of the Child. Therefore, the trial court
did not err by terminating Father’s parental rights based on this statutory ground.
VI. Best Interest of the Child
In addition to generally arguing that DCS failed to meet its burden of proof to
terminate Father’s parental rights, Father contends that the trial court erred by terminating
only his parental rights and not terminating Mother’s parental rights. According to
Father, error lay in the termination of only his parental rights because there is no
possibility of an adoptive Father. Father ostensibly argues that because an adoption is not
imminent, termination of his rights is prohibited. When termination of both parents’
rights is sought by a petitioner with the intent of adoption, there is no statutory bar that
prohibits the trial court from terminating one parent’s parental rights while denying
termination of the other parent’s parental rights. See Tenn. Code Ann. § 36-1-113.
However, whether only one parent’s parental rights should be terminated may be an
appropriate consideration in the best interest analysis. See, e.g., In re Liam S., No.
E2016-02461-COA-R3-CV, 2017 WL 4422342, at *11 (Tenn. Ct. App. Oct. 4, 2017); In
re D.A.P., No. E2007-02567-COA-R3-PT, 2008 WL 2687569, at *8 (Tenn. Ct. App. July
9, 2008).
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child
diverge, and the focus shifts to what is in the child’s best interest. See In re Audrey S.,
182 S.W.3d at 877; see also In re Carrington H., 483 S.W.3d at 523 (Tenn. 2016) (“‘The
best interests analysis is separate from and subsequent to the determination that there is
clear and convincing evidence of grounds for termination.’”) (quoting In re Angela E.,
303 S.W.3d 240, 254 (Tenn. 2010)). Tennessee Code Annotated § 36-1-113(i) provides a
list of factors the trial court is to consider when determining if termination of parental
rights is in a child’s best interest. This list is not exhaustive, and the statute does not
require the court to find the existence of every factor before concluding that termination
is in a child’s best interest. See In re Carrington H., 483 S.W.3d at 523; In re Audrey S.,
182 S.W.3d at 878 (“The relevancy and weight to be given each factor depends on the
unique facts of each case.”). Furthermore, the best interest of a child must be determined
from the child’s perspective and not the parent’s. White v. Moody, 171 S.W.3d 187, 194
(Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and
25
in the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social
services agencies for such duration of time that lasting
adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is
likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances or controlled substance analogues as
may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent
or guardian from effectively providing safe and stable care
and supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by
the department pursuant to § 36-5-101.
As our Supreme Court recently explained regarding the best interest analysis:
26
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d at 254.
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest [s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child . . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
27
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., ____ S.W.3d ____, No. E2016-00139-SC-R11-PT, 2017 WL
4324959, at *15 (Tenn. Sept. 29, 2017).
In its final judgment, the trial court provided the following findings of fact
regarding the best interest analysis:
Factor One. The court concludes that Father has not made an
adjustment of circumstance, conduct or conditions as to make it safe for
[the Child] to be returned home. Father is in jail for child abuse against his
own children. This court found, and so finds today, that Father committed
severe abuse against [the Child’s] siblings or half-siblings. Father
continues to run afoul of the law, to wit: there are pending domestic abuse
charges against Father with regard to Mother. No proof was introduced
that tended to show that Father has changed any of the conditions that have
led us to this point. He does not take responsibility for his actions; he has
expressed no remorse for his actions; he has not completed any type of
mental health counseling or parenting counseling (Dr. Pestrak testified
convincingly that Father is a poor candidate for counseling, in that Father
does not feel that anything is wrong or in need of counseling to repair); he
has not addressed his anger issues; he has a tendency, displayed strikingly
at this hearing, to minimize his actions and the consequences of his actions;
he has not prepared a home for the return of [the Child]; he is divorced
from [the Child’s] mother and there is not any type of parenting plan or
arrangement regarding the care, custody or control of [the Child] should
Father regain custody; his posture at this hearing was one of supporting the
return of [the Child] to Mother rather than return to him.
Factor Two. Father has completely failed to effect any type of
lasting adjustment after reasonable efforts by [DCS]. As detailed above,
Father has failed to complete any type of mental health counseling or
parenting counseling. He has not addressed his significant anger issues.
Although proof of [DCS’s] efforts are spare, Exhibit 2 makes it clear that
[DCS] arranged for a psychosexual evaluation of Father soon after this
matter arose. The results of the evaluation point out the need for mental
health counseling or treatment and therapy to address anger issues.
Although the evaluation seems to cast doubt upon the eventual success of
Father’s therapy, the court finds that Father did not complete, perhaps even
start, any therapy to address any of his needs. Ms. Timberlake testified that
28
contact with Father was difficult at best, perhaps non-existent save for
letters sent to Father’s attorney. She testified that Father accepted no
services offered. While Ms. Monsue did not address her interactions with
Father, the court would note that she was assigned the case in March 2015,
well after [the Child] was removed.
Factor 3. There was no proof that Father has visited with [the Child]
since he came into custody. There is a no contact order still in place
preventing contact. Accordingly, this factor must not sway against Father.
The court would note, however, that Father made no attempt to address the
underlying issues preventing contact.
Factor 4. There was no proof regarding a meaningful relationship
between Father and [the Child]. Because [the Child] was removed from
Mother’s custody several years ago, Father has not maintained any type of
relationship with [the Child].
Factor 5. There was no additional proof introduced regarding how
[the Child] might be affected if his caretakers were changed. However, a
change from the foster family to Father would be detrimental to [the Child]
for the reasons outlined above. Father is not ready for [the Child] and has
not addressed, at all, any of the issues which led to the state’s intervention
in his life. Further, a change from the foster family to any new caregiver
would be likely to negatively affect [the Child]. [The Child] has been
living with the same resource family since he was removed. The resource
father testified that he was “1000%” in favor of adopting [the Child]. Ms.
Monsue testified that [the Child] was happy in his placement and indicated
that [the Child] wished to continue to live there. Obviously, a change in
caretakers would have some effect on [the Child], presumably negative.
Factor 6. Father was found by this court to have committed severe
abuse on [the Child’s] siblings or half-siblings, who were living in the
home with [the Child]. While the Adjudicatory Order was appealed to
Circuit Court, this appeal is still pending and this court further finds that the
proof introduced herein is sufficient, independent of the Adjudicatory
Order, to sustain such finding.
Factor 7. There was no proof offered as to Father’s present home or
whether such home would be a safe and stable home. From the entirety of
the proof, the court would conclude that Father has not provided such a
home. He is currently in jail and has not had custody of his children for
29
several years. Further, Father continues to engage in activities that attract
the attention of the police, to wit: pending domestic violence charges.
Factor 8. The court is concerned about Father’s mental and/or
emotional state. The court finds that such would present a clear danger to
[the Child’s] well being and Father would not be able to provide safe and
stable care and supervision to [the Child]. Dr. Pestrak’s evaluation and his
testimony during the Adjudicatory Hearing contain cautionary language in
regard to Father’s mental state. Dr. Pestrak testified that Father has
narcissistic traits, tends to minimize his own behavior, is not a fit subject
for counseling, has anger issues (recall Dr. Pestrak’s harrowing recounting
of Father arming himself with a shotgun to kill [Latisha H.]), has difficulty
in being empathic to others, puts his own needs before others, has difficulty
in recognizing needs of others, and has “significant characterological
problems, which are largely going to be manifested by inappropriate
expression of anger . . . .” To say the least, these are traits not associated
with successful parenting. Father’s psychosexual evaluation also points out
concerning mental issues of Father. Dr. Pestrak states that Father “engaged
in some efforts to slant his responses in an overly positive manner”, has a
“clear tendency to minimize and deny negative personal traits and
mistakes”, is “less than willing to face his negative emotions and personal
issues”, he tends to “deny them while externalizing blame and engaging in
some distorted reasoning as a feeble defense”, and concludes by stating that
“any return of the children to [Father’s] care be coordinated with evidence
of progress in his ability to process significant anger when it arises.” These
are significant conclusions by a seasoned mental health professional.
Factor 9. There was no proof showing that Father has failed to pay
child support. All proof showed he has made regular payments as required.
Accordingly, considering the totality of the foregoing, the court
concludes that it is in [the Child’s] best interests for Father’s parental rights
to be terminated.
(Internal citations to record omitted.)
The trial court considered a number of factors as listed above in its findings of fact
and conclusions of law. The trial court found that Father had severely abused Brooke, a
half-sibling of the Child. Both Mother and Brooke testified to extensive physical abuse
by Father toward Mother, Brooke, Haley, and Jacob. Based on the evidence presented,
no meaningful relationship existed between Father and the Child. We note that a no-
contact order has prohibited contact between Father and the Child.
30
Based on the record, there is no reasonable expectation that reunification with
Father would occur in the near future. Father was incarcerated at the time of trial on two
convictions of child abuse against Brooke. Father continued to deny responsibility for
the abuse and failed to admit that he had an anger problem, which, according to Dr.
Pestrak, made it unlikely that Father would succeed in therapy in addressing his issues.
Foster Father’s testimony demonstrated that the Child was doing well in his home and
that the foster parents wished to adopt the Child should the Child become available for
adoption.
We note that, as the sole best interest factor weighing in favor of preserving
Father’s parental rights, the Child’s loss of a right to future child support from Father
may be a proper consideration in some cases. In re Audrey S., 182 S.W.3d at 879-80 (“In
some cases, the child’s loss of a legally enforceable right to future support from a parent
is an appropriate consideration in deciding whether termination is in the child’s best
interests.”). However, the factor is not relevant in every case. See id. The Court in
Audrey S. recognized that no court order existed to prevent the parent from providing
future support for the child and that the parent had a consistent pattern of failing to pay
child support. See id. This Court ultimately determined that termination was in the
Child’s best interest and that “refusing to terminate [the parent’s] parental rights in the
name of protecting an abstract legal right of [the children] to receive future monetary
support from [the parent] would do nothing to advance the best interests of these
children.” See id.
In the present matter, Father testified that he does provide child support for the
Child. It is unclear from the record whether the Child received social security benefits as
a result of Father’s disability or whether Father’s disability benefits were garnished and
sent directly to the state for child support while the Child remained in foster care. Father
has made no argument regarding child support or whether such support would cease if his
rights were terminated. We note, as in In re Audrey S., 182 S.W.3d at 879-80, that there
is no court order that would prevent Father from continuing to provide monetary support
for the Child. The trial court considered that DCS had not proven that Father failed to
pay support for the Child but determined that when considering the applicable factors, it
was in the best interest of the Child for Father’s parental rights to be terminated. Upon a
thorough review of the record and considering all the statutory factors regarding best
interest, we determine that the evidence does not preponderate against the trial court’s
finding, upon a clear and convincing standard, that termination of Father’s parental rights
to the Child was in the Child’s best interest.
31
VII. Conclusion
We reverse the trial court’s finding of clear and convincing evidence of the
statutory ground of persistence of conditions. We affirm the trial court’s judgment in all
other respects, including the termination of Father’s parental rights to the Child. Costs on
appeal are assessed equally to the appellant, Toby E., and the appellee, Tennessee
Department of Children’s Services. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court’s judgment terminating Father’s
parental rights to the Child and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
32
| {
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Docket No. 100493.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
PHILBERT PENDLETON, Appellee.
Opinion filed December 21, 2006.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
and Garman concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
Pursuant to a plea agreement, defendant, Philbert Pendleton, pled
guilty in the circuit court of Ogle County to two counts of home
invasion and two counts of aggravated criminal sexual assault. In
exchange for the guilty pleas, the State agreed not to charge petitioner
with an unrelated offense. No agreement was reached as to sentence.
The circuit court subsequently sentenced defendant to consecutive
terms of 15 years for the first count of home invasion, 30 years for the
second, and 30 years for one of the aggravated criminal sexual assault
counts. Neither a postjudgment motion nor a notice of appeal was
filed. Nearly a year after sentencing, defendant filed a pro se
postconviction petition. Counsel was appointed for defendant and
subsequently filed an amended petition on his behalf. The circuit court
denied defendant postconviction relief, and he appealed. The appellate
court reversed and remanded. 356 Ill. App. 3d 863. The appellate
court found that an admonishment issue, which was raised for the first
time on appeal, had been forfeited, but the court concluded that
remand was nonetheless necessary because postconviction counsel
had rendered deficient, unreasonable assistance in postconviction
proceedings. 356 Ill. App. 3d at 870-71. We allowed the State’s
petition for leave to appeal (177 Ill. 2d R. 315(a)), and now reverse
the judgment of the appellate court. The following facts are pertinent
to our disposition.
BACKGROUND
On August 31, 2001, defendant pled guilty to two counts of home
invasion (720 ILCS 5/12–11(a)(2) (West 2000)) and two counts of
aggravated criminal sexual assault (720 ILCS 5/12–14(a)(2), (a)(5)
(West 2000)) in exchange for the State’s agreement not to charge him
with an unrelated offense he allegedly committed in 1997. No
agreement was reached as to sentence.
Prior to taking defendant’s guilty pleas, the circuit court
conducted meticulous inquiries and admonishments pursuant to
Supreme Court Rule 402 (177 Ill. 2d R. 402) in order to ensure that
defendant’s guilty pleas were informed, knowing, and voluntary. We
set forth, at length, portions of the colloquy between defendant and
the court.
The circuit court first asked defendant if he was “in good health
physically and mentally,” to which defendant responded affirmatively.
Defendant said he was not taking any prescription drugs or
medication. The court then read the charges to defendant and asked
if he understood them. Defendant indicated he understood; in fact, he
took exception to the language of count I, and that charge was
amended to comport with defendant’s version of events.
Thereafter, sentencing options were explained to defendant. The
court told defendant:
“First three [counts] you could be subject to an extended
term in the Department of Corrections, also that would be
from 30 to 60 years based on the aggravating factor of the age
-2-
of the victims being over 60 years ***. There is a minimum
mandatory six-year prison sentence involved in regard to all of
these offenses, do you understand that?”
Defendant indicated he understood. The court then advised defendant
“there would be a three year mandatory supervised release period”
upon his release from prison. Defendant again indicated he
understood. Pursuant to the State’s request, the court addressed the
possibility of consecutive sentencing:
“THE COURT: Mr. Pendleton. If, in fact, it is determined
that under Counts II and III, were [sic] part of a single course
of conduct, there’s no substantial change in the criminal
objective, and whether there is either severe bodily injury or
criminal sexual assault then under Counts II and III it would
be required of me if those findings are shown at the sentencing
hearing [that] you receive consecutive sentences, that means
one sentence ends, the other begins, you will not serve them
at the same time. Do you understand that?
THE DEFENDANT: Yes, sir.
***
THE COURT: Also discretionary consecutive sentences
in regard to all charges, that would be up to the court at the
time of the sentence, do you understand that?
THE DEFENDANT: Yes, sir.”
After giving defendant those admonishments, the court proceeded,
first, to inform defendant of the rights he would give up by pleading
guilty and, second, to ascertain that defendant had consulted with
counsel:
“THE COURT: All right. You also understand that if you
plead guilty today you give up certain rights? You give up the
right to have a trial before a judge or jury; you give up the
right to meet and confront the witnesses against you and
present evidence in your own behalf; and the right to remain
silent and make the State prove this charge against you
beyond a reasonable doubt. Do you understand the rights
you’d be giving up today if you plead guilty?
THE DEFENDANT: Yes, sir.
-3-
THE COURT: Do you understand there will be no trial in
any of these charges if you plead guilty?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Have you had a chance to talk to
[defense counsel] about this?
THE DEFENDANT: Yes, sir.
THE COURT: And you’ve had some considerable time
with him talking about it over the days?
THE DEFENDANT: Yes.
THE COURT: Do you have any other questions you want
to ask [defense counsel] today before we proceed any further?
THE DEFENDANT: No, sir.
THE COURT: You have a clear understanding where
we’re at right now?
THE DEFENDANT: Yes, sir.”
With that, the court asked defendant, successively, with respect to
each charge, how he pled, guilty or not guilty. Defendant, without
hesitation, pled guilty to each charge. The court then asked defendant
whether he was pleading guilty to each of those charges of his “own
free will,” and defendant again responded affirmatively. When asked
if anyone had threatened him to get him to plead guilty, defendant
stated, “Not at all.” When the court inquired whether there had been
any promises made to him to get him to plead guilty, defendant
responded negatively. At that point in the proceedings, the State
interrupted for purposes of clarification, noting the State’s agreement
not to charge defendant with an unrelated offense he allegedly
committed in 1997. The court then asked defendant, “That’s been told
to you Mr. Pendleton?” Defendant confirmed that was part of the plea
agreement.
At the court’s request, the prosecutor provided a factual basis as
to each charge. Defense counsel stipulated that would be the State’s
evidence. Thereupon, the circuit court found factual bases for the
guilty pleas, found that the defendant’s pleas were knowing and
voluntary, and accepted defendant’s guilty pleas, setting the matter
over for a sentencing hearing.
Since defendant raised no sentencing issue in the appellate court,
-4-
and he advances no claim of sentencing error in briefs or oral
argument before this court, there is no need to recount the events of
defendant’s sentencing hearing. Suffice it to say that a sentencing
hearing was conducted on November 8, 2001, and, at the conclusion
of that hearing, the circuit court imposed a 75-year aggregate prison
sentence, consisting of consecutive terms of 15 years for the first
home invasion count, 30 years for the second home invasion count,
and 30 years for one of the aggravated criminal sexual assault counts.
After sentencing defendant, the circuit court advised him as follows:
“You have the right to appeal the sentence which I have
imposed here today. You have the right to ask me to
reconsider the sentence. You have the right to file a motion
within 30 days and [defense counsel] can assist you in that. If
you want me to reconsider the sentence, you file the motion
within 30 days.
If you want to appeal the sentence you have the right to
have a lawyer and a transcript of everything I’ve done here. If
you can’t afford those you can have those free of charge.
Any claim of error that you want to raise on appeal has to
be put into that written motion filed within the next 30 days or
you can’t bring it up on appeal. That’s all for today.”
Defendant did not file a postjudgment motion or a notice of
appeal. However, the common law record indicates that defendant
sent a letter to the circuit clerk of Ogle County in June of 2002,
inquiring about the status of his appeal. In that letter, defendant stated
that he had instructed his public defender “to appeal” his “conviction
and sentence.” Defendant said he had not heard from the Office of the
State Appellate Defender and he was thus “concerned” because he did
not know whether his case was “under appeal.” Defendant asked the
circuit clerk to send him a status report of his case. In his letter of
June 2002, defendant did not mention a motion to withdraw guilty
plea or suggest that he had asked trial counsel to file one.
The next document appearing in the common law record is
defendant’s pro se postconviction petition, which bears a file stamp of
October 30, 2002. In that petition, defendant alleged that improper
evidence was presented at his sentencing hearing and that trial counsel
was ineffective insofar as counsel did not object to that evidence.
-5-
Defendant also claimed he had “informed his counsel that he wished
to withdraw his guilty plea and *** asked counsel to file the
appropriate papers.” He contended, inter alia, that trial counsel “was
ineffective *** for failing to file a motion to withdraw and vacate his
guilty plea.” Defendant did not suggest that his guilty pleas were not
knowingly and voluntarily entered. He did not specify any basis for
withdrawal of his guilty plea.
The circuit court appointed counsel to represent defendant, and,
on April 21, 2003, counsel filed an amended postconviction petition
on defendant’s behalf. At the time he submitted defendant’s amended
postconviction petition, counsel filed a certificate of compliance
pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). The
certificate recited that counsel had (1) consulted with the defendant
“to ascertain his contentions of deprivation of constitutional right,” (2)
“examined the record of the proceedings at the trial,” and (3) “made
any necessary amendments to the petition filed pro se.” In the
amended petition, counsel “incorporate[d] all allegations contained in
the previously filed pro se petition” and, “in addition to” those
allegations, alleged that trial counsel had rendered ineffective
assistance insofar as counsel had (1) failed to provide sufficient
information to an expert psychologist who testified for the defense at
the sentencing hearing; and (2) allowed defendant to testify at the
sentencing hearing that he had committed other uncharged criminal
offenses. Neither the original petition, nor the amended petition, raised
an admonishment issue. The State filed an answer to the petitions,
requesting dismissal of the petitions and “such other relief as is just.”
At a May 21, 2003, hearing on defendant’s petitions–conducted
by the same judge who had taken defendant’s plea and had
subsequently sentenced him–postconviction counsel first confirmed
that the circuit court had before it transcripts from defendant’s guilty
plea and subsequent sentencing, and then asked the court to take
judicial notice of those transcripts. Counsel, with defendant present,
indicated he would present no additional evidence and would confine
his argument to points in the amended petition relating to defendant’s
sentencing hearing. With respect to defendant’s original, pro se
petition, counsel stated:
“Mr. Pendleton’s original petition is incorporated herein, and
we would rest on the argument made in the memorandum of
-6-
law in support of that post-conviction petition as signed and
sworn to by Mr. Pendleton.”
In the memorandum supporting his pro se postconviction petition,
defendant argued only sentencing error, and the only relief he
requested was an “evidentiary hearing or a new sentencing hearing.”
After counsel finished his argument on points raised in the amended
petition, the State responded by first addressing matters raised in
defendant’s pro se petition:
“I’m going to start at the beginning of the first petition that
was filed by Mr. Pendleton, if I could go in order. As to 2(a)
[of the pro se petition], the allegation that it is a violation of
his rights that after the plea was entered and the sentence
imposed that he informed his counsel he wished to withdraw
his guilty plea and that he asked counsel to file the appropriate
papers. I know [postconviction counsel] did not argue these
two points in this petition directly. However, because my
understanding is that they still remain a part of this petition, I
do want to at least briefly address them.”
Citing this court’s decision in People v. Edwards, 197 Ill. 2d 239
(2001), the State argued it is not enough for a defendant in the second
stage of postconviction proceedings to simply allege that he asked trial
counsel to file a motion to withdraw his guilty plea and pursue an
appeal, and that counsel failed to do so. Quoting from Edwards, the
State noted that such a defendant must provide “some explanation of
the grounds that could have been presented in the motion to withdraw
the plea.” See Edwards, 197 Ill. 2d at 257-58. With that observation,
the State went on to address claims of ineffective assistance of counsel
related to defendant’s sentencing, the focus of both the pro se
postconviction petition and the amended petition.
In response, postconviction counsel argued, inter alia, that
Edwards does not control the result in this case because Edwards
involved disposition of a defendant’s postconviction petition during
the first stage of postconviction proceedings, i.e., pronouncements
regarding subsequent stages were not necessary to the court’s
disposition.
The circuit court took the matter under advisement and, in an
order entered June 16, 2003, denied defendant’s request for
-7-
postconviction relief. The court’s order notes that one of the issues
presented at the May 21 hearing concerned trial counsel’s alleged
failure to “file a motion to withdraw the Defendant’s guilty plea after
being requested to do so.” Citing this court’s decision in Edwards, the
circuit court observed:
“Defendant has failed to present any basis, assert any grounds
or present any evidence by which a motion to withdraw plea
of guilty would be successful. The Defendant’s claim in this
respect is not supported by the pleadings or the evidence and
will be denied.”
The circuit court also rejected defendant’s other claims of ineffective
assistance, which were based on trial counsel’s conduct at sentencing.
Defendant appealed, abandoning all of the arguments raised in his
postconviction petitions. Instead, defendant argued for the first time
that, after he pled guilty and was sentenced, the trial court failed to
properly admonish him pursuant to Supreme Court Rule 605(b) and
that he is, therefore, entitled to a new hearing for proper Rule 605(b)
admonishments. 356 Ill. App. 3d at 864. Defendant further contended
that his postconviction counsel rendered “ineffective” assistance
insofar as he failed to include the admonishment issue in the amended
petition. 356 Ill. App. 3d at 864.
Acknowledging our recent decision in People v. Jones, 213 Ill. 2d
498 (2004), the appellate court first noted that defendant had forfeited
his admonishment issue. 356 Ill. App. 3d at 864, 868-69. In Jones, a
case involving a pro se defendant and summary dismissal of a
postconviction petition at the first stage of postconviction
proceedings, we reiterated the general rule that claims not raised in a
postconviction petition cannot be argued for the first time on appeal.
Notwithstanding defendant’s forfeiture of the issue, the appellate
court in this case went on to consider and purportedly decide the
admonishment issue, “indirectly,” concluding, in the early portion of
the opinion, that “postconviction counsel was ineffective for failing to
raise the admonishment issue in the [amended] petition.” 356 Ill. App.
3d at 864. In the latter part of the appellate court’s opinion, the court
also appeared to fault postconviction counsel for not raising trial
counsel’s ineffectiveness in “failing to preserve defendant’s right to a
direct appeal.” 356 Ill. App. 3d at 870-71. That separate and distinct
-8-
assessment–rendered on an issue defendant had not even raised on
appeal–appears to be proffered as both an independent indicator of
postconviction counsel’s allegedly deficient representation, and as an
analytical bridge to salvage defendant’s forfeited admonishment issue.
Notwithstanding counsel’s certificate of compliance, which indicates
that counsel fulfilled his obligations under Rule 651(c), the appellate
court opined that counsel’s review of the prior proceedings in the case
was deficient, as the court’s concluding remarks indicate:
“Despite the certification by postconviction counsel, we
conclude that defendant did not receive the reasonable level of
assistance of counsel required by the Act. In defendant’s pro
se petition, he stated that ‘after the plea was entered and
sentences imposed, defendant informed his [trial] counsel that
he wished to withdraw his guilty plea and defendant asked
counsel to file the appropriate papers.’ This assertion alone
should have alerted postconviction counsel that trial counsel
might have been ineffective for failing to preserve defendant’s
right to a direct appeal. As discussed, Rule 605
admonishments are a necessary antecedent to the filing of such
an appeal. [Citation.] We believe that a reasonable review of
the guilty plea proceedings would have disclosed that the trial
court’s admonishments were inadequate under Rule 605(b), a
point conceded by the State on appeal. Such a review of the
guilty plea proceedings is mandated by Rule 651(c) and, in any
event, would be necessary to an investigation of defendant’s
pro se claim of his trial counsel’s ineffectiveness. Under these
circumstances, we conclude that postconviction counsel
rendered unreasonable assistance and that defendant is entitled
to an opportunity to move to withdraw his guilty plea.” 356
Ill. App. 3d at 870-71.
As we will explain hereafter, we find the appellate court’s
reasoning flawed, as it ignores established principles of procedural
default and it fails to follow established law governing the scope of
postconviction counsel’s duties. Thus, we cannot subscribe to the
court’s conclusions or affirm its judgment.
ANALYSIS
-9-
The Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq.
(West 2000)) provides a means by which a defendant may challenge
his conviction or sentence for violations of federal or state
constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183 (2005).
To be entitled to postconviction relief, a defendant must show that he
has suffered a substantial deprivation of his federal or state
constitutional rights in the proceedings that produced the conviction
or sentence being challenged. Whitfield, 217 Ill. 2d at 183. Rule 605
admonishments are “not constitutionally required as a matter of due
process.” People v. Breedlove, 213 Ill. 2d 509, 519 (2004).
In cases not involving the death penalty, the Act provides for
postconviction proceedings that may consist of as many as three
stages. At the first stage, the circuit court has 90 days to review a
petition and may summarily dismiss it if the court finds it is frivolous
and patently without merit. 725 ILCS 5/122–2.1(a)(2) (West 2000).
If the petition is not dismissed within that 90-day period, the circuit
court must docket it for further consideration. 725 ILCS 5/122–2.1(b)
(West 2000).
At the second stage of postconviction proceedings, counsel may
be appointed for defendant, if defendant is indigent. 725 ILCS
5/122–4 (West 2000). Counsel’s duties, pursuant to Rule 651(c),
include consultation with the defendant to ascertain his contentions of
deprivation of constitutional right, examination of the record of the
proceedings at the trial, and amendment of the petition, if necessary,
to ensure that defendant’s contentions are adequately presented. 134
Ill. 2d R. 651(c). Fulfillment of the third obligation does not require
counsel to advance frivolous or spurious claims on defendant’s behalf.
People v. Greer, 212 Ill. 2d 192, 205 (2004). Moreover, “[p]ost-
conviction counsel is only required to investigate and properly present
the petitioner’s claims.” (Emphasis in original.) People v. Davis, 156
Ill. 2d 149, 164 (1993); see also People v. Vasquez, 356 Ill. App. 3d
420, 425 (2005). We note that a defendant in postconviction
proceedings is entitled to only a “reasonable” level of assistance,
which is less than that afforded by the federal or state constitutions.
People v. Munson, 206 Ill. 2d 104, 137 (2002).
After counsel has made any necessary amendments to the petition,
the State may move to dismiss a petition or an amended petition
pending before the court. 725 ILCS 5/122–5 (West 2000). If that
-10-
motion is denied, or if no motion to dismiss is filed, the State must
answer the petition, and, barring the allowance of further pleadings by
the court, the proceeding then advances to the third stage, a hearing
wherein the defendant may present evidence in support of the petition.
725 ILCS 5/122–6 (West 2000).
Throughout the second and third stages of a postconviction
proceeding, the defendant bears the burden of making a substantial
showing of a constitutional violation. People v. Coleman, 206 Ill. 2d
261, 277 (2002); Edwards, 197 Ill. 2d at 246. At the second stage of
proceedings, all well-pleaded facts that are not positively rebutted by
the trial record are to be taken as true, and, in the event the circuit
court dismisses the petition at that stage, we generally review the
circuit court’s decision using a de novo standard. People v. Childress,
191 Ill. 2d 168, 174 (2000). When a petition is advanced to a third-
stage, evidentiary hearing, where fact-finding and credibility
determinations are involved, we will not reverse a circuit court’s
decision unless it is manifestly erroneous. Childress, 191 Ill. 2d at
174. If no such determinations are necessary at third stage, i.e., no
new evidence is presented and the issues presented are pure questions
of law, we will apply a de novo standard of review, unless the judge
presiding over postconviction proceedings has some “special expertise
or familiarity” with the trial or sentencing of the defendant and that
“familiarity” has some bearing upon disposition of the postconviction
petition. See People v. Caballero, 206 Ill. 2d 65, 87-88 (2002).
Before we proceed further in our analysis, we will first summarize
the circumstances of defendant’s case. The circuit court advanced
defendant’s petition to the second stage of postconviction
proceedings, thus affording defendant the advantages of appointed
counsel. Clearly, postconviction counsel examined defendant’s pro se
petition and the record–in particular the transcript of the sentencing
hearing–in the course of filing an amended petition that expanded
upon the sentencing issues which were the focus of defendant’s pro
se petition, and in arguing those sentencing issues to the circuit court.
The transcript of the sentencing hearing concluded with the Rule 605
admonishments at issue: admonishments that were adequate to apprise
defendant of the steps necessary to preserve and appeal the sentencing
issues which he ultimately raised in postconviction proceedings, but
were inadequate to advise defendant of the procedure for challenging
-11-
his plea of guilty, if that is what defendant intended to do.
The circuit court properly advised defendant that he had to first
file a motion to reconsider the sentence if he wanted to appeal his
sentence. Defendant does not suggest that he ever asked trial counsel
to do that. Although the circuit court did not advise defendant that he
had to file a motion to withdraw his guilty plea if he wanted to
challenge some other aspect of the proceeding, since defendant claims
that he directed trial counsel to file that very motion, it is difficult to
discern how defendant would have been prejudiced by the court’s
incomplete admonishment.
In either case, as the appellate court acknowledged, even a liberal
reading of defendant’s petitions reveals no reference to an
admonishment issue in either the defendant’s pro se petition or the
amended petition. 356 Ill. App. 3d at 869. As noted, there is an
allegation in defendant’s pro se petition that defendant directed trial
counsel to file a motion to withdraw guilty plea, and counsel failed to
do so, but that allegation bears no rational relationship to an
admonishment issue, given the circumstances of this case. The
admonishment issue aside, we emphasize that defendant’s pro se
postconviction petition was only a page and a half in length. It seems
unlikely that postconviction counsel could have overlooked any issue
therein. If, as is the case here, counsel chose not to include a certain
claim from defendant’s pro se petition in an amended petition, one
might well infer that counsel made a decision not to pursue it.
In any event, we need not resolve this case on the merits of
defendant’s arguments because defendant has forfeited the
admonishment issue under general principles of procedural default.
Pursuant to principles set forth in our analyses in Jones and Davis, the
admonishment issue is forfeited because defendant did not raise the
issue in either his pro se petition or an amended petition. See Jones,
213 Ill. 2d at 505 (observing that “this court has generally held that a
claim not raised in a petition cannot be argued for the first time on
appeal”); Davis, 156 Ill. 2d at 158-60 (stating that “[a]ny claim of
substantial denial of constitutional rights not raised in the original or
an amended petition is waived”). Defendant did not claim in either his
pro se petition or his amended petition that the Rule 605
admonishments given him were inadequate. Thus, that issue is
forfeited. As we noted in Jones, “our appellate court has repeatedly
-12-
overlooked the waiver language of [the Act] and has addressed claims
raised for the first time on appeal for various and sundry reasons.”
Jones, 213 Ill. 2d at 506. The appellate court’s disposition in this case
is yet another example of that inappropriate propensity.
With respect to the deficient-assistance prong of the appellate
court’s analysis, we note that defendant cannot successfully maintain
that postconviction counsel rendered deficient assistance in failing to
raise the admonishment issue, because “[p]ost-conviction counsel is
only required to investigate and properly present the petitioner’s
claims.” (Emphasis in original.) Davis, 156 Ill. 2d at 164. In that
regard, Rule 651(c) only requires postconviction counsel to examine
as much of the record “as is necessary to adequately present and
support those constitutional claims raised by the petitioner.” Davis,
156 Ill. 2d at 164. Defendant did not raise an admonishment issue in
his pro se petition. While postconviction counsel may conduct a
broader examination of the record (Davis, 156 Ill. 2d at 164), and may
raise additional issues if he or she so chooses, there is no obligation to
do so.
Finally, we observe that defendant has also forfeited any
contention that trial counsel was ineffective for failing to file a motion
to withdraw guilty plea–and that postconviction counsel was deficient
for failing to argue that point–as defendant apparently did not preserve
that claim by raising it in the appellate court. See Unzicker v. Kraft
Food Ingredients Corp., 203 Ill. 2d 64, 73 (2002) (“issues that the
appellant fails to raise in the appellate court are waived for purposes
of our review”).
Defendant is, of course, free to pursue any defaulted claims he
believes to be of merit by filing a successive postconviction petition in
the circuit court in accordance with the “cause and prejudice”
guidelines set forth in People v. Pitsonbarger, 205 Ill. 2d 444 (2002).
See also 725 ILCS 5/122–1(f) (West 2004) (codifying the cause-and-
prejudice test effective January 1, 2004). Pursuant to those guidelines,
defendant will have to demonstrate “cause” for failing to raise the
error in prior proceedings and actual “prejudice” resulting from the
claimed error. See People v. Jones, 211 Ill. 2d 140, 148-50 (2004).
For the foregoing reasons, the judgment of the appellate court is
reversed, and that of the circuit court is affirmed.
-13-
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE BURKE took no part in the consideration or decision
of this case.
-14-
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340 S.C. 87 (2000)
530 S.E.2d 890
BUGSY'S, INC., Highway Coffee, Inc., Pool Services Unlimited of MB, Inc., 6401 Convenience, Inc., and Candy Treats, Inc., Appellants,
v.
The CITY OF MYRTLE BEACH, Respondent.
No. 25111.
Supreme Court of South Carolina.
Heard November 2, 1999.
Decided April 24, 2000.
*90 Howell V. Bellamy, Jr., and Douglas M. Zayicek, of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, P.A., of Myrtle Beach, for appellants.
James B. Van Osdell and Cynthia Graham Howe of Van Osdell, Lester, Howe & Jordan, P.A., of Myrtle Beach, for respondent.
BURNETT, Justice:
This action challenges the validity of Respondent the City of Myrtle Beach's (the City's) Zoning Ordinance 96-56 which, in part, affects some businesses which operate video poker machines. The master-in-equity determined Ordinance 96-56 was valid. Alternatively, the master-in-equity held appellants were operating in violation of the prior zoning ordinance. We affirm.
*91 FACTS
Appellant Bugsy's, Inc., is a sports bar and restaurant located within the City. Appellants King's Highway Coffee, Inc., 6401 Convenience, Inc., and Candy Treats, Inc., are retail businesses located in separate rooms inside Bugsy's, Inc. These four appellants each lease and operate five video poker machines from Appellant Pool Services Unlimited of M.B.[1]
Pursuant to the City's zoning ordinance, video poker machines may be maintained as a principal use in seven districts. Video poker machines are only permitted as accessory uses in district AC-2.[2] Bugsy's is located in district AC-2.[3] Bugsy's general manager testified the businesses gross $400,000 a month from video poker machines and $20,000 a month from other sales. Hence, 95% of Bugsy's gross proceeds is generated by the operation of video poker machines.
Both prior to and after adoption of Ordinance 96-56, the City's comprehensive zoning ordinance defines "accessory use," in part, as follows:
Section 204.1 Accessory building or use. An accessory building or use is:
(a) Subordinate to and serves a principal building or principal uses;
(b) Subordinate in area, extent, or purpose to the principal use served;
(c) Designed for the comfort, convenience, or necessity of occupants of the principal use served.
At all times, the City's comprehensive zoning ordinance has permitted accessory uses provided, among other requirements, the accessory use is customarily incidental to the permitted use. For all commercial and business uses, Ordinance 96-56 added the following description of an accessory use: *92 1102.d. In the case of commercial or business uses, does not produce gross proceeds which exceed forty percent of the combined gross proceeds produced by the accessory use and the permitted principle [sic] use; and does not occupy in excess of forty percent of the available floor space in the business activity.
With regard to coin-operated amusement devices, Ordinance 96-56 added the following description of an accessory use:
1102.6 Coin-operated amusement devices. Coin-operated amusement devices permitted as accessory uses are subject to the following restrictions:
a. Maximum number of machines per principal use is five.[4]
b. Only allowed as an accessory use to bars and restaurants of at least 1,000 square feet of gross floor space or as an accessory use to retail facilities of at least 2,000 square feet of gross floor space.[5]
Ordinance 96-56 provides:
703.10.6 Cessation. Coin operated amusement devices operated as accessory uses not in conformance with the provisions... must be removed within 2 years from the effective date of this ordinance....
The effective date of Ordinance 96-56 is May 28, 1996.
It is undisputed Bugsy's proceeds from video game machines exceed 40% of the gross proceeds of each of the businesses. It is also undisputed the three retail businesses do not meet the 2000 square foot requirement or the 40% area distribution requirement to operate video game machines as accessory uses pursuant to Ordinance 96-56.[6] The City has never cited Bugsy's for violation of any zoning ordinance.
*93 ISSUES
I. Did the master-in-equity err by ruling Ordinance 96-56 is not preempted by state law?
II. Did the master-in-equity err by ruling Ordinance 96-56 does not conflict with state law?
III. Did the master-in-equity err by ruling Ordinance 96-56 is not a criminal ordinance?
IV. Is Ordinance 96-56 arbitrary, capricious, or unreasonable?
V. Did the master-in-equity err by ruling the two year amortization period is valid?
DISCUSSION
I.
Bugsy's argues the State has both expressly and impliedly preempted the regulation of video poker machines and, therefore, the City was precluded from passing Ordinance 96-56. Specifically, Bugsy's asserts the General Assembly expressly retained state regulatory control of video poker machines through S.C.Code Ann. § 12-21-2720(B)(Supp.1998) which provides: "[n]o municipality may limit the number of machines within the boundaries of the municipality." It asserts the General Assembly impliedly retained State control of video poker machines by enacting a comprehensive regulatory scheme in the Coin-Operated Machines and Devices and Other Amusements Act[7] and Video Game Machines Act.[8] We disagree.
Determining whether a local ordinance is valid is a two-step process. The first step is to determine whether the municipality had the power to adopt the ordinance. If no power existed, the ordinance is invalid. If the municipality had the power to enact the ordinance, the second step is to determine whether the ordinance is consistent with the Constitution and general law of the State. Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718 (1997).
*94 In order to pre-empt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way. Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990). In Fine Liquors, Ltd., the Court held, although the General Assembly gave the Alcoholic Beverage Control Commission the sole and exclusive authority to sell beer, wine, and alcohol, it had not preempted the field so as to preclude the Town of Hilton Head from passing a zoning ordinance which prohibited internally illuminated "red dot" signs.
Section 12-21-2720(B) does not express the State's intent to preempt the field of video poker machines. It only prohibits municipalities from limiting the number of video poker machines within their boundaries. While Ordinance 96-56 effectively limits the location of video game machines in the City, it does not limit the number of machines within the municipality.[9]
Moreover, while the General Assembly has enacted a comprehensive scheme regulating many aspects of video poker machines, the scheme does not manifest an intent to prohibit any other enactment from touching on video poker machines. State regulation of video poker machines does not preclude a municipality from passing a zoning ordinance which impacts businesses which have video game poker like the State's regulation of the sale of beer, wine, and alcohol does not preclude a municipality from passing a zoning ordinance which impacts a business which sells those products.
Bugsy's maintains Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272 (1996), supports its argument regarding the preemptive effect of the video gaming statutes and "directly controls the outcome of this case." In Martin, the plaintiff challenged a statute which provided for county referenda to determine the legality of non-machine cash payouts for coin-operated video machine games. The Court held because the local option law could criminalize conduct which was legal under state law, it was constitutionally prohibited. Martin *95 did not hold the State preempted local government from taking any action which touches video poker machines.
II.
Bugsy's argues Ordinance 96-56 directly conflicts with two provisions of State law and, therefore, is invalid. We disagree.
First, Bugsy's argues because the 40% gross proceeds requirement of Ordinance 96-56 is more restrictive than the State's "primary and substantial" gross proceeds requirement in S.C.Code Ann. § 12-21-2804(A)(Supp.1998), the ordinance impermissibly conflicts with State law. We disagree.
Where an ordinance is not preempted by State law, the ordinance is valid if there is no conflict with State law. In order for there to be a conflict between a state statute and a municipal ordinance, both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there is no conflict. Barnhill v. City of North Myrtle Beach, 333 S.C. 482, 511 S.E.2d 361 (1999).
Section 12-21-2804(A) provides the South Carolina Department of Revenue (DOR) may not issue permits for more than five machines at a single place or premises. It further provides: "[n]o machine may be licensed or relicensed in any location where the primary and substantial portion of the establishment's gross proceeds is from machines licensed under Section 12-21-2720(A)(3) ...".
Section 12-21-2804(A) governs the DOR's issuance of machine permits. The 40% gross proceeds requirement of Ordinance 96-56 is a portion of the City's definition of accessory use for commercial and business zoning purposes. Assuming the DOR's definition of "primary and substantial" is less restrictive than Ordinance 96-56's 40% gross proceeds requirement, the two provisions are neither inconsistent nor irreconcilable with each other because the definitions are for different purposes. The DOR's "primary and substantial" definition governs which establishments may obtain machine licenses from the DOR while Ordinance 96-56's 40% gross proceeds requirement governs where those establishments *96 may be located within the City. There is no conflict between State law and the City's ordinance. See id. (state statute regulating activity on state waters is not irreconcilable with city ordinance regulating activity on public beach); see also Wrenn Bail Bond Service, Inc. v. City of Hanahan, 335 S.C. 26, 515 S.E.2d 521 (1999) (state statute licensing bail bondsmen is not irreconcilable with city's business license ordinance); Town of Hilton Head Island v. Fine Liquors, Ltd., supra (state statute providing size and location of "red dots" did not conflict with city's prohibition against internal illumination of signs).
Second, Bugsy's contends Ordinance 96-56's definition of "game arcade" is inconsistent with the DOR's "single place" or "premise" definition. The master-in-equity did not rule on this issue in the final order and Bugsy's post-trial motion did not request the master-in-equity specifically rule on this issue. Accordingly, this issue is not preserved for consideration on appeal. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997) (where trial judge did not rule on issue at trial and party did not make a Rule 59, SCRCP, motion for a ruling, issue is not preserved for appellate review)."
III.
Bugsy's claims because the ordinance provides criminal penalties for its violation, Ordinance 96-56 is a criminal law in violation of Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272 (1996). We disagree.
Although Ordinance 96-56 provides criminal penalties for its violation,[10] it does not criminalize the operation of video game machines. It merely provides criminal penalties for violation of provisions of the zoning ordinance. So long as businesses comply with the requirements of the zoning ordinance, they can operate video game machines. Accordingly, unlike Martin, Ordinance 96-56 does not criminalize activity which is legal statewide. See Discussion I.
*97 IV.
Bugsy's argues Ordinance 96-56 does not bear any relationship to the public health, safety, morals, or general welfare of the community and, therefore, was unreasonably, arbitrarily, and capriciously adopted. This issue was not ruled on by the master-in-equity. Bugsy's post-trial motion did not seek a ruling on the issue. Accordingly, this issue is not preserved for review. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997).
V.
Bugsy's contends the master-in-equity erred by ruling Ordinance 96-56's two-year amortization period is reasonable. It contends A) the City cannot "terminate [Bugsy's] vested right in the operation of video game machines absent a factual showing the continuation of its nonconforming use is a detriment to the public's health, safety or welfare" and B) the City did not balance the benefit to the public against the detriment to the landowner in determining an appropriate amortization period. We disagree.
A.
Bugsy's first contention, that it has a vested right to continue operating video game machines absent a showing the operation of those machines is a detriment to the public's health, safety, or welfare, is not preserved for review. The master-in-equity did not rule on this issue. Bugsy's post-trial motion did not seek a ruling on the issue. Accordingly, this issue may not be considered on appeal. Id.
B.
An amortization provision is valid if reasonable. Centaur, Inc. v. Richland County, 301 S.C. 374, 392 S.E.2d 165 (1990). Reasonableness is determined by "[b]alancing the public gain against the private loss . .". Id. quoting Collins v. City of Spartanburg, 281 S.C. 212, 214-15, 314 S.E.2d 332, 333 (1984). The burden is upon the petitioner to prove the unreasonableness of the amortization period. The period is presumed valid unless the petitioner demonstrates its loss *98 outweighs the public gain. Centaur, Inc. v. Richland County, 301 S.C. 374, 392 S.E.2d 165 (1990).
The Zoning Administrator testified in determining an appropriate amortization period, he considered the cost of the video poker machines. He stated he believed a machine costs between $3,500 and $8,000 and he used a "high amount." The Zoning Administrator stated he learned on the day of the hearing that a machine costs $7,500.
The record indicates the two year amortization period reasonably allowed Bugsy's to recoup the rental cost of its machines. There is no evidence to the contrary. Id. Bugsy's failed to prove its loss outweighed the public gain. Id.[11]
AFFIRMED.
FINNEY, C.J., TOAL, MOORE, JJ., and Acting Justice WILLIAM T. HOWELL, concur.
NOTES
[1] Hereafter, appellants are collectively referred to as "Bugsy's."
[2] Prior to adoption of Ordinance 96-56, video poker machines were only permitted as accessory uses in AC-2 districts.
[3] An accommodations/commercial zone provides a transition between heavy commercial districts and residential districts.
[4] See S.C.Code Ann. § 12-21-2804(A)(Supp.1998)(South Carolina Department of Revenue may not issue machine permits for more than five machines at a single place or premises).
[5] Ordinance 96-56 also increased the number of parking spaces required at businesses with coin-operated amusement devices. Bugsy's complies with the parking requirement.
[6] Carolina Bugsy's, Inc., who is not a party to this action, owns the leasehold interest in the property where the four businesses are located. Bugsy's, Inc., occupies over 4000 square feet. Each retail business inside occupies less than 300 square feet of space.
[7] S.C.Code Ann. §§ 12-21-2703 to-2750 (Supp.1998).
[8] S.C.Code Ann. §§ 12-21-2770 to-2809 (Supp.1998).
[9] As noted above, the zoning ordinance provides seven districts in which video games may be maintained as principal uses.
[10] "A violation of any ordinance or resolution, adopted pursuant to the provisions of this act is hereby declared to be a misdemeanor under the law of the state and, upon conviction thereof, an offender shall be liable to a fine of not more than $500.00, or imprisonment not exceeding 30 days, or both."
[11] Bugsy's also argues the master-in-equity erred by ruling it was operating in violation of the prior zoning ordinance. Because we affirm the master-in-equity's ruling upholding the validity of Ordinance 96-56, we need not address the alternative holding that Bugsy's was operating in violation of the prior ordinance.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 34
Docket No. AT-315H-15-0196-I-1
Constance A. West,
Appellant,
v.
Department of Health and Human Services,
Agency.
April 30, 2015
Constance A. West, Lithonia, Georgia, pro se.
Corey Thompson, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
2
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective November 17, 2013, the agency appointed the appellant to a
GS-13 Health Scientist position, subject to a 1-year probationary period. Initial
Appeal File (IAF), Tab 5 at 20. On October 31, 2014, while the appellant was
still serving her probationary period, the agency notified her that she would be
terminated from her position, effective November 13, 2014, due to her failure to
demonstrate an acceptable level of performance. IAF, Tab 1 at 10-11.
¶3 On December 8, 2014, the appellant filed an appeal with the Board alleging
that she was terminated for pre-appointment reasons and that the agency failed to
afford her the procedural protections of 5 C.F.R. § 315.805. IAF, Tab 1 at 5.
The administrative judge issued an order informing the appellant, as a
probationary employee, of her burden to establish Board jurisdiction and ordered
her to file evidence and argument proving that her appeal was within the Board’s
jurisdiction. IAF, Tab 3 at 2-4.
¶4 In response, the appellant contended that her termination was based on
conditions arising before her appointment because a memorandum from her
supervisor to the division director recommending her termination for failure to
demonstrate acceptable performance durin g her probationary period also referred
to her supervisor’s concerns about hiring the appellant due to her lack of certain
prior work experience. IAF, Tab 7 at 4, 6. Specifically, her supervisor noted
that, even though a panel of senior scientists had recommended the appellant for
the position, she had concerns about hiring her because the appellant had no
3
peer-reviewed first author publications, no HIV-related publications, only one
HIV-related poster presentation and HIV-related oral presentation, and no
peer-reviewed publications in any subject matter since 1996. See id. at 6.
According to the appellant’s supervisor, she discussed these limitations with the
appellant’s references and, despite these limitations, decided to hire the appellant
and use the probationary period to determine her fitness for the position. See id.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appellant’s appeal for lack of
jurisdiction. IAF, Tab 11, Initial Decision (ID). The administrative judge found
that the appellant failed to make a nonfrivolous allegation that the agency
terminated her for pre-appointment reasons because the agency noted the
shortcomings in the appellant’s prior experience simply as background
information to put her performance-based termination in context and not as
independent reasons for her termination. ID at 5.
¶6 The appellant has filed a petition for review in which she challenges the
administrative judge’s finding that she was not terminated for pre-appointment
reasons. 1 Petition for Review (PFR) File, Tab 1 at 8-10, 12-13. Specifically, the
appellant contends that the administrative judge erred in finding that her
pre-appointment work experience deficiencies referenced in the memorandum
recommending her termination were provided solely as context for her
performance-based termination and not as additional reasons for her termination.
Id. The appellant also disputes that her performance during her probationary
period was unsuccessful and submits, for the first time on review, an email from
her supervisor showing positive feedback regarding her work performance, which
1
Although the filing deadline for the appellant’s petition for review was February 16,
2015, the Clerk of the Board found in a February 20, 2015 notice that the February 18,
2015 petition for review was timely filed because February 16, 2015, was a federal
holiday and the Board’s offices were closed on February 17, 2015, due to inclement
weather. See Petition for Review File, Tab 3.
4
she contends constitutes new and material evidence. 2 See id. at 11-12, 22.
Lastly, the appellant asserts that the administrative judge erred in failing to
provide her with the procedural protections of 5 C.F.R. § 315.805, to which she
claims she is legally entitled. See id. at 7-8. The agency has filed an opposition
to the appellant’s petition, and she has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 When an agency terminates a probationary employee for reasons based in
whole or in part on conditions arising before her appointment, it must follow the
procedures set forth in 5 C.F.R. § 315.805. A probationer whose termination is
subject to 5 C.F.R. § 315.805 may appeal her termination to the Board on the
ground that it was not effected in accordance with these procedural requirements.
5 C.F.R. § 315.806(c). In such appeals, the merits of the agency’s decision
are not before the Board. Hope v. Department of the Army, 108 M.S.P.R. 6, ¶ 7
(2008). Rather, if an appellant nonfrivolously alleges that she was terminated
based in whole or part on pre-appointment reasons, and that the agency failed to
afford her the procedural protections of 5 C.F.R. § 315.805, then the Board has
jurisdiction to determine whether the agency, in fact, failed to follow the
procedures of 5 C.F.R. § 315.805, and, if so, whether such procedural error was
harmful. See Hope, 108 M.S.P.R. 6, ¶ 7; see also Pope v. Department of the
Navy, 62 M.S.P.R. 476, 479 (1994). If there was harmful error, the agency action
2
We find that this document does not constitute new and material evidence under
5 C.F.R. § 1201.115(d) because it would not warrant an outcome different from that of
the initial decision to the extent it relates to the merits of the agency’s termination
action and not to the threshold issue of the Board’s jurisdiction. See Le v. U.S. Postal
Service, 114 M.S.P.R. 430, ¶ 6 (2010); see also Kellum v. Veterans Administration,
2 M.S.P.R. 65, 67 (1980) (finding that the sufficiency and propriety of the agency’s
misconduct allegation concerns substantive issues that are immaterial to the appeal,
unless the Board has jurisdiction over the probationary term ination).
5
must be set aside. Banghart v. Department of the Army, 96 M.S.P.R. 453,
¶ 6 (2004), aff’d, 137 F. App’x 350 (Fed. Cir. 2005).
¶8 Based upon our review of the record, we discern no reason to disturb the
administrative judge’s well-reasoned findings that the appellant failed to
nonfrivolously allege that the agency terminated her for pre-appointment reasons
and that the Board therefore lacks jurisdiction over her appeal. The record below
reflects that the agency’s stated reason for terminating the appellant was
unsatisfactory performance during her probationary period, a post-appointment
reason. IAF, Tab 5 at 12; see Walker v. Department of the Army, 119 M.S.P.R.
391, ¶ 14 (2013) (finding that pre-appointment reasons, or “conditions arising
before appointment,” include matters such as falsification of an employment
application and omitting information during a pre-employment interview; they do
not include post-appointment performance or conduct deficiencies). The agency
provided supporting evidence, including a memorandum from the appellant’s
supervisor to the division director summarizing the appellant’s failure to meet
certain deadlines on four separate occasions as well as documentation relating to
the appellant’s mid-year performance assessment which identified performance
deficiencies. IAF, Tab 5 at 16-19. As a result, because the appellant was
terminated for post-appointment reasons, she was not entitled to the procedural
protections of 5 C.F.R. § 315.805.
¶9 We find unavailing the appellant’s claim that the agency’s reference to
pre-appointment concerns about hiring her for the position in spite of her lack of
certain qualifications shows that the agency terminated her based on conditions
arising pre-appointment. PFR File, Tab 1 at 8-10. Notwithstanding its concerns
regarding the appellant’s prior experience, the agency hired the appellant and
properly used the probationary period to determine her ability to perform the job
6
duties of the position. 3 Thus, we agree with the administrative judge that the
record reflects that the agency did not terminate the appellant due to the noted
shortcomings in her prior experience but, rather, because of her poor performance
during her probationary period. See ID at 5.
¶10 Further, as the administrative judge correctly found, the Board
distinguishes between a pre-existing condition and the effect that condition has
on an employee’s performance during her probationary period. See Von Deneen
v. Department of Transportation, 33 M.S.P.R. 420, 423, aff’d, 837 F. 2d 1098
(Fed Cir. 1987) (Table); see also ID at 4-5. Even if the appellant’s lack of prior
experience were an indirect factor in the termination decision, it only would be
because of its effect on her post-appointment performance and thus would not
constitute a pre-appointment reason. See Rivera v. Department of the Navy,
114 M.S.P.R. 52, ¶ 8 (2010) (even assuming that the appellant’s failure to qualify
for a credit card was attributable to his pre-appointment credit history, his
termination for failure to secure approval for a government credit card
nonetheless would constitute a post-appointment reason for termination); see also
Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 8 (2013) (poor
performance caused by pre-appointment medical condition is actually a
post-appointment reason for termination); Holloman v. Department of the Navy,
31 M.S.P.R. 107, 109-10 (1986) (attendance problem caused by pre-existing
medical condition is a post-appointment reason for termination). Accordingly,
we conclude that the administrative judge properly dismissed the appeal for lack
of jurisdiction.
3
The appellant argues that there are policy reasons why there should be broader appeal
rights for probationary employees. PFR File, Tab 1 at 16-19. However, probationary
employees are purposely afforded limited appeal rights to keep the civil service free
from prohibited personnel practices while also ensuring that agencies can utilize the
probationary period to determine whether an appointment should become final. Office
of Policy and Evaluation, U.S. Merit Systems Protection Board, The Probationary
Period : A Critical Assessment Opportunity, i-ii (2005).
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
8
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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901 F.Supp. 22 (1995)
Judith A. LaCHAPELLE, Plaintiff,
v.
FECHTOR, DETWILER & CO., INC., Defendant.
Civ. No. 95-149-P-H.
United States District Court, D. Maine.
September 8, 1995.
*23 Steven P. Beale, Skelton, Taintor & Abbott, Auburn, ME, for Plaintiff.
Peter S. Plumb, Ann M. Courtney, Murray, Plumb & Murray, Portland, ME, for Defendant.
ORDER ON MOTION TO DISMISS
HORNBY, District Judge.
Judith LaChapelle has sued her former husband's former employer to recover part of a retirement account (a simplified employee pension-individual retirement account a "SEP[1]-IRA") awarded her in a *24 divorce decree. The employer has resisted, claiming that it is entitled to everything in the account because of the husband's fraud against the company. The employer removed the lawsuit to federal court because it contains a federal claim under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. I conclude that the divorced spouse has no right to recover under ERISA. I therefore DISMISS the ERISA count (Count I) and REMAND the state law claim, Count II, to state court.
According to the complaint, Ronald LaChapelle was employed by Fechtor, Detwiler & Co., Inc. and maintained a SEP-IRA. A June 17, 1991, separation and divorce agreement between Ronald LaChapelle and the plaintiff Judith LaChapelle awarded her a one-half interest in the SEP-IRA. The employer, however, refuses to distribute to her any part of the SEP-IRA claiming that the funds resulted from criminal activity by her former husband.
ERISA provides coverage only of "employee benefit plans." 29 U.S.C. § 1003(a). There are only three kinds of such plans: welfare benefit plans, pension benefit plans and plans that are both. 29 U.S.C. § 1002(3). Judith LaChapelle argues that a SEP-IRA is a welfare benefit plan under ERISA. It is not. If the SEP-IRA label alone were not enough simplified employee pension-individual retirement account the regulations make clear that a SEP-IRA is not a welfare plan:
the terms "employee welfare benefit plan" and "welfare plan" are defined in section 3(1) of the Act to include plans providing "(i) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (ii) any benefit described in section 302(c) of the Labor Management Relations Act of 1947 (other than pensions on retirement or death, and insurance to provide such pensions)."
29 C.F.R. § 2510.3-1(a)(2). SEP-IRAs simply do not fit the definition. Instead, they are a "simplified employee pension," 26 U.S.C. § 408(k)(1), using the vehicle of an "individual retirement account or individual retirement annuity." Id. Nothing in the regulations suggests that SEP-IRAs should be considered welfare benefit plans. The fact that the regulations exclude IRAs (not SEP-IRAs) from the definition of "employee pension benefit plan" and "pension plan," 29 C.F.R. § 2510.3-2(d), does not thereby turn IRAs or SEP-IRAs into welfare benefit plans.[2]
I do not decide whether a SEP-IRA is a pension benefit plan because the plaintiff concedes that it is not[3] and because LaChapelle *25 lacks standing to bring this ERISA action for breach of fiduciary duty under ERISA, 29 U.S.C. § 1109. Such a civil enforcement action may be brought by the Secretary of Labor, a participant, beneficiary or fiduciary. 29 U.S.C. § 1132(a)(2). LaChapelle is none of these. She is not a "beneficiary" because she was not designated by her former husband as a beneficiary. 29 U.S.C. § 1002(8). To be sure, she is a divorcee with a decree assigning her rights in the account, and Part 2 of the statute, which sets forth Participation and Vesting Requirements, provides that an "alternate payee" under a "qualified domestic relations order" (QDRO) shall also be considered a beneficiary. Unfortunately for LaChapelle, Part 2 also excludes all IRAs described in section 408 of Title 26. 29 U.S.C. § 1051(6). SEP-IRAs are specifically described in I.R.C. § 408(k). Thus, LaChapelle cannot be an alternate payee.
Finally, LaChapelle also asserts beneficiary status under ERISA because her divorce decree satisfies the standards for an IRA transfer incident to a divorce. I.R.C. § 408(d)(6); § 71(b)(2). Under the Internal Revenue Code, such a transfer
is not to be considered a taxable transfer made by such individual notwithstanding any other provision of this subtitle, and such interest at the time of the transfer is to be treated as an individual retirement account of such spouse, and not of such individual. Thereafter, such account or annuity for purposes of this subtitle is to be treated as maintained for the benefit of such spouse.
26 U.S.C. § 408(d)(6). This statutory provision is directed at tax treatment of IRAs, not at standing as a beneficiary or alternate payee to bring an ERISA civil enforcement action. See Reklau v. Merchants Nat'l Corp., 808 F.2d 628, 631 (7th Cir.1986), cert. denied, 481 U.S. 1049, 107 S.Ct. 2180, 95 L.Ed.2d 836 (1987) (Internal Revenue Code provisions do not create substantive rights under ERISA that can be enforced by an individual in a private cause of action as a participant under a tax-qualified pension plan (citing Cowan v. Keystone Employee Profit Sharing Fund, 586 F.2d 888, 890 n. 3 (1st Cir.1978) ("This section [I.R.C. § 401] does not appear to create any substantive rights that a beneficiary of a qualified retirement trust can enforce.")). Thus, the plaintiff has no standing to bring a civil enforcement action under ERISA by virtue of the provisions of I.R.C. § 408(d)(6). Kwatcher v. Massachusetts Serv. Employees Pension Fund, 879 F.2d 957, 965 (1st Cir.1989) (ERISA standing provisions are to be construed narrowly).
Accordingly, the motion to dismiss Count I is GRANTED and the remainder of the action is REMANDED to state court.[4]
SO ORDERED.
NOTES
[1] "A SEP is a plan pursuant to which an employer makes direct contributions to its employees' individual retirement accounts or individual retirement annuities as defined under I.R.C. §§ 408(a) and (b). 26 U.S.C. § 408(k). An essential characteristic of a SEP is that the employee must be permitted to make withdrawals from the plan. 26 U.S.C. § 408(k)(4)." In re Taft, 171 B.R. 497, 498 (Bankr.E.D.N.Y.1994) (footnote omitted).
[2] In the statutory lists defining coverage under various parts of ERISA, welfare benefit plans are separate categories from IRAs. See 29 U.S.C. §§ 1051(1), (6) and 1081(a)(1), (6).
[3] The issue is otherwise arguable. The Department of Labor regulation that clarifies "employee pension benefit plan" excludes only those IRAs "described in section 408(a) of the [Internal Revenue] Code." SEP-IRAs are described at I.R.C. § 408(k) (emphasis added). The regulation's other exclusions also do not fit SEP-IRAs:
(i) No contributions are made by the employer or employee association; (ii) Participation is completely voluntary for employees or members; (iii) The sole involvement of the employer or employee organization is without endorsement to permit the sponsors to publicize the program to employees or members, to collect contributions through payroll deductions or dues checkoffs and to remit them to the sponsor; and (iv) The employer or employee organization receives no consideration....
29 C.F.R. § 2510.3-2(d). Instead, the main purpose of SEP-IRAs is to enable employer contributions, I.R.C. § 408(k)(1)-(3), and once an employer establishes a SEP-IRA, all eligible employees must participate. I.R.C. § 408(2). Moreover, the Department of Labor's refusal to address the question whether SEP-IRAs are subject to ERISA would seem at least to signal uncertainty as to the answer. Dep't Labor Op. Letter # 81-026A (March 3, 1981) ("... [in this letter] the Department is not rendering[,] an opinion as to whether the SEP proposed by the Company is an employee pension benefit plan.... [But] when employees roll over funds from SEP-IRAs connected with an employer's SEP to deposit them in separate IRAs, which otherwise are not employee pension benefit plans within the meaning of ERISA section 3(2)(A) as clarified by regulation section 2510.3-2(d), the IRAs receiving such funds do not thereby become IRAs meeting the definition of an `employee pension benefit plan' within the meaning of ERISA title I.") See In re Schlein, No. 90-0594-CIVORL18, 1992 WL 404741, at *4 (M.D.Fla. June 23, 1992), rev'd on other grounds, 8 F.3d 745, 747 (11th Cir.1993).
[4] Oral argument would not be helpful on the issues as framed and the plaintiff's request for oral argument is therefore DENIED.
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Case: 11-60762 Document: 00511949467 Page: 1 Date Filed: 08/08/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2012
No. 11-60762
Summary Calendar Lyle W. Cayce
Clerk
RODNEY ROEBUCK,
Plaintiff-Appellant
v.
DIAMOND DETECTIVE AGENCY; PEGGY HOBSON CALHOUN, President
of the Hinds County Board of Supervisors,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:10-CV-331
Before KING, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rodney Roebuck, proceeding pro se, appeals the district court’s dismissal
of his complaint pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 against the
Diamond Detective Agency (DDA) and the president of the Hinds County Board
of Supervisors, Peggy Hobson-Calhoun. He contended in the complaint that the
defendants conspired to deprive him of two firearms that belonged to him in
violation of his right to due process. In dismissing Roebuck’s complaint, the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60762 Document: 00511949467 Page: 2 Date Filed: 08/08/2012
No. 11-60762
district court granted the president of the Hinds County Board of Supervisors’s
motion for summary judgment and dismissed Roebuck’s claims against DDA for
failure to state a claim.
Roebuck asserts on appeal that the district court erred in denying his
motion to reconsider, in which he argued that he had not replied to the motion
for summary judgment because he had not received a copy of it before the
district court rendered its decision. However, the record indicates that the
motion was mailed to Roebuck’s last known address, and thus he has not shown
that the district court abused its discretion in denying the motion to reconsider.
See Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000); New York Life Insurance
v. Brown, 84 F.3d 137, 142 (5th Cir. 1996).
Also, Roebuck argues that the district court erred in denying his motion
for default judgment against DDA, in which he asserted that DDA filed its
answer too late. However, because DDA ultimately filed its answer and because
Roebuck does not contend, nor does the record indicate, that Roebuck suffered
any prejudice due to any delay, he has not shown that the district court abused
its discretion in denying the motion. See FED. R. CIV. P. 55(a); Mason & Hanger-
Silas Mason Co., Inc., v. Metal Trades Council of Amarillo, Tex. and Vicinity,
AFL-CIO, 726 F.2d 166, 168 (5th Cir. 1984).
As to his claims arising under § 1981, Roebuck argues that the district
court erred in denying the claims because the contracts of all persons, including
white persons, are protected under §1981. However, Roebuck does not now
assert, nor did he assert in the district court, that the actions of the defendants
were the result of any of the parties’ race or ethnicity, as is required for a claim
arising under § 1981. See Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.
1997).
As to any claims arising under § 1985(2) and (3), Roebuck argues that the
district court erred in denying those claims because the facts in his case meet the
legal definition of a conspiracy. However, because Roebuck has not alleged the
2
Case: 11-60762 Document: 00511949467 Page: 3 Date Filed: 08/08/2012
No. 11-60762
deprivation of any equal protection rights and because he alleges a conspiracy
involving the state, rather than the federal, judicial process, he has not
presented a cognizable claim pursuant to § 1985(2) or (3). See McLean v. Int’l
Harvester Co., 817 F.2d 1214, 1218 (5th Cir. 1987); Holdiness v. Stroud, 808 F.2d
417, 424 (5th Cir. 1987).
Finally, as to any claims arising under § 1983, Roebuck asserts that he
was “deprived of his right of legal possession of the firearms for the purpose of
limited jurisdiction, freedom from conspiracy under the color of law, due process
and not be[ing] forced into involuntary servitude.” Roebuck concedes that he
does not know of any wrongdoing by Hobson-Calhoun, and he merely speculates
that there was wrongdoing by other, unknown actors. Additionally, he contends
generally that state actors conspired with private persons to engage in wrongful
acts against him. He does not address the district court’s determination that he
failed to demonstrate that the return of the firearms to DDA was the result of
a policy, custom, or practice of the County, either on its own or as part of a
conspiracy with DDA.
Because Roebuck does not argue that any current or former president of
the Hinds County Board of Supervisors was personally involved in the
purportedly unconstitutional actions against him, he has not demonstrated that
he is entitled to relief under § 1983 against the current or former president in
his or her individual capacity. See Anderson v. Pasadena Indep. Sch. Dist., 184
F.3d 439, 443 (5th Cir. 1999). Additionally, because Roebuck does not allege or
show that any wrongdoing was the result of a policy or custom of the County, he
has not shown that he is entitled to relief under § 1983 against either the
president of the Hinds County Board of Supervisors in his or her official capacity
or DDA as a co-conspirator with the County. See Zarnow v. City of Wichita
Falls, 614 F.3d 161, 166-67 (5th Cir. 2010), cert. denied, 131 S. Ct. 3059 (2011);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52 (1970).
3
Case: 11-60762 Document: 00511949467 Page: 4 Date Filed: 08/08/2012
No. 11-60762
In light of the foregoing, Roebuck has not shown that the president of the
Hinds County Board of Supervisors was not entitled to a judgment as a matter
of law, nor has he shown that he pleaded sufficient facts against DDA to state
a claim for relief that was plausible on its face, and thus he has not shown any
error in the district court’s judgment. See FED. R. CIV. P. 56(a); In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
AFFIRMED.
4
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137 F.3d 518
UNITED STATES of America, Plaintiff-Appellee,v.Harold STORY, Defendant-Appellant.
No. 97-2012.
United States Court of Appeals,Seventh Circuit.
Submitted Nov. 12, 1997.1Decided Feb. 25, 1998.
Michael Jude Quinley (submitted), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
Gregory A. Adamski, Adamski & Conti, Chicago, IL, for Defendant-Appellant.
Before CUMMINGS, FLAUM and DIANE P. WOOD, Circuit Judges.
FLAUM, Circuit Judge.
1
This is a successive appeal of Harold Story's criminal conviction and sentencing for drug-related offenses. Story was originally convicted of four offenses: (1) conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & 846; (2) use or carrying of firearms during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); (3) continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848; and (4) distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In his first appeal, we reversed Story's § 924(c) conviction, remanded for a new trial on that count, and remanded the entire case for resentencing. United States v. Thomas, 86 F.3d 647, 650-52, 656 (7th Cir.), cert. denied sub nom. Story v. United States, --- U.S. ----, 117 S.Ct. 392, 136 L.Ed.2d 307 (1996).
2
The § 924(c) charge was subsequently dismissed by the district court on the Government's motion. Also on remand, the district court vacated Story's conviction for conspiracy to distribute cocaine base following the Supreme Court's decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996).2 Thus, at this point, Story stands convicted of only two counts of the original indictment: distribution of cocaine base and conducting a continuing criminal enterprise. The district court sentenced Story to life imprisonment on the CCE conviction and 480 months imprisonment on the distribution conviction, with the sentences to run concurrently. The court also fined Story $10,000 and ordered a special assessment of $100.
3
Story raises a number of challenges in his current appeal. First, Story contends that the Court should vacate his conviction for distribution of cocaine base because punishing him for that offense and for his CCE conviction constitutes double jeopardy. Second, he argues that the district court erred in sentencing him under USSG § 2D1.1(c) because the Government failed to prove that the controlled substance involved in his convictions was crack cocaine, as opposed to some other form of cocaine base. Third, he claims that there was insufficient evidence that the relevant amount of cocaine base for sentencing purposes exceeded 1.5 kilograms. Fourth, Story contends that the penalty provisions for cocaine base violate due process, equal protection, and the doctrine of lenity because they are much more severe than the penalties for other forms of cocaine. Fifth, and finally, Story claims that his prosecution constituted double jeopardy because of the prior civil forfeiture of his automobile.
4
In his third, fourth, and fifth claims, Story resurrects arguments that were decided against him in his prior appeal. See Thomas, 86 F.3d at 655-56. Generally, under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." United States v. Thomas, 11 F.3d 732, 736 (7th Cir.1993) (quoting United States v. Feldman, 825 F.2d 124 (7th Cir.1987)), cert. denied, 513 U.S. 960, 115 S.Ct. 419, 130 L.Ed.2d 334 (1994). Although we have the discretion to reconsider an issue that we have already decided in prior stages of litigation, see Avitia v. Metropolitan Club of Chicago, 49 F.3d 1219, 1227 (7th Cir.1995), we usually decline to do so unless "an intervening change in the law, or some other special circumstance, warrants reexamining the claim." Thomas, 11 F.3d at 736. Because Story points to no such change in the law relevant to his claims, or to any other special circumstance, we will not reconsider his claims relating to the quantity of cocaine involved, the constitutionality of the sentencing disparity between cocaine base and other forms of cocaine, or double jeopardy with respect to the earlier forfeiture proceedings.3 Thus, we need to address only two of Story's arguments on this appeal: his claim that double jeopardy principles prevent the court from convicting him of both CCE and distribution of cocaine base, and his claim that the Government failed to prove by a preponderance of the evidence that the substance involved in his convictions was crack cocaine.
Double Jeopardy
5
In Rutledge v. United States, 517 U.S. 292, 300-301, 116 S.Ct. 1241, 1247, 134 L.Ed.2d 419 (1996), the Supreme Court held that a criminal defendant may not be convicted of both the offense of conducting a continuing criminal enterprise and the offense of conspiracy to distribute cocaine base, for the latter is a lesser included offense of the former. Story argues that distribution of cocaine base, like conspiracy to distribute, is also a lesser included offense of conducting a continuing criminal enterprise; therefore, he argues, his conviction for distribution constitutes double jeopardy and must be vacated under Rutledge.
6
In Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), the Supreme Court considered a double jeopardy challenge to a CCE conviction that had as one of its predicate acts the defendant's earlier conviction, from another jurisdiction, for marijuana importation. Garrett held that the subsequent CCE conviction did not constitute double jeopardy. Following Garrett, we have rejected precisely the argument that Story makes here--that simultaneous convictions for both CCE and its predicate offenses constitute double jeopardy. See United States v. Jefferson, 782 F.2d 697, 700-01 (7th Cir.1986); United States v. Markowski, 772 F.2d 358, 361 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986). Thus, Story's argument fails unless Rutledge overruled Garrett and the line of cases flowing from it.
7
Rutledge, however, goes out of its way to affirm the continuing vitality of Garrett. After announcing its holding that the defendant's conviction for both CCE and conspiracy to distribute violated double jeopardy principles, the Court in Rutledge went on to state:
8
Garrett v. United States is not to the contrary. There we affirmed the defendant's prosecution for a CCE violation even though he had previously pleaded guilty to a predicate crime of importing marijuana. That holding, however, merely adhered to our understanding that legislatures have traditionally perceived a qualitative difference between conspiracy-like crimes and the substantive offenses upon which they are predicated. No such difference is present here. In contrast to the crimes involved in Garrett, this case involves two conspiracy-like offenses directed at largely identical conduct.
9
Rutledge, 517 U.S. at 300 n. 12, 116 S.Ct. at 1247 n. 12 (citations omitted). Since Rutledge makes it clear that Garrett and its progeny remain in effect, we reject Story's argument that his conviction for CCE and the predicate offense of distribution of cocaine base violates the double jeopardy clause.
Proof of Crack Cocaine
10
Story's second argument relates to his sentencing under USSG § 2D1.1 for distribution of 1.5 kilograms or more of cocaine base. As we have recently explained, the term "cocaine base" in this guideline refers only to crack cocaine; more lenient sentencing provisions apply when other forms of cocaine base are involved. See United States v. Earnest, 129 F.3d 906, 915 (7th Cir.1997); United States v. Adams, 125 F.3d 586, 592 (7th Cir.1997). Story argues that the Government failed to prove by a preponderance of the evidence that the controlled substance underlying his distribution and CCE convictions was crack and not another form of cocaine base.
11
The district court rejected this argument in Story's resentencing hearing, stating that based upon "the evidence from the testimony of the experts, as well as taking into consideration the testimony of the other witnesses, the Court is convinced beyond any doubt whatsoever that the drugs involved in this case was crack cocaine". In reviewing the district court's resolution of this issue, "[o]ur task is to ensure that the district court did not commit legal error, misapply the Sentencing Guidelines, rely on a clearly erroneous finding of fact, or in some other way manifestly abuse its discretion." United States v. Colello, 16 F.3d 193, 195 (7th Cir.1994). Upon reviewing the record with this standard in mind, we agree that sufficient evidence was presented that the substance was crack.
12
Story's only argument on appeal is that Thomas Sadowski, a forensic chemist who testified for the Government as an expert witness, admitted that the Government did not perform a quantitative analysis on the cocaine base to determine whether it was mixed with other substances or adulterants. Story contends that this isolated statement establishes that the Government failed to prove that the substance was crack. We disagree. Although Sadowski generally used the term "cocaine base" in his testimony rather than "crack," he also explained that "[c]ocaine base is what's called on the street as a rock". Furthermore, Sadowski explained to the jury "the process of converting the powder cocaine into the crack form, the cocaine base form" by mixing it with sodium bicarbonate. It is evident from this testimony that the Government's expert was using the terms "crack" and "cocaine base" interchangeably. Furthermore, two of Story's coconspirators, Kevin Garnett and Edgar Bradford, as well as numerous other witnesses, testified that the substance involved in the defendants' drug operation was crack. In light of this evidence, the district court did not abuse its discretion, much less make a clearly erroneous factual finding, in sentencing the defendant under the guidelines for crack cocaine.
Conclusion
13
For the reasons given above, we affirm the judgment and sentence of the district court.
1
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R.App. P. 34(a); Cir. R. 34(f)
2
In Rutledge, the Supreme Court held that a criminal defendant may not be convicted of both CCE and conspiracy to distribute controlled substances. 517 U.S. at 300-301, 116 S.Ct. at 1247. Accordingly, on remand, the district court vacated Story's conviction for conspiracy to distribute and let stand his CCE conviction
3
Story points to new evidence that, in his view, demonstrates that the automobile forfeited in the earlier proceedings belonged to him. However, we rejected his double jeopardy claim in the prior appeal not only because he failed to prove ownership of the car, but also because he failed to show that he had become a party to the forfeiture proceedings by making a claim of ownership. Thomas, 86 F.3d at 655 (a non-party to a forfeiture proceeding is not at risk and therefore jeopardy does not attach)
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In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3392
RICHARD M. ARNOLD,
Petitioner‐Appellant,
v.
MICHAEL A. DITTMANN, Warden,
Columbia Correctional Institution,
Respondent‐Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:15‐cv‐01524‐NJ — Nancy Joseph, Magistrate Judge.
ARGUED APRIL 5, 2018 — DECIDED AUGUST 24, 2018
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Richard M. Arnold appeals the
district court’s order dismissing as untimely his petition for a
writ of habeas corpus. There is no dispute that Arnold’s
petition was filed beyond the one‐year deadline established by
28 U.S.C. § 2244(d)(1), but Arnold alleges that his actual
2 No. 16‐3392
innocence of the crime for which he was convicted—repeated
sexual assault of a child—supports an equitable exception to
the time limit and allows his late petition. See McQuiggin v.
Perkins, 569 U.S. 383, 133 S. Ct. 1924 (2013). He relies on the
recantation affidavit of the key prosecution witness against
him—his son—as proof of his innocence. In view of the state
court’s finding that his son’s recantation was cumulative of
evidence that was put before the jury that convicted him, the
district court concluded that Arnold could not meet the
standard for actual innocence set forth in Schlup v. Delo, 513
U.S. 298, 115 S. Ct. 851 (1995). For the reasons that follow, we
vacate the district court’s judgment and remand for an eviden‐
tiary hearing on Arnold’s claim of actual innocence.
I.
In 2008, Arnold was convicted of repeated sexual assault of
a child in violation of Wis. Stat. § 948.025(1)(b). The child in
question was his son, M.A., who was the principal witness
against Arnold at trial. M.A. testified that on some 15 to 20
occasions between May 2004 and August 2005, when M.A. was
13 to 14 years old, Arnold initiated and engaged in mutual
masturbation with him. M.A. indicated that these sexual
assaults took place during weekend visits to a rural cabin
belonging to his grandfather (Arnold’s step‐father), at times
when his grandfather was occupied outside in the yard or in
one of the outbuildings on the property and M.A. and his
father were in the cabin alone. (M.A. lived with his mother—
who was not married to Arnold—but saw his father every
other weekend at the cabin, where his father was living at the
time.) On those occasions, M.A. testified, Arnold would
summon his son into his (Arnold’s) bedroom, where the two
No. 16‐3392 3
would watch television and/or play video games for awhile,
and eventually Arnold would initiate the sexual contact.
Arnold took the stand in his own defense and denied that
he had ever touched his son in a sexual manner. Arnold
testified that he did not spend any significant amount of time
in his bedroom and further denied that there were times when
he and his son were alone in the cabin.
Arnold and M.A. were the only two individuals with
personal knowledge of what had transpired between them,
and there was no forensic evidence supporting either party’s
account. So the case came down to a credibility contest
between father and son. Both had substantial criminal histo‐
ries: Arnold had five prior convictions, and M.A. (who was 17
years old at the time of trial) had a total of six prior convictions
and/or juvenile adjudications of delinquency. The fact but not
the nature of those convictions was disclosed to the jury.
M.A.’s grandfather, at whose cabin the alleged assaults took
place, professed it was possible there were times during M.A.’s
visits when Arnold and M.A. were alone in the cabin, as M.A.
had testified. But he could not otherwise speak to M.A.’s
allegations, beyond saying that M.A. had never indicated that
anything bad was happening to him.
Other witnesses could only recount M.A.’s out‐of‐court
statements about the alleged abuse. Detective Tom Makurat,
who had interviewed M.A. in February 2006, shortly after M.A.
had first discussed the abuse with a social services counselor,
testified as to what M.A. had told him about the assaults.
M.A.’s statements to Makurat were consistent with M.A.’s trial
testimony. Makurat also testified that when he questioned
4 No. 16‐3392
Arnold about his son’s allegations, Arnold had denied them
and insisted that he was never alone with his son in the cabin.
Two witnesses recounted prior alleged statements by M.A.
that were inconsistent with his trial testimony. Lila Mae Behm,
sister to M.A.’s paternal grandmother, testified that M.A. had
told her that nothing had happened between his dad and
himself. Philip Augsburger, who was “best friends” with
Arnold. R. 31‐3 at 508, testified that he had asked M.A. during
a telephone conversation, “Did this happen between you and
your father?” and “[h]e said no.” R. 31‐3 at 506. According to
Augsburger, M.A. explained that he had been angry with his
father when he made the charge.
M.A. in rebuttal testimony denied discussing the sexual
assault allegations in any detail with either Behm or Augs‐
burger and expressly denied making the inconsistent state‐
ments they attributed to him.
The defense also elicited testimony aimed at impeaching
the credibility of M.A.’s account more generally. There was
testimony, for example, that Arnold did not spend significant
time inside of the cabin or in his bedroom and typically slept
outside in a tent; that he was often away from the cabin
working, hunting, fishing, or dating his then‐girlfriend, Misty
Frank, and frequently went out with friends during the
evening (M.A. had testified that the assaults took place in the
afternoon or evening hours); that the video games were in the
living room of the cabin, where M.A. and his grandfather both
slept, rather than in Arnold’s bedroom; that M.A. would
become angry with his father if he did not spend enough time
with M.A. or agree to buy him something he wanted; and that,
No. 16‐3392 5
contrary to M.A.’s testimony, there were unusual characteris‐
tics of Arnold’s genital area, including a tattoo and multiple
piercings of Arnold’s penis and scrotum.
The jury convicted Arnold on July 17, 2008, at the conclu‐
sion of the four‐day trial. Because Arnold had previously been
convicted of a serious child sex offense (two counts of second
degree sexual assault of a child), Arnold qualified as a
“persistent repeater” under Wis. Stat. § 939.62(2m)(b)(2) &
(2m)(c), and the trial court was required to sentence Arnold to
a term of life in prison without the possibility of parole. The
judge imposed that sentence immediately after the jury
returned its verdict. Judgment was entered on August 12, 2008.
In October 2011, the Wisconsin Court of Appeals affirmed
both the conviction and Arnold’s initial request for post‐
conviction relief pursuant to Wis. Stat. § 974.02. State v. Arnold,
No. 2010AP1532‐CR, 2011 WL 5061617 (Wis. Ct. App. Oct. 26,
2011) (unpublished).1 The Wisconsin Supreme Court subse‐
quently denied Arnold’s petition for review. State v. Arnold,
810 N.W.2d 221 (Wis. Jan. 24, 2012).
In November 2011, shortly after the Wisconsin Court of
Appeals had affirmed Arnold’s conviction along with the
denial of his first request for post‐conviction relief, M.A. signed
1
Wisconsin law provides for a unitary review process pursuant to which
a defendant, following his conviction, first files a post‐conviction motion for
purposes of making any challenges to his conviction not already raised and
resolved at trial. Once that motion has been disposed of, he may file a
consolidated appeal of both his conviction and the ruling on his request for
post‐conviction relief. § 974.02; see Page v. Frank, 343 F.3d 901, 905–06 (7th
Cir. 2003).
6 No. 16‐3392
a notarized affidavit in the presence of two witnesses (apart
from the notary) in which he recanted the substance of his trial
testimony. At the time that M.A. reported the assaults by his
father, M.A. had been under the supervision of a juvenile court
and participating in a “Kids In Treatment” (“KIT”) program,
based on adjudications that M.A. himself had sexually as‐
saulted children. In his affidavit, which was directed to Ar‐
nold’s post‐conviction counsel, M.A. represented that he had
falsely accused his father in order to placate KIT personnel and
ensure his successful completion of and discharge from the KIT
program:
I [M.A.] would like to inform you that the charges
against my father Richard Arnold are false. We did
not have any kind of sexual contact. I am sorry for
saying those things happened. I never meant for any
of this to happen. But I felt pressured into saying
those things because if I did not tell them something
I would not have completed my KIT Program. So I
told them that my dad did that so I could get them
off my back and so I could get out of treatment and
off probation and out of coun[se]ling. My dad[‘]s
P.O. also pushed at me because my dad gave me
condoms so if I had sex it would be safe sex. His
P.O. put him in jail for that and said he was not a
good father because he gave me the condoms. I just
wanted everyone to leave me alone so I could get on
with my life and so we could be a family again. But
that didn’t happen because after that my dad[‘]s
P.O. wouldn’t let us have any contact with each
other. But I still continued to go there to see my dad
No. 16‐3392 7
[ ] and grandpa. But most of the time my dad was
with [M]isty and her son so I still did not get to
spend time with my dad. I just want everyone to
know that this was all a big mistake and it was not
true. I made the mistake of lying about this and it
cost all of us a[ ] lot. I hope that you can help get my
dad out of prison so he can come home where he
belongs. He has been locked up long enough for
something that he didn’t do.
I hope that by me coming forward with this now
that it’s not to[o] late for the truth to be told and to
set my dad free.
Appellate Ct. R. 6 at 21–22.
In September 2013, nearly two years after M.A. signed the
affidavit recanting the accusations against his father, Arnold
filed a pro se motion in state court seeking a new trial on the
basis of the affidavit. See Wis. Stat. § 974.06.2
The circuit court denied the motion without a hearing, R. 1‐
2 at 7, and the court of appeals affirmed. State v. Arnold, No.
2013AP2538, 2015 WL 540534 (Wis. Ct. App. Feb. 11, 2015)
(unpublished). The appellate court noted that the trial court
was not required to conduct a hearing on a motion for a new
trial premised on newly discovered evidence if the motion
itself was legally insufficient. Id., at *1. In the view of the
appeals court, Arnold’s motion was insufficient in that M.A.’s
affidavit did not constitute newly discovered evidence. Two
2
The record before us is silent as to the reasons for Arnold’s delay in filing
the motion.
8 No. 16‐3392
defense witnesses at Arnold’s trial—Behm and Augsburger—
had recounted statements by M.A. to the effect that the sexual
assaults did not occur, and M.A.’s credibility had also been
impeached in other ways. Id. Consequently, “[e]vidence that
the victim fabricated his accusations was before the jury.” Id.,
at *2.
That Arnold’s Wis. Stat. § 974.06 motion offered the
victim’s recantation in the form of an affidavit does
not change the substance of the recantation or
present a new challenge to the victim’s credibility.
The jury had the opportunity to judge evidence that
the victim recanted to other persons prior to trial
and was otherwise less than credible. The victim’s
affidavit offered the same type of evidence that was
before the jury. Therefore, the victim’s affidavit was
cumulative evidence and could not constitute newly
discovered evidence. Because the record shows that
Arnold was not entitled to relief on his
§ 974.06 motion, the circuit court did not err in
denying the motion without a hearing.
Id., at *2 (citations omitted). The Wisconsin Supreme Court
again denied review. 865 N.W.2d 502 (Wis. June 12, 2015).
Arnold then repaired to federal court seeking relief pursu‐
ant to 28 U.S.C. § 2254. In his pro se habeas petition, Arnold
contended that the Wisconsin courts’ handling of his request
for a new trial based on M.A.’s affidavit was inconsistent with
his rights under the Sixth and Fourteenth Amendments to the
Constitution, including his right to due process, and that his
No. 16‐3392 9
actual innocence of the offense of which he was convicted
independently entitled him to relief. R. 1, 2.3
On the State’s motion, the district court dismissed Arnold’s
petition as untimely. R. 17. Pursuant to 28 U.S.C.
§ 2244(d)(1)(A), a petitioner must seek habeas relief within one
year of the date his conviction becomes final. The court pointed
out because Arnold did not file a petition for certiorari after the
Wisconsin Court of Appeals affirmed his conviction in 2011
and the Wisconsin Supreme Court denied review in early 2012,
Arnold’s conviction became final on April 23, 2012 (once the
90‐day period for seeking certiorari from the U.S. Supreme
Court expired, see Ray v. Clements, 700 F.3d 993, 1003 (7th Cir.
2012)). Arnold thus had until April 24, 2013 to file his habeas
petition. He did not actually file the petition until December 21,
2015, more than two and one‐half years after the deadline.
Arnold’s second post‐conviction motion, based on M.A.’s
recantation affidavit, had no impact in this regard, as the
motion was not filed until after the one‐year deadline for
seeking relief in habeas corpus had already passed. R. 17 at
3–4.
The district court considered whether Arnold’s claim of
actual innocence could excuse the running of the limitations
3
Arnold’s petition also asserted that the state courts had misapplied,
and/or abused their discretion in applying, certain Wisconsin statutory
provisions and had deprived him of his rights to due process and equal
protection under the Wisconsin constitution. But because a section 2254
petition is aimed at vindicating a petitioner’s federal rights, errors of state
law are not cognizable on habeas review. See § 2254(a); see also, e.g., Dellinger
v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002).
10 No. 16‐3392
period, but concluded it could not. The court noted that under
Schlup v. Delo, supra, 513 U.S. at 327, 115 S. Ct. at 867, it was
Arnold’s burden to establish that “it is more likely than not
that no reasonable juror would have convicted him in light of
the new evidence” of his innocence. R. 17 at 4. Arnold’s claim
was founded on his son’s recantation affidavit, but the Wiscon‐
sin Court of Appeals had said that the affidavit “offered the
same type of evidence that was before the jury,” which by
virtue of witness testimony that M.A. had made pre‐trial
statements denying that his father had assaulted him, had
necessarily been called upon to evaluate the consistency and
credibility of M.A.’s account. R. 17 at 5 (quoting Arnold, 2015
WL 540534, at *2). The state court, in other words, had already
engaged in the type of analysis that Schlup mandated of the
district court, and had concluded that M.A.’s recantation
affidavit would not have affected the jury’s verdict. R. 17 at 5.
“Accordingly, because Arnold cannot prove that no reasonable
juror would have convicted him, Arnold cannot satisfy the
requirements for the actual innocence exception.” R. 17 at 5
(emphasis in original). The court went on to deny Arnold’s
request for a certificate of appealability. R. 17 at 5–6.
Arnold filed a notice of appeal, accompanied with a
renewed application for a certificate of appealability and a
request that we appoint counsel to represent him. After an
initial review of the district court’s order and the record on
appeal, this court found that Arnold had “made a substantial
showing of the denial of his right to due process, given new
evidence that the victim fabricated his testimony at trial.”
Appellate Ct. R. 8 (Kanne, J.). We therefore granted the request
for a certificate of appealability and Arnold’s request for
No. 16‐3392 11
appointed counsel. The State subsequently moved to vacate
that order, arguing that whatever potentially meritorious
constitutional claim Arnold might have, the district court’s
finding that Arnold’s habeas petition was untimely resolved
the appeal. We rejected the State’s motion, pointing out that
“the correctness of the court’s assessment of timeliness is
implicated in the constitutional claim we identified, since the
district court held that Arnold had not provided ‘new’ evi‐
dence demonstrating his innocence that would justify an
exception to the statute of limitations.” Appellate Ct. R. 10.
II.
There is no dispute that Arnold filed his habeas petition
beyond section 2244(d)(1)’s one‐year time limit, so his petition
is barred as untimely unless he can establish that he qualifies
for an exception to the time limit. Arnold is relying on his
alleged actual innocence to overcome the time barrier. Actual
innocence is an equitable exception that renders the time limit
set forth in section 2244(d)(1) inapplicable. McQuiggin v.
Perkins, supra, 569 U.S. at 386, 133 S. Ct. at 1928; see also Gladney
v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). As it happens,
Arnold also wants to pursue a freestanding claim of actual
innocence in his petition, so the allegations of actual innocence
are doing “double duty” in this case both as a gateway to
belated habeas review and as a substantive basis for granting
the writ. Perrone v. United States, 889 F.3d 898, 903 (7th Cir.
2018).
Schlup establishes the framework for evaluating a claim of
actual innocence as a gateway to review of a habeas claim that
would otherwise be foreclosed by untimeliness or some other
12 No. 16‐3392
type of procedural default. See McQuiggin, 569 U.S. at 386, 133
S. Ct. at 1928. A claim of actual innocence must be both
credible and founded on new evidence. Schlup, 513 U.S. at 324,
115 S. Ct. at 865. To be credible, the claim must have the
support of “reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence.” Ibid. That evidence must also be new in the
sense that it was not before the trier of fact. Ibid.; Gladney, 799
F.3d at 896, 898. The petitioner’s burden is to show that, in light
of this new evidence, it is more likely than not that no reason‐
able juror would have found him guilty beyond a reasonable
doubt. Schlup, 513 U.S. at 327, 115 S. Ct. at 867; see also id. at 329,
115 S. Ct. at 868. In evaluating the claim, the court is to conduct
a comprehensive assessment that takes into account any
reliable evidence probative of petitioner’s innocence or guilt,
even evidence that was previously excluded; the court is not
bound by the rules of evidence that would govern at trial. Id.
at 327–28, 115 S. Ct. at 867. It is not the court’s role to determine
independently what the petitioner likely did or did not do;
rather, its task is to assess the likely impact of the new evidence
on reasonable jurors. Id. at 329, 115 S. Ct. at 868. Although any
delay or lack of diligence by the petitioner in pursuing his
claim of actual innocence is not a bar to the claim, it is among
the factors that the court may consider in assessing the merits
of the claim. McQuiggin, 569 U.S. at 388–400, 133 S. Ct. at
1935–36.
Although a finding that Arnold has met the Schlup standard
would open the door to habeas review notwithstanding section
2244(d)(1)’s time limit, it is by no means clear that his claim of
actual innocence by itself would entitle him to a writ of habeas
No. 16‐3392 13
corpus. In order to obtain habeas relief, a state prisoner must
show that his conviction violates the Constitution, laws, or
treaties of the United States. Estelle v. McGuire, 502 U.S. 62,
67–68, 112 S. Ct. 475, 480 (1991). To date, an assertion of actual
innocence based on evidence post‐dating a conviction has not
been held to present a viable claim of constitutional error. See
Herrera v. Collins, 506 U.S. 390, 400–02, 113 S. Ct. 853, 860–61
(1993). The Court in Herrera assumed without deciding that the
Eighth Amendment precludes the execution of a person who
has demonstrated his actual innocence. Id. at 417, 113 S. Ct. at
869; see also id. at 419, 113 S. Ct. at 870 (O’Connor, J., concur‐
ring); id. at 429, 113 S. Ct. at 875 (White, J., concurring in the
judgment). But neither the Supreme Court nor this court has
yet indicated that an actual innocence claim could, standing
alone, support the issuance of a writ in a non‐capital case. See
McQuiggin, 569 U.S. at 392, 133 S. Ct. at 1931 (“We have not
resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.”); Tabb v.
Christianson, 855 F.3d 757, 764 (7th Cir.), cert. denied, 138 S. Ct.
365 (2017) (describing issue as “open to debate” and collecting
Supreme Court statements to that effect).4 Indeed, we recently
4
It is also unsettled what particular standard of proof a petitioner would
have to meet in order to be entitled to relief on a freestanding claim of
innocence. See Herrera, 506 U.S. at 417, 113 S. Ct. at 869 (“the threshold
showing for such an assumed right would necessarily be extraordinarily
high”); House v. Bell, 547 U.S. 518, 555, 126 S. Ct. 2064, 2087 (2006) (“The
sequence of the Court’s decisions in Herrera and Schlup—first leaving
unresolved the status of freestanding claims and then establishing the
gateway standard—implies at the least that Herrera requires more convinc‐
ing proof of innocence than Schlup.”); Tabb, 855 F.3d at 764.
14 No. 16‐3392
characterized as “doubtful” the notion that such a claim could
support relief on collateral review of a conviction. Perrone, 889
F.3d at 903.5
But before we could even take up this question, Arnold
would have to pass through the innocence gateway by making
the showing that Schlup requires. Unless he can overcome the
time bar on his habeas petition in that manner, there would be
no need and no authority for us to entertain his habeas
petition, whatever substantive claims for relief it might raise.
Both parties, ultimately, recognize the important role that
an evidentiary hearing will play in assessing Arnold’s claim.
Arnold’s central point on appeal is that the veracity of M.A.’s
affidavit has yet to be reviewed by any court, state or federal,
and that he is entitled to a hearing for that very purpose. For its
part, the State contends in the first instance that M.A.’s
recantation, even if it could meet the Schlup standard, could not
possibly meet the standard for granting relief on a freestanding
claim of actual innocence, whatever that standard might be, see
n.4 supra, when the recantation is considered along with all of
the evidence supporting Arnold’s conviction. But the State
concedes that if we are not convinced by that argument, we
should remand for an evidentiary hearing before the district
court. As we now explain, we agree with the parties that the
appropriate step for us to take at this juncture is to remand for
such a hearing.
5
Perrone dealt with a challenge per 28 U.S.C. § 2255 to a federal statutory
sentencing enhancement.
No. 16‐3392 15
Arnold has presented a plausible claim of actual innocence.
It is founded on M.A.’s formal recantation of his trial testi‐
mony, which necessarily amounts to new evidence in the sense
that the recantation was not before the jury that convicted him.
(More on that in a moment.) And M.A. himself has docu‐
mented his recantation in an affidavit he swore to and signed
in the presence of a notary and two other witnesses. Given that
the State’s case against Arnold rested primarily, if not exclu‐
sively, on M.A.’s testimony, his recantation as the accusing
witness necessarily presents the possibility that Arnold could
be factually innocent of assaulting his son.
We reject the State’s suggestion that M.A.’s recantation
could not meet the standard for relief on a freestanding claim of
actual innocence, however credible a factfinder might deter‐
mine it to be, such that it would be futile to proceed further.
The State presumes (not unreasonably) that the standard for
granting habeas relief on such a claim would be even more
demanding than the standard Schlup has established for
innocence as a gateway to habeas review. See n.4 supra. But the
State has not ventured a guess as to what incremental increase
in the burden of proof relief on a freestanding claim of actual
innocence might require beyond Schlup’s already demanding
standard (Schlup plus … what?). In that sense, the State’s
futility argument is really directed as much to the gateway
function of Arnold‘s innocence claim as it is to the habeas‐relief
function of the claim (assuming there is one).
No doubt the Schlup standard is an onerous one for the
petitioner to meet: the Supreme Court has indicated that it will
be the rare case that can successfully navigate through the
innocence gateway. See McQuiggin, 569 U.S. at 386, 133 S. Ct. at
16 No. 16‐3392
1928 (“[w]e caution … that tenable actual‐innocence gateway
pleas are rare”), citing Schlup, 513 U.S. at 329, 115 S. Ct. at 868;
House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006) (“the
Schlup standard is demanding and permits review only in the
extraordinary case”) (cleaned up); see also Blackmon v. Williams,
823 F.3d 1088, 1099 (7th Cir. 2016); Hayes v. Battaglia, 403 F.3d
935, 938 (7th Cir. 2005). Toward that end, Schlup emphasizes
that the evidence of a petitioner’s innocence must be reliable.
513 U.S. at 324, 115 S. Ct. at 865.
Arnold’s claim of innocence is not founded on DNA or
other scientific evidence that can be characterized as objective.
(Then again, neither was his conviction.) It is, instead, based on
the accusing witness’s post‐conviction representation that his
prior testimony was false, notwithstanding the oath he took at
trial to testify truthfully. Certainly there are reasons to treat
recantations generally with a healthy dose of skepticism. See
Mendiola v. Schomig, 224 F.3d 589, 593 (7th Cir. 2000); Dobbert v.
Wainwright, 468 U.S. 1231, 1233, 105 S. Ct. 34, 36 (1984)
(Brennan, J., dissenting from denial of certiorari) (“Recantation
testimony is properly viewed with great suspicion.”); Davis v.
Bradshaw, 2018 WL 3913103, at *1 (6th Cir. Aug. 16, 2018) (“A
recantation is not always a good reason for a new trial. The
recanting witness, in fact, may have told the truth the first
time. …”). M.A. himself told the jury that he loved his father
and simply wanted him to get the help he needed. R. 31‐2 at
218–19. It is entirely possible that M.A.’s recantation is the
product of guilt and/or pressure from family members rather
than a belated confession of what is true. Mendiola, 224 F.3d at
593. Indeed, a clinical psychologist who testified for the State
at Arnold’s trial opined that recantations by juvenile victims of
No. 16‐3392 17
familial sexual abuse are more likely to be explained by “very
strong statements from people about the damage that they [the
accusers] are doing to a person, the damage that they are doing
to the family, from friends who are saying, you’re weird if you
go ahead with this, et cetera.” R. 31‐2 at 340–41.6 These and
other considerations might lead a court, after the recantation is
fully aired in an adversarial hearing, to conclude that it is
insufficiently reliable to satisfy the Schlup standard. See, e.g.,
Jones v. Taylor, 763 F.3d 1242, 1249–51 (9th Cir. 2014) (conclud‐
ing after evidentiary hearing at which recanting witnesses,
including victim, testified that recantations were insufficient to
meet Schlup standard, let alone extraordinarily high standard
for relief on freestanding claim of actual innocence); Doe v.
Menefee, 391 F.3d 147, 165–73 (2d Cir. 2004) (Sotomayor, J.) (2‐1
opinion) (concluding after evidentiary hearing that recantation
of victim and testimony of petitioner were insufficiently
reliable to meet Schlup standard).
But given the extent to which the conviction rests on M.A.’s
testimony, we are not prepared to say that Arnold’s claim
cannot possibly meet the Schlup gateway standard (or what‐
ever incrementally higher standard might govern a freestand‐
ing claim of actual innocence) when no factfinder has yet heard
M.A. testify under oath on the matter of his recantation. M.A.’s
recantation, if it represents the truth, would by itself exonerate
6
The psychologist was of course not addressing the veracity of M.A.’s
affidavit, which post‐dated the trial. She had neither met M.A. nor
evaluated the reliability of his account of the abuse his father inflicted upon
him. That said, her testimony, and other expert opinion in a similar vein,
would be quite relevant to an evaluation of the credibility and reliability of
M.A.’s recantation and the strength of Arnold’s claim of actual innocence.
18 No. 16‐3392
Arnold as a factual matter. See, e.g., Lopez v. Trani, 628 F.3d
1228, 1231 (10th Cir. 2010) (concluding for purposes of certifi‐
cate of appealability that reasonable jurists might find claim of
actual innocence, supported by affidavit of rape victim
recanting trial testimony and averring sex was consensual, to
be sufficient under Schlup to overcome time bar to late habeas
petition); Cain v. Oregon, 546 F. App’x 641, 642 (9th Cir. 2013)
(non‐precedential decision) (finding victim’s unequivocal
recantation sufficient to satisfy Schlup).7 To say that there is no
7
Because Arnold’s conviction rests substantively on M.A.’s testimony, this
case may be contrasted with others in which the newly proffered evidence
of innocence did not by itself exonerate the petitioner or there was
additional evidence of the petitioner’s guilt apart from the testimony
supplied by a recanting witness. See, e.g., Davis, 2018 WL 3913103, at *11–*15
& n.13 (recantation of murder eyewitness did not present credible gateway
innocence claim where, inter alia, witness’s original inculpatory statements
were corroborated by other evidence, jury that convicted petitioner was
aware that witness had not only made inconsistent statements but had
previously recanted under oath and then rescinded recantation, and
additional evidence presented at evidentiary hearing regarding innocence
claim of petitioner’s co‐defendant had further corroborated witness’s
inculpatory version of events); Gladney, 799 F.3d at 899–900 (testimony of
new witness insufficient to meet Schlup standard, as witness did not see
fatal encounter between petitioner and victim and his testimony even if
credited would not compel reasonable juror to conclude that petitioner had
killed victim believing he was acting in self‐defense); Gandarela v. Johnson,
286 F.3d 1080, 1086 (9th Cir. 2002) (rejecting need for hearing on petitioner’s
innocence claim where “[n]one of the proffered evidence involves a
recantation by the victim or the other children who witnessed petitioner
kissing her.”); United States v. Baker, 824 F. Supp. 2d 918, 922 (D. N.D. 2011)
(denying motion to withdraw guilty plea based on victim’s recantation
where defendant previously “had numerous opportunities to maintain his
(continued...)
No. 16‐3392 19
point in proceeding to a hearing, given the rarity with which
actual innocence pleas satisfy the Schlup gateway standard and
the skepticism owed to recantations, would be to deem the
innocence gateway closed to any petitioner whose conviction
rests on the resolution of a credibility contest in favor of an
accusing witness who has since disavowed his testimony.
Whether Arnold’s claim of innocence meets the
Schlup standard can only be determined after M.A.’s new
account of events is subjected to adversarial testing under oath
before a factfinder, so that the credibility and reliability of the
recantation may be assessed. The Wisconsin courts themselves
never passed on the credibility of M.A.’s recantation. Cf.
Mendiola, 224 F.3d at 592–93 (state appellate court deemed
witness’s recantation to be highly incredible). Instead, the
Wisconsin appellate court found it unnecessary to hear M.A.
on the matter of his recantation, reasoning that it did not meet
the state criteria for newly discovered evidence to the extent it
was cumulative of evidence already before the jury. Arnold,
2015 WL 540534, at *2. As a result, no factfinder to date has
witnessed M.A. testify on the assertions made in his affidavit
and rendered a judgment as to whether M.A. is credible in his
recantation of the testimony he gave at trial. Of course, the
recantation itself is not the only evidence that must be consid‐
ered in weighing the merits of Arnold’s claim. See Schlup, 513
S. Ct. at 327–28, 115 S. Ct. at 867. But only after M.A. is heard
and his credibility is evaluated can a court weigh the strength
and reliability of the recantation against all of the evidence
7
(...continued)
innocence, but instead admitted his guilt”).
20 No. 16‐3392
bearing on Arnold’s guilt and determine whether Arnold has
met the demanding Schlup standard.
The district court, like the state court, presumed that no
such hearing was necessary, because the jury had heard
defense witnesses recount M.A.’s alleged pre‐trial, out‐of‐court
statements denying that Arnold had sexually assaulted him. To
that extent, the matter of M.A.’s inconsistent statements on the
question of Arnold’s guilt was already before the jury, and the
jury, in convicting Arnold, obviously believed his trial testi‐
mony nonetheless. Thus, in the state court’s view, M.A.’s post‐
trial recantation did not constitute new evidence for purposes
of his request for a new trial. And based on that understanding
of M.A.’s affidavit, the district court was convinced that
“Arnold cannot prove that no reasonable juror would have
convicted him [and therefore he] cannot satisfy the require‐
ments for the actual innocence exception.” R. 17 at 5 (emphasis
in original).
Neither party has considered what weight, if any, we must
give to the state appellate court’s finding that M.A.’s recanta‐
tion was cumulative. The court made that finding in resolving
a question of state law (whether the recantation entitled
Arnold to a new trial under section 974.06) rather than a
federal constitutional claim.8 The district court pointed out that
the state court’s analysis as to whether the affidavit constituted
“newly discovered” evidence under Wisconsin law was “in
line with” the Schlup requirements for the actual innocence
8
Wisconsin law does not currently recognize a claim of actual innocence
based on newly discovered evidence. See State v. McAlister, 911 N.W.2d 77,
86 (Wis. 2018) (declining to reach issue).
No. 16‐3392 21
exception to section 2244(d). R. 17 at 5. That is true in the sense
that both inquiries focus on whether the newly‐proffered
evidence would meaningfully alter the nature of the eviden‐
tiary mosaic informing the jury’s assessment of guilt. But given
that the state court was not resolving a federal claim, we are
not in the usual posture of considering whether the state
court’s analysis was contrary to, or constituted an unreason‐
able application of, Supreme Court constitutional precedents.
See § 2254(d)(1). We are instead considering whether Arnold
can show that he is entitled to the benefit of an equitable
exception to the time bar set forth in a federal statute (section
2244(d))—a purely federal matter. See McQuiggin, 569 U.S. at
394, 133 S. Ct. at 1932; Gladney, 799 F.3d at 895–96. So it is not
obvious that we should be bound by the state court’s finding
as to a separate question of state law. True, the state court’s
finding is partly factual, see § 2254(d)(2), although it does not
amount to a finding of historical fact, see Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1259 (11th Cir. 2012) (op. of
Carnes, J.). If anything, it is a mixed finding of law and fact:
factual to the extent that it describes and compares the content
of the affidavit with the evidence already before the jury, and
legal to the extent it embodies an understanding of the pur‐
poses for which the evidence—old and new—was and is
offered and its relevance to the issues in the case. See Mosley v.
Atchison, 689 F.3d 838, 848–49 (7th Cir. 2012); Washington v.
Smith, 219 F.3d 620, 634 (7th Cir. 2000). In any case, the State
has not argued for any degree of deference to the state court’s
characterization of the recantation as cumulative; and for the
reasons that follow, we believe the state court was quite clearly
wrong to characterize it as such.
22 No. 16‐3392
The Wisconsin Court of Appeals’ decision treated M.A.’s
prior inconsistent statements regarding the sexual assaults as
recantations, and in that sense viewed them as the equivalent
of M.A.’s post‐trial affidavit disavowing his trial testimony, but
the inconsistent statements and the affidavit are two very
different things. A recantation is generally understood to be
the formal renunciation or withdrawal of one’s prior statement
or testimony. BLACK’S LAW DICTIONARY 1459 (10th ed. 2014).
We may set aside the obvious point that any out‐of‐court
statements that M.A. made prior to trial were not under oath
and assume that one could treat the statements Behm and
Augsburger attributed to M.A. as recantations of the report he
had given to the authorities—if he acknowledged making those
statements. But M.A. did not, in fact, acknowledge making
those statements to Behm and Augsburger; he unequivocally
denied having said to either Behm or Augsburger that nothing
had happened between himself and his father. R. 31‐2 at 267,
269, 275–76; R. 31‐3 at 623–24. And the jury, of course, could
well have chosen to credit M.A. on this point: Behm and
Augsburger, after all, were both close to Arnold (Behm was
Arnold’s aunt and Augsburger was his good friend). Given the
possibility that the jury could have believed the alleged
recantations to be a fiction concocted by defense witnesses, it
is inaccurate to say that M.A.’s “recantations” were already
before the jury. M.A.’s post‐trial affidavit, by contrast, indubi‐
tably is his own statement,9 and that affidavit specifically
disavows his own prior trial testimony. In no sense is that
recantation cumulative of the evidence before the jury. The
9
There is no suggestion that the affidavit is not genuine.
No. 16‐3392 23
recantation is, therefore, genuinely “new” evidence of Arnold’s
innocence that was not considered by the jury, which demands
a fresh assessment of all of the evidence bearing on Arnold’s
guilt for purposes of determining whether he meets the Schlup
standard.
The appropriate step, then, as the State recognizes, is for us
to remand the case to the district court for an evidentiary
hearing at which the credibility of M.A.’s recantation can be
assessed along with the probable impact that the recantation
would have had on reasonable jurors. As Schlup makes clear,
any reliable evidence bearing on the veracity of the recantation
and on Arnold’s guilt or innocence may be considered in
making these assessments.
Our decision to remand for a hearing should not be
understood as reflecting any finding or impression on our part
as to the reliability and credibility of the recantation. That is a
question for the factfinder. We hold only that, taking M.A.’s
affidavit at face value, Arnold has a plausible claim of actual
innocence entitling him to an evidentiary hearing.
If, upon hearing and weighing the evidence, the district
court concludes that no reasonable juror would have found
Arnold guilty beyond reasonable doubt in view of M.A.’s
recantation, then Arnold will be entitled to pursue his habeas
petition notwithstanding its tardiness under section 2244(d)(1).
At that point, it will be necessary to consider whether his
freestanding claim of actual innocence presents a viable claim
for relief in habeas and what standard of proof Arnold would
have to meet in order to prevail on that claim. If, on the other
hand, the court concludes that a reasonable juror could still
24 No. 16‐3392
have convicted Arnold beyond a reasonable doubt notwith‐
standing M.A.’s recantation, then his petition must be dis‐
missed as untimely.
III.
The judgment of the district court is VACATED, and the
case is REMANDED for further proceedings consistent with
this opinion.
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611 F.2d 1295
103 L.R.R.M. (BNA) 2494, 87 Lab.Cas. P 11,818
LOCAL NO. 3-193 INTERNATIONAL WOODWORKERS OF AMERICA,Plaintiff-Appellant,v.KETCHIKAN PULP COMPANY, Defendant-Appellee.
No. 77-3057.
United States Court of Appeals,Ninth Circuit.
Jan. 21, 1980.
1
Herman L. Wacker, Vance, Davies, Roberts, Reid & Anderson, Seattle, Wash., for plaintiff-appellant.
2
Thomas S. Zilly, Lane, Powell, Moss & Miller, Seattle, Wash., on brief; Eugene R. Nielson, Seattle, Wash., for defendant-appellee.
3
On Appeal from the United States District Court for the District of Alaska.
4
Before CHAMBERS and TANG, Circuit Judges, and THOMPSON,* District Judge.
BRUCE R. THOMPSON, District Judge:
5
This action was instituted in an Alaska Superior Court by Local 3-193 International Woodworkers of America (Union) versus Ketchikan Pulp Company (Ketchikan) to interpret and enforce Article I a collective bargaining agreement between the parties which provided:
6
"During the life of this agreement, the Union shall be the sole collective bargaining agency for all production, booming and rafting, cookhouse, construction and maintenance employees of the Ketchikan Pulp Company in its logging operations in Southeastern Alaska; but excluding clerical and office employees, guards, professional employees, supervisory employees; and the employer does hereby recognize such Union and the bargaining agency."
7
The action was removed by defendant to the United States District Court upon the assumption that the complaint stated a claim for relief under Section 301 of the Labor Management Relations Act (29 U.S.C. § 185).
8
At the time the collective bargaining agreement between the Union and the employer was entered into, the employer operated one logging operation in Thorne Bay, Alaska.
9
During the life of the agreement, the employer acquired several other logging operations in Southeastern Alaska, but refused to recognize the Union as the representative of employees of those operations. These operations were geographically distinct, had no interchange of employees, and were autonomously operated by subsidiary corporations. Neither the Union nor Ketchikan sought relief from the National Labor Relations Board. The District Court found that the employees of the newly acquired operations were needed for a just adjudication under Fed.R.Civ.P. 19 (CT 173). Because appellant refused to amend its complaint to join the employees, the case was dismissed for failure to join indispensable parties. This was the sole ground for dismissal stated by the District Court in its written order dated July 25, 1977.
10
On appeal both parties agree that the District Court erred in basing its order of dismissal on the notion that the employees, or representatives of the employees, of the logging camps in dispute were indispensable parties to this litigation. This was an issue raised Sua sponte by the District Court relying on Culinary Workers & Bartenders Union Local 814 v. Salatich, 318 F.Supp. 1047 (C.D.Cal.1970). While the cited case is in point, other precedents demonstrate that it does not represent the law in this Circuit. In Retail Clerks Union Local 1222 v. Alfred M. Lewis, Inc., 327 F.2d 442 (9th Cir. 1964), the Court held that jurisdiction lies under Section 301 at the behest of the local union against the employer to enforce a cost-of-living wage adjustment section of a collective bargaining agreement for the benefit of all the union members, and that it was not, in essence, an effort to enforce individual wage claims, requiring the presence of individual union members as indispensable parties. The conclusion that individual union members affected by the dispute are not indispensable parties to a Section 301 action between the union and the employer was reaffirmed in Fibreboard Paper Products Corp. v. East Bay Union of Machinists Local 1304, 344 F.2d 300 (9th Cir.), Cert. denied, 382 U.S. 826, 86 S.Ct. 61, 15 L.Ed.2d 71 (1965). See also: Kaplan v. Int'l Alliance of Theatrical Employees, 525 F.2d 1354 (9th Cir. 1975).
11
The relief sought by the Union as expressed in the prayer of the complaint is:
12
"1. An order of this court declaring that Article I of the Labor Agreement between the parties means that plaintiff is the bargaining agent for the employees of all logging companies owned by defendant in Southeastern Alaska.
13
"2. That plaintiffs be awarded damages for their loss of initiation fees and dues from employees of Ketchikan Pulp Company, engaged in logging outside of the Thorne Bay camp in Southeastern Alaska."
14
The Union promptly moved for partial summary judgment for a declaration in conformity with its first prayer. Ketchikan countered with a motion for summary judgment supported by affidavits and contended that the undisputed material facts showed that the logging operations outside of the Thorne Bay camp were not covered by the labor agreement under the doctrine of accretion.
15
Although the Union argued the principle of accretion before the District Court, its basic claim is that this is strictly an action under Section 301 to construe and enforce a collective bargaining agreement and that the doctrine of accretion is totally irrelevant.
16
On appeal a jurisdictional issue has also been posed. Citing West Point-Pepperell, Inc. v. Textile Workers Union, 559 F.2d 304 (5th Cir. 1977), it is suggested that the District Court lacked jurisdiction under Section 301 because the issue here is in reality a representational issue, not a contract issue, and the National Labor Relations Act vests exclusive authority in the NLRB to pass on questions of representation. Neither party agrees with this contention. The Union argues that all it wants the Court to do is declare the meaning of the plain language of the contract, taken by its four corners, and that it has jurisdiction under Section 301 to do so. If, after such a declaration, either party commits what may arguably be deemed an unfair labor practice, appropriate complaints may be filed with the NLRB. On the other hand, Ketchican points to Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964) as direct authority that the federal courts have jurisdiction under Section 301 to enforce the arbitration clause of a collective bargaining agreement even if the contract issue to be interpreted involved a question of representational status. Ketchikan argues that we should accept jurisdiction and decide the accretion issue on the merits because neither party has seen fit to invoke the primary jurisdiction of the NLRB. Ketchikan argues that in the light of Carey (supra) if arbitrators have the right to consider representation issues, a district court has the same power in an action under Section 301 when the collective bargaining agreement contains no arbitration clause. In the words of Judge Browning (Bartenders & Culinary Workers Union Local 340 v. Howard Johnson Co., 535 F.2d 1160, 1163 (9th Cir. 1976)), "There is no incisive response, in purely conceptual terms, to this argument." Nevertheless, we think the Supreme Court has made it fairly clear in subsequent cases that a decisive factor in the Carey case was the very strong policy favoring the invocation of arbitration to resolve all kinds of labor disputes under collective bargaining agreements providing for arbitration. Justice Douglas said in part: "The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area." Carey, 375 U.S. at 272, 84 S.Ct. at 409. When it is clear under the facts of the particular case that the thrust of the Section 301 action is to impose the terms of a collective bargaining agreement upon an employer who was not a party to it, did not assume it and could not by operation of law be equitably charged with responsibility for it, the action must fail. Howard Johnson Co. v. Detroit Local Jt. Exec. Bd., Hotel Employees Union, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974); Bartender & Culinary Workers Union Local 340 v. Howard Johnson Co. (supra). It is also established that a Section 301 action will lie to enforce a no-strike clause of a contract, and this despite the fact that the claim might also be processed as an unfair labor practice before the NLRB. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974). A lockout, which also may give rise to an unfair labor practice charge, is fair meat for a Section 301 breach of contract charge. Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).
17
But there is a critical difference between an unfair labor practice charge and the basic policy of the National Labor Relations Act vesting primary (if not exclusive) jurisdiction in the NLRB in two decisive areas of labor-management relations: (1) the designation of an exclusive bargaining agent, and (2) identification of an appropriate collective bargaining unit under Section 9 of the Labor Management Relations Act (29 U.S.C. § 159). The Fifth Circuit in West Point-Pepperell, Inc. v. Textile Workers, supra; and in Nat'l Ass'n of Women's and Children's Apparel Salesmen, Inc. v. FTC, 479 F.2d 139 (5th Cir.), Cert. denied, 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240 (1973), has proclaimed NLRB jurisdiction to be exclusive, citing NLRB v. Cabot Carbon Co., 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175 (1959). We cannot read Cabot Carbon as supporting this conclusion, particularly in the light of Carey, supra, which recognizes arbitration as an appropriate alternative process for the resolution of representation issues. It is, nevertheless, evident from the precedents that there is a very, very strong policy of self-determination using the procedures vested in the NLRB under our National Labor Relations Act for the promotion of industrial peace, and while contracted for arbitration is a useful and viable alternative to the same end, it should be observed that Carey (supra) itself recognized the superior authority of the Board.
18
Undoubtedly in recognition of this conception of congressional policy, the labor bar has processed almost all representation problems administratively through the NLRB, and such problems have been given judicial attention through review of NLRB action. For examples: NLRB v. Cabot Carbon Co., supra; Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); NLRB v. Local 103, Int'l Ass'n of Bridge Workers, 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978); South Prairie Constr. Co. v. Local 627, Int'l Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976); NLRB v. Retail Clerks Local 588, 587 F.2d 984 (9th Cir. 1978); NLRB v. Hosp. & Inst'l Workers Union, Local 250, 577 F.2d 649 (9th Cir. 1978); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); NLRB v. Food Employers Council, Inc., 399 F.2d 501 (9th Cir. 1968); Westinghouse Elec. Corp. v. NLRB, 440 F.2d 7 (2d Cir.), Cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971); Retail Clerks Int'l Ass'n, Local 455 v. NLRB, 166 U.S.App.D.C. 422, 510 F.2d 802 (D.C.Cir.1975).
19
The issues in the present case involve problems of self-determination in representation and of identification of the appropriate bargaining unit. These same issues, including questions of successor employers and of accretion to existing bargaining units have been thoroughly canvassed in the cases cited, which are merely samples of the myriad of precedents available.
20
We think the action of the Supreme Court in South Prairie Const. Co. (supra) is particularly illuminating. The headnote accurately summarizes the facts and ruling.** In its opinion the Court stated:
21
"In foreclosing the Board from the opportunity to determine the appropriate bargaining unit under § 9, the Court of Appeals did not give 'due observance (to) the distribution of authority made by Congress as between its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution.' FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 141, 60 S.Ct. 437, 440, 84 L.Ed. 656, 661 (1940)."
22
Id. 425 U.S. at 806, 96 S.Ct. at 1845.
23
This declaration of the strong policy of judicial deference to initial determination by the NLRB of representation issues is equally applicable to actions under Section 301. In the present case the Union is attempting an end run around Section 9 of the Act and under the guise of contract interpretation wants to avoid self-determination of a bargaining agent by a substantial number of employees and determination of an appropriate bargaining unit by the NLRB, which has primary authority in this area. This cannot be countenanced. Although we have disagreed with the District Court that these difficulties can properly be solved under the rubric of "indispensible parties", we do agree with the reasoning that led him to that conclusion. The proposition that this large number of employees in dispersed logging camps may properly be incorporated into the Thorne Bay bargaining unit Vi et armis and without voice in the matter is absolutely untenable.
24
Also pertinent to the issues in this case is the decision in Linden Lumber Division v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). In that case the employer had refused to recognize the petitioning union as the collective bargaining agent for the employees. The union presumably had obtained card authorization from a majority of the employees, but the employer questioned this claim. The holding of the Court is summarized in the final paragraph.
25
"In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process, a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board's election procedure."
26
Id. at 310, 95 S.Ct. at 434.
27
The case is relevant to an interpretation of the clause in the instant contract upon which the Union relies: that is, that the Union shall be the sole collective bargaining agent for Ketchikan's logging camp employees in Southeastern Alaska. The problem of bringing unrepresented employees under the umbrella of an existing agreement was involved in N. L. R. B. v. Food Employer's Council, Inc., 399 F.2d 501 (9th Cir. 1968). There our Court enforced a Board order that the employees in question were not accreted to the existing unit, and took the occasion to observe:
28
"In situations in which complex and difficult factual determinations are necessary, however, it would seem advisable and not unduly burdensome for unions such as the respondent here to resolve close questions concerning the extension of bargaining agreements in favor of proselytizing the employees in question rather than seeking to represent them through the fait accompli of accretion. We frown upon the 'successful coup' technique. Cf. Retail Clerks Union, Local 770 v. NLRB, 370 F.2d 205, 208 (9th Cir. 1966)."
29
Id. at 505, n. 1. Later the District of Columbia Court of Appeals had before it Retail Clerks Int'l Ass'n, Local 455 v. N.L.R.B., 166 U.S.App.D.C. 422, 510 F.2d 802 (D.C.Cir.1975) for interpretation of a contract clause which recognized the union as the exclusive bargaining agent for all employees of the employer's present and future retail food stores. The Board found that the employer was under no obligation to bargain with the union respecting a new store, despite the fact that concededly valid union authorization cards were proffered for a majority of the new employees. The Court reversed and said:
30
"The answer to the question is that the 'additional store clause' can have no purpose other than to waive the employer's right to a Board ordered election. If the clause is 'interpreted' to permit the employer to petition for a Board election, then the clause means nothing to the union. The union and the employer have under the NLRA a right to seek an election. They do not need a contract clause to grant them that right. It follows that if the clause is interpreted to permit the employer to petition for an election, the clause is a nullity since it permits the employer to do what he could do without a contract. We conclude that the 'additional store clauses' involved here can only be interpreted to mean that the employer waives its right to a Board ordered election. The specific non-election recognition procedures which the clauses permit is a matter for the parties to consider in the first instance and we express no opinion whether authorization cards or other procedures may be utilized or objected to consistent with the clauses in issue here."
31
We return to the Ninth Circuit and consider the effect of the decision in NLRB v. Retail Clerks Local 588, 587 F.2d 984 (9th Cir. 1978). This case involved the interpretation and application of new stores clauses in contracts negotiated by competing unions. Our Court very carefully reviewed the legal effect of such a contract as applied to a new location and new employees and in footnote 2 approved the District of Columbia's interpretation (supra). The Court said:
32
"All parties proceeded on the assumption that employees of any new store should simply be accreted to the respective multi-store units in accordance with the existing contracts. This, of course, denies employees of a new store their freedom of choice, for an election is never held. New store employees are simply subsumed into the larger unit without anyone ascertaining whether they desire union representation, and if so, whether they desire to join the larger unit. The new stores clauses were relied on to justify this practice.
33
"The courts have frowned on this contractual usurpation of § 7 rights. E. g., Boire v. Int'l Bro. of Teamsters, 479 F.2d 778 (CA 5 1973). Since contract rights cannot exist independent of the union's right to represent the unit, the new stores clause cannot bind the new employees despite the employer's acquiescence. Local 7-210, Oil, Chemical and Atomic Workers v. Union Tank Car Co., 475 F.2d 194 (CA 7 1973), cert. denied, 414 U.S. 875, 94 S.Ct. 68, 38 L.Ed.2d 120 (1973).
34
"Board policy has been to deny efficacy to such clauses, and this court has explicitly approved this policy. E. g., Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (CA 9 1970). Thus, when a new store is opened, union representation cannot be forced on the new employees; they must be allowed to decide their own representation. NLRB v. Sunset House, 415 F.2d 545 (CA 9 1969). Employee freedom of choice will be denied only when the new employees have no separate identity from employees in the existing unit, NLRB v. Security-Columbian Banknote Co., 541 F.2d 135 (CA 3 1976): that is, when the new store cannot itself constitute an appropriate unit. Presumptively, a new store can constitute an appropriate unit, and consequently the new employees should rarely be accreted to the existing unit. Sheraton-Kauai Corp. v. NLRB, supra. Of course, the new employees can choose, through an election or more informal methods, to join the existing unit." (Emphasis supplied)
35
Id. at 986-87. In Sheraton-Kauai Corporation v. NLRB, 429 F.2d 1352, 1357 (9th Cir. 1970), the Court stated: "But neither the Board's discretion under section 9(b), nor the employees' right of self-determination under section 7, can be limited by contract between a union and employer."
36
In sum we conclude that Congress did not intend by enacting Section 301 to vest in the courts initial authority to consider and pass upon questions of representation and determination of appropriate bargaining units. The court does have jurisdiction to interpret Article I of the labor agreement between these parties. If it was the intention of the parties that said agreement be determinative of the appropriate bargaining area and unit, as applied to the independent logging camps (employees) outside Thorne Bay, Alaska, it is illegal and unenforceable. If it was the intention of the parties that said agreement be authority for the plaintiff to act as the collective bargaining agent for employees in logging camps outside Thorne Bay, Alaska, it is illegal and unenforceable. The sole operative effect, outside Thorne Bay, Alaska, of Article I of the agreement is to waive Ketchikan's right to demand an election as a method of proving majority support.
37
The judgment dismissing the action for lack of indispensable parties is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
*
Hon. Bruce R. Thompson, United States District Judge, District of Nevada, sitting by designation
**
Respondent union filed a complaint with the National Labor Relations Board alleging that two highway contractors (South Prairie and Kiewit), the wholly owned subsidiaries of another corporation, had committed an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act by refusing to apply to South Prairie's employees the collective-bargaining agreement between the union and Kiewit, that South Prairie and Kiewit constituted a single 'employer' under the Act for purposes of applying the agreement, and that hence under § 9 of the Act South Prairie was obligated to recognize the union as the bargaining representative of its employees. The NLRB held that South Prairie and Kiewit were separate employers and dismissed the complaint. But the Court of Appeals held that South Prairie and Kiewit were a 'single employer,' that their combined employees constituted the appropriate bargaining unit under § 9, and that therefore they had committed an unfair labor practice as charged, and remanded the case to the NLRB for enforcement of an order. Held: The Court of Appeals invaded the NLRB's statutory province when it proceeded to decide the § 9 'unit' question in the first instance, instead of remanding the case to the NLRB so that it could make the initial determination. Since the selection of an appropriate bargaining unit lies largely within the discretion of the NLRB, whose decision, if not final, is rarely to be disturbed, the Court of Appeals' function ended when the NLRB's error on the 'single employer' issue was 'laid bare.' 425 U.S. at 801, 96 S.Ct. at 1842
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7768
LARRY DARNELL SPEARS,
Petitioner - Appellant,
versus
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CA-04-1198-1)
Submitted: June 23, 2005 Decided: June 28, 2005
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry Darnell Spears, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry Darnell Spears appeals the district court’s order
dismissing without prejudice his 28 U.S.C. § 2254 (2000) petition
challenging the revocation of his state parole. Because the
district court subsequently vacated the order and has reinstated
Spears’ § 2254 proceeding, we deny a certificate of appealability
and dismiss this appeal. In light of this disposition, we deny
Spears’ motion to remand. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
- 2 -
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13 So.3d 51 (2007)
EX PARTE SMITHKLINE BEECHAM CORP. D/B/A GLAXOSMITHKLINE.
No. 1060264.
Supreme Court of Alabama.
June 1, 2007.
Decision without published opinion. Mandamus petition granted.[*]
NOTES
[*] The order issued in each of these cases indicates that the petition for the writ of mandamus was granted and the writ issued on the authority of Ex parte Novartis Pharms. Corp., 975 So. 2d 297 (Ala. 2007).
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4 Cal.App.2d 577 (1935)
RUSSELL E. HERMANCE, Appellant,
v.
JOHN N. BLACKBURN, Respondent.
Civ. No. 8079.
California Court of Appeals. Second Appellate District, Division One.
February 14, 1935.
Goodspeed, Pendell & McGuire for Appellant.
Richard C. Cantillon and Frank A. Sievers for Respondent.
The Court.
No brief having been filed herein by respondent, the following statement of facts is taken verbatim from the brief filed by appellant (Rule V, sec. 1):
"This action is one for malicious arrest and prosecution. The trial was before a jury. At the close of plaintiff's evidence, defendant made a motion for nonsuit which was granted, and thereupon a judgment of dismissal entered. Plaintiff appeals."
"Plaintiff and defendant are next door neighbors to one another. Defendant had built his home with an ornamental archway which extended therefrom over to and beyond the common boundary line between plaintiff and defendant. From this archway defendant built a small stone wall parallel to the boundary and extending to the street sidewalk. The encroachment of the arch and stone wall was about 1.85 feet. Plaintiff instituted a civil action to compel the removal of same. The trial court made findings in that action that the arch and stone wall did not encroach upon plaintiff's property. Plaintiff appealed from that judgment 'on the ground there was no evidence to sustain those findings and on said appeal the said judgment was reversed.' That action in the present action is referred to as the 'boundary line action'."
"Prior to the trial and decision of the 'boundary line action', plaintiff, in the early morning in the month of October, 1926, and while his automobile engine was running to deaden the sound of the blows of his hammer, broke up and removed the stone wall. Five months later the 'boundary line action' *579 was tried in which the decision above mentioned was rendered, and which was subsequently reversed by the Supreme Court. When that decision had been rendered by the trial court, this defendant had two typewritten notices posted warning and threatening to arrest and prosecute any person for any trespassing on defendant's property. One of these notices was posted in the front, and the other in the rear of the premises and within an inch of the boundary line which defendant claimed as 'represented by the southerly face of the stone wall as it had formerly existed', plaintiff's property being to the south of defendant's property. Plaintiff 'picked up said notices and (threw) them back' on to defendant's property. Thereupon defendant swore to and filed a criminal complaint against plaintiff on June 3, 1927, charging him with having destroyed said stone wall; that such criminal action was dismissed and on June 28, 1927, another criminal action was filed by defendant against plaintiff charging him with having maliciously torn up said stone wall and which was alleged to have been built upon defendant's property. On such charge plaintiff was arrested and tried, and a verdict of not guilty was returned by the jury. The present action has been brought to recover damages for such arrest and prosecution, which plaintiff alleges was done maliciously and without justifiable or probable cause."
On the trial of the instant action, under the provisions of section 2055 of the Code of Civil Procedure, plaintiff introduced defendant as a witness as for cross-examination. In the course of such examination, in substance defendant testified that prior to the institution by him of the criminal action against this plaintiff he had fully and fairly stated all the facts not only to his own attorney, but as well to a deputy district attorney, and thereupon had been advised by each of such attorneys that he had probable cause for the institution against the plaintiff herein of the criminal action. By the reporter's transcript of the testimony received in the "boundary line action", plaintiff also offered to prove that three different surveys had been made respecting the location of the boundary line between the properties of the respective parties, and "that each and every witness who testified in said action as to any survey made by such witness, testified that the stone wall had been wholly built upon (plaintiff's) said lot"; also that by the testimony given by *580 other witnesses in said action the fact would be established "that defendant was in court throughout the trial of the 'boundary line action' listening to the testimony".
An objection to the introduction of such evidence was sustained by the trial court, and such ruling is assigned by appellant as one of the reasons why the judgment herein should be reversed.
[1] In an action for the recovery of damages arising from a malicious criminal prosecution, although generally speaking the established fact that before the alleged prosecution was commenced, but after a full and fair disclosure had been made to an attorney at law of all the facts within the knowledge of a person who later was made a defendant in an action for such alleged malicious prosecution, the said attorney had advised such defendant that a crime had been committed by the person who subsequently became the plaintiff in the malicious prosecution action and that a criminal prosecution of such person would be justified, constitutes a defense to an action for the recovery of damages subsequently brought for malicious prosecution of such criminal action, such rule is distinctly qualified by the requirement that in making such disclosure of the facts, as well as in instituting such criminal proceedings, the person who became the defendant in the malicious prosecution action must have acted in good faith. (16 Cal.Jur. 741, and authorities there cited.)
[2] And in the instant case, although the testimony given by defendant may have tended to establish the existence of the fact that before causing the criminal proceedings to be instituted against plaintiff he had acted on the advice of counsel, his defense may have been incomplete in that it lacked proof of the essential element of good faith either in his statement of assumed facts to his counsel, or in instituting such criminal proceedings. It is obvious that in making such a statement of pertinent facts and circumstances relative to the advisability of instituting a criminal action against one who might be suspected of having violated the provisions of some penal statute, the narrator might relate facts that by outward appearances were true, but which, to the positive knowledge of the narrator, were either wholly untrue, or were subject to much modification. Therefore, in the instant case, on the issue of good faith, any fact would have been admissible in evidence that would have tended to show that, notwithstanding a pretended full and fair disclosure by defendant *581 to his attorney of the apparent facts that were present in connection with the commission of the alleged criminal offense, nevertheless defendant actually knew, or at least was in a fair position to ascertain (and which he had consciously failed to do), that the information which he gave to his attorney relative to the assumed facts was actually untrue in some essential particulars. And so, if by the record in the "boundary line action" plaintiff herein could have established the facts that throughout the trial of such action the defendant therein (and defendant herein) was present and heard the entire testimony that was given by each of the several surveyors to the effect that the archway and the stone wall constructed by defendant encroached upon the property of plaintiff, the good faith of defendant in assuming to the contrary of such testimony and in instituting against plaintiff a criminal action for trespass, wherein he was charged with "having maliciously torn up said stone wall", would very properly be called in question. Had such evidence been admitted, the motion for nonsuit interposed by defendant might not have been granted. If follows that the error of the trial court in rejecting the offered evidence was prejudicial to the substantial rights of plaintiff.
The judgment is reversed.
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506 F.3d 822 (2007)
Arangesan SUNTHARALINKAM, Petitioner,
v.
Peter D. KEISLER,[*] Acting Attorney General, Respondent.
No. 04-70258.
United States Court of Appeals, Ninth Circuit.
Filed October 31, 2007.
Visuvanathan Rudrakumaran, Esq., New York, NY, for Petitioner.
*823 District Director, Office of the District Counsel, Department of Homeland Security, San Diego, CA, Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Francis W. Fraser, Esq., Genevieve Holm, Esq., DOJ U.S. Department of Justice, Civil Div./Office of Immigration Lit., Jeffrey S. Bucholtz, Esq., DOJ U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Respondent.
Before: MARY M. SCHROEDER, Chief Judge, STEPHEN REINHARDT, ALEX KOZINSKI, PAMELA ANN RYMER, ANDREW J. KLEINFELD, HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.
ORDER
The order for publication filed October 18, 2007, is hereby withdrawn and replaced with the attached order for publication. The dissent remains as originally filed.
ORDER
The petitioner's unopposed Motion to Withdraw his Petition for Review is GRANTED. The government requests that dismissal be conditioned on vacatur of the panel opinion, which we agree is appropriate in the circumstances of this case. FRAP 42(b). The government also requests that the dismissal be conditioned on an award of court costs, which we decline to do. Therefore, the Petition for Review is DISMISSED. The panel opinion, reported at 458 F.3d 1034 (9th Cir.2006), is VACATED. Each party shall bear its own costs.
KOZINSKI, Circuit Judge, with whom Judges KLEINFELD, CLIFTON and CALLAHAN join, dissenting:
My colleagues dismiss the petition for review by relying on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner's rights in jeopardy and leave the door open to future litigation as to whether counsel's representations can bind the client.
1. The motion the court grants today was filed on July 12, 2007, 24 days after oral argument, which was held on June 18, 2007. It reads as follows, in its entirety:
The Petitioner, Arangesan Suntharalinkam, through his attorney, Visuvanathan Rudrakumaran, states as follows:
1) Following the questions from the Bench pertaining to the relevance of the instant Petition for Review during oral argument, given the fact that the Petitioner is in Canada, the Petitioner's counsel discussed the matter with the Petitioner and his Canadian lawyer, Mr. Ceri Forbes.
2) The Petitioner hereby withdraws his Petition for Review before this Honorable Court.
*824 There are three things worth noting about the motion. First, it is based entirely on facts known prior to the time the case was arguedindeed, before the case even went en banc. While the case was still pending before the three-judge panel, we were apprised that petitioner had departed for Canada and was seeking asylum there. We thereupon issued an order, dated January 19, 2007, asking the parties whether the case had been rendered moot by petitioner's departure. Both sides responded, confirmed petitioner's departure from the United States, and argued that the case was not moot. Petitioner represented repeatedly that he wished to have us set aside the BIA's ruling in his case and explained why. See pp. 824-25 infra.
Based on these representations, we continued our then-pending en banc process. A number of further memos were exchanged, every active judge of our court presumably studied the record and the en banc correspondence, and we voted to reconsider the case en banc. By so doing, a majority of the court determined that the case raised issues of sufficient importance to deserve en banc consideration. Thereafter, the 15 judges selected to sit on the en banc panel analyzed the briefs and record in preparation for argument, and 13 of those judges traveled to San Francisco (one judge is resident there and another one was prevented from appearing "because of a family emergency," Transcript of En Banc Oral Argument at 2). After the argument, we held a conference and voted on the outcome of the case, and two drafts of an opinion were circulated, which a majority of the panel commented on. In short, both the entire court and the en banc panel devoted considerable time and resources toward the resolution of the case after petitioner confirmed that he wanted the case resolved even though he had departed the United States. The only thing that has changed is that petitioner now, reportedly, no longer wishes us to decide the case.
Second, the motion to dismiss is expressly based on questions asked at oral argument. The colloquy to which petitioner refers to in his motion went as follows:
THE COURT: Can I ask you one question? Both sides seem to want us to either rewrite our rules or settle on old policy for immigration cases. This case your client's gone to Canada. He wanted to go to Canada in the first place. The opinion is off the books. And he doesn't want to come back to the United States. You really want to pursue this case?
MR. RUDRAKUMARAN: Yes, your Honor. There are twofor twofor two reasons. One is the determination of this case is relevant in adjudicating his Canadian application there. So if you just let it stand, the I.J.'s finding that he is not credible, that will have an adverse impact there. And suppose if his claim is denied and if he's come back, then he will be in a more dangerous situation.
THE COURT: So you've answered, you said "yes."
. . .
THE COURT: Counsel, does Suntharalinkam want to come back to the U.S.?
MR. RUDRAKUMARAN: Ifif the Canadians kickdenied his case then he will be here. Because his main thing, he cannot go back to Sri Lanka.
THE COURT: Does he want to come back to the U.S. or would he rather be in Canada?
MR. RUDRAKUMARAN:He would likeif his cases get granted he would like to be in Canada. His case is pending.
*825 THE COURT: I thought he tried going to Canada in the first place when he snuck in from Mexico.
MR. RUDRAKUMARAN: Sure: His original intention is to go to Canada because his relatives are living in Canada. He does not have anybody here. His original intention, present intention, is to stay in Canada. But suppose
THE COURT: He doesn't want to be in the U.S.
MR. RUDRAKUMARAN: Supposing the Canadians send him back, then he has no place to go.
THE COURT: They send him back then he's gonna go back. That will take care of that. Okay. Wonderful.
Transcript of En Banc Oral Argument at 63-64, 65-66. As this exchange shows, petitioner's counsel was adamant that the case should be submitted and decided because an adverse IJ ruling would be damaging to his client in Canada and because, if Canada were to deny petitioner asylum, he would have no place to go, except back to his native country.
Third, petitioner has absolutely nothing to gain by withdrawing his petition for review and (as his counsel suggests) doing so may wind up hurting him because withdrawal of the petition will let the BIA's adverse ruling stand, including the IJ's ruling that petitioner is not credible. Withdrawing the petition would also preclude him from obtaining asylum in the United States, should he be denied similar relief in Canada.[1] On the other hand, if the court goes ahead and decides the case, it might rule in his favor, as did the three-judge panel, which would set aside the IJ's adverse credibility finding and open up an avenue for asylum in the United States. The worst that could happen to petitioner is that we would affirm the BIA's ruling, in which case he would be no worse off than if we allow him to withdraw his petition. Thus, whatever adverse effects may flow to other petitioners in other immigration cases from a denial of the petition for review (more on this later), petitioner himself has something to gain, and nothing to lose, by allowing the case to proceed to decision.
To my mind, the combination of these factors spells manipulation. What could possibly have motivated petitioner's counsel to file a motion seeking dismissal of the petition, which would do his client absolutely no good, and quite possibly some harm, a month after oral argument? The answer is obvious: Petitioner's counsel "sought dismissal for the purpose of evading appellate determination of certain questions." United States v. Wash. Dep't of Fisheries, 573 F.2d 1117, 1118 (9th Cir. 1978) (Kennedy, J.). He believed, based on the oral argument, that he would likely suffer an adverse ruling that would not only be harmful to petitioner, but to counsel's other clients (present and future) who seek relief from adverse rulings of the BIA. In that regard, it's worth noting that petitioner's counsel, though located in another circuit, frequently represents immigration petitioners in our court.[2] An *826 adverse ruling in petitioner's case could undermine the petitions of counsel's other clients (present and future) which rely on our exceedingly petitioner-friendly caselaw. Nor are petitioner's counsel and his clients the only ones who would be hurt by an adverse ruling in petitioner's case. Briefs supporting petitioner were filed by no fewer than 4 amici, and counsel for one of the amici actually appeared and argued before us.
It is not too far-fetched to suspect that, following the argument, petitioner's counsel and counsel for amici listened to the recording of oral argument and concluded that things did not bode wellindeed, that the case could mark a significant change in our approach to IJ credibility rulings. While guessing the outcome of a case from questions at oral argument is tricky business, observers do it all the time, and often guess right.[3] Certainly, questions in this case suggested that some members of the panel were prepared to fundamentally reconsider our approach to reviewing IJ credibility rulings. Plus, petitioner's counsel made at least one highly damaging concession in answering questions from the bench.[4]
Moreover, the very question that seems to have triggered counsel's motion, quoted above, could have been interpreted as a suggestion that counsel would be well advised not to continue pursuing his petition.[5] While the argument transcript does not disclose which member of the panel opened this line of inquiry, it is quite clear from the recording, and counsel certainly were present and would remember. Coming from a judge who is generally favorably disposed to immigration petitioners, the question could reasonably be understood as suggesting that nothing good would likely come to petitioner or others similarly situated, if petitioner pressed on with his petition for review. Counsel may reasonably have concluded that petitioner himself had little to gain, but that others with similar claims would have a great deal to lose, if the en banc court accepted the government's invitation to reconsider our approach to IJ credibility findings.
Finally, by granting motions for voluntary dismissal in cases that have already been argued and submitted, we create a strong incentive for leaking the outcome of *827 cases after conference and before the opinion is issued. In an institution of any size, security is always an issue. When an en banc panel is deliberating, something like 100 peoplejudges, law clerks, externs, secretaries, court staffwill know the outcome of a decision shortly after conference. No responsible institution should lightly countenance the possibility of leaks, and we should not overlook the perverse incentives we're creating in granting a motion to dismiss that was filed after the likely outcome of the case was known within the institution but had not yet been made public.
Our court, like others, has recognized that "the court has discretion in deciding whether to dismiss an appeal on appellant's motion under [Fed. R.App. P.] 42(b)." Shellman v. U.S. Lines, Inc., 528 F.2d 675, 678 (9th Cir.1975). While "[s]uch motions are generally granted, [they] may be denied in the interests of justice or fairness." Am. Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot., 31 F.3d 18, 22 (1st Cir.1994) (citing Wash. Dep't of Fisheries, 573 F.2d at 1118). Exercising this authority, courts have refused to grant motions for voluntary dismissal that were filed after cases were argued and submitted. In Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en banc) (per curiam), an en banc panel of the Eleventh Circuit started its lengthy opinion as follows:
This cause, after a decision by a panel, was taken en banc for the purpose of resolving for this Circuit several important issues that repeatedly arise in capital cases. After full briefing, extended oral argument, and several months of deliberation during which the judges of the Court sought to resolve and reconcile the various issues involved, a communication was received purporting to be a request by defendant Ford that all appellate proceedings cease and that the state judgment be carried out.
The Court determines that, considering Ford's communication as a motion to dismiss his appeal, the motion is untimely.
Id. at 807 (citations omitted).
In Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.2004), also an immigration case, the government stipulated to an order vacating the BIA's decision. In refusing to grant the joint motion, the court noted:
At oral argument, we expressed doubts as to the soundness of the Attorney General's definition of torture. . . . In addition to being dispositive in Khouzam's case, this is clearly an issue of public importance. For the government to agree to a vacatur two weeks after oral argument suggests that it is trying to avoid having this Court rule on that issue. We therefore decline to grant the order that the parties have agreed to. Instead, we will review Khouzam's CAT petition and grant or deny it according to its merits.
Id. at 168.
Finally, the Seventh Circuit in Albers v. Eli Lilly & Co., 354 F.3d 644 (7th Cir. 2004) (per curiam), held as follows, when confronted with a situation very much like ours:
After a draft of this opinion had been written, Albers moved to dismiss the appeal under Fed. R.App. P. 42(b), which provides in part: "An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the court." The parties had not agreed on terms, and Lilly filed a response making it clear that it would not do so. In Lilly's view, the law firm representing Albers, which has a substantial portfolio of DES casesmost of which are filed in the District of Columbia to take advantage of that jurisdiction's *828 favorable limitations rules, even though counsel recognize that they will be transferred for trial or decision elsewhereis attempting to manipulate the formation of precedent by dismissing those proceedings that may lead to an adverse decision while pursuing others to conclusion. Counsel for Albers filed a response essentially conceding that this is the plan, and that because the oral argument had not gone well he decided to dismiss the appeal and try again, with a different client, at a different time or in a different court. Counsel contends that Lilly sometimes behaves opportunistically too and that both sides should have this option.
When the parties do not agree on terms, dismissal is discretionary with the court. Doubtless there is a presumption in favor of dismissal, but the procedure is not automatic. . . . One good reason to exercise discretion against dismissal is to curtail strategic behavior. See, e.g., American Automobile Manufacturers Association v. Massachusetts Department of Environmental Protection, 31 F.3d 18 (1st Cir.1994); United States v. Washington Department of Fisheries, 573 F.2d 1117 (9th Cir.1978). Cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (judicial decision created with a significant investment of public resources is not a bargaining chip that the parties may elect to have vacated).
Albers, 354 F.3d at 646. I am aware of no case where a motion for voluntary dismissal was granted when it was filed after the case was argued and submitted for decision.
As the Second and Seventh Circuits noted, courts must be particularly wary of abetting "strategic behavior" on the part of institutional litigants whose continuing interest in the development of the law may transcend their immediate interest in the outcome of a particular case. Counsel for petitioner, like counsel for appellant in Albers and the Department of Justice in Khouzam, is precisely such an institutional litigant, and his interest in the welfare of one particular client may be overshadowed by concerns about his other clients and his own livelihood. See pp. 825-26 & n. 2 supra. Certainly, counsel for amici, which not only thoroughly briefed the issue but participated in the oral argument of this case, qualify as institutional litigants who have no responsibility at all to petitioner and whose interests are wholly those of the great body of immigration petitioners who appear in our court; the amicus briefs, including their statements of interest, leave no doubt on this score. That petitioner's counsel has filed a motion that can do his client zero good, and possibly great harm, for no apparent reason other than to avoid an adverse ruling that would affect other parties in other cases, militates strongly against exercising our discretion in favor of granting the motion at this late date.
All this would be of no consequence if petitioner could simply render the case moot by moving to dismiss the petition. But Fed. R.App. P. 42(b) gives us discretion whether to allow a voluntary dismissal and, if so, on what terms. Shellman, 528 F.2d at 678. We ought to be chary in finding mootness in a situation such as this, where, by doing so, we leave ourselves at the mercy of institutional litigants who can pull out the mootness trump card whenever they come to believe that their institutional interests would be best served by avoiding a decision and hoping for a better outcome "with a different client, at a different time or in a different *829 court." Albers, 354 F.3d at 646.[6]
Albers resolved the mootness issue as follows:
The case is not moot, because costs abide the outcome and have yet to be determined; in the absence of an agreement, there may be further dispute. (Sanctions are also a possibility, though Lilly has not invoked Fed. R.App. P. 38.) Albers certainly has not promised to pay whatever costs or sanctions Lilly sees fit to demand. We think it best, largely for reasons parallel to those that animated the decision in U.S. Bancorp, to carry through so that the investment of public resources already devoted to this litigation will have some return, and an attempt to make the stock of precedent look more favorable than it really is may be foiled.
Id.
Albers suggested two possible rationales for concluding that the case is not moot. The first, and most direct, is the question of possible costs and sanctions. Whether costs are to be assessed, against whom and in what amount is, as in Albers, for us to decide. Because that decision depends, to some extent, on the outcome of the case, we must decide the merits in order to resolve it. Also as in Albers, sanctions are a possibility. As noted, petitioner and his counsel had every opportunity to withdraw the petition after petitioner left for Canada. Instead, they put the Justice Department and our court to the expense and effort of holding an en banc argumentat substantial cost to the government. Petitioner has shown no justification for filing this motion at such a late date, and it is at least a theoretical possibility that we could impose sanctions sua sponte for what appears to be abusive conduct on petitioner's part. See Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Sanctions might also be imposed for filing a frivolous petition for review challenging the IJ's credibility finding when the record shows, and petitioner's counsel admits, see pp. 826 n. 4 supra, that petitioner lied under oath in his asylum application.
Albers also contains a second rationale based on U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). In U.S. Bancorp, the Supreme Court refused to follow its normal vacatur rule announced in United States v. Munsingwear, Inc., 340 U.S. 36, 40-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950), where the party sought vacatur after voluntarily settling a case. U.S. Bancorp, 513 U.S. at 29, 115 S.Ct. 386. The Court denied vacatur, citing precisely the kinds of institutional concerns Albers relied on. Id. While U.S. Bancorp is certainly not directly on point, the reasons it gives for denying vacatur in cases where a party voluntarily settles a caseavoiding manipulation of precedent and the preservation of scarce public resourcesapply in full force to our case. After all, we have explained that parties shouldn't be allowed "to seek the benefits of a favorable judicial decision but escape some of the more significant adverse consequences of an unfavorable judgment." Armster v. U.S. Dist. Court, 806 F.2d 1347, 1356 (9th Cir.1986).[7]
*830 The Supreme Court has recognized "the flexible character of the Art. III mootness doctrine," U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), by creating multiple exceptions to this doctrine. Were it necessary to do soand I don't believe it isI would invoke an exception to the mootness doctrine where a party moves for dismissal of an appeal based on previously known facts, after the case has been argued and submitted for decision.[8] Such an exception would parallel the exception to mootness for cases capable of repetition yet evading review, see, e.g., Roe v. Wade, 410 U.S. 113, 123-29, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in that both recognize the realities of litigation and the need to preserve the integrity of the judicial process.
As we are well aware, cases can be litigated very swiftly when the need arisesthe Pentagon Papers Case, N.Y. Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam), was completed, from the day the district court issued its injunction to the day the Supreme Court issued its multiple opinions, in 15 days. See United States v. N.Y. Times Co., 328 F.Supp. 324 (S.D.N.Y. 1971). Yet such speed takes a considerable toll on the litigants and the judicial process and cannot be invoked in more routine cases. The capable-of-repetition-yet-evading-review exception to mootness is thus best viewed as a doctrine, not of necessity, but of judicial conveniencea recognition that courts need time to resolve cases in a thoughtful and deliberative manner, and that Article III does not stand in the way of deciding cases that are technically moot but cannot readily be decided while there is a live controversy.
A parallel rationale supports an exception to mootness where it is clear that one of the parties is seeking dismissal in order to manipulate the judicial process to its advantage. Many of the considerations that underlie judicial reluctance to decide moot cases do not exist, in any event, where the case has been argued and submitted because the parties did present a concrete controversy and vigorous briefing and argument before submission; all that's left is for the court to rule based on the vigorous presentations already offered by the parties. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (Article III's case or controversy requirement ensures "concrete adverseness"); see also R. Fallon, Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L.Rev. 1, 51 (1984) (the "functional requisites of effective adjudication" are "[c]oncrete facts and adversarial presentation").
Cases such as Claiborne v. United States, ___ U.S. ___, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (per curiam), Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988), and Comer v. Schriro, 480 F.3d 960 (9th Cir.2007) (en banc) (per curiam), are distinguishable. Claiborne became moot because petitioner died after the case was submitted, so there was no possibility of manipulation. 127 S.Ct. *831 at 2245. Neither Deakins nor Comer involved institutional litigants, so there was also no risk of manipulation. See Deakins, 484 U.S. at 195, 108 S.Ct. 523; Comer, 480 F.3d at 961. More importantly, in both of these cases, the party seeking dismissal had expressed its wish not to pursue the case long before argument and submission; both involved situations where the parties had no interest in pursuing their remedies, and had made that position clear before oral argument, so "strategic behavior" was not an issue. See Deakins, 484 U.S. at 199 n. 3, 108 S.Ct. 523; Comer, 480 F.3d at 961-62.
I would treat quite differently a case like this one where the party seeking dismissal has an obvious institutional interest, tests the judicial waters by listening to the court's questions at oral argument, submits the case for decision and then, for no apparent reason, gives up the possibility of victory for absolutely no gain in return. We owe it to the judicial process, and to the litigants who appear before us in good faith, to preserve the integrity of the system by denying such an obvious effort at subverting the orderly development of the law through artful dismissal of the petition long past the eleventh hour.
2. Even were I inclined to grant dismissal after submission in some circumstances, I would not do so in this case because we only have petitioner's counsel's word that petitioner does, indeed, wish to have his petition for review dismissed. As previously explained, petitioner has nothing to gain from a dismissal, as he gives up his chance of reversing the IJ's adverse credibility finding and deprives himself of the possibility of asylum in the United States. Counsel has, moreover, made inconsistent representations on this issue, and he has an institutional and personal interest adverse to his client.
Under such circumstances, we should exercise our discretion by requiring that counsel provide us with a declaration from petitioner himself, confirming that he wishes to dismiss his petition. Furthermore, I would insist that petitioner express his understanding that he is giving up the possibility of asylum in the United States and getting nothing of benefit in exchange. As things stand, we have no assurance not even the representation of counsel that petitioner has been fully advised before giving up his rights.[9] If petitioner is, indeed, willing to give up his petition here, a certification signed by him should not be difficult to obtain. Insisting on such a certification would not only safeguard petitioner's rights, but would avoid the possibility that petitioner will seek to reopen the proceedings at a later date, claiming that he was not adequately advised by his lawyer. Such a claim would not be implausible because dismissal of the petition makes no sense at all from petitioner's perspective. If petitioner's counsel did not obtain his client's fully informed consent, petitioner may well be able to claim ineffective assistance of counsel, lack of informed consent or some similar basis for reinstating his appeal.
Will we be prepared to deny petitioner his rights if he presents a credible claim that his lawyer sacrificed his petition in order to serve the interests of other clients *832 and of the lawyer himself? I seriously doubt it. See Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1171 (9th Cir.2002) ("[C]onduct on the part of a client's alleged representative that results in the client's receiving practically no representation at all clearly constitutes gross negligence, and vitiating [sic] the agency relationship that underlies our general policy of attributing to the client the acts of his attorney."). At a bare minimum, then, if we are inclined to grant the motion to dismiss, we should take simple steps to ensure that petitioner himself seeks such relief and is not the victim of deceit or misunderstanding. Respect for petitioner's rights and the integrity of the judicial process demands at least that much.
NOTES
[*] Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States, pursuant to Fed. R.App. P. 43(c)(2).
[1] Of course, he also gives up the possibility of filing a cert petition, should he lose before us.
[2] See, e.g., Annachamy v. Gonzales, No. 07-70336; Razik v. Gonzales, 06-75630; Senthinathan v. Gonzales, No. 06-75531; Partovi v. Gonzales, No. 05-77153; Thevanayagam v. Gonzales, No. 04-73319. In fact, after granting the petitions for review, we awarded $10,000 in attorney's fees in one of his cases, see Thangaraja v. Gonzales, 428 F.3d 870, 872, 877 (9th Cir.2005), and over $8,000 in another, see Lasitharan v. Gonzales, No. 01-71539. Our immigration law precedents are also followed by other circuits, see, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir.2003) (citing Aguilera-Cota v. INS, 914 F.2d 1375, 1382-83 (9th Cir.1990)); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (citing Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000); Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990)), so an adverse ruling in our court may also affect petitioner's counsel's practice in other courts as well.
[3] See, e.g., Linda Greenhouse, Court Reviews Race as Factor in School Plans, N.Y. Times, Dec. 5, 2006, at A1 ("By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional.").
[4] THE COURT: Now, focusing in on the route information, he tells the immigration officer when he's asked to explain it: I did it because I was told that if I told them the truth I'd be sent back. Now, it doesn't sound to me like a mistake. To me that sounds like he's saying: I was told if I don't lie to the Americans in my asylum application I will not get asylum. Sounds to me like an admission of deliberate falsehood. Is there some reason you think that's not a fair statement?
MR. RUDRAKUMARAN: It's a fair statement.
Transcript of En Banc Oral Argument at 31.
[5] I don't suggest that it was meant as such, but it could reasonably have been so interpreted. Our questions at oral argument tend to be both candid and wide-ranging, and they do occasionally disclose the leanings of particular judges. One unfortunate byproduct of today's ruling may well be that judges will be more guarded in their questioning lest they precipitate the kind of unfortunate reaction we see here.
[6] The concern about a "different court" is not trivial. Presenting the same issues to another en banc panel of our court will ensure a different, and perhaps more favorable, en banc draw. See 9th Cir. R. 35-3.
[7] In Armster, we presciently anticipated the Supreme Court's ruling in U.S. Bancorp. The Armster panel relied on three separate rationales to reach the conclusion that it was not required to vacate its opinion under Munsingwear, even though the case had technically become moot; one of those rationales was that the case is not moot under the "voluntary cessation" of activities doctrine. 806 F.2d at 1357-58 (citing United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Armster, like the "voluntary cessation" cases, focuses on the need to avoid manipulation of precedent and the squandering of public resourcesprecisely the considerations that would militate against dismissal of our case at this late stage.
[8] The case would be quite different if petitioner had filed his dismissal motion based on changed circumstances beyond his control such as that he had been granted asylum in Canada, or there had been a regime change in his native country so that he no longer feared persecution if he were returned there. Petitioner here cites nothing of the sort. See pp. 823-24 supra.
[9] Because counsel is in the United States, while petitioner is in Canada (and perhaps in custody), it is unlikely that counsel and petitioner met in person to make this decision. There is, moreover, the mysterious mention of petitioner's Canadian lawyer. It is unclear from counsel's terse motion the extent to which he relied on a communication directly with his client and to what extent he relied on instructions conveyed by Canadian counsel. As we know from playing "Telephone," the longer the communication chain, the more likely there is to have been a misunderstanding.
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NO. COA13-1170
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF:
APPEAL OF: DIXIE BUILDING, LLC North Carolina Property
from the decision of the Tax Commission
Guilford County Board of No. 13 PTC 124
Equalization and Review
Appeal by appellant from order entered 28 June 2013 by the
North Carolina Property Tax Commission sitting as the State
Board of Equalization and Review. Heard in the Court of Appeals
19 February 2014.
Tuggle Duggins, P.A., by Michael S. Fox, J. Nathan Duggins
III, Martha R. Sacrinty, and Sarah J. Hayward, for
appellant Dixie Building, LLC.
Guilford County Attorney J. Mark Payne and Deputy County
Attorney Matthew J. Turcola, for appellee Guilford County.
GEER, Judge.
Dixie Building, LLC appeals from an order entered by the
North Carolina Property Tax Commission ("the Commission")
dismissing Dixie Building's appeal from the Guilford County
Board of Equalization and Review ("the Guilford County Board")
on the grounds that Dixie Building's original request to the
Guilford County Board for a hearing was untimely. Although
-2-
Dixie Building contends that it was permitted, under N.C. Gen.
Stat. § 105-322 (2013), to submit its appeal to the Guilford
County Board at any time prior to the Board's adjournment for
the year, Dixie Building's construction of the statute would
place various subsections of the statute in conflict with each
other.
Reading the statute as a whole and in a manner that gives
each provision meaning leads to the conclusion that the
legislature intended to allow boards of equalization and review
to set deadlines for the filing of hearing requests. Because
Dixie Building failed to comply with the Guilford County
deadline, the Commission properly concluded that Dixie
Building's appeal was untimely. We, therefore, affirm.
Facts
Dixie Building owns real property in Guilford County. In
2012, Guilford County performed a revaluation of all property
within its boundaries as it was required to do pursuant to N.C.
Gen. Stat. § 105-286(a)(1) (2013). The Guilford County Board
established a deadline of 2 July 2012 for appealing revaluations
and assessments for the 2012 year.
Following the 2012 revaluation, Dixie Building disputed the
resulting appraisal values of six properties ("the Dixie
properties"). However, Dixie Building did not appeal the
-3-
revaluations of the Dixie properties by the 2 July 2012
deadline. Instead, almost five months later, on 30 November
2012, Dixie Building filed a written notice with the Guilford
County Board formally requesting an appeal of the 2012
revaluations of the Dixie properties. In addition, counsel for
Dixie Building, while representing other clients with
revaluation appeals, attended a Guilford County Board meeting on
16 January 2013. During that meeting, Dixie Building's counsel
made an oral request for the Guilford County Board to review the
2012 revaluations of the Dixie properties.
On 22 January 2013, the Guilford County Board notified
Dixie Building in writing that it was denying Dixie Building's
request to challenge the 2012 reappraisal values on the grounds
that its appeal "was not timely." Dixie Building timely
appealed that denial to the Commission on 18 February 2013. On
28 June 2013, the Commission entered an order granting Guilford
County's motion to dismiss on the grounds that the appeal to the
Guilford County Board was in fact untimely. Dixie Building has
timely appealed the Commission's order to this Court.
Discussion
In an appeal from the Commission, "[q]uestions of law
receive de novo review, while issues such as sufficiency of the
evidence to support the Commission's decision are reviewed under
-4-
the whole-record test." In re Appeal of the Greens of Pine Glen
Ltd. P'Ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003).
Dixie Building contends on appeal that the Commission erred in
construing the pertinent statutes when it concluded that Dixie
Building's appeal to the Guilford County Board was untimely.
Questions of statutory interpretation, such as Dixie
Building poses, "are questions of law[.] . . . The primary
objective of statutory interpretation is to give effect to the
intent of the legislature." First Bank v. S & R Grandview,
L.L.C., ___ N.C. App. ___, ___, 755 S.E.2d 393, 394 (2014). In
construing a statute, "[t]he plain language of a statute is the
primary indicator of legislative intent." Id. at ___, 755
S.E.2d at 394. However, when statutory language is ambiguous,
"we are required to examine the entire statute to ascertain its
meaning and to give force and effect to every part of it,
reconciling, when reasonably possible, any seeming conflicts by
comparing its sections and provisions with each other." State
Bd. of Agric. v. White Oak Buckle Drainage Dist., 177 N.C. 222,
226, 98 S.E. 597, 599 (1919).
Pursuant to N.C. Gen. Stat. § 105-286, each county is
required to reappraise all real property every eight years. In
years when a general reappraisal of real property has not been
done, N.C. Gen. Stat. § 105-287 (2013) limits the circumstances
-5-
under which the county may change the appraised value of real
property. N.C. Gen. Stat. § 105-322(g)(1)c provides that the
county board of equalization and review has a duty to review the
tax lists and increase and decrease the appraised value of any
property as appropriate, although "the board shall not change
the appraised value of any real property from that at which it
was appraised for the preceding year except in accordance with
the terms of G.S. 105-286 and 105-287."
N.C. Gen. Stat. § 105-322(e) sets out the provisions
regarding when a board of equalization and review shall meet and
regulates the starting date and the ending date for a board's
meetings:
Time of Meeting. -- Each year the board of
equalization and review shall hold its first
meeting not earlier than the first Monday in
April and not later than the first Monday in
May. In years in which a county does not
conduct a real property revaluation, the
board shall complete its duties on or before
the third Monday following its first meeting
unless, in its opinion, a longer period of
time is necessary or expedient to a proper
execution of its responsibilities. Except
as provided in subdivision (g)(5) of this
section, the board may not sit later than
July 1 except to hear and determine requests
made under the provisions of subdivision
(g)(2), below, when such requests are made
within the time prescribed by law. In the
year in which a county conducts a real
property revaluation, the board shall
complete its duties on or before December 1,
except that it may sit after that date to
hear and determine requests made under the
-6-
provisions of subdivision (g)(2), below,
when such requests are made within the time
prescribed by law. From the time of its
first meeting until its adjournment, the
board shall meet at such times as it deems
reasonably necessary to perform its
statutory duties and to receive requests and
hear the appeals of taxpayers under the
provisions of subdivision (g)(2), below.
(Emphasis added.)
Our Supreme Court has explained that "[t]he reason why the
Board of Equalization is required to act within a fixed time is
apparent. The taxing authority must know the value of the
taxable property before it can fix a rate sufficient to meet
governmental needs." Spiers v. Davenport, 263 N.C. 56, 59, 138
S.E.2d 762, 764 (1964). See also N.C. Gen. Stat. § 105-347
(2013) (providing that county must set property tax rate "not
later than the date prescribed by applicable law or, in the
absence of specific statutory provisions, not later than the
first day of August" so as to provide revenues "necessary to
meet the general and other legally authorized expenses of the
taxing units"); N.C. Gen. Stat. § 105-360(a) (2013) (providing
that property taxes are due and payable on September 1 of fiscal
year for which taxes are levied with interest accruing if taxes
are paid on or after January 6).
N.C. Gen. Stat. § 105-322(g) sets out the powers and duties
of a board of equalization and review, including the duty to
-7-
review tax lists, the duty to hear taxpayer appeals, the power
to appoint committees, the power to issue subpoenas, and the
power to examine witnesses and documents. With respect to the
duty to hear taxpayer appeals, N.C. Gen. Stat. § 105-322(g)(2)
provides:
Duty to Hear Taxpayer Appeals. -- On
request, the board of equalization and
review shall hear any taxpayer who owns or
controls property taxable in the county with
respect to the listing or appraisal of the
taxpayer's property or the property of
others.
a. A request for a hearing under this
subdivision (g)(2) shall be made
in writing to or by personal
appearance before the board prior
to its adjournment. However, if
the taxpayer requests review of a
decision made by the board under
the provisions of subdivision
(g)(1), above, notice of which was
mailed fewer than 15 days prior to
the board's adjournment, the
request for a hearing thereon may
be made within 15 days after the
notice of the board's decision was
mailed.
(Emphasis added.)
In arguing that its request for a hearing before the
Guilford County Board was timely, Dixie Building points to N.C.
Gen. Stat. § 105-322(g)(2), asserting that it should be
construed as providing that any request made prior to a board's
adjournment is timely. Dixie Building further contends that
-8-
"the time prescribed by law" referenced in N.C. Gen. Stat. §
105-322(e) is defined by N.C. Gen. Stat. § 105-322(g)(2) as the
date of the Guilford County Board's adjournment for the year.
Consequently, Dixie Building asserts, its request for a hearing,
presented prior to the Guilford County Board's adjournment, was
timely. We disagree.
The plain language of N.C. Gen. Stat. § 105-322(e) cannot
be reconciled with Dixie Building's interpretation of the
statute. In N.C. Gen. Stat. § 105-322(e), the General Assembly
provided generally that "the board shall meet at such times as
it deems reasonably necessary to perform its statutory duties
and to receive requests and hear the appeals of taxpayers under
the provisions of subdivision (g)(2), below." (Emphasis added.)
However, the legislature also mandated that in years involving a
real property revaluation, as occurred in 2012, "the board shall
complete its duties on or before December 1 . . . ." Id. The
only exception is that the board "may sit after that date to
hear and determine requests made under the provisions of
subdivision (g)(2), below, when such requests are made within
the time prescribed by law." Id. (emphasis added).
Thus, the plain language of N.C. Gen. Stat. § 105-322(e)
limits the board's authority after 1 December to only hearing
and determining requests for review under N.C. Gen. Stat. § 105-
-9-
322(g)(2). The General Assembly did not authorize a board of
equalization and review to receive requests for hearings under
subdivision (g)(2) after 1 December. Under N.C. Gen. Stat. §
105-322(e), the board may only receive requests prior to 1
December. However, N.C. Gen. Stat. § 105-322(e) adds a further
limitation that hearings after 1 December may only be held for
those requests "made within the time prescribed by law,"
suggesting that the deadline for requests could be a date other
than 1 December.
N.C. Gen. Stat. § 105-322(g)(2)a, the subsection on which
Dixie Building relies, can be read in a manner that is
consistent with the plain language of N.C. Gen. Stat. § 105-
322(e). The focus of N.C. Gen. Stat. § 105-322(g)(2)a is on how
"[a] request for a hearing under this subdivision (g)(2) shall
be made . . . ." The statute specifies that the hearing request
may be made in two ways: in writing to the board or by a
personal appearance before the board. The subsection, rather
than granting the taxpayer the absolute right to make a request
up until the board's adjournment for the year (a construction
that would place § 105-322(g)(2)a in conflict with § 105-
322(e)), can be read instead as providing an outside limit on
when a board of equalization may allow requests for hearings to
be made. The subsection establishes that the board has no
-10-
authority to grant a hearing for a request made after
adjournment.1
Such a construction is also consistent with N.C. Gen. Stat.
§ 105-322(f), which requires a board to publish a notice of
certain dates prior to the board's first meeting for the year.
In addition to announcing the date, hours, place, and purpose of
the first meeting of the board, the notice must also "state the
dates and hours on which the board will meet following its first
meeting and the date on which it expects to adjourn . . . ."
Id. (emphasis added). If a board subsequently decides to
adjourn at a later date than was originally announced, it must
provide notice "published at least once in the newspaper in
which the first notice was published, such publication to be
prior to the date first announced for adjournment." Id.
(emphasis added).
The notice requirements of N.C. Gen. Stat. § 105-322(f)
regarding adjournment can only be effective if a board has the
authority to set deadlines prior to the time of adjournment for
the submission of requests for a hearing. It would be difficult
for a board to identify an adjournment date in advance that
would allow adequate time to conduct hearings without setting a
1
N.C. Gen. Stat. § 105-322(g)(2)a includes an exception, not
applicable here, when the board has made a decision under § 105-
322(g)(1) and notice was sent out less than 15 days prior to the
board's adjournment.
-11-
deadline for requests for hearings sufficiently in advance of
the projected adjournment date. In addition, under Dixie
Building's construction of N.C. Gen. Stat. § 105-322(g)(2)a, an
aggrieved taxpayer could request a hearing on the scheduled date
of adjournment, but that would require that the board then
postpone adjourning until the hearing could be conducted.
However, the board would then be unable to comply with the
notice provision for adjournment set out in N.C. Gen. Stat. §
105-322(f).
Dixie Building nonetheless urges that a board could hear an
appeal the same day it was requested, thus avoiding any
deviation from the statute's notice requirements. N.C. Gen.
Stat. § 105-322(g)(2)c, however, provides that "[u]pon the
request of an appellant, the board shall subpoena witnesses or
documents if there is a reasonable basis for believing that the
witnesses have or the documents contain information pertinent to
the decision of the appeal." In addition, the General Assembly
has granted a board of equalization and review the power to
"subpoena witnesses or documents on its own motion . . . ."
N.C. Gen. Stat. § 105-322(g)(3)b. A hearing occurring on the
same day as a request for a hearing would preclude the board
from exercising these powers.
-12-
Further, it is entirely plausible that if an announced
adjournment date were the deadline for requests for hearing
rather than the deadline set by a board, many taxpayers would
wait until the last day to make their requests. An inability to
conduct all the requested hearings in one meeting would then
force a postponement of the adjournment date and violation of
the notice provisions.
We can see no basis for concluding that the General
Assembly intended to strip a board of equalization and review of
the power to set a reasonable schedule for receiving requests
for a hearing that would ensure a full and careful consideration
of a taxpayer's appeal. Indeed, N.C. Gen. Stat. § 105-322(e)
mandates that "[f]rom the time of its first meeting until its
adjournment, the board shall meet at such times as it deems
reasonably necessary to perform its statutory duties and to
receive requests and hear the appeals of taxpayers under the
provisions of subdivision (g)(2), below." (Emphasis added.)
In short, Dixie Building's proposed construction of N.C.
Gen. Stat. § 105-322(g)(2) to allow requests for hearing through
the date of adjournment would place that subsection in conflict
with numerous other subsections. When the statute is read as a
whole giving effect to all of its provisions, we hold that the
Guilford County Board and the Property Commission properly
-13-
concluded that the legislature intended for a local board of
equalization and review to have the authority to set a
reasonable deadline prior to its adjournment for accepting
requests for revaluation appeals and that such time is "the time
prescribed by law" provided for in N.C. Gen. Stat. § 105-322(e).
See Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20
(2004) (holding that "this Court does not read segments of a
statute in isolation. Rather, we construe statutes in pari
materia, giving effect, if possible, to every provision.").
Because 2012 was a revaluation year for Guilford County,
the Guilford County Board set 2 July 2012 as the deadline for
appeal requests for that year and because Dixie Building did not
submit its hearing request by that date, Dixie Building did not
timely request an appeal of the revaluation of the Dixie
properties for the tax year 2012. The Commission, therefore,
properly dismissed Dixie Building's revaluation appeal.
Affirmed.
Judges ROBERT C. HUNTER and McCULLOUGH concur.
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39 F.Supp.2d 61 (1998)
UNITED STATES of America, Plaintiff,
v.
Reginald D. LOISEL, et al., Defendant.
No. Civ. 98-108-B.
United States District Court, D. Maine.
August 5, 1998.
*62 Tina Wellman, Waterville, ME, pro se.
Reginald D. Lisel, Waterville, ME, pro se.
John V. Cardone, U.S. Dept. of Justice, Washington, DC, for U.S.
ORDER AND MEMORANDUM OF DECISION
BRODY, District Judge.
Plaintiff, the United States ("the government"), filed this action to set aside, as fraudulent, a conveyance of real property in Waterville, Maine, by Defendant Reginald D. Loisel, Sr. ("Taxpayer") to Defendants Tina Wellman and Reginald D. Loisel, Jr., and to foreclose federal tax liens arising from the tax liability of Reginald D. Loisel, Sr. Before the Court is Defendants' Motion to Dismiss. For the reasons stated below, Defendants' motion is DENIED.[1]
I. MOTION TO DISMISS
In a Motion to Dismiss brought under Rule 12(b)(6) the Court takes all of Plaintiff's factual averments as true and indulges every reasonable inference in Plaintiff's favor. Talbott v. C.R. Bard, Inc., 63 F.3d 25, 27 (1st Cir.1995). The Court may grant Defendants' Motion to Dismiss "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990).
II. BACKGROUND
In its Complaint, the government alleges that on January 10, 1994, assessments were made against Taxpayer for his federal income tax liabilities for the years 1987 through 1991, and that the assessments, totaling $271,558.11, remain unpaid to date. The Complaint further alleges that Taxpayer transferred the Waterville property in question to his children, Defendants Reginald D. Loisel, Jr. and Tina Wellman, on January 23, 1992, after his tax liabilities had accrued. The government alleges that the conveyance was made to defraud the government as a creditor and that the conveyance was made without consideration and rendered Taxpayer insolvent. The government seeks to have the allegedly fraudulent transfer set aside, the liens arising from Taxpayer's liability foreclosed, Defendants ejected from the property, and the property sold.
III. DISCUSSION
In their Motion to Dismiss, Defendants, proceeding pro se, argue that the government *63 has alleged no legal ground for recovery. Specifically, Defendants claim that a lien cannot attach to property that is no longer owned by Taxpayer and that was transferred before the assessments were made in 1994. Defendants claim that when Taxpayer bequeathed his property to his children in 1992 there were no liens in place or other encumbrances upon the title and, therefore, that the conveyance was valid.
The First Circuit has recently "untangle[d] the web of statutory and procedural requirements" implicated by the government's foreclosure attempt:
Once the IRS makes an assessment of a taxpayer's liability, it has sixty days in which to "give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof." 26 U.S.C. § 6303(a). Once notice and demand are given and the tax goes unpaid, a lien in favor of the United States automatically arises "upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S.C. § 6321. Whether and to what extent a particular piece of property constitutes property of the taxpayer to which a federal tax lien can attach is a question of state law. Aquilino v. United States, 363 U.S. 509, 512, 80 S.Ct. 1277, 1279-80, 4 L.Ed.2d 1365 (1960). The lien arises at the time the assessment is made and continues until the liability is satisfied or becomes unenforceable by lapse of time. 26 U.S.C. § 6322. The IRS may collect the tax by levy or by bringing a proceeding in court ....
Markham v. Fay, 74 F.3d 1347, 1353 (1st Cir.1996).
In order for the government to prevail, therefore, it must prove that the property in question belonged to Taxpayer at the time the assessment was made. It is uncontroverted that the government did not make an assessment of Defendant's tax liability until 1994. Thus, the lien on "property, whether real or personal, belonging to" Defendant did not arise until 1994, two years after the property in question was transferred by Taxpayer to his children. Defendants correctly assert that a lien cannot attach to property validly transferred before the government makes an assessment. However, Defendants ignore the fact that the government seeks to set aside that transfer as fraudulent.
Although the government does not specifically state in its Complaint under what state law it seeks to invalidate the transfer, the language used suggests that it is alleging a claim under the Maine Uniform Fraudulent Transfer Act ("MUFTA"), 14 M.R.S.A. §§ 3571-3582.[2] The Complaint states that the January 23, 1992, conveyance was fraudulent as to the United States as creditor of Taxpayer "because it was done with the intent to hinder, delay, or defraud the United States," and "because at the time of the transfer the Taxpayer was insolvent, or as a result of the transfer he was rendered insolvent, and the transfer was for insufficient consideration." Pl.'s Complaint ¶¶ 14, 15. This language is lifted directly from 14 M.R.S.A. §§ 3575(1)(A) and 3576(1). Those provisions of the MUFTA provide:
Fraudulent Transfer. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
A. With actual intent to hinder, delay or defraud any creditor of the debtor....
14 M.R.S.A. § 3575(1)(A); see also Morin v. Dubois, 713 A.2d 956, 957 (Me. 1998).
Transfers without receipt of reasonably equivalent value. A transfer made or *64 obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
14 M.R.S.A. § 3576(1).
Although the government could have been more precise in its pleading, the Court is satisfied that the government's Complaint sufficiently alleges the necessary elements of a cause of action under § 3575(1)(A) or § 3576(1) and that Defendants have failed to demonstrate that the government would not be entitled to relief under any set of facts it might prove in support of its claim. The Court, therefore, DENIES Defendants' Motion to Dismiss.
SO ORDERED.
NOTES
[1] Defendants answered the government's complaint by filing a Motion to Dismiss on June 18, 1998. Noticing that Defendant Reginald D. Loisel, Jr. failed to place his signature in the space allotted for such in the motion, the government moved for a default judgment against him pursuant to Fed.R.Civ.P. 55. Defendants responded by filing a Motion for Extension of Time on July 13 and a second, identical Motion to Dismiss on July 20, this one containing Loisel, Jr.'s signature. In light of the fact that Defendants are pro se, see Sisbarro v. Warden, Massachusetts State Penitentiary, 592 F.2d 1, 2 (1st Cir.1979) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (pro se pleadings are held to "less stringent standards than pleadings drafted by lawyers"), that they corrected the technical error in a timely fashion, and that the presence of a signature block on the motion for Loisel, Jr. put the government on notice that he in fact intended to defend the claim, the Court denies the government's Motion for Entry of Default Against Reginald D. Loisel, Jr. See 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2685 (2d ed.1983) (the decision to enter a default judgment is a decision committed to the "sound judicial discretion" of the trial judge). Defendants' Motion for Extension of Time is dismissed as moot.
[2] Plaintiff does make passing reference to 14 M.R.S.A. § 3576(1) in its response to Defendants' Motion to Dismiss.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40739
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHIMIKA LAVETTE VAUGHNS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CR-30-1
--------------------
December 24, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Shimika Lavette Vaughns appeals her conditional guilty-plea
conviction for conspiracy to distribute more than 50 grams of
cocaine base and marijuana. She argues that her motion to suppress
the evidence seized should have been granted because the reason for
the initial investigatory stop, the traffic infraction, did not
justify the prolonged detention and subsequent search.
This court reviews a motion to suppress based on live
testimony at a suppression hearing by accepting the trial court’s
*
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.
No. 02-40739
-2-
factual findings unless clearly erroneous or influenced by an
incorrect view of the law. See United States v. Alvarez, 6 F.3d
287, 289 (5th Cir. 1993). A search and seizure must be reasonably
related in scope to the circumstances which justified the stop in
the first place. See United States v. Valadez, 267 F.3d 395, 397-
98 (5th Cir. 2001); see also Terry v. Ohio, 392 U.S. 1, 19-20
(1968).
In order to continue a detention after a computer check is
complete and the officer either issues a citation or determines
that no citation should be issued, the officer must have reasonable
suspicion supported by articulable facts that a crime has been or
is being committed. United States v. Jones, 234 F.3d 234, 241 (5th
Cir. 2000); see also Valadez, 267 F.3d at 398. Here, officers had
a reasonable suspicion supported by articulable facts that a crime
was being committed given their recognition of the driver of the
vehicle and information linking the driver of the vehicle with
drug-related offenses. Moreover, during the initial traffic stop,
the driver became visibly more nervous after he saw one of the
officers. Vaughns has not shown that the district court erred in
denying her motion to suppress. The district court’s judgment is
AFFIRMED.
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72 F.3d 816
64 USLW 2463, 28 Bankr.Ct.Dec. 397, Bankr.L. Rep. P 76,736
James S. STARZYNSKI, Liquidating Agent, Plaintiff-Appellant,v.SEQUOIA FOREST INDUSTRIES, doing business as Dinuba TimberIndustries, Inc.; Robert E. Welch; Hampton Lumber Sales;Robert F. Welch; Temple-Inland Forest Products Corporation,a subsidiary of Temple Eastex; Cheshire Sales Company;Louisiana Pacific Corporation; Precision Pine & Timber,Inc.; Lumber, Inc.; Thunderbird Steel Corporation; WestarTimber Ltd.; Ponderosa Timber Company; Shollenbarger WoodTreating; Rust Equipment; Hacienda Home Centers, Inc.;Best Log Ind., Defendants-Appellees.
No. 94-2284.
United States Court of Appeals,Tenth Circuit.
Dec. 26, 1995.
Douglas T. Francis and James S. Starzynski, of Francis & Starzynski, P.A., Albuquerque, New Mexico, for appellant.
Paul M. Fish, of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, for appellees Sequoia Forest Industries; Temple-Inland Forest Products Corporation; Cheshire Sales Company; Lumber, Inc.; Westar Timber Ltd.; Ponderosa Timber Company; Rust Equipment; and Hacienda Home Centers, Inc.
John F. Caffrey, of John F. Caffrey, P.A., of Albuquerque, New Mexico, on the brief for Hampton Lumber Sales, Precision Pine & Timber, Inc., Shollenbarger Wood Treating, and Thunderbird Steel Corporation.
William Casey, of Keleher & McLeod, P.A., of Albuquerque, New Mexico, and David W. Hercher, of Miller, Nash, Wiener, Hager & Carlsen, of Seattle, Washington, on the brief for Louisiana-Pacific Corporation.
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.*
BRISCOE, Circuit Judge.
1
Appellant James S. Starzynski was appointed as liquidating agent of the debtor Sound Building Products, Inc., by confirmation of a liquidating Chapter 11 bankruptcy plan. The plan provided Starzynski with authority to prosecute and settle all claims to avoid any transfers, liens, or setoffs that Sound Building could make under the Bankruptcy Code. Starzynski brought these fourteen consolidated adversary proceedings, seeking to avoid preferential transfers made by Sound Building within one year of commencement of the bankruptcy proceedings.
2
The bankruptcy court dismissed the adversary proceedings on the ground they were barred by the two-year statute of limitations of 11 U.S.C. Sec. 546(a)(1) (1993) (amended 1994). Starzynski appeals the judgment of the district court affirming the decision of the bankruptcy court. We affirm after concluding an estate representative appointed under 11 U.S.C. Sec. 1123(b)(3) (1993) is not a trustee within the meaning of Sec. 546(a) whose appointment would commence the running of the two-year statute of limitations in which to file adversary proceedings. Here, adversary proceedings filed beyond two years after commencement of the Chapter 11 case are barred. While our resolution of this appeal turns upon statutory interpretation, we also deny Starzynski's motion to strike appellees' supplementary appendix and those portions of appellees' brief that rely on the supplementary appendix for support.
3
Sound Building was experiencing financial problems and, in April 1989, one of its creditors filed an involuntary Chapter 7 bankruptcy case against it. On June 5, 1989, Sound Building consented to entry of an order for relief, but converted the case to one under Chapter 11. The bankruptcy court entered the order for relief on June 26, 1989. A trustee was not appointed at any time.
4
On August 18, 1990, the bankruptcy court confirmed a liquidating plan that provided for appointment of Starzynski as liquidating agent to pursue all causes of action of the debtor and the estate, including actions for voidable transfers. Starzynski filed these adversary proceedings on August 19, 20, and 24, 1992, seeking to avoid preferential transfers under 11 U.S.C. Sec. 547 (1993).
5
Defendants moved to dismiss, arguing the claims were barred by the two-year statute of limitations of Sec. 546(a)(1), which under Zilkha Energy Co. v. Leighton, 920 F.2d 1520 (10th Cir.1990), began to run on the date the order for relief was entered. Starzynski argued under Zilkha, 920 F.2d at 1524, footnote 11, a new two-year period began to run upon his appointment as liquidating agent because he was the functional equivalent of a trustee. The bankruptcy court ruled the limitations period expired two years after entry of the order for relief, and the district court affirmed the ruling.
6
The sole issue presented is whether the district court erred in ruling the adversary proceedings brought by the liquidating agent were barred by the two-year statute of limitations of 11 U.S.C. Sec. 546(a)(1) (1993),1 which provided:(a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of--
7
(1) two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or
8
(2) the time the case is closed or dismissed.
9
In Zilkha, this court held a Chapter 11 debtor-in-possession is subject to the two-year period of former Sec. 546(a)(1) because under 11 U.S.C. Sec. 1107(a) (1993), a debtor-in-possession is the functional equivalent of a trustee. Because the debtor became the debtor-in-possession upon commencement of the case by filing its petition for reorganization, the period began running on the date of filing. Consequently, the preference actions filed by the debtor's successor company more than two years after that date were barred. 920 F.2d at 1523-24.
10
Here, because the case began as an involuntary Chapter 7 bankruptcy, and was later converted to Chapter 11 on the debtor's motion, the debtor became debtor-in-possession upon entry of the order for relief rather than upon filing of the involuntary Chapter 7 petition. See 11 U.S.C. Secs. 301, 303(f) (1993). It follows from Zilkha that the two-year statute of limitations would run from the date of entry of the order for relief. That period expired more than a year before Starzynski filed the actions.
11
I. Zilkha questioned.
12
Starzynski contends Zilkha was wrongly decided and should be overruled. Three circuits have followed Zilkha. See In re Century Brass Products, 22 F.3d 37 (2d Cir.1994); In re Coastal Group, 13 F.3d 81 (3d Cir.1994); In re Softwaire Centre Int'l, 994 F.2d 682 (9th Cir.1993).
13
Starzynski relies on In re Maxway Corp., 27 F.3d 980, 982-85 (4th Cir.), cert. denied --- U.S. ----, 115 S.Ct. 580, 130 L.Ed.2d 495 (1994), where the court followed the "overwhelming majority" of bankruptcy and district courts in rejecting Zilkha and holding the two-year statute of limitations of former Sec. 546(a)(1) does not apply to a debtor-in-possession. See, e.g., In re National Steel Service Center, 170 B.R. 745, 747-48 (Bankr.N.D.Ga.1994); In re Pullman Const. Industries, 132 B.R. 359, 364 (Bankr.N.D.Ill.1991). Zilkha has also been subject to criticism. See 5 Collier on Bankruptcy p 1107.02(3)(a) (Lawrence P. King ed., 15th ed. 1995); P. Carroll, Statutory Construction by the Ninth Circuit in Recent Bankruptcy Cases, 22 Cal.Bankr.J. 262 (1995); G. Smith & F. Kennedy, Fraudulent Transfers and Obligations: Issues of Current Interest, 43 S.C.L.Rev. 709 (1992).
14
In Maxway, the court reasoned that under the plain language of the statute, the limitations period applies only when a trustee is appointed under one of the specifically enumerated sections of the Bankruptcy Code. The court noted that debtors-in-possession are unlikely to commence avoidance actions because they are more interested in preserving relationships with creditors than in maximizing the size of the estate. The court further stated that if the two-year period applied, debtors might actively seek to delay a Chapter 11 case beyond the two-year period to prevent avoidance actions against family or friends. The court reasoned that postponing the start of the two-year statute until appointment of a trustee who is likely to bring an avoidance action prevents a debtor's delay in bringing the action from penalizing the unsecured creditors who would benefit from the action. 27 F.3d at 982-85.
15
While the rationale of Maxway is compelling on the question of whether the two-year statute of limitations should apply to a debtor-in-possession, we are bound by Zilkha for whatever precedent it may provide us to determine the liquidating agent question presented. One panel of the court cannot overrule the decision of another panel in the absence of en banc reconsideration or an intervening decision of the United States Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993), cert. denied --- U.S. ----, 115 S.Ct. 53, 130 L.Ed.2d 13 reh'g denied --- U.S. ----, 115 S.Ct. 615, 130 L.Ed.2d 523 (1994).
16
II. Applicability of statute of limitations of former Sec. 546(a)(1) to an estate representative appointed under Sec. 1123(b)(3) who is neither a trustee nor a debtor-in-possession.
17
Starzynski also contends he had two years from the date of his appointment as liquidating agent in which to file the actions. In Zilkha, a trustee was never appointed, and the court noted:
18
We take no position on whether a subsequent appointment of a trustee in a chapter 11 case would change the analysis. See Boatman v. E.J. Davis Co., 49 B.R. 719 (Bankr.D.Conn.1985). While we perceive that to be a distinguishable circumstance requiring a different analysis, we leave the issue for a case in which that situation arises.
19
920 F.2d at 1524, n. 11. Starzynski argues this case presents the issue described in footnote 11 because, as liquidating agent, he is the functional equivalent of a trustee. As the court noted in Zilkha, it may be that under former Sec. 546(a)(1) a subsequently appointed trustee would have two years in which to file actions. See In re C & R Beer & Soda, 186 B.R. 173, 178-79 (Bankr.E.D.N.Y.1995). But see In re IRFM, 65 F.3d 778, 780 (9th Cir.1995). However, Starzynski is not a trustee appointed under one of the listed sections of Sec. 546(a) of the Bankruptcy Code, but is a representative of the estate appointed under Sec. 1123(b)(3) to retain and enforce any claim or interest belonging to the debtor or to the estate.2
20
Whether former Sec. 546(a)(1) applies to an estate representative appointed under Sec. 1123(b)(3) is an issue of statutory construction. The starting point in analyzing this issue must be the language of the statute. If the language is clear and unambiguous, judicial inquiry is at an end in all but the most extraordinary circumstances. Unless the plain language of the statute would produce a result demonstrably at odds with the intention of its drafters, the court must give effect to the clear meaning of the statute as written. United States v. Ron Pair Enterprises, 489 U.S. 235, 241-42, 109 S.Ct. 1026, 1030-31, 103 L.Ed.2d 290 (1989). See Patterson v. Shumate, 504 U.S. 753, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). Cf. Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S.Ct. 773, 779-80, 116 L.Ed.2d 903 (1992) (Court reluctant to interpret ambiguous provision of Bankruptcy Code to work major change in pre-Code practice absent some discussion in legislative history).
21
There is no basis in the statutory language for restarting the two-year statute of limitations of Sec. 546(a)(1) upon appointment of an estate representative under Sec. 1123(b)(3). The two-year statute of limitations of Sec. 546(a)(1) expressly commenced upon "appointment of a trustee" under five specific sections of the Bankruptcy Code. As construed in Zilkha, it also commences when a Chapter 11 debtor first becomes a debtor-in-possession because Sec. 1107(a) makes a debtor-in-possession the functional equivalent of a Chapter 11 trustee, which has all of the rights and powers of and is subject to the limitations on a Chapter 11 trustee. See Century Brass, 22 F.3d at 39-40; Zilkha, 920 F.2d at 1523-24. This construction is controversial, see, e.g., Maxway, 27 F.3d 980, but is based on the language of the Bankruptcy Code.
22
The language of Sec. 1107(a) cannot be stretched to make an estate representative appointed under Sec. 1123(b)(3) a trustee within the meaning of Sec. 546(a)(1). Nor does Sec. 1123(b)(3) do so; it provides merely that a Chapter 11 plan may provide for:
23
(A) the settlement or adjustment of any claim or interest belonging to the debtor or to the estate; or
24
(B) the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest.
25
It is true that Sec. 1123(b)(3) permits an estate representative who is neither a trustee nor a debtor-in-possession acting as a trustee to bring preference claims under 11 U.S.C. Sec. 547 (1993) that are ordinarily brought by the trustee or the debtor-in-possession. See In re Sweetwater, 884 F.2d 1323, 1327-29 (10th Cir.1989). However, the statutory language of Secs. 546(a), 1107(a), and 1123(b)(3) provides no basis for concluding a non-trustee appointed as an agent representative under Sec. 1123(b)(3) is a trustee within the meaning of Sec. 546(a). Thus, appointment of an estate representative who is neither a debtor nor a trustee cannot start the running of the two-year statute of limitations of Sec. 546(a)(1). See National Steel, 170 B.R. at 749-50; In re Mars Stores, 150 B.R. 869, 878 (Bankr.D.Mass.1993). But see In re Iron-Oak Supply Corp., 162 B.R. 301, 308-09 (Bankr.E.D.Cal.1993); In re Gibbons-Grable Co., 142 B.R. 164, 165-66 (Bankr.N.D.Ohio 1992).
26
Because Zilkha starts the two-year statute of limitations running upon commencement of a Chapter 11 case as well as upon appointment of a trustee, an estate representative appointed under Sec. 1123(b)(3) will not have two years in which to file preference and other avoidance claims. Unless the appointment of a trustee starts the two-year period running anew, the estate representative must file preference and other avoidance actions that are subject to Sec. 546(a) within two years of commencement of the Chapter 11 case. If a trustee is appointed, the representative would have two years from that appointment in which to file actions.
27
Although this construction gives estate representatives who are neither trustees nor debtors less than two years in which to file preference and other avoidance claims assigned to them under Sec. 1123(b)(3), it does not thwart an obvious legislative purpose by making it impossible for a representative appointed under Sec. 1123(b)(3) to timely enforce those claims. Here, for example, Starzynski was appointed approximately 14 months after commencement of the Chapter 11 action and had ten months in which to file the claims. Moreover, creditors are not helpless when a debtor-in-possession refuses to bring avoidance actions and the statute of limitations is nearing expiration. Under 11 U.S.C. Sec. 1104 (1993), any party in interest may request appointment of a trustee, and under 11 U.S.C. Sec. 1109(b) (1993), a creditors' committee or even an individual creditor may, with leave of the bankruptcy court, initiate avoidance and other actions when the debtor-in-possession has failed to do so. See, e.g., Louisiana World Exposition v. Federal Ins. Co., 858 F.2d 233, 247 (5th Cir.1988); In re Fugazy, 150 B.R. 103, 105 (Bankr.S.D.N.Y.1993). But see In re Wilson, 77 B.R. 532, 535-36 (Bankr.W.D.Va.1987) (although Sec. 1109(b) is unavailable, Secs. 105(a) and 1104 are available remedies when debtor-in-possession refuses to initiate adversary proceedings). Alternatively, parties could seek an order extending the deadline for filing. See P. Hoffman, Avoiding Powers: Special Bankruptcy Rights to Attack Claims or Liens and Recover Transfers, in Small Business Bankruptcy Reorganizations 257, 281 (James A. Pusateri et al. eds., 1994).
28
III. Alleged improper factfinding by bankruptcy court in determining whether Starzynski was functional equivalent of trustee.
29
Starzynski argues the bankruptcy court's ruling that he was the functional equivalent of a trustee rather than the debtor-in-possession was a conclusion of law subject to de novo review. In the alternative, he contends the court improperly resolved an issue of fact in deciding a motion to dismiss and made findings of fact unsupported by the record on whether an estate representative appointed under Sec. 1123(b)(3) is the functional equivalent of a trustee.
30
The issue before the court was whether the statute of limitations of Sec. 546(a)(1) applies to a Sec. 1123(b)(3) estate representative who is neither a debtor-in-possession nor a trustee appointed under one of the listed sections of the Bankruptcy Code. Construction of a statute is an issue of law. See Onwuneme v. INS, 67 F.3d 273, 275 (10th Cir.1995). In resolving the issue, the bankruptcy court did not need to resolve issues of fact, and the record shows that it did not purport to do so.
31
IV. Whether the terms of the plan gave Starzynski two years from date of appointment to file the actions.
32
Starzynski also contends the plan treated him as the functional equivalent of a trustee, giving him two years from the date of his appointment to file the actions. Whether Starzynski is the functional equivalent of a trustee or the debtor-in-possession is irrelevant. The issue is whether he is a trustee within the meaning of Sec. 546(a)(1). As discussed, there is no statutory language that could make him a trustee under Sec. 546(a)(1).
33
Starzynski argues the plan shows the creditors had no intention of limiting his power to prosecute avoidance actions to those of the debtor-in-possession. He argues the plan gave him all of the rights of a trustee, including two years from the date of his appointment in which to file the actions. He relies on the following provision of the order confirming the plan, which gave the agent
34
all the rights and powers of a representative of the Estate and all the rights and powers set forth in the Plan including without limitation, the right to investigate, file, prosecute and settle any and all causes of action to avoid and recover any transfers, liens or setoffs the Debtor could avoid or recover under the provisions of the Bankruptcy Code, (including without limitation Secs. 544, 545, 546 ...).
35
(Appellant's appendix 233-34.) The order gave Starzynski all of the powers of a representative of the estate, but that could not make him a trustee within the meaning of Sec. 546(a)(1) or change the statutory language to include Sec. 1123(b)(3) estate representatives who are neither trustees nor debtors-in-possession.
36
Nor do the order and the virtually identical corresponding provisions of the plan expressly provide that Starzynski would have two years from the date of appointment to file the actions, and the phrase "without limitation" in the order cannot reasonably be read to do so, especially in light of the bankruptcy court's subsequent ruling that the statute of limitations expired before Starzynski filed the actions. Moreover, it is questionable whether the plan could extend the period during which preference actions could be filed, which is provided by statute. See In re Millers Cove Energy Co., 179 B.R. 77, 85 (Bankr.E.D.Tenn.1995) (Sec. 546(a) is a jurisdictional provision); In re Calvanese, 169 B.R. 104, 113-14 (Bankr.E.D.Pa.1994) (Sec. 546(a)(1) is a statute of repose that cannot be extended by a plan). But see, e.g., Matter of Texas General Petroleum Corp., 52 F.3d 1330, 1337-38 (5th Cir.1995) (Sec. 546(a) is not jurisdictional); Iron-Oak Supply, 162 B.R. at 307 (Sec. 546(a) not a statute of repose); In re Shape, 138 B.R. 334, 337-38 (Bankr.D.Me.1992) (Sec. 546(a) not jurisdictional and may be extended by agreement).
37
AFFIRMED.
*
After examining the briefs and appellate record, this panel determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Oral argument was vacated and the case was ordered submitted on the briefs
1
The statute now reads (11 U.S.C. Sec. 546(a) (Supp.1995)):
An action or proceeding under section 544, 545, 547, 548, or 553 of this title may not be commenced after the earlier of--
(1) the later of--
(A) 2 years after the entry of the order for relief; or
(B) 1 year after the appointment or election of the first trustee under section 702, 1104, 1163, 1202, or 1302 of this title if such appointment or such election occurs before the expiration of the period specified in subparagraph (A); or
(2) the time the case is closed or dismissed.
2
Several cases cited by Starzynski do not support his contention that appointment of a Sec. 1123(b)(3) estate representative starts the running of the statute of limitations. In Maxway, 27 F.3d at 982-85, the court did not hold the statute of limitations began running upon appointment of an estate representative by a confirmed plan; the court held the statute never started to run because no trustee was appointed. In In re Royal Acquisition Corp., 167 B.R. 456 (Bankr.N.D.Ohio 1994), the court held the statute began running upon appointment of a liquidating trustee, but did not state the trustee was appointed under Sec. 1123(b)(3)
National Steel, 170 B.R. at 749-50, supports the opposite proposition from that for which it is cited. The court held appointment of a Sec. 1123(b)(3) estate representative did not start the running of the statute of limitations. The court held the complaints timely after rejecting Zilkha, and held the statute did not begin running upon commencement of the chapter 11 case. Only in dicta did the court state that even if the statute started running upon appointment of the representative, the representative's complaints were timely because they were filed within two years of appointment.
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723 A.2d 1041 (1998)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Jeffrey Alan YASHINSKI, Appellant.
Superior Court of Pennsylvania.
Submitted March 25, 1998.
Filed December 1, 1998.
James F. Donohue, Butler, for appellant.
James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Before POPOVICH, ORIE MELVIN and BROSKY, JJ.
BROSKY, J.
This is an appeal from a judgment of sentence imposed upon appellant after he was convicted in a bench trial of Driving Under the Influence. Appellant raises two questions for our review, which we restate as follows: whether the court erred in not concluding that the stop of his vehicle was without reasonable suspicion or probable cause, and whether the Pennsylvania State Police illegally stopped his vehicle by using a Pennsylvania Turnpike Toll Plaza as an illegal roadblock? We vacate and remand.
The larger factual premise is not at issue. At approximately 2:00 A.M. on November 19, 1995, Trooper Duane Gibson and his partner were occupying the only two open tollbooths at the Monroeville entrance to the Pennsylvania Turnpike. Appellant drove up to the tollbooth that Trooper Gibson occupied and *1042 took a ticket from the automatic dispenser. At that time Trooper Gibson inquired of appellant "how are you doing, or where are you coming from?" (Tr. T. 5). Appellant responded that he was going to Oil City and that he was lost. Trooper Gibson began to instruct appellant how to get to Oil City but during the conversation developed the suspicion that appellant was operating the vehicle under the influence of alcohol.[1] Appellant was then directed to pull the vehicle over to the side in a well-lit area where he was asked to perform field sobriety tests. In Trooper Gibson's estimation appellant did not satisfactorily perform the tests and appellant was taken to a nearby hospital for a blood alcohol test which revealed a .173 BAC.
Appellant was charged, by criminal information, with three counts of driving under the influence at 75 Pa.C.S.A. § 3731(a)(1), (a)(4), and (a)(5). The Commonwealth dismissed the count for violating subsection (a)(5) prior to trial. Appellant filed a suppression motion which was heard immediately prior to a scheduled bench trial. Appellant's motion was denied and appellant proceeded to the bench trial which resulted in his conviction of the two remaining counts of DUI. The present appeal followed.
Appellant contends, in essence, that he was subjected to an improper roadblock when Trooper Gibson questioned him as he retrieved a ticket from the automatic dispenser. We agree.[2]
A review of the testimony from the bench trial indicates that Trooper Gibson and his partner systematically engaged the drivers entering the turnpike in conversation. This brief encounter, at least in the case of our appellant, and presumably with most, if not all, of the other drivers entering the turnpike, provided the Trooper sufficient contact with the appellant to presumptively determine that he might be operating the vehicle under the influence of alcohol. The lower court may have been inclined to believe the rather incredulous explanation of Trooper Gibson that, in systematically engaging drivers in conversation, he and his partner were performing "public relations" activities for the Pennsylvania State Police as opposed to seeking drunk drivers. Nevertheless, in our opinion such a course of conduct describes a de facto roadblock regardless of intent.
A "roadblock" has been characterized as a "systematic program of checking vehicles or drivers." 75 Pa.C.S.A. § 6308(b). Further, our Supreme Court, in discussing the case of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), used the following language to describe conduct which was considered a roadblock in that case, the "routine stopping of a vehicle for brief questioning of its occupants...." Commonwealth v. Tarbert, 517 Pa. 277, 287, 535 A.2d 1035, 1040 (1992). Regardless of intent and/or the presence of reasonable suspicion, or the lack thereof, this is precisely what Trooper Gibson was engaged in.
As mentioned earlier, Gibson testified that as appellant stopped to take a ticket he asked him "how he was doing, or where are you coming from." (T. 5). Gibson further indicated that appellant wasn't the only individual he engaged in this fashion, rather Gibson stated "I speak to just about everyone that goes through." (T. 7). As such, Gibson and his partner were engaged in a process of the "routine stopping of a vehicle for brief questioning of its occupants." The Commonwealth and the lower court are quick to point out that Trooper Gibson never ordered appellant to stop and never indicated that he was not free to leave.[3] However, in our opinion this is immaterial.
*1043 The definition of a roadblock does not state that the systematic checking must be done under a threat of force or some other form of compulsion. To the extent the questioning of drivers coming through the tollbooths effectively provided brief contact with most of them it would serve the same purpose. Further, this argument ignores the reality of the circumstances. The overwhelming majority of lay people do not feel free to simply ignore a police officer's questions and continue driving along. We recognized a similar concept in Commonwealth v. Zogby, 455 Pa.Super. 621, 689 A.2d 280 (1997), where we stated "[t]he reality of the matter is that when a police officer requests a civilian to do something, even something as simple as `move along,' it is most often perceived as a command that will be met with an unpleasant response if disobeyed." Id., 689 A.2d at 282.
No less an authority than Justice Stevens of the United States Supreme Court has stated "[r]epeated decisions by ordinary citizens to surrender that interest [the right to refuse consent to a search] cannot be satisfactorily explained on any hypothesis other than an assumption that they believed they had a legal duty to do so." Ohio v. Robinette, 519 U.S. 33, ___, 117 S.Ct. 417, 425, 136 L.Ed.2d 347 (1996) (Dissenting Opinion). These observations demonstrate that a police officer need not officially "stop" a vehicle to effectuate the investigative purpose, it is enough if they ask a question of a motorist because, except for the brashest of motorists, the ordinary motorist will feel compelled to stop and respond.
In light of the above we have little difficulty in concluding that, regardless of Trooper Gibson's testimonial characterization of the practice engaged in that early morning of November 19, 1995, for all intents and purposes the net effect of that practice was a systematic stopping and investigation of drivers coming through the tollbooths. As such, it was a "roadblock." Although "roadblocks" are legal in Pennsylvania they must be conducted according to the specifications set forth in our Supreme Court's cases of Commonwealth v. Tarbert, supra, and Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992). The Commonwealth does not contend that there was compliance with these dictates and it is quite clear that there was no compliance.
Consequently, in our opinion, the stop was illegal and the results of the stop should have been suppressed.
For the above reasons we vacate the judgment of sentence and remand for a new trial. Consistent with the above analysis, the incriminating evidence derived from the encounter between appellant and Trooper Gibson must be suppressed.
Judgment of sentence vacated, remanded for new trial. Jurisdiction relinquished.
ORIE MELVIN, J., files a Dissenting Opinion.
ORIE MELVIN, J., dissenting:
The majority holds that the Pennsylvania State Police illegally stopped appellant's vehicle by using a turnpike toll plaza as a roadblock. It concludes the trooper stopped the vehicle by virtue of the fact he greeted appellant and asked him where he was coming from. Because I believe the trial court was correct in its assessment of this encounter as a "mere casual conversation between a police officer and a motorist" I dissent.
The record reveals that Trooper Gibson was located at the toll plaza as part of standard police procedure that requires an officer to go through each interchange within his jurisdiction at least once during a shift. While at the toll plaza and as appellant was already stopped to take a ticket, Trooper Gibson asked him either how he was doing or where he was coming from. Trooper Gibson testified that he greeted almost all drivers in this manner. Trooper Gibson was not stopping vehicles for inspection or asking the occupants for their driver's license or registration. He was merely greeting them and engaging in casual conversation.
*1044 The majority finds Trooper Gibson engaged in a practice of systematic stopping and investigation of drivers coming through the tollbooths. Although the trial court found that appellant was not stopped by Trooper Gibson, the majority finds this fact immaterial. However, under the majority definition of a roadblock Trooper Gibson must have been engaged in a routine stopping of vehicles. Appellant's pause at the tollgate was caused merely by the fact he had to obtain a ticket. At that point a casual question was asked. Appellant could have continued without further contact or any response. Instead, Appellant chose not only to respond to Trooper Gibson's question but asked him for directions for his destination. Trooper Gibson simply did not stop appellant's vehicle.
The majority's holding is premised on the belief that questioning by a police officer, even such non-threatening questions like "how is it going," constitutes a stop because most lay people do not feel free to ignore an officer's questions. However, such a conclusion is based on mere speculation. Citizens may voluntarily cooperate with police out of a natural sense of obligation, civic duty, or simple common courtesy. Commonwealth v. Hoak, 700 A.2d 1263, 1268, n. 5 (Pa.Super.1997). See also Schneckloth v. Bustamonte, 412 U.S. 218, 247, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973) (stating "[t]here is no reason to believe ... that the response to a policeman's question is presumptively coerced"). Furthermore, the majority's holding flies in the face of legal precedent which holds that not all personal intercourse between police officers and citizens involve seizures of persons. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968) (indicating a police uniform, as a symbol of authority, is not in itself a sufficient exercise of force to conclude a stop occurs when a citizen is approached and questioned). To characterize a toll plaza as a de facto roadblock because appellant engaged in polite conversation with Trooper Gibson ignores this well-established legal principle. In conclusion because I believe Trooper Gibson's presence at the tollbooth and his greeting of motorists did not transform the toll plaza into a roadblock, I would affirm appellant's judgment of sentence.
NOTES
[1] Trooper Gibson testified that he smelled alcohol emanating from appellant and that appellant exhibited slurred speech. Trooper Gibson also observed an open case of beer inside the truck and observed that appellant had "extremely bloodshot eyes."
[2] In light of our conclusion as to appellant's second issue we need not address the first issue. However, we would note that in light of the trial court's factual findings the encounter between appellant and Trooper Gibson would likely be deemed a "mere encounter" which does not require any suspicion of criminal activity for justification. See, Commonwealth v. Peters, 434 Pa.Super. 268, 642 A.2d 1126 (1994).
[3] This point was contradicted by appellant and his passenger. Appellant and his passenger both testified that appellant took a ticket and began to pull away from the booth at which time they were directed to "stop." Upon seeing that it was a trooper that had ordered him to stop appellant indeed stopped and answered the trooper's questions. Speaking quite frankly, appellant's version of the facts seems at least as credible as Trooper Gibson's version. Nevertheless, we are bound by the factual findings of the suppression court, as there is evidentiary support for them.
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838 F.Supp. 1235 (1993)
EQUALITY FOUNDATION OF GREATER CINCINNATI, INC. et al., Plaintiffs,
v.
The CITY OF CINCINNATI, Defendant.
No. C-1-93-773.
United States District Court, S.D. Ohio, W.D.
November 19, 1993.
Alphonse Adam Gerhardstein, Scott T. Greenwood, ACLU of Ohio Foundation Inc., Cincinnati, OH, for plaintiffs.
Karl Paul Kadon, Cincinnati, OH, for defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
SPIEGEL, District Judge.
This matter is before the Court on the Plaintiffs' Motion for Preliminary Injunction (doc. 2), the Defendant's Memorandum in Opposition (doc. 5), the Plaintiffs' Reply Memorandum (doc. 7), the Plaintiffs' Proposed Findings of Fact and Conclusions of Law (doc. 9), Brief of Amicus Curiae of Ohio Human Rights Bar (doc. 12), the Defendant's Proposed Findings of Fact and Conclusions of Law (doc. 13), Brief of Amici Curiae Ohio Sociological Foundation (doc. 14), and the Plaintiffs' Supplemental Reply (doc. 15). A hearing was held on this matter on November 15, 1993.
INTRODUCTION
We announced on November 16, 1993, our intention of granting the Plaintiffs' Motion for Preliminary Injunction. We emphasize that we are sensitive to the concerns of the people who voted in favor of the passage of *1236 the Issue 3 Amendment. It is of paramount concern to the Court that all affected by this Order have an understanding of the role of the Court in this case. The Court is in no way granting special rights to any individual or group, nor is it usurping the democratic process. On the contrary, an essential principal of our system of government is that fundamental constitutional rights are not subject to popular vote. Thus, it is one of the most important roles of the federal courts to ensure that the constitutional rights of the few or the powerless are not infringed because their views are unpopular with the majority. Without these principals, and without the independence of the federal courts to preserve them, ours would not be a democracy at all but rather a tyranny at the whim of the majority.
PROCEDURAL BACKGROUND
The Plaintiffs in this case have filed a motion seeking a preliminary injunction prohibiting the implementation of the Issue 3 Amendment to the Cincinnati City Charter. Accordingly, we will analyze the issues before the Court under the appropriate four part test discussed below.
FACTUAL BACKGROUND
This action challenges the constitutionality of Article XII of the Cincinnati City Charter, passed by the voters on November 2, 1993. The Plaintiffs allege that the amendment violates their rights of equal protection, free speech, and redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution and by the Constitution of the State of Ohio.
The amendment, titled Issue 3 on the ballot ("Issue 3" or the "Issue 3 Amendment"), provides:
ARTICLE XII
NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS
The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect.
The Charter of the City of Cincinnati is akin to a local constitution. It is the primary governance document in the city. Generally, local laws must comply with the Charter. Policy in the Cincinnati City Government is set by a nine member City Council which is elected at large every two years; the council candidate receiving the highest vote is also elected Mayor.
Guy Guckenberger was a Republican council member for over twenty years. He left the Council in February, 1992 to assume a position as a Hamilton County Commissioner. Mr. Guckenberger testified for the Plaintiffs at the hearing and the Court found him to be a credible and informative witness. He explained that City Council not only passes laws but also does a great deal of constituent work, assisting citizens in their efforts to have particular problems addressed by the City administration. While the day-to-day administration of the City government is left to a professional city manager, the City Council enacts ordinances and sets policy for the city manager and City administration and also has the responsibility and authority to hire and fire the manager.
Mr. Guckenberger explained that council members have many particular constituencies within the Cincinnati electorate such as environmental groups, the AFL-CIO, and Stonewall a political advocacy group for lesbians and gays. The determination of the competing needs and demands of various groups is accomplished by private meetings with citizens as well as through special public hearings and through the weekly council committee meetings.
*1237 Mr. Guckenberger and plaintiff Richard Buchanan, also a credible witness, traced the political development of the gay citizens of Cincinnati. In 1983, Stonewall Cincinnati first endorsed City Council candidates, although many of the candidates refused to accept the endorsement.
Over the years, the gay and lesbian issues pursued through City Council Members included alleged harassment of gays by police in the City Parks, a dispute with the Civil Service Commission regarding the questions on sexual orientation and sexual history for police and fire recruits, and the City EEO ordinance and what eventually became the Human Rights Ordinance.
Mr. Guckenberger noted that although the gay and lesbian political voice was getting stronger over the last decade, many individuals would nonetheless introduce themselves at gay functions by first name only and otherwise indicate that they were not yet ready to declare themselves openly gay.
The Plaintiffs also provided testimony to the effect that the political history of lesbians, gays and bisexuals in Cincinnati is an indication that they are an identifiable group. For example, George Chauncey, an historian at the University of Chicago, stated in his affidavit that there is a well-documented history of discrimination in the United States against gay men, lesbians and bisexuals as a result of their sexual orientation. This discrimination has included status- or identity-based discrimination as well as conduct-based discrimination. Many laws have been passed that have been specifically targeted at and/or selectively enforced against gay men, lesbians and bisexuals.
Furthermore, we found credible the testimony of Plaintiff Roger Asterino who testified at the hearing. He, along with Plaintiff Edwin Greene who testified via affidavit, related their experiences as gay men. Rita Mathis, another credible witness who also testified at the hearing, told of her experience as a lesbian. The testimony of these witnesses included accounts of the discrimination they have experienced because of their sexual orientation. According to their testimony, they experience, among other things, fear of rejection by family and friends, fear of reprisal and violence and harassment in housing and employment.
Dr. Gonsiorek, a highly credentialed psychologist, testified credibly that the experiences of these plaintiffs were typical of the experiences of discrimination of lesbians, gay men and bisexuals. Dr. Gonsiorek showed that lesbians, gay men and bisexuals are an identifiable class because of their shared sexual orientation toward people of the same gender and their shared history of discrimination on the basis of their sexual orientation.
Plaintiff Mr. Asterino, who is 42, testified that he knew by an early age that he was gay and that he prayed to change. He was reluctant to "come out" to his family and co-workers and "came out" only this year to fight alleged sexual orientation discrimination at his job. Similarly, Plaintiff Ms. Mathis described her experience of discrimination as an African-American lesbian mother. Ms. Mathis cited instances of sexual orientation discrimination in her life and her fears not only for herself but for stigmatization or harassment of her son.
The Plaintiff Mr. Greene similarly testified via affidavit with respect to his experience of discrimination as an African-American gay man. Mr. Greene repeatedly experienced discrimination in employment prior to passage of the Human Rights Ordinance. He also showed the dual effects of racism and sexual orientation discrimination in his life.
In Mr. Guckenberger's opinion, if Article XII of the charter becomes effective, it is likely that elected city representatives and other city officials will be prevented from enacting, adopting, enforcing or administering any "ordinance, rule, regulation or policy" on behalf of gay, lesbian, and bisexual citizens, regardless of its merit. Mr. Guckenberger noted that after Issue 3, laws that benefit the gay and lesbian community will have to be adopted by Charter amendment a burdensome task that requires a city wide campaign and support of a majority of the voters; a far more onerous task than lobbying the City Council or City administration for protection of the gay community.
*1238 Moreover, the point of doing the campaign work and gaining access to council's political corridors of power is lost if counsel cannot deliver any response on the issues that affect this identifiable group. Thus, attempting to work with the City Council or administration would be rendered meaningless.
We find that by its own terms, Issue 3 singles out persons with "homosexual, lesbian or bisexual orientation." Furthermore, it does not target specific types of problems that affect all citizens for its restrictions, but rather it targets specific citizens based upon their sexual orientation. Mr. Guckenberger could recall no other time in the history of the City of Cincinnati when such a charter provision was enacted.
Finally, Cincinnati City ordinance No. 490-1992 (Human Rights Ordinance) prohibits discrimination based on many factors, including sexual orientation, in the areas of private employment, public accommodations and housing. Discrimination based upon sexual orientation, whether it be heterosexual, lesbian, gay or bisexual, is prohibited by this ordinance.
No evidence was offered by the Defendant City of Cincinnati or the intervenor to demonstrate that it is not substantially likely that the charter amendment will prohibit enforcement of the Human Rights Ordinance or EEO Ordinance insofar as they prohibit discrimination against gay men, lesbians and bisexuals. The charter amendment will not disturb enforcement of the provisions which prohibit discrimination against heterosexual people.
STANDARD
In determining whether to issue a preliminary injunction the district court must balance four interrelated criteria:
1) Whether the Plaintiffs have shown a strong or substantial likelihood or probability of success on the merits;
2) Whether the Plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause substantial harm to others; [and]
4) Whether the public interest would be served by issuing a preliminary injunction.
N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir.1989); Weaver v. University of Cincinnati, 942 F.2d 1039, 1043 (6th Cir.1991).
ANALYSIS
a) Substantial Likelihood of Success
The Plaintiffs in this case claim that Issue 3 infringes, among other things, their fundamental right to participate equally in the political process, in violation of the Equal Protection Clause of the United States Constitution. Under the Equal Protection Clause there are three standards which may be applicable in reviewing an equal protection challenge: strict scrutiny, intermediate scrutiny, and rational basis review. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Legislation that infringes a fundamental right must be examined under the strict scrutiny standard of review. Id.; Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). Consequently, we must first consider whether the right to participate equally in the political process is a fundamental right. As discussed below, we conclude that there is a strong likelihood that such right exists, and that the Defendant has violated it. Accordingly we review this equal protection challenge under the strict scrutiny standard of review.
1
We find support for our decision in the thorough analysis of the Colorado Supreme Court in Evans v. Romer, 854 P.2d 1270 (Colo.), cert. denied, ___ U.S. ___, 114 S.Ct. 419, ___ L.Ed.2d ___ (1993). The Evans court noted that,
[t]he right of citizens to participate in the process of government is a core democratic value which has been recognized from the very inception of our republic up to the present time.
Evans, at 1276. Thus, it is not surprising that the United States Supreme Court has consistently rejected legislation establishing *1239 preconditions on the right to vote. See Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (invalidating law requiring children or ownership of property as precondition to vote); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (holding poll tax unconstitutional); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (holding unconstitutional law requiring civilian status to vote).
Although these cases dealt with laws directly restricting the exercise of the franchise, we find that these cases stand for the broader principal that all people have the right to be free from restrictions which would "pose the danger of denying some citizens any effective voice in the governmental affairs which would substantially affect their lives." Kramer, 395 U.S. at 627, 89 S.Ct. at 1889 (emphasis added). Thus, "[a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government." Id. at 626, 89 S.Ct. at 1889 (emphasis added). As a consequence, any laws which "fence out" a group of voters because of a fear of their views or because of the way they vote, threatens the group's ability to "exercise ... rights so vital to the maintenance of democratic institutions." Carrington, 380 U.S. at 94, 85 S.Ct. at 779. We readily conclude that these pronouncements embody principals not simply confined to cases involving the right to vote.
2
A second line of cases are more directly on point as they deal not with a precondition or restriction on the right to vote, but rather with the value of one's vote; in other words, the right to have one's vote count as well as be counted. See Reynolds v. Sims, 377 U.S. 533, 566, 84 S.Ct. 1362, 1384, 12 L.Ed.2d 506 (1964) ("[d]iluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discrimination based upon factors such as race"); New York City Board of Estimate v. Morris, 489 U.S. 688, 693, 109 S.Ct. 1433, 1438, 103 L.Ed.2d 717 (1989) ("each and every citizen has an inalienable right to full and effective participation in the political process"); Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963) ("the right to have one's vote counted has the same dignity as the right to put a ballot in the box").
That these cases stand for the broader proposition that all citizens have not only the right "to vote" but also the deeply rooted right to meaningful and equal participation in the political process was made crystal clear in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In Sims, the Court observed that with
the birth of our National Government, and the adoption and ratification of the Federal Constitution, state legislatures retained a most important place in our Nation's governmental structure. But representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political process of his State's legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.
Sims, 377 U.S. at 564-65, 84 S.Ct. at 1383 (emphasis added); New York City Board of Estimate, 489 U.S. at 693, 109 S.Ct. at 1438.
Consequently, if a representative is powerless to act on behalf of an identifiable group, the members of that group are not "self-govern[ing] through the medium of elected representatives" see Sims, 377 U.S. at 565, 84 S.Ct. at 1383, and thus, the right to "put the ballot in the box" see Gray, 372 U.S. at 380, 83 S.Ct. at 808 (1963), is but a meaningless procedure. Simply put, the right to vote for someone who is powerless to represent the voter renders meaningless the right to vote for that person. It has been written, the right to full and fair representation "imports *1240 more than the mere right to cast a vote that will be weighted as heavily as the other votes cast in the election." Lawrence H. Tribe, American Constitutional Law § 137, at 1074. Therefore, although gay, lesbian and bisexual citizens have the right to cast a vote, Issue 3's restriction on council members' and other city administrators' ability to act on their behalf eliminates the very purpose and significance of that vote.
3
The third type of cases crucial to our decision are cases involving candidate eligibility. Again, in these cases, actual access to the ballot box was not at issue. Rather, in Williams v. Rhodes, for example, the Court held that certain state election laws violated the equal protection clause because they gave "two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate." 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). The Court continued that the "right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes." Id. Although the plaintiffs in Williams were never denied their right to cast a vote, the Court nonetheless referred to the right to "vote effectively[]" simply in terms of the "right to vote." Williams, 393 U.S. 23, 30, 31, 89 S.Ct. 5, 10 (emphasis added). Consequently, the Court required the state to demonstrate a compelling state interest.
Thus, the Court held that,
[i]n the present situation the state laws place burdens on ... the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.
* * * * * *
The State has here failed to show any "compelling interest" which justifies imposing such heavy burdens on the right to vote and to associate.
Id. Again, of paramount importance was the right to vote effectively, not the mere right "to put a ballot in the box."[1]
4
Finally, and perhaps most significantly, are the cases involving legislation which alters the normal political process of enacting laws with respect to an identifiable group. In Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), the Supreme Court invalidated an Akron, Ohio city charter amendment, passed by a majority of the voters, that provided that the city council could implement no ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of a majority of the city's voters. In applying the strict scrutiny standard of review, the Court held the amendment violative of the Equal Protection Clause. Id. The Court stated in unambiguous terms that,
[e]ven though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size.
Id. at 392-93, 89 S.Ct. at 561 (emphasis added).
Similarly, in Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971), the Court considered the constitutionality of a state's constitutional and statutory mandates requiring approval of 60% of the voters before increasing bonded indebtedness, or increasing the tax rate beyond a certain amount. The Court stated that,
we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently, no sector of the population *1241 may be `fenced out' from the franchise because of the way they will vote.
* * * * * *
We conclude that so long as [the legislation does] not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause.
Id. at 5, 7, 91 S.Ct. at 1892, 1892 (emphasis added) (citation and footnote omitted).
We acknowledge that Hunter, although significantly not Gordon, involved the issue of racial discrimination. We do not agree, however, that the holdings of these cases are limited to cases involving racial discrimination.[2] Rather, we conclude that these cases stand for the broader proposition that states may not disadvantage any identifiable group, whether a suspect category or not, by making it more difficult to enact legislation on its behalf. See Evans, 854 P.2d at 1281, 1283; Gordon, 403 U.S. at 7, 91 S.Ct. at 1892; Hunter, 393 U.S. 385, 393, 89 S.Ct. 557, 561; Note, Constitutional Limits on Anti-Gay-Rights Initiatives, 106 Harv.L.Rev. 1905, 1916-17 (1993). Consequently, so long as such provisions do not discriminate against or authorize discrimination against any identifiable class, they do not violate the Equal Protection Clause. See Gordon, 403 U.S. at 7, 91 S.Ct. at 1892 (emphasis added) (footnote omitted); Hunter, 393 U.S. 385, 393, 89 S.Ct. 557, 561; Evans, 854 P.2d at 1281, 1283; see also Taxpayers United v. Austin, 994 F.2d 291, 297 (6th Cir.1993) (upholding constitutionality of nondiscriminatory restriction on ability to use the "initiative procedure" in Michigan, but cautioning that "[o]ur result would be different if ... [the plaintiffs] were being treated differently than other groups seeking to initiate legislation").[3]
5
In light of the forgoing, and based on the record, we conclude that there is a strong likelihood that under the Issue 3 Amendment, all citizens, with the express exception of gay, lesbian and bisexual citizens, have the right to appeal directly to the members of city council for legislation, while only members of the Plaintiffs' identifiable group must proceed via the exceptionally arduous and costly route of amending the city charter before they may obtain any legislation bearing on their sexual orientation. Thus, there is a substantial likelihood that the Issue 3 Amendment "fences out" an identifiable group of citizens gay, lesbian and bisexualsfrom the political process by imposing upon them an added and significant burden on their quest for favorable legislation, regulation *1242 and policy from the City Council and city administration.[4]
Furthermore, with respect to the Plaintiffs' First Amendment claims, in this case, not only will gay, lesbian and bisexual citizens be virtually unable to obtain legislation for their group no matter how great the need, but also their advocacy may expose them to discrimination for which they will have no recourse even remotely comparable to that of other groups, to obtain protection, thereby increasing the risks of, and consequently chilling, such expression.[5]
Therefore, we find a substantial likelihood that Issue 3 will "ha[ve] the inevitable effect of reducing the total quantum of speech on a public issue" see Meyer v. Grant, 486 U.S. 414, 423, 108 S.Ct. 1886, 1892, 100 L.Ed.2d 425 (1988); as such, there is a substantial likelihood that the implementation of issue 3 will chill the First Amendment rights of citizens and organizations dedicated to the advocacy of issues affecting the gay, lesbian and bisexual community. See id.; see also Merrick v. Board of Higher Education, 116 Or. App. 258, 841 P.2d 646, 651 (1992) ("Not only does the statute discourage [gays, lesbians and bisexuals] from telling others their sexual orientation, it also discourages them from becoming involved in groups advocating gay and lesbian rights, a constitutionally protected activity, because such involvement might expose them to personnel action. The statute's practical effect is to chill speech and other expression and to severely limit open communication....").
7
Finally, we find especially significant the fact that under the Cincinnati Human Rights Ordinance heterosexuals are still a protected class of people, while Issue 3 would remove only gay, lesbian and bisexual citizens from those citizens protected from the ordinance's prohibition of discrimination based on sexual orientation. This only reinforces our conclusion that the Defendants have proffered no compelling justification to single out gay, lesbian and bisexual citizens for the additional and substantial burdens imposed on their ability to obtain legislation not required of any other identifiable group of citizens. The Court is unaware of what compelling state interest is furthered by removing City Council's and the City administration's ability to address the concerns of one single group of people no matter what need may arise in the future and under what circumstances, while all others may benefit from the direct action of the City Council and City administrators.[6]
Consequently, the Court finds that there is a substantial likelihood that Issue 3 infringes the Plaintiffs' First Amendment rights, and their fundamental right to participate equally in the political process. Similarly, we find that there is a strong likelihood that there is no a compelling state interest in the enactment of Issue 3.
b) Irreparable Harm and Harm to Others
We also conclude that the Plaintiffs will suffer irreparable harm if the Court does not issue the injunction because of the threatened infringement of the Plaintiffs' fundamental rights. See Evans v. Romer, 854 P.2d 1270, 1286 (Colo.), cert. denied, ___ U.S. ___, 114 S.Ct. 419, 126 L.Ed.2d 365 (1993); Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)); Weaver v. University of Cincinnati, 942 F.2d 1039, 1043 (6th Cir.1991). Similarly, we conclude that maintaining the status quo under *1243 the existing City Human Rights Ordinance and EEO Ordinance is the far more prudent course of action in light of the nature of the threat faced by the Plaintiffs in, among other things, their employment and housing situations. Thus, while no harm will occur to others if the preliminary injunction is issued, the increased threat of harassment which we view as likely to occur if Issue 3 is given effect, would seriously undermine the public interest.
CONCLUSION
Accordingly, the Court hereby GRANTS the Plaintiffs' Motion for Preliminary Injunction, prohibiting the implementation of issue 3, until further order of this Court, and ORDERS the Plaintiffs to post bond in the amount of one hundred dollars.
SO ORDERED.
NOTES
[1] In fact, the Court recognized that "the right of individuals to associate for the advancement of political beliefs, and ... the right [of voters] to cast their votes effectively ... of course, rank among our most precious freedoms." Williams, 393 U.S. at 30, 89 S.Ct. at 10
[2] First, the cases speak unmistakably in race-neutral terms. See, e.g., Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) ("State may no more disadvantage any particular group ..."); Washington v. Seattle School District No. 1, 458 U.S. 457, 470, 102 S.Ct. 3187, 3194, 73 L.Ed.2d 896 (1982) ("laws structuring political institutions or allocating power according to "neutral principles ... are not subject to equal protection attack"); Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971) ("so long as the [legislation does] not discriminate against or authorize discrimination against any identifiable class ...").
Furthermore, Gordon, a case not involving race, was distinguished from Hunter not because the legislation in Gordon did not specifically involve a racial minority, but rather because the legislation involved no identifiable group at all. Thus, as the Supreme Court of Colorado pointed out, if Hunter
were decided solely on the basis of the "suspect" nature of the class[] involved, there would have been no need for the Court to consistently express the paramount importance of political participation or to subject legislation which infringed on the right to participate equally in the political process to strict judicial scrutiny. To the contrary, were [Hunter] ... simply a "race case[]" the Supreme Court would have been required to do nothing more than to note that the legislation at issue drew a distinction that was inherently suspect (i.e., that discriminated on the basis of race), and apply strict scrutiny to resolve [that] case[] irrespective of the right, entitlement, or opportunity that was being restricted.... Kramer v. Union School Free District No. 15, 395 U.S. 621, 628, n. 9, 89 S.Ct. 1886, 1890, n. 9....
Evans v. Romer, 854 P.2d 1270, 1283 (Colo. 1993); see Citizens for Responsible Behavior v. Sup. Court, 2 Cal.Rptr.2d 648, 656 (Cal.App. 1991).
[3] We note that despite the Defendants' urging, we decline to interpret the phrase "identifiable group" as used in the above cases to be synonymous with the phrase "suspect category." See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 791, 792, 103 S.Ct. 1564, 1571, 1572, 75 L.Ed.2d 547 (1983) (labeling supporters of independent political candidate "identifiable group").
[4] As Mr. Guckenberger testified, there is a "dramatic difference" between getting an ordinance passed and getting a charter amendment passed.
[5] In fact, one witness testified that with the passage of issue 3, some members of organizations advocating gay, lesbians and bisexual rights have ceased donating to the organizations.
[6] We also note that even under a rational basis standard of review, based on the record, there is a significant likelihood that amendment 3 would not pass muster. See Steffan v. Aspin, No. 91-5409, 8 F.3d 57, 68-70, (D.C.Cir.1993) (military's ban on homosexuals lacked rational basis); Pruitt v. Cheney, 963 F.2d 1160, 1166 (9th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992) (same); Citizens for Responsible Behavior v. Sup. Court., 1 Cal.App.4th 1013, 2 Cal.Rptr.2d 648, 656 (1991) (anti-gay initiative requiring a majority vote to enact any prohibition on sexual orientation discrimination lacked rational basis).
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Filed 2/3/16 P. v. Stevens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B265482
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA101531)
v.
JAMES CHARLES STEVENS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L.
Meyer, Judge. Affirmed as modified.
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Nathan Guttman, Deputy Attorney General,
for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, James Charles Stevens, pled guilty to three counts of grand theft (Pen.
Code, § 484e, subd. (d))1 and one count of forgery (§ 475, subd. (a)). Defendant also
admitted prior conviction and prison term allegations were true. (§§ 667, subd. (d),
667.5, subd. (b), 1170.12, subd. (b).) He was sentenced to five years in state prison. We
modify the oral pronouncement of judgment with respect to the court operations
assessment. We affirm the judgment in all other respects.
II. DISCUSSION
A. Defendant’s Notice of Appeal is Operative
Defendant filed his notice of appeal without securing a probable cause certificate.
(§ 1237.5; Cal. Rules of Court, rule 8.304(b).) However, the notice of appeal properly
indicates a noncertificate ground for appeal, “This appeal is based on the sentence or
other matters occurring after the plea that do not affect the validity of the plea. (Cal.
Rules of Court, rule 8.304 (b).)”2 Therefore, defendant’s appeal is operative as to
postplea matters. (Rule 8.304(b)(4)(B); People v. Buttram (2003) 30 Cal.4th 773, 780-
781; People v. Jones (1995) 10 Cal.4th 1102, 1105, 1108, disapproved on another point
in In re Chavez (2003) 30 Cal.4th 643, 656.) Defendant may assert postplea claims that
do not attack the plea’s validity. (Rule 8.304(b)(5); People v. Buttram, supra, 30 Cal.4th
at pp. 776, 780; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
1 Further statutory references are to the Penal Code.
2 Further references to a rule are to the California Rules of Court.
2
B. Appointed Appellate Counsel has Fully Complied with her Responsibilities
We appointed counsel to represent defendant on appeal. After examining the
record, appointed appellate counsel filed an “Opening Brief” in which no issues were
raised. Instead, appointed appellate counsel requested we independently review the
entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See
Smith v. Robbins (2000) 528 U.S. 259, 277-284.) We have examined the entire record
and are satisfied appointed appellate counsel has fully complied with her responsibilities.
There are no arguable postplea issues favorable to defendant.
C. Defendant’s Claims are not Cognizable on Appeal Absent a Probable Cause
Certificate
On December 10, 2015, we advised defendant of his right to file a supplemental
brief within 30 days. Defendant timely filed a letter brief. Defendant asserts he was
offered four years but, without objection, was sentenced to five years. In the trial court,
defendant was represented by Harvey Sherman. According to defendant, Mr. Sherman
failed to file any motions including a motion to strike prior conviction allegations. And
defendant does not feel the crime warranted the punishment imposed. The record
demonstrates defendant agreed to the five-year sentence and admitted the prior
conviction and prison term allegations as part of his plea bargain. At the outset of the
plea hearing, Mr. Sherman stated, “Your Honor, he would accept the five years.” The
trial court subsequently advised defendant he was facing up to 15 years, but it was willing
to offer 5 years. Defendant’s claims challenge the validity of his plea and are not
cognizable on appeal absent issuance of a probable cause certificate. (People v. Buttram,
supra, 30 Cal.4th at pp. 776, 780; People v. Hester (2000) 22 Cal.4th 290, 295; People v.
Panizzon, supra, 13 Cal.4th at pp. 72-73, 76-79, 89.)
3
D. The Oral Pronouncement of Judgment Must be Modified as to the Court Operations
Assessment
We asked the parties to brief the question whether the oral pronouncement of
judgment must be modified to impose a $160 court operations assessment under section
1465.8, subdivision (a)(1)). The trial court orally imposed a $120 court operations
assessment. However, because defendant was convicted on four counts, the correct
amount was $160. (§ 1465.8, subd. (a)(1); People v. Sencion (2012) 211 Cal.App.4th
480, 484-485; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; see People v.
Alford (2007) 42 Cal.4th 749, 758, fn. 6.) Moreover, the assessment is mandatory.
(People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2; People v. Woods (2010)
191 Cal.App.4th 269, 272.) Therefore, the failure to properly impose it results in an
unauthorized sentence which may be corrected on appeal even absent an objection in the
trial court. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Robinson (2012) 209
Cal.App.4th 401, 405.)
Defendant cites People v. Tillman (2000) 22 Cal.4th 300, 302-303, for the
proposition the prosecution forfeited the issue by failing to object. That argument has no
merit. In Tillman, the trial court failed to articulate a discretionary sentencing choice and
the prosecution did not object. Here, the trial court imposed a legally unauthorized
sentence. The trial court had no discretion with respect to the amount of the court
operations assessment. Such an error is reviewable regardless of whether the prosecution
objected in the trial court. (People v. Smith, supra, 24 Cal.4th at pp. 852-853; In re K.F.
(2009) 173 Cal.App.4th 655, 660.)
The oral pronouncement of judgment must be modified to reflect a $160 court
operations assessment. The abstract of judgment is correct in this regard and need not be
amended.
4
III. DISPOSITION
The oral pronouncement of judgment is modified to impose a $160 court
operations assessment under Penal Code section 1465.8, subdivision (a)(1). The
judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
BAKER, J.
KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
5
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Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Carlos Omar Casillas aka Carlos Omar Appeal from the 8th District Court of
Casillas Padilla, Appellant Hopkins County, Texas (Tr. Ct. No.
1725961). Memorandum Opinion delivered
No. 06-17-00150-CR v. by Justice Moseley, Chief Justice Morriss
and Justice Burgess participating.
The State of Texas, Appellee
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Carlos Omar Casillas aka Carlos Omar Casillas Padilla, has
adequately indicated his inability to pay costs of appeal. Therefore, we waive payment of costs.
RENDERED NOVEMBER 8, 2017
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk
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830 F.2d 1130
Harringtonv.U.S.***
NO. 87-3047
United States Court of Appeals,Eleventh Circuit.
SEP 17, 1987
1
Appeal From: N.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 36 case
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1118
___________
JUAN JAIME BERRIO ECHEVERRY,
a/k/a Juan Guerrero,
a/k/a Jose Gerrero,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A038-597-928)
Immigration Judge: Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 13, 2010
Before: BARRY, GREENAWAY, JR. and STAPLETON, Circuit Judges
(Opinion filed November 2, 2010)
___________
OPINION
___________
PER CURIAM
Petitioner Juan Jaime Berrio Echeverry seeks review of a final order issued by the
Board of Immigration Appeals (“BIA”). We will dismiss the petition for review.
Because the parties are familiar with the background, we will summarize the facts
that are relevant to our decision. Echeverry is a native and citizen of Colombia. In 1983,
he was admitted to the United States as a lawful permanent resident; his last entry into the
United States was in April 2006, as a returning permanent resident. In June 2006, the
Department of Homeland Security (“DHS”) initiated removal proceedings, charging
Echeverry with several grounds of removability based on offenses in his criminal record.
In relevant part, in light of his 1995 New Jersey conviction for manufacturing,
distributing, and dispensing over fifty grams of marijuana, he was charged with
removability for having been convicted of a violation of state law relating to a controlled
substance. See Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) [8 U.S.C.
§ 1182(a)(2)(A)(i)(II)]. Echeverry conceded removability on that charge and applied for
a waiver of removal under former INA § 212(c) [8 U.S.C. § 1182(c)]. After a hearing at
which the Immigration Judge (“IJ”) considered testimonial and documentary evidence,
the IJ denied the waiver application as a matter of discretion because the negative factors
outweighed the positive ones.1 The IJ ordered Echeverry removed to Colombia.
On December 11, 2009, the Board of Immigration Appeals (“BIA”) affirmed the
IJ’s decision and dismissed Echeverry’s appeal. The BIA noted Echeverry’s assertions
1
DHS also had charged Echeverry with removability as an alien who has been an
illicit trafficker of a controlled substance, INA § 212(a)(2)(C) [8 U.S.C. § 1182(a)(2)(C)],
2
that the IJ did not give proper weight to his testimony and did not properly consider the
hardship to Echeverry’s family. However, the BIA agreed with the IJ’s conclusion that
Echeverry’s lengthy residence in the United States, his family ties, and his employment
history do not outweigh his crimes, drug use, and probation violation, adding that his
recent driving violations reflect a lack of rehabilitation. The BIA concluded that the IJ
properly denied the application for a section 212(c) waiver in the exercise of discretion.
Echeverry filed a timely petition for review. He contends that the IJ and the BIA
erred in denying his waiver application because the positive equities in his case merited a
favorable exercise of discretion. Echeverry cites 8 U.S.C. § 1252(a) and (b) in support of
our jurisdiction to review a final order of removal. However, as noted by the respondent,
we generally do not have jurisdiction to review final orders of removal against aliens, like
Echeverry, who are removable because they were convicted of a controlled substance
offense. See 8 U.S.C. § 1252(a)(2)(C) (precluding jurisdiction where alien is removable
pursuant to INA § 212(a)(2) [8 U.S.C. § 1182(a)(2)]). In addition, we also generally lack
jurisdiction to review any “decision or action of the Attorney General . . . the authority
for which is specified under [relevant provisions of the INA] to be in the discretion of the
Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The decision to grant or deny relief
pursuant to former section 212(c) is specified under the statute’s terms as being
discretionary. See Liang v. INS, 206 F.3d 308, 311-12 and n.3 (3d Cir. 2000). Thus, we
but the IJ concluded that DHS did not establish Echeverry’s removability on that charge.
3
are precluded from exercising jurisdiction over a petition for review of a decision to deny
section 212(c) relief except to the extent that the petition raises constitutional claims or
questions of law. See 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d
356, 358 (3d Cir. 2005). The arguments in Echeverry’s brief are limited to his
disagreement with the agency’s discretionary determination, and he raises no
constitutional or legal issues that would invoke our jurisdiction.
For the foregoing reasons, we will dismiss the petition for review.
4
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719 P.2d 492 (1986)
79 Or.App. 311
Elizabeth Marina ANDOR, a minor, by Maria Fasciano AFFATIGATO, her guardian ad litem, Appellant,
v.
UNITED AIR LINES, INC., a corportaion and Malburn A. McBroom, Respondents.
A8301-00133; CA A32141.
Court of Appeals of Oregon, In Banc.
Argued and Submitted November 13, 1985.
Resubmitted April 2, 1986.
Decided May 14, 1986.
*493 Stewart M. Whipple, Portland, argued the cause for appellant. With him on the briefs were Alan H. Johansen, and Whipple, Johansen & McClain, Portland.
James Westwood, Portland, argued the cause for respondents. With him on the brief were William B. Crow, Steven O. Rosen, and Miller, Nash, Wiener, Hager & Carlsen, Portland.
Resubmitted In Banc April 2, 1986.
*494 ROSSMAN, Judge.
Plaintiff brought this action to recover compensatory and punitive damages arising out of the crash of United Air Lines Flight 173 in Portland on December 28, 1978. Plaintiff was a passenger on the plane and named United and McBroom, the pilot, as defendants. United admitted liability for compensatory damages on the basis of McBroom's conceded negligence but contended that plaintiff was not entitled to punitive damages. Plaintiff based her claim for punitive damages on the alleged "negligence, flagrant misconduct and deliberate disregard of the rights and safety of others" by the pilot, the flight crew and United ground personnel in connection with the events immediately preceding the crash,[1] and by United maintenance personnel in failing to correct defects in the plane's landing gear that were known to them long before the crash. The jury returned a verdict for $161,275.32 in general and special damages, no punitive damages against McBroom and $750,000 in punitive damages against United. United moved for judgment notwithstanding the verdict as to the punitive damages, and the trial court granted the motion. Plaintiff appeals and contends that there was sufficient evidence on which the jury could base an award of punitive damages.[2] We agree and reverse.
Flight 173 was scheduled to arrive from Denver at the Portland International Airport at 5:13 p.m. The flight was normal until McBroom extended the landing gear. He described the "abnormal extension" as "a heavy to severe jolt-jolt * * *. This was not the normal slow extension, but immediate and was accompanied by a yaw to the right." Fearing a problem with the landing gear, McBroom advised the Portland control tower at 5:12 p.m. that the landing would be delayed. The tower advised the crew to proceed to an area southeast of the airport in which the plane could circle while the crew attended to the situation.
The crew consulted a manual to diagnose the problem. They visually checked a mechanical indicator on the wing, which showed that the landing gear was in a down and locked position. Uncontradicted testimony established that that indicator provides an unerring positive indication that the gear is down and locked. McBroom still did not feel confident about the landing gear's safety, and at 5:40 p.m. he began consulting with ground personnel in Portland and San Francisco. After relating his situation, McBroom was informed "You've done everything you can do." At 5:42 p.m. McBroom reported that the plane had 7,000 pounds of fuel remaining and that he planned to hold for 15 to 20 minutes while the crew prepared the passengers for an emergency evacuation. The San Francisco dispatcher confirmed a 6:05 p.m. landing with McBroom.
At 5:49 p.m., with the gauges indicating that 5,000 pounds of fuel remained, the low fuel pressure warning lights illuminated. At 5:52 p.m. McBroom confirmed with United personnel in Portland that he would land at 6:05 p.m. with about 4,000 pounds of fuel. At 6:03 p.m. McBroom advised that he would begin his approach in three to five minutes and that the plane had 3,000 pounds of fuel left. At 6:07 p.m. the number four engine flamed out while the plane circled at 5,000 feet. The crew re-started the engine. At 6:13 p.m. two engines flamed out, and McBroom realized that he could not reach the airport. He crash-landed the plane about six miles southeast of the airport at 6:15 p.m.
*495 McBroom testified that at the time of the accident he thought, because of his training, that the fuel gauges were completely accurate unless they were obviously erratic or inoperative. Subsequent to the crash, he learned that there was an allowable tolerance in the fuel supply indicator system, to the extent of 426 pounds for each of the eight fuel tanks, and an additional 1,000 pounds for the totalizer system. That amounts to a total tolerance, or potential inaccuracy, of 4,408 pounds. He testified that, if he had known of those tolerance figures at the time of the accident, he would have taken them into account in deciding how long he could safely stay aloft.
There was evidence that the initial abnormal extension was due to preexisting corrosion in the plane's landing gear. The parts of the landing gear which were corroded and failed when the gear was extended were the threads of an eyebolt and a piston. They were part of a hydraulic system which had the function of slowing the extension of the landing gear. Plaintiff's uncontradicted evidence shows that United employes were aware of the corrosion problem on DC-8's in general and on the right landing gear of this plane in particular. United had detected the corrosion by means of a gamma ray inspection and had attempted to seal the connection to retard the corrosion. United stopped the gamma ray inspections in 1977, when it installed a "bungee system improvement," which ostensibly guaranteed that the landing gear would come down and lock in the proper position if the hydraulic system failed. Although, as we will discuss below, United argues that its maintenance of the landing gear provides no basis for the jury's award of punitive damages, it does not dispute that its personnel were aware of the corrosion in the parts, that the parts were not replaced and that the corrosion was not cured.
Plaintiff assigns error to the trial court's granting of the judgment notwithstanding the verdict. She argues that there was ample evidence from which the jury could find that United's employes were guilty of "aggravated" or "wanton" misconduct, warranting the assessment of punitive damages. See n. 3, infra. Where, as here, damages are sought against a corporate defendant solely on a vicarious liability theory, based on its employes' conduct, punitive damages may be imposed on the corporation if such damages could have been imposed on any of the employes personally. Stroud v. Denny's Restaurant, 271 Or. 430, 437, 532 P.2d 790 (1975); Abrams v. Mike Salta Pontiac, 51 Or.App. 495, 625 P.2d 1383, rev. den. 291 Or. 151, 634 P.2d 1345 (1981).
United's overriding argument is that there was insufficient evidence to support the jury's finding that McBroom, the United employes who were not named defendants or any combination of them were guilty of "aggravated misconduct" or "wanton misconduct."[3] It is well-established *496 that whether a defendant's conduct is aggravated or wanton or comes within any of the other characterizations that permit the imposition of punitive damages is for the jury to decide, as long as there is evidence upon which the finding can be based. Friendship Auto v. Bank of Willamette Valley, 300 Or. 522, 716 P.2d 715 (1986); State ex rel Young v. Crookham, 290 Or. 61, 615 P.2d 1268 (1980); 2-D's Logging v. Weyerhaeuser, 53 Or.App. 677, 632 P.2d 1319, rev. den. 292 Or. 109, 642 P.2d 311 (1981). However, as we described in 2-D's Logging, the Supreme Court and this court have periodically succumbed to the temptation to make an impermissible independent normative evaluation of the aggravatedness of a defendant's conduct in the guise of reviewing for evidentiary sufficiency. 53 Or.App. at 686-89, 632 P.2d 1319. That is essentially what United asks us to do here, and that is essentially what the dissent does. We decline to do so. Our function is to determine whether the evidence and the inferences, taken at their strongest, rationally support the jury's finding; it is not our function to make our own assessment of how defendants' conduct should be characterized.
United argues that there was insubstantial evidence that McBroom's conduct and that of the other members of the flight crew was wanton or was anything more than negligent. We disagree. McBroom continued to fly the plane until the fuel supply was exhausted, notwithstanding the positive mechanical indications about the secure position of the landing gear and the advice from the ground that everything had been done that could be done, except to land the plane. It was inferable, inter alia, that McBroom's failure to heed the ground personnel or the instruments evinced an "I know better than you do" attitude under circumstances where following the human and mechanical signals was essential to the safety and life of the plane's passengers. The evidence was sufficient to support a finding by the jury, in the words of the court's instruction, see n. 3, supra, that McBroom and those assisting him acted deliberately with "wanton disregard of risk of harm to others." See Friendship Auto v. Bank of Willamette Valley, supra, 300 Or. at 534-35 n. 13, 716 P.2d 715.
United suggests that, even if the jury could have found that McBroom's conduct warranted punitive damages, it is virtually impossible that the jury did so find, because it awarded no punitive damages against McBroom personally. However, the jury was instructed:
"If you decide this issue against the defendants or either one of them, you may award punitive damages although you are not required to do so since punitive damages are discretionary."
United makes no argument on appeal that the instruction was erroneous.[4] Under the instruction, the jury was permitted to find that McBroom's conduct warranted punitive damages and that United was vicariously liable for such damages, even though none were assessed against McBroom himself.
We also conclude that United's employes' failure to replace the corroded landing gear parts or correct the corrosion furnishes an additional and separate ground upon which the jury properly could have based its award of punitive damages.[5] United argues that its failure to correct the corrosion or replace the parts did not offend Federal Aviation Administration *497 (FAA) requirements, which mandated only that landing gear mechanisms be "overhauled" after every 20,000 miles of operation. However, we do not understand the FAA standards governing the minimal frequency of overhauls as excusing United's inattention to a known defect in the landing gear mechanism. See Bibler v. Young, 492 F.2d 1351 (6th Cir.), cert. den. 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974). United also points to evidence of its compliance with FAA directives and manufacturer's standards in connection with the maintenance and inspection of the system. Suffice it to say that that evidence did not compel a finding in United's favor as a matter of law either on the issue of improper maintenance or on the issue of punitive damages.
United argues further that the corrosion in the eyebolt and piston was inconsequential, because the landing system as a whole operated properly and "is designed to assume the down, locked and safe position even when the eyebolt is severed." United points to the fact that the gear was down and locked at the time of the crash. As a corollary to its argument that the corrosion did not constitute an unsafe condition, United maintains that punitive damages cannot properly be based on the failure to do anything about the corroded parts, because the corrosion was not the cause of the crash. It explains:
"[E]ven if the trial court might have determined that United could be found negligent in its inspection or maintenance of the eyebolt, it still could have found that any such act was not the `cause' of plaintiff's injury. This is the legal test embodied in 2 Restatement (Second) of Torts § 435(2):
"`The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.' (Empahsis supplied.)
"This case involves just such a `highly extraordinary' matter. So many intervening and extraordinary factors operated to bring about plaintiff's injury that the trial court was plainly unable to conclude that United's maintenance of an eyebolt was a cause of plaintiff's harm.
"For an application of Restatement § 435(2), see Allen v. Shiroma/Leathers, 266 Or 567, 514 P2d 545 (1973). A driver had caused an auto accident, after which the plaintiff, who was directing traffic around the accident, was struck by his own auto which he had asked a bystander to move. Clearly, plaintiff's injury never would have occurred but for the negligence of the original driver. But the trial court entered judgment nov in favor of the original driver, and the Oregon Supreme Court affirmed. The same attenuated chain of `causation' exists in this case. Like the defendant in Allen, United in this case could not sensibly foresee any connection between an eyebolt failure (which left the landing gear safely locked) and the crash of an airplane from fuel exhaustion."
United's argument focuses on whether the landing gear would have failed if McBroom had attempted to land. Whether or not United would be correct if that were the only way in which the corrosion could have contributed to the cause of the crash is a question we need not answer, because plaintiff's alternative theory of causation is amply supported by the evidence. The effect of the defective operation of the eyebolt was to cause the heavy landing gear mechanism to fall into the locked position, with dramatic auditory effects and movement of the aircraft. McBroom stated that "[t]he crew and I were alarmed by this and concerned that the gear was broken." Although McBroom's reaction may have been wrong and may have led to the cause in fact of the crash, his reaction was caused by the malfunction of the eyebolt which resulted from the corrosion.
We do not agree with United's intervening cause-unforeseeability argument. United phrases the question as being *498 whether it could "sensibly foresee any connection between an eyebolt failure (which left the landing gear safely locked) and the crash of an airplane from fuel exhaustion." The alternative to that formulation of the question is whether United could reasonably have foreseen that the defect in the eyebolt could cause a fast, loud and jerking extension of the landing gear mechanism which the pilot and crew might understand as meaning that there were serious problems with the landing gear, with the result that they were hesitant to land until they had determined what the problems were. The jury could have found from the evidence that the answer to that question is yes. We conclude that it was a question for the jury whether the inattention to the corrosion problem by one group of United employes caused a second employe or group of employes to misperceive what the problem with the landing gear was, and whether the uncorrected corrosion therefore contributed causally to the crash.
United argues that many of the cases on which plaintiff relies are inapposite, because they involved punitive damages for intentional or wilfully injurious torts rather than for acts and omissions of the kind United's employes committed. United's implicit premise appears to be that punitive damages should not be recoverable in any action where the gravamen is an unintentional tort or a tort that was not intended to injure. Until recent years, the law in Oregon was clearly contrary to United's premise. See, e.g., Harrell v. Travelers Indemnity Co., 279 Or. 199, 567 P.2d 1013 (1977); Noe v. Kaiser Foundation Hosp., 248 Or. 420, 435 P.2d 306 (1967). The principal recent case cited for the proposition that the law has changed is Chamberlain v. Jim Fisher Motors, Inc., 282 Or. 229, 578 P.2d 1225 (1978). Chamberlain can be understood to suggest that, at least in actions for deceit, punitive damages are not recoverable if the tort which constitutes the gravamen of the action is "reckless," "grossly negligent" or anything less than intentional or deliberately injurious, regardless of the defendant's mental state or any aggravating factors that accompanied the tortious act. 282 Or. at 235-38, 578 P.2d 1225.
However, if that suggestion was intended in Chamberlain, we understand it to have been greatly attenuated or withdrawn by the court's later opinion in Schmidt v. Pine Tree Land Dev., 291 Or. 462, 631 P.2d 1373 (1981). There, the court said that it "pass[ed] by," apparently without decision, "defendants' suggestion that punitive damages for misrepresentation should be limited to intentional fraud." 291 Or. at 466, 631 P.2d 1373. Before declining to decide that question, the court stated:
"[T]o justify punitive damages the conduct must go beyond mere carelessness to a willful or reckless disregard of risk of harm to others of a magnitude evincing a high degree of social irresponsibility." 291 Or. at 466 [631 P.2d 1373]. (Emphasis supplied.)[6]
See also Wolf v. Nordstrom, 291 Or. 828, 835, 637 P.2d 1280 (1981) ("recklessness, by itself, will not support an award of punitive damages," but "recklessness may be a part of aggravating circumstances which justify an award of punitive damages").[7]
We conclude that, under still controlling authority, punitive damages are recoverable in actions where the gravamen is an unintentional tort and where "wanton misconduct" accompanies the defendant's act or omission. As we have noted, see n. 3, supra, the jury was so instructed here. There was evidence to support the jury's award of punitive damages against United, based on either the conduct of the flight crew or that of United's maintenance personnel.[8]*499 The trial court erred by granting the judgment notwithstanding the verdict.
Reversed and remanded with instructions to reinstate the verdict and to enter judgment in accordance with the verdict.
WARREN, Judge, dissenting.
I disagree with the majority's conclusion that evidence as to the conduct of the flight crew and United's maintenance of the landing gear supports the jury's finding of aggravated misconduct and its awarding punitive damages. First, I think that there was no evidence from which a jury could find that McBroom and the rest of the flight crew were guilty of aggravated misconduct. Faced with an unusual and potentially hazardous situation, McBroom took steps to diagnose the problem and to land the plane safely. Those precautions, as well as preparing the passengers for an emergency landing, took additional time. While the plane circled, it continued to burn fuel. McBroom's alleged mistakes were in failing to monitor the fuel adequately so that he was forced to land short of the airport and in disregarding reliable signs that the landing gear was in a down and locked position. His belief that the fuel gauges were accurate and that he had more fuel than he actually did is relevant in evaluating the extent to which his conduct was negligent. McBroom was responsible for the safety of his crew and the passengers and, although he may have been negligent, I do not think the evidence permits an inference that he acted with "`wanton disregard of harm to others.'" 79 Or.App. at 317, 719 P.2d at 496. McBroom's precautionary behavior is not the sort of conduct which is appropriately punished as a deterrent to future similar misbehavior. Schmidt v. Pine Tree Land Dev., 291 Or. 462, 466, 631 P.2d 1373 (1981); Noe v. Kaiser Foundation Hosp., 248 Or. 420, 425, 435 P.2d 306 (1967).
Second, I disagree that evidence of United's maintenance of the landing gear supports the award of punitive damages. I do not think that a rational jury could find that it was reasonably foreseeable that United's allowing the hydraulic mechanism to remain corroded would initiate this chain of events and ultimately cause a crash. Stewart v. Jefferson Plywood Co., 255 Or. 603, 609, 469 P.2d 783 (1970), holds that a court may remove the issue of a defendant's negligence from the jury if the "plaintiff's injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur." I would apply this rule, based on Restatement (Second) Torts § 435(2) (1965), to hold, as a matter of law, that the accident was not a reasonably foreseeable result of allowing the two parts of the hydraulic system to corrode and fail. Although United knew that the parts could fail, it took precautions to insure that, in the event the hydraulic system did fail, the landing gear would still come down and lock in the proper position. All of the evidence establishes that the back-up system is safe. It was not reasonably foreseeable as a matter of law that, if the hydraulic system failed and the landing gear freely fell into a locked position, it would cause the crew to panic and negligently fail to land the plane. This series of events was so extraordinary that United's conduct in allowing the hydraulic system to corrode, even if negligent, was not a legal cause of plaintiff's injury and United could not have been held liable for compensatory damages on the basis of its conduct in maintaining the landing gear. It follows that it cannot be held liable for punitive damages for conduct which was too remote a cause to sustain a verdict for plaintiff.
Moreover, even if United could be found liable for negligence in this respect, I think *500 that its conduct was not, as a matter of law, a sufficiently aggravated violation of societal interests to justify punitive damages. In Falls v. Mortensen, 207 Or. 130, 138, 295 P.2d 182 (1956), the Supreme Court quoted from Prosser, Torts (2d ed 1971) the three requirements for the imposition of punitive damages:
"`* * * The elements necessary to characterize an injury as wantonly or wilfully inflicted are (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. * * *'"
Although negligence, as a basis of liability, requires that a plaintiff's injury be a reasonably foreseeable consequence of a defendant's negligence, punitive damages require a greater degree of foreseeability: "[I]t must be apparent that the result is likely to prove disastrous to another." (Emphasis supplied.) In this case, the accident was so remote a consequence of United's conduct in maintaining the gear that it was not, as a matter of law, a likely consequence of United's actions. Because I think that the evidence does not support an award of punitive damages, I would affirm the judgment n.o.v. Accordingly, I dissent.
BUTTLER, J., joins in this dissent.
NOTES
[1] The parties treat the flight crew and the ground personnel separately in analyzing whether there was evidence of misconduct sufficient to warrant the imposition of punitive damages. Because we conclude that the conduct of the pilot and flight crew alone could support the jury's punitive damages award and because the injurious events in which the two groups of employes were involved were the same, our discussion of the activities of the ground personnel is abbreviated and is designed only to provide an understanding of the factual background.
[2] Although plaintiff's notice of appeal designates McBroom as a respondent, no issue is raised as to him on appeal.
[3] The Supreme Court articulated the test for determining when punitive damages are recoverable in Noe v. Kaiser Foundation Hosp., 248 Or. 420, 425, 435 P.2d 306 (1967):
"Punitive damages can only be justified on the theory of determent. * * * It is only in those instances where the violation of societal interests is sufficiently great and of a kind that sanctions would tend to prevent, that the use of punitive damages is proper. Regardless of the nomenclature by which a violation of these obligations is described (grossly negligent, willful, wanton, malicious, etc.), it is apparent that this court has decided that it is proper to use the sanction of punitive damages where there has been a particularly aggravated [misconduct] * * *." (Citations omitted.)
The test has been stated in various ways by the appellate courts, but Noe provides the most useful formulation for application to the facts of this case.
The court instructed the jury here:
"[Y]ou may award punitive damages only if defendants' conduct goes beyond mere carelessness to a willful or wanton disregard of risk of harm to others of a magnitude evincing a high degree of social irresponsibility. In considering punitive damages, you must first determine whether the defendants or either of them were guilty of wanton misconduct, which was a cause of damage to the plaintiff.
"Wanton misconduct is conduct amounting to a deliberate disregard of the rights and safety of others. Wanton misconduct is something worse than negligence but less than intentionally hurting someone."
United excepted to the instruction in the trial court but does not challenge it on appeal. See Artman v. Ray, 263 Or. 529, 501 P.2d 63, 502 P.2d 1376 (1972).
[4] We do not suggest that it was. See McGregor v. Barton Sand & Gravel, Inc., 62 Or.App. 24, 660 P.2d 175 (1983).
[5] The trial court did not submit a special verdict form, enabling the jury to specify which United employes and which actions were the basis for the award. United does not argue on appeal that the court's failure to submit a special verdict form was error.
[6] The court also said in Schmidt that it "has not held that punitive damages may always be recovered for recklessly false representations [citing Chamberlain]." 291 Or. at 465, 631 P.2d 1373. (Emphasis supplied.)
[7] We do not imply a view on whether United's premise should be the rule. We hold only that it is not the rule and that we are not free to adopt it, in the face of existing Supreme Court authority.
[8] Given our conclusion that punitive damages are not confined to actions for intentional torts and given the parties' arguments, we need not decide whether punitive damages would also be supportable here on the theory that the maintenance personnel acted wilfully rather than wantonly.
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364 F.Supp. 466 (1973)
P. A. STARCK and Jane Starck, Plaintiffs,
v.
Donald E. DEWANE and Wayne Brown, Defendants.
No. 73 C 588.
United States District Court, N. D. Illinois E. D.
September 12, 1973.
Sheldon Engel, Chicago, Ill., for plaintiffs.
Barry M. Woldman of Karlin & Fleisher, Chicago, Ill., for defendants.
*467 MEMORANDUM OPINION AND ORDER
BAUER, District Judge.
This cause comes on the defendants' motion to dismiss the complaint for lack of jurisdiction.
This is an action to redress an alleged violation of Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)), and Rule 10b-5 promulgated thereunder (17 C.F.R. 240.10b-5). More specifically, the plaintiff alleges in Count I of the complaint that the defendants made false and misleading representations in the offer and sale of a security. Jurisdiction is based on Section 27 of the Securities Exchange Act of 1934 (15 U.S.C. § 78aa). The plaintiffs, in Counts II and III of the complaint also claim respectively that the defendants committed a common law tort of fraud and violated the Illinois Consumer Fraud Act, Chapter 121½, § 262A of the Illinois Revised Statutes.
The defendants in support of their motion to dismiss for lack of jurisdiction contend:
1. Neither defendant Donald E. Dewane or Wayne Brown used the mails and/or other means of interstate commerce in regard to any of the allegations of Count I of the plaintiff's complaint and thereby this Court lacks jurisdiction under Section 27 of the Securities Act of 1934 (15 U.S.C. Section 78aa).
2. There is no pendent jurisdiction before this Court as alleged in both Counts II and III of plaintiff's complaint as the Court lacks jurisdiction over any federal question or matter herein.
The plaintiffs in opposition to the instant motion contend that Donald E. Dewane used the telephone to arrange meetings with the plaintiffs regarding the sale of the House of Health, Inc. common shares; and also that the collection of the checks used to purchase the shares involved the use of the mails. In support of this contention the plaintiffs have submitted the affidavits of P. A. Starck, Jane Starck and Karen Wascher.
Plaintiff P. A. Starck, in his affidavit, states, in relevant part:
2. That on or about September 3, 1971, he had a meeting with Donald E. Dewane, one of the defendants in the above entitled case; that the meeting took place at the affiant's home located at 8909 McConnell Road, Woodstock, Illinois; that the only other person at the meeting was affiant's wife, Jane Starck; and that at the meeting he purchased stock in a business known as the House of Health, Inc. from Donald E. Dewane, the President of the Corporation.
3. That the date for the meeting on or about September 3, 1971, was set by Donald E. Dewane during a telephone call affiant had received from the said Dewane on or about August 29, 1971.
4. That during the period of on or about March 10, 1971 to on or about September 3, 1971, several other telephone calls were received by affiant from Donald E. Dewane concerning the purchase of stock in House of Health, Inc.
5. During the meeting of on or about September 3, 1971 the affiant delivered to Donald E. Dewane a check dated September 3, 1971 for $15,000 payable to House of Health, Inc. for the purchase of 100 shares of House of Health, Inc. common stock.
6. That the check attached to this affidavit and marked as Exhibit A is a true and correct copy of the check he delivered to Donald E. Dewane on September 3, 1971. The check when he received it back in the mails with his bank statement was in the same condition as when he gave it to Donald E. Dewane except the front side had a paid stamp on it and the reverse side of the check bore the written endorsements of House of Health, Inc., Donald E. Dewane as well as various stamped endorsements including *468 one "Pay Continental Ill. Nat. Bk. & Trust Co. of Chgo. 75-17343 for Deposit Only 75-17343 Marengo Federal Savings & Loan Association."
Plaintiff Jane Starck in her affidavit states, in relevant part:
2. That on or about September 3, 1971 she had a meeting with Donald E. Dewane, one of the defendants in the above entitled case; that the meeting took place at the affiant's home located at 8909 McConnell Road, Woodstock, Illinois; that the only other person at the meeting was affiant's husband, P. A. Starck; and that at the meeting she purchased stock in a business known as the House of Health, Inc. from Donald E. Dewane, the President of the Corporation.
3. That during the period of on or about March 10, 1971 to on or about September 3, 1971 several telephone calls were received by affiant from Donald E. Dewane concerning the purchase of stock in House of Health, Inc.
4. During the meeting of on or about September 3, 1971 the affiant delivered a check to Donald E. Dewane dated September 3, 1971 for $35,000 payable to House of Health, Inc. for the purchase of 233 shares of House of Health, Inc. stock.
5. That the check attached to this affidavit and marked as Exhibit A is a true and correct copy of the check she delivered to Donald E. Dewane on September 3, 1971. The check when she received it back in the mails with her bank statement was in the same condition as when she gave it to Donald E. Dewane except the front side had a paid stamp on it and the reverse side of the check bore the written endorsements House of Health, Inc., and Donald E. Dewane as well as various stamped endorsements including one "Pay Continental Ill. Nat. Bk. & Trust Co. of Chgo. 75-17343 For Deposit Only 75-17343 Marengo Federal Savings & Loan Association."
Karen Wascher, in her affidavit, states in relevant part:
1. That she is the head cashier of Marengo Federal Savings and Loan Association, which is located at 200 East Grant Highway, Marengo, Illinois.
2. That she has been the Head Cashier for about the last thirteen (13) years.
3. That she has acquired personal knowledge in the course of her duties as Head Cashier that the processing of checks deposited in Marengo Federal Savings and Loan Association but drawn on other banking institutions involves the use of the mails and more particularly such deposited checks are sent and were sent during the month of September, 1971, by Marengo Federal Savings and Loan Association by mail to Continental Illinois National Bank and Trust Company of Chicago for collection; that prior to the mailing to Continental Illinois National Bank and Trust Company of Chicago, Marengo Federal Savings and Loan places the following stamped endorsement on such checks:
Pay Continental Ill. Nat. Bk. &
Trust Co. of Chgo.
75-17343 For Deposit Only 75-17343
Marengo Federal Savings
& Loan Assn.
4. That the checks dated September 3, 1971 for $15,000 payable to House of Health, Inc. attached to this affidavit and marked Exhibit A-1 and the check dated September 3, 1971 for $35,000 payable to House of Health, Inc. attached to this affidavit and marked Exhibit A-2 contain the stamped endorsement of Marengo Federal Savings and Loan Association and accordingly were sent for collection by mail to Continental Illinois National Bank and Trust Company of Chicago.
The defendants have failed to submit any affidavits or memoranda in opposition to the plaintiffs' affidavits.
It is well settled that the use of telephones only on interstate basis in solicitation of the purchase of stock is sufficient to give a federal district court *469 jurisdiction over an action for the violation of the federal securities laws and regulations. Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967); cert. denied 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143. Further, even though misrepresentations or words of fraud are not uttered over the telephone, Section 78j of 15 U.S.C. prohibiting any person, directly or indirectly from using any instrumentality of interstate commerce in connection with the purchase of securities by manipulative or deceptive device is violated if a telephone is used "indirectly" to cause a meeting to be held for purpose of effectuating a fraud. Nemitz v. Cunny, 221 F.Supp. 571 (N.D.Ill.1963). Thus it is the opinion of this Court that the defendants' motion to dismiss should be denied at this time. However, this ruling should not be interpreted as a bar to any additional pre-trial motion of the defendants which is adequately supported in law and fact and directed at the jurisdiction of this Court. See Burke v. Triple A Mach. Shop, Inc., 438 F.2d 978 (9th Cir. 1971).
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522 F.3d 657 (2008)
B & G MINING, INC. and Old Republic Insurance Company, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Danny Bentley, Respondents.
No. 07-3162.
United States Court of Appeals, Sixth Circuit.
Argued: March 13, 2008.
Decided and Filed: April 16, 2008.
*660 ARGUED: Mark E. Solomons, Greenberg Traurig LLP, Washington, D.C., for Petitioners. Miller Kent Carter, Miller Kent Carter & Michael Lucas PLLC, Pikeville, Kentucky, for Respondents. ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig LLP, Washington, D.C., for Petitioners. Miller Kent Carter, Miller Kent Carter & Michael Lucas PLLC, Pikeville, Kentucky, William Lawrence Roberts, William Lawrence Roberts, P.S.C., Pikeville, Kentucky, for Respondents.
Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.[*]
OPINION
McKEAGUE, Circuit Judge.
The claimant in this black-lung benefits case, Danny Bentley, received an award of benefits against his employer, B & G Mining, Inc., and the company's insurer, Old Republic Insurance Company (collectively, "B & G" or the "company"). At each level of review in the Department of Labor, the adjudicators awarded fees to Bentley's attorney under the fee-shifting provision of the Black Lung Benefits Act, 30 U.S.C. § 932(a). On petition for review before this court, B & G argues that the adjudicators abused their discretion in the rates they used and the hours they approved.
For the reasons set forth below, we affirm the fee awards.
I
Bentley filed a claim for federal black-lung benefits with the Department of Labor in August 2001. In May 2005, the Administrative Law Judge (the "ALJ") awarded him benefits. Although B & G initially appealed the award to the Benefits Review Board (the "BRB"), the company voluntarily dismissed the appeal and accepted liability for the award of benefits. Neither party raises any issue regarding the benefits award.
Bentley's attorney filed three petitions for fees totaling $23,688.00. This amount included work he performed before the District Director, the ALJ, and the BRB. In each petition, he asked for a rate of $250/hour. He submitted a statement in support of each petition. The statements were identical and listed his twenty-five years of experience in representing claimants with occupational diseases; his expertise in the field; his average fee of $250/hour for workers' compensation and social security disability benefits cases; the relatively high risk of loss in black-lung benefits cases; and the relatively low number of attorneys who practice in the field in the Eastern District of Kentucky.
The District Director reduced the fee to $200/hour for work performed before his office. He explained that the work was routine and that the rate was comparable to rates charged by other highly qualified, experienced attorneys within the same geographical location. The District Director also subtracted hours for work performed outside the time the claim was pending and for work spent on a prior claim.
On a separate petition, the ALJ approved a rate of $250/hour after noting that rates of $225/hour and $250/hour had been used in prior cases and citing the attorney's experience and expertise in black-lung benefits cases. As to the hours billed, the ALJ reduced the requested amount by seven hours for time spent on matters not before the ALJ and for time involving some routine correspondence.
*661 On appeal, the BRB found no abuse of discretion and affirmed the District Director's and ALJ's awards. The BRB also considered the petition for fees for work performed before the board. It reduced the rate to $225/hour due to the nature and complexity of the case. It also subtracted six hours from the claimed 14.25 hours for duplicative work and work unrelated to the appeal before the board.
In total, claimant's attorney was awarded fees of $16,618.75 for 69.25 hours of work.
II
On appeal, B & G contends that the District Director, the ALJ, and the BRB failed to apply the correct legal standard in determining the appropriate hourly rate. The company also argues that some of the hours awarded were excessive and duplicative. The company's arguments are considered in turn.
A. Standard of Review
We review an administrative adjudicator's award of attorneys' fees for abuse of discretion. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir.2007) (citing Geier v. Sundquist, 372 F.3d 784, 789 (6th Cir.2004)); Zeigler Coal Co. v. Director, OWCP, 326 F.3d 894, 902 (7th Cir.2003) ("[W]e give great deference to the views and conclusions of the ALJ."). "`Not only is the [adjudicator] in a much better position than the appellate court to make this determination, but neither the stakes nor the interest in uniform determination are so great as to justify microscopic appellate scrutiny.'" Zeigler Coal, 326 F.3d at 902 (quoting Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir.1988)). "`An abuse of discretion exists when the [adjudicator] applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.'" Gonter, 510 F.3d at 616 (quoting First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir.1993)).
B. Attorneys' Fees Under the Black Lung Benefits Act
Section 28 of the Longshore and Harbor Workers' Compensation Act (the "Longshore Act"), 33 U.S.C. § 928, incorporated into the Black Lung Benefits Act, 30 U.S.C. § 932(a), provides for the award of fees and costs to a successful claimant's attorney. The Department of Labor promulgated regulations covering, among other things, the factors to be considered in fixing the amount of award in black-lung benefits cases. Specifically, 20 C.F.R. § 725.366 provides in relevant part:
(b) Any fee . . . shall be reasonably commensurate with the necessary work done and shall take into account the quality of the representation, the qualifications of the representative, the complexity of the legal issues involved, the level of proceedings to which the claim was raised, the level at which the representative entered the proceedings, and any other information which may be relevant to the amount of fee requested.
The parties do not dispute that claimant's attorney was eligible to receive a fee award. Rather, they disagree on what constitutes a reasonable fee rate and reasonable time expended on claimant's behalf.
C. The Lodestar Method of Calculating Fees
The first issue to resolve is whether the lodestar method of calculating fees should apply to black-lung benefits cases. The lodestar method is deceptively simple: the fee amount equals "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). *662 Claimant's attorney argues that § 725.366(b) provides the necessary guidance for adjudicators to fashion appropriate awards and that applying the lodestar method would be an unwarranted deviation from the regulation that would provide little in terms of specific criteria to consider.
This court has not directly addressed whether the lodestar method is applicable to black-lung benefits cases. Although there is no binding precedent, reason and the weight of authority confirms that the lodestar method is the appropriate starting point in these cases.
In general, similar statutory language should beget similar judicial treatment. Section 28 of the Longshore Act provides that "a reasonable attorney's fee" will be paid to a prevailing claimant's attorney. 33 U.S.C. § 928(a). That phrase is comparable to those found in other federal fee-shifting statutes, including the Solid Waste Disposal Act and the Clean Water Act,[1] both of which were at issue in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). The Supreme Court directed in Dague that its "case law construing what is a `reasonable' fee applies uniformly to all" of the similar fee-shifting statutes. It went on to explain:
The "lodestar" figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a "strong presumption" that the lodestar represents the "reasonable" fee, [Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,] 478 U.S. [546], 565, 106 S.Ct. [3088], 3098, 92 L.Ed.2d 439 [(1986) ("Delaware Valley I")], and have placed upon the fee applicant who seeks more than that the burden of showing that "such an adjustment is necessary to the determination of a reasonable fee." Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (emphasis added).
Id. at 562, 112 S.Ct. 2638. In line with Dague and an earlier decision, Hensley v. Eckerhart, a panel of this court explained that "[b]ecause the same standards are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party, this [c]ourt relies on precedents involving attorneys fees without regard to whether they involved Title VI or some other federal statute." Johnson v. City of Clarksville, 256 Fed.Appx. 782, 783 (6th Cir.2007) (unpublished) (internal citation and quotation marks omitted).
Recent decisions of this and other circuit courts, while not binding precedent, do weigh in favor of using the lodestar method in black-lung benefits cases. In Harmon v. McGinnis, Inc., No. 07-3073, 2008 WL 344707, at *1 (6th Cir. Feb.7, 2008) (unpublished), a panel of this court relied on the lodestar method as the "starting point" in determining a reasonable attorneys' fee in a Longshore Act case. Similarly, the Ninth Circuit has approved of a district court's application of the lodestar method in a Longshore Act case. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir.2007) ("Use of the `lodestar method' to calculate attorney's fees under a federal fee-shifting statute is proper." (citations omitted)). In trying to distinguish these and other similar decisions involving the Longshore Act, claimant's attorney argues that the Department *663 of Labor specifically modified the methodology applicable to black-lung benefits cases when it promulgated § 725.366(a). Yet, the D.C. Circuit rejected that very argument in National Mining Ass'n v. Department of Labor, 292 F.3d 849 (D.C.Cir.2002). The appellants in that case argued that the criteria listed in the regulation overlapped with the criteria used in calculating the lodestar rate; thus, applying the regulations would result in a form of double-counting against the lodestar. Concluding to the contrary, the D.C. Circuit explained, "Not only does nothing in the revised regulation require such double counting, but the Secretary interprets the regulation to mean that `the factors identified in § 725.366(b) do not supplant the "lodestar" method of calculating reasonable fees, or enhance the lodestar fee once it is calculated.'" Id. at 875 (quoting the brief submitted by the Secretary of the Department of Labor); see also Black Lung Deskbook, Workers' Compensation Benefits Review Board, U.S. Dep't of Labor, Part XI § A.1 (rev.Nov.2004) (paraphrasing the D.C. Circuit's decision in National Mining Ass'n). This is consistent with the Supreme Court's decision in Delaware Valley I. The Court explained that the typical factors considered in determining the appropriate fee ratenovelty and complexity of the issues, the special skill and experience of counsel, the quality of representation, and the results obtained from the litigationare fully reflected in the lodestar. Delaware Valley I, 478 U.S. at 564-65, 106 S.Ct. 3088 (citing Blum, 465 U.S. at 898-901, 104 S.Ct. 1541). Given the similarity of the fee-shifting provision in the Longshore Act with other federal fee-shifting statutes, as well as the Secretary's position in National Mining Ass'n that the department's regulations do not supplant or enhance the lodestar method, we conclude that the lodestar method is the appropriate starting point for calculating fee awards under the Black Lung Benefits Act.
D. Calculating the Lodestar Rate
"To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record." Gonter, 510 F.3d at 618 (quoting Geier, 372 F.3d at 791). "The appropriate rate, therefore, is not necessarily the exact value sought by a particular firm, but is rather the market rate in the venue sufficient to encourage competent representation." Id. (citing Lamar Adver. Co. v. Charter Twp. of Van Buren, 178 Fed.Appx. 498, 502 (6th Cir. 2006) (unpublished) ("Even if it would be reasonable to award [plaintiff] $370 per hour, the record supports the district court's conclusion that $200 per hour is sufficient to encourage competent lawyers in the relevant community to undertake legal representation.")). An adjustment can then be made to the lodestar rate if the attorney's efforts resulted in "exceptional success." Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir.2005) (quoting Blum, 465 U.S. at 895, 104 S.Ct. 1541).
E. The Adjudicators' Awards
1. The Rates
None of the adjudicators used the term "lodestar" in making their awards. What they failed to say in word, however, they did in deed.
Claimant's attorney has extensive experience in black-lung benefits cases and is, by all accounts, highly qualified in this area of the law. In arriving at a rate of $200/hour, the District Director referred to similar rates charged by comparable attorneys in the same geographical area, as well *664 as the routine nature of the case. Likewise, the ALJ pointed to the attorney's experience and expertise and noted that hourly rates of $225/hour and $250/hour had been approved in recent black-lung benefits cases. While the BRB did not state that the rate it awarded ($225/hour) was based on a market rate for comparable attorneys doing similar work, it did select a rate at the median between the other two rates. If both $200 and $250 represent reasonable approximations of the going rate for like work and like experience, it is hard to fathom how $225 does not as well.
B & G contends that the adjudicators abused their discretion by considering awards made in prior cases. As a general proposition, rates awarded in other cases do not set the prevailing market rateonly the market can do that. Rates from prior cases can, however, provide some inferential evidence of what a market rate is, just as state-bar surveys of rates provide evidence of a market rate, but themselves do not set the rate. See Amax Coal Co. v. Director, OWCP, 312 F.3d 882, 894-95 (7th Cir.2002) (affirming fee rate of $200/hour based in part on similar fee awards in prior comparable cases); Peabody Coal Co. v. Estate of Goodloe, 299 F.3d 666, 672 (7th Cir.2002) (in affirming a rate of $200/hour, the court noted that the attorney had recovered that same rate "in a number of similar cases"); Harmon, 2008 WL 344707, at *3 (in affirming a rate of $250/hour in a Longshore Act case, the panel explained that "courts are permitted to, and indeed should, consider prior fee awards in determining the proper attorney's fee rate") (citing Blanchard v. Bergeron, 489 U.S. 87, 91 n. 5, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)); see also Gonter, 510 F.3d at 618 & n. 6 (referring to an Ohio State Bar Association survey of hourly billing rates "[a]s a point of reference"). This court, in fact, approved a fee of $200/hour to claimant's attorney in a different black-lung benefits case. See Kentucky Carbon Corp. v. Blankenship, No. 02-3508, order at 1 (6th Cir. June 12, 2003) (explaining that while at the top of what the court would award (in 2003), the rate was "justified. . . by counsel's expertise, which apparently allowed him to expend far fewer hours than normally required in such cases").
Reliance on awards in earlier cases might not be warranted in all instances. For example, where there is a relatively large number of similarly experienced attorneys in the same geographic and practice areas, there will likely exist a robust market rate with which to compare the attorney's requested rate. However, where there is only a relatively small number of comparable attorneys, like here, an adjudicator can look to prior awards for guidance in determining a prevailing market rate.[2]
B & G next argues that the adjudicators double counted factors that were already taken into consideration by a reasonable lodestar rate. The company also takes issue with the proposition that there could be three different rates. On the factors, B & G is correct that the adjudicators referred to the attorney's professionalism, performance, and the nature and *665 complexity of the case. As noted above, these and other factors are presumed to be reflected in the selected lodestar rate. Yet, mere reference is not necessarily double counting. There is nothing in the adjudicators' decisions to suggest that they impermissibly enhanced the respective lodestar rates based on any of the identified factors. Rather, it appears that they pointed to these factors as justifying the selection of a rate near or at the top of the market for legal representation in this field. It should be emphasized that "the market" for legal counsel is not a commodity market with a single price, but rather a service market with various price points based on education, experience, specialty, complexity, etc. By looking, for example, to the level of experience, an adjudicator could reasonably conclude that a more experienced attorney would command a higher market rate than a less seasoned one, ceteris paribus. That a less experienced attorney might command a rate of $150/hour and a more experienced attorney might command a rate of $300/hour would not offend the sensibilities of a reasonable client. Thus, an adjudicator might need to consider one or more of the "reflected" factors to determine where the particular attorney's representation lies along the spectrum of the market for legal services. This and other courts have routinely referred to factors like experience and complexity in justifying a particular lodestar rate. See, e.g., Zeigler Coal, 326 F.3d at 902 (affirming hourly rate awarded by ALJ based in part on "the quality of the legal representation provided, the qualifications of [claimant's] counsel, and the complexity of the legal issues involved in the case"); Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir.1995) (explaining that a reasonable rate is one based on a market rate in the community for services rendered by attorneys of comparable skill, experience and reputation); Dixie Fuel Co. v. Callahan, 136 F.Supp.2d 659, 666 (E.D.Ky.2001) (determining a lodestar rate based in part on "the skills and performance of plaintiff's counsel").
As to the purported internal inconsistency of three different rates, such inconsistency does not necessarily mean that the adjudicators abused their discretion. This is not a case in which a single adjudicator based a fee award on three different hourly rates. Rather, the BRB was reviewing the awards of two separate adjudicators for an abuse of discretion, as well as making its own award de novo. Because hourly rates are not set on the trading floor, reasonable differences in opinion about what constitutes the appropriate rate can be expected. Nor is this a case in which the various rates were widely divergent. The Board's rate equaled 112.5% of the District Director's rate and 90% of the ALJ's rate. Simply put, B & G has not shown how relatively minor differences in rates constitute an abuse of discretion.
B & G further argues that the adjudicators ignored its evidence of market rates. B & G submitted evidence that attorneys performing legal work for insurance companies in these types of cases typically earn $125/hour. Yet, the rates received by those attorneys are undoubtedly affected by several factors, including volume of work and prompt payment. Attorneys who represent claimants, on the other hand, likely do not benefit from the same high volume of work. Moreover, as evidenced by the briefs and letters submitted by claimant's attorney asking for expedited payment, attorneys who represent claimants often face a significant delay in getting paid. A delay in payment can justify a higher hourly rate. Barnes, 401 F.3d at 745 (citing Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) for the proposition that a higher rate to compensate for a delay in payment was "within the contemplation of *666 the attorneys fees statute"). Accordingly, B & G has not shown that the adjudicators abused their discretion in failing to comment upon the company's countervailing evidence.
Finally, B & G points out that the risk of loss cannot be considered in fashioning a reasonable hourly rate. In his statements in support of his fee requests, claimant's attorney stated that the adjudicators should consider the risk of loss in these types of claims when determining a reasonable rate. That is plainly wrong. Federal courts and the BRB have all recognized that compensation for the risk of loss is already factored into any reasonable hourly rate. Dague, 505 U.S. at 565, 112 S.Ct. 2638 ("And we see a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue."); Black Lung Deskbook, Part XI § A.7.b (stating that "risk of loss is a constant factor in black lung litigation and is deemed incorporated into the hourly rate"). With that said, there is no indication that any of the adjudicators actually relied upon the risk of loss in determining a reasonable hourly rate.
In sum, we find that the adjudicators had sufficient factual support for the rates they selected. While claimant's attorney would have been well served by submitting an affidavit from an experienced attorney in the same or similar field attesting to that attorney's customary rate and the rates prevalent in the market, the adjudicators did not abuse their discretion by considering the rates awarded in past black-lung benefits cases, which were in line with the requested rate. The adjudicators appropriately placed little to no weight on the company's evidence of rates received by attorneys performing insurance-defense work as well as claimant's attorney's statement regarding risk of loss. Thus, having concluded that the rates are reasonable, we turn our attention to the hours.
2. The Hours
B & G takes issue with the number of hours approved by the adjudicators. The company argues that the hours submitted covered some clerical work and were excessive in light of the work performed. It maintains that time spent receiving or filing correspondence is not reimbursable. Finally, it contends that the adjudicators should not have approved billing in quarter-hour increments.
Each argument fails. The adjudicators reviewed the work entries and struck hours that they considered excessive or primarily clerical in nature. For example, the ALJ noted the company's objection to multiple entries for receiving, reviewing and filing correspondence. While reviewing correspondence can constitute legal work, receiving and filing correspondence presumably constitutes clerical work. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 973 (D.C.Cir. 2004). The ALJ noted that 11.25 hours were billed for receiving, reviewing and filing or drafting correspondence and subtracted three hours from this amount for routine or clerical work. As to the quarter-hour increments, the regulations require that the fees be submitted in such increments. 20 C.F.R. § 802.203(d)(3). While attorneys who record their time in quarter-hour increments might overbill their clients, attorneys who bill in tenth-hour increments might also overbillthe risk exists under both methods. As long as the total number of billable hours is reasonable in relation to the work performed, the award should be affirmed. Because the record confirms that the adjudicators carefully reviewed the time submitted and because they are "in a much better position than the appellate court to make th[ese] *667 determination[s]," Zeigler Coal, 326 F.3d at 903, we find no abuse of discretion as to the hours awarded.
III
Mindful of the Supreme Court's instruction that a request for attorneys' fees must not metastasize into "a second major litigation," Hensley, 461 U.S. at 437, 103 S.Ct. 1933, courts give considerable deference to the fees awarded by district courts and administrative adjudicators. In keeping with this broad deference, we find no abuse of discretion in the fees awarded in this case, as explained above. Accordingly, we AFFIRM.
NOTES
[*] The Honorable Christopher A. Boyko, United States District Judge for the Northern District of Ohio, sitting by designation.
[1] There are material differences between the fee-shifting provision found in the Longshore Act and those found in other federal statutes. See Day v. James Marine, Inc., 518 F.3d 411, 414, 418-19 (6th Cir.2008). The Longshore Act's requirement that the award cover only "a reasonable attorney's fee" is, however, similar in language to other federal fee-shifting statutes.
[2] Looking to past cases also violates the Administrative Procedure Act (the "APA"), according to B & G, for doing so "relies on evidence outside the record." Appellants' Br. at 18. Courts and tribunals routinely consider awards in prior decisions, not as binding precedent but as inferential evidence of what constitutes a reasonable hourly rate, as noted above. "[I]t is common for courts to take judicial notice of prior judgments and to use them as prima facie evidence of the facts stated in them." Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 412 (6th Cir.2006) (citations omitted). Doing so does not violate the APA.
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"pile_set_name": "FreeLaw"
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965 F.Supp. 1467 (1997)
John L. DAVSKO, Plaintiff,
v.
GOLDEN HARVEST PRODUCTS, INC., et al., Defendants.
Civil Action No. 96-2196-EEO.
United States District Court, D. Kansas.
May 6, 1997.
*1468 *1469 *1470 David A. Vorbeck, Clark Hill, P.C., Kansas City, MO, Cynthia F. Grimes, Grimes & Rebein, L.C., Lenexa, KS, for John L. Davsko.
Robert J. Bjerg, Lynne C. Kaiser, Rachel H. Baker, Seigfreid, Bingham, Levy, Selzer & Gee, Kansas City, MO, for Golden Harvest Products, Inc., Timothy J. MacKenzie, David Giesler, Bernie Brownell, Marc J. Walfish.
Arthur H. Stoup, Stephen W. Nichols, Arthur H. Stoup & Associates, P.C., Kansas City, MO, Thomas R. Rehorn, Kansas City, MO, for Terry Rabe.
Leland H. Corley, Lewis, Rice & Fingersh, Kansas City, MO, for Kurt Rabe.
MEMORANDUM AND ORDER
EARL E. O'CONNOR, Senior District Judge.
This matter is before the court on defendants' motion for summary judgment (Doc. # 51). After careful consideration of the parties' briefs and evidentiary materials, and the time having expired for the filing of a reply brief, the court is prepared to rule. For the reasons set forth below, defendants' motion is granted with respect to defendants Geisler, Brownell, and Walfish and denied with respect to defendants Golden Harvest Products, Inc. ("Golden Harvest") and MacKenzie.
*1471 Factual Background
For purposes of this opinion, the following is a brief summary of the material facts that are uncontroverted or deemed admitted, pursuant to Federal Rule of Civil Procedure 56 and District of Kansas Rule 56.1.
On March 31, 1995, Mr. Timothy MacKenzie, a member of Golden Harvest's Board of Directors, sent a letter to Mr. Davsko offering him a position as president and CEO of Golden Harvest. On April 3, Mr. Davsko sent a letter to Mr. MacKenzie outlining his requests for relocation expenses, the signing of an employment contract confirming any agreement between the parties, and a provision in the employment agreement for compensation if Mr. Davsko was terminated without cause. On April 4, Mr. MacKenzie sent a letter to Mr. Davsko with a modified employment offer. In this letter, Mr. MacKenzie "outlined the key financial terms" of Golden Harvest's offer and "attempted to include each of the items" he discussed and agreed upon with Mr. Davsko that morning in a telephone conversation. Mr. MacKenzie also stated in the letter that he had started "drafting an employment agreement which will formalize the terms of your employment with Golden Harvest." Mr. MacKenzie also stated in an attachment to his April 4, 1995, letter to Mr. Davsko that the employment offer included a "6% fully diluted ownership in Golden Harvest Products, Inc." and that plaintiff's equity "[o]wnership [would] be provided through stock or options at no cost to [plaintiff]." Mr. Davsko accepted Mr. MacKenzie's revised employment offer which was outlined in the April 4, 1995 letter.
Plaintiff started working for Golden Harvest on April 11, 1995. Both Mr. Davsko and Golden Harvest intended to execute a formal employment agreement, but no agreement was ever executed. On June 12, 1995, Mr. MacKenzie sent a draft of a formal employment agreement to Mr. Davsko which reflected all the terms that Mr. MacKenzie understood were a part of Mr. Davsko's employment agreement. Except for the omission of his equity ownership in Golden Harvest as part of the agreement, Mr. Davsko accepted the provisions of the June 12, 1995, draft employment agreement as reflecting the parties' agreement. No formal employment agreement was ever signed by the parties.
In June 1995, Mr. MacKenzie also sent a draft of a Management Shareholders' Agreement to Mr. Davsko. This agreement provided that Mr. Davsko could purchase 21,400 shares of Class B Common Stock of GHP Holdings, Inc. (6% of Golden Harvest's Class B Common Stock) at the per share price of $0.01. The agreement also provided for the repurchase of the stock in the event of Mr. Davsko's termination without cause at the "fair market value of the stock" as defined in the agreement. This agreement was never signed by the parties.
On August 28, 1995, Golden Harvest terminated Mr. Davsko's employment.
Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the *1472 substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2512.
Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D. Kan. Rule 56.1.
In this diversity case, we ascertain and apply Kansas law with the objective that the result obtained in federal court should be the same result as in a Kansas court. See Adams-Arapahoe School Dist. No.28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992).
With respect to plaintiff's fraud claims under Kansas law, federal law standards for granting summary judgment apply. See Fed.R.Civ.P. 56. In Anderson v. Liberty Lobby, 477 U.S. at 252, 255, 106 S.Ct. at 2512, 2513, the United States Supreme Court held:
we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.... Consequently, where the ... "clear and convincing" evidence requirement applies, the trial judge's summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that the jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.
Allegations of fraud must be proven by clear and convincing evidence. See Rajala v. Allied Corp., 919 F.2d 610, 626 (10th Cir.1990), cert. denied, 500 U.S. 905, 111 S.Ct. 1685, 114 L.Ed.2d 80 (1991); Sipes v. Crum, 204 Kan. 591, 464 P.2d 1, 6 (1970). Thus, plaintiff as the nonmoving party carrying the burden of proof at trial must present sufficient evidence of a clear and convincing nature to withstand summary judgment on his fraud claims. See Ramirez v. IBP, Inc., 913 F.Supp. 1421, 1430 (D.Kan.1995); Sprague v. Peoples State Bank, Colby, Kan., 844 F.Supp. 662, 667 (D.Kan.1994); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 840 F.Supp. 1426, 1431 (D.Kan.1993).
Analysis
I. Plaintiff's Breach Of Contract Claim (Count I).
Golden Harvest first moves for summary judgment on Mr. Davsko's breach of contract claim. Golden Harvest argues that no binding contract ever existed between the parties. The Kansas Supreme Court has stated that "[w]hether parties to an informal agreement become bound prior to the drafting and execution of a contemplated formal writing is largely a question of intent on their part. The intent of the parties is to be determined by the surrounding facts and circumstances of each case." King v. Wenger, 219 Kan. 668, 671, 549 P.2d 986, 989 (1976) (citations omitted). "The subsequent conduct and interpretation of the parties themselves may be decisive of the question *1473 of whether a contract has been made even though a document was contemplated and has never been executed." Id. at 672, 549 P.2d at 990. Here, Mr. MacKenzie conceded that his April 4, 1995, letter "represented a meeting of the minds about what the terms of [plaintiff's] compensation would be." Mr. Davsko actually was employed by Golden Harvest following the parties' agreement as expressed in Mr. MacKenzie's April 4, 1995, letter. In addition, Golden Harvest has not offered any evidence to dispute that Mr. MacKenzie's June 12, 1995, draft employment agreement given to plaintiff merely reflected the parties' prior agreement. These facts raise a disputed issue as to whether the parties had a binding agreement on April 4, 1995, despite the absence of a formal contract.
Golden Harvest argues that no employment agreement existed between Golden Harvest and Mr. Davsko because on April 4, 1995, both parties fully intended to formalize a written employment agreement, yet no such agreement was ever executed. This fact merely "is some evidence, not in itself conclusive," that no binding contract between the parties ever existed. King, 219 Kan. at 672, 549 P.2d at 990. The Kansas Supreme Court "has held that the mere intention to reduce an informal agreement to a formal writing is not of itself sufficient to show that the parties intended that until the formal writing was executed the informal agreement should be without binding force." Id. at 671-72, 549 P.2d at 989-90 (citing Storts v. Martin K. Eby Constr. Co., 217 Kan. 34, 535 P.2d 908 (1975); Phillips & Easton Supply Co. v. Eleanor Int'l, Inc., 212 Kan. 730, 512 P.2d 379 (1973); Miles v. City of Wichita, 175 Kan. 723, 267 P.2d 943 (1954)).
Golden Harvest also claims that it should be granted summary judgment on Mr. Davsko's claim for severance pay because there was no provision for severance pay in the parties' April 4, 1995 letter agreement. Viewing the evidence in the light most favorable to plaintiff, the provision for severance pay in the June 12, 1995 draft employment agreement merely reflected the terms of the parties' previous agreement. Mr. Davsko specifically requested severance pay in his April 3, 1995 letter to Mr. MacKenzie. Mr. MacKenzie testified that the June 12, 1995 draft agreement reflected what he believed were the terms of the parties' agreement at the time Mr. Davsko was hired. Although plaintiff's evidence of a severance pay provision as part of the parties' agreement is quite weak, Golden Harvest has not offered any rebuttal evidence on this point. Golden Harvest simply has not presented sufficient evidence to establish that the termination provision was not part of the discussions between Mr. MacKenzie and Mr. Davsko and included as part of the parties' agreement despite the absence of a formal written agreement.
For the above reasons, defendants' motion for summary judgment on plaintiff's breach of contract claim is denied.
II. Plaintiff's Compliance With Rule 9(b).
Rule 9(b) of the Federal Rules of Civil Procedure requires that all averments of fraud shall be stated with particularity. Defendants argue that plaintiff's complaint fails to set forth the specific fraudulent misrepresentations and the circumstances under which those representations were made. Plaintiff states in Count II of his complaint that Mr. MacKenzie, on behalf of Golden Harvest, represented to Mr. Davsko that he would be paid the salary, vacation and severance benefits and 6% equity stock ownership in Golden Harvest as set forth in Mr. MacKenzie's letters of March 31 and April 4, 1995. Plaintiff's complaint provides sufficient notice to defendants of the alleged representations and the circumstances under which those representations were made.
Defendants also contend, with respect to counts III and IV relating to plaintiff's state and federal securities law claims, that plaintiff has failed to plead allegations which include the time, place, and content of the misrepresentation, the fact misrepresented, and what was obtained or given up as a consequence of the fraud. See Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir.1992). The court finds that plaintiff's complaint provides defendants sufficient notice of all of these particular allegations.
*1474 In addition, the court finds that defendants have waived their objection under rule 9(b). The requirement that fraud shall be stated with particularity primarily is to allow the defendant to prepare an adequate responsive pleading. See Todaro v. Orbit Int'l Travel, Ltd., 755 F.Supp. 1229, 1234 (S.D.N.Y.1991); United Nat'l Records, Inc. v. MCA, Inc., 609 F.Supp. 33, 38 (N.D.Ill. 1984). By analogy to the time requirements for pleading defenses under rule 12, a rule 9(b) objection is waived unless made as a separate motion prior to or concurrent with the filing of a responsive pleading. See Todaro, 755 F.Supp. at 1234; MCA, 609 F.Supp. at 38-39. Here, defendants answered plaintiff's complaint without raising any objection under rule 9(b). Defendants cannot argue almost a year later that plaintiff failed to plead fraud with particularity.
III. Individual Directors' Liability.
Plaintiff claims that individual defendants Geisler, Brownell, Walfish, Terry Rabe, and Kert Rabe are personally liable under counts II, III, and IV because (1) they delegated to Mr. MacKenzie the authority to deal with Mr. Davsko and (2) they discussed some of the representations Mr. MacKenzie made to Mr. Davsko.[1] Plaintiff has not produced sufficient clear and convincing evidence for a jury to find defendants Geisler, Brownell, or Walfish liable for the alleged fraudulent misrepresentation and omissions made by Mr. MacKenzie in negotiating with Mr. Davsko.
The court finds that the individual directors of Golden Harvest cannot be held liable based on their status as directors and choice of Mr. MacKenzie as negotiator with Mr. Davsko regarding the terms of his employment. A corporation's directors generally are not liable for the torts of the corporation or its agents. See McFeeters v. Renollet, 210 Kan. 158, 161, 500 P.2d 47, 50 (1972); see also 3A W. Fletcher, Cyclopedia of the Law of Private Corporations § 1137 at 278; Teledyne Indus., Inc. v. Eon Corp., 401 F.Supp. 729, 736-37 (S.D.N.Y.1975), aff'd, 546 F.2d 495 (2d Cir.1976). Of course, a director can be liable if he actually commits or participates in the commission of a tort. See Kerns v. G.A.C., Inc., 255 Kan. 264, 274, 875 P.2d 949, 957 (1994); McFeeters, 210 Kan. at 161, 500 P.2d at 50. The key issue for determining the liability of a director for acts of fraud is whether he willfully and personally participated in the alleged fraudulent conduct. See Speer v. Dighton Grain, Inc., 229 Kan. 272, 281, 624 P.2d 952, 958-59 (1981); McFeeters, 210 Kan. at 161-62, 500 P.2d at 50. A director is not personally liable for torts committed by other directors of the corporation. See Jones v. Lewis, No. 86-1547, 1988 WL 163026, at *3 (D. Kan. June 13, 1988) ("corporate directors are not liable in tort for the tortious conduct of the corporation or for torts committed by other directors or officers; directors incur liability only when they personally commit torts.") (citing Kansas Comm. on Civil Rights v. Service Envelope Co., 233 Kan. 20, 26, 660 P.2d 549 (1983)); 3A W. Fletcher, Cyclopedia of the Law of Private Corporations § 1150 at 344 ("[A] director or other corporate officer is not liable for false statements made by another officer in which the former did not participate nor authorize nor sanction. The fraud must be brought home to him individually, for the reason that one director is not the agent of another."). Therefore, the court concludes that defendants Geisler, Brownell, and Walfish cannot be held liable for Mr. MacKenzie's alleged tortious acts based solely on their choice of him as negotiator.
Plaintiff also claims that Mr. Geisler, Mr. Walfish, and Mr. Brownell discussed with Mr. MacKenzie the representations made to Mr. Davsko and specifically endorsed the representation relating to his equity interest in Golden Harvest. The court *1475 has carefully reviewed the factual record and finds that plaintiff's assertions are inadequately supported. Plaintiff's mere suspicions of the other directors' involvement are insufficient to defeat a summary judgment motion. See Conaway, 853 F.2d at 793. Mr. Geisler testified that the directors discussed Mr. Davsko's requests in his April 3, 1995 letter which did not include the 6% equity interest proposal. In fact, Mr. Geisler and Mr. Brownell testified that they understood that there was a length of service requirement before Mr. Davsko could obtain his equity interest, which is contrary to Mr. MacKenzie's alleged representation. Mr. Geisler stated that he did not know the content of Mr. MacKenzie's discussions with Mr. Davsko regarding a length of service condition. In addition, Mr. Brownell testified that the directors discussed only the terms of Mr. Davsko's employment in a general sense. The Board of Directors gave Mr. MacKenzie only general guidelines and parameters for negotiating with Mr. Davsko. Mr. Walfish also testified that he did not recall seeing the April 4, 1995 letter before it was sent to Mr. Davsko. There simply is no record evidence that the directors reviewed and approved the March 31 and April 4 letters or discussed specifically what information would or should be disclosed to Mr. Davsko. Finally, the court notes that plaintiff conceded in his deposition that his claims against Golden Harvest's directors, except for Mr. MacKenzie, are based solely on their status as directors of the corporation.
Plaintiff's reliance on Kerns, supra, for imposing liability on all of Golden Harvest's directors is misplaced. In Kerns, the plaintiff was injured when he fell into a closed swimming pool at a mobile home park. Plaintiff sued the corporation who owned the park and the individuals, agents of the corporation, who operated the park. The plaintiff specifically alleged that the individual defendants were liable because "they personally committed the wrongdoing." Id. at 274, 875 P.2d at 957 The court found that the individual defendants could be held liable because they "had either assumed the duty or assigned their duty" to operate the park. Id. at 275, 875 P.2d at 958. The court simply did not address a director's liability for another director's tortious conduct. We find that the principles stated by the Kansas Supreme Court in McFeeters and Speer, discussed above, govern our analysis of this case.
Plaintiff also cites Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan.App.2d 276, 563 P.2d 531 (1977), for the proposition that Golden Harvest's directors are liable for MacKenzie's alleged misrepresentations because they ratified and adopted those promises by agreeing to hire Mr. Davsko and approving Mr. MacKenzie as negotiator for Golden Harvest. The plaintiff in Equity Investors brought suit against only the corporation Ammest Group. Ammest Group's individual directors were not parties to the action. The issue on appeal was whether the corporation could be held liable based on the director's conduct which tended to establish that one of its directors (Ford) had authority to deal on behalf of the corporation. We find nothing in Equity Investors which addresses a director's liability for the tortious conduct of another director.
In sum, plaintiff has not presented clear and convincing evidence of any fraudulent conduct by defendants Geisler, Brownell, or Walfish. For all of the above reasons, the court grants summary judgment in favor of Mr. Geisler, Mr. Brownell, and Mr. Walfish.
IV. Plaintiff's Common Law Fraud Claims (Count II).
Plaintiff claims that defendants fraudulently promised him a 6% equity interest in Golden Harvest at no cost to plaintiff as part of his compensation. Plaintiff also alleges that defendants fraudulently concealed that (1) plaintiff's 6% equity interest would be for class B non-voting common stock and (2) plaintiff would not receive the fair market value of his equity interest even if he was terminated without cause. The court will address defendants' arguments separately with respect to each claim of fraud.
A. Fraudulent Promise Of Future Event.
To prevail on a claim of fraudulent misrepresentation, a plaintiff must show by clear and convincing evidence: (1) an untrue statement of material fact; (2) known *1476 to be untrue by the person making it; (3) made with an intent to deceive or recklessly made with disregard for its truthfulness; (4) the justifiable reliance of plaintiff on the statement's truthfulness; and (5) injury as a result of said reliance. See Whitten v. Farmland Indus., Inc., 759 F.Supp. 1522, 1542 (D.Kan.1991) (citing Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444, 450 (1987); Scott v. Strickland, 10 Kan. App.2d 14, 19-20, 691 P.2d 45, 51 (1984)); Rajala, supra. "To be actionable, a misrepresentation must relate to a pre-existing or present fact; statements or promises about future occurrences are not actionable." Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152, 1157 (10th Cir.1994) (citing Edwards v. Phillips Petroleum Co., 187 Kan. 656, 659, 360 P.2d 23, 26 (1961)). "An exception exists where evidence establishes that, at the time the promise as to future events was made, the promisor did not intend to perform the promised action." Flight Concepts, 38 F.3d at 1157 (citing Edwards, 187 Kan. at 660, 360 P.2d at 26). Where a claim of fraud is predicated on a promise or statement concerning future events, there must be more than mere nonperformance to show fraudulent intent. See Whitten, 759 F.Supp. at 1542 (citing Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816, 824 (1979)). "The gravamen of such a claim is the existence of other circumstances of substantial character which support an inference of wrongful intent at the time of making the representation." Whitten, 759 F.Supp. at 1542 (citing Young v. Hecht, 3 Kan.App.2d 510, 515, 597 P.2d 682, 688 (1979) (emphasis added)); see Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 469, 819 P.2d 1192, 1200 (1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1946, 118 L.Ed.2d 550 (1992).
Defendants first argue that plaintiff's fraud claim must fail because plaintiff conceded in his deposition that Mr. MacKenzie's statements were not false. Counsel for defendants asked plaintiff: "Did [Mr. MacKenzie] state anything prior to your employment, your hire date at the company, that was a lie?" Plaintiff answered "No." Plaintiff responds that his deposition testimony refers to whether he considered Mr. MacKenzie's statements to be true at the time Mr. MacKenzie made the statements, which establishes plaintiff's reliance on the representations. Viewing the evidence in the light most favorable to plaintiff, the court finds that the referenced testimony is vague and could be interpreted as applying only to when the representation was made. Plaintiff's testimony simply does not prove that Mr. MacKenzie's representations were not in fact false.
Defendants also contend that plaintiff's fraud claim fails because plaintiff has no evidence that at the time he entered into his employment with Golden Harvest that it did not intend to live up to its agreements with him. At least two Golden Harvest directors testified, however, that they intended that Mr. Davsko would be required to fulfill a length of service condition before being entitled to a 6% equity interest in Golden Harvest. This condition apparently was discussed among Golden Harvest's directors prior to March 31, 1995. No such condition, however, was contained in either the March 31 or April 4 letters from Mr. MacKenzie to Mr. Davsko. The fact that two directors testified to additional conditions for Mr. Davsko to obtain his equity interest raises an issue of fact as to whether Golden Harvest intended to live up to the terms of the April 4, 1995 agreement with Mr. Davsko.
B. Fraud By Silence.
To establish fraud by silence, a plaintiff must show by clear and convincing evidence: (1) that the defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) that the defendant was under an obligation to communicate the material facts to the plaintiff; (3) that defendant intentionally failed to communicate to plaintiff the material facts; (4) that plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) that plaintiff sustained damages as a result of defendant's failure to communicate the material facts to plaintiff. Ensminger v. Terminix Int'l Co., 102 F.3d 1571, 1573-74 (10th Cir.1996); see OMI Holdings, Inc. v. Howell, 260 Kan. 305, *1477 344-45, 918 P.2d 1274, 1299 (1996); Flight Concepts, 38 F.3d at 1158.
One cannot be held liable for a failure to disclose absent a duty to do so. See DuShane v. Union Nat'l Bank, 223 Kan. 755, 760, 576 P.2d 674, 678-79 (1978). A duty to disclose depends upon the relationship between the parties when the suppression or concealment of information is alleged to have occurred. Id. at 760, 576 P.2d at 679. Generally, a duty to disclose may be found either (1) where there is a disparity of bargaining power or expertise between two parties to a contract or (2) where a fiduciary relationship exists. See id. at 760, 576 P.2d at 679 (citing Merchant v. Foreman, 182 Kan. 550, 322 P.2d 740 (1958); Anderson v. Heasley, 95 Kan. 572, 148 P. 738 (1915)).
The Kansas Supreme Court has set forth the general principles governing fraudulent concealment:
[w]here one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud, especially when the other party relies upon him to communicate to him the true state of facts to enable him to judge of the expedience of the bargain.
Wolf v. Brungardt, 215 Kan. 272, 282, 524 P.2d 726, 736 (1974); see Lynn v. Taylor, 7 Kan.App.2d 369, 371, 642 P.2d 131, 134 (1982).
Apart from the alleged admissions made by plaintiff in his deposition, discussed in part III. A., supra, defendants have not offered any further evidence in support of their motion for summary judgment on plaintiff's claims of fraud based on defendants' silence. Given defendants' superior knowledge as to the actual terms of its management equity program, a jury reasonably could find that defendants had a duty to disclose certain information regarding its equity program to Mr. Davsko. The court accordingly will deny defendants' motion for summary judgment on plaintiff's common law fraud claims.
V. Plaintiff's State Securities Law Claims (Count III).
Mr. Davsko seeks recovery under Kansas law based on defendants' alleged offer of a security by means of an untrue statement of a material fact or an omission to state a material fact. See K.S.A. §§ 17-1253, 17-1268. Based on plaintiff's same alleged admissions in his deposition, defendants contend that plaintiff has not established that defendants made any untrue statement or material omission. As explained above, plaintiff has presented sufficient evidence to raise an issue of material fact on these points. The court accordingly will deny defendants' motion for summary judgment on plaintiff's state securities law claims.
VI. Plaintiff's Federal Securities Law Claims (Count IV).
Mr. Davsko also seeks recovery under the federal securities law based on defendants' alleged fraudulent promise to provide Mr. Davsko a 6% equity interest if he started working for Golden Harvest. Defendants argue that plaintiff's federal securities law claim fails because he has not produced any evidence that defendants did not intend to perform or knew that they could not perform. Again, at least some of the Golden Harvest directors intended and discussed with the other directors that Mr. Davsko would be required to fulfill a length of service condition before receiving his 6% equity interest. This requirement was not expressly contained in either letter from Mr. MacKenzie to Mr. Davsko. Defendants have offered no evidence to refute these facts. The court finds that plaintiff has presented sufficient evidence to preclude summary judgment on his federal securities law claim.
Consistent with the parties' representations reflected in the pretrial order, any requests for the appointment of a mediator should be directed to Magistrate Judge Rushfelt.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment *1478 (Doc. # 51) is granted with respect to plaintiff's claims against defendants Geisler, Brownell, and Walfish. Defendants' motion is denied in all other respects.
IT IS FURTHER ORDERED that defendants Terry and Kert Rabe are granted leave to file a motion for summary judgment on or before May 12, 1997.
NOTES
[1] Individual defendants Terry and Kert Rabe have not filed a motion for summary judgment. Thus, the court's analysis in this section will focus on the conduct of Mr. Geisler, Mr. Brownell, and Mr. Walfish. The court notes that unless plaintiff has additional evidence implicating defendants Terry and Kert Rabe, it is highly unlikely plaintiff can make out a submissible case against these two individual defendants. Given the similarity between the legal issues involved in the instant motion and those likely to be raised by defendants Terry and Kert Rabe, the court will grant defendants Terry and Kert Rabe leave to file motions for summary judgment on or before May 12, 1997.
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"pile_set_name": "FreeLaw"
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511 Pa. 383 (1986)
515 A.2d 507
Robert J. RUSISKI and Margaret M. Rusiski, his wife, Appellees,
v.
Edward M. PRIBONIC and Andrea E. Pribonic, his wife, Appellants.
Supreme Court of Pennsylvania.
Argued September 18, 1985.
Decided September 25, 1986.
*386 Stanley A. Uhr, Pechner, Dorfman, Wolffe, Rounick & Cabot, Philadelphia, for appellants.
Robert A. Seewald, Louis B. Swartz, Seewald, Carb & Swartz, P.C., Pittsburgh, for appellees.
Before NIX, C.J., and LARSEN, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.[*]
The Appellants are the fee-simple owners of a fifty-acre tract in White Oak Borough, Allegheny County. They entered into an Agreement of Sale with the Appellees in which they agreed to sell the house in which they lived with its attendant outbuilding on a two-acre plot carved from their fifty-acre tract. The house and outbuildings in their intended geography were landlocked. To sell, therefore, *387 they offered access across their remaining land to the public roadway.
In the Agreement of Sale, that intention was embodied as follows:
Sellers agree at the time of the conveyance to grant buyers a right of way which includes roughly the last sixty feet of the driveway, leading from the acreage to McKee Road. This right of way is to be granted in the deed and is to be used solely by the buyers for purposes of ingress and egress and it is clearly understood that the owners may, from time to time, use this portion of the land for water lines, sewer lines, electrical lines, gas and other utility functions.
Both parties agreed and signed. A deed, prepared by the Lawyers Title Insurance Corporation for and signed by Appellants, was presented at settlement and contained, as agreed, a deeded provision establishing the access road. It reads, in pertinent part:
ALSO, together with a right in the grantees, their heirs and assigns, to use a driveway as presently located on property of grantors immediately abutting the premises herein described on the North for egress and ingress to McKee Road provided that grantors, their heirs and assigns, hereby reserve the right to use the property over which the driveway runs for water lines, sewer lines, electrical lines, gas and other utility functions so long as said reservation does not interfere with grantees' right of ingress and egress.
At settlement, which the Appellants did not attend, a dispute arose over whether, in the original agreement, the term "owners" referred then to the "buyers" or "sellers." The gravamen of the dispute was whether the ground in which the easement inhered belonged to the "sellers" or the "buyers," that is, whether the buyers owned the ground and granted an easement to the sellers, or the sellers owned the ground and granted an easement to the buyers. Appellants' counsel, to obviate the problem, struck from the deed provision the following:
*388 . . . provided that grantors, their heirs and assigns, hereby reserve the right to use the property over which the driveway runs for water lines, sewer lines, electrical lines, gas and other utility functions so long as said reservation does not interfere with grantees' right of ingress and egress.
Hence, leaving the part that reserved ownership in the sellers and an easement in the Appellee-buyers.
It was the 11th hour and the buyers, faced with different wording, asked time to consider and evaluate the deletion. Three days thereafter, they agreed to the deletion, accepting the easement and not the ownership as was so plainly stated in the original Agreement of Sale. We say plainly stated because, when the Agreement of Sale was executed, the buyers were not then the owners, and no reading of that agreement could fail to distinguish that Appellants were then owners-sellers granting an easement over their land to the Appellees as buyers.
The problem here, however, does not turn upon that issue, because whatever the Appellant-sellers intended was agreed to by the Appellee-buyers. After the Appellee-buyers notified their acceptance to Appellants, they set a new closing date exactly one month after the original closing. The Appellants failed to appear, contending that the buyers breached the Agreement of Sale by refusing to close on the original settlement date. Three days later, the Appellees filed the instant suit seeking specific performance.
The Chancellor not only granted specific performance, but he also awarded damages of $48,852.00 reduced to present value of $31,441.64. He reduced the purchase price from $63,900.00 to $32,458.36 and added thereto $14,300.00, which the parties agreed was the value of improvements made to the property by Appellants after the signing of the agreement. Thus, the buyers were granted specific performance and were obligated to pay $46,758.36 instead of $78,200.00.
The Chancellor accomplished this arithmetic feat by presuming that the Appellees would have to overpay their *389 mortgage interest by 5% for a period of twenty years. At the original closing date, the buyers had obtained a twenty-year mortgage for $57,500.00 at 10.25% interest. Four years later, when the Chancellor issued his decree, the interest rate available was 15.25%. On appeal, the Superior Court affirmed.
Upon petition, we granted allocatur to consider both aspects of the lower court's decision. The precise issues on appeal are: 1) whether a seller who drafts an agreement of sale containing an ambiguity should be estopped from refusing conveyance when the buyer agrees within a reasonable amount of time to accept seller's interpretation; and 2) whether an equity court can award damages to a buyer in a land sales transaction calculated upon an increased mortgage interest rate.
I.
In support of their appeal, the Appellants offer several arguments. First, they contend that there was ambiguity in the original agreement; because of this there was no meeting of the minds and, hence, no enforceable agreement. Second, Appellants argue that the tendered deed was a valid offer, which refused, was a rejection of the contract, and that the buyers' attempted acceptance of that offer was late and, hence, not binding. Finally, with regard to the Chancellor's apportionment of damages, they assert that the use of an increase in the annual mortgage percentage rate to penalize them was inequitable.
The scope of review of this Court in consideration of an appeal from a final decree is well established.
. . . the findings of the Chancellor will not be reversed unless it appears that he has clearly abused his discretion or committed an error of law. Where credibility of witnesses is important to the determination, the Chancellor's findings are entitled to particular weight because of his opportunity to observe their demeanor. Where a reading of the record reasonably can be said to reflect the conclusions reached by the Chancellor, a reviewing court may *390 not substitute its judgment for that of the Chancellor. A reviewing court, however, is not bound by findings which are without support in the record or have merely been derived from other facts. (Citations omitted.)
Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981).
Sellers principally contend that the term "owners" in the agreement created an ambiguity which necessitated rescission of the contract. Buyers, on the other hand, contend that there was no such ambiguity.
The intent of the parties to a contract is to be determined solely from the express language contained therein. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 661 (1982). We have already noted that the original agreement was plain enough to distinguish the parties and their intention. The learned Chancellor succinctly resolved that issue.
It is clear to the court that the purpose of the disputed language in the deed and Agreement of Sale was to grant ingress and egress to the plaintiffs but reserve a right in the defendant for water lines, sewer lines and other utilities in case defendants, at some future date, decided to develop the surrounding acreage. The clause in question does not make sense otherwise.
Slip opinion, GD 79-9621. Adjudication, p. 3 (7/2/81). The Superior Court, agreeing, stated:
Taking the provision in its context in the deed, it is illogical to interpret "owners" as referring to Rusiki's (sic) (Appellee-buyer) as they "owned" nothing prior to passage of title by deed.
Rusiski v. Pribonic, 326 Pa. Superior Ct. 545, 552, 474 A.2d 624, 628 (1984).
We agree with both analyses, for, assuming arguendo that there was ambiguity, doubtful language is construed most strongly against the drafter thereof. In re Estate of Breyer, 475 Pa. 108, 116, 379 A.2d 1305, 1310 (1977). In this case, it is undisputed that the Appellants drafted both the Agreement of Sale and the deed provision.
*391 Moreover, sellers' contention, if accepted, would only support a finding of unilateral mistake, which, in the absence of fraud or fault attributable to the buyers, would not be grounds for rescission. See, Bosler v. Sun Oil Co., 325 Pa. 411, 190 A. 718 (1937). See also, Herman v. Stern, 419 Pa. 272, 280 n. 5, 213 A.2d 594, 598 n. 5 (1965); McFadden v. American Oil Co., 215 Pa. Superior Ct. 44, 257 A.2d 283 (1969). Neither fraud nor fault is at issue here.
Sellers further contend that since time was of the essence concerning the agreement, buyers were in breach upon their failure to close on the initial date set between the parties. This contention has no merit. The agreement at issue contains a paragraph that in order for time to be of the essence, written notice must be served upon the other party setting a date, time, and place for final settlement. This was not done by sellers. "It is a well-established principle in equity that time is not ordinarily regarded as of the essence in contracts for the sale of real property unless it is so stipulated by the express terms thereof, or it is necessary to be implied so." (Citations omitted.) Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 554-55, 246 A.2d 365, 368 (1968).
Additionally, delay in the instant case was precipitated by the actions of the sellers. Buyers were at all times ready to bargain and even agreed to accept sellers' interpretation of the disputed easement provision within a reasonable amount of time following the aborted first closing. A contract will not be nullified due to the intentional forebearance by one party to complete the conveyance.
Thus, we agree with the lower court that an enforceable contract existed, and that Appellees were entitled to compel performance.[1]
*392 II.
We now turn to the second issue, concerning the damage calculations utilized by the Chancellor. The benchmark for reviewing a chancellor's findings in equity is based on the finding of an abuse of discretion or error of law. See, Frowen, supra, 5. It has further been held "that the function of this Court on an appeal from an adjudication in equity is not to substitute its view for that of the lower court; our task is rather to determine whether a judicial mind, on due consideration of all the evidence, as a whole, could reasonably have reached the conclusion of the chancellor." (Citations omitted.) Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 39, 383 A.2d 808, 810 (1978).
It is incumbent that this Court analyze cases with an independent, judicial mind, where, as here, the specific issue is one of first impression within this Commonwealth.
The record clearly shows that when Appellees and Appellants entered into a sales agreement for the subject property in 1979, the agreement was subject to Appellees obtaining a mortgage at 10.25 percent over a twenty year period. Because of Appellants' 1979 breach, Appellees argued to the Chancellor that they lost the opportunity to borrow at 10.25 percent and, because of fluctuations in the interest rates, would have to pay 15.25 percent in interest (the average interest rate current in 1982, when the Chancellor issued his decree). The Chancellor agreed that Appellees suffered a loss, determining that the 5 percent in additional interest would cost them an additional $48,852.00 over a twenty-year period (the life of the mortgage). Reducing the figure to its present worth ($31,441.64), the Chancellor applied this to the purchase price as increased by subsequent improvements ($63,900.00 purchase price plus $14,300.00 improvements equals $78,200.00 less $31,441.64, the increased cost of interest) reducing the purchase price to $46,758.36.
While we have never had occasion to discuss whether the increased interest rates are awardable elements of consequential damages, our general rule is that consequential *393 damages may be awarded as collateral relief to a decree of specific performance, since the power of a chancellor extends to shaping and rendering a decree which accords with the equities in the case. Sigal v. Manufacturer's Light & Heat Co., 450 Pa. 228, 299 A.2d 646 (1973); Township of Salisbury v. Vito, 446 Pa. 200, 285 A.2d 529 (1971); Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968).
However, these damages must be such as would naturally and ordinarily follow from the breach, must have been reasonably foreseeable and within the contemplation of the parties at the time they made the contract and must be capable of being proved with reasonable certainty. Keystone Diesel Engine Company v. Irvin, 411 Pa. 222, 191 A.2d 376 (1963); Adams v. Speckman, 385 Pa. 308, 122 A.2d 685 (1956); Taylor v. Kaufhold, 368 Pa. 538, 84 A.2d 347 (1951).
This requirement necessarily flows from the nature of the jurisdiction of the court when decreeing the specific performance of a contract, which is to confirm the contract, and erase the breach, and to restore the parties as nearly as possible to the positions they occupied before the breach. The original time for performance having passed, the court, in order to relate the performance back to it, must equalize any losses occasioned by the delay by offsetting them with money payments. In balancing the equities between the parties, however, the claimed damages must be capable of being proved with reasonable certainty, and this requirement extends to a claim for interest rates. From even a cursory review of this record, the relief that will put Appellees in the position they were before the breach is incapable of sure prediction. In 1979, the Appellees obtained financing at 10.25 percent interest. When they appeared before the Chancellor in 1982, they had not obtained financing, but relied on the then current interest rate of 15.25 percent as a measure of their damage if specific performance were ordered *394 at that time. Currently, interest rates are at 10.50 percent and appear to be falling.
Because of the drastic fluctuations in interest rates over the recent past, it is speculative for a court to award interest as damages in specific performance decrees. Such decrees do not usually take effect until sometime in the future, when all appeals are exhausted, and cannot anticipate or reflect the continual changes of interest rates. Thus, actual damages are not capable of being awarded. To prove the point, reference need only be made to this case. As the matter stands, Appellees are being overcompensated by this decree, at the expense of Appellants, who are only required to compensate Appellees for the losses actually sustained by them.
The evidence accepted by the Chancellor establishes that the cost of the mortgage to Appellees over a twenty (20) year period at 10.25 per cent per annum repayable at $564.65 per month, principal and interest, would be $135,516.00. The same mortgage at 15.25 per cent per annum repayable at $768.20 per month, principal and interest, would aggregate $184,368.00. This represents an increased cost of $48,852.00 over the term of the mortgage. Reduced to present value this increased cost is $31,441.64 and it was charged to the Appellants by reducing the purchase price. Unwittingly, the Chancellor caused an unjust enrichment.
The monthly payment of $564.65 (for which Appellees had bargained) would have gotten them a mortgage of $42,500.00 at 15.25 per cent per annum for a term of twenty (20) years. Since they had bargained for a mortgage of $57,500.00 their true loss could only be the difference of $15,000.00 which, when subtracted from the purchase price of $63,900.00 plus improvements of $14,300.00 ($78,200.00) leaves a balance of $63,200.00 still owing to Appellants. This is a loss of $700.00 and not $31,441.64 as awarded by the Chancellor.[2]
*395 By awarding Appellees damages of $31,458.36, the Chancellor, in effect, reduced the purchase price from $63,900.00 to $32,458.36. He then added the cost of the improvements ($14,300.00) which remain unaffected by the breach. This placed the Appellees in a position where they were only required to obtain a mortgage of $26,000.00 at 15.25 per cent interest since they had $6,400.00 in cash to apply to the purchase price. At a monthly principal and interest payment of $347.18 for twenty (20) years their payback would be $83,323.20 instead of $135,516.00 for which they had bargained. This is a savings to them of $52,192.80 over the term of the mortgage and not a loss of $48,852.00 over the term of the mortgage as found by the Chancellor. This is not only unjust enrichment. It is also unwittingly unconscionable.
Finally, it must be noted that the average life of a residential mortgage is 11.79 years.[3] Many events occur which cause payments of mortgages to be accelerated. The properties are sold, and the mortgages are paid off. The owners become more affluent and increase their principal payments. The properties are sold at sheriff sale upon default. The properties are destroyed by a catastrophe fire, flood, tornado and the like and insurance pays off the mortgage. Interest rates drop and the properties are refinanced thus causing a payoff of the original mortgage. Or refinancing occurs for any other reason and the original mortgage is paid off. We would look a little silly today if the Chancellor's Decree had been fulfilled and Appellees today would be refinancing the debt at today's rates of interest of ten to eleven per cent. What a windfall equity would have bestowed upon them.
Because of all these imponderables, damages must never be awarded unless they can be ascertained with reasonable certainty. In this case the only damages suffered by Appellees by the breach and which can be ascertained with reasonable certainty are the increases in closing *396 costs occasioned by the passage of time. We know what the closing costs were on April 9, 1979, and we will know what they are when the parties close. The difference should be reimbursed to Appellees by the Appellants. Equity can do no more for the parties than do equity to each party.
Reversed and remanded to the Court of Common Pleas of Allegheny County with directions to enter a decree of specific performance in conformance with this opinion.
FLAHERTY, J., did not participate in the consideration or decision of this case.
NIX, C.J., concurs in the result.
McDERMOTT, J., files a concurring and dissenting opinion.
McDERMOTT, Justice, concurring and dissenting.
I join in the majority's conclusion that an enforceable contract existed. However, as to the rejection of the Chancellor's damage calculations, I dissent, since the majority has made a serious error in ignoring the equity status of the instant controversy and treating it as an action at law.
The Chancellor in equity has long been recognized as possessing the power to enter money judgments against parties if the circumstances of the specific case require it. Meth v. Meth, 360 Pa. 623, 626, 62 A.2d 848, 849 (1949). Furthermore, it is not the duty of a court in equity to apply strict legal principles in resolving disputes, but rather to use its sound discretion to adapt the relief to the circumstances of the particular case. Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841 (1935). See also, Overfield v. Pennroad Corporation, 42 F.Supp. 586, (E.D.Pa.1941); Pennsylvania Law Encyclopedia, Equity § 31.
*397 In granting equitable relief this Court has held that "the appropriateness of a particular form of relief is to be tested by balancing the seriousness of the injury against the cost of avoiding it and the importance of the conduct causing it." (Citations omitted.) Dexter v. Bebenek, 458 Pa. 1, 3, 327 A.2d 38, 39 (1974).
The majority has eschewed these equitable principles and decided this matter as if it were an action at law, choosing for support prior assumpsit actions[1] rather than equity actions, and applying legal restrictions on damages such as foreseeability and certainty of loss. This type of legal analysis ignores the traditional distinction established by this Court in addressing the problems unique to equity and law.
Additionally, I note that a method of calculation identical to the one used by the Chancellor in the case at bar has been approved by other jurisdictions. See Reis v. Sparks, 547 F.2d 236 (4th Cir.1976) (applying Maryland law); Walker v. Benton, 407 So.2d 305 (Fla.App.1981); Donovan v. Bachstadt, 91 N.J. 434, 453 A.2d 160 (1982).
In conclusion, I believe that the majority's reliance on the foreseeability and certainty of damages is misplaced. It should be this Court's responsibility to analyze whether the Chancellor has abused his discretion in assessing consequential damages. Given the fact that appellants were aware of the appellees' plans to finance the purchase at a specific mortgage percentage rate, and that the appellants unreasonably refused to make the conveyance, I do not believe the Chancellor stepped outside his equitable powers by devising the contested formula in an effort to cure this conflict.
Accordingly, I dissent.
NOTES
[*] Reassigned to this writer on July 28, 1986.
[1] We note that Appellant's challenge to the lower court's order and decree are directed to whether an enforceable contract existed. There is no contention in their statement of the issue and/or their brief that assuming the existence of a valid contract, specific performance was not a proper remedy. Therefore, we need not address that issue.
[2] The Buyers' loss could also have been eliminated by the Sellers taking back a purchase money mortgage as bargained for by the Buyers.
[3] February 1, 1985, issue of Real Estate Finance Today.
[1] See Keystone Diesel Engine Company v. Irwin, 411 Pa. 222, 224, 191 A.2d 376, 378 (1963), and cases cited therein.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3896
_____________________________
CDC CAPITAL INVESTMENTS,
LLC as Trustee,
Appellant,
v.
MTGLQ INVESTORS, L.P.,
Appellee.
_____________________________
On appeal from the Circuit Court for Jackson County.
Christopher N. Patterson, Judge.
December 31, 2018
PER CURIAM.
Because Appellant has failed to file the transcript of the bench
trial and failed to carry its burden of showing reversible error, we
affirm the final judgment. The lack of an adequate record of the
proceedings below prevents us from determining whether the trial
court abused its discretion in admitting evidence at trial.
Therefore, we must affirm. Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
AFFIRMED.
WETHERELL, BILBREY, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Ian P. Hudson of King Hudson, PLLC, St. Petersburg, for
Appellant.
Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for
Appellee.
2
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 04 2013
MOLLY C. DWYER, CLERK
CARRI LEA LEIR, No. 12-35545 U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 3:11-cv-05411-RAJ
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted October 11, 2013**
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
Claimant Carri Lea Leir seeks review of the Commissioner’s denial of
Social Security Disability Insurance Benefits, which the district court upheld.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Reviewing de novo for substantial evidence and harmful legal error, Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), we reverse and remand.
1. The Appeals Council evaluated Claimant’s supplemental evidence
and properly incorporated it into the record, along with the Appeals Council’s
determination that the supplemental evidence did not provide a ground for
changing the decision of the administrative law judge ("ALJ"). Brewes v. Comm’r
of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). The Appeals Council
was not required to make any particular evidentiary finding. Taylor v. Comm’r of
Soc. Sec. Admin., 659 F.3d 1228, 1231-32 (9th Cir. 2011).
2. The ALJ provided "clear and convincing" reasons to reject Claimant’s
subjective testimony, including contrary medical evidence and self-reports of
everyday activities. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)
(holding that an ALJ may reject a claimant’s subjective testimony in reliance on
reports of activities of daily living that are transferable to a work setting).
Claimant could, for example, play computer games, cook, wash dishes, do laundry
and some yard work, vacuum, travel, shop, and care for pets.
3. The ALJ did not reject the lay testimony and, therefore, had no
obligation to provide reasons for a rejection as required by Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996).
2
4. But the ALJ erred as a matter of law in failing to provide
"clear and convincing" reasons for rejecting the uncontradicted hand-use
limitations put forth by Dr. Hatzakis, Claimant’s treating physician, and supported
by the testimony of Dr. Barnes. Lester, 81 F.3d at 830-31. "Where the
Commissioner fails to provide adequate reasons for rejecting the opinion of a
treating or examining physician, we credit that opinion as a matter of law." Id. at
834 (internal quotation marks omitted). In light of the ALJ’s failure to reject Dr.
Hatzakis’ opinion, the ALJ further erred in failing to incorporate Claimant’s
limitation of 15-20 minutes of hand use, followed by a mandatory rest period, in
his hypothetical to the vocational expert. See Matthews v. Shalala, 10 F.3d 678,
681 (9th Cir. 1993) ("If a vocational expert’s hypothetical does not reflect all the
claimant’s limitations, then the expert’s testimony has no evidentiary value to
support a finding that the claimant can perform jobs in the national economy."
(internal quotation marks omitted)). Failure to include the limitation in the
hypothetical, or to discount the treating physician opinion properly, requires a
remand for reconsideration after the record is developed. DeLorme v. Sullivan,
3
924 F.2d 841, 850 (9th Cir. 1991).1 Accordingly, we reverse and order the district
court to remand to the Commissioner for reconsideration of Claimant’s treating
physician’s testimony regarding her hand-use limitation—and such other issues as
may be affected by this error—and to conduct such further proceedings and engage
in such further consideration as may be appropriate.
REVERSED and REMANDED.
1
Because we reverse and remand with respect to the hypothetical posed to
the vocational expert, which will result in further proceedings, we need not
evaluate whether her testimony was ambiguous.
4
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478 P.2d 829 (1970)
Richard BRAND, d/b/a Brand Plumbing & Heating, Appellant,
v.
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF FAIRBANKS, Appellee.
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF FAIRBANKS, Appellant,
v.
Richard BRAND, d/b/a Brand Plumbing & Heating, Appellee.
Nos. 1154, 1119.
Supreme Court of Alaska.
December 18, 1970.
George M. Yeager, Fairbanks, for Richard Brand.
Richard R. Cole, Walter Sczudlo, Fairbanks, for First Federal Savings & Loan.
Frederic E. Brown, Fairbanks, for Edison W. Crafton, as amicus curiae.
Before DIMOND, RABINOWITZ, and CONNOR, JJ., and STEWART, Superior Court Judge.
OPINION
RABINOWITZ, Justice.
Richard Brand, doing business as Brand Plumbing and Heating, filed a four-count complaint against First Federal Savings and Loan Association of Fairbanks and others to foreclose mechanics' liens. In its answer, First Federal affirmatively alleged that as to every parcel the owners had given it promissory notes secured by deeds of trust. It was further asserted that First Federal had recorded these deeds of trust and had posted and recorded notices of nonresponsibility before Brand began work or furnished materials. The trial court found that First Federal had posted and recorded notices of nonresponsibility on the lots and buildings at issue in the first three counts but had posted no notice on the parcel of land involved in Count IV. The superior court's judgment provided that *830 Brand not be permitted to foreclose on the properties at issue in the first three counts, but foreclosure was granted as to Count IV. Brand and First Federal both appeal the trial court's judgment.
Brand raises two issues in his appeal. The first is whether the superior court erred in holding that First Federal had priority on the Counts I, II, and III parcels as a result of its posting notices of nonresponsibility. The second is whether the court erred in not awarding him costs and attorney's fees on Count IV on which he prevailed.
Brand's first issue involves the effect of First Federal's notices of nonresponsibility posted on the buildings and parcels of land at issue in Counts I, II, and III. The trial court reasoned that First Federal's interest under the trust deeds had priority over Brand by virtue of these notices.
Alaska's mechanics' lien statutes are complex and obscure. Under AS 34.35.050, a laborer or materialman is granted a lien on a building "for the work done or material furnished at the instance of the owner of the building * * *." This lien extends to the land upon which the building is constructed and a convenient space around the building if the person who causes the building to be constructed, altered or repaired owns the land when the work is started or the materials are first furnished.[1] Lien priorities are governed by AS 34.35.060 and AS 34.35.065. The former provides:
Priorities. (a) A lien created by §§ 50-120 of this chapter upon land and a building or other improvement constructed or located upon the land when altered or repaired is preferred over a lien, mortgage, or other incumbrance which attaches to the land after
(1) the building, improvement, alteration, or repair is started; or
(2) materials for the building, improvement, alteration, or repair are first furnished and placed upon or adjacent to the land.
(b) A lien created by §§ 50-120 of this chapter is preferred to a lien, mortgage, or other incumbrance which is unrecorded when
(1) construction, alteration, or repair of the building, structure, or other improvement is started; or
(2) materials for the construction, alteration, or repair are first furnished and placed upon or adjacent to the land.
(c) A lien created by §§ 50-120 of this chapter in favor of a person actually performing labor upon or furnishing material used in a building or other improvement in its original construction is preferred to a prior lien, mortgage, or other incumbrance upon the land on which the building or other improvement is constructed.
(d) In enforcing the lien, the building or other improvement may be sold separately from the land. When sold separately, the purchaser may remove the building or other improvement within a reasonable time after the sale, not to exceed 30 days, upon the payment to the owner of the land of a reasonable rent for its use from the date of its purchase to the time of removal. If removal is prevented by legal proceedings, the 30 days does not begin to run until the final determination of the proceedings in the court of first resort, or in the appellate court if appeal is taken.
AS 34.35.065 further provides:
Notice of nonresponsibility. (a) A building or improvement mentioned in § 50 of this chapter constructed with the knowledge of the owner of the land or the person having or claiming an interest in the land is considered to be constructed at the instance of the owner or person having or claiming the interest.
(b) The interest owned or claimed is subject to a lien filed in accordance with §§ 50-120 of this chapter, unless (1) the owner or person having or claiming an interest in the land gives notice within *831 three days after he obtains knowledge of the construction, alteration or repair that he will not be responsible for it, by posting a notice to that effect in writing in some conspicuous place upon the land or upon the building or other improvement located on the land; (2) the notice is signed by him in the presence of two attesting witnesses or acknowledged by him before a notary public; (3) the posting of notice is attested to by a witness; and (4) an attested or notarized copy of the notice is recorded with the recorder of the recording district in which the land, building or other improvement is located within three days after the posting of the notice.
First Federal claims that it was a "person having or claiming an interest in the land" within AS 34.35.065(a), and that it attained priority over Brand's mechanics' liens by posting and recording notices of nonresponsibility in accord with AS 34.35.065(b). Brand argues that the beneficiary of a deed of trust is not a "person having or claiming an interest in the land" for purposes of this section, so is not protected against superior mechanics' liens by posting and recording notices of nonresponsibility. The question is one of first impression.
In order to determine whether the beneficiary of a deed of trust is, in general, a "person having or claiming an interest in the land," it must be determined whether Alaska is a title theory or a lien theory state regarding deeds of trust. In the case at bar, the instrument purports to convey legal title to a trustee to hold in trust for the beneficiary First Federal for the purpose of securing the trustor's notes to the beneficiary. Though the instruments purpose to convey title, they are intended merely as security agreements and so declare on their face. In such circumstances, the title wordage of the trust deed is not dispositive.[2] An early territorial case, Lewis v. Wells,[3] holds that a mortgage in Alaska leaves the fee in the mortgagor and gives the mortgagee only a lien, though it purports to be a grant of the fee to the mortgagee. A case decided a half century later, Bank of Wrangell v. Alaska Asiatic Lumber Mills,[4] takes the same view. Bank of Wrangell relies on a territorial statute which has been carried over into our state statutes. In its present form, this statute says:
A mortgage of real property is not a conveyance which will enable the owner of the mortgage to recover possession of the real property without foreclosure and sale.[5]
Statutes denying the mortgagee a right of possession until foreclosure are generally taken as indicative of a legislative intent that a mortgagee should have only a lien, not legal title.[6] The lien theory is said to mark "a distinct advance in legal ideas" over the "crude conception" of the title theory.[7]
The Alaskan territorial view is in accord with the national trend toward lien theory. In light of our territorial precedents, likely reliance thereon, and the provisions of AS 09.45.680, we believe that the territorial view that mortgages in Alaska convey to the mortgagee only a lien, not any sort of title, should be retained.
A deed of trust is "a mortgage in effect,"[8] being only a somewhat different device for accomplishing the same purpose, creating a security interest in land. Our statutes require deeds of trust to be recorded *832 like mortgages[9] and provide that a sale under a deed of trust transfers the trustor's title. From this it could be implied that the trustor's title is not transferred by mere execution of a deed of trust but only by a sale after default. In view of these provisions, we think the lien theory ought to be applied to deeds of trust as well as to mortgages in the ancient two-party form. We see no reason to apply lien theory only to one of these two functionally similar security devices. While some jurisdictions apply lien theory to mortgages and title theory to deeds of trust, many others hold that whichever theory applies to mortgages should carry over to deeds of trust.[10] We therefore hold that a deed of trust does not move title out of the trustor, but only creates a lien.
Having determined that a deed of trust conveys only a lien, we could at this point simply follow the Stearns-Roger[11] line of cases, holding that the beneficiary of a deed of trust does not have the "interest in the land" required by AS 34.35.065, so need not and cannot protect his priority by a notice of nonresponsibility. The same word often has different meanings dependent on its context, however, and mortgages for some purposes are held to convey an interest in land even in lien theory states.[12] To arrive at a reasonable construction of "interest in the land," we look at AS 34.35.065, our notice of nonresponsibility statute, and to AS 34.35.060 which establishes lien priorities in order to determine what the legislature intended.
The priorities section, AS 34.35.060, provides that a mechanics' lien takes priority over "a lien, mortgage, or other incumbrance" which attaches after the work is started[13] or the materials are furnished, or which is unrecorded at that time.[14] AS 34.35.060 further establishes that a mechanics' lien
in favor of a person actually performing labor upon or furnishing material used in a building or other improvement in its original construction is preferred to a prior lien, mortgage, or other incumbrance upon the land on which the building or other improvement is constructed.[15]
AS 34.35.060 thus protects the security of a mortgagee or beneficiary of a deed of trust against mechanics' liens so long as his incumbrance attaches and is recorded before the mechanics' lienor commences his labor or furnishes materials, except where "original construction" is performed. In the case of "original construction," the legislature intended to subordinate to some extent the principle of first in time, first in right, to a social interest in securing mechanics' lienors. This legislative determination may have been based partially on the practical consideration that prior incumbrancers who had loaned money on the security of bare land would not be substantially harmed if laborers and materialmen had priority when they made improvements, and that construction lenders could protect themselves. Construction lenders can protect themselves from mechanics' liens in several ways: they may require their contractors or borrowers to put up a cushion of perhaps a tenth of the loan to be disbursed by the construction lender before the loan funds are disbursed; they may make all payments directly to subcontractors and suppliers; they may make disbursements to the contractors only on production of receipts from the subcontractors and suppliers.[16]
*833 If the lien of a secured party were treated as an "interest in the land" for purposes of AS 34.35.065, the notice of nonresponsibility section, then a secured party could attain priority over a mechanics' lienor on original construction. The legislature in AS 34.35.060(c) provided that mechanics' lienors performing original construction should have priority over earlier security interests. The scheme of priorities ordered by the legislature in the circumstances of original construction would be defeated if beneficiaries of deeds of trust could attain priority over mechanics' lienors by posting notices of nonresponsibility. Absent an instance of original construction, the interests of beneficiaries of deeds of trust are protected by AS 34.35.060(a) and AS 34.35.060(b), not by AS 34.35.065(b). Mortgagees and beneficiaries of deeds of trust need not post notices of nonresponsibility,[17] and if they do, the notices do not overcome the scheme of priorities established in AS 34.35.060. The notice of nonresponsibility section is designed to protect owners who do not instigate work done on the land,[18] such as lessors whose lessees independently instigate the furnishing of labor or materials.[19]
Though the trial court erroneously relied on First Federal's notices of nonresponsibility as the basis for its decision against Brand on the first three counts of his complaint, the decision need not be reversed. Here the parties stipulated that the work done in regard to Counts I, II, and III was mere alteration and repair of existing buildings, not original construction, and that the deeds of trust to First Federal were recorded before the alteration or repair commenced or the materials were supplied. A beneficiary of a deed of trust whose interest attaches and who records before any alteration or repair begins or materials are furnished has priority over a mechanics' lienor except in the case of original construction under AS 34.35.060. We therefore affirm the trial court's holding that First Federal was prior in regard to the liens claimed under Counts I, II, and III of the complaint.
Concerning First Federal's appeal, the trial court found that Frank Green's testimony as to having posted a notice of nonresponsibility for the bank was not believable. This finding seems to have been the basis for the trial court's judgment in favor of Brand on Count IV. First Federal appeals the judgment on the ground that the court erred in refusing to believe Frank Green's testimony. The parties stipulated that the work done on the land at issue in Count IV was original construction. Since a mechanics' lienor has priority over the beneficiary of a deed of trust in the case of original construction under AS 34.35.060 (c) regardless of whether the beneficiary of the deed of trust posts a notice of nonresponsibility, error, if any, of the court below in disbelieving the witness would be harmless. We therefore affirm the trial court's decision of the priority issue under Count IV of the complaint.
One additional facet of the appeals remains for disposition. As indicated previously, Brand specifies as error the trial court's refusal to award him costs and an attorney's fee in regard to the single count of the complaint on which he prevailed. No costs or attorney's fees were awarded to either Brand or First Federal. Brand claims he was entitled to costs and attorney's fees on his successful count under AS 34.35.005(b), which provides that:
In an action to enforce a lien, the court shall allow as part of the costs all money paid for drawing the lien and for filing and recording the lien claim, and *834 a reasonable attorney fee for the foreclosure of the lien.
and under AS 34.35.110(b) which provides in part that:
In an action under §§ 50-120 of this chapter the court shall, upon entering judgment for the plaintiff, allow as a part of the costs all money paid for the filing and recording of the lien and a reasonable amount as attorney fees.
The former section applies to liens provided for in sections AS 34.35.050-34.35.425, while the latter applies only to mechanics' liens provided for in sections AS 34.35.050-34.35.120.
First Federal says that Brand was not entitled to costs and an attorney's fee because Brand only prevailed on one count of his complaint, and costs and attorney's fees for his successful Count IV were set off against those costs and attorney's fees which it was entitled to because of its successful defense against Brand's claims in regard to Counts I, II, and III of the complaint.
We think it reasonable to assume that the trial court, despite the mandatory language of AS 34.35.005(b) and AS 34.35.110(b), set off costs and attorney's fees it would have awarded to First Federal for its successful defense of Counts I, II, and III against the statutory costs and reasonable attorney's fee called for by both AS 34.35.005(b) and AS 34.35.110(b).[20] The apparent purpose of these statutes is to facilitate enforcement by mechanics' lienors of their rights by giving them an assurance of costs and attorney's fees if they prevail in their foreclosure actions. On the facts of this record, we do not believe that the trial court's determination that neither party was entitled to an award of costs or attorney's fees necessarily frustrated this purpose.[21] We affirm the trial court's refusal to award either party costs or attorney's fees.
Affirmed.
BONEY, C.J., and ERWIN, J., not participating.
NOTES
[1] AS 34.35.055(a).
[2] Rizo v. MacBeth, 398 P.2d 209 (Alaska 1965).
[3] 1 Alaska Fed. 542, 550, 85 F. 896 (D. Alaska 1898).
[4] 12 Alaska 338, 346, 84 F. Supp. 1 (D. Alaska 1949).
[5] AS 09.45.680.
[6] 5 H. Tiffany, The Law of Real Property 233 (3d ed. 1939).
[7] Id. at 234.
[8] R. Powell, The Law of Real Property 553 (1970).
[9] AS 34.20.110.
[10] 36 Am.Jur., Mortgages § 179 (1941).
[11] Stearns-Roger Mfg. Co. v. Aztec Gold Min. & Mill Co., 14 N.M. 300, 93 P. 706, 712 (1908); see also Annot., 123 A.L.R. 7, 24-27 (1939).
[12] 3 R. Powell, The Law of Real Property 560 (1970).
[13] AS 34.35.060(a).
[14] AS 34.35.060(b).
[15] AS 34.35.060(c).
[16] Storke & Sears, Subdivision Financing, 28 Rocky Mt. L.Rev. 549, 557 (1956).
[17] Capital Lumbering Co. v. Ryan, 34 Or. 73, 54 P. 1093, 1095 (1898).
[18] Arctic Lumber Co. v. Borden, 4 Alaska Fed. 151, 158, 211 F. 50 (9th Cir.1914), cert. denied, 4 Alaska Fed. 265, 235 U.S. 704, 35 S.Ct. 209, 59 L.Ed. 433 (1914).
[19] Wilson v. Gevurtz, 83 Or. 91, 163 P. 86 (1917). Complications may arise where land sale contracts are used as security devices; see Jameson v. Wurtz, 396 P.2d 68 (Alaska 1964), and Land Dev. Inc. v. Padgett, 369 P.2d 888 (Alaska 1962).
[20] Civ.R. 82(a) (1) provides as to attorney's fees that:
Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount.
AS 09.60.010 and our Rules Governing the Administration of All Courts made provision for the award of other costs.
[21] Our decision makes unnecessary decision of some interesting aspects of AS 34.35.005(b) and AS 34.35.110(b). These statutes were taken, without significant change, from the laws of Oregon. At the time they were adopted for the Territory of Alaska, and subsequent thereto, the courts of Oregon had consistently held that the lien claimant carried the burden of both alleging and proving the reasonable amount of attorney's fees he was entitled to on foreclosure. State v. Ganong, 93 Or. 440, 184 P. 233 (1919). Absent these prerequisites, it was held that the claimant was not entitled to an award of attorney's fees. It further appears that the statutes were construed as granting some discretion in the courts in regard to the determination of a reasonable attorney's fee. Sparhawk v. Stevens, 162 Or. 375, 91 P.2d 1116, 1118 (1939). Also of interest is Cascaden v. Winbish, 161 F. 241, 244-245 (9th Cir.1908). There the Ninth Circuit upheld the constitutionality of these statutes in the face of an equal protection attack. In that case it was asserted that the provisions for the award of costs and attorney's fees only to lien claimants was constitutionally impermissible.
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444 N.W.2d 772 (1989)
Duane Eddie WRIGHT-BEY, Applicant-Appellant,
v.
STATE of Iowa, Resister-Appellee.
No. 88-17.
Court of Appeals of Iowa.
May 23, 1989.
*773 Stephen J. Rapp, Waterloo, for applicant-appellant.
Thomas J. Miller, Atty. Gen., Sarah J. Coats, Asst. Atty. Gen., and Scott Lemke, Asst. County Atty., for resister-appellee.
Considered by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ., but decided en banc.
SACKETT, Judge.
In this appeal from denial of postconviction relief we address the claim of defendant, a black man, he was denied effective assistance of counsel because his trial attorney failed to challenge the State's peremptory challenges which excluded the only two nonwhite persons from the jury panel. Because we find defendant has failed to meet his burden of showing if the challenge had been made there was a reasonable probability the outcome of his trial would have been different, we affirm his conviction.
Defendant in 1984 was tried and convicted of first-degree murder. His postconviction challenge deals exclusively with the jury selection procedure. The parties agree the jury selection process proceeded as follows: The names of thirty-two persons were drawn as jurors. No one was excused for cause. The State had ten strikes and the defendant had ten strikes. Of the thirty-two persons on the panel, two were nonwhites. One nonwhite was a woman of Korean ancestry and the second was a black man. Two of the ten State's strikes were used to strike the woman of Korean ancestry and the black man. No challenge was made to the jury selection procedure.
Two persons testified at the postconviction proceedings. Defendant's trial attorney testified in his behalf and the former Black Hawk County Attorney who handled defendant's trial testified for the State. Defendant also introduced the report of an investigator who had identified the race of the thirty-two persons drawn as jurors.
Defendant's trial attorney testified he had been involved in criminal defense work in Black Hawk County since 1975. During some of that period he was involved to an extensive degree and at other times he was involved to a lesser degree in the defense of persons charged with criminal offenses. He had represented defendants in at least three murder trials and had considerable involvement in other cases, including a number of Class A felonies. In the course of his exposure to the criminal practice in Black Hawk County, he was only aware of one time when a black served as a juror in a criminal trial and the black who served as a juror had a brother in the Black Hawk County Attorney's office. Based on his observations, it was his opinion the Black Hawk County Attorney's office would use its strikes to strike black jurors when blacks were on the panel. He further testified there were not as many blacks on jury panels as are seen on the streets and in stores. He testified when both nonwhites were stricken from defendant's jury panel he felt it was not fair but did not object.
The former county attorney testified he generally kept notes on jury selection but his notes on the selection of this panel could not be located. No reasons were offered by him for striking the nonwhite jurors. He did not recall any black persons on the panel. He said in exercising his strikes he generally considered education, stability, prior legal difficulties and knowledge of the parties and witnesses. He said at the time of trial his office had no policy on blacks serving as jurors in Black Hawk County.
The county attorney was asked about blacks on panels. He said he never knew of more than four having their names *774 drawn for any one trial. He was in the Black Hawk County Attorney's office for about seven years and said he had several cases where blacks served on juries.
In Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1716-17, 90 L.Ed.2d 69, 87-88 (1986), the U.S. Supreme Court determined a defendant establishes a prima facie case of discriminatory selection of the jury panel where (1) the defendant has shown him or herself a member of a cognizable racial group, see Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510, 1280 (1977), and (2) the State's attorney has exercised peremptory challenges to remove from the jury panel members of defendant's race. Once the defendant has made these showings, the State has the burden to come forward with a neutral explanation for challenging the jurors. In Saadiq v. State, 387 N.W.2d 315 (Iowa 1986), the Iowa court applied the dictates of Batson and remanded to the trial court for a hearing to determine whether the prosecutor did or did not purposely discriminate in striking a black juror. Saadiq, 387 N.W.2d at 329.
Defendant recognizes and we find the dictates of Batson are not applicable to this challenge. In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987), the court determined the rule in Batson was only applicable to litigation that was pending on direct state or federal review or was not yet final when Batson was decided on April 30, 1986. See also Teague v. Lane, 489 U.S. ___, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Procedendo was filed in this case on December 5, 1985, following the denial of defendant's appeal by the Iowa Supreme Court. This appeal, therefore, is governed by the dictates of an earlier case, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), unlike Saadiq,[1] 387 N.W.2d at 315, where the issue of the jury selection was not addressed on direct appeal until May 1986.
In Garrett v. Morris, 815 F.2d 509 (8th Cir.1987), the 8th circuit was confronted with a challenge to the State of Missouri's use of peremptory challenges to exclude all black jurors from a petit jury panel at Garrett's first-degree murder trial. The court determined the dictates of Swain were applicable and clearly articulated the burden a defendant carries under Swain when they said:
Under Swain, a defendant can make out a prima facie case of purposeful discrimination on proof that the prosecutor perverted the peremptory-challenge system by using his challenges "to exclude blacks from the jury `for reasons wholly unrelated to the outcome of the particular case on trial,' or to deny to blacks `the same right and opportunity to participate in the administration of justice enjoyed by the white population.'" Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69 (1986), quoting Swain, 380 U.S. at 224, 85 S.Ct. at 838. Swain nevertheless does not require an inquiry into a prosecutor's reasons for exercising his challenges in any particular case, holding instead that a presumption exists that the prosecutor is using the State's challenges to obtain a fair and impartial jury. 380 U.S. at 222, 85 S.Ct. at 837. That presumption may be overcome by showing that the prosecution has systematically excluded blacks from petit juries over a period of time, id. at 223-24, 85 S.Ct. at 837-38, but a defendant cannot, under Swain, establish an equal-protection violation "solely on proof of the prosecutor's use of peremptory challenges to strike black jurors at the defendant's own trial." Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 710, 93 L.Ed.2d 649 (1987).
Garrett, 815 F.2d at 511 (emphasis added).
Additionally, a defendant can raise an inference of purposeful discrimination if he or she shows the prosecutor in the county where the trial was held "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or *775 the victim may be," has been responsible for the removal of qualified blacks who had survived challenges for cause, with the result that no blacks ever served on petit juries. Swain, 380 U.S. at 223, 85 S.Ct. at 837, 13 L.Ed.2d at 774.
In examining defendant's challenge, we start with the presumption the State used its strikes to obtain a fair and impartial jury. Swain, 380 U.S. at 222, 85 S.Ct. at 837, 13 L.Ed.2d at 773. Defendant to overcome the presumption must show the State has systematically excluded blacks from juries over a period of time. Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38, 13 L.Ed.2d at 774. Defendant contends he has done this by showing through his trial attorney the practice of the Black Hawk County attorney's office was to strike all blacks. The State argues defendant did not meet his burden because defendant's evidence did not particularly deal with the cases tried by the county attorney who prosecuted defendant.
We look at the conduct of the county attorney's office in Black Hawk County in total. The office operates under the direction of the county attorney. See Iowa Code § 331.756 (1987). The county attorney is the one in whom official discretion and power are vested and his assistants operate under his supervision and direction.
The State next contends we should discount the testimony of defendant's trial attorney because his testimony does not refer to specific cases. We find the two attorneys testifying each has had substantial contacts with criminal trials in Black Hawk County. Neither attorney named a specific trial where nonwhites served or were stricken as jurors. We find their testimony to be very similar. Both men are credible witnesses. We recognize neither has named specific cases. Identifying nonwhite jurors on other Black Hawk county panels is difficult. The racial identity of the panel members here was learned only after an investigator had made contact with each juror and/or a person or persons who knew each juror. From the testimony of both attorneys we determine situations where nonwhites have served on criminal juries in Black Hawk County have been practically nonexistent.
Having found few nonwhites to have served on jury panels in Black Hawk County, we must decide whether defendant has shown this exclusion is the result of the State's systematic exclusion of nonwhites over a period of time. See Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38, 13 L.Ed.2d at 774-75. The State argues defendant has not because the exclusion of only two nonwhites from the panel did not show a pattern.
The State by excluding the two nonwhites excluded all the minorities. When there are only two nonwhites on a panel, striking the two nonwhites is very significant because it changes the panel from a panel with minority representation to a panel with no minority representation. When there are few minorities on a panel, it is significant when even one is stricken. Having determined the two strikes were significant because of the absence of minorities on the panel, we must consider the panel composition in our assessment.
Defendant raised in the trial court a second ineffective assistance claim based on his trial attorney's failure to challenge the jury panel because the Black Hawk County auditor failed to comply with changes made in 1976 Iowa Acts chapter 1235 which increased the population base from which jury panels are chosen. See Cooper v. State, 379 N.W.2d 917, 918 (Iowa 1986). Said changes were thought to further assure a defendant a jury drawn from a representative cross section of the community and a jury which did not systematically exclude an identifiable segment of society. See Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690, 696 (1975); Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184, 193 (1972).
Defendant has argued this issue on appeal only to preserve the issue for further review in the federal court. Defendant recognizes the Iowa court in Cooper, 379 N.W.2d at 918-19, rejected defendant Cooper's contention the use of the incorrect procedure for selection of a jury in Black *776 Hawk County required a reversal of his conviction. Id. Cooper did not address the issue of racial imbalance but dismissed Cooper's challenge because he showed no prejudice and nothing more than violation of the statute. Cooper, 379 N.W.2d at 318-19. The defendant has not asked us to consider on the issue of racial imbalance the failure of Black Hawk County to follow statutory directives.
We determine defendant has met the burden of showing a pattern in Black Hawk County of excluding blacks from criminal jury service in case after case. We find except in rare cases minorities are stricken on peremptory challenges.[2] The State has not rebutted the presumption and offered a genuine, constitutionally permissible trial-related reason for taking both nonwhites off defendant's jury panel. See Garrett, 815 F.2d at 511. In fact, the State has offered no reason for taking the jurors off.[3]
In making this determination we recognize the population of this state includes a relatively small percentage of minorities. The scarcity of minorities contributes in a large part to their absence from jury panels particularly in the rural areas of this state. Black Hawk County, however, has the cities of Cedar Falls and Waterloo and there are a significant number of nonwhites in Black Hawk County. A black person is a member of a minority in this state. A jury chosen to decide his fate should not harbor or exercise racially discriminatory prejudices toward him. The chances such prejudices may be overt is significantly lessened when the jury panel represents diverse backgrounds.
Defendant's trial attorney bluntly summarized the need for nonwhite jurors when the defendant is a nonwhite when he said:
[A]nd when they (black jurors) do appear, at least I'm always happy to see them, which stops the overt racism which we still have in Waterloo, `Well the nigger must have done it.' When there is a black on the jury they can't say that, so I'm always happy when I see them on the panel and they get struck by the State, you know, it always, `there it goes.'
Our inquiry does not end here. A Swain claim not raised on direct appeal cannot be raised for the first time in collateral proceedings unless the defendant can show cause for the default and prejudice resulting therefrom. See Teague v. Lane, 489 U.S. ___, ___, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334, 347 (1989). See also Wainright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2507-2509, 53 L.Ed.2d 594, 608-11 (1977). Defendant contends the issue was not raised at trial because his trial counsel was not effective. In order to prevail on a claim of ineffective assistance of counsel defendant must show a specific act or omission where "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
To establish prejudice, defendant must show there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Defendant does not argue nor has he attempted to establish but for the failure to object to the challenge to the nonwhite jurors the result would have been different. Defendant failed to meet the second prong of a claim of ineffective assistance of counsel. We therefore must affirm the conviction.
We recognize jury selection in this case predates Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Cooper v. State, 379 N.W.2d at 917. These cases should result in greater minority representation on jury panels. We trust we will see greater involvement by nonwhites on jury panels in Black Hawk County.
*777 Because of our small minority population we may have to take additional affirmative steps to assure minority representation on jury panels, particularly where a nonwhite is a defendant or litigant. We are a state whose courts have lauded their fair treatment of minorities and sensitivity to the problems of minorities.[4] Our strong history of fairness demands constant vigilance.
AFFIRMED.
All Judges concur except SCHLEGEL, P.J., who dissents; HABHAB, J., who specially concurs.
SCHLEGEL, Judge (dissenting).
I certainly applaud the conclusion of the majority in its determination that the defendant has met the burden of showing a pattern in Black Hawk County of excluding blacks from criminal jury service. I agree that the showing is in accord with the holding in Garrett v. Morris, 815 F.2d 509 (8th Cir.1987), where the court held that the presumption that the prosecutor is using the State's challenges to obtain a fair and impartial jury may be overcome "[b]y showing that the prosecution has systematically excluded blacks from petit juries over a period of time." Id. 380 U.S. at 223-24, 85 S.Ct. at 837-838, 13 L.Ed.2d 774-775.
After taking this courageous stand, however, the majority applies the well-known test of State v. Miles, 344 N.W.2d 231, 233-34, and Washington v. Strickland, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984), for the proposition that even if the defendant's counsel was wrong in failing to make the objection to the jury panel, the defendant has failed to show there is a reasonable probability the result of the proceeding would have been different. Furthermore, the majority allows the limitation of Griffith v. Kentucky, 479 U.S. 314, 318, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987), to hold that the Batson doctrine cannot apply retroactively.
I submit that if, as the U.S. Supreme Court has recognized in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, 87-88 (1986), the effort to determine the prosecutor's practice in all cases was too difficult, surely it is not reasonable to require the defendant to prove that had his counsel objected to the jury panel, resulting in a new and different jury, that jury would have given him anything more than a fair trial. Asking a defendant to prove that but for the error of his counsel in this type of case, he would have been acquitted is far beyond his ability. The result, then, is that if such an objection is made at trial, the defendant's rights are preserved, whereas, if his counsel fails to raise the issue, the defendant cannot make the requisite showing and his rights are forever lost. In this type of case, the two-pronged test of Strickland is inappropriate.
In Teague v. Lane, 489 U.S. ___, ___, 109 S.Ct. 1060, 1072-1073, 103 L.Ed.2d 334, 353 (1989), the United States Supreme Court adopted the philosophy of Justice Harlan in Mackey v. United States, 401 U.S. 667, 689, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971): "It is `sounder, in adjudicating habeas petition, generally to apply the law prevailing at the time a conviction became final than to seek to dispose of [habeas] corpus on the basis of intervening changes.'" He went on to identify only *778 two exceptions to his general rule of nonretroactivity for cases on collateral review (habeas corpus actions). The second exceptionrelevant hereis explained as follows:
A new rule should be applied retroactively if it requires the observance of "those procedures that ... are implicit in the concept of ordered liberty." (Citation omitted.)
Teague, 489 U.S. at ___, 109 S.Ct. at 1075, 103 L.Ed.2d at 356.
What is the "concept of ordered liberty" to a black person subjected to the discriminatory practice of the preemptory challenge of all black veniremen, is quite likely different than that concept of ordered liberty to a white person seated in front of an all-white jury. The need for a retroactive application of Batson is required in this case.
I note the footnote at the end of the opinion of the majority, and celebrate with the majority the history of Iowa's leadership in the field of equal rights for all its citizens. I would continue that same leadership in this case and would grant the defendant a new trial, free from the pall of discrimination, by practices which both diminish his right to a fair trial and degrade his race.
I would reverse and remand for a new trial.
HABHAB, Judge (specially concurring)
I specially concur.
NOTES
[1] Saadiq was a consolidation of a direct appeal and an appeal from the denial of a petition for postconviction relief.
[2] Obviously, the problem is magnified by the general absence from panels of black jurors.
[3] The only reason advanced was by one of the jurors who told the investigator she may have been taken off because of a language problem.
[4] The state of the Iowa judiciary address (delivered by the Honorable Arthur A. McGiverin, Chief Justice of the Supreme Court of Iowa, before a joint convention of the seventy-third general assembly January 11, 1989.) * * * Last year, we Iowans celebrated the 150-year anniversary of our territorial government. The judicial branch commemorated this anniversary by looking back upon 150 years of justice-150 years of leading the nation in protecting the rights of our citizens. Let us briefly consider some of these decisions. * * * In 1839, 24 years prior to the signing of the emancipation proclamation, the Iowa Supreme Court, in its first case, determined that freedom in this state extended to everyone and when a slave was brought here that person thereby became free; In 1868, the court ruled that a child could not be refused admission to a common school "because of his or her color, nationality, religion or the like;" In 1869, our court became the first in the nation to admit a woman to the practice of law; and In 1873 the court ruled that racial discrimination in public accommodations violated the constitutional right to equal protection of the laws. There also have been many other hallmarks of justice in Iowa over the years that are too numerous to mention.
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89 N.J. 595 (1982)
446 A.2d 871
E.E.B. AND J.E.B., HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
D.A. A/K/A D.M. AND J.M. AND CHILDREN'S SERVICES DIVISION, HOLMES COUNTY, DEPARTMENT OF PUBLIC WELFARE, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued January 26, 1982.
Decided June 21, 1982.
*598 Edward Emmett O'Farrell, a member of the Ohio Bar, argued the cause for appellants D.A. a/k/a D.M. and J.M. (John D. Atlas, Director, Passaic County Legal Aid Society; Madeline L. Houston, on the brief).
Donald M. Ferraiolo argued the cause for appellant Children's Services Division, Holmes County, Department of Public Welfare (Faro & Ferraiolo, attorneys).
Joseph T. Afflitto argued the cause for respondents (Diamond, Diamond & Afflitto, attorneys).
The opinion of the Court was delivered by POLLOCK, J.
The issue on this appeal is whether the courts of New Jersey have jurisdiction to determine the best interest of a child in an interstate custody dispute. In this case, prospective adoptive parents seek to retain custody of a three and one-half year old girl who has lived with them since six days after her birth. The Chancery Division determined that the best interest of the child was to remain with the adoptive parents. Previously, the natural mother had obtained a writ of habeas corpus from the Holmes County Juvenile Court in Ohio, the state of residence of the mother and adoptive parents at the time of the child's birth. In that proceeding, the Ohio courts determined the natural mother's right to custody and, without conducting a best interest hearing, ordered the return of the child to her.
We must determine whether the decision of the Chancery Division gave proper effect to the Ohio determination in light of the full faith and credit clause, U.S.Const., Art. IV, § 1, the Parental Kidnapping Prevention Act of 1980, § 8, 28 U.S.C.A., § 1738A (PKPA), and the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52 (UCCJA). We conclude that, by *599 declining to determine the best interest of the child, Ohio enabled the New Jersey courts to modify the determination without violating the full faith and credit clause or the federal and state statutes.
I
In the vortex of this interstate child custody dispute is a little girl. She was born in Ohio on October 13, 1978 and has lived in New Jersey since October, 1979. A month before the child's birth, her natural mother consulted with the Ohio Welfare Department concerning relinquishment of the child at birth. On October 16, 1978, three days after the child's birth, the natural mother and father, who were unmarried, signed a sworn "Permanent Surrender of Child" form that surrendered custody of the child to the Holmes County Welfare Department. Three days later the Department delivered the child to the prospective adoptive parents. On October 23, 1978, one week after signing the surrender form, the natural mother appeared at the Department and orally revoked the surrender. Nonetheless, the Department did not inform the Ohio Juvenile Court of the revocation, and that court approved the surrender on the following day.
Two months later, on December 29, 1978, the mother instituted a habeas corpus proceeding to obtain custody of the child. The natural father did not join in the Ohio proceeding, but is joined as a defendant in the present proceeding. In February, 1979, the Ohio Juvenile Court rendered a written opinion finding that the mother had validly consented to the surrender and denying the writ. The Ohio Court of Appeals affirmed that decision in June of 1979. In both courts, the adoptive parents not only opposed the issuance of the writ, but sought a best interest hearing for the child.
On July 23, 1979, the mother filed an appeal to the Supreme Court of Ohio. In October, 1979, while the case was pending before that Court, the adoptive parents and the child moved *600 from Ohio to New Jersey because the father, a clergyman, had been appointed pastor of a church in Wayne, New Jersey. Before leaving Ohio, the adoptive parents notified the Department of their plans and continued to communicate with the Department throughout the proceedings.
On July 23, 1980, the Ohio Supreme Court reversed and remanded the matter to the Juvenile Court. 63 Ohio St.2d 227, 407 N.E.2d 524 (1980). The Supreme Court concluded that the natural mother had revoked her consent before the Juvenile Court approved the surrender of the child to the Department. Id. at 229-31, 407 N.E.2d at 526-27. The adoptive parents filed a motion with the Ohio Supreme Court for a rehearing, asserting that the Court should have remanded the case to the Juvenile Court "to conduct a best interest hearing prior to any decision as to whether the writ of habeas corpus should issue."
While the motion for rehearing was pending, the Juvenile Court held an informal meeting attended by counsel for the natural mother, counsel for the Department and counsel for the adoptive parents. At the meeting, counsel for the adoptive parents stated that if the Ohio Supreme Court denied the motion, he would nonetheless press for a best interest hearing before the Juvenile Court. On September 12, 1980, the Ohio Supreme Court denied the motion for rehearing, and on September 23, 1980 the Juvenile Court issued the writ of habeas corpus.
The adoptive parents instituted this action for custody on September 29, 1980 in the Superior Court of New Jersey, Chancery Division. On December 1, 1980, the Chancery Division found that it had jurisdiction and ordered a best interest hearing. Although the Appellate Division denied the natural mother's motion for leave to appeal, we directed the Appellate Division to review the Chancery Division's finding of jurisdiction. In an unpublished opinion, the Appellate Division sustained the finding of jurisdiction of the New Jersey courts. We denied a motion for leave to appeal.
*601 Simultaneously with the remand to the Appellate Division, we remanded the matter to the Chancery Division for an expedited best interest hearing. 85 N.J. 503 (1981). Underlying our remand to the Chancery Division was the need for a hearing to resolve the competing claims of the natural mother and adoptive parents in the best interest of the child. We remanded out of a profound respect for the ties that normally bind natural parents and child. See Santosky v. Kramer, ___ U.S. ___, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (in an action determining rights of parents in natural child, due process requires proof of "permanent neglect" by clear and convincing evidence). Nonetheless, we also recognized that the psychological bonding between adoptive parents and child may become stronger than natural ties. Sorentino v. Family & Childrens Soc. of Elizabeth, 74 N.J. 313, 322-25 (1977); Sees v. Baber, 74 N.J. 201, 222-23 (1977).
Although duly notified, neither the mother nor her attorney appeared or participated in the best interest hearing in the Chancery Division. After appointing a guardian ad litem for the child, the Chancery Division concluded that her best interest was to remain with the adoptive parents. The guardian ad litem for the child supports that conclusion. On this appeal, the natural mother, who has never seen the child, does not challenge the finding that the best interest of the child is to remain with the adoptive parents, and we accept that finding.
Before us, the natural mother contends that under the full faith and credit clause, PKPA, and UCCJA, the Ohio decree precluded the New Jersey courts from considering the best interest of the child. The adoptive parents do not seek to relitigate the invalidity of the natural mother's surrender of the child. They accept that determination, but contend that because Ohio declined to conduct a best interest hearing, the New Jersey courts may determine the best interest of the child.
To summarize, although all parties resided in Ohio at the time of the commencement of the habeas corpus proceeding, by the time of the final decision of the Ohio courts, only the natural *602 mother remained in Ohio. Long before the commencement of the New Jersey proceedings, the adoptive parents and the child resided in New Jersey. The adoptive parents left Ohio for New Jersey not to evade an Ohio court order, but because of a change in the father's employment. They commenced the New Jersey proceeding only after the Ohio courts declined to order a best interest hearing.
We granted certification to re-examine the jurisdiction of New Jersey courts in interstate custody disputes in light of the significant changes in both federal and state legislation since our decision in Borys v. Borys, 76 N.J. 103 (1978). We now affirm the judgment of the Appellate Division that the New Jersey courts may conduct a best interest hearing.
II
At the outset, our attention centers on the confluence of the full faith and credit clause, PKPA, and UCCJA. We proceed in waters uncharted by the United States Supreme Court, which has declined to determine whether custody decrees are entitled to full faith and credit and has not yet construed PKPA. In analyzing PKPA and UCCJA, we must determine the extent to which they affect our decision in Borys that custody decrees are not entitled to full faith and credit.
In determining whether the New Jersey courts may conduct a best interest hearing, the first question is whether the full faith and credit clause requires our courts to follow the Ohio decision. That clause provides:
Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. [U.S.Const., Art. IV, § 1.] See 28 U.S.C.A. § 1738.
Although interstate custody decrees arise with increasing frequency, the United States Supreme Court has refrained from determining whether custody decrees are entitled to full faith and credit in all circumstances. See Webb v. Webb, 451 U.S. *603 493, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981) (applicability of full faith and credit to foreign custody decree dismissed on jurisdictional grounds because of failure to preserve federal question in state court); Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962) (custody settlement not res judicata as a matter of state law); Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958) (forum state should give custody decree same effect as rendering state; because of changed circumstances, forum state need not give full faith and credit to custody decree from rendering state); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (rendering state did not obtain personal jurisdiction of mother and forum state not obliged to give full faith and credit to ex parte award of custody to father because child custody subject to strong local policies that outweigh demands of full faith and credit).
Confronted with the silence of the United States Supreme Court, litigants in custody disputes were tossed on a sea of uncertainty. In that setting, we concluded that the welfare of children in New Jersey could be protected better by treating foreign custody decrees as an exception to the full faith and credit clause. Borys v. Borys, supra, 76 N.J. at 120. Legislative efforts have taken a different tack. UCCJA sought to protect the welfare of children in interstate custody disputes by introducing certainty and stability in the choice of forum and by encouraging interstate cooperation in the interest of the child. UCCJA § 2; N.J.S.A. 2A:34-29. PKPA addresses the same concerns as UCCJA and determines as a matter of federal law the extraterritorial effect of foreign custody decrees.
To the extent that they limit the discretion of forum states to ignore foreign custody decrees, PKPA and UCCJA modify Borys, supra. As its title suggests, one of the purposes of PKPA was to deter interstate abduction of children by contesting parents in custody disputes. PKPA, however, has a broader reach and applies not only to abductions by parents, but to disputes between all persons who seek custody of a child. See Pub.L.No. 96-611, § 7, 94 Stat. 3568.
*604 For our purposes, the key provision of PKPA is section 8, 28 U.S.C.A. § 1738A.[1] It requires the courts of every state to enforce a child custody determination of a sister-state[2] made consistently with the provisions of the Act.[3] 28 U.S.C.A. § 1738A(a). Thus, the Act seeks to eliminate the incentive for a parent to remove a minor child to another jurisdiction while *605 shopping for a sympathetic forum. See Parental Kidnapping Act: Hearings on H.R. 1290 Before the Subcommittee on Crime of the House Committee on the Judiciary, 96th Cong., 2d Sess. 81 (1980) (Statement of Mark M. Richard, Deputy Assistant Attorney General).
To ascertain whether PKPA applies to this controversy, we turn first to the definition of a "custody determination", which includes "an order of a court providing for the custody" of a child. 28 U.S.C.A. § 1738A(b)(3). The Ohio writ of habeas corpus, which directed the adoptive parents "to present" the child to the mother at the Department, satisfies that definition. Furthermore, that determination was consistent with the PKPA. The child was living in Ohio during the commencement of the Ohio proceedings and the courts had jurisdiction under Ohio law. Therefore, the critical question is whether New Jersey courts have violated the Act by not enforcing the Ohio writ.[4]
In child custody determinations Ohio, like New Jersey, emphasizes the best interest of the child. See In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034, 1038 (1979). To protect this important interest, Ohio permits a hearing before executing a writ of habeas corpus concerning custody of a child. In re Hua, 62 Ohio St.2d 227, 233, 405 N.E.2d 255, 260-61 (1980); In re Haws, 64 Ohio App.2d 168, 168, 411 N.E.2d 802 (1977); In re Young, 58 Ohio St.2d 90, 90, 388 N.E.2d 1235, 1236 (1979); *606 Hughes v. Scaffide, 58 Ohio St.2d 88, 89, 388 N.E.2d 1233, 1234 (1979); In re Messner, 19 Ohio App.2d 33, 37, 249 N.E.2d 532, 535 (1969); In re Howland, 115 Ohio App. 186, 184 N.E.2d 228, 230 (1961). But see In re McTaggart, 2 Ohio App.2d 214, 222, 207 N.E.2d 562, 567 (1965). Thus, Ohio would permit modification of a writ of habeas corpus based on the best interest of the child. Because Ohio did not modify its decree, we must determine whether New Jersey may modify the decree in the best interest of the child.
Before PKPA, the New Jersey courts could have modified the Ohio decision because that decision was subject to modification in Ohio. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 906, 91 L.Ed. 1133 (1947). PKPA permits the courts of the forum state to modify the custody determination of another state on two conditions: the forum has jurisdiction over the matter and the other state has either lost jurisdiction or has declined to exercise it. 28 U.S.C.A. § 1738A(f). New Jersey, which has been the home of the child and parents for nearly three years, clearly has jurisdiction of the subject matter. Thus, the question is whether, by failing to grant a best interest hearing, the Ohio courts declined to exercise jurisdiction to modify the decree awarding custody to the natural mother.
Notwithstanding repeated requested by counsel for the adoptive parents, expressed most vividly in the motion for rehearing before the Ohio Supreme Court, no court in Ohio has determined the best interest of the child. Without making an express determination, the Ohio Supreme Court declined to order a best interest hearing both in its original decision and in its denial of the motion for rehearing. Possibly that Court contemplated, in light of its decision in In re Hua, supra, that the Juvenile Court would conduct a best interest hearing before issuing the writ. The Juvenile Court, however, proceeded to issue the writ without considering the best interest of the child. Perhaps, that court failed to conduct a best interest hearing because it recognized that neither the adoptive parents nor the child resided any longer in Ohio. We need not dwell on these speculations because *607 the clear implication is that the Ohio courts declined to exercise jurisdiction to conduct a best interest hearing.
We hold that Ohio's failure to conduct a best interest hearing constitutes a refusal to exercise jurisdiction under 28 U.S.C.A. § 1738A(f)(2). Under PKPA, therefore, New Jersey is free to modify the Ohio decree. This result comports with the congressional intent that child custody decisions be made in the state best able to determine the best interest of the child. See Pub.L.No. 96-611, § 7, 94 Stat. 3568.
III
The authority of the New Jersey courts to conduct a best interest hearing is controlled not only by PKPA, but also by UCCJA. Like PKPA, UCCJA attempts to bring order to the preexisting chaos in interstate child custody disputes. Commissioners' Prefatory Note to UCCJA, 9 U.L.A. at 114 (1979). Indeed, the National Conference of Commissioners on Uniform State Laws proposed UCCJA in response to the "public concern over the fact that thousands of children are shifted from state to state and from one family to another every year while their parents or other persons battle over their custody in the courts of several states." Commissioners' Prefatory Note to UCCJA, 9 U.L.A. at 111. To avoid jurisdictional conflicts and the accompanying trauma they inflict on the parties, especially the children, UCCJA urges that one state, albeit with help from others, should determine the issue of custody. UCCJA § 1, N.J.S.A. 2A:34-29.
While UCCJA focuses on custody disputes between family members, its operative provisions are broad enough to include a dispute between a natural parent and adoptive parents. A "custody proceeding" is defined to include a proceeding "in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings." UCCJA § 2(3), N.J.S.A. 2A:34-30(c). Furthermore, custody proceedings include habeas corpus *608 actions and other proceedings under state law to determine custody. See Slidell v. Valentine, Iowa, 298 N.W.2d 599, 601 (1980); UCCJA § 2, Commissioners' Note, 9 U.L.A. 120 (1979). Cf. Oregon ex rel. Butler v. Morgan, 34 Or. App. 393, 395, 578 P.2d 814, 815 (1978) (habeas corpus appropriate to enforce child custody determination). We conclude that the Ohio habeas corpus decree is included within the operative provisions of UCCJA.
At the time of our decision in Borys, the Legislature was considering, but had not enacted, UCCJA. That decision, like UCCJA and PKPA, sought to strike a balance between certainty in the enforcement of custody decrees and the desire to act in the best interest of the child. In the interim, the Legislature has enacted UCCJA, which takes a different approach to interstate custody disputes from that contained in Borys.
Section 3 of UCCJA strikes its balance by setting definite standards and establishing alternative bases for jurisdiction. UCCJA § 3, N.J.S.A. 2A:34-31. Succinctly stated, the four bases of jurisdiction are: (1) the forum is or has been within six months of the proceeding "the home state" of the child[5]; (2) it is in the best interest of the child to proceed in the forum state because the child and family have a "significant connection" to the forum[6]; (3) the child is present in the jurisdiction and is *609 abandoned or threatened with harm ("parens patriae jurisdiction")[7]; or (4) no other state has jurisdiction and it is in the best interest of the child that the forum entertain the dispute.[8]
The first two bases, "home state" and "significant connection" jurisdiction, are the major sources of a court's power to act in an interstate custody dispute. UCCJA § 3, Commissioners' Note, 9 U.L.A. at 123. The courts of the child's home state have jurisdiction, but if there is no home state or if the child and his family have equal or stronger ties with another state, the courts in the latter state have jurisdiction under UCCJA. Id. Some courts and commentators have interpreted section 3 as establishing a priority for home state jurisdiction. See Warman v. Warman, ___ Pa.Super. ___, ___, 439 A.2d 1203, 1209-11 (Super.Ct. 1982); Katz, Child Snatching: The Legal Response to the Abduction of Children, 36-37 (1981). Significant contact jurisdiction, however, "comes into play either when the home state test cannot be met or as an alternative to that test." UCCJA § 3, Commissioners' Note, 9 U.L.A. at 123. Thus, the home state and significant contact tests may produce concurrent jurisdiction in two or more states. In those circumstances, sections 6 and 7 of UCCJA determine the appropriate state to decide custody. See UCCJA § 3, Commissioners' Note, 9 U.L.A. at 123. Although section 6 of UCCJA gives precedence to the action *610 filed first in time, N.J.S.A. 2A:34-34,[9] section 7 permits a court to decline jurisdiction if it determines it is an "inconvenient forum" because there is a closer connection with or substantial evidence in another state." N.J.S.A. 2A:34-35.
Accordingly, we conclude that UCCJA does not contemplate blind obedience to home state jurisdiction. The state to decide a child custody dispute is not necessarily the home state, but the one best positioned to make the decision based on the best interest of the child. See UCCJA § 1(3), N.J.S.A. 2A:34-29(c); Commissioners' Prefatory Note to UCCJA, 9 U.L.A. at 114. Often the home state will also be the state with the most significant contacts with the child. UCCJA, however, rejects a rigid rule vesting jurisdiction automatically in the home state and favors, instead, a more flexible approach. See Foster & Freed, "Child Snatching and Custodial Fights: The Case for the Uniform Child Custody Jurisdiction Act," 28 Hast.L.J. 1011, 1020 (1977).
Thus construed, UCCJA differs from PKPA, which creates a clear priority for the home state. 28 U.S.C.A. § 1738A(c)(2)(A). Under PKPA, jurisdiction may be based on significant contacts only if no state qualifies as the home state. Id. at (2)(B).[10] While PKPA creates a preference for the home state under federal law, it does not significantly disrupt the jurisdictional provisions of UCCJA. PKPA permits a home state to defer jurisdiction to another state on the ground that the other is a *611 more appropriate forum. 28 U.S.C.A. § 1738A(c)(2)(D). In making that determination, the relevant factors are those that UCCJA enumerates as relevant in making a determination of inconvenient forum. UCCJA § 7, N.J.S.A. 2A:34-35. Those factors are, among others:
(1) if another state is or recently was the child's home state; (2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) if the parties have agreed on another forum which is no less appropriate; and (5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 1 of this act.
A custody dispute is more than a jurisdictional chess game in which winning depends on compliance with predetermined rules of play. A child is not a pawn. In exercising its discretion within the confines of UCCJA and PKPA, a court should consider not only the literal wording of the statutes but their purpose: to define and stabilize the right to custody in the best interest of the child.
PKPA and UCCJA also share a common goal of limiting the ability of sister-states to modify custody decrees. Both statutes permit modification only if the forum has jurisdiction and the rendering state has lost jurisdiction or has declined to exercise it. Compare 28 U.S.C.A. § 1738A(f) with UCCJA § 14(a), N.J.S.A. 2A:34-42(a). To the extent jurisdiction continued in Ohio, if at all, the Ohio courts declined to exercise it by refusing to hold a best interest hearing. Because the child and adoptive parents resided in New Jersey for almost a year before commencing the New Jersey action, New Jersey was both the home state and the state with the most significant contacts to the controversy. Thus, under both PKPA and UCCJA, New Jersey could modify the Ohio writ.
Both statutes define and limit the discretion of courts in recognizing sister-state decrees. Both restrict the jurisdiction to modify decrees of other states and remove, in many instances, the presence of the child as the sole basis for jurisdiction. *612 Nevertheless, like Borys, the statutes continue to recognize the crucial importance of considering the best interest of a child in an interstate custody dispute.
In retrospect, the Chancery Division would have been well advised to communicate with the courts in Ohio to determine whether Ohio courts expressly declined jurisdiction. In this case, however, the failure to communicate is understandable and excusable. PKPA was not in effect on December 1, 1980, when the Chancery Division decided that it had jurisdiction to conduct a best interest hearing, and UCCJA does not require communication with a sister-state that has declined to assume jurisdiction. See UCCJA § 6, N.J.S.A. 2A:34-34. Thus, the Chancery Division should not be criticized for the failure to communicate with the Ohio courts. In future cases, when there is doubt whether a sister-state has continuing jurisdiction or has declined to exercise it, the better practice would be to communicate with the courts of the sister-state. This interstate cooperation comports with the purposes of both statutes and assures a cooperative effort to achieve the best result for the child. See Bowden v. Bowden, 182 N.J. Super. 307, 314-15 (App.Div. 1982).
The judgment of the Appellate Division is affirmed.
For affirmance Chief Justice WILENTZ, and Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O'HERN 7.
For reversal None.
NOTES
[1] Other sections of PKPA amend the Social Security Act to provide for a parent locator service, Pub.L.No. 96-611, § 9, 94 Stat. 3571 (amending various sections of 42 U.S.C.A.), and explicitly apply the Fugitive Felon Act to parental kidnapping. Pub.L.No. 96-611, § 10, 94 Stat. 3573.
[2] A child custody determination is a "judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications." 28 U.S.C.A. § 1738A(b)(3).
[3] A child custody determination is made consistently with the Act if:
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
[28 U.S.C.A. § 1738A(c)]
[4] Although not raised by the parties, a question exists concerning the effective date of 28 U.S.C.A. § 1738A. In section 2 of Pub.L.No. 96-611 it states: "The amendments made by this Act shall take effect on, and apply to services furnished on or after July 1, 1981." This issue has caused courts some difficulty. See Kumar v. Santa Clara County Superior Court, 124 Cal. App.3d 1003, 177 Cal. Rptr. 763, 767 n. 9 (1981) (date on which PKPA became effective subject to doubt); State ex rel. Valles v. Brown, N.M., 639 P.2d 1181, 1183 (1981) (although Act might appear to be effective July 1, 1981, court finds PKPA is effective when enacted); Bahr v. Bahr, 110 Misc.2d 665, 442 N.Y.S.2d 687 (Fam.Ct. 1981) (applying PKPA to decision rendered May 8, 1981); In Re Custody of Ross, 291 Or. 263, 630 P.2d 353, 362 n. 19 (1981) (PKPA effective Dec. 28, 1980).
[5] UCCJA § 3(a)(1), N.J.S.A. 2A:34-31(a)(1).
"Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 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 6-month or other period. [UCCJA § 2(5), N.J.S.A. 2A:34-30(e).] Compare 28 U.S.C.A. § 1738A(b)(4).
[6] UCCJA § 3(a)(2), N.J.S.A. 2A:34-31(a)(2), which provide:
It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships.
[7] UCCJA § 3(a)(3), N.J.S.A. 2A:34-31(a)(3), which provide:
The child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.
[8] UCCJA § 3(a)(4), N.J.S.A. 2A:34-31(a)(4), which provide:
(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
[9] UCCJA § 6, N.J.S.A. 2A:34-34 provide in part:
A court of this State shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.
[10] Like the UCCJA, PKPA provides for jurisdiction based on an emergency or if no State has jurisdiction and it is in the best interest of the child that the forum assume jurisdiction. Compare 28 U.S.C.A. § 1738A(c)(2)(C) & (D) with UCCJA § 3(a)(3) & (4), N.J.S.A. 2A:34-31(a)(3) & (4).
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910 F.2d 216
UNITED STATES of America, Plaintiff-Appellee,v.Charles L. ECKFORD, Defendant-Appellant.
No. 89-4862.
United States Court of Appeals,Fifth Circuit.
Aug. 20, 1990.Rehearing and Rehearing En Banc DeniedSept. 20, 1990.
Falton O. Mason, Jr., Oxford, Miss. (Court-appointed), for defendant-appellant.
John R. Hailman, Asst. U.S. Atty., Robert Q. Whitwell, U.S. Atty., Oxford, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before THORNBERRY, JOHNSON and SMITH, Circuit Judges.
JOHNSON, Circuit Judge:
1
Appellant Charles L. Eckford ("Eckford") entered a plea of guilty to a charge of attempted bank robbery. In computing Eckford's sentence under the Sentencing Guidelines, the district court considered two prior municipal court misdemeanor convictions. In both situations, relevant penal code provisions authorized a maximum penalty of not more than six months' imprisonment. Eckford pleaded guilty to the misdemeanor charges without the assistance of counsel, but was not incarcerated. Nonetheless, the district court's application of these misdemeanor convictions increased Eckford's maximum potential sentence for the subsequent attempted robbery from thirty-seven months to forty-one months. After Eckford received the maximum forty-one month sentence, he appealed. Because this Court is bound by prior Circuit precedent, we affirm the sentence imposed by the district court.
I. FACTS AND PROCEDURAL HISTORY
2
On January 11, 1988, appellant Charles L. Eckford entered the Blue Mountain Branch of the First National Bank of New Albany, Mississippi. Wearing a homemade mask and concealing a loaded shotgun under his clothing, Eckford attempted to rob the bank of an undisclosed amount of cash. Eckford's attempt, however, was unsuccessful. He was taken into custody and indicted for the attempted robbery of a federally insured bank and the unlawful possession of a firearm during the attempt.
3
Pursuant to a plea agreement, the Government dropped the firearm charge and Eckford entered a guilty plea to the charge of attempted bank robbery.1 The United States Probation Office began an investigation of Eckford's criminal history, which it recorded in Eckford's presentence report. The report, to which Eckford strenuously objected, detailed two municipal court misdemeanor convictions that Eckford received in the mid-1980s. One of these convictions represented the violation of a Mississippi Code provision proscribing the operation of a motor vehicle while under the influence of intoxicating liquor.2 The other conviction represented the violation of a Mississippi Code shoplifting prohibition.3 On the basis of these misdemeanor convictions, the presentence report recommended a total of two criminal history points, which increased Eckford's criminal history category to Level II under the Federal Sentencing Guidelines.4
4
Eckford complained that the presentence report improperly considered these prior misdemeanor convictions. On both the driving under intoxication charge and the shoplifting charge, Eckford was not afforded counsel and did not knowingly waive the right to counsel. Although the Mississippi Code provisions on these offenses permit up to--but not more than--six months' imprisonment, the municipal judge only required Eckford to pay minimal fines. While conceding the validity of these uncounseled misdemeanor convictions, Eckford argued that the convictions could not be used to support sentence enhancement under the Sentencing Guidelines.
5
The district court, however, denied Eckford's objection to the criminal history category calculated in the presentence report. Concluding that the presentence report properly calculated Eckford's criminal history category at Level II, the district court imposed the maximum potential sentence of forty-one months' imprisonment. This sentence was four months longer than the maximum sentence that would have been permissible if the prior uncounseled misdemeanor convictions had not affected Eckford's criminal history.
II. DISCUSSION
6
The sixth amendment guarantee of counsel5 is one of the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932). A criminal defendant prosecuted without the assistance of counsel lacks the skill and knowledge necessary to prepare an adequate defense. "Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible." Id. at 69, 53 S.Ct. at 64. The sixth amendment therefore "stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.' " Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938).
7
Of necessity, however, the sixth amendment does not ensure an unlimited right to counsel in all criminal cases. If a criminal defendant were guaranteed counsel in comparatively insignificant criminal prosecutions that did not pose the possibility of imprisonment, the already overburdened criminal justice system would face crippling costs, congestion and confusion. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). To draw the line between the competing concerns of fairness to the defendant and convenience to the Government, the Supreme Court has determined that the sixth amendment requires only that "no indigent criminal defendant be sentenced to a term of imprisonment " unless the Government has afforded him the right to assistance of counsel. Id. at 374, 99 S.Ct. at 1162 (emphasis added). Thus, conviction of an uncounseled criminal defendant is constitutionally permissible, so long as the defendant is not sentenced to a term of imprisonment. If an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional.
8
Eckford argues that because his prior uncounseled misdemeanor convictions could not be used directly to impose a prison term, then logically they should not have been used indirectly to impose an increased prison term under the Sentencing Guidelines. He maintains that even if actual imprisonment determines the constitutional right to appointment of counsel, prior uncounseled misdemeanor convictions may not be used collaterally to impose an increased term of imprisonment on a subsequent conviction.
9
For this argument, Eckford relies extensively upon the concurring opinion of Justice Marshall in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). In Baldasar, the defendant was charged with theft after he pilfered a twenty-nine dollar shower head from a department store. At trial over the defendant's objection, the prosecutor introduced evidence establishing an earlier misdemeanor conviction for theft. This prior conviction, for which the defendant received a fine and probation even though he was not represented by counsel, enhanced the potential punishment for the subsequent offense from a misdemeanor (punishable by a fine and imprisonment for up to a year) to a felony. The defendant was convicted of a felony and sentenced to prison for one to three years.
10
In a brief per curiam opinion, the Supreme Court reversed the defendant's conviction. The per curiam opinion contained no discussion of the relevant sixth amendment principles, relying instead on the analysis expressed in three concurring opinions.6 The most expansive of these concurrences was authored by Justice Marshall, who concluded that under no circumstances could a prior uncounseled misdemeanor conviction be used collaterally to impose an increased term of imprisonment on a subsequent conviction. Baldasar, 446 U.S. at 225, 100 S.Ct. at 1586 (Marshall, J., concurring). Three other Supreme Court justices--Justices Brennan, Stevens and Stewart--joined Marshall in this conclusion.
11
Justice Blackmun's concurrence, however, tempered the expansive reach of Justice Marshall's concurrence. Writing separately in Baldasar, Justice Blackmun urged a "bright-line" approach that would require the appointment of counsel when an indigent defendant is charged with a nonpetty criminal offense punishable by more than six months' imprisonment. Id. at 230, 100 S.Ct. at 1589 (Blackmun, J., concurring). Since the defendant in Baldasar was initially prosecuted without legal representation for a misdemeanor offense punishable by more than six months' imprisonment, Justice Blackmun believed that the defendant's conviction was unconstitutional and therefore unavailable to support enhancement of subsequent punishment.
12
Justice Blackmun's concurrence was narrowly drawn, expressly limited to the particular facts of the defendant in Baldasar. Nonetheless, Justice Blackmun's vote in favor of reversing the defendant's conviction was essential to the slim five member majority. The inconsistency between Justice Blackmun's narrow approach and Justice Marshall's expansive approach has clouded the scope of the Baldasar decision.7 Many courts have questioned whether Baldasar expresses any persuasive authority on the collateral use of uncounseled misdemeanor convictions. See, e.g., Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir.1983) ("the [Baldasar ] decision provides little guidance outside of the precise factual context in which it arose."), cert. denied, 465 U.S. 1068, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984); United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th Cir.) ("The court in Baldasar divided in such a way that no rule can be said to have resulted."), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981).8
13
Likewise, this Court has questioned the persuasive influence of Baldasar. In Wilson v. Estelle, 625 F.2d 1158 (5th Cir. Unit A 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981), this Court found no error in the admission of evidence of the defendant's two prior uncounseled misdemeanor convictions during the punishment phase of a murder trial. Relying on the conclusion in Scott v. Illinois that the sixth amendment does not require the states to afford counsel in those criminal cases in which the offender is not imprisoned, we determined that the defendant's misdemeanor convictions, for which he received no term of imprisonment, were valid for all purposes. Id. at 1159. We acknowledged the potentially conflicting opinions of the concurring justices in Baldasar, but essentially limited Baldasar to its particular factual scenario: "a prior uncounseled misdemeanor conviction may not [be] used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term." Id. at 1159 n. 1.
14
Subsequent opinions of this Court have reinforced the Wilson decision. In Thompson v. Estelle, 642 F.2d 996 (5th Cir. Unit A 1981), we again concluded that "evidence of a prior uncounselled misdemeanor conviction for which no imprisonment was imposed may properly be introduced in the punishment phase of a trial." Id. at 998. In United States v. Smith, 844 F.2d 203 (5th Cir.1988), we held that a sentencing court could consider the defendant's numerous prior uncounseled convictions, none of which resulted in imprisonment.
15
It is well settled that prior panel decisions of this Court may not be disturbed except on reconsideration en banc. See Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir.1977); Puckett v. Commissioner, 522 F.2d 1385, 1385 (5th Cir.1975). Accordingly, in the absence of reconsideration en banc, this Court is not empowered to disturb our prior reasoned decisions that Baldasar v. Illinois does not preclude the use of uncounseled misdemeanor convictions during sentencing for a subsequent criminal offense.9
III. CONCLUSION
16
This Court's earlier decisions establish that the district court may consider during sentencing a criminal defendant's prior uncounseled misdemeanor convictions for which the defendant did not receive a term of imprisonment. In the present case, we are unable to conclude that the district court erred in considering Eckford's prior uncounseled misdemeanor convictions to determine his criminal history score under the Sentencing Guidelines. Eckford's sentence is affirmed in all respects.
17
AFFIRMED.
1
The relevant provision under which Eckford entered his guilty plea is 18 U.S.C. Sec. 2113(a) (1982) (bank robbery and incidental crimes)
2
Miss.Code Ann. Sec. 63-11-30 (1989)
3
Miss.Code Ann. Sec. 97-23-45 (1989)
4
Each prior misdemeanor conviction that carries a fine or a term of imprisonment of less than 60 days counts as a single criminal history point. Sentencing Guideline Sec. 4A1.1(c). Zero or one criminal history point places a defendant in criminal history category I, while two or three criminal history points places a defendant in criminal history category II
5
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI
6
The three concurring opinions were authored respectively by Justices Stewart, Marshall and Blackmun. Justice Stewart, whose concurrence is not particularly important for purposes of the present case, concluded that the defendant was unconstitutionally sentenced to an increased term of imprisonment "only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." Baldasar, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring) (emphasis in original). Essentially, Justice Stewart's concurrence dovetailed into Justice Marshall's expansive concurrence. Indeed, each justice joined in the other's concurrence
7
See Rudstein, The Collateral Use of Uncounseled Misdemeanor Convictions after Scott and Baldasar, 34 U.Fla.L.Rev. 517, 529 (1982) ("The failure of the Baldasar majority to agree upon a rationale for the result, and the unique approach taken by Justice Blackmun, whose vote was necessary for that result, leave open questions concerning the decision's scope.")
8
These expressions of doubt regarding the precedential value of the Baldasar opinion derive from the absence of an underlying platform of common agreement among the majority justices in Baldasar. In Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), the Supreme Court held that when no opinion in one of its decisions commands the support of the majority of the justices, the holding of the Court is the position taken by the justices who based their acquiescence in the decision on the narrowest grounds. Relying on this guideline, at least one court has determined that "the holding in Baldasar is Justice Blackmun's rationale that an invalid uncounseled conviction cannot be used to enhance a subsequent conviction." Santillanes v. United States Parole Comm'n, 754 F.2d 887, 889 (10th Cir.1985). However, while most courts have agreed that an invalid uncounseled conviction cannot support sentence enhancement, they have not concluded that the entirety of Justice Blackmun's concurrence--particularly the portion that renders an uncounseled conviction incapable of supporting sentence enhancement if the conviction carries a potential term of imprisonment of greater than six months--represents the official position of the Court in Baldasar. The Marks 'narrowest grounds' interpretation of plurality decisions comprehends a least common denominator upon which all of the justices of the majority can agree. There does not seem to be any such least common denominator among the Baldasar concurrences. See Schindler, 715 F.2d at 345 n. 5. By determining that prior opinions bind this Court, we are precluded from engaging in a fresh examination of the official position of the Supreme Court in Baldasar. Nonetheless, it is apparent in this case that Eckford's sentence would not be unconstitutional even if Justice Blackmun's concurrence represented the Court's holding. Eckford was not sentenced to a term of imprisonment on the prior misdemeanor convictions, nor did he face potential imprisonment of greater than six months for either of the uncounseled convictions
9
Eckford argues that Wilson, Thompson and Smith are distinguishable from the present case because they did not consider the new and complex Federal Sentencing Guidelines. However, the fact that a district court considered a prior uncounseled conviction for purposes of sentence enhancement under the Sentencing Guidelines does not implicate the sixth amendment any more than the fact that a court might have considered an uncounseled conviction outside of the Guidelines. Whether the Sentencing Guidelines apply or not, sentence enhancement based on prior criminal history may only be predicated on constitutionally valid convictions. See Application Note 6 to Sentencing Guideline Sec. 4A1.2
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927 P.2d 4 (1996)
James F. KELLY, Judith I. Kelly, James R. Smith, Jennifer C. Smith, Harry C. Piper, III, and Mary E.M. Piper, Plaintiffs and Appellants,
v.
BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, and Montana Rail Link, Inc., a Montana corporation, Defendants and Respondents.
No. 96-104.
Supreme Court of Montana.
Submitted on Briefs June 27, 1996.
Decided November 14, 1996.
Michael J. Lilly, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Plaintiffs and Appellants.
Christopher B. Swartley, Datsopoulos, MacDonald & Lind, Missoula, for Montana Rail Link, Inc.
Jeff Hedger, Kroschel & Yerger, Billings, for Burlington Northern Railroad Co.
NELSON, Justice.
This is an appeal from the Montana Eighteenth Judicial District Court, Gallatin County.
*5 Following a nonjury trial, the District Court denied Plaintiffs' claims for the declaration of an easement by prescription, by necessity or by implication, and entered judgment for Defendants. From this judgment, Plaintiffs appeal. We reverse.
The following issues are raised on appeal:
1. Did the District Court err in concluding, as a matter of law, that Plaintiffs do not have an easement by necessity?
2. Did the District Court err in concluding, as a matter of law, that Plaintiffs do not have a private prescriptive easement?
3. Did the District Court err in failing to conclude, as a matter of law, that Plaintiffs did not extinguish the private prescriptive easement established by their predecessors-in-interest?
4. Did the District Court err in concluding, as a matter of law, that Plaintiffs do not have an easement by implication?
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs own land in Sunny Bear Estates Subdivision, Gallatin County, Montana. Plaintiffs James and Judith Kelly (Kellys) purchased Tract 1 on September 16, 1983, from Thelma Thompson and Hale Hubbard. Plaintiffs James and Jennifer Smith (Smiths) purchased Tract 2 on June 26, 1989, from Mervin and Charlotte Lefferts (Lefferts). Plaintiffs Harry and Mary Piper (Pipers) purchased Tracts 3-12 on May 8, 1990, from Sundance Realty & Investments, Inc. Defendant Burlington Northern Railroad Company (BN) is the owner of a 400' right-of-way in Section 24, Township 2 South, Range 6 East, M.P.M., Gallatin County, Montana. Defendant Montana Rail Link, Inc. (MRL) claims a leasehold interest in the right-of-way owned by BN.
Sunny Bear Estates is bounded on the west, north and east by rugged mountains and private property. To the south, Sunny Bear Estates is bounded by MRL's and BN's railroad right-of-way. Railroad tracks pass through the railroad right-of-way and have existed since March 1883. Running parallel to and south of the railroad right-of-way is the East Frontage Road. The East Frontage Road (old U.S. Highway 10) was originally part of the Bozeman Trail constructed in 1864. Just to the south of the East Frontage Road lies Interstate 90, a controlled access highway.
The nearest public road to Sunny Bear Estates is the East Frontage Road. The East Frontage Road lies south of the railroad right-of-way. A gravel road leaves the East Frontage Road at its east end, runs north and crosses the railroad right-of-way at the planked crossing at issue, and enters Sunny Bear Estates. This railroad crossing is located in the SW 1/4 of the NW 1/4 of Section 24, Township 2 South, Range 6 East, M.P.M., Gallatin County, Montana. Frank King, a long time resident of the area, testified that he started using the crossing in 1926 and that he knew the crossing had been used for an undetermined time before 1926. The second closest road is Moffit Gulch Road, a county road, located one mile to the west of Sunny Bear Estates, over rugged mountain terrain and private property.
Ward I. Stone was the original predecessor-in-interest to part of the property owned by the Kellys, Smiths and Pipers (collectively Plaintiffs). Stone filed his homestead claim on the SW 1/4 of the NW 1/4 of Section 24 (the property) on November 1, 1880, and received his federal patent September 13, 1890. Stone conveyed the property to Lester Willson on January 30, 1882. On January 5, 1891, Willson conveyed the property to Northern Pacific Railroad Company (NP Railroad), although the property was to be deeded to Northern Pacific Coal Company (NP Coal). Subsequently in 1891, as discussed later in this opinion, this error was corrected. As a result, NP Railroad owned a 400' railroad right-of-way across the property, while NP Coal held title to the remainder of the property.
Until October 1, 1984, Plaintiffs' predecessors-in-interest used the gravel road and railroad crossing without written permit or easement. On October 1, 1984, BN executed a Private Roadway and Crossing Agreement with Thelma Thompson, Hale Hubbard, the Lefferts, and the Kellys. In the agreement, BN granted a private railroad crossing permit *6 to Thompson, Hubbard, the Lefferts and the Kellys as permittees. The permittees paid a fee for the right to use the crossing, and BN reserved the right to terminate the agreement with 30-days written notice. The permit was for a five-year period. The Kellys requested that their names be removed from the permit in April 1988. Thompson and Hubbard assigned their interest in the private crossing permit to Sundance Realty on August 16, 1987. Subsequently, Sundance Realty assigned its permit to Pipers on April 27, 1990. However, in 1994, Pipers refused to pay the permit fee. Smiths have never executed or been assigned a private crossing permit.
Plaintiffs' railroad crossing permits apparently are not sufficient to constitute insurable access for title insurance purposes. Consequently, no lending institution will approve construction loans secured by Plaintiffs' properties. In fact, the Pipers have failed to secure financing to construct their home because they did not have insurable access. Therefore, to correct this problem, Plaintiffs filed a complaint seeking an order declaring that they hold legal access easements to their properties.
Plaintiffs filed their Complaint for Declaratory Judgment on February 25, 1991. Plaintiffs sought an order declaring that they held an easement for ingress and egress over and across Defendants' railroad right-of-way. Plaintiffs advanced four alternative theories upon which the relief could be granted: 1) public easement by prescription; 2) private easement by prescription; 3) private easement by implication; and 4) private easement by necessity. Defendants BN and MRL answered and denied the allegations of Plaintiffs' complaint, and requested that the District Court deny any easement across the railroad right-of-way.
After three motions for summary judgment were denied, the District Court held a nonjury trial on March 16, 1995. The District Court entered Findings of Fact, Conclusions of Law, and Order on October 18, 1995. Pursuant to this Order, the District Court held that Plaintiffs' claims for declaration of an easement by prescription, necessity or implication were denied and entered judgment for Defendants. Following this Order, Plaintiffs filed a Motion to Amend Findings of Fact, Conclusions of Law, and Order on November 3, 1995. On December 15, 1995, Plaintiffs' motion was granted in part and denied in part. However, the District Court did not amend its Order denying Plaintiffs' claims. The District Court entered judgment in favor of Defendants on January 4, 1996. Plaintiffs appeal from this judgment.
STANDARD OF REVIEW
Our standard of review for a district court's findings of fact is provided by Rule 52(a), M.R.Civ.P., which in part provides:
Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses....
We have adopted the following three-part test to interpret this rule:
First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that "[A] finding is `clearly erroneous' when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed."
Public Lands Access Ass'n, Inc. v. Boone and Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).
Our standard of review relating to a district court's conclusions of law is whether the tribunal's interpretation of the law is correct. Public Lands, 856 P.2d at 527.
In this case, the District Court concluded, as a matter of law, that Plaintiffs did not establish easements by prescription, by necessity or by implication. In particular, the District Court concluded that Plaintiffs did *7 not have an easement by necessity because at the time unity of ownership was severed, strict necessity did not exist. We review this conclusion of law to determine whether the District Court properly interpreted the law governing easements by necessity.
DISCUSSION
Did the District Court err in concluding, as a matter of law, that Plaintiffs do not have an easement by necessity?
We hold that Plaintiffs do have an easement by necessity and reverse the District Court's legal conclusion to the contrary. Because this issue is dispositive, we will not address the remaining three issues raised on appeal.
In Amended Conclusion of Law No. 7, the District Court stated in part:
The requirements of an easement by necessity are 1) unity of ownership, and 2) strict necessity at the time the unified tract is severed.... Unity of title existed on the SW1/4 of the NW1/4 of Section 24 until Northern Pacific Railroad Company quitclaimed its interest in the section to Northern Pacific Coal Company, and the Coal Company quitclaimed the 400' right-of-way-back to the Railroad on June 4, 1891. There is no evidence in the record that prior to the separation of title, or even at the time the title was separated, that strict necessity existed for the grantor to have an "easement to the outside world" across its remaining lands.
Plaintiffs contend that the District Court erred when it concluded that Plaintiffs did not establish an easement by necessity because they failed to establish strict necessity at the time unity of ownership was severed. Plaintiffs argue that the District Court erroneously applied the facts to the controlling law to reach this conclusion. Defendants argue that the District Court correctly concluded strict necessity did not exist. They support the court's conclusion by quoting Plaintiff Harry Piper's testimony that he had not negotiated to purchase an access easement from any neighboring property owners. We conclude that the District Court misinterpreted the strict necessity requirement for easements by necessity.
An easement by necessity is a subspecies of an implied easement. An easement by necessity arises through strict necessity for ingress and egress to a parcel of property. Graham v. Mack (1984), 216 Mont. 165, 175, 699 P.2d 590, 596. Strict necessity is defined by a lack of practical access to a public road for ingress and egress. Wangen v. Kecskes (1993), 256 Mont. 165, 169, 845 P.2d 721, 724. See also, Wagner v. Olenik (1988), 234 Mont. 135, 761 P.2d 822. That is, the purpose of an easement by necessity is "to permit communication with the outside world." Rathbun v. Robson (1983), 203 Mont. 319, 324, 661 P.2d 850, 853. We have defined an easement by necessity as follows:
[w]here an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way of necessity exists over the remaining lands of the grantor. Similarly, a way of necessity is found when the owner of lands retains the inner portion conveying to another the balance, across which he must go for exit and access.
Big Sky Hidden Village Owners v. HVI (1996), 276 Mont. 268, 276, 915 P.2d 845, 850 (quoting Schmid v. McDowell (1982), 199 Mont. 233, 237, 649 P.2d 431, 433). Furthermore, we have set forth two basic elements to establish an easement by necessity: 1) unity of ownership, and 2) strict necessity at the time the unified tracts are separated. Graham, 699 P.2d at 596.
After reviewing the District Court's findings of fact and conclusions of law, we find two different explanations as to how unity of ownership was severed in 1891: 1) NP Railroad reserved its 400' right-of-way when it quitclaimed the property to NP Coal or 2) NP Coal, after acquiring the property from NP Railroad, granted the 400' right-of-way back to NP Railroad by a separate quitclaim deed. In either case, the result is the same. Under the first explanation, NP Coal's land "ha[d] no outlet to a highway except over the remaining lands of the grantor [NP Railroad] or over the land of strangers, [therefore,] a *8 way of necessity exist[ed] over the remaining lands of the grantor [NP Railroad]." See Big Sky, 915 P.2d at 850. Under the second explanation, "a way of necessity [existed] when the owner of lands [NP Coal] retain[ed] the inner portion conveying to another [NP Railroad] the balance, across which he [NP Coal] must go for exit and access." See Big Sky, 915 P.2d at 850. Therefore, as defined in Big Sky, a way of necessity existed over the railroad right-of-way whether NP Railroad reserved or was granted the right-of-way. See Big Sky, 915 P.2d at 850.
However, after reviewing the record, we conclude that unity of ownership was severed as noted in the second explanation above. On May 20, 1891, NP Railroad quitclaimed the SW 1/4 of the NW 1/4 of Section 24 to NP Coal. Subsequently, on June 4, 1891, NP Coal granted NP Railroad a 400' right-of-way across the SW 1/4 of the NW 1/4 of Section 24. As a result of these conveyances, unity of ownership was severed. Therefore, the District Court properly concluded that Plaintiffs satisfied the first element, unity of ownership, to establish an easement by necessity. However, the District Court erred by concluding that strict necessity did not exist at the time unity of ownership was severed.
In 1891, NP Railroad possessed a 400' right-of-way through NP Coal's property, while NP Coal possessed title to the remainder of the property, and unity of ownership was severed. In 1891, NP Coal's property was surrounded to the west, north and east by rugged mountain terrain. The only possible way to access and exit the property was to the south. In fact, the nearest public road to NP Coal's property was the Bozeman Trail, which later became U.S. Highway 10, and currently is known as the East Frontage Road. The Bozeman Trail, constructed in 1864, ran along the same path as today's East Frontage Road which is located immediately to the south and adjacent to the railroad right-of-way. Because the railroad right-of-way separated NP Coal's property from the Bozeman Trail, the only way to reach this public road was to cross the railroad right-of-way. Without access across the railroad right-of-way, NP Coal's property would be landlocked and unable to "communicate with the outside world." That is, at the time unity of ownership was severed, the property lacked practical access to a public road for ingress and egress. Therefore, a strict necessity existed. Consequently, an easement by necessity arose.
Defendants attempt to bolster the District Court's conclusion that strict necessity did not exist by quoting Plaintiff Harry Piper's testimony that he had not negotiated with his neighbors for an alternative access easement. Defendants claim that this testimony "clearly indicates that strict necessity does not exist for an easement across the railroad right-of-way." We disagree. Whether Plaintiffs currently have the ability to obtain access easements over their neighbors' properties is irrelevant. Evidence of strict necessity must be shown to have existed at the time unity of ownership was severed. Graham, 699 P.2d at 596. Plaintiffs established that the property's unity of ownership was severed in 1891 and that strict necessity existed at that time. Defendants' evidence concerning Plaintiffs' easement options at the time of trial does not affect Plaintiffs' claim that an easement by necessity arose from land conveyances occurring in the last century. See State v. Cronin (1978), 179 Mont. 481, 488, 587 P.2d 395, 399-400.
Thus, Plaintiffs' indirect evidence, discussed above, establishes that an easement by necessity arose in 1891 because strict necessity existed at the time unity of ownership to the property was severed. Not only was NP Coal's property surrounded to the west, north, and east by rugged mountain terrain, but was also bounded to the south by the railroad right-of-way. This set of circumstances effectively left NP Coal's property landlocked, and the requirement of strict necessity was met because the property was without access to a public road. Logic dictates that the only practical means to access or exit the property was to cross the railroad right-of-way to reach the nearest public road, the Bozeman Trail. In fact, Frank King, a long time resident of the area, testified that in 1926 he started using the planked crossing at issue and that he knew the crossing had been used for an undetermined time before *9 1926. Accordingly, we reverse the District Court and hold that Plaintiffs have an easement by necessity to cross Defendants' railroad right-of-way at the planked crossing at issue which is located in the SW 1/4 of the NW 1/4 of Section 24, Township 2 South, Range 6 East, M.P.M., Gallatin County, Montana.
Reversed.
GRAY, TRIEWEILER, LEAPHART and ERDMANN, concur.
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567 F.Supp. 317 (1983)
Donald L. BACHMAN, et al., Plaintiffs,
v.
James C. MILLER, III, et al., Defendants.
No. 76-0079.
United States District Court, District of Columbia.
July 6, 1983.
*318 Roger E. Warin, Daryl A. Chamblee and Colleen P. Mahoney of Steptoe & Johnson, Washington, D.C., for plaintiffs.
John Oliver Birch, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty. and Royce C. Lamberth, Asst. U.S. Atty., Washington, D.C., were on brief, for defendants.
OPINION
CHARLES R. RICHEY, District Judge.
This matter is before the Court on plaintiffs' Third Motion for Attorneys' Fees, Motion for Attorneys' Fees on Appeal and Supplemental Motion for Attorneys' Fees. Defendants filed an "initial" opposition to plaintiffs' first two motions and an opposition to the Supplemental Motion. Based upon the pleadings, the entire record amassed in this case and the Court's extensive experience in dealing with the counsel involved in this case, the Court will award plaintiffs' counsel attorneys' fees in the amount of $39,359.75. The Court's reasons for fixing this award follow.
BACKGROUND
In 1976, Donald L. Bachman filed suit against the Federal Trade Commission ("FTC") alleging that the Commission engaged in racially discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Soon thereafter, the Court granted certification to a class of plaintiffs consisting of all black employees and applicants for employment with the FTC in professional positions GS-9 and above. Before trial, the parties entered into extensive negotiations which ultimately resulted in a settlement agreement (also referred to herein as a "stipulation" or "decree") that was approved by the Court on April 25, 1978. The stipulation set forth a broad-reaching plan designed to remedy discrimination at the FTC.
The settlement agreement provided that plaintiffs' counsel should oversee implementation of and monitor compliance with the plan during a five year period. As compensation for counsels' efforts, the stipulation provided that the Commission would "pay reasonable attorneys' fees, costs and expenses in amounts approved by the Court ... subject to a maximum of $7,000 in the first year and $3,000 in each of the four succeeding years." Fees in excess of these amounts, however, could be awarded upon a showing of "extraordinary and unforeseeable circumstances."
Plaintiffs' counsel have now filed three fee petitions seeking additional fees because of such extraordinary and unforeseeable circumstances. In addition to the motions pending before the Court, plaintiffs' counsel had filed two prior fee petitions. The first motion resulted in an award of $80,309.78 to plaintiffs counsel for their time and effort in achieving the April 25, 1978 stipulation. The second motion sought fees for work performed from April 26, 1978 to December *319 31, 1980 and for time expended preparing the petition itself. The Court awarded plaintiffs' counsel $46,777.81 on this motion. The government appealed this award. However, on June 17, 1982, the Court of Appeals for the District of Columbia Circuit affirmed the award without opinion.
Plaintiffs currently have three attorneys' fees motions pending before the Court. In the first, plaintiffs' Third Motion for Attorneys Fees, they seek compensation for work performed from January 1, 1981 through December 31, 1981 and for time expended preparing the petition itself. The second, plaintiffs' Motion for Attorneys' Fees on Appeal, seeks recompense for work in defending the Commission's appeal of the Court's second fee award and for time spent responding to the FTC's supplemental opposition to plaintiffs' second fee application (which amount was not included in the second fee petition). Finally, in plaintiffs' Supplemental Motion for Attorneys' Fees, they seek compensation for time expended in responding to the government's numerous discovery requests in connection with the third fee petition.
Plaintiffs' counsel's entitlement to attorneys' fees is governed by the parties agreement. Accordingly, the Court must look first to the stipulation to determine whether an award beyond the $3,000 allocated in the agreement is warranted. If the Court decides this question in the affirmative, it must then decide what additional amount is appropriate.
AN AWARD OF FEES GREATER THAN $3,000 IS WARRANTED BECAUSE OF EXTRAORDINARY AND UNFORESEEABLE CIRCUMSTANCES.
The parties' stipulation limits plaintiffs' counsel's fees to $3,000 for the period covered by these three petitions unless there are extraordinary and unforeseeable circumstances. Therefore, before the Court makes an award in excess of this amount it must find that such circumstances exist. Further, such a finding is necessary to justify each item of award in excess of the allocated amount. Plaintiffs argue that two extraordinary circumstances justify their third fee request. First, plaintiffs cite to problems which arose with regard to the study of the FTC's hiring and promotion policies conducted by an organization retained for this purpose, Personnel Decisions Research Institute ("PDRI"). From the very beginning, dealings with PDRI did not proceed as planned. Every deadline set by the Court had to be moved at least once and often on several occasions.
Moreover, PDRI and the FTC engaged in several substantial substantive disagreements as to how the study should be conducted. These disagreements caused further delays and demanded additional attention by plaintiffs' counsel. As a result of the problems that arose, PDRI presented its final report to the FTC and plaintiffs' counsel nearly two full years later than the parties had anticipated in entering into the stipulation.[1] Further, the final report submitted by PDRI for counsel to review was 12 inches high and contained far more detail than had been anticipated. The Court finds that the problems which arose surrounding the PDRI study, occasioning such substantial delay and requiring plaintiffs' counsel's attention, clearly constitute just the sort of unforeseeable circumstance that the decree envisioned as justifying an additional fee award.
The second circumstance plaintiffs cite to support their third fee request is the hiring freeze implemented by newly elected President Ronald Reagan in 1981. Plaintiffs' counsel were concerned that the freeze would interfere with the FTC's compliance with the decree and would have a deleterious effect upon class members whose offers of employment had been withdrawn *320 because of the freeze. To assess and countermand the effects of the freeze, plaintiffs' counsel discussed the situation with the FTC and contacted individual offerees. Additionally, counsel decided to submit an amicus brief in another case before this Court challenging the freeze. Before the brief was submitted, however, the issue was mooted because President Reagan modified the freeze. The Court finds that the hiring freeze constituted an extraordinary and unforeseeable circumstance within the meaning of the stipulation. Therefore, an award of fees above the $3,000 specifically allotted for the year is warranted by plaintiffs' third fee petition.
Plaintiffs' motion for fees for appeal also meets the extraordinary and unforeseeable test. The stipulation contemplated that the fees it allotted would be adequate absent extraordinary and unforeseeable circumstances. Its $3,000 limit therefore, envisioned neither litigation of attorneys' fee awards nor appeal of such matters. It is difficult to imagine that plaintiffs would have agreed to limit their compensation to $3,000 if they foresaw that they would have to fight for a reasonable fee award both at the district court and at the circuit court level in light of the immense expense that litigation entails.
The decree plainly limited counsel to $3,000 only if there were no extraordinary circumstances. Once those circumstances arose, however, counsel became entitled to the full amount to which they could demonstrate entitlement. It logically follows that they must also be entitled to recompense for the time and effort expended in demonstrating entitlement in this Court and defending it, if necessary, in the Court of Appeals. Further, it was the government's appeal that required plaintiffs' counsel to expend the additional effort for which it seeks compensation here. It is thus with some skepticism that the Court hears the government complaint about awarding these fees.
In plaintiffs' Supplemental Motion for Attorneys' Fees they seek fees for efforts expended on discovery sought by the government. Plaintiffs argue that most of the government's discovery requests were burdensome and unnecessary because the government had all the information it could possibly need from plaintiffs' two prior fee requests and the discovery and proceedings associated with them. In the most part, the Court agrees with plaintiffs' argument. Moreover, as noted above, the Court finds that all litigation-related expenses were not contemplated by the decree and thus should be awarded under the exception for extraordinary and unforeseeable circumstances.[2] In sum, the Court finds that each of counsel's three pending petitions have demonstrated circumstances which entitle them to an award above the $3,000 allocated in the decree.
THE COURT WILL GRANT ATTORNEYS' FEES AT THE HOURS AND RATES PLAINTIFFS' COUNSEL SEEK ON ALL BUT THE SUPPLEMENTAL MOTION.
Since the Court has determined that plaintiffs' counsel are entitled to fees, the next question is how much counsel are entitled to receive. In order to arrive at a "lodestar" fee, the Court must determine the number of hours that have been reasonably expended and multiply these by what is proven to be a reasonable hourly rate. Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980). See also Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
Hourly Rates
The reasonable hourly rate is a product of the level of counsels' skill, time *321 limitations, the amount at stake, the attorneys' reputation and the undesirability of the case. Copeland v. Marshall, 641 F.2d 880, 892 (D.C.Cir.1980). The hourly rate to which counsel are entitled is generally considered to be the prevailing rate in the community for equivalent services. Id. Moreover, the rate to be awarded should be the prevailing rate at the time of award rather than the rate in effect at the time the work was performed. Id. at 893 n. 23.
Along with their fee petition, counsel have provided substantial documentation of prevailing wage rates in the community. Further, they have submitted affidavits detailing their normal hourly rates, which rates are "highly relevant proof of the prevailing community rates." National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1328 (D.C. Cir.1982). In addition to providing ample documentation for their rates, plaintiffs have decided to seek a rate lower than that which they regularly demand in order to provide a figure which the Court would deem reasonable. Based upon the evidence counsel presents and the rates which have been awarded in similar cases, see, e.g., Connors v. Drivers, Chauffers & Helpers, C.A. No. 82-1840 (D.D.C. Mar. 4, 1983), the Court finds that the rates detailed by plaintiffs' counsel are reasonable hourly rates. These rates are as follows:
Attorney/Paralegal 1982 Rate Rate Sought
Roger E. Warin $150 $135
John R. Labovitz $150 $135
David M. Ifshin $100 $ 90
Daryl A. Chamblee $100 $ 90
Jeanne E. Davidson $ 80 $ 75
Colleen P. Mahoney $ 75 $ 75[**]
Stephen G. Margeton $ 75[*] $ 75
M. Eugenia Snyder $ 50 $ 40
Thomas M. Tuggle $ 40[*] $ 40
The Court finds that these rates are consistent with the experience and qualifications of counsel, the fine reputation of their firm and the consistently high quality of the work that they have performed. Accordingly, plaintiffs' counsel shall be awarded the reasonable hourly rates set forth above multiplied by the hours reasonably expended on this case.
Hours Reasonably Expended
Plaintiffs' third fee petition details the hours spent by counsel in connection with the PDRI study, the hiring freeze and preparation of the petition itself. The Court has already concluded that counsels' work with regard to PDRI was justified and will thus fully compensate counsel for this item. Additionally, it is well settled that counsel are entitled to fees for preparing the fee petition. See, e.g., Moten v. Bricklayers, Masons & Plasterers International Union, 543 F.2d 224, 240 (D.C.Cir. 1976); Bachman v. Pertschuk, No. 76-0079 (D.D.C. Aug. 18, 1981); Bachman v. Pertschuk, No. 76-0079 (D.D.C. Mar. 14, 1979). In this motion there is only one item to which the Court takes exception fees sought for preparing an amicus brief in a case challenging the hiring freeze. The Court finds that counsel's decision to file such a brief was outside of the duty imposed upon plaintiffs by the decree. Therefore, the time expended in this manner is noncompensable.
On plaintiffs' third fee petition they seek $21,000 in fees. This amount was reduced from $25,633 in the exercise of billing judgment. Thus, plaintiffs' counsel have already reduced the fees they request by more than $4,000 in an attempt to eliminate any nonproductive or noncompensable time. In so doing, they took into account the time spent on the amicus brief (which time added up to $2432.50). Accordingly, the Court finds that the plaintiffs' own reduction of their billed hours adequately compensated for this noncompensable time and any other of the minor objections defendants have raised. Plaintiffs' counsel will thus be awarded $21,000 in attorneys' fees on their third fee petition.
*322 In plaintiffs' motion for attorneys' fees on appeal they seek $14,850 for time spent defending the appeal of this Court's judgment on plaintiffs' second fee petition and for hours spent analyzing and responding to the FTC's supplemental opposition to that petition. Upon careful review of the time sheets, the Court finds that the hours expended by counsel with regard to this motion were warranted. Accordingly, the Court will grant plaintiffs the full amount sought.
Finally, plaintiffs' counsel seek $4931.25 in their supplemental motion for attorneys fees for hours spent responding to and opposing the government's discovery requests surrounding the third fee petition. The Court has carefully examined counsel's detailed affidavits explaining the manner in which their time was spent and finds that the hours set forth are reasonable and compensable. However, plaintiffs will not be awarded the $4931.25 they seek because these figures were based upon hourly rates in excess of those the Court has herein approved. For purposes of this motion plaintiffs' counsel sought $150 per hour for Mr. Warin, $100 per hour for Ms. Chamblee and $75 per hour for Ms. Mahoney. The Court sees no reason why hours expended on discovery should be more highly compensated than those spent in other ways. The Court shall grant counsel only those rates previously determined to be reasonable. Accordingly, plaintiffs shall be awarded $3509.75 on counsel's supplemental motion.[3]
In addition to the fee requests discussed above, plaintiffs seek a total of $1915.26 in costs for the periods covered by the pending motions. The stipulation provides that plaintiffs are entitled to recover reasonable costs approved by the Court. The Court finds these costs to be reasonable and will award them in full.
An order in accordance with the foregoing will be issued of even date herewith.
NOTES
[*] The parties had expected the PDRI study to be completed by January, 1979. Anticipating that the study would require careful review and analysis, they allocated $7,000 in attorneys' fees for the period from April 25, 1978 to April 25, 1979 to compensate them for the additional effort that would be required. Thus, both parties recognized that review of the study would require plaintiffs' to amass substantial fees.
[**] Before discovery was initiated, defendants submitted an initial opposition to plaintiffs' motions, indicating that a final opposition would be filed once plaintiffs' discovery responses were reviewed. However, defendants never submitted an opposition utilizing these responses. It thus appears that discovery was a useless and wasteful exercise. Defendants' attempts to argue that plaintiffs' counsel are not entitled to recover for complying with their needless requests thus has little persuasive value.
[*] The parties had expected the PDRI study to be completed by January, 1979. Anticipating that the study would require careful review and analysis, they allocated $7,000 in attorneys' fees for the period from April 25, 1978 to April 25, 1979 to compensate them for the additional effort that would be required. Thus, both parties recognized that review of the study would require plaintiffs' to amass substantial fees.
[**] Before discovery was initiated, defendants submitted an initial opposition to plaintiffs' motions, indicating that a final opposition would be filed once plaintiffs' discovery responses were reviewed. However, defendants never submitted an opposition utilizing these responses. It thus appears that discovery was a useless and wasteful exercise. Defendants' attempts to argue that plaintiffs' counsel are not entitled to recover for complying with their needless requests thus has little persuasive value.
[3] This rate is calculated as follows:
Attorney Hours Rate Total
Roger E. Warin 6.25 $135 $ 843.75
Daryl A. Chamblee 18.75 $ 90 $1688.50
Colleen P. Mahoney 28.25 $ 70 $1977.50
________
$3509.75
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Case: 11-60583 Document: 00511905067 Page: 1 Date Filed: 06/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 29, 2012
No. 11-60583
Summary Calendar Lyle W. Cayce
Clerk
CANDELARIA HERNANDEZ, also known as Candelaria Reyes Ortiz,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 529 944
Before DAVIS, DeMOSS, HAYNES, Circuit Judges.
PER CURIAM:*
Candelaria Hernandez petitions for review of the decision of the Board of
Immigration Appeals (BIA) dismissing her appeal from the decision of the
Immigration Judge (IJ) denying her application for cancellation of removal
under 8 U.S.C. § 1229b(b). The application was based on the hardships her
spouse, who is a lawful permanent resident, and her children, who were all born
in this country, would suffer upon Hernandez’s removal from this country. The
IJ’s decision denying relief was based on a determination that Hernandez had
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60583 Document: 00511905067 Page: 2 Date Filed: 06/29/2012
No. 11-60583
not demonstrated that her qualifying relatives would suffer an “exceptional and
extremely unusual hardship” as required by § 1229b(b)(1)(D). The BIA agreed
with the IJ’s determination.
Hernandez argues that the IJ and the BIA erred in considering only the
current hardships her family is suffering as a result of her removal proceedings
and committed legal error by failing to consider the future hardships that will
result if she is removed to Mexico. Although we lack jurisdiction to review the
denial of discretionary relief under § 1229b, we may consider the legal argument
presented by Hernandez. See 8 U.S.C. § 1252(a)(2)(B)(i) & (a)(2)(D).
Hernandez’s argument is based on her contention that the pertinent
consideration here is future-oriented. The Ninth Circuit has agreed with this
contention. Figueroa v. Mukasey, 543 F.3d 487, 497-98 (9th Cir. 2008).
Assuming, without deciding, that the § 1229(b)(1)(D) hardship inquiry is future-
oriented, the record does not reflect that the IJ or the BIA failed to consider the
future hardships asserted here. To the extent that Hernandez argues that the
BIA committed legal error in considering her application for relief, her petition
for review is denied.
Hernandez also argues that In re Andazola-Rivas, 23 I&N Dec. 319, 322
(BIA 2002), and In re Monreal-Aguinaga, 23 I&N Dec. 56, 62-64 (BIA 2001), two
BIA decisions that are “the starting points for any analysis of exceptional and
extremely unusual hardship” for purposes of § 1229b(b), In re GonzalezRecinas,
23 I&N Dec. 467, 469 (BIA 2002), were wrongly decided. Hernandez did not
present these arguments to the BIA on appeal, and she did not file a motion to
reopen or a motion for reconsideration of the BIA’s decision. See 8 C.F.R.
§ 1003.2(b)(1); Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). She
has failed to exhaust her administrative remedies with regard to these
arguments, and we lack jurisdiction to consider them. See Omari v. Holder, 562
F.3d 314, 320-21 (5th Cir. 2009).
PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.
2
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August 24, 1989
Mr. Pat D. Westbrook opinion NO. JM-1089
Executive Director
Texas Commission for the Blind Re: Enforcement of the sup-
P. 0. Box 12866 port dog laws under chapter
Austin, Texas 78711 121 of the Human Resources
Code (RQ-1749)
Dear Mr. Westbrook:
You refer to the provisions of sections 121.003 and
121.004(a) of the Human Resources Code. Section 121.003
prohibits, inter alia discrimination against visually
handicapped persons acbompanied by support dogs in their use
of public facilities. Section 121.004(a) provides:
(a) A person, firm, association, corpora-
tion, or other organization, or the agent of
a person, firm, association, corporation, or
other organization who violates Section
121.003 of this chapter is guilty of a
misdemeanor and on conviction shall be
punished bv a fine of not le than $100 nor
more than $300. (Emphasis sized.)
You say that "there appears to be confusion regarding
the appropriate legal jurisdiction in enforcing this
law . . . . It appears as though the City is not sure
whether the County should prosecute this matter, and the
County is not sure whether the City should prosecute this
matter." You ask our advice in this respect.
Article V, section 19, of the Texas Constitution
provides in full:
Justice of the peace courts shall have
original jurisdiction in criminal matters of
misdemeanor cases punishable by fine only,
exclusive jurisdiction in civil matters where
the amount in controversy is two hundred
dollars or less, and such other jurisdiction
p. 5696
Mr. Pat D. Westbrook - Page 2 (JM-1089)
as may be provided by law. Justices of the
peace shall be ex officio notaries public.
The Code of Criminal Procedure, article 4.11, still provides
that justice courts have jurisdiction of misdemeanors "where
the fine to be imposed by law may not exceed two hundred
dollars." This provision was codified into the current Code
of Criminal Procedure in 1965. Acts 1965, 59th Deg., ch.
722, at 331. At that time article V, section 19, of the
constitution still provided that justice court jurisdiction
extended to l'criminal matters of all cases where the penalty
or fine to be imposed by law may not be more than for two
hundred dollars." S.J.R. 14, Acts 1985, 69th Deg., 8 7, at
3359. The current provisions of article V, section 19,
expanding justice court jurisdiction to "misdemeanor cases
punishable by fine only" were adopted in 1985. Id.
We think that the current article V, section 19,
provision in question indicates on its face that it is
self-enacting, i.e., that its provision for justice court
jurisdiction over "misdemeanor cases punishable by fine
onlyto does not require further legislative action to be
given effect. The public notice given for that constitu-
tional amendment election ("The amendment would provide for
the jurisdiction of justice courts, which may have addi-
tional jurisdiction as provided by law.") as well as the
explanatory materials prepared by the Legislative Council
and House Study Group, support, we think, our conclusion.
that the provision is self-enacting and controls over the
narrower jurisdictional provision still found in article
4.11 of the Code of Criminal Procedure. a Analyses of
Proposed Constitutional Amendments Appearing on the November
5, 1985 Ballot, Texas Legislative Council Information Report
No. 85-3, August 1985 ("changes . . . redefine . . . justice
court jurisdictionU*); House Study Group Special Legislative
Report, 1985 Constitutional Amendments, August 23, 1985
("The specific constitutional grants of jurisdiction to
justice-of-the-peace courts in Art. 5, sec. 19, would be
eliminated, except for original jurisdiction over mis-
demeanors punishable by fine only . . . ."); see also, Gov't
Code § 27.031 (providing that justice courts have "the
jurisdiction and powers provided by the constitution and
other law").
Thus, at the county level, justice of the peace courts
would have jurisdiction over the offense described in
section 121.004(a) of the Human Resources Code.
P. 5697
Mr. Pat D. Westbrook - Page 3 (JM-1089)
Also, at the county level, various criminal district
courts and constitutional and statutory county courts would
have jurisdiction over such offense depending on the
particular county in question. &=g Gov*t Code ch. 24,
subch. E (particular criminal district courtsa;, 1;: ;;.;;z
(county court jurisdiction generally), . - .
(particular county courts), 25.0003 (statutory county court
jurisdiction generally), 25.0031-25.2512 (particular statu-
tory county courts).
The officer performing the criminal law duties of the
county attorney has responsibility for prosecuting offenses
in the above-mentioned courts of the county. Code Crim.
Proc. art. 2.02 (regarding county attorney's duties in
courts of the county "below the grade of district court") .
In some counties these duties are performed by the officer
known as the criminal district attorney. w Gov't Code ch.
44 (for duties of criminal district attorneys in particular
counties). In a few counties they are performed by a
district attorney. m Gov't Code ch. 43 (for duties of
district attorneys in specific counties: particularly, for
example, g 43.180 regarding duties of Harris County District
Attorney to represent the state in criminal cases pending in
district and inferior courts of the county).
Thus, in answer to your question, at the county level
the prosecutor responsible for representing the state in
justice of the peace courts, and in the criminal district
courts and constitutional and statutory county courts where
those latter courts also have jurisdiction over the offense
in question, would be responsible for prosecuting such
offense.1
1. We also note that various particular district
courts are given concurrent jurisdiction with county courts
in criminal matters. In such cases the district attorney
responsible for prosecuting cases in such courts may
prosecute the offense described in section 121.004(a) of the
Human Resources Code. m Code Crim. Proc. art. 2.01
(district attorney#s duty to represent the state in district
court): Gov't Code SS 24.101-24.276, 24.351-24.507
(regarding particular district courts and judicial
districts).
p. 5698
Mr. Pat D. Westbrook - Page 4 (JM-1089)
Also, in a few cities the city attorney would have
concurrent responsibility with the county level prosecutor
for prosecuting the offense in question. While the juris-
diction of municipal courts proper with respect to criminal
cases arising under state law is limited to offenses
punishable by a fine not to exceed $200 under section
29.003(b) of the Government Code, and such courts would thus
have no jurisdiction over an offense under section
121.004(a), the legislature has authorized certain munici-
palities to create a distinct tribunal called the municipal
court of record. In some instances the legislature has
expanded the jurisdiction of such municipal courts of record
beyond that provided for municipal courts proper, which, as
noted above, have no jurisdiction over the offense you ask
about.
For example, the city of Austin is authorized to create
municipal courts of record having concurrent jurisdiction
with the justice court over criminal cases punishable by
fine only. See Gov*t Code 5 30.323. Thus a municipal court
of record created in Austin could have jurisdiction over a
section 121.004(a) offense, and the city attorney or his
deputies or assistants would be responsible for prosecuting
such case. Gov't Code §§ 30.329, 30.490; see. e.0 id.
55 30.381, 30.383 (a Dallas Municipal Court of Record has
concurrent jurisdiction with justice court over offenses
punishable by fine only). But see id. SS 30.262-30.263
(Houston Municipal Court of Record jurisdiction over
offenses for which justice court has jurisdiction only where
punishable by fine not to exceed $200), 30.141, 30.143 (Fort
Worth Municipal Court of Record jurisdiction over offenses
under state law limited to that of municipal court proper).
See
my id. ch. 30 (the provisions for particular
municipal courts of record).
We also understand that you are concerned about appar-
ent confusion among municipal police and county sheriff#s
office personnel as to their respective responsibilities for
responding to reports of violations of section 121.004(a).
A peace officer, whether a sheriff or sheriff's deputy or a
municipal police officer, has the duty to act to keep the
peace and to report to a magistrate u offenses under state
law committed within his jurisdiction. Code Crim. Proc.
arts. 2.12, 2.13. Therefore it would be appropriate for a
person wishing to report a violation of section 121.004(a)
to contact the sheriff's office or, if the offense was
committed in an incorporated area, the municipal police.
p. 5699
Mr. Pat D. Westbrook - Page 5 (JM-1089)
SUMMARY
The prosecutor at the county level -- the
county attorney or in some cases the criminal
district attorney or district attorney -- has
responsibility for prosecuting the offense
described in section 121.004(a) of the Human
Resources Code, relating to discrimination
against visually handicapped persons using
support dogs in public facilities. Where the
offense is committed in a city having a
municipal court of record with jurisdiction
over such offense, the city attorney may also
prosecute such offense in that court.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 5700
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600 N.W.2d 516 (1999)
1999 ND 183
Deborah FRANK, Petitioner and Appellant,
v.
Patrick TRAYNOR, as Executive Director of the North Dakota Workers Compensation Bureau, Respondent and Appellee.
No. 990013.
Supreme Court of North Dakota.
September 22, 1999.
*517 Stephen D. Little, Dietz, Little & Haas, Bismarck, for petitioner and appellant.
Brent J. Edison, Special Assistant Attorney General, Bismarck, for respondent and appellee.
NEUMANN, Justice.
[¶ 1] Deborah Frank appealed from a judgment dismissing her petition for an alternative writ of mandamus to compel the Workers Compensation Bureau to hold a formal hearing on her claim for benefits. Because Frank had a plain, speedy and adequate remedy in the ordinary course of law through a direct appeal from the Bureau's determination that her request for reconsideration was insufficient, we conclude the district court did not abuse its discretion in denying the writ of mandamus. We affirm.
I
[¶ 2] Frank filed a workers compensation claim on August 25, 1997, alleging she injured her lower back and tailbone when she fell on July 9, 1997, while employed as a supervisor and teacher at the Early Childhood Learning Center in Bismarck. The Bureau dismissed Frank's claim in an order dated September 30, 1997. The Bureau found Frank did not report the injury to her employer until July 15, 1997, and did not report the alleged work-related accident to her physician during her initial medical examination on July 16, 1997. The Bureau also found Frank's medical history revealed she had similar physical complaints arising from a November 1995 motor vehicle accident, and, despite her prior medical problems, Frank checked "no" to questions in her application for benefits and prior injury questionnaire relating to whether she had any prior problems or injuries to her lower back and tailbone.
[¶ 3] The Bureau concluded Frank had not proven a compensable injury, she had willfully made false statements in violation of N.D.C.C. § 65-05-33, and she must forfeit her right to benefits. The Bureau's dismissal was accompanied by a "Notice to Claimant" form and another form describing the Workers' Adviser Program, each advising Frank if she wanted to challenge the dismissal, she needed to write to the Bureau and explain why the dismissal was wrong. On November 21, 1997, after completing the Workers' Adviser Program, Frank requested reconsideration and demanded a formal hearing through her attorney, stating:
Specifically, Findings of Fact V, VII, VIII, XIV, XVII, and XVIII are incorrect; Conclusions of Law I, II, IV, and V are not supported by the facts; and the Bureau's Dismissal Order should be reversed. Ms. Frank suffered a compensable injury and is entitled to compensation.
[¶ 4] On November 26, 1997, a special assistant attorney general wrote to Frank's attorney telling him the request for rehearing was not accepted:
North Dakota law requires that a request for rehearing must specifically state each factual or legal error you believe is contained in the order, and must also state what you believe the correct decision should be. Your request did not contain that information.
If you want a hearing, you must file a written request for rehearing specifically stating each factual or legal error you believe is contained in the order, and also stating what you believe the correct decision should be.
You must file the request within 30 days after the Order, or within 10 days after the date of this letter, whichever is later. If you do not file a proper request within that time, the Order will become final.
[¶ 5] Rather than attempt to comply with the Bureau's directive, on December 5, 1997, Frank's attorney responded to the November 26 letter from the special assistant attorney general:
N.D.C.C., Section 65-01-16 requires that a request for reconsideration and *518 formal hearing "must specifically state each alleged error of fact and law to be reheard and the relief sought." The Claimant's Request for Reconsideration/Demand for Formal Hearing dated November 21, 1997, does precisely that. If the Bureau wishes to impose criteria in addition to the clear terms of the statute, it should consider promulgating administrative rules. Absent additional requirements, however, the Claimant's Request for Reconsideration/ Demand for Formal Hearing is adequate. If the administrative law judge assigned to this matter wishes a prehearing brief outlining the issues in greater detail, I will honor any request.
[¶ 6] On February 26, 1998 and March 20, 1998, Frank's attorney wrote the Bureau asking if it would continue to "ignore" the request for reconsideration and demand for a formal hearing or assign an administrative law judge, but did not submit a revised request for a formal hearing as requested by the Bureau. After Frank's attorney wrote another letter to the Bureau questioning the status of Frank's request for rehearing, a different special assistant attorney general responded on May 5, 1998:
Rather than provide the requested information, your December 5, 1997 response to our letter was to challenge our ability to reject your request for rehearing on the grounds we identified in our letter. Since you failed to respond in a timely manner, the Bureau considers the September 30, 1997 Order dismissing Ms. Frank's claim to be a final order.
The Bureau's position on the requirements for a request for rehearing are based upon statutory language that you continually seem to ignore. It is somewhat disconcerting that you are so inclined to challenge the Bureau on this issue when the Bureau's position on this issue continues to be upheld as valid. Perhaps even more disconcerting is that you would jeopardize your clients' claims because you refuse to submit adequate requests on their behalf.
[Emphasis in original].
[¶ 7] On June 9, 1998, Frank's attorney wrote to the Bureau's litigation attorney asking him to intercede in the matter, and informed him if the Bureau were unwilling to accept the request for rehearing, he would seek a writ of mandamus, as he had previously done regarding a request for rehearing in a different client's case. On June 25, 1998, the litigation attorney informed Frank's attorney the request for rehearing was inadequate and the Bureau considered its September 30, 1997 order to be final:
Your reliance on the claim of [the previous client] is misplaced. For that case only, the Bureau agreed your request for rehearing letter adequately complied with the law and agreed to schedule an administrative hearing. As a result, the mandamus proceeding was dismissed. As part of the dismissal, we reached what I thought was a workable understanding concerning future requests for rehearing. I refer to my letter of March 25, 1998 (copy enclosed) in which we confirmed the dismissal of the [prior] mandamus proceedings. The letter contains the following confirmation:
This will further confirm that, for future requests for rehearing, the Bureau will expect your clients to identify the specific findings of fact and/or conclusions of law they contend are in error, and for each finding/conclusion, provide at least a one sentence explanation as to why the Bureau is in error.
[¶ 8] Frank petitioned the district court for an alternative writ of mandamus on September 25, 1998, almost one year after the Bureau issued the original order denying Frank benefits. Frank requested the court to order the Bureau to set the matter for formal hearing within 30 days or show cause why it could not do so. The district court denied the petition for the writ and dismissed the action, concluding:
*519 Frank failed to provide the Bureau with "a statement of the specific grounds upon which relief is requested or a statement of any further showing to be made in the proceeding" under N.D.C.C. § 28-32-14(3) (1993); failed to "state the alleged errors in the decision and the relief sought" under N.D.C.C. § 65-01-16(4) (1997); and failed to "specifically state each alleged error of fact and law to be reheard and the relief sought" under N.D.C.C. § 65-01-16(7) (1997).
Frank appealed.
II
[¶ 9] A district court may issue a writ of mandamus to "any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." N.D.C.C. § 32-34-01. An applicant for a writ of mandamus must demonstrate a clear legal right to the performance of the act and must have no other plain, speedy and adequate remedy in the ordinary course of law. Kadlec v. Greendale Township Board of Township Supervisors, 1998 ND 165, ¶ 8, 583 N.W.2d 817. Issuance of the writ is left to the sound discretion of the district court, and we will not reverse the court unless the writ should not issue as a matter of law or the court abused its discretion. Robot Aided Mfg., Inc. v. Moore, 1999 ND 14, ¶ 10, 589 N.W.2d 187. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process. Gowin v. Trangsrud, 1997 ND 226, ¶ 8, 571 N.W.2d 824.
[¶ 10] Although the district court denied the writ based on the merits of the parties' dispute, we will not set aside a correct result merely because the trial court assigned an incorrect reason if the result is the same under the correct law and reasoning. Almont Lumber & Equipment Co. v. Dirk, 1998 ND 187, ¶ 10, 585 N.W.2d 798. Mandamus is not available if an appeal is authorized from an adverse decision of an administrative agency. Tooley v. Alm, 515 N.W.2d 137, 140 (N.D. 1994). In Lende v. North Dakota Workers' Compensation Bureau, 1997 ND 178, ¶¶ 14-22, 568 N.W.2d 755, decided before the Bureau issued its September 30, 1997 order dismissing Frank's claim for benefits, we held if a claimant petitions for reconsideration or requests a formal hearing, and the Bureau fails to act on that request within 30 days, the request is deemed denied, the order becomes final, and the claimant can appeal. See also Boger v. North Dakota Workers Compensation Bureau, 1998 ND 131, ¶ 12, 581 N.W.2d 463; Gregory v. North Dakota Workers Compensation Bureau, 1998 ND 94, ¶ 13, 578 N.W.2d 101. Frank had the right to directly appeal to the district court after the Bureau failed to "take some affirmative action toward the arrangement of the formal hearing within thirty days of the filing of the petition." Lende, 1997 ND 178, ¶ 20, 568 N.W.2d 755.
[¶ 11] We recognize an argument could be made that Lende is not applicable in this case because N.D.C.C. § 65-01-16(7) provides "[a]bsent a timely and sufficient request for rehearing, the administrative order is final and may not be reheard or appealed." See 1997 N.D. Sess. Laws ch. 532, §§ 1, 7.[1] However, we decline to hold the subjective decision of the Bureau whether a request for rehearing is "timely and sufficient" is not reviewable on direct appeal. Section 65-01-16(7), N.D.C.C., does not provide that a determination the request is untimely or insufficient may not be reheard or appealed. Rather, it is the "administrative order" under the statute which is final and may *520 not be reheard or appealed if the request for rehearing is not timely or sufficient. The "administrative order" is the order issued on the merits by the Bureau after a request for reconsideration from the Bureau's informal review. N.D.C.C. § 65-01-16(5). The "rehearing" provided in section 65-01-16(7), N.D.C.C., is in reality a request for a formal hearing, which is to be conducted under the provisions of N.D.C.C. ch. 28-32. N.D.C.C. § 65-01-16(8). See also Steele v. North Dakota Workmen's Comp. Bur., 273 N.W.2d 692 (N.D.1978) (holding a formal hearing is required whenever Bureau acts in a quasi-judicial capacity). Therefore, while the statute does prohibit an appeal of the merits of the Bureau order if no timely and sufficient request for rehearing is made, the statute does not prohibit an appeal challenging the Bureau's determination the request for rehearing was insufficient.
[¶ 12] Our construction of the statute is supported by the Bureau's own interpretation. The Bureau in its brief to this Court not only conceded Lende still applies but argued if "Frank is correct in her assertions as to the adequacy of her request for rehearing, she should have appealed to district court." The construction of a statute by an administrative agency charged with its execution is entitled to weight and we will defer to a reasonable interpretation of that agency unless it contradicts clear and unambiguous statutory language. E.g., Lee v. North Dakota Workers Comp. Bureau, 1998 ND 218, ¶ 11, 587 N.W.2d 423. Under Lende, Frank had the right to directly appeal to the district court, but failed to do so and instead sought a writ of mandamus.
[¶ 13] Although exhaustion of remedies is not required if exhaustion would be futile, Tracy v. Central Cass Public School, 1998 ND 12, ¶ 13, 574 N.W.2d 781, or if a case involves only the interpretation of an unambiguous statute, Medcenter One v. North Dakota State Board of Pharmacy, 1997 ND 54, ¶ 21, 561 N.W.2d 634, neither exception applies under the facts of this case. Because Frank had a plain, speedy and adequate remedy in the ordinary course of law, we conclude the district court did not abuse its discretion in denying Frank's petition for an alternative writ of mandamus.
III
[¶ 14] The judgment is affirmed.
[¶ 15] VANDE WALLE, C.J., MARING, KAPSNER and SANDSTROM, JJ., concur.
NOTES
[1] The Legislature in 1999 amended N.D.C.C. § 65-01-16. See 1999 N.D. Sess. Laws ch. 553. Effective July 1, 1999, N.D.C.C. § 65-01-16(12) provides "[t]his section is effective for all orders and decisions on all claims regardless of the date of injury or the date the claim was filed."
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662 P.2d 1093 (1982)
The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado, and Nelson L. Nadeau, Director of the Jefferson County Department of Social Services, in their own behalf and in behalf of the Jefferson County Department of Social Services and the Jefferson County Board of Social Services, Plaintiffs-Appellants,
v.
The MERIT SYSTEM COUNCIL OF the STATE DEPARTMENT OF SOCIAL SERVICES, the State Department of Social Services, and Harry Havemeyer, Defendants-Appellees.
No. 82CA0612.
Colorado Court of Appeals, Div. I.
November 18, 1982.
Rehearing Denied December 23, 1982.
Certiorari Denied May 2, 1983.
Patrick R. Mahan, Jefferson County Atty., Daniel E. Ramsey, Asst. County Atty., Golden, for plaintiffs-appellants.
Haddon, Morgan & Foreman, P.C., Lee D. Foreman, J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sp. Asst. Atty. Gen., Kenneth S. Lieb, Asst. Atty. Gen., Denver, for defendants-appellees.
KELLY, Judge.
The district court dismissed an action by the Jefferson County Board of County Commissioners and Nelson L. Nadeau, the director of the Jefferson County Department of Social Services, against defendants, Harry Havemeyer and the State Department of Social Services, on the ground that the plaintiffs are without standing to seek judicial review. We affirm.
The Jefferson County Department of Social Services suspended its employee, Harry Havemeyer, for a three-day period, and he appealed to the Merit System Council. The Merit System Council rejected the recommended decision of the hearing officer and entered an order supporting the Jefferson County Department's suspension.
Havemeyer then sought judicial review in the district court pursuant to § 24-4-106(4), C.R.S.1973 (1981 Cum.Supp.), making the Merit System Council and the State Department of Social Services parties defendants. While the Jefferson County Department of Social Services was the named party in the agency action, it was not named as a party in Havemeyer's judicial review proceeding. A settlement was negotiated and an order was entered dismissing the action and remanding the case to the Merit System Council for further proceedings. On remand, an order was entered by *1094 the Merit System Council reinstating Havemeyer with back pay pursuant to the settlement agreement reached in the district court.
The Board of County Commissioners argues that § 24-4-106(4.5), C.R.S.1973 (1981 Cum.Supp.) gives it the right to seek judicial review of the order of the Merit System Council, urging that this section evinces legislative intent to depart from the rule of law announced in Martin v. District Court, 191 Colo. 107, 550 P.2d 864 (1976); Board of County Commissioners v. State Board of Social Services, 186 Colo. 435, 528 P.2d 244 (1974); and Nadeau v. Merit System Council, 36 Colo.App. 362, 363, 545 P.2d 1061 (1975). Our disposition of this case does not require so expansive a treatment of the issue.
Section 24-4-106(4.5) provides:
"[T]he Board of County Commissioners of any county of this state may commence an action in the Denver district court within the time limit set forth in subsection (4) of this section for judicial review of any agency action which is directed to any official, board, or employee of such county or which involves any duty or function of any official, board, or employee of such county ... and to the extent that said official, board, or employee could maintain an action under subsection (4) of this section...." (emphasis added)
Under this statute, the standing of the Board of County Commissioners depends upon the standing of the County Board and the County Department of Social Services to maintain an action for judicial review. We conclude that neither the County Board nor the County Department of Social Services has standing to seek judicial review under the circumstances here.
The provisions of § 24-4-106(4.5) have not enhanced the status of a County Board of Social Services beyond that of a subordinate division of the State Department of Social Services. See Dempsey v. City and County of Denver, 649 P.2d 726 (Colo.App.1982). Pursuant to statute, County Boards of Social Services act as agents of the State Board, §§ 26-1-116 and 26-1-118, C.R.S.1973, and are bound by the rules promulgated by the State Board. Section 26-1-108(1)(c)(IV) and (2), C.R.S.1973. See Martin v. District Court, supra; Nadeau v. Merit System Council, supra.
Here, the State Board of Social Services was a party to the judicial review proceedings initiated by Havemeyer, as a result of which a settlement agreement was reached. The County Board and the County Department of Social Services, as subordinates of the state agency, were bound by the State Department's actions settling the prior judicial review proceedings. Accordingly, the County Board and the County Department of Social Services were without standing to seek judicial review of the Merit System Council's order implementing the settlement agreement, and the Board of County Commissioners is likewise without standing to seek this judicial review.
In view of this conclusion, we need not address the other contentions.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 4, 2009 Session
GERRY G. KINSLER v. BERKLINE, LLC
Appeal by Permission from the Court of Appeals, Eastern Section
Circuit Court for Hamblen County
No. 06CV148 Thomas J. Wright, Judge
No. E2007-02602-SC-R11-CV - Filed September 20, 2010
The employer discharged the employee three days after he rejected an offer to settle his
workers’ compensation claim, and the employee brought a retaliatory discharge action
against the employer. The trial court granted the employer summary judgment, which the
Court of Appeals reversed. We hold that genuine issues of material fact preclude summary
judgment. We therefore affirm the judgment of the Court of Appeals.
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Appeals Affirmed
J ANICE M. H OLDER, C.J., delivered the opinion of the Court, in which G ARY R. W ADE, J.
joined. C ORNELIA A. C LARK, J., filed a separate opinion concurring in part and concurring
in the judgment, in which W ILLIAM C. K OCH, J R., J. joined. S HARON G. L EE, J., not
participating.
Kelly A. Campbell, Morristown, Tennessee, for the appellant, Berkline, LLC.
Mark S. Stapleton, Rogersville, Tennessee, and William Lewis Jenkins, Jr., Dyersburg,
Tennessee, for the appellee, Gerry G. Kinsler.
Justin S. Gilbert, Jackson, Tennessee; Donald A. Donati and William B. Ryan, Memphis
Tennessee; and Wade B. Cowan, Nashville, Tennessee, for the amicus curiae, Tennessee
Employment Lawyers Association.
OPINION
Facts and Procedural History
Defendant Berkline, LLC (Berkline) employed Gerry G. Kinsler as a “maintenance
multicraftsman.” His duties as a multicraftsman included servicing and repairing machines
and equipment in Berkline’s furniture manufacturing plant and maintaining the plant,
building, and grounds. A job description established by Berkline in 1992 for multicraftsmen
states that one physical requirement is the occasional lifting of up to seventy-five pounds.
On June 9, 2005, Mr. Kinsler was injured when another multicraftsman dropped a
motor that he and Mr. Kinsler were lifting. The injury required medical treatment, during
which time Berkline placed Mr. Kinsler on modified/restricted duty repairing air tools in the
maintenance shop. Mr. Kinsler reached maximum medical improvement in September 2005.
Relying on a “functional capacity evaluation study” conducted on September 25, 2005, Mr.
Kinsler’s treating physician imposed a permanent lifting restriction of no more than thirty
pounds. Berkline returned Mr. Kinsler to the maintenance department at the same hourly rate
of pay he earned prior to his injury but with limited duties, including repairing air tools,
cleaning the shop, and answering the phone. These tasks previously had been performed by
all multicraftsmen and not assigned to a particular employee.
Mr. Kinsler repeatedly told his supervisors that he wanted to resume his pre-injury
responsibilities. Mr. Kinsler asserted that he could perform the essential duties of a
multicraftsman while remaining within his lifting restriction because multicraftsmen helped
each other and used equipment when heavy lifting was required. Berkline commissioned a
job site evaluation to determine his ability to return to his pre-injury job. The evaluation was
conducted by Andrew Smith, a physical therapist, on December 21, 2005. Mr. Kinsler, his
supervisor, and Berkline’s workers’ compensation administrator provided Mr. Smith with
a description of the maintenance multicraftsman position. Mr. Smith then weighed parts and
equipment that Mr. Kinsler “may be required” to lift, carry, or handle if he resumed his pre-
injury job.
Mr. Smith delivered a job site evaluation report to Berkline on January 5, 2006. It
stated, “There are situations that occur throughout the workday that require[ ] the lifting,
carrying, or positioning of materials/equipment/parts that could weigh over fifty pounds.”
Mr. Smith compared this information to Mr. Kinsler’s performance on the functional capacity
evaluation study and concluded that “Mr. Kinsler presently does not have the functional
capacities or capabilities to perform all of the essential duties or meet all of the physical
demand requirements of a Maintenance Multicraftsman.”
2
Contemporaneous with Mr. Kinsler’s request to resume his pre-injury responsibilities,
Berkline’s workers’ compensation administrator discussed with Mr. Kinsler settling any
workers’ compensation claims arising from the June 9, 2005 injury. Mr. Kinsler agreed to
a settlement amount, and the administrator scheduled a settlement approval hearing on
January 9, 2006. At that meeting, however, a Department of Labor representative suggested
that Mr. Kinsler complete a scheduled medical evaluation of his shoulder prior to settling his
case, and Mr. Kinsler rejected Berkline’s settlement offer.
At some point in time between January 9 and 12, 2006, Mr. Kinsler’s supervisors
reviewed Mr. Smith’s job site evaluation report. They met with Mr. Kinsler concerning the
report on January 12, 2006, and Berkline discharged Mr. Kinsler during that meeting.
Mr. Kinsler filed a retaliatory discharge claim alleging that Berkline terminated his
employment because he refused its offer to settle his workers’ compensation claim. Berkline
moved for summary judgment. It alleged that Mr. Kinsler could not prove that his rejection
of Berkline’s settlement offer was a substantial factor in its motivation to terminate Mr.
Kinsler’s employment. Berkline alleged that it discharged Mr. Kinsler for the legitimate
reason that Mr. Kinsler could not perform all of the responsibilities of a maintenance
multicraftsman with his lifting restriction.
The trial court granted summary judgment. The Court of Appeals reversed, holding
that there were genuine issues of material fact regarding Berkline’s actual motivation for
discharging Mr. Kinsler. We granted Berkline’s application for permission to appeal to
determine whether summary judgment is appropriate in this case.
Analysis
The granting or denying of a motion for summary judgment is a matter of law, and our
standard of review is de novo with no presumption of correctness. Blair v. W. Town Mall,
130 S.W.3d 761, 763 (Tenn. 2004). Summary judgment should be rendered “forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. As the
party moving for summary judgment, Berkline has the burden of showing that there is no
genuine issue of material fact as to Mr. Kinsler’s common law retaliatory discharge claim.
See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008).
For common law retaliatory discharge cases such as the one before us, the employee
has the burden of proving the four elements of the claim:
3
(1) that an employment-at-will relationship existed;
(2) that the employee was discharged;
(3) that the reason for the discharge was that the employee attempted to
exercise a statutory or constitutional right, or for any other reason which
violates a clear public policy evidenced by an unambiguous constitutional,
statutory, or regulatory provision; and
(4) that a substantial factor in the employer’s decision to discharge the
employee was the employee’s exercise of protected rights or compliance with
clear public policy.
Gossett v. Tractor Supply Co., Inc., No. M2007-02530-SC-R11-CV, __ S.W.3d __, __
(Tenn. 2010) (citing Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002)).
To show that there is no genuine issue of material fact, Berkline must either produce
or identify evidence “that affirmatively negates an essential element of the nonmoving
party’s claim or shows that the nonmoving party cannot prove an essential element of the
claim at trial.” See Mills v. CSX Transp., Inc., 300 S.W.3d 627, 631 (Tenn. 2009). Berkline
challenges Mr. Kinsler’s ability to establish the causation element of his claim. At trial, Mr.
Kinsler must show that his rejection of Berkline’s settlement offer was a substantial factor
in Berkline’s decision to discharge him. See Crews, 78 S.W.3d at 862. Mr. Kinsler’s
rejection of the settlement offer would constitute a substantial factor in Berkline’s decision
if the rejection was “an important or significant motivating factor for the discharge.”
Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993).
Berkline contends that Mr. Kinsler cannot establish that his rejection of the settlement
offer constituted a substantial factor in Berkline’s decision to discharge him. In support of
its argument, Berkline has presented evidence that it discharged Mr. Kinsler solely because
his permanent lifting restriction prevented him from performing the responsibilities of a
maintenance multicraftsman. Berkline points to Mr. Kinsler’s deposition and reports from
Mr. Kinsler’s treating physician to show that Mr. Kinsler has a permanent lifting restriction
of no more than thirty pounds. It has produced a 1992 job description stating that one
physical requirement of a maintenance multicraftsman is the lifting of up to seventy-five
pounds. Berkline also has produced a job site evaluation report stating that parts and
equipment Mr. Kinsler may be required to handle “could weigh over fifty pounds” and
concluding that Mr. Kinsler could not perform all the responsibilities of a maintenance
multicraftsman with his lifting restriction. Finally, Berkline has pointed to statements from
Mr. Kinsler’s deposition in which Mr. Kinsler admits that the maintenance multicraftsman
position requires lifting beyond his restriction approximately five times per year.
4
As we stated in Mills, determining whether the evidence identified by Berkline is
sufficient to satisfy its burden of production is unnecessary if Mr. Kinsler “has clearly stated
a genuine issue of material fact that would preclude summary judgment.” 300 S.W.3d at
634. Mr. Kinsler has identified facts in the record that call into question Berkline’s proffered
reason for Mr. Kinsler’s discharge. Cf. Martin, 271 S.W.3d at 84 (stating that a party
opposing summary judgment may show a genuine issue of material fact by “pointing to
evidence establishing material factual disputes” (citations omitted)). Mr. Kinsler has
identified the close temporal proximity, three days, between his rejection of Berkline’s
settlement offer and his discharge. He points to his affidavit in which he states that he used
“tow motors” or other forms of assistance when heavy lifting was required prior to his injury.
Mr. Kinsler further states in his deposition that he and other multicraftsmen helped each
other with heavy lifting. The record includes depositions of Berkline’s workers’
compensation administrator and of Mr. Kinsler’s supervisor, both of whom state that
maintenance multicraftsmen frequently worked together when heavy lifting was required.
Mr. Kinsler’s supervisor also states that the quality of Mr. Kinsler’s work as a maintenance
multicraftsman met the standard demanded by Berkline. Finally, a memorandum in Mr.
Kinsler’s employment file suggests that Berkline was aware that Mr. Kinsler had a lifting
restriction of forty pounds as early as 1984.
To determine whether the facts identified by Mr. Kinsler create a genuine issue of
material fact, we “must take the strongest legitimate view of the evidence in favor of the
nonmoving party, allow all reasonable inferences in favor of that party, and discard all
countervailing evidence.” Blair, 130 S.W.3d at 768. There is no genuine issue of material
fact if the undisputed facts and inferences drawn in the nonmoving party’s favor “permit a
reasonable person to reach only one conclusion.” Staples v. CBL & Assocs., Inc., 15 S.W.3d
83, 89 (Tenn. 2000).
From our review of the record, there are genuine issues of material fact as to whether
Berkline discharged Mr. Kinsler for the reasons Berkline stated or because Mr. Kinsler
rejected its settlement offer. Taking the strongest legitimate view of the evidence in favor
of Mr. Kinsler, allowing all reasonable inferences in his favor, and discarding all
countervailing evidence, the record shows that Berkline did not enforce the lifting restrictions
for the maintenance multicraftsman position as to Mr. Kinsler until three days after he
rejected its settlement offer. Based on these facts, a reasonable person could reach more than
one conclusion as to whether Mr. Kinsler’s rejection of the settlement offer was a substantial
factor in Berkline’s decision to discharge him. This genuine issue of material fact precludes
summary judgment. See Mills, 300 S.W.3d at 635; see also Wright v. Murray Guard, Inc.,
455 F.3d 702, 721 (6th Cir. 2006) (Moore, J., concurring) (“Inquiries regarding what actually
motivated an employer’s decision are very fact intensive . . . .”).
5
Because this genuine issue of material fact is easily ascertainable and dispositive of
summary judgment, conducting the burden-shifting analysis described in Hannan v. Alltel
Publishing Co., 270 S.W.3d 1, 8-9 (Tenn. 2008), is unnecessary to the disposition of this
case. Nor do we need to use the framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), as the separate opinion indicates we should, to consider this retaliatory
discharge case. We have held that summary judgment is permissible if and only if there is
no genuine issue of material fact as to an essential element. See Mills, 300 S.W.3d at 634-
35; Martin, 271 S.W.3d at 87. We have identified a genuine issue of material fact that
precludes summary judgment. Further analysis therefore is unnecessary.
Conclusion
For the reasons articulated above, we hold that summary judgment was improperly
granted in Mr. Kinsler’s common law retaliatory discharge action against Berkline. The
judgment of the Court of Appeals reversing the trial court’s grant of summary judgment is
affirmed. Costs are assessed against the appellant, Berkline, LLC, for which execution may
issue if necessary.
_________________________________
JANICE M. HOLDER, CHIEF JUSTICE
6
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13 F.2d 417 (1926)
ANDREW JERGENS CO.
v.
BONDED PRODUCTS CORPORATION.
District Court, E. D. New York.
May 26, 1926.
*418 Keyes Winter and John C. Pemberton, both of New York City (Walter A. De Camp, of Cincinnati, Ohio, and Edward S. Rogers, and Allen M. Reed, both of Chicago, Ill., of counsel), for plaintiff.
A. P. Bachman, of New York City, for defendant.
INCH, District Judge.
This is a suit in equity. Plaintiff by bill and supplemental bill seeks to restrain defendant from unfairly competing with plaintiff by the alleged misuse of the name "Woodbury" upon toilet soap and the alleged imitation of the plaintiff's wrappers, etc. The defendant duly answered and the issues have been duly tried.
Plaintiff is an Ohio corporation, and is the successor to a partnership, Andrew Jergens & Co. (all of Cincinnati, Ohio). The defendant is a corporation organized and existing under the laws of the state of New York, with its office in Brooklyn, Eastern district. Both plaintiff and defendant are therefore citizens of different states, and the jurisdiction of this court is sufficiently established.
*419 Both plaintiff and defendant are engaged in the manufacture of soap; the difference being that plaintiff manufactures and sells its own soap, while defendant in 1924 made an arrangement by which it has manufactured soap for one William A. Woodbury, who is not a party to this suit. Woodbury apparently supplied defendant with formulas and the labels, wrappers, etc. The defendant made the soap, and wrapped, boxed, and distributed it, on orders from said Woodbury.
It seems to me, therefore, that in deciding the rights of the parties it is not improper to say that, if the plaintiff can stop Woodbury from doing certain things, it can also stop defendant from doing those things for Woodbury. Saxlehner v. Eisner, 179 U. S. 19, 21 S. Ct. 7, 45 L. Ed. 60; Nims, Unfair Competition (2d Ed.) p. 667. It likewise follows that, if Woodbury has the legal or equitable right to do certain things, he can do them himself or through others, so far as unfair competition is concerned.
I mention this for the reason that parts of the controversy indirectly presented here would appear to have been thoroughly litigated in other courts between various Woodburys and plaintiff. Such decisions (hereafter referred to) seem to have decided many of the important rights belonging to the parties before such courts, and will be followed by this court. However, so far as unfair competition by defendant is concerned, even though defendant insists that it is doing what it does upon orders by, or contract with, William A. Woodbury, such decisions do not seem to be adjudications of the particular issue now presented. The subject-matter of this suit is new, different, and a question of fact, and the present suit depends on its own facts.
Plaintiff is seeking to stop the defendant from "unfairly competing," or, as has lately been said, is seeking to enforce "the law of fair dealing." Nims, Illinois Law Review, vol. 20, No. 5, p. 532. It does not seem necessary for me to cite the very great number of cases on this subject, each largely depending on its own facts.
"These cases obviously apply only where the defendant adds to his own name imitation of the plaintiff's labels, boxes, or packages, and thereby induces the public to believe that his goods are those of the plaintiff. A man's name is his own property, and he has the same right to its use and enjoyment as he has to that of any other species of property. If such use be a reasonable, honest, and fair exercise of such right, he is no more liable for the incidental damage he may do a rival in trade than he would be for an injury to his neighbor's property by the smoke issuing from his chimney, or for the fall of his neighbor's house by reason of necessary excavations upon his own lands. These and similar instances are cases of damnum absque injuria." Howe Scale Co. v. Wyckoff, Seamans, etc., 198 U. S. 118, 134, 135, 25 S. Ct. 609, 612 (49 L. Ed. 972).
It is also apparent that, in the growth of this branch of the law, a search is being made for some term comprehending more than mere "competition." Oftentimes the real wrong is a "misappropriation" by one party of the property of another, a "taking," unfairly and without compensation, of another's property, such as exists in cases of advertising. Hilson v. Foster (C. C.) 80 F. 896, 897.
I have received the depositions offered by plaintiff. An exception is given to defendant. In considering them I have not overlooked, but, on the contrary, have very carefully considered, the numerous objections to portions of each deposition. Some of these objections are undoubtedly well taken, but it would seem neither necessary nor possible to set forth in this opinion each objection and ruling. Suffice it to say that, while I do not consider the defendant in any way bound by statements alleged to have been made by shop workers and others, in the absence of proof that defendant was a party in some way to same, and therefore have not considered such testimony in coming to my conclusions, yet I have taken the depositions, and such parts as I have deemed plainly competent, for what they are worth, and from same I find sufficient to satisfy me that a real, important, and widespread confusion, between the goods of plaintiff and that put out by defendant, exists, not only in local markets, but throughout this country.
Defendant indicates that no relief should be granted plaintiff for the reason that, after the suit was commenced, the defendant stopped all work complained of. It seems to me that I should decide according to the facts existing at the time suit was commenced. Vick Co. v. Vick Co. (C. C. A.) 11 F.(2d) 33, 35. The following facts should be stated:
The plaintiff corporation is the successor of a partnership of a similar name, which for over a quarter of a century has been making soap. Prior to 1901 it manufactured soap for one John H. Woodbury, who was then the head and brains of the Woodbury Dermatological Institute, in which the said John H. Woodbury, a cousin, William A. Woodbury, and one P. M. McCargo were interested. The said William A. Woodbury's duties "seem to have been those of a general manager, with *420 more or less supervision over all the departments of the Institute, but in charge particularly of its advertising." Andrew Jergens Co. v. Woodbury, Inc., infra.
On June 13, 1901, a written agreement was entered into between said partnership (to which plaintiff succeeded) and the said Woodburys, McCargo, and Woodbury Institute, by which the Jergens Company, for the sum of some $200,000, etc., purchased eight different commodities, among which was a well-known "facial" soap, and the vendors "duly assigned, transferred, and delivered to the vendee all and each of their right, title, and interest in and to the aforesaid soap, etc., together with all trade-marks, copyrights and privileges of every name and nature whatsoever appurtenant to the ownership thereof."
As I have said, the Jergens Company, prior to this purchase, had been making this soap for the Woodburys. The agreement simply meant that they now owned for themselves that which had previously been manufactured by them (at least, so far as soaps go). The Woodburys apparently had spent considerable money and skill in advertising this "facial" soap. It had a trade-mark connected with its sale, consisting of a neckless head of John H. Woodbury and the name "John H. Woodbury's" above his head in large type.
This soap became very popular, especially in connection with the so-called "beauty business." In fact, so far as I can see, this was about all there was to the Dermatological Institute, and the considerable sum at that time paid by Jergens Company would indicate that, in those days of a dollar with larger purchasing power, it was considered by all parties extremely valuable. There were other soaps and preparations still retained by the vendors. Whether or not they were really worth anything does not seem to me to be so apparent. See Defendant's Exhibits U and V and testimony of Peyton R. McCargo, S. M. 92.
The effect of this purchase agreement of 1901 has already been, to some extent, considered by the decisions in the said litigations between plaintiff and the Woodburys. After 1901, the Jergens Company, first as a partnership and later as a corporation, entered into a very extensive advertising campaign, running into enormous sums of money, as a result of which the previous good impression and somewhat wide reputation of this Woodbury's "facial" soap (in my opinion, the principal soap of said vendor) was tremendously increased and extended, and, as is natural, the consumers, whether individual or merchant, soon fell into the easy way of referring to this soap as the "Woodbury soap." It was but a short step from this to the considering by the public of "any" soap called "Woodbury" to be from the same source. In other words, it has already been found that the surname "Woodbury" had acquired a "secondary" meaning. Jergens v. Woodbury, Inc., infra.
In 1905 the Institute entered into an agreement with a New York corporation, by name the Woodbury Company, which contract has been construed as conveying all rights to use the trade-name "Woodbury," that the said "Dermatological Institute" had theretofore enjoyed, save only "such limited rights" as were granted by it by the said agreement of 1901 between the Jergens Company and the Woodburys et al. Jergens Co. v. Woodbury, Inc., infra. In 1908 the Institute went into bankruptcy, and the Jergens Company obtained an assignment from a trustee in bankruptcy, through a third person, of all the right, title, and interest of the "Woodbury Dermatological Institute," bankrupt, in the "trade-mark," together with an "exclusive" right to manufacture and sell a number of other proprietary toilet articles. The effect of this assignment has also been considered. Jergens Company v. Woodbury, Inc., infra.
We have, therefore, in 1909, the Jergens Company carrying on this extensive advertising and business of selling Woodbury's "facial soap" etc., with the Woodbury Dermatological Institute completely denuded of all assets, by the 1901 agreement, plus the 1905 agreement, and, if anything had been left, by the 1909 agreement. From that time on there has been no such thing as the Woodbury Dermatological Institute. Also John H. Woodbury died in 1909.
These facts are significant, for the general public have not gone into these details, and their continued belief that the one source is the original Woodbury and his Woodbury's Institute appears to me to be a fact from the record here. We now come to the first of what I deem to be a series of efforts of others to enjoy the advertising paid for by plaintiff.
Several years before John H. Woodbury died, and after he with the others had duly entered into the agreement with the Jergens Company on June 13, 1901, he and a concern called "Woodbury-McGrath Company" started to sell to the public what was termed "Woodbury's New Skin Soap." This sort of unfair competition with the Jergens Company, which, as we have seen, had previously paid a great deal of good money to this Woodbury and his associates for his Woodbury's "facial" soap, and had been promised that it could enjoy the "privileges of every *421 name and nature whatsoever appurtenant to the ownership thereof," compelled the Jergens Company to seek an injunction. This was done in the courts of the state of New York. Jergens Co. v. Woodbury et al., 197 N. Y. 66, 90 N. E. 344, reargument denied 197 N. Y. 581, 91 N. E. 1109.
The Jergens Company succeeded in the lower court in obtaining an injunction restraining John H. Woodbury and his associates from manufacturing or selling any soap, under the name "Woodbury," or under any name which contains "Woodbury," or any soap so manufactured, wrapped, or sold as to lead or be calculated or designed to mislead the public or the trade to believe that the same is "Woodbury's soap," or "Woodbury's facial soap," or the soap manufactured by plaintiff (Jergens Company) under the name "Woodbury," or a new or improved brand thereof.
The Appellate Division of the Supreme Court unanimously affirmed this decision. The Court of Appeals modified this judgment, stating: "It follows that the injunction embodied in the judgment is right, so far as it is effectual to restrain the defendants from using the name `Woodbury' in connection with any of the articles specified in the contract and also so far as it restrains them from making and selling `Woodbury's New Skin Soap.' It goes too far, however, in forbidding the defendants from using the name `Woodbury' on other soaps or in connection with other articles, where such use is not deceptive or misleading. The judgment should be modified by striking therefrom the restraining paragraph, and substituting therefor the following: `Adjudged and decreed that the defendants John H. Woodbury and the Woodbury-McGrath Company, and their respective agents, servants, attorneys, officers, and employees, and all persons claiming under them or either of them since June 13, 1901, be perpetually restrained and enjoined from selling or offering for sale the soap known as Woodbury's New Skin Soap, or any other soap under such a name or designation, or put up or prepared in such a manner as to be calculated to lead the public or trade to believe that in purchasing said soap they are purchasing Woodbury's Facial Soap or a new brand thereof.'" Jergens Co. v. Woodbury, 197 N. Y. 67, 68, 90 N. E. 344. (Italics mine.)
It would seem, therefore, that the Court of Appeals plainly decided that John H. Woodbury could continue to use his name in spite of the 1901 agreement. If John H. Woodbury could do so, I see no reason to distinguish William A. Woodbury, who also was a party to that agreement. (It is defendant's claim that it is only manufacturing, etc., these soaps now complained of by plaintiff as to wrappers, etc., for William A. Woodbury.)
Therefore, while it has been substantially decided that any party vendor to the 1901 agreement can continue to use his individual name in connection with soap, yet it has been made clear that plaintiff is not to be confined within the rigid and narrow limitations of the word "facial" when applied to soap, but that, on the contrary, if the facts of the particular case indicate that the public is being confused and misled and deceived into believing something to be true that is false by the advertising or merchandise of a "Woodbury," then such "unfair competition" or "unfair dealing" or "misappropriation" will not be allowed to continue simply because a different word than "facial" had been used to designate the soap. In other words, if the public or trade had been led to believe, by reason of the manner in which it is put up or prepared for the market, that in purchasing same that they are purchasing Woodbury's "Facial" Soap or a new brand thereof, then such acts on the part of a defendant, even though he be a "Woodbury," will be restrained.
So much, then, for the above decision and its effect on the issues now presented before me. We now come to the second decision, which is Andrew Jergens Co. v. Woodbury, Inc. (D. C.) 273 F. 952, affirmed (C. C. A.) 279 F. 1016, certiorari denied 260 U. S. 728, 43 S. Ct. 92, 67 L. Ed. 484.
This decision represents the determination of a suit brought by plaintiff against William A. Woodbury Distributors, Inc., Woodbury, Inc., and Woodbury System, Inc. It indicates that, after the death of John H. Woodbury and the said decision in the state Court of Appeals, the Jergens Company encountered new competition in the sale of its "facial soap" by reason of a confusion by the public as to soaps made by William A. Woodbury. It accordingly sought an injunction. Among other things the court found as follows:
"It cannot be denied that the evidence discloses that some confusion exists in the public mind as to the origin of the articles of the respective parties, yet, so far as I have been able to discover from the evidence, such confusion as does exist arises from the exercise of the legal rights of the respective parties, and not from any wrongful act of the Distributors. Such confusion seems wholly attributable to the fact that two separate and distinct corporations, deriving their title from *422 a common source, have the right to use the same mark and name upon different articles and preparations of the same general class, and to the further fact that an individual has, subject to certain conditions (observed, I think, by the Distributors), the right to use his name in his business, although his surname may have acquired a secondary meaning, and to transfer that business to a corporation bearing his name. Howe Scales Co. v. Wyckoff, Seamans, etc., 198 U. S. 118, 25 S. Ct. 609, 49 L. Ed. 972; Waterman Co. v. Modern Pen Co., 235 U. S. 88, 35 S. Ct. 91, 59 L. Ed. 142.
"* * * While I have given this limited detailed consideration to the question of infringement of complainant's rights by the Distributors, I do not understand the complainant to contend that the defendants or any of them have violated or threatened to violate any rights which the Jergens Company claims under the 1901 contract; its charges of infringement having been predicated mainly, if not entirely, upon the hypothesis that it has the sole and exclusive right to use the neckless head trade-mark and the name `Woodbury' upon toilet articles and dermatological preparations." Andrew Jergens Co. v. Woodbury, Inc. (D. C.) 273 F. 952, 966. (Italics mine.)
This decision was affirmed by the Circuit Court of Appeals.
Accordingly it has been clearly decided by two previous courts, in litigations between the Jergens Company and the other parties to the said 1901 agreement, that plaintiff has not the exclusive rights to the word "Woodbury"; that William A. Woodbury (and during his lifetime John H. Woodbury) could and can use their own names in the manufacture of soap; that, even though the name "Woodbury" has received a "secondary meaning" in the minds of the public, there is no exclusive right thereto in the Jergens Company. It would seem to have been left open, upon proof of facts belonging to each case, for a court of equity to ascertain whether or not a "Woodbury," by himself or through another, and in spite of all the above rights to use the name, is deceiving "the public" into thinking that his soap is plaintiff's "facial" soap or a new brand thereof.
By "the public" we mean "that vast multitude which includes the ignorant, the unthinking, and the credulous, who, in making purchases, do not stop to analyze, but are governed by appearances and general impressions." Florence Mfg. Co. v. Dowd, 178 F. 73, 101 C. C. A. 565. The issue thus left, after considering the above rights, agreement, etc., as construed by previous and controlling decisions, becomes narrow and dependent largely on the facts. Let us now consider this issue.
Plaintiff complains, among other things, of the use by defendant, in wrapping soap for William A. Woodbury, of the wrappers "Woodbury's Calamined Soap," "Woodbury's Skin Soap" (bill of complaint), and "Skin Soap, William A. Woodbury, Ideal." I have decided to limit my consideration to these soaps concededly made and wrapped by defendant. There is some confusion about others. Therefore I am deciding as to "Calamined Soap" (1924), the "Skin Soap, with black wrapper," and the "Skin Soap, with the blue wrapper" (1925).
The plaintiff, in view of the decisions, cannot yet hope to have an adjudication that to it alone belongs the word "Woodbury." Eventually there may be no "Woodbury" left to take the field of soap manufacture and assert a right to the name, and such right, because of the nonexistence of a rival business, may become exclusive. The trade-mark functions only when connected with an existing business. Hanover Milling Co. v. Metcalf, 240 U. S. 423, 36 S. Ct. 357, 60 L. Ed. 713; United Drug Co. v. Rectanus, 248 U. S. 90, 39 S. Ct. 48, 63 L. Ed. 141. But I should imagine from the experience shown in the past 25 years that this situation is far distant.
Nor does it seem to me possible for plaintiff, by force of expenditure of great sums of money, in an effort to emphasize the single word "Woodbury," as some of the exhibits indicate, to enlarge its rights in this name beyond that allowed by the courts. Far better, it would seem to me to be, for plaintiff to commence to inform the public that the original and famous Woodbury's "Facial" Soap was manufactured by it for Woodbury, and that the Jergens-Woodbury soap is the soap they want.
Simply because the "Calamined" soap of William A. Woodbury is a 10-cent cake, while plaintiff's soap costs more, affords no reason to interfere. "The mere fact that one knows that cheap goods sold by him to the trade, stamped with his name, can and will be sold by dishonest dealers under representations that they are manufactured by a company of established reputation having a similar name, which manufactures a high class of goods, does not justify an injunction against the use of such stamp." Rogers v. William Rogers Co., 70 F. 1019, 17 C. C. A. 575.
The court should be most cautious not to interfere, without proper cause, in business ventures between individuals, and the right *423 of a man to use his own name has rarely been prohibited. As has been said, "judicial paternalism should be avoided; there should be no officious meddling by the court with the petty details of trade; but, on the other hand, its process should be promptly used to prevent an honest business from being destroyed or invaded by dishonest means." Hilson Co. v. Foster (C. C.) 80 F. 896.
The facts in the case of Westphal v. Westphal, 216 App. Div. 53, 215 N. Y. S. 4, are very different from the facts here. There the court says: "The evidence shows and is uncontradicted that the president of the defendant, young Paul Westphal, has threatened to destroy the plaintiff and to drive it into bankruptcy by appropriating the name `Westphal's.'" And even in that case two of the justices dissented, on the ground: "The injunction is too broad. It absolutely restrains the use by defendant Westphal of his own name." Finally, while that case should be considered with the utmost care, due to the high authority from which it comes, it is not the same as a final decision by the Court of Appeals of the state.
I think I may reasonably infer that the courts of the state had before them the 1901 agreement in the suit of Jergens Co. v. John H. Woodbury, supra. It is plainly shown that such agreement was before the federal courts in the case of Jergens Co. v. William A. Woodbury et al., supra. In the state courts we have an injunction allowed by the highest court, preventing, on the facts found, the sale by John H. Woodbury, because of its wrappers, etc., of a "New Skin Soap." In the federal courts we have the statement, above quoted, to the effect that nothing therein decided was to be considered as affecting a proved violation of the agreement of 1901.
Bearing the above in mind, I have examined the wrappers complained of, and the method pursued by defendant, for William A. Woodbury, in merchandising the "Calamined" and "Skin" and "Ideal" soap, and am satisfied, on the facts proved, that, to the extent to be indicated in this opinion, defendant has been unfairly dealing, unfairly competing, and unfairly appropriating. In doing this, I assume that William A. Woodbury has a right to use his own name in making soap, I also assume that plaintiff has no exclusive right to the name "Woodbury" in connection with a cake of soap. I am equally well satisfied that the proofs sufficiently show, aside from all incompetent testimony, that the general public has been greatly confused between soap made by defendant for William A. Woodbury and that made by plaintiff, in the form of John H. Woodbury's "Facial" Soap; that such confusion has been intentionally caused by William A. Woodbury and carried out by defendant.
So far as I can see, the Woodbury's "Facial" Soap was the first to become, and remains so to-day, the most prominent "Woodbury" soap on the market. The plaintiff has been associated with its manufacture and sale for over a quarter of a century. In this sense, plaintiff's soap has been the first on the market. Second comers in the market, while they should be allowed all reasonable opportunity to expand their business, nevertheless should and could avoid, and in fact under ordinary circumstances should be anxious to avoid, confusion of their product with that of another. It is not the province of this court to designate the kind of change or character of that type that would accomplish this result, although this occasionally has been done. Donnell v. Herring, 208 U. S. 267, 274, 28 S. Ct. 288, 52 L. Ed. 481; Baker v. Sanders, 80 F. 889, 895, 26 C. C. A. 220; Waterman Co. v. Modern Co., 235 U. S. 88, 35 S. Ct. 91, 59 L. Ed. 142. I fear, however, that any such allowed use here of such distinctions, unless very carefully used, would probably result in the same subtle deceit now apparent in defendant's wrappers, etc.
Sincerity and not subterfuge is required. "Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccompanied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the foregoing adjudications." Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 188, 16 S. Ct. 1002, 1009, 41 L. Ed. 118. "The fair and honest use of a person's own name in his ordinary and legitimate business, although to the detriment to another, will not be interfered with. A tricky, dishonest, and fraudulent use of a man's own name, for the purpose of deceiving the public, and of decoying it to a purchase of goods under a mistake or misapprehension of facts, will be prevented." Rogers v. Rogers, 70 F. 1017, 17 C. C. A. 576. Opinions of Shipman and Wallace.
Thus it would seem to be required that the defendant must wrap and vend its soap, so as to make it plain "even to the ignorant and unwary person" that its soap is its own, and not that of plaintiff's. A defendant must be sincere, and not "slick," however much the inducement. He should not deliberately confuse, *424 in the minds of the public, the source of his wares. As has been said: "As is usual in such cases, the alleged infringer insists that he had no intention to dress up his goods to resemble complainant's; that, on the contrary, the very identity of the surnames, Baker, `made him all the more careful to avoid any confusion therefrom.' * * * His success in accentuating differences has certainly not been remarkable, and it is curious to note how frequently in cases of this kind the designer's efforts to produce wrappers, labels, and inscriptions which shall be distinctly characteristic of some new make of goods result only in producing confusion with some earlier and well-known brand." Walter Baker v. Sanders, 80 F. 889, 892, 26 C. C. A. 220, 223.
Bearing in mind the agreement of 1901 between William A. Woodbury and others and the Jergens Company, and particularly the clause by which the former sold to the latter "privileges of every name and nature whatsoever appurtenant to the ownership" of the famous Woodbury "Facial" Soap, the decision in the case of the original John H. Woodbury that he could not unfairly compete with the Jergens Company in selling a "New Skin Soap" or what the public might confuse with "a new brand of facial soap," and the fact that the proof in this case plainly shows the first and best known "Woodbury soap" in the market was the soap put out by the "Institute," and that the public has become so used to considering this soap as not to distinguish it from other soaps, and that by the very long continued association of the Jergens Company with the manufacture and sale of this particular soap, and its immense advertising of that fact, together with the fact that over 16 years ago the Institute disappeared entirely in bankruptcy and no longer exists (a fact to which the general public probably never gives a thought, so that the identity of source of the Jergens soap is still found to be in that direction), it would seem to me that the "privilege," if any there be, of having no confusion in this regard, produced in the minds of the public, was a "privilege" distinctly granted to the Jergens Company by the agreement of 1901, when it was made with the Jergens Company by this same William A. Woodbury among others.
I am convinced that defendant as well as its principal or joint tort-feasor are well aware of this situation. I am not aware that any of these soaps, such as "Calamined," "New Skin," or "New Skin Ideal," were ever made or sold by the "Institute." They apparently are the new product of William A. Woodbury. Certainly, so far as I can see, the designs of the wrapper are new.
There is no exclusive right in the mere color of wrappers. The wrong, if any, exists when a fraud on the public is caused by the use of similar colors, as an element, in the real deceit forbidden, to wit, the intentions and deliberate confusion, misleading the public to believe that both products are apparently from a same well known source. It is the "ordinary purchaser" that is to be protected from this confusion. Von Mumm v. Frash (C. C.) 56 F. 830. It has been well said: "It is so easy for the honest business man, who wishes to sell his goods upon their merits," to avoid this confusion. Florence Co. v. Dowd, 178 F. 73, 101 C. C. A. 565.
Moreover, while a man may have the right to use his own name, this might seem to be his whole name, not necessarily but a portion thereof, particularly where, by emphasizing that portion, the facts show that a confusion has been deliberately caused. However, I shall consider this determined in defendant's favor by the previous decision in the federal courts. There has been no decision presented to me that this defendant or William A. Woodbury has the right to use "collateral information," however true in fact it may be, except where allowed by contract or "fair dealing," where the use thereof in connection with the man's name creates a confusion causing damage which should and can be avoided. Furthermore, if, in all fairness and equity, the "privilege," if any there be, to use such "collateral information," would seem to have been expressly agreed upon, in writing, to belong to one party to the agreement, the other party should not proceed to use such information, in order to confuse the public, and injure the first party's right to sell its products, which it has honestly and fairly obtained.
In cases where the imitation and confusion are deliberately caused by crude and bold methods, no difficulty is experienced by the courts, nor in cases where the product is one that is fraudulently advertised as the product of another. Where, however, there are present certain legal rights, such as the right to use one's name, etc., a plausible argument can always be made by the infringer. Yet in just such cases, where the intentional imitation and unfair competition is subtle, even more damage may be caused because of the inability of the vendor to reach the intelligence of the many wholesale, retail, and individual purchasers, who indeed might be ready themselves, without a warning, to reject the more plain and open fraud. "The public do not go *425 into the minuter refinements of the title or the label." Walter Baker v. Sanders Co., 80 F. 889, 26 C. C. A. 220.
We have here, it seems to me, a case of this subtle advertising. While most of the relief really desired by plaintiff has been decided adversely to it, by the decisions in the state court (Jergens v. John H. Woodbury et al., supra) and in the federal court (Jergens v. Woodbury, Inc., supra), there still remains, not only because of the agreement of 1901, but because of the facts of this case, an "unfair dealing," or "competition," or "misappropriation" by defendant by and for the said William A. Woodbury, and shown in the wrappers complained of in the bill of complaint and supplemental bill of complaint.
Aside from the general appearances, and the emphasizing of one part of the name without any attempt to plainly show that its producer has no connection whatever with the manufacturers and sellers of the famous John H. Woodbury's "Facial Soap," we find the following references in each to the equally famous "John H. Woodbury" and "Woodbury Institute," both of which long ago ceased to exist. The former has been plainly identified by plaintiff, by the expenditure of a great amount of plaintiff's money, through a period of some 25 years, with plaintiff's soap. The latter to a less extent has been so identified. William A. Woodbury must know this. It seems to me such references are not unintentional or inadvertent. They have been found to have value, and to have occasioned a profit, by creating a confusion as to the source of the soap made by defendant and that made by plaintiff.
As I have said, I do not believe that it has been decided by any court that a right to set forth this "information" on the part of defendant or William A. Woodbury exists, and where, as I believe it does, it is used to create a "confusion" in the minds of the public, it constitutes an "unfair act" in the sale of soap, which a court of equity can stop. I suppose anybody can call himself a "famous author" or "dermatologist," although a greater portion of the time he had been engaged in advertising. It is likewise natural, perhaps, to hold in high regard, and keep same before the public, a cousin who had become famous as a soap seller; but, if the result is that "the public" confuses the "cousins" and confuses the "dermatologists," there would seem to be a necessity for a plain statement of "who is who," so that there need be no confusion whatever in a purchaser's mind, as to the source of soap now offered to him.
We find, in each of the wrappers complained of, a reference as follows:
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| Wm. A. Woodbury was Managing Director |
| & President of the famous Dermatological |
| Institute during the years |
| of its greatest growth and reputation. |
--------------------------------------------
----------------------------------------------
| Wm. A. Woodbury |
| |
| Wm. A. Woodbury is recognized as |
| the greatest living authority on Beauty |
| Culture being the author of its popular |
| textbooks, and having managed for years |
| the famous Dermatological Institute |
| founded by the late John H. Woodbury. |
| |
| Therefore his name on any toilet article |
| means; high quality ingredients, |
| compounded by expert chemists according |
| to modern formulae, perfected by |
| years of experience catering to a critical |
| public. |
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Exhibit B, Woodbury's Calamined Soap.
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| Wm. A. Woodbury was for years Managing |
| Director and President of the celebrated |
| Dermatological Institute founded |
| by the late John H. Woodbury. |
--------------------------------------------
---------------------------------------------
| Based on two generations of experience, |
| this Soap is offered as the Standard |
| Detergent for cleaning the skin and |
| clearing the complexion. |
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Skin Soap, Woodbury Exhibit B s.
"Wm. A. Woodbury was for years Director and President of the celebrated Dermatological Institute founded by John H. Woodbury."
"Based on two generations of experience, this Soap is offered as the Standard Detergent for cleaning dry, fine, delicate skin, and clearing and beatifying the complexion."
Skin Soap Ideal, Exhibit B 6.
For what purpose, therefore, and by what right, in fair dealing, does this William A. Woodbury, by defendant, constantly and in various forms reiterate to the trade the name of his famous cousin "John H. Woodbury"; that his soap is perfected by years of experience, in connection with his management of the equally famous "Woodbury Institute."
William A. Woodbury's soap may be in itself a fine article; it may be every bit as good, in every way, as any other soap on the market; but why this widely advertised clinging to the reputation made by the "original Woodbury," with the subtle use of names and source, innocent in themselves, if carefully read, but entirely misleading to an ordinary purchaser, unaware of the subtlety which is misleading him?
Of course, the purpose is to confuse the trade and make a purchaser believe that "William A. Woodbury" and "John H. Woodbury" are for all useful purposes the same *426 source (although one made the soap and the other advertised it); that the cake of soap now offered is not only from the same source as that of plaintiff, but that it has the same excellent qualities and standard, which the purchaser has been taught for 25 years is associated with the original "John H. Woodbury's Facial Soap" and Woodbury's Institute, with the additional inducement that this "new brand" is a great deal cheaper. The latter, while not in itself sufficient, may not be overlooked, where "unfair" means are being used in a sale. The purpose has succeeded.
Therefore, while I cannot see my way clear, in view of previous decisions, to grant the broad injunction asked for in section (1) of paragraph (b) of this complaint, it does seem to me that I am justified, on the facts here, in granting an injunction as asked for in section (2) of paragraph (b), to the extent of requiring a plain, express disclosure on each wrapper, sufficient to reasonably avoid the confusion that now exists, and that the defendant cease from this subtle advertising of its soaps by reference to either "John H. Woodbury" or the Woodbury Dermatological Institute, both of whom were parties to the 1901 agreement, as well as William A. Woodbury, whose orders, etc., defendant claims it is simply carrying out. The "privilege" to use this information is in plaintiff, if in anybody.
As I have said, William A. Woodbury and his associates are not before me; the defendant is, and therefore it alone can be forbidden. This does not mean that William A. Woodbury and his associates, or defendant, need stop making soap, but it does mean that reasonable and sincere ways must be devised, in accordance with this opinion, and as plainly as possible, so that no person, however unwary or careless, need longer be confused as to the respective soaps, or that in buying a William A. Woodbury soap he is buying the original John H. Woodbury's "Facial Soap," originally put out by John H. Woodbury's Dermatological Institute, or some new brand thereof.
Decree for plaintiff in accordance with this opinion.
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United States Court of Appeals
For the First Circuit
No. 98-1326
PENOBSCOT NATION,
Appellant,
v.
CYNTHIA A. FELLENCER,
Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U. S. District Judge]
Before
Lipez, Circuit Judge
Coffin and Campbell, Senior Circuit Judges
Kaighn Smith, Jr., with whom Gregory W. Sample was on brief
for appellant.
Michael A. Duddy for appellee.
January 19, 1999
LIPEZ, Circuit Judge. This case requires us to revisit and
further define the allocation of sovereign powers between the
Penobscot Nation (the Nation) and the State of Maine. The question
before us is whether the decision of the Penobscot Nation Tribal
Council to terminate the employment of a community health nurse
constitutes an "internal tribal matter" within the meaning of the
Maine Indian Claims Settlement Act of 1980, 25 U.S.C. 1721 -
1735. The district court held that it does not. We disagree.
That employment termination decision is an "internal tribal matter"
and, as such, cannot be challenged in the courts of Maine pursuant
to the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5,
4551 et seq.
I.
The undisputed material facts are recounted thoroughly in the
district court's opinion. See Penobscot Nation v. Fellencer, 999
F. Supp. 120 (D. Me. 1998). We provide only a brief sketch to set
the stage. Cynthia A. Fellencer was employed by the Penobscot
Nation as a Community Health Nurse/Diabetes Program Coordinator
(community nurse) from December 1992 until September 1994, when the
Penobscot Nation Tribal Council voted to terminate her employment.
Fellencer, who is a non-Indian, filed a charge of discrimination
with the Maine Human Rights Commission (MHRC) alleging that she had
been discharged due to her race and national origin. The MHRC
dismissed her complaint for lack of jurisdiction, finding that
adjudication of the claim "would create a serious potential of
State interference with the internal affairs of the tribal
government, a result clearly not intended by the Maine Indian
Settlement Act." MHRC Administrative Dismissal, Case No. E94-0730
(Jan. 30, 1995).
Fellencer subsequently filed suit in the Maine Superior Court
against the Penobscot Nation, claiming that the Nation had
terminated her employment (1) without due process and (2) "due to
her race and/or national origin in violation of the Maine Human
Rights Act." She claims that subsequent to her termination the
community nurse position was posted with an express preference for
Indian applicants. The Nation filed a motion to dismiss, which was
denied.
On October 20, 1997, the Nation filed the instant action in
the federal district court seeking a preliminary injunction to stay
the state court proceeding. Cross motions for summary judgment
were filed. On March 13, 1998, the district court denied the
Nation's request for a preliminary injunction and entered judgment
in favor of Fellencer, thereby permitting the state court case to
proceed. The district court's denial of the preliminary injunction
can be reversed where there has been a "misapplication of the law
to particular facts" or an "application of the wrong legal
standard." See Planned Parenthood League of Mass. v. Bellotti, 641
F.2d 1006, 1009 (1st Cir. 1981); see also Narragansett Indian Tribev. Narragansett Elec. Co., 89 F.3d 908, 912 (1st Cir. 1996)
(reversing district court's denial of preliminary injunction). We
conclude that there was a misapplication of the law.
II.
The backdrop to the state and federal court proceedings is
some familiar history. In the early 1970s, the Nation (in concert
with the Passamaquoddy Tribe and others) filed suit claiming nearly
two-thirds of Maine's land mass as their ancestral homelands. SeePassamaquoddy Tribe v. Maine, 75 F.3d 784, 787 (1st Cir. 1996)
(citing Joint Tribal Council of the Passamaquoddy Tribe v. Morton,
528 F.2d 370 (1st Cir. 1975)). After federal authorities
interceded, the parties negotiated a compromise which was approved
by Maine, the Penobscots, the other Indian parties, and Congress.
The compromise is memorialized in two statutes: the Maine
Implementing Act, Me. Rev. Stat. Ann. tit. 30, 6201-14 (the
Implementing Act), and the Maine Indian Claims Settlement Act, 25
U.S.C. 1721-35 (the Settlement Act). The settlement represented
a partial victory for the Nation and Maine: the Nation obtained
federal recognition as an Indian tribe and received almost one half
of $81.5 million appropriated under the Settlement Act (see 25
U.S.C. 1733) and, in exchange, the Nation's claims against Maine
were extinguished. Further, while the Nation's right to self-
government was preserved to a limited extent, Maine was permitted
to extend its jurisdiction over the Nation to a greater degree than
most states exercise over other Indian tribes. See Akins v.
Penobscot Nation, 130 F.3d 482, 484-85 (1st Cir. 1997).
As a result of the settlement, the relationship between the
Penobscot Nation and Maine is governed primarily by the
Implementing Act (state) and the Settlement Act (federal). The
Implementing Act provides as follows:
[T]he Passamaquoddy Tribe and the Penobscot Nation,
within their respective Indian territories, shall have,
exercise and enjoy all the rights, privileges, powers and
immunities, including, but without limitation, the power
to enact ordinances and collect taxes, and shall be
subject to all the duties, obligations, liabilities and
limitations of a municipality of and subject to the laws
of the State, provided, however, that internal tribal
matters, including membership in the respective tribe or
nation, the right to reside within the respective Indian
territories, tribal organization, tribal government,
tribal elections and the use or disposition of settlement
fund income shall not be subject to regulation by the
State.
Me. Rev. Stat. Ann. tit. 30, 6206(1) (emphasis added). We have
previously recognized that "[a]s to state law, the Penobscot Nation
and Maine expressly agreed that, with very limited exceptions, the
Nation is subject to the laws of Maine." Akins, 130 F.3d at 484-
85.
The Implementing Act was incorporated by reference into the
Settlement Act, 25 U.S.C. 1721-1735. See 25 U.S.C.
1721(b)(3). In ratifying the Implementing Act, Congress sought to
balance Maine's interest in continuing to exercise jurisdiction
over the Nation's land and members (which it had done without
interference for almost two centuries), see Bottomly v.
Passamaquoddy Tribe, 599 F.2d 1061, 1064-65 (1st Cir. 1979), with
the Nation's "independent source of tribal authority, that is, the
inherent authority of a tribe to be self-governing." S. Rep. No.
96-957, at 29 (1980) (citing Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978)). Both the House and Senate sought to assuage the
Nation's fears that the settlement undermined its sovereignty:
While the settlement represents a compromise in which
state authority is extended over Indian territory to the
extent provided in the Maine Implementing Act, ... the
settlement provides that henceforth the tribes will be
free from state interference in the exercise of their
internal affairs. Thus, rather than destroying the
sovereignty of the tribes, by recognizing their power to
control their internal affairs ... the settlement
strengthens the sovereignty of the Maine Tribes.
S. Rep. No. 96-957, at 14; H.R. Rep. No. 96-1353, at 14-15,
reprinted in 1980 U.S.C.C.A.N. at 3790.
III.
As the language of the Implementing Act and the federal
legislative history make clear, the critical phrase to analyze in
determining the scope of tribal sovereignty is "internal tribal
matters." When the Nation acts on "internal tribal matters," its
actions are not subject to regulation by the state. Me. Rev. Stat.
Ann. tit. 30, 6206(1). Because the phrase "internal tribal
matters" was adopted by the federal Settlement Act, the meaning of
that phrase raises a question of federal law. See Akins, 130 F.3d
at 485; see also Bottomly, 599 F.2d at 1066 ("until Congress acts,
the tribes retain their [] sovereign powers").
Before we examine the language of the Implementing Act, we
must acknowledge some general principles that inform our analysis
of the statutory language. First, Congress' authority to legislate
over Indian affairs is plenary and only Congress can abrogate or
limit an Indian tribe's sovereignty. See U.S. CONST., art. I, 8,
cl. 3; Morton v. Mancari, 417 U.S. 535, 551-53 (1974) (discussing
the plenary power of Congress to deal with special problems of
Indians); see also F. Cohen, Handbook of Federal Indian Law 231
(1982 ed.) ("Neither the passage of time nor apparent assimilation
of the Indians can be interpreted as diminishing or abandoning a
tribe's status as a self governing entity."). Second, special
rules of statutory construction obligate us to construe "acts
diminishing the sovereign rights of Indian tribes ... strictly,"
Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st
Cir. 1994), "with ambiguous provisions interpreted to the
[Indians'] benefit," County of Oneida v. Oneida Indian Nation of
New York, 470 U.S. 226, 247 (1985). These special canons of
construction are employed "in order to comport with the[]
traditional notions of sovereignty and with the federal policy of
encouraging tribal independence," White Mountain Apache Tribe v.
Bracker, 488 U.S. 136, 143-44 (1980), and are "rooted in the unique
trust relationship between the United States and the Indians,"
County of Oneida, 470 U.S. at 247.
A. The Language of the Statute
The Implementing Act preserves the Nation's sovereignty with
respect to
internal tribal matters, including membership in the
respective tribe or nation, the right to reside within
the respective Indian territories, tribal organization,
tribal government, tribal elections and the use or
disposition of settlement fund income ....
Me. Rev. Stat. Ann. tit. 30, 6206(1). While the list of
exemplars following "internal tribal matters" informs the meaning
of that term, the list is not exclusive or exhaustive. In fact, we
declared in Akins that the exemplars "provide limited guidance."
Akins, 130 F.3d at 486. We also recognized in Akins that the fact
"[t]hat a tribe attempts to govern a matter does not render it an
internal tribal matter." Id.
B. The Akins Precedent
Akins was our first occasion for addressing the allocation of
sovereign powers between the Nation and the State of Maine pursuant
to the Implementing Act and the Settlement Act. The Nation had
adopted a policy allowing only enrolled members of the tribe who
lived on the reservation to be eligible for timber permits to
harvest timber on tribal lands. See Akins, 130 F.3d at 483.
Akins, an enrolled tribal member who had moved off the reservation,
lost his timber permit as a result of the change in policy. Id. at
483-84. Akins sued in federal court, claiming that the Nation had
violated his rights to due process and equal protection, and that
the Nation had violated his right to be free from bills of
attainder. Id. at 484. We held that Akins' claims involved an
"internal tribal matter" and were subject to the exclusive
jurisdiction of the tribal courts. Id. at 490.
We identified five considerations in Akins that were
persuasive in characterizing the grant of timber rights as an
"internal tribal matter." These considerations were: (1) the
disputed policy regulated only tribal members; (2) the policy
related to lands acquired by the Nation with federal funds received
for that purpose, and the lands were considered "Penobscot Indian
Territory"; (3) the policy affected the Nation's ability to
regulate its natural resources; (4) at least on its face, the
policy did not implicate or impair the interest of the State of
Maine; and (5) the recognition that the timber harvesting policy
involved an "internal tribal matter" was consistent with prior
legal understandings. Akins, 130 F.3d at 486-87. We did not
offer these considerations as an essential test for determining
which tribal actions constitute "internal tribal matters," see id.at 487 (noting that "generalizations in this subject [of tribal
authority] have become ... treacherous" and that "[w]e tread
cautiously and write narrowly"), and we do not offer them now for
that purpose. Instead, we use the Akins considerations as one
source of guidance in resolving this case. And, in the spirit of
Akins, we consider another pertinent factor, the nature of the
position involved in this case.
Evaluating all of these considerations, with particular
emphasis on the interest of the State of Maine, prior legalunderstandings, and the nature of Fellencer's position, we conclude
that the decision of the Nation to terminate Fellencer's employment
was an "internal tribal matter."
C. The Akins Considerations
1. Within the Tribe
Although Fellencer, unlike Akins, is not a member of the
Nation, and hence the effect of the decision at issue is not
limited to tribal members, the decision to terminate Fellencer as
the community health nurse affects many tribal members but only one
non-tribal member (Fellencer). This limited impact beyond the
Nation distinguishes this case from Penobscot Nation v. Stilphen,
461 A.2d 478 (Me. 1983), wherein the Maine Supreme Judicial Court
held that a "beano" game, a tribal enterprise designed to involve
many non-tribal members, did not become an "internal tribal matter"
simply because an Indian tribe administered it, or because an
Indian tribe funded government services with the beano game's
profits. See id. at 486. Holding that the public gambling events
were "related to tribal self-government only because of the use to
which its profits are put," the Stilphen Court held that the tribe
had "no inherent right to 'market an exemption from state
taxation'" to the public. Id. (quoting Washington v. Confederated
Tribes of the Colville Indian Reservation, 447 U.S. 134, 156
(1980)). The "beano" games in Stilphen were designed to "draw many
hundreds of players to the Penobscot reservation from all over
Maine and beyond." Stilphen 461 A.2d at 480. Here the employment
decision has its immediate effect on only one non-tribal member.
2 & 3. Land and Natural Resources
The second and third considerations in Akins related to the
commercial use of tribal lands ("the very land that defines the
territory of the Nation," Akins, 130 F.3d at 487), and the "growth,
health, and reaping" of the tribe's natural resources. Id.
Although this case does not involve tribal land and natural
resources, it does involve the Nation's human resources and its
judgment that a different community health nurse will better serve
the health of tribal members. See Montana v. United States, 450
U.S. 544, 566 (1981) (recognizing that Indian tribes may "retain
inherent power to exercise civil authority over the conduct of non-
Indians on fee lands within its reservation when that conduct
threatens or has some direct effect on the . . . health or welfare
of the tribe").
4. Interest of Maine
As a generality, Maine has a strong interest in protecting all
employees against discrimination through its Human Rights Act. SeeMe. Rev. Stat. Ann. tit. 5, 4552; see also Maine Human Rights
Comm'n v. Local 1361, United Paperworkers Int'l Union, 383 A.2d
369, 373 (Me. 1978)(stating that the MHRA "was meant to have very
broad coverage"). In this case, however, the State is not
attempting to apply its laws to the Nation's employment decision.
To the contrary, the Maine Attorney General ruled long before this
case that "the employment decisions of the Penobscot Nation, when
acting in its capacity as a tribal governmental employer, are not
subject to regulation by the state[.]" Maine Attorney General
Opinion No. 84-22 (July 25, 1984). Thus, while the United States
intervened in this case to argue that an employment decision by the
Nation is an "internal tribal matter" and therefore not subject to
the MHRA, Maine did not intervene to argue to the contrary. In
Akins we found this posture significant. Even though Akins alleged
violations of Maine law, we noted that there was "not a dispute
between Maine and the Nation over the attempted enforcement of
Maine's laws." Akins, 130 F.3d at 487 (emphasis added). The
situation here is even more favorable to the Nation. The state
disavows the very "state interest" that Fellencer seeks to invoke
in support of her private cause of action.
5. Prior Legal Understandings
Prior legal understandings strongly support the Nation's claim
of exemption from challenge in state court to its employment
termination decision. In the employment discrimination context,
Congress exempted Indian tribes from Title VII's definition of
"employer" in the original passage of the Civil Rights Act of 1964.
42 U.S.C. 2000e(b) ("[T]he term 'employer' means a person engaged
in an industry affecting commerce . . . . Such term does not
include . . . an Indian tribe"). The Supreme Court has
characterized this exemption as "Congress' recognition of the
longstanding federal policy of providing a unique legal status to
the Indians in matters of tribal employment," and it characterized
Congressional intent as a "policy of furthering Indian self-
government." Morton v. Mancari, 417 U.S. 535, 548, 551 (1974)
(emphasis added).
General federal Indian civil rights law, outside the
employment discrimination context, further bolsters the conclusion
that Fellencer's claim involves an "internal tribal matter." Even
though Indian tribes were exempted from Title VII coverage,
Congress subsequently enacted the Indian Civil Rights Act of 1968
(ICRA), 25 U.S.C. 1301-41, made applicable to the Penobscot
Nation through the Settlement Act, 25 U.S.C. 1725(h). See Akins,
130 F.3d at 486. Under the ICRA, "[n]o Indian tribe in exercising
powers of self-government shall . . . deny to any person within its
jurisdiction the equal protection of its laws or deprive any person
of liberty or property without due process of law." 25 U.S.C.
1302(8).
As fundamental as federal court jurisdiction has been to the
protection of the civil rights enumerated in section 1302(8), the
Supreme Court held in Santa Clara Pueblo v. Martinez, 436 U.S. 49,
65 (1978) that gender discrimination claims against tribes were
cognizable only in Indian tribunals. In the Supreme Court's view,
Congress did not intend to abrogate Indian tribal sovereignty to
the extent that Indian tribes could be forced to defend against
such civil rights claims in an external (non-tribal) forum: "Tribal
courts have repeatedly been recognized as appropriate forums for
the exclusive adjudication of disputes affecting important personal
and property interests of both Indians and non-Indians." Id. The
Supreme Court explained that exclusive jurisdiction has been
reposed in the Indian tribunals because subjecting such claims to
federal court jurisdiction "plainly would be at odds with the
congressional goal of protecting tribal self-government." Id. at
64.
These prior legal understandings (both the Title VII exemption
and the ICRA's grant of exclusive jurisdiction to tribal courts)
are particularly important because they inform the intent of
Congress in the adoption of the Settlement Act. We "have long
presumed that Congress acts against the background of prior law."
Akins, 130 F.3d at 489 (citing Kolster v. INS, 101 F.3d 785, 787-88
(1st Cir. 1996)); see also Passamaquoddy Tribe, 75 F.3d at 789 ("To
[give effect to the legislative will] a court must take into
account the tacit assumptions that underlie a legislative
enactment, including not only general policies but also preexisting
statutory provisions."). The statutory provisions in Title VII and
the ICRA reflect Congress' understanding prior to the adoption of
the Settlement Act that employment discrimination claims against
Indian tribes implicate "unique" considerations, see Morton v.
Mancari, 417 U.S. at 548, and that such claims should be heard in
Indian courts. See Santa Clara Pueblo, 436 U.S. at 64-65.
Indeed, the Senate Report on the Settlement Act explicitly
cited with approval to Santa Clara Pueblo, 463 U.S. 49 (1978). See
S. Rep. No. 96-957, at 29 (1980). Although we have refused to read
into this reference an incorporation of "all prior Indian law"
because that "would be inconsistent with the unique nature of the
Maine settlement," Akins, 130 F.3d at 489, we also recognized that
Congress "explicitly made existing general federal Indian law
applicable to the Penobscot Nation in the Settlement Act." Id.
That body of law includes Congressional enactments excluding Indian
tribes from Title VII coverage and limiting civil rights claims
against the tribes to tribal forums. See Santa Clara Pueblo, 463
U.S. at 65-66.
The Senate Report on the Settlement Act also noted that the
Act strengthened the Nation's sovereignty "by recognizing [the
Penobscot's] power to control their internal affairs and by
withdrawing the power which Maine previously claimed to interfere
in such matters[.]" S. Rep. 96-957, at 14. The Report predicates
the Nation's right to be free from state interference on the
Nation's "inherent sovereignty" as recognized in Bottomly, 599 F.2d
1061, and State v. Dana, 404 A.2d 551 (Me. 1979). Both Bottomlyand Dana drew on federal Indian common law in recognizing the
inherent sovereignty of the Penobscot and Passamaquoddy tribes.
See Bottomly, 599 F.2d at 1066; Dana, 404 A.2d at 560-61. The
Report states that "[i]n keeping with" the sovereignty recognized
in Bottomly and Dana, it was Congress' intent to guarantee that the
Nation "[would] be free from state interference in the exercise of
[its] internal affairs." S. Rep. 96-957 at 14. By characterizing
its recognition of the Nation's sovereignty as "in keeping with"
Bottomly and Dana, Congress signaled its intent that federal Indian
common law give meaning to the terms of the settlement. The Senate
Report continues by listing important sovereignty rights retained
by the Nation, including "the establishment of tribal courts ...
with powers similar to those exercised by Indian courts in other
parts of the country." Id. at 15. These powers included hearing
employment discrimination claims filed against the tribes.
In summary, these prior legal understandings provide strong
support for classifying a claim of national origin discrimination
based on the termination of Fellencer's employment as an "internal
tribal matter."
D. The Nature of the Position at Issue
Apart from the statutory language, judicial precedent,
legislative history and federal Indian common law, the Nation's
employment of a community health nurse has particular "internal
tribal matter" implications because of the statutory origins of the
position. The community nurse position from which Fellencer was
dismissed is funded by the Indian Self-Determination and Education
Assistance Act of 1975 (ISDA), 25 U.S.C. 450 et seq. Congress
therein declared its policy to "respond to the strong expression of
the Indian people for self-determination by assuring maximum Indian
participation in the direction of . . . Federal services to Indian
communities." 25 U.S.C. 450a(a); see also S. Rep. No. 102-392,
at 7 (1992), reprinted in 1992 U.S.C.C.A.N. at 3949 (1992
amendments to Indian Health Care Improvement Act)("health care
provided by people of one's own culture is the most appropriate,
and results in better utilization of health care services").
Believing that the administration of such services by Indians was
"crucial to the realization of self-government," 25 U.S.C.
450(a)(1), Congress included an employment preference for Indians
in the legislation. 25 U.S.C. 450e(b) (requiring that
"preferences and opportunities for training and employment . . .
shall be given to Indians").
This employment preference for Indians distinguishes the
Nation's community nurse position from any position in a regular
municipal government. Cf. Implementing Act, Me. Rev. Stat. Ann.
tit. 30, 6204 (subjecting Nation generally to same state
jurisdiction as state exercises over municipalities). Clearly,
Maine municipalities cannot employ similar preferences. The
uniqueness of the federal employment preference counsels against
the application of Maine law in this employment discrimination
context. In light of the Supreme Court's description of such
preferences in Morton v. Mancari, 417 U.S. at 553 (1974), as
furthering "self-government," and in light of the other
considerations set forth herein, we hold that the decision of the
Nation to terminate the employment of a community health nurse was
an "internal tribal matter" within the meaning of the Settlement
Act, and hence the Nation cannot be subjected to state court
jurisdiction for the adjudication of an employment discrimination
claim pursuant to the Maine Human Rights Act.
The judgment of the district court is reversed; the case is
remanded for the entry of judgment in favor of the Nation and the
issuance of an injunction if it is deemed necessary.
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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
RONALD RUSSELL, : No. 312 WAL 2017
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
WESTMORELAND COUNTY :
CARDIOLOGY; JAMES E. ADISEY, M.D.; :
AND EXCELA HEALTH :
WESTMORELAND HOSPITAL A/K/A :
WESTMORELAND REGIONAL :
HOSPITAL EXCELA HEALTH, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 14th day of February, 2018, the Petition for Allowance of Appeal
is DENIED.
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FILED
NOT FOR PUBLICATION MAR 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10177
Plaintiff - Appellee, D.C. No. 3:12-cr-00121-LRH-
WGC-2
v.
LINWOOD TRACY, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted March 9, 2015
San Francisco, California
Before: NOONAN, W. FLETCHER, and DAVIS,** Circuit Judges.
Linwood Tracy, Jr. appeals his conviction for conspiracy to defraud the
United States in violation of 18 U.S.C. § 371. Tracy argues that (1) the indictment
was fatally insufficient because it failed to charge deceitful or dishonest means and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
(2) the government offered insufficient evidence to establish his participation in a
conspiracy to defraud using deceitful or dishonest means. We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
We review de novo the sufficiency of an indictment first challenged in
district court. United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).
“Generally, an indictment is sufficient if it sets forth the elements of the charged
offense so as to ensure the right of the defendant not to be placed in double
jeopardy and to be informed of the offense charged.” United States v. Woodruff,
50 F.3d 673, 676 (9th Cir. 1995). Because Tracy did not challenge the
indictment’s sufficiency until the close of the government’s case in chief, it will be
“liberally construed in favor of validity,” as a tardy challenge “suggests a purely
tactical motivation” and “tends to negate the possibility of prejudice in the
preparation of a defense.” United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.
1976). The indictment provided the relevant statute and specifics of the conspiracy
that were adequate to put Tracy on notice regarding the content of the charge. See
United States v. James, 980 F.2d 1314, 1318 (9th Cir. 1992); United States v.
Coleman, 656 F.2d 509, 511–12 (9th Cir. 1981). Further, it is clear that Tracy’s
defense was not prejudiced, as his co-counsel told the jury in his opening statement
that the government would have to prove that Tracy had entered into an agreement
2
to obstruct the government by deceitful or dishonest means. RT 56. Accordingly,
we reject this claim.
We review sufficiency of the evidence de novo. United States v. Rizk, 660
F.3d 1125, 1134 (9th Cir. 2011). First, all evidence must be construed in favor of
the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Once the
evidence is so construed, this court must affirm the conviction if “any rational trier
of fact could have found the essential elements beyond a reasonable doubt.” Id.;
see also United States v. Nevils, 598 F.3d 1158, 1164–67 (9th Cir. 2010) (en banc).
Under this deferential standard, we conclude that the government provided
sufficient evidence to allow a rational trier of fact to convict Tracy.
AFFIRMED.
3
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3301
___________
ELIZABETH LIGGON-REDDING;
STEWART LIGGON; *MINORS S, D & K,
Appellants
v.
**BANK OF AMERICA, NATIONAL ASSOCIATION
Elizabeth Liggon-Redding; Stewart Liggon,
Appellants
*(Dismissed pursuant to the Court’s Order dated 3/31/2015)
**(Amended pursuant to Clerk’s Order dated 6/01/2015)
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-12-cv-00827)
District Judge: Honorable Richard G. Andrews
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 20, 2016
Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges
(Opinion filed April 21, 2016)
___________
OPINION *
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
___________
PER CURIAM
Elizabeth Liggon-Redding and her son Stewart Liggon appeal from the final order
of the District Court directing the closure of this case. We will affirm as to Liggon-
Redding. As to Liggon, this appeal is dismissed. 1
I.
Liggon-Redding is a frequent pro se litigant. In this case, she filed suit against the
entity now known as Bank of America, National Association (“BOFA”). She did so on
her own behalf and purportedly on behalf of Liggon and his three minor children as well.
The District Court dismissed her cursory complaint without prejudice, and she filed an
amended complaint. Liggon-Redding alleged that BOFA discriminated against Liggon
on the basis of his race and disability in setting a high interest rate on a mortgage
obtained by Liggon and his wife. Liggon-Redding further alleged that BOFA unlawfully
instituted eviction proceedings, trespassed on Liggon’s property, and stole certain of his
belongings. Only Liggon-Redding signed the initial and amended complaints.
BOFA moved to dismiss the amended complaint on standing and other grounds,
and the District Court granted that motion and dismissed the amended complaint on
October 21, 2013. Among other things, the District Court concluded that Liggon-
1 Liggon-Redding has purported to file various documents with this Court on Liggon’s
behalf. Our Clerk advised appellants that documents filed on Liggon’s behalf would be
deemed filed by him only if he personally signed them. Liggon-Redding has filed a brief,
but Liggon neither signed it nor filed a brief of his own. Thus, this appeal is dismissed as
to Liggon pursuant to Fed. R. App. 3(a)(2) and 3d Cir. L.A.R. Misc. 107.2(b), for failure
2
Redding pleaded no facts suggesting that she has standing to assert any claims on her
own behalf and that she is not permitted to represent her family members pro se. The
District Court’s dismissal was once again without prejudice, however, and it gave
Liggon-Redding time to file a second amended complaint and to hire a lawyer if she
wished the interests of the other named plaintiffs to be represented.
Liggon-Redding responded by filing motions for appointment of counsel and an
extension of time to amend her complaint. The District Court denied her motion for
counsel but granted her an extension of time to amend. Liggon-Redding appealed from
that order at C.A. No. 13-4612, and we dismissed her appeal for lack of jurisdiction.
Thereafter, the District Court granted Liggon-Redding another extension of time to
amend. Liggon-Redding instead filed a motion to reconsider appointing counsel, and the
District Court denied that motion but granted her one final extension of time to amend.
The District Court also warned her that it would close the case if she failed to do so.
Liggon-Redding instead filed a document captioned as “plaintiff attempt to try to
submit an amended complaint and be allowed to turn this complaint into a class action
law suit and appointment of counsel.” Liggon-Redding sought to initiate a class action
against BOFA on the basis of its alleged noncompliance with a consent decree in a
different case and again requested appointment of counsel. The District Court denied her
requests and finally closed the case on July 7, 2014. Liggon-Redding appeals.
to file a brief.
3
II.
We deem the District Court’s July 7 order a final decision closing the case with
prejudice. We thus have jurisdiction pursuant to 28 U.S.C. § 1291. Liggon-Redding,
however, has not properly placed any issue before us for review. A litigant in Liggon-
Redding’s position might challenge the District Court’s legal analysis in dismissing the
amended complaint, its denial of counsel, or its decision to close the case. Liggon-
Redding’s notice of appeal mentions the denial of counsel and class-action status, but her
brief on appeal does not mention those issues or any of the District Court’s rulings at all.
Thus, as BOFA argues, Liggon-Redding has waived all potential issues on appeal. 2
Nevertheless, we have reviewed the District Court’s rulings and perceive no abuse
of discretion in its case management decisions or its denial of Liggon-Redding’s requests
for counsel. Appointment of counsel generally requires some potentially meritorious
claim, see Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993), and Liggon-Redding has
never raised anything in the District Court or in this one suggesting that she has standing
2 We previously denied Liggon-Redding’s motions for appointment of counsel in this
Court and to stay this appeal, and we directed her to file a brief if she wished to proceed.
Liggon-Redding has titled her brief “plaintiffs [sic] attempt at the ordered brief.” The
brief is approximately one page long, and it mentions only an apparent refinance of the
mortgage, an attorney’s performance in an unidentified proceeding, and the recent
occupation of federal land in Oregon. None of these issues is relevant to any of the
District Court’s rulings. We treat pro se litigants with indulgence in certain respects but,
“[a]t the end of the day, . . . they must abide by the same rules that apply to all other
litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). And
Liggon-Redding is an experienced pro se litigant who is well-aware of the briefing
requirements and has filed briefs in other cases.
4
to assert any potentially meritorious claim against BOFA. Nor may she represent her
family members pro se. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d
Cir. 1991). Thus, the District Court also did not err in dismissing Liggon-Redding’s
amended complaint or abuse its discretion in declining to grant her a seventh opportunity
to amend.
III.
For these reasons, we will affirm the judgment of the District Court as to Liggon-
Redding. As to Liggon, this appeal is dismissed.
5
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIN BENTON, :
:
Plaintiff, : Civil Action No.: 14-1073 (RC)
:
v. : Re Document No.: 23
:
LABORERS’ JOINT TRAINING FUND, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiff Erin Benton brought this action alleging that her former employer, Defendant
Laborers’ Joint Training Fund, failed to pay her overtime wages in violation of the Fair Labor
Standards Act (“FLSA”) and the D.C. Minimum Wage Act (“DCMWA”). The Court previously
granted summary judgment to Defendant on Plaintiff’s FLSA overtime claim after finding
Plaintiff had failed to establish that Defendant is a covered enterprise under the FLSA. See
Benton v. Laborers’ Joint Training Fund, No. 14-1073, 2015 WL 4736028, at *5–7 (D.D.C.
Aug. 10, 2015); see also ECF No. 22 at 11–16. At that time, the Court declined to consider
Plaintiff’s belated argument—raised for the first time in her reply—that the nature of her
employment sufficed to establish individual coverage under the FLSA. Instead, the Court stated
that it would permit Plaintiff “to seek leave to amend her complaint to include a claim of
individual coverage based on interstate travel.” Id. at *7–8; see also ECF No. 22 at 17–19.
Now before the Court is Plaintiff’s motion for leave to file an amended complaint (ECF
No. 23). Defendant does not appear to contest Plaintiff’s motion to the extent the proposed
amended complaint seeks to include allegations of individual FLSA coverage. See Def.’s Opp’n
at 2, 1 ECF No. 24 (stating that “Plaintiff’s proposed amended pleading does endeavor to include
a claim of individual FLSA coverage based on interstate travel as this Court permitted”
(emphasis added)). Nor does Defendant’s opposition contest that Plaintiff has established good
cause for amending her complaint to include those individual coverage allegations, thus
conceding the issue. See Local Civ. R. 7(b); Cefarrati v. JBG Props., Inc., 75 F. Supp. 3d 58, 69
(D.D.C. 2014) (noting that when “a party files an opposition to a motion and addresses only
certain arguments raised by the movant, this court routinely treats the unaddressed arguments as
conceded” (internal quotation marks and citation omitted)); see also Brown v. District of
Columbia, 199 F.R.D. 9, 10 (D.D.C. 2001) (finding that defendants had conceded plaintiffs’
motion for leave to file an amended complaint). Therefore, the Court will grant Plaintiff’s
motion to the extent it seeks leave to add allegations of individual FLSA coverage.
Defendant does argue, however, that the proposed amended complaint exceeds the scope
of this Court’s invitation to seek leave. While Defendant’s opposition generally protests that the
proposed complaint includes “additional changes,” Defendant only identifies one: Plaintiff’s
effort “to dramatically increase the number of overtime hours for which [Plaintiff] claims she
was never paid,” as alleged in the original complaint, “from 415 hours to 595.5 hours.” Def.’s
Opp’n at 2 (emphasis in original). The proffered complaint does indeed increase the number of
overtime hours alleged. See Proposed First Am. Compl. ¶¶ 32, 38, ECF No. 23–2. Plaintiff’s
motion provides no explanation for this substantive change. See generally Pl.’s Mem. for Leave
to File First Am. Compl., ECF No. 23–1. And Plaintiff has failed to file any reply to
1
Because the page numbering in Defendant’s opposition begins only on the second page
(which the opposition erroneously identifies as page 1) the Court cites to the page numbers
automatically generated by ECF.
2
Defendant’s opposition. As a result, the Court treats as conceded Defendant’s argument that
Plaintiff’s modification to her overtime hour allegations exceeds the scope of the Court’s
invitation to seek leave. See Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F. Supp.
2d 154, 159 (D.D.C. 2002). Because those modifications exceed the scope of the Court’s
invitation to seek amendment, and significantly alter the extent of Defendant’s purported liability
under the FLSA, the Court will deny Plaintiff’s motion with respect to the revised allegations in
paragraphs 32 and 38 of the proposed amended complaint. See, e.g., Corrales v. Vega, No. 12-
01876, 2015 WL 575961, at *3 (C.D. Cal. Feb. 11, 2015) (explaining that “[w]hen a district
court grants leave to amend for a specified purpose, it does not thereafter abuse its discretion by
dismissing any portions of the amended complaint that were not permitted”); In re Keithley
Instruments, Inc., Derivative Litig., 599 F. Supp. 2d 908, 913–14 (N.D. Ohio 2009)
(acknowledging that courts are generally “reluctant to strike otherwise pertinent parts of a
complaint even where the filing exceeded the scope of leave granted by the court” but holding
that precluding plaintiffs from including new allegations was warranted where the differences
were “substantial” and the new theories of recovery were “vastly different”).
For the foregoing reasons, Plaintiff’s motion for leave to file an amended complaint (ECF
No. 23) is GRANTED IN PART AND DENIED IN PART. An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: December 1, 2015 RUDOLPH CONTRERAS
United States District Judge
3
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8 Ariz. App. 233 (1968)
445 P.2d 181
Jose DEL CASTILLO, Appellant,
v.
Ray HARBOUR, dba Ray Harbour's Engine & Transmission Rebuilders, Rose Margaret Harbour, his wife and employee, Ray Harbour Incorporated, Ray Harbour Automotive Industries, Inc., an Arizona corporation, and John Does I to X, Appellees.
No. 2 CA-CIV 422.
Court of Appeals of Arizona.
September 19, 1968.
Rehearing Denied October 18, 1968.
Review Denied December 3, 1968.
*234 Jose del Castillo, in pro. per.
Robert J. Hirsh, Tucson, for appellees.
MOLLOY, Judge.
Appellant, plaintiff below, brings this appeal to review a decision of the trial court setting aside a default judgment obtained by appellant.
The relative rights and liabilities of the parties have been the subject of lengthy controversy and several legal proceedings. In May of 1966, appellant alleging fraud with particularity, brought this action against appellees and others for actual, "general" and punitive damages in a large amount. Defendants designated in the complaint and summons were:
"Ray Harbour, dba Ray Harbour's Engine & Transmission Rebuilders, Rose Margaret Harbour, his wife and employee, Ray Harbour Incorporated, Ray Harbour Automotive Industries, Inc., an Arizona private corporation, and John Does I to X."
A certificate of service indicates that Ray Harbour and his wife, Rose Margaret Harbour, were purportelly served at "defendants' place of business * * * [b]y handing Ray Harbour copy each of Summons, & complaint; and another copy each of Summons and Complaint for Rose Margaret Harbour * * *." (Emphasis added.) This service is indicated as having been made on May 5, 1966. Another certificate of service indicates that the statutory agent for Ray Harbour Automotive Industries, Inc., was served on May 12, 1966. There are no other certificates of service in the action.
On May 26, 1966, a default was entered against "Ray Harbour, dba Ray Harbour's Engine & Transmission Rebuilders, and Rose Margaret Harbour." On June 1, 1966, at 1:26 p.m., a motion to dismiss on behalf of all of the defendants was filed. This motion was a timely appearance for the corporate defendants but three days late if an intervening Saturday and Sunday are excluded as to Mr. Harbour. The motion was a speaking motion which contained an affidavit of defendants' counsel that plaintiff's claim was barred under *235 the doctrine of res judicata by reason of a previous action in Justice Court, Precinct No. 2, Pima County, and a previous action in the Superior Court, Pima County, in which it had been ruled that the instant claim was barred by reason of the Justice Court action, to which plaintiff's claim was a compulsory counterclaim.
At 3:05 p.m., of the same day on which the motion to dismiss was filed, the plaintiff secured a written judgment against Ray Harbour and Rose Margaret Harbour, his wife, in the sum of $540, based on the default previously entered. We would presume that the motion to dismiss was not called to the attention of the trial court, else he would undoubtedly have insisted that three days' notice be given to the defendants before entering judgment. See Rule 55(b) (1), R.Civ.P., 16 A.R.S.
A motion to set aside default was filed on June 7, 1966. It was accompanied by an affidavit of defendants' counsel that he had represented the defendants in previous litigation pertaining to the plaintiff's claim, both in the Justice Court and in the Superior Court, of which fact the plaintiff well knew, that he was given a copy of the complaint on May 12, 1966, that prior to June 1, 1966, he inquired of the Clerk of the Superior Court as to the date of service of the aforesaid complaint, that he was advised by the clerk that summons was served on May 12, 1966 (the date of service upon one of the corporate defendants), and that he relied upon the information given him by the Clerk's office of the Superior Court so as not to file any response to the action until June 1, 1966. There is no conflicting affidavit questioning any of the statements made in this affidavit. By minute entry order of June 21, 1966, the motion to set aside default and default judgment was granted.
An appeal from this minute entry order was dismissed by this court for failure to comply with Rule 58(a), Rules of Civil Procedure, 16 A.R.S., and subsequently a written order setting aside default and default judgment was entered by the trial court. We construe the instant appeal as being from that order.
The defendants Harbour have neglected to file an answering brief in opposition to the plaintiff's opening brief. This court has granted a motion that the case be submitted on the present record.
Ordinarily, we would assume that the failure to file an answering brief constitutes a confession of reversible error on the part of the appellee. Tiller v. Tiller, 98 Ariz. 156, 402 P.2d 573 (1965); Siemers v. Randall, 94 Ariz. 302, 383 P.2d 753 (1963). The rule as laid down by these decisions is that if the reasons presented for reversal are "debatable," the appellate court will reverse in the absence of opposition from the appellee.
However, we believe it the duty of this court to examine the record to determine whether there are debatable issues, Hoffman v. Hoffman, 4 Ariz. App. 83, 417 P.2d 717 (1966), and we believe that it is most appropriate to do so under the circumstances here. The judgment appealed from is relatively small $524. The plaintiff is a member of the Bar, of which fact we take judicial notice, so that he is in the advantageous position of being able to prosecute this appeal in propria persona without payment of attorney's fees. The defendants to this action, who are not members of the Bar, are thus placed in the unfavorable economic position that to contest this action will be to lose it, as it will cost as much to defend as the judgment itself. We note that their attorney has already made five appearances in the trial court in connection with the proceedings to set aside and to secure a written appealable judgment, and if the res judicata defense is valid, the defendants have twice before won this same lawsuit.
A review of this record convinces us that there is no "debatable" issue and that the order of the trial court was correct. The mistake that was made by defendants' counsel is understandable, in view of the two dates of service that appeared *236 in the file. We are also influenced in part by the fact that the service upon Mrs. Harbour is clearly void, see Safeway Stores, Inc. v. Ramirez, 99 Ariz. 372, 381, 409 P.2d 292, 298 (1965), and that the appearance of the defendants occurred before default judgment. The affidavit of meritorious defense we find to be adequate.
Our Supreme Court has said many times that what is "excusable," insofar as failing to answer is concerned, is largely a matter lying within the discretion of the trial court, and that doubts should be resolved in favor of a trial on the merits. See, e.g., Ramada Inns, Inc. v. Lane and Bird Advertising, Inc., 102 Ariz. 127, 426 P.2d 395 (1967); Marquez v. Rapid Harvest Co., 99 Ariz. 363, 409 P.2d 285 (1965); Gray v. Dillon, 97 Ariz. 16, 396 P.2d 251 (1964); Coconino Pulp and Paper Company v. Marvin, 83 Ariz. 117, 317 P.2d 550 (1957).
Judgment affirmed.
HATHAWAY, C.J., and KRUCKER, J., concur.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 97-1954
_____________
Home Insurance Company, *
*
Appellant, *
*
v. * Appeal from the United
* States District Court for
Waycrosse, Inc., Mail-Merged into * the District of Minnesota.
Cargill, Inc., a Delaware corporation *
and Silent Knight Security Systems, * [UNPUBLISHED]
Inc., a/k/a Waycrosse, Inc., *
*
Appellees. *
_____________
Submitted: November 19, 1997
Filed: December 5, 1997
_____________
Before BOWMAN, BRIGHT, and MURPHY, Circuit Judges.
_____________
PER CURIAM.
On cross-motions for summary judgment, the District Court1 determined that
Home Insurance Company had not met its burden to show it may avoid a duty to
defend the appellees in an action filed against them (and others) by Life Point Systems,
Inc., et al. in the Northern District of California. The court did not reach the question
1
The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota.
of whether the insurance policies at issue in fact provide the appellees with coverage
for any of the claims of the plaintiffs in the Life Point action, nor did it decide whether
Home Insurance had a duty to indemnify the appellees with respect to any of those
claims. Home Insurance appeals.
Having reviewed the case, we are unable to conclude that the District Court
erred in its ruling on the duty-to-defend question. Because the legal issues presented
are governed by state law, and an opinion by this Court would add nothing of
precedential value to the District Court's thorough and well-written memorandum
opinion and order, we forego extended discussion of the issues. The judgment of the
District Court is affirmed. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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IN THE
TENTH COURT OF APPEALS
No. 10-16-00048-CR
KENNETH BUTLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C35834-CR
MEMORANDUM OPINION
A jury convicted Appellant Kenneth Butler of possession of less than one gram of
methamphetamine, and the trial court sentenced him to five years’ community
supervision. The methamphetamine was discovered in Butler’s pocket when he was
being treated for injuries he sustained after wrecking his motorcycle. Butler appeals in
two issues. We will affirm.
Denial of Motion for Mistrial
In his first issue, Butler asserts that the trial court erred in denying his motion for
mistrial. Butler specifically complains that a mistrial should have been granted after the
State was allowed to introduce evidence of an extraneous offense. The DPS Trooper who
investigated Butler’s wreck, LaTonya Sadler, was questioned by the prosecution
regarding the actions she took in her investigation. Sadler replied: “Those actions are is
I went ahead—after I went through the defendant’s criminal history, is I went through
and I seen that the defendant had a lengthy criminal history.” Butler objected and
requested a limiting instruction. The State agreed that a limiting instruction to the jury
would be appropriate, and the judge admonished the jury to disregard Sadler’s
statement. Butler additionally moved for a mistrial, which the judge denied.
The denial of a motion for mistrial, which is appropriate for “highly prejudicial
and incurable errors,” is reviewed under an abuse-of-discretion standard. See Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642,
648 (Tex. Crim. App. 2000)); see also Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
[T]he question of whether a mistrial should have been granted involves
most, if not all, of the same considerations that attend a harm analysis. A
mistrial is the trial court's remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful
and futile.” In effect, the trial court conducts an appellate function:
determining whether improper conduct is so harmful that the case must be
redone. Of course, the harm analysis is conducted in light of the trial court's
curative instruction. Only in extreme circumstances, where the prejudice is
incurable, will a mistrial be required.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd, 3 S.W.3d at 567);
see also Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007). Thus, the
Butler v. State Page 2
appropriate test for evaluating whether the trial court abused its discretion in overruling
a motion for mistrial is a tailored version of the test originally set out in Mosley v. State,
983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998). See Hawkins, 135 S.W.3d at 77. “The
Mosley factors are: (1) the prejudicial effect, (2) curative measures, and (3) the certainty of
conviction absent the misconduct.” Id.; see Mosley, 983 S.W.2d at 259; see also Brinegar v.
State, No. 10-14-00195-CR, 2015 WL 6777445, at *4 (Tex. App.--Waco Nov. 5, 2015, pet.
ref’d) (mem. op., not designated for publication).
The asking of an improper question will seldom call for a mistrial because any
error can usually be cured by an instruction to disregard. Wood, 18 S.W.3d at 648. In fact,
the Texas Court of Criminal Appeals has stated: “Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even one
regarding extraneous offenses.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Testimony that refers to or implies the existence of extraneous offenses can be cured by
an instruction to disregard by the trial court, unless the evidence was so clearly calculated
to inflame the minds of the jury or is of such damning character as to suggest it would be
impossible to remove the harmful impression from the jury’s mind. Harris v. State, 164
S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Butler makes no
allegation that Sadler’s testimony was made “with calculated intent” to inflame or
mislead the jury or that Sadler’s testimony was embellished in any manner.
Considering the Mosley factors, we cannot say that the trial court abused its
discretion in denying the motion for mistrial. Any prejudicial effect from Sadler’s
Butler v. State Page 3
testimony was curable because the comment was quite brief, it did not identify any
specific criminal activity, and it was not repeated. The trial court's instruction to
disregard, which was the proper curative measure in this instance, was prompt and will
ordinarily cure any error. See Wesbrook v. State, 29 S.W.3d 103, 115–16 (Tex. Crim. App.
2000). Finally, the statement was not so inflammatory as to undermine the efficacy of the
trial court’s instruction to disregard. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992); see also Martinez v. State, No. 10-13-00431-CR, 2015 WL 5092672, at *10 (Tex.
App.—Waco Aug. 27, 2015, no pet.) (mem. op., not designated for publication). The trial
court did not abuse its discretion in denying Butler’s motion for mistrial. Butler’s first
issue is overruled.
Remote Conviction
In his second issue, Butler argues that the trial court erred in allowing the
prosecutor to introduce evidence of Butler’s felony DWI conviction that occurred over
ten years prior to the date of trial. The violation of an evidentiary rule that results in the
erroneous admission of evidence constitutes non-constitutional error. See Martin v. State,
176 S.W.3d 887, 897 (Tex. App.—Fort Worth 2005, no pet.). Under Rule of Appellate
Procedure 44.2(b), an appellate court must disregard non-constitutional error unless the
error affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); see also Gerron v.
State, 524 S.W.3d 308, 325 (Tex. App.—Waco 2016, pet. ref'd). A substantial right is
affected when the erroneously admitted evidence, viewed in light of the record as a
Butler v. State Page 4
whole, had “a substantial and injurious effect or influence on the jury's verdict.” Id. In
assessing the likelihood that the jury's decision was improperly influenced, we must
consider the entire record, including such things as the testimony and physical evidence
admitted, the nature of the evidence supporting the verdict, the character of the error and
how it might be considered in connection with other evidence, the jury instructions, the
State's theories, defensive theories, closing arguments, voir dire, and whether the State
emphasized the error. Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).
Assuming without deciding that the trial court erred in admitting Butler’s prior DWI
conviction, we find that the error did not affect Butler’s substantial rights in light of the
strong evidence of his guilt.
The evidence at trial established that Butler crashed his motorcycle after hitting a
deer. A passing motorist called 9-1-1 after noticing the dead deer and Butler’s motorcycle
on the side of the road. The motorist also reported that Butler was lying in the ditch
beside the road and that he was not moving. Responding emergency medical personnel
noted that Butler had a serious head injury and that he was in and out of consciousness.
The medical personnel had to remove six or seven layers of clothing, some needing to be
cut off, in order to ascertain whether Butler had suffered other injuries. A black, plastic
cigarette box, that Butler acknowledged was his, was found in the pocket of a shirt that
was under an outer jacket and coveralls. The box was given to the deputy on the scene,
who opened it to see if it contained Butler’s identification. In the box, the deputy found
cigarettes and a baggy containing a crystalline substance that was later confirmed by the
Butler v. State Page 5
lab to be methamphetamine. Also recovered from the scene was Butler’s wallet that
contained approximately one hundred dollars. Butler was taken by helicopter to a
hospital for treatment, and he was subsequently arrested for possession of less than one
gram of methamphetamine. Butler was semi-conscious when transferred to the hospital,
and his medical records reflect that he was combative with medical personnel and had to
be restrained. Blood tests revealed the presence of cannabinoids and opiates in Butler’s
system, although he denied using any substance containing opiates. The blood tests did
not reveal the presence of methamphetamine in his system, and methamphetamine is
neither an opiate nor a byproduct of marijuana. Butler’s father testified that he went to
the scene of the wreck four days later to look for Butler’s cell phone. He walked around
the area calling Butler’s phone from his own cell phone but never heard it ring.
While Butler testified that he remembered everything that occurred prior to his
collision with the deer, he was unclear about the time the wreck occurred. Butler first
testified that the sun was shining when he arose the morning of the wreck and that he
left his brother’s house at 6:00 a.m. When the prosecutor reminded him that the 9-1-1
recording noted the time that the wreck was reported as 6:04 a.m., Butler then stated that
he left his brother’s house at 5:30 and hit the deer at around 6:00 a.m. Butler testified that
he knew nothing about the methamphetamine that was recovered from the cigarette box,
but he remembered putting the cigarette box in a storage compartment on the motorcycle
and not in his shirt pocket. Butler also testified that he remembered placing his cell phone
in the right front pocket of his jeans and that he never saw it again after the wreck.
Butler v. State Page 6
Butler’s theory about how the methamphetamine found its way into his pocket
was that some unknown person must have placed it there. There was no evidence of the
existence of such a person, merely Butler’s supposition. Butler testified that he had no
memory of anyone putting the box containing the methamphetamine in his pocket or
taking his cell phone—he just assumed that those events occurred based upon “how
everything looked.” Some of the circumstances that Butler and his attorney identified to
support his theory were: (1) Butler’s motorcycle was in an upright position after the
wreck, indicating that some unknown person picked it up; (2) Butler was combative with
medical personnel when he arrived at the hospital, indicating that he was reliving his
struggles with the unknown person; (3) the cuts on Butler’s clothing where they had been
removed by medical personnel at the scene of the accident did not line up properly,
indicating that the unknown person disarranged Butler’s clothing while planting the
methamphetamine; (4) Butler’s cell phone was not found, indicating that the unknown
person stole it; and (5) officers found nothing with which Butler could have used the
methamphetamine, such as a needle or a pipe. All of the circumstances were as likely, if
not more likely, to have occurred without the intervention of an unknown person.
Considering the weight of the evidence against Butler, we possess a fair assurance that
the admission of the DWI conviction did not influence the jury or, at most, had only a
slight effect on their verdict. Butler’s second issue is overruled.
Butler v. State Page 7
Having overruled both issues presented by Butler, we affirm the trial court’s
judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2018
Do not publish
[CR25]
Butler v. State Page 8
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888 F.2d 1391
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Rodney BRANHAM, Petitioner-Appellant,v.Ted KOEHLER, Respondent-Appellee.
No. 89-1709.
United States Court of Appeals, Sixth Circuit.
Nov. 13, 1989.
Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and appellant's brief, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Rodney Branham moves to expedite the briefing schedule and the appeal and appeals from the district court's order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Following a bench trial, Branham was convicted of voluntary manslaughter and sentenced to ten to fifteen years in prison.
3
This case stems from two civil actions that Branham filed in Macomb County Circuit Court. The first was a petition for expungement of his conviction pursuant to Mich.Comp.Laws Ann. Sec. 780.621. The second case, styled as a "Motion to Show Cause for Injunctive Relief" contested the Department of Corrections' method of computing his good-time credits. Both Branham's petition and his motion were denied, and he did not appeal. He then brought the instant habeas corpus petition in which he contests these two Macomb County Circuit Court decisions.
4
Specifically, Branham claimed that the Macomb County Circuit Court erred in denying his motion for expungement of his conviction without a hearing, without appointed counsel, without his physical presence, and without granting him a waiver of the fifteen dollar fee, and that the court erred by denying his motion for return of his good-time credits without a hearing.
5
After reviewing the petition and supplement, respondent's motion to dismiss, Branham's reply and motion for summary judgment, and respondent's memorandum in opposition, along with the magistrate's report and recommendation and Branham's objections, the district court dismissed the petition as Branham did not raise any issues cognizable in a federal habeas corpus petition.
6
On appeal, Branham argues that the district court failed to conduct an evidentiary hearing, that there is no effective state corrective process to return his lost good-time credits, and that the district court erroneously denied his request for various pleadings.
7
Upon consideration, we conclude that the district court correctly decided that Branham did not raise any issues cognizable in a federal habeas corpus petition. Federal courts have no power to intervene on the basis of an alleged error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). The state of Michigan has statutory provisions for calculating good-time credits and providing for petitions for expungement. See Mich.Comp.Laws Ann. Sec. 780.621. As this is a matter of state law, it presents no federal question. See Bird v. Summit Cty., Ohio, 730 F.2d 442, 444 (6th Cir.1984) (per curiam); Burns v. Crouse, 339 F.2d 883-84 (10th Cir.1964) (per curiam), cert. denied, 380 U.S. 925 (1965). As a result, Branham's petition for expungement and motion challenging the computation of his good-time credits are not properly presented in this habeas corpus petition.
8
In addition, Branham cannot legitimately claim that the Macomb County Circuit Court's actions denied his due process rights. He was not denied any federal due process rights when that court denied his petition for expungement without a hearing or appointed counsel. The state statute, Mich.Comp.Laws Ann. Sec. 780.621(9), does not create a protected liberty entitlement as the state did not place substantive limitations on official discretion with particularized standards. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983).
9
Neither does Branham have a legitimate due process claim with respect to the denial of his request for restoration of his good-time credits. That claim is inappropriately raised in this habeas petition as he failed to first exhaust available state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 493 (1973). Thus, Branham's failure to raise that issue in both the Michigan Court of Appeals and the Michigan Supreme Court precludes consideration of this claim in this petition. See Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir.1973) (per curiam). Contrary to Branham's argument on appeal, Michigan provides an adequate remedy for restoration of his good-time credits through Mich.Comp.Laws Ann. Sec. 791.251. Until Branham presents his claim to all levels of the Michigan judicial system, his claim for restoration of good-time cannot be considered in federal court.
10
Next, the district court properly denied Branham's motions for discovery as the habeas corpus petition does not state any claim for federal habeas relief and discovery would not cure this fundamental default. Neither has Branham shown prejudice from these missing records and, thus, he failed to establish that he was denied the right to fairly present his case. See Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986), cert. denied, 481 U.S. 1056 (1987).
11
Finally, in light of the foregoing, the district court properly declined to conduct an evidentiary hearing on the matter as the record demonstrates that Branham is not entitled to relief. See Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).
12
For these reasons, the motions to expedite the briefing schedule and appeal are denied, and the district court's order is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.
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315 P.2d 529 (1957)
STATE of Idaho, Plaintiff-Respondent,
v.
Vernon B. FINCH, Defendant-Appellant.
Matter of the Permit of Vernon B. Finch, DBA Clearwater Dredging Company, to Conduct a Dredge Mining Operation on the Crooked River in Idaho County, Idaho.
No. 8505.
Supreme Court of Idaho.
September 10, 1957.
Rehearing Denied September 30, 1957.
*530 Anderson, Kaufman & Anderson, Boise, for appellant.
Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener, Elbert E. Gass, Asst. Attys. Gen., for respondent.
McQUADE, Justice.
On January 14, 1956, one Frank Roberts, a citizen of Idaho, filed with the Board of Land Commissioners of the State of Idaho an application and petition charging the violation of the Idaho Dredge Mining Protection Act, I.C. § 47-1315, by one Vernon B. Finch, doing business as Clearwater Dredging Company, and praying that the Board revoke the dredge mining permit previously issued to the said Vernon B. Finch.
Pursuant to such petition, the Land Board noticed this matter for hearing before Arthur Wilson, State Land Commissioner of the State of Idaho, whom the Board had designated as hearing officer. In due time, and pursuant to the notice of hearing, the hearing was held. The hearing officer made findings of fact and conclusions of law, and an order, on August 6, 1956, which instruments were approved by the Board on the same day, and filed the following day.
The order terminated and revoked the dredge mining permit No. 3, which authorized Vernon B. Finch, doing business as Clearwater Dredging Company, to conduct a dredge mining operation on and near Crooked River in Idaho County, Idaho. An appeal was taken to this Court from the order pursuant to the provisions of I.C. § 47-1320, which provides for a direct appeal from any order of the Board terminating a permit or forfeiting bond, by the person adversely affected, to the Supreme Court of the State of Idaho.
In appellant's brief there are 19 specifications of error. The specifications of error which will be treated here are:
"The Act violates Article 2 of the Constitution of Idaho in that it vests judicial functions in the executive department of government.
"The Act violates Article 5, section 9, of the Idaho Constitution in that it provides original jurisdiction in such court on appeal from the State Board of Land Commissioners in violation of such constitutional provision.
"The Act violates Article 5, section 13, of the Idaho Constitution in that it deprives the judicial department of power and jurisdiction which rightly pertain to it as a coordinate department of government.
"The Act violates the provisions of Article 5, section 2, of the Idaho Constitution in that it attempts to make a court of the State Board of Land Commissioners.
"The Act violates the due process clause of Article 1, section 13, of the Idaho Constitution in that it attempts to deprive the plaintiff of the use and enjoyment of his property without due process of law."
The Idaho Dredge Mining Protection Act was an initiative proposal, approved by the people of the State of Idaho by majority vote at the 1954 general election. Initiative legislation is of the same force and effect as that enacted by both houses of the legislature and approved by the governor, and must not violate any constitutional provision of the United States or of the State of Idaho. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978.
*531 Under Article 2, section 1, of the Constitution of the State of Idaho, the powers of the government are divided into three distinct departments, with a specific provision that no person or collection of persons charged with the exercise of powers belonging to one of these departments should exercise any of the powers belonging to any other department except as is provided in the constitution. In the Idaho Dredge Mining Protection Act, there are provisions for a hearing of any violation of its terms by the Board of Land Commissioners or the hearing officer, and that the Board of Land Commissioners or the hearing officer may make findings of fact, rulings of law, and orders on issues involving violations of the Act. The Act then provides for a direct appeal to the Supreme Court of the State of Idaho, which was done in this case.
There can be the creation of a board by legislation with authority to issue licenses, the issuing of such licenses to come under the police power of the state, which is properly a legislative function to determine if a pursuit or occupation should be regulated, and if so, under what rules.
Pursuant to the issuing of a permit, the legislature may also vest in some executive board or agency the power to investigate and determine if the permittee is violating any rule or statutory provision pertaining to the regulation of such business or industry for which the permit was issued. Hankins v. Spaulding, 78 Idaho 533, 307 P.2d 222; 11 Cal.Jur.2d, Constitutional Law, sec. 168, p. 561.
It is also within the power of the legislature to authorize the board or agent to revoke a permit for violations of statutes or regulations. Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225, 229. However, these actions must be reviewable by courts of law, inasmuch as they affect property rights. Electors of Big Butte v. State Board of Education, supra.
Appellant herein is the owner of a placer mining claim, which is defined by statute as real property. In addition to the appellant's having a property right by way of the placer claim, he also had acquired a property right in the water of Crooked River by appropriation. I.C. § 55-101 provides:
"Real property or real estate consists of:
"1. Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer. * * *."
In Electors of Big Butte v. State Board of Education, supra, this Court quoted in approval from Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848:
"* * * `If it should be held that the board's action in cancelling or suspending an existing license is binding on the courts, if such action is predicated on conflicting evidence, we would be necessarily holding that such board is exercising at least quasi-judicial powers. It is the essence of judicial action that finality is given to findings based on conflicting evidence. If the statute be so construed it would violate the state Constitution. * * *'"
The authority of the district courts is found in Article 5, section 20, of the Idaho Constitution, which is as follows:
"The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law."
Under Article 5, section 2, of the constitution, the judicial power is settled in specially designated courts. Judicial power cannot be conferred upon any agency of the executive department, in the absence of constitutional authority, where the constitution has specifically provided for the creation of a judicial system. Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225, 230. This Court in the Big Butte case quoted Laisne v. State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457, as follows:
*532 "* * * `Therefore, if a body other than one of the enumerated courts makes findings of fact, on those findings determines that the provisions of a certain statute have been violated, and issues an order or renders a judgment which has the effect of depriving a person of a valuable property right, such action denies the aggrieved party the due process of law guaranteed to him by the state and federal Constitutions, unless such action by such body may be questioned in a court of law. It should always be kept in mind that the evil of administrative action which must be guarded against is not the fact-finding power, but the conclusiveness of the fact-finding power coupled with the order based on the findings made which would deprive a person of a property right. Such is the full exercise of judicial power, and such power in this state can be exercised only by one of the enumerated courts. * * *'"
In discussing similar constitutional provisions pertaining to the courts and the vesting of judicial power in administrative agencies, and in disposing of the right of due process, the Supreme Court of the United States, in St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, at page 52, 56 S.Ct. 720, at page 726, 80 L.Ed. 1033, at pages 1041-1042, stated:
"* * * Legislative agencies, with varying qualifications, work in a field peculiarly exposed to political demands. Some may be expert and impartial, others subservient. It is not difficult for them to observe the requirements of law in giving a hearing and receiving evidence. But to say that their findings of fact may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded. It is said that we can retain judicial authority to examine the weight of evidence when the question concerns the right of personal liberty. But, if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others. The principle applies when rights either of person or of property are protected by constitutional restrictions. Under our system there is no warrent for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority. * * *"
The case of St. Joseph Stock Yards Co. v. United States was cited and followed in Drummey v. State Board of Funeral Directors, 13 Cal.2d 75, 87 P.2d 848; Laisne v. State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457, and Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225.
Under the Idaho Constitution, Article 5, section 9, this Court hears appeals from decisions of courts and judges thereof:
"The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof, and any order of the public utilities commission, and any order of the industrial accident board: the legislature may provide conditions of appeal, scope of appeal, and procedure on appeal from orders of the public utilities commission and of the industrial accident board. On appeal from orders of the industrial accident board the court shall be limited to a review of questions of law. The Supreme Court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas *533 corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction."
That provision of the Idaho Dredge Mining Protection Act, I.C. § 47-1320, which provides for an appeal from the Board of Land Commissioners directly to this Court, is unconstitutional and void as being an attempt to evade judicial processes by legislation.
Although this case is before the Court on appeal, and it has been concluded that no right of appeal exists from the Board to this Court, nevertheless for a proper and orderly disposition of the problem herein presented, the case will be considered as being before the Court on certiorari.
Idaho Constitution Article 5, section 13, provides a mandatory duty for the legislature to afford a proper system of appeals to all courts below the Supreme Court.
The part of the Act providing for an appeal to this Court being unconstitutional, leaves the Act without provision for due process. Because the provision which provides for an appeal directly to this Court does not in and of itself appear to be an integral or indispensable part of the Act, it may be stricken therefrom without affecting the balance of the Act. Idaho Mutual Benefit Ass'n v. Robison, 65 Idaho 793, 154 P.2d 156, 161.
It is the duty of the legislature to provide for a proper system of appeals; and this Court cannot do so, as such attempt would invade the legislative field. Therefore, there being no valid provision for appeal from the order of the Board of Land Commissioners, and there being no other protection for the property right of the appellant herein, and the character of the duties and orders of the Board of Land Commissioners and its duly designated hearing agent being judicial in nature, the appellant under the Act is without remedy to protect his constitutional right.
For the purpose of preserving property rights, this Court said in Idaho Mutual Benefit Ass'n v. Robison, supra:
"* * * While the authorities are not unanimous, we believe the better rule is to the effect that in connection with hearings before administrative boards of this kind unless an appeal is provided therefrom to a court, even though the scope of review be limited, due process is not satisfied. Zachos v. Huiet, 195 Ga. 780, 25 S.E.2d 806; Precision Castings Co. v. Boland, supra [D.C., 13 F.Supp. 877, 2 Cir., 85 F.2d 15]; Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E.2d 399; Miller v. Price, 282 Ky. 611, 139 S.W.2d 450; Union Indemnity Co. v. Saling, 166 Okl. 133, 26 P.2d 217. * * *"
The order of the Board is therefore a nullity; and it being void, it is hereby reversed.
No costs allowed.
KEETON, C. J., and PORTER and SMITH, JJ., concur.
TAYLOR, Justice.
I concur except as to the inference that the legislature cannot in any case provide for a direct appeal to this court from a board or officer not mentioned in Art. 5, § 9, of our constitution. My views on this proposition are expressed in my dissent in Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P.2d 707. I concur here because a direct appeal to this court in a case such as this does not afford due process. Where constitutionally protected rights of person or property are dependent upon a judicial review of findings of fact made by an administrative tribunal, that review must be had in a court having the facilities as well as the authority to re-examine the facts and make its own findings, when necessary to the preservation of such rights. That kind of review cannot be had here. This is not a trial court.
Were this court to entertain the cause as an appeal and upon examination of the evidence disagree with the findings of the board, it could remand the cause only to *534 the board for further proceedings. Thus the character of judicial finality would be given to the ultimate findings of the board. In this manner the administrative tribunal would be clothed with judicial power in violation of the constitution, and constitutional rights might be denied without due process. Electors of Big Butte Area v. State Board of Education, 78 Idaho 602, 308 P.2d 225.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 12 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DONNIE RAY BOYD,
Petitioner - Appellant,
No. 02-6134
v. D.C. No. CIV-01-1937-C
(W.D. Oklahoma)
RON WARD, Director Oklahoma
Department of Corrections; STATE
OF OKLAHOMA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-Appellant Donnie Ray Boyd, a state inmate appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order dismissing his petition for a writ of habeas corpus as time-barred
under 28 U.S.C. § 2244(d)(1)(A). We deny a COA and dismiss the appeal.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
In March 1998, an Oklahoma jury convicted Mr. Boyd of first degree
felony murder, conspiracy to commit a felony, and first degree burglary. He was
sentenced to life imprisonment plus two consecutive terms of ten years each. The
Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his conviction on
December 10, 1999. On January 11, 2001, Mr. Boyd filed a federal habeas corpus
petition, which the district court dismissed without prejudice on April 24, 2001
for failure to cure certain procedural deficiencies. Mr. Boyd thereafter filed an
application for state post-conviction relief on May 8, 2001. The Oklahoma state
court denied his application, and on November 5, 2001, the OCCA affirmed the
denial. On December 10, 2001, Mr. Boyd initiated the instant action. 1
The magistrate judge to whom the case was referred ordered Mr. Boyd to
show cause why his petition should not be dismissed as untimely. Mr. Boyd
thereafter filed a response arguing that he is actually innocent of the crimes for
which he was convicted, that his failure to immediately file his second petition
should be excused because of a delay in obtaining certain state trial court records,
and that the district court erred in dismissing his initial federal habeas petition
instead of staying his petition until his state-court remedies were exhausted. The
1
Mr. Boyd signed his federal habeas petition on December 10, 2001.
However, the petition was not file-stamped until December 21, 2001. Liberal
application of the mailbox rule requires us to treat the petition as placed in the
hands of prison authorities on the day it was signed. See Marsh v. Soares, 223
F.3d 1217, 1218 n. 1 (10th Cir. 1988).
-2-
magistrate judge recommended that the district court dismiss the action as time-
barred, holding that Mr. Boyd was entitled to neither statutory nor equitable
tolling of the one-year limitations period of 28 U.S.C. § 2244(d)(1). Over Mr.
Boyd’s objections, the district court adopted the magistrate judge’s report and
recommendation and dismissed the petition with prejudice. This appeal followed.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a state prisoner generally has one year from the date his conviction
becomes final to file a petition for a writ of habeas corpus in federal court. See
28 U.S.C. § 2244(d)(1). This limitations period will be tolled during the
pendency of a “properly filed application for State post-conviction or other
collateral review . . . .” 28 U.S.C. § 2244(d)(2). Mr. Boyd’s conviction became
final on March 9, 2000. 2 Under § 2244(d)(1), Mr. Boyd therefore had until March
9, 2001 to file his federal habeas petition. As noted above, Mr. Boyd initiated the
instant action no earlier than December 10, 2001. Consequently, in the absence
of either statutory or equitable tolling, Mr. Boyd’s petition would have been
2
The OCCA affirmed Mr. Boyd’s conviction on December 10, 1999.
However, because he did not seek review in the United States Supreme Court, the
limitations period began to run only when the 90-day deadline for a certiorari
petition expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001)
(holding that if a habeas petitioner has not sought review in the United States
Supreme Court, the petitioner’s conviction does not become final until “the time
for filing a petition for certiorari with the Supreme Court has passed.”) (internal
quotations omitted).
-3-
untimely by over nine months.
We review de novo the legal conclusions of a district court in a habeas
proceeding. See Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir. 1990). Moreover,
where a district court denies a habeas petition on procedural grounds, a COA
should issue only if the prisoner can show that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right, and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
As an initial matter, we note that in his brief to this court Mr. Boyd has not
challenged the propriety of the district court’s ruling that his petition was time-
barred. Instead, Mr. Boyd merely renews the claims contained in his petition that
his trial and appellate counsel rendered ineffective assistance of counsel and that
he is therefore entitled to habeas relief. However, even if Mr. Boyd had properly
challenged the district court’s finding that his petition was untimely, we are
satisfied that the district court did not err in dismissing his action.
The district court held that statutory tolling pursuant to 28 U.S.C. §
2244(d)(2) was unavailable because Mr. Boyd’s application for state post-
conviction relief was not filed before the one year limitations period had run. As
already noted, Mr. Boyd filed his application for state post conviction relief on
-4-
May 8, 2001, well after the March 9, 2001 deadline. Moreover, the one-year
limitations period is not tolled under § 2244(d)(2) during the pendency of a prior
federal habeas action. See Duncan v. Walker, 533 U.S. 167, 181-182 (2001).
Consequently, Mr. Boyd’s action cannot be tolled under § 2244(d)(2). See Fisher
v. Gibson, 262 F.3d 1135, 1142-1143 (10th Cir. 2001) (holding that habeas
petitioner’s action was not subject to statutory tolling under § 2244(d)(2) because
he failed to initiate state post-conviction relief proceedings before the end of the
limitations period).
In light of the foregoing, Mr. Boyd’s petition can only be deemed timely
if the petition is subject to equitable tolling. We have held that equitable tolling
is available only in “rare and exceptional circumstances,” Gibson v. Klinger, 232
F.3d 799, 808 (10th Cir. 2000) (citation omitted), and that for equitable tolling to
apply, an inmate must “diligently pursue[] his claims and demonstrate[] that the
failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). In discussing
each of Mr. Boyd’s arguments that could possibly be construed as a claim that the
limitations period should be tolled, the magistrate judge held that equitable tolling
was not available in the present action. Specifically, the magistrate judge held
that Mr. Boyd failed to establish the existence of “extraordinary circumstances”
justifying the application of equitable tolling, and that in any case, Mr. Boyd did
-5-
not diligently pursue his claims. After carefully reviewing the magistrate judge’s
report and recommendation, the district court’s order of dismissal, and the record
on appeal, we are satisfied that the district court correctly concluded that
equitable tolling should not apply in the instant action.
Accordingly, we DENY Mr. Boyd’s request for a COA, DENY his request
to proceed in forma pauperis as moot, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-
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340 S.W.2d 891 (1960)
Jerry G. DOYLE
v.
Keith HAMPTON, Commissioner, Department of Correction, State of Tennessee.
Supreme Court of Tennessee.
October 7, 1960.
Jerry G. Doyle, Nashville, for appellant.
Henry C. Foutch, Asst. Atty. Gen., for the State.
BURNETT, Justice.
Jerry G. Doyle filed his petition in the Criminal Court of Davidson County seeking a declaratory judgment under Sections 23-1102 through 23-1113, T.C.A. The gravamen of the petition is that the Board of Pardons and Paroles should grant a parole to petitioner at the specified time under the statute when he has complied with statutory requirements entitling him to a parole and that they, the Board of Pardons and Paroles, do not have it within their power to refuse said parole when there is another conviction pending against the petitioner which is to begin at the conclusion of the first sentence, which is for life.
The petition seeks a construction of Section 40-3613, T.C.A. This Section, as it reads today and as carried in the Cumulative Supplement to the Code, is thus:
"Power to parole. The board of pardons and paroles shall have power to cause to be released on parole any *892 person sentenced to confinement in the penitentiary who has served the minimum term provided by law for the offense committed by him, less good time; provided, that no convict serving a life sentence shall be paroled until he has served for twenty-five (25) years, less diminution which would have been allowed for good conduct had his sentence been for twenty-five (25) years; provided further, that no person convicted of a sex crime shall be paroled unless the department of mental health, after an examination of such person, certifies to the board of pardons and paroles that he could be released with safety to the public."
This transcript shows that the petitioner, Doyle, was indicted in the Criminal Court of Knox County at the November Term, 1953, for the crimes of robbery and rape. At that time the petitioner was represented by able counsel. He was tried under these indictments and the jury found him guilty of the crime of rape and fixed his punishment at life imprisonment in the State penitentiary. He likewise plead guilty to the crime of robbery on the same day and the jury found him guilty of this crime and fixed his punishment for a period of not less than five nor more than twenty-five years in the penitentiary. The court in passing sentence ordered that the conviction in the robbery case run consecutively with the conviction and sentence rendered in the rape case.
Thus it is that under this state of facts that the petitioner now seeks to have the court direct that under a proper construction of the statute, above quoted, that petitioner is entitled to his parole under the life sentence at the conclusion of the time that he must serve under the statute less time for good behavior, etc. It is the petitioner's position that since he was convicted to serve a life sentence that then any other sentence which is to follow is a nullity because the life sentence does not expire during his life.
The record shows that petitioner had been given full credit on his prison sentences for all the good and honor time to which he is entitled and authorized under the provisions of Section 41-332 and Section 41-334, T.C.A. The record further shows that in conformity with the provision of the Code Section, above quoted (40-3613, T.C.A.), the Board of Pardons and Paroles has the discretion to compute the petitioner's life sentence in the conviction for rape on the basis of twenty-five years, less credit for his good and honor time, and should the petitioner conduct himself properly while an inmate of the penitentiary, in computing the allowance for good time and honor time, the petitioner would be required to serve a total of thirteen years and seven months on the life sentence. It is the complaint of the petitioner that the Board has indicated to him but for the additional sentence of five to twenty-five years under the robbery count which was fixed to run consecutively or after the life count, that since the life count is for life that this sentence amounts to a nullity, and the Board must grant his petition for parole under the life sentence statutes, above referred to, irrespective of the additional sentence of five to twenty-five years and credits, etc., to be allowed under it.
The sole question thus involved in this case concerns the administrative power of the Board of Pardons and Paroles as outlined in Section 40-3613, T.C.A., above quoted, and 40-3614, T.C.A. This Section (40-3614) reads:
"Grounds for parole Terms. No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board is of opinion that there is reasonable probability that if such prisoner is released he will live and remain at liberty without *893 violating the law, and that his release is not incompatible with the welfare of society. If the board shall so determine, such prisoner shall be allowed to go upon parole outside of prison walls and inclosure upon such terms and conditions as the board shall prescribe but to remain while thus on parole in the legal custody of the warden of the prison from which he is paroled, until the expiration of the maximum term specified in his sentence."
Under the last two Code Sections, referred to, this Court has held on two or three occasions that the granting of parole is a discretionary matter vested exclusively in the Board of Pardons and Paroles. See State ex rel. Greene v. Rimmer, 131 Tenn. 316, 174 S.W. 1134; State ex rel. Neilson v. Harwood, 183 Tenn. 567, 194 S.W.2d 448; and Graham v. State, 202 Tenn. 423, 424, 304 S.W.2d 622.
Parole, under our statutes, is nothing more than a conditional suspension of sentence. See State ex rel. Neilson v. Harwood, supra, for a full discussion of the question. The sentence of the man does not expire because of the parole, nor during the pendency of the parole. He during this time is still in the custody of the penal authorities of the State and subject to the provisions upon which he has been paroled. State ex rel. Nicholson v. Bush, 136 Tenn. 478, 190 S.W. 453. During this period of parole the prisoner, or petitioner as in this case, cannot be re-arrested under a capias, or whatnot, and placed in the penitentiary, jail or workhouse under a conviction had prior to the conviction upon which he is serving as a parolee from the State penitentiary. See State ex rel. Nicholson v. Bush, supra. So it is, that so long as the petitioner, or prisoner, is serving as a parolee under his term of confinement of life he remains on parole or under confinement of this sentence. The sentence for robbery, of course, is held in abeyance until the life sentence is served and it does not become effective for any purpose until the life sentence expires, or the prisoner has had a complete pardon under this sentence. Of course, under the life sentence, the prisoner, or petitioner here, cannot be made to serve the term for robbery because the life sentence continues as long as there is life, or a pardon has been granted.
In 39 Am.Jur., page 572, Section 82, the author of that work says:
"A parole does not vacate the sentence imposed, but merely suspends the execution of the penalty, and temporarily releases the convict from imprisonment on conditions which he is at liberty to accept or reject. Although the prisoner is conditionally released, the sentence is not set aside, nor is the offense expiated."
Thus it is that so long as the life sentence of petitioner has not been pardoned the question of whether or not he shall be made to serve whatever time is necessary under the burglary conviction is purely a matter, under the statutes above referred to and those quoted, in the discretion of the Board of Pardons and Paroles. In other words, if in their judgment this man is not eligible for parole under these statutes and under their study of the question of rehabilitation and things of that kind, and if in their discretion they feel that it is necessary for him to serve this additional time, there is nothing that the courts can do about the matter. It might be rather unfortunate for the Board to have said, "You are going to serve your pro-rata time under the burglary conviction before we grant a parole, because this conviction, that is the burglary conviction, cannot begin until the other sentence has reached its end." If this end is the death of the petitioner then, of course, he won't serve the sentence on the burglary conviction. If the petitioner *894 though is pardoned under the life sentence, then upon his pardon becoming effective the burglary conviction would become effective.
For the reasons above expressed, the judgment of the trial court is affirmed.
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19 F.3d 19
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Pamela REED, Plaintiff-Appellant,v.DELTA AIR LINES, INC., Defendant-Appellee.
No. 93-5031.
United States Court of Appeals, Sixth Circuit.
Feb. 24, 1994.As Amended on Denial of Rehearing andRehearing En Banc April 13, 1994.
Before: NELSON and BATCHELDER, Circuit Judges, and CONTIE, Senior Circuit Judge.
PER CURIAM.
1
This is a sexual harassment case in which the plaintiff seeks damages from her employer because of the misconduct of a first-line supervisor. The employer promptly fired the supervisor when it learned of his inappropriate behavior. Summary judgment was entered in favor of the employer, and the plaintiff has appealed. Upon de novo review, we conclude that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law. We shall therefore affirm the district court's disposition of the case.
2
* The plaintiff, Pamela Reed, started with defendant Delta Airlines in 1978 as a reservation sales agent in Knoxville, Tennessee. Delta's Knoxville office employs about 150 reservation sales agents and eight reservation sales supervisors. Each supervisor oversees a team of fifteen to twenty sales agents, and the supervisors report to the Chief Supervisor, Ms. Deborah Freshwater. Ms. Freshwater, in turn, reports to the Reservation Sales Manager, Ms. Mary Howington. An individual named Shan Harris, who was a Delta employee for 23 years and a reservation sales supervisor throughout Ms. Reed's employment, became Ms. Reed's supervisor in April of 1991.
A. Evidence of a Hostile Environment
3
Ms. Reed says that sometime during the period between 1980 and 1982--long before he became her supervisor--Mr. Harris cornered her in a stockroom and kissed her. When she reprimanded him, he laughed and left the room. Ms. Reed told a co-worker about the incident, and the story ultimately came to the ears of two other reservation sales supervisors, Messrs. Patterson and McGee. They told Ms. Reed that they thought she was lying and that any future complaints of a similar nature would be grounds for her dismissal. There is no indication in the record that either Ms. Howington or Ms. Freshwater knew about any of this prior to the lawsuit, although their predecessors were aware of the incident.
4
A second episode between Mr. Harris and Ms. Reed occurred eight or ten years later, in November of 1990, at a marketing meeting both were attending in Asheville, North Carolina. Ms. Reed says that Mr. Harris invited her to spend the night with him. She refused and left the meeting early. Ms. Reed did not tell Ms. Howington, Ms. Freshwater, or anyone else at Delta about the incident before bringing suit.
5
During the summer of 1991, according to Ms. Reed, after Mr. Harris had become her supervisor, he initiated discussions in which he questioned her about personal matters, including her recent marital separation. In the course of these conversations he also made personal animadversions on his own marital situation. These discussions became uncomfortable, according to Ms. Reed, when Mr. Harris began to make professions of love and expressed sexual desire for her. Ms. Reed says that she responded to Mr. Harris' overtures by telling him he was crazy.
6
Ms. Reed says there were two occasions that summer when Mr. Harris touched her in an inappropriate manner. Ultimately, she says, Mr. Harris sexually assaulted her. She describes the incident as follows:
7
"... I was going to use his phone. His phone was on the credenza behind him. And I was facing him. And he stands up, stands with his leg in between mine, and pushes me on his desk, and kissed me at that time ... [He] put his hand up my shirt. And he had pushed me down on his desk and pulled my underwear over, put his finger inside of me and kissed my leg."
8
Ms. Reed reported the incident to Marilyn Bible, and through her it came to the attention of Ms. Howington. After promptly investigating the incident and interviewing both parties, Ms. Howington recommended that Mr. Harris be fired for having engaged in sexual activity in the office. (Mr. Harris did not deny that sexual activity occurred, but he gave a different account of the nature of the activity and claimed that Ms. Reed was a willing participant.) Ms. Howington's recommendation was approved, and Mr. Harris was discharged.
9
Aside from these incidents, Ms. Reed says, Mr. Harris repeatedly made sexual comments directed toward her and other female co-workers. On four or five occasions, she says, he issued generalized invitations, before groups of sales agents, to participate in lewd activities with him. She also alleges that Mr. Harris regularly told her she was "sexy" and occasionally picked up magazines and made suggestive remarks to her and others about the women depicted in them. There is no contention that any employee--including Ms. Reed herself--reported any of this to Mr. Harris' superiors.1
10
Ms. Reed describes one incident, connected with the birthday of one of her co-workers, that did come to management's attention. To mark the co-worker's birthday, employees put up balloons shaped like breasts along the hallways, in plain view of the staff and customers. Although management clearly was aware of this situation, nobody ordered that the decorations be removed.
11
Delta had a published policy against sexual harassment in the workplace, but Ms. Reed and her co-workers never complained to management about Mr. Harris' conduct or any other workplace conduct they found offensive. Delta contends that they did not complain because Ms. Reed and her co-workers were willing participants in the sexual commentary that occurred in the office. Mr. Harris testified that Ms. Reed was a flirtatious person who regularly talked about her sexual activities, commented on the appearance of male employees, and once asked him, after she had undergone breast implant surgery, if he would like to see her "new" breasts.
12
After Mr. Harris was fired, Ms. Reed requested a transfer out of the Knoxville office. The request was not granted, and Ms. Reed says that she was subjected to various forms of retaliation by co-workers who were upset with her for having caused Mr. Harris to lose his job. Ms. Reed complains that Delta did nothing to ameliorate this situation.
B. Evidence of Quid Pro Quo Harassment
13
In 1986 Ms. Reed let Delta know that she would like to become a flight attendant. Mr. Harris was aware of this desire, and Ms. Reed says that Harris told her explicitly that he would help her get the flight attendant position if she would engage in sexual intercourse with him. On a subsequent occasion, conversely, when Ms. Reed told Mr. Harris that she was patching things up with her husband. Mr. Harris told her that he would prevent her from getting an in-flight position. Ms. Reed admits, however, that he later told her he would not interfere.
14
Although Ms. Reed acknowledges that Mr. Harris did not have authority to decide whether she would get an in-flight position, she contends his recommendation for the job was crucial to the hiring decision. She maintains, therefore, that her difficulties with Mr. Harris are the reason she was never given the position.
II
15
Ms. Reed sued Delta in state court under the Tennessee Human Rights Act, T.C.A. Secs. 4-21-101, et seq. Delta removed the case on diversity grounds to the United States District Court for the Eastern District of Tennessee. The parties consented to the assignment of the case to Magistrate Judge Robert P. Murrian, pursuant to 28 U.S.C. Sec. 636(c), for all purposes including judgment. Magistrate Judge Murrian granted a motion by Delta for summary judgment, and this appeal followed.
III
16
The Tennessee Human Rights Act provides, in relevant part, as follows:
17
"It is a discriminatory practice for an employer to:
18
(1) Fail or refuse to hire or discharge any person or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's . . . sex . . . ." T.C.A. Sec. 4-21-401.
19
The language of Sec. 4-21-401 closely parallels that of Sec. 2000e-2(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. Although remedies available under the Tennessee Human Rights Act are broader than those provided by Title VII, the standard of employer liability is the same under both statutes. See Trentham v. K-Mart Corp., 806 F.Supp. 692 (E.D.Tenn. 1991); Bruce v. Western Auto Supply, 669 S.W.2d 95, 97 (Tenn.App. 1984). In the absence of contrary Tennessee case law on the subject of employer liability for sexual harassment in the workplace, we are guided in our decision by Title VII cases.2
20
The prohibition against discrimination because of sex extends to sexual harassment. Actionable sexual harassment may take a "quid pro quo" form, in which favorable terms of employment are conditioned on submission to sexual advances, or it may take the form of a sexually hostile work environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).
21
* In the recent case of Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993), the Supreme Court declared that a hostile environment claim may be based on a showing that the harasser's conduct was "severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive." Id. at 370. The Court also said that the plaintiff must "subjectively perceive the environment to be abusive" to such a degree that the conduct "actually altered the conditions of the [her] employment." Id. To succeed on a hostile environment claim based on the conduct of one of the defendant's employees, the plaintiff must articulate a basis on which to hold the employer liable. Vinson, 477 U.S. at 72.
22
The magistrate judge assumed the truth of Ms. Reed's allegations and assumed that Mr. Harris had subjected her to a severe and pervasive sexually-hostile work environment in the summer of 1991. He found, however, that Ms. Reed had made no showing that Delta should be held answerable for the unauthorized misconduct of its employee. The court reasoned that because Delta had taken immediate and effective remedial action by firing Mr. Harris as soon as it had notice of his wrongdoing, there could be no liability on Delta's part.
23
In Vinson, 477 U.S. at 72 (1986), the Supreme Court declined to prescribe a definitive rule on employer liability for harassment at the hands of supervisors. The Court declared, however, that the courts should look to common law agency principles for guidance. Under established agency principles, the Court noted, absence of notice does not necessarily insulate the employer from liability; by the same token, however, there is no invariable rule of absolute liability for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known of the misconduct. id. The existence of a grievance procedure and a failure to invoke it are not necessarily dispositive, finally, although facts such as these are "plainly relevant." Id. Unwilling to generalize further, the Court indicated that employer liability for sexual harassment by supervisors is heavily dependent upon "the circumstances of [the] particular case." Id. at 73.
24
In Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987), where a supervisor with authority to hire, fire, and promote was found to have engaged in sexual harassment against a subordinate at work, and the employer, although it had been placed on notice of the supervisor's apparent inability to conduct himself properly toward the company's female employees, failed to deal with the problem effectively, this court, guided by traditional agency principles, concluded that the employer could be held liable. Yates recognized that "agency liability," as we subsequently termed it, "is not strict and can be negated if the employer responds adequately and effectively once it has notice of the actions." Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (6th Cir.), cert. denied, 113 S.Ct. 831 (1992). Kauffman was a case in which the employer did respond "adequately and effectively" once it had notice of what the offending supervisor was doing; when apprised of the facts, the company immediately terminated the wrongdoer's employment. The discharge was held to protect the employer from liability for sexual harassment. Id. at 184-85.
25
In the case at bar Ms. Reed argues that the dismissal of Mr. Harris was not sufficient, Delta's management long having acquiesced in a sexually-charged workplace and having failed to put an end to off-color jokes and commentary. She also argues that Delta's response was too late because management had long been on notice--because of the rude and unstable, albeit non-amorous, behavior for which Harris had been reprimanded--that Mr. Harris was likely to harass employees sexually.
26
Having reviewed the record before us de novo, we are satisfied that Delta's response was sufficient to relieve it of liability. The dismissal of Mr. Harris adequately and effectively eliminated any sexually-hostile work environment created by him, and the response was not untimely. The rude behavior for which Mr. Harris had been reprimanded was not indicative of a propensity to harass people sexually, and Delta had no real notice of any such propensity. None of the earlier incidents involving sexual commentary by Mr. Harris had been reported to Delta, moreover, and the company had no reason to know that the office environment was unacceptable (if it indeed was) to any of its female employees.
27
The fact that Delta did not discipline Mr. Harris earlier does not make its response inadequate. Neither does the fact that Delta took no action against the co-workers who were said to be unpleasant to Ms. Reed after Mr. Harris lost his job. The unpleasantness, if any, was not itself sexual in nature, and the law obviously cannot require a company to insure that its employees will be liked by their peers.
B
28
Ms. Reed also claims that the district court erred in granting the defendants summary judgment on her quid pro quo claims. In Highlander v. KFC National Mgmt. Co., 805 F.2d 644 (6th Cir.1986), this court set forth the elements of such a claim. The plaintiff must show
29
"(1) that [she] was a member of a protected class; (2) that [she] was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability." Id. at 648.
30
The magistrate found here that even if the other elements of the claim could be proved, Ms. Reed could not establish the fourth element of her case--namely, that any job benefit was made conditional on her compliance with sexual demands, or that she suffered any tangible job detriment by virtue of her refusal to acquiesce. Ms. Reed contends that she was denied a tangible job benefit--the in-flight position she requested--as a result of her refusal to submit to Mr. Harris' requests for sexual favors. Ms. Reed admits that Mr. Harris did not have decisionmaking authority with regard to her bid for an in-flight position, but she says that his recommendation carried significant weight in the ultimate hiring decision. Be that as it may, Ms. Reed has offered no evidence that Mr. Harris did, in fact, give her a less than positive recommendation for the job. According to the affidavit of Mary Howington, Chief Supervisor Freshwater's superior, Harris always expressed support for Ms. Reed's bid for an in-flight job--and the affidavit stands unrefuted. In order to be actionable, the loss of a job benefit must be causally related to the plaintiff's response to sexual demands. Highlander, 805 F.2d at 649.3
31
AFFIRMED.
ORDER
April 13, 1994
32
BEFORE: NELSON and BATCHELDER, Circuit Judges; and CONTIE, Senior Circuit Judge.
33
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original hearing panel.
34
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case; however, the panel has amended its opinion (attached) which has been filed nunc pro tunc. Accordingly, the petition is denied. [Note: Amendments incorporated into opinion.]
1
Mr. Harris did receive reprimands for other types of unprofessional conduct during his tenure at Delta. He was once reprimanded for insulting a female attorney who was giving a presentation to Delta employees, and he was also rebuked for making a disparaging comment about the female managers at Delta. On two occasions, Delta management expressed dissatisfaction with Mr. Harris' handling of crisis situations that arose at work
2
The parties have relied exclusively on federal cases to support their positions concerning employer liability for the harassing conduct of supervisory personnel
3
The Supreme Court's recent decision in Harris does not alter our conclusion that a tangible job detriment is required in quid pro quo cases. Although Harris removed the requirement that a plaintiff show concrete psychological harm arising out of sexual harassment, the Harris decision applies only to hostile environment theories of sexual harassment. 114 S.Ct. at 369 ("[i]n this case we consider the definition of a discriminatorily 'abusive work environment' (also known as a 'hostile work environment')")
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