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https://www.courtlistener.com/api/rest/v3/opinions/4234494/
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C-Track E-Filing
The Supreme Court
of Nevada
Appellate Case Management System
C-Track, the browser based CMS for Appellate Courts
Case Search
Participant Search
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01-03-2023
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01-05-2018
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https://www.courtlistener.com/api/rest/v3/opinions/3382871/
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Cause dismissed on Motion of Counsel for Relator.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4233804/
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3852
___________
ANDREW PANICO,
Appellant
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-15-cv-01566)
District Judge: Honorable Brian R. Martinotti
____________________________________
Argued: March 30, 2017
Before: VANASKIE, KRAUSE, and RESTREPO, Circuit
Judges
(Opinion Filed: January 2, 2018)
_____________
PHILIP D. STERN, ESQ. [ARGUED]
ANDREW T. THOMASSON, ESQ.
Stern Thomasson
150 Morris Avenue
2nd Floor
Springfield, NJ 07081
Counsel for Appellant Andrew Panico
DAVID N. ANTHONY, ESQ. [ARGUED]
STEPHEN C. PIEPGRASS, ESQ.
Troutman Sanders
1001 Haxall Point
P.O. Box 1122
15th Floor
Richmond, VA 23219
AMANDA L. GENOVESE, ESQ.
Troutman Sanders
875 Third Avenue
New York, NY 10022
CINDY D. HANSON, ESQ.
Troutman Sanders
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308
Counsel for Appellees Portfolio Recovery
Associates, LLC
___________
OPINION OF THE COURT
2
RESTREPO, Circuit Judge.
In this putative class action, Plaintiff-Appellant Andrew
Panico, who resides outside of the state of Delaware but signed
a contract with a choice-of-law provision specifying
application of Delaware state law, asserts that Defendant-
Appellee Portfolio Recovery Associates (“PRA”) violated the
Fair Debt Collection Practices Act (“FDCPA”) and the New
Jersey Consumer Fraud Act (“NJCFA”) by suing to collect
debts after the applicable Delaware statute of limitations had
run. The District Court granted Defendant’s motion for
summary judgment, after finding that a Delaware tolling
statute served to prevent the Delaware statute of limitations
from running as to a party residing outside the state of
Delaware through the pendency of the credit relationship,
default, collections attempts, and ensuing litigation. For the
reasons that follow, we will reverse the District Court’s grant
of summary judgment and remand the case for further
consideration.
I1
Panico is a resident of the state of New Jersey, who, by
early 2010, allegedly incurred substantial debt on a credit card
account with MBNA America Bank (“MBNA”). As it arose
from spending for personal or household purposes, Panico’s
obligation qualifies as “debt” under 15 U.S.C. § 1692a(5) of
the FDCPA. On June 18, 2010, MBNA regarded Panico as
delinquent on his then-outstanding balance. MBNA assigned
the rights to the debt to Appellee PRA, a debt collector.
1
For purposes of summary judgment in the District
Court, the parties stipulated to all of the facts as related here.
3
Although PRA engaged in attempts to collect the debt, it did
not succeed.
On October 20, 2014—more than three but fewer than
six years after the cause of action for debt collection accrued—
PRA sued Panico in New Jersey Superior Court to recover the
balance. New Jersey’s relevant statute of limitations barred
collection of such debts after six years; Delaware’s statute of
limitations, by contrast, proscribed collection of such debts
after only three years. The credit agreement governing the
relationship between Panico and MBNA provided for
application of “the laws of the State of Delaware, without
regard to its conflict of laws principles, and by any applicable
federal laws.” App. 54. Panico moved for summary judgment,
on the ground that the collections action was time-barred.
Rather than litigate the issue of whether Delaware’s tolling
statute applied to stop the state’s three year statute of
limitations from running as to defendants residing outside the
state, PRA agreed to a stipulated dismissal.
In March 2015, Panico filed this putative class action in
the District Court for the District of New Jersey. The class
action alleged violations of the FDCPA and the NJCFA, on the
grounds that PRA had sought to collect on a time-barred debt.
PRA moved for summary judgment on the basis that the debt
it had sought to collect was not time-barred. That motion
presented squarely the issue of whether the Delaware tolling
statute would apply to abrogate the statute of limitations that
would otherwise have barred the collection of the underlying
debt. The parties agreed to address that issue before addressing
class certification, and ultimately, the District Court granted
PRA’s motion for summary judgment on September 14, 2016.
Panico timely appealed.
4
II
The District Court had jurisdiction under 15 U.S.C.
§ 1692k(d)—the relevant section of the FDCPA—and 28
U.S.C. § 1331. We have jurisdiction over an appeal from a
final decision of a District Court under 28 U.S.C. § 1291. Our
review of a District Court’s grant of summary judgment is
plenary. NAACP v. City of Philadelphia, 834 F.3d 435, 440
(3d Cir. 2016). Summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).
III
The parties agree, for the purpose of this appeal, that
under New Jersey conflict-of-law rules, Delaware law governs
this action.2 They disagree, however, as to the interaction of
Delaware’s statute of limitations and statutory tolling
provision. Delaware’s statute of limitations for actions to
recover debts based on a credit relationship between two
parties bars filing against defendants “after the expiration of
3 years from the accruing of the cause of such action.” Del.
Code Ann. tit. 10, § 8106a. PRA’s suit, filed in October of
2
PRA’s memorandum of law in support of its motion
for summary judgment before the District Court acknowledged
that, “[f]or the purposes of this motion only, PRA will presume
that [Panico]’s allegation as to the applicable state law and
statute of limitation is correct.” Supp. App. 1. PRA confirmed
at oral argument that it agreed to so presume, rather than
litigate the issue of conflict of laws, based on PRA’s firm belief
that it would prevail even if Delaware law applies.
5
2014 to collect an alleged debt regarded as delinquent as of
June 2010, falls outside the applicable statute of limitations.
PRA asserts, however, that the Delaware tolling statute applies
to stop the statute of limitations from running because Panico
resided outside of Delaware during the entirety of the credit
relationship, the debt collection efforts, and the period of time
preceding the commencement of litigation. The Delaware
tolling statute provides that:
If at the time when a cause of action accrues
against any person, such person is out of the
State, the action may be commenced, within the
time limited therefor in this chapter, after such
person comes into the State in such manner that
by reasonable diligence, such person may be
served with process. If, after a cause of action
shall have accrued against any person, such
person departs from and resides or remains out
of the State, the time of such person’s absence
until such person shall have returned into the
State in the manner provided in this section, shall
not be taken as any part of the time limited for
the commencement of the action.
Del. Code Ann. tit. 10, § 8117.
Our role is to apply the law of the appropriate
jurisdiction. City of Philadelphia v. Lead Indus. Ass’n, 994
F.2d 112, 123 (3d Cir. 1993). Contrary to PRA’s argument,
Delaware courts have interpreted the state’s tolling statute not
to abrogate the statute of limitations against defendants within
reach of the state’s long-arm statute. See, e.g., Hurwitch v.
Adams, 155 A.2d 591 (Del. 1959); Sternberg v. O’Neil, 550
6
A.2d 1105, 1114 (Del. 1988). In Hurwitch, the Delaware
Supreme Court noted that applying the tolling statute literally
“would result in the abolition of the defense of statutes of
limitations in actions involving non-residents.” Hurwitch, 155
A.2d at 594. Rather than countenance such a result, the Court
held that the tolling statute “has no tolling effect . . . when the
defendant in the suit is subject to personal or other service to
compel his appearance.”3 Id. at 593. As such, the limitations
period “runs continuously without interruption when there is
available to the plaintiffs throughout the period an acceptable
means of bringing the defendant into court.” Id. at 594
(citation omitted). Within Delaware, Hurwitch has guided
state courts to find that statutory tolling does not stop the
statute of limitations from running as to defendants who would
have been amenable to service. See, e.g., Sternberg, 550 A.2d
at 1114 (confirming, in the context of an Ohio corporation, that
there “is no tolling effect on the applicable statute of limitations
in any action when the nonresident defendant in the suit is
subject to substituted service of process.”).
PRA points to Saudi Basic Industries Corp. v. Mobil
Yanbu Petrochemical Co., where the Delaware Supreme Court
applied statutory tolling to an out-of-state entity so as to
abrogate an otherwise-applicable statute of limitations. 866
A.2d 1 (Del. 2003). But Saudi Basic only underscores that the
lynchpin of the analysis is whether the defendant could
reasonably be served. In that case, the court held that “the
purpose and effect of [the tolling statute] is to toll the statute of
3
Since Hurwitch, the tolling statute has been re-
codified at Del. Code Ann. tit. 10, § 8117, as cited above. At
the time, the tolling statute was codified at Del. Code Ann. tit.
10, § 8116.
7
limitations as to defendants who, at the time the action accrues,
are outside the state and are not otherwise subject to service of
process in the state.” Id. at 18. In those circumstances, the
statute of limitations is tolled until the defendant “becomes
amenable to service of process.” Id. The defendant in Saudi
Basic was a corporation based in Saudi Arabia, and could not
have been served even under Delaware’s long-arm statute.4
There is no dispute that the tolling statute applies in such a
case—but serving a resident of New Jersey differs
substantially from serving a Saudi Arabian corporation.
Indeed, PRA had no trouble serving Panico when it sued him
in New Jersey state court.5
The Hurwitch line of cases has guided out-of-state
courts in answering the question that Delaware courts cannot
sit in a posture to answer: whether Delaware’s tolling statute
4
That statute provides that “[a]ny person . . . submits
to the jurisdiction of the Delaware courts” when he or she,
among other things, “[t]ransacts any business . . . in the State.”
Del. Code Ann. tit. 10, § 3104(b)-(c). The same statute
provides for “service of process outside the State” in a variety
of ways—including personal delivery as prescribed for service
within Delaware, or personal delivery as prescribed for service
within the jurisdiction of the person to be served—so long as it
is “reasonably calculated to give actual notice.” Id. § 3104(d).
5
The parties stipulated at the summary judgment stage
that Plaintiff was not amenable to service of process in
Delaware, App. 47; however, while it may have been true that
Plaintiff was not subject to process while physically located in
Delaware, it is beyond peradventure that Plaintiff was subject
to service of process, even out of state.
8
stops the Delaware statute of limitations from running in suits
commenced, as here, in out-of-state jurisdictions against out-
of-state parties based on agreements governed by Delaware
law. Out-of-state courts have uniformly declined to apply the
Delaware tolling provision to stop the statute of limitations
from running in perpetuity. E.g., Portfolio Recovery Assoc.,
LLC v. King, 927 N.E.2d 1059, 1062 (N.Y. 2010) (concluding
the Delaware tolling provision did not extend the Delaware
statute of limitations in an action by the same party in this suit
to collect a debt against a non-resident of Delaware);
McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, 1276 (M.D.
Fla. 2008) (finding that an argument that the Delaware tolling
statute stopped the Delaware statute of limitations from
running, “although wrong . . . was a good faith mistake”);
Resurgence Fin., LLC v. Chambers, 173 Cal.App. 4th Supp. 1,
6 (2009) (finding that the Delaware tolling statute “can be most
reasonably read to apply only to actions that are actually filed
in a Delaware court or actions that could have been filed in a
Delaware court”).6
6
See also Izquierdo v. Easy Loans Corp., No. 2:13-cv-
1032-MMD-VCF, 2014 WL 2803285, *7 (D. Nev. June 19,
2014) (finding that the Delaware tolling statute only stopped
the Delaware statute of limitations from running when the
action was or could have been filed in a Delaware court);
Lehman Bros. Holdings, Inc. v. First Cal. Mortg. Corp., No.
13-cv-02113-CMA-KMT, 2014 WL 1715120, *4 (D. Colo.
April 30, 2014) (rejecting the argument that Delaware’s tolling
statute stops the statute of limitations from running when such
application would result in “an absurd result: tolling the
limitations period in perpetuity”).
9
The only courts that have accepted arguments
analogous to PRA’s here—that the Delaware tolling statute
stops the Delaware statute of limitations from running—have
done so in contexts where doing so would not create “the
‘absurd’ result of a claim surviving in perpetuity” or result in
“the abolition of a statute of limitations affirmative defense.”
Unifund CCR Partners v. Sunde, 260 P.3d 915, 925 (Wash.
App. 2011); see also CACV of Colorado, LLC v. Stevens, 274
P.3d 859 (Or. Ct. App. 2012). In both of those cases, the courts
applied the forum state’s limitations period to preserve the
availability of a statute of limitations defense. Unifund, 260
P.3d at 915 (applying Washington’s limitations period);
CACV, 274 P.3d at 859 (applying Oregon’s limitations period).
No court, then, has accepted the argument that PRA makes
here—that the Delaware tolling statute may stop the Delaware
statute of limitations from running in perpetuity as to the many
out-of-state consumers who sign contracts of adhesion with
Delaware corporations without ever setting foot in the state.
We believe those courts have the correct reading of the
interaction of the Delaware tolling and limitations statutes as
to such out-of-state defendants. For decades, the Delaware
tolling statute has abrogated the State’s statute of limitations
only as to defendants not otherwise subject to service of
process. We have heard no evidence that the Delaware
legislature intended to export the state’s tolling statute into out-
of-state forums so as to substantially limit the application of
the Delaware statute of limitations. Departing from that
precedent would also have the effect of eliminating the
protections of the FDCPA, NJCFA, and other state statutes
intended to protect debtors and regulate debt collection. We
see no reason to predict that the Delaware Supreme Court
would reject the Hurwitch line of cases in contravention of
10
federal and out-of-state consumer protection law in a manner
that would result in indefinite tolling of the state statute of
limitations. Accordingly, we decline to do so.
IV
For the foregoing reasons, we reverse the order of the
District Court, and remand for further proceedings consistent
with this opinion.
11
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01-03-2023
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01-02-2018
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https://www.courtlistener.com/api/rest/v3/opinions/4229404/
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA ALAN MCNEELY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:15-cr-00098-CCE-2)
Submitted: November 28, 2017 Decided: December 15, 2017
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., Winston-Salem, North Carolina, for Appellant. Terry Michael
Meinecke, Angela Hewlett Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Alan McNeely pled guilty, pursuant to a plea agreement, to conspiracy to
distribute heroin, in violation of 21 U.S.C. § 846 (2012). The district court sentenced
McNeely to 162 months’ imprisonment. Pursuant to Anders v. California, 386 U.S. 738
(1967), McNeely’s counsel has filed a brief certifying that there are no meritorious
grounds for appeal, but questioning whether the district court complied with Fed. R.
Crim. P. 11 in accepting McNeely’s guilty plea and whether McNeely’s sentence is
reasonable. McNeely has not filed a pro se supplemental brief despite being notified of
his right to do so. We affirm.
Because McNeely did not seek to withdraw his guilty plea, we review the
adequacy of the Rule 11 hearing for plain error. United States v. Sanya, 774 F.3d 812,
815 (4th Cir. 2014). To establish plain error, an appellant must show: (1) error; (2) that
was plain; and (3) that affected his substantial rights. Id. at 816. “In the Rule 11 context,
this inquiry means that [defendant] must demonstrate a reasonable probability that, but
for the error, he would not have pleaded guilty.” Id. (internal quotation marks omitted).
Additionally, we exercise our discretion to correct such an error only if failing “to do so
would seriously affect the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks omitted). Our review of the record reveals that the district
court substantially complied with Rule 11 in accepting McNeely’s guilty plea, which he
entered knowingly and voluntarily.
We review the reasonableness of McNeely’s sentence for abuse of discretion.
United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). First, we assess procedural
2
reasonableness, considering whether the district court properly calculated the Sentencing
Guidelines range, allowed the parties to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the selected sentence.
Gall v. United States, 552 U.S. 38, 49-51 (2007). If a sentence is free of “significant
procedural error,” we then review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. “Any sentence that is within or
below a properly calculated Guidelines range is presumptively reasonable,” and this
“presumption can only be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). Our review of the record leads us to conclude that McNeely’s
sentence is procedurally sound. Moreover, McNeely has failed to overcome the
presumption of substantive reasonableness accorded his within-Guidelines-range
sentence.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform McNeely, in writing, of the right to
petition the Supreme Court of the United States for further review. If McNeely requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on McNeely.
3
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
4
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01-03-2023
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12-15-2017
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https://www.courtlistener.com/api/rest/v3/opinions/3829500/
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This is an original proceeding to review an award of the State Industrial Commission. It is admitted that on the 4th day of May, 1929, the respondent received an accidental personal injury arising out of and in the course of his employment, and that he was awarded compensation in the sum of $15 for temporary disability. He returned to work on May 14, 1929. On February 5, 1931, he was awarded compensation for $200 for serious and permanent disfigurement. On December 2, 1931, respondent was awarded compensation in the sum of $900 for 50 per cent. loss of vision of his right eye, and it was further ordered by the Commission that the petitioner pay all reasonable medical expenses incurred by respondent by reason of said injury.
The petitioner presents his cause to this court upon two propositions: (1) There is no competent evidence to sustain the finding of permanent loss of 50 per cent. of vision in the right eye as a result of said accidental personal injury; and (2) that there is no proof of any medical expense incurred by Martin Lankford as a result of said accidental injury. We have carefully examined the record in this case, and find that there is some competent evidence to sustain the award, and it is well settled in this jurisdiction that an award of the State Industrial Commission sustained by any competent *Page 282
evidence will not be disturbed on petition to review. The award for compensation is therefore affirmed. It is conceded by the respondent that there is no competent evidence relative to medical attendance, and the award for medical attendance is vacated.
LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, and KORNEGAY, JJ., concur. ANDREWS and McNEILL, JJ., absent.
Note. — See under (1) annotation in L. R. A. 1916A, 266; L. R. A. 1917D, 186; 28 R. C. L. 812, 828, 829; R. C. L. Perm. Supp. p. 6254; R. C. L. Pocket Part, title Workmen's Compensation, § 116.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3382940/
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Writ of Error dismissed on motion of counsel for the Defendant in Error.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523033/
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Order entered April 6, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00377-CV
IN THE BEST INTEREST AND PROTECTION OF E.P., APPELLANT
On Appeal from the Probate Court No. 3
Dallas County, Texas
Trial Court Cause No. MI-20-00463
ORDER
Before the Court are appellant’s March 30, 2020 pro se motions to throw out
judgment and for mistrial. Because appellant is represented by counsel and is not
entitled to hybrid representation, we DENY the motion. See Smith v. Smith, 22
S.W.3d 140, 151, 153 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (civil
litigant not entitled to hybrid representation); see also In re Black, 04-18-00700-
CV, 2018 WL 6331052 (Tex. App.—San Antonio Dec. 15, 2018, orig. proceeding)
(mem. op.) (same - proceeding for civil commitment of sexually violent predator).
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3842056/
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Action by the Northwest Adjustment Company against Ora M. Akers, wherein the plaintiff recovered a judgment against the defendant, and wherein Multnomah County was brought in as garnishee. From a judgment determining that the money owing by the county to the defendant was not subject to garnishment, the plaintiff appeals.
APPEAL DISMISSED.
In an action brought by plaintiff against the defendant Akers, plaintiff recovered judgment *Page 342
for an amount in excess of $250 and caused an execution to be issued thereon and a notice of garnishment to be served on the county clerk of Multnomah county. At that time there was due and owing from the county to Akers $34.20 as a juror's fees.
Section 3-606, Oregon Code 1930, declares that any "salary", "wages", "credits" or "other personal property", in the possession or under the control of any county shall be subject to garnishment, and provides that the process in such proceeding may be served on the officer whose duty it is to issue a warrant for such "salary", "wages", "money" or "other personal property", and further provides that such officer shall not be required to answer as garnishee as to any money or property in custody of the law. The statute makes no specific mention of jurors' fees and such fees are not within the operation of the statute unless included in the words "salary", "wages", "credits" or "money". The certificate furnished by the clerk to the sheriff showed that said sum of $34.20 was due Akers as a juror's fees, but denied that such fees were attachable. This certificate being unsatisfactory to plaintiff, he caused written allegations and interrogatories to be served on the clerk, who answered as before. Upon the trial before the circuit court of the issues thus raised, it was held that jurors' fees were not subject to garnishment while in the possession of the county and that plaintiff was not entitled to judgment against the county as the garnishee defendant in the action. From this ruling, the plaintiff has appealed.
The appellate jurisdiction of this court is limited by section 7-501, Oregon Code 1930, which provides that: "no appeal to the supreme court shall be taken or allowed in any action for the recovery of money or *Page 343
damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."
Plaintiff contends that the amount in controversy must be determined from the pleadings in the original action and not by the amount which was owed by the county and sought to be garnisheed herein. He cites in support of his contention King v.Porter, 113 Tex. 198 (252 S.W. 1022); Johnson v. Joslyn,47 Wash. 531 (92 P. 413); Ingham v. Harper, 71 Wash. 286
(128 P. 675, Ann. Cas. 1914C, 528); Lingo v. Belt, 198 Iowa 1276
(201 N.W. 5), and Meyer v. Perkins, 20 Cal. App. 661 (130 P. 206). In none of these cases, except King v. Porter, was the question involved of the amount necessary to confer jurisdiction upon an appeal in garnishment proceedings. It must be remembered, in considering decisions from other jurisdictions, that regard must be had to the statutory or constitutional provisions involved there. In the King case it was held that a garnishment proceeding being ancillary to and a part of the original action, the court had appellate jurisdiction in such proceedings though the amount involved was less than $100, where it had jurisdiction in the original suit. That decision recites that the statute provided that the writ shall be made returnable to the court in which the judgment was rendered and that the cause should be heard and determined in that court without reference to the amount in controversy. Since we have no such statute in this state, that decision is not authoritative in this case. The Washington cases cited were based upon a constitutional provision which provided that "appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property, does not exceed the sum of two hundred dollars". See Ingham v.Harper Son, *Page 344
supra, where it was said: "The framers of the Constitution must be presumed to have used the words `original amount' advisedly. The most obvious meaning and purpose of the word `original' in its connection is to limit the amount to the time when the matter first originates as a controversy in court; that is, to the time when the action is commenced."
In the recent case of Moore v. Myers, (Wash.) 27 P.2d 117, Mr. Justice Main, speaking for the court in holding that the appeal should be dismissed where the complaint contains numerous items, a part of which upon the trial were waived, thereby reducing the amount in controversy to less than the amount required to confer jurisdiction, said: "In the present case, the amount in controversy was the amount of the items remaining after the respondent waived certain items and thereby, in effect, struck them from the complaint. The amount over which the controversy was waged and submitted to the court was the sum of one hundred fifty dollars or less, and therefore was not within the appellate jurisdiction of this court."
We find nothing in the Washington cases cited which lends any support to plaintiff's contention that, in a garnishment proceeding, the amount in controversy is the amount sued for in the complaint or pleadings in the original action. The two cases last above cited, as supporting plaintiff's contention, merely hold that, in an appeal from an order refusing to tax costs, the appeal should not be dismissed upon the mere ground that the costs sought to be taxed are less than the amount required to confer jurisdiction upon the appellate court. Such costs, if taxed, become a part of the original judgment and, if the judgment appealed from is of a sufficient amount to confer jurisdiction upon the appellate court, it would seem that a party *Page 345
deprived of his lawful costs in the action would be as much entitled to appeal as he would if deprived of some substantive part of the claim sued on.
Under our statute, it has been repeatedly held that a garnishment proceeding "partakes of the nature of, and is in all essentials, a separate action or suit against the person garnished". Salem Mills Co. v. Lord, 42 Or. 82 (69 P. 1033, 70 P. 832); Keene v. Smith, 44 Or. 525 (75 P. 1065). And that the effect of the garnishment is to subrogate the plaintiff to the rights of the defendant and to empower him to sue the garnishee in the enforcement of such rights. Burns v. Payne, 31 Or. 100
(49 P. 884).
From the very nature of a garnishment proceeding, the enforcement of plaintiff's claim as set forth in his complaint in the original action and his enforcement in the ancillary proceeding by garnishment of a claim owing to the defendant by a third party are two entirely separate and distinct things. There is a difference between the parties and in the amounts of the two claims. The amount in controversy in the original action is the amount sued for and in the garnishment proceedings the amount sought to be garnisheed.
In Adams v. Vanhoose, 225 Ky. 606 (9 S.W.2d 722), under a statute which provided that no appeal shall be taken to the court of appeals from a judgment for the recovery of money or personal property, if the value in controversy be less than $200, plaintiff brought an action on a note and caused an attachment to issue and personal property of the value of $85 to be attached. The plaintiff recovered judgment for more than $200, but his attachment was discharged and, upon an appeal from that part of the judgment discharging the attachment, the appeal was dismissed, the court holding that the only amount involved upon the appeal *Page 346
was the value of the attached property, which, being only $85, was not sufficient to give the court jurisdiction over the appeal.
In the instant case the amount involved is only $34.20 and that sum is not sufficient under our statute to give this court jurisdiction. The appeal, therefore, is dismissed.
BEAN, CAMPBELL and BAILEY, JJ., concur. *Page 347
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-702V
UNPUBLISHED
ANTONIO PEREZ, Chief Special Master Corcoran
Petitioner, Filed: March 4, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Guillain-
Barre Syndrome (GBS)
Respondent.
Michael Adly Baseluos, Baseluos Law Firm, PLLC, San Antonio, TX, for petitioner.
Mark K. Hellie, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
On May 14, 2019, Antonio Perez filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered from Guillain-Barre Syndrome
(“GBS”) caused by an influenza (“flu”) vaccination. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
On October 17, 2019, a ruling on entitlement was issued, finding Petitioner
entitled to compensation for GBS. On February 27, 2020, Respondent filed a proffer on
award of compensation (“Proffer”) indicating Petitioner should be awarded $84,265.00
comprised of $83,500.00 for pain and suffering, and $765.00 in past unreimbursed
medical expenses. Proffer at 1. In the Proffer, Respondent represented that Petitioner
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the decision will be available to anyone with access
to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
agrees with the proffered award. Id. Based on the record as a whole, I find that
Petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $84,265.00 (comprised of $83,500.00 for pain and suffering, and
$765.00 in past unreimbursed medical expenses) in the form of a check payable
to Petitioner. This amount represents compensation for all damages that would be
available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
ANTONIO PEREZ,
Petitioner,
Case No. 19-702V (ECF)
v. CHIEF SPECIAL MASTER
CORCORAN
SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On May 14, 2019, petitioner filed a petition seeking compensation under the
Vaccine Act for Guillain-Barre Syndrome (GBS) that he claimed occurred within the
Table timeframe following a flu vaccine. On October 15, 2019, respondent conceded that
entitlement to compensation was appropriate under the terms of the Vaccine Act.
Thereafter, on December 20, 2019, the Special Master issued a Ruling on Entitlement,
finding that petitioner was entitled to vaccine compensation for a GBS Table injury.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be
awarded $84,265.00. The award is comprised of the following: $83,500.00 for pain and
suffering and $765.00 in past unreimbursed medical expenses. This amount represents
all elements of compensation to which petitioner is entitled under 42 U.S.C. § 300aa-
15(a). Petitioner agrees.
II. Form of the Award
The parties recommend that compensation provided to petitioner should be made
through a lump sum payment of $84,265.00, in the form of a check payable to petitioner.
Petitioner agrees. Petitioner is a competent adult. Evidence of guardianship is not
required in this case.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
GABRIELLE M. FIELDING
Assistant Director
Torts Branch, Civil Division
s/ Mark K. Hellie
MARK K. HELLIE
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
T: (202) 616-4208
E: [email protected]
DATED: February 27, 2020
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612 F.3d 960 (2010)
Geraldine LANG, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION, Appellee.
No. 09-1927.
United States Court of Appeals, Eighth Circuit.
Submitted: February 11, 2010.
Filed: July 15, 2010.
*961 Robert J. Bruno, argued, Burnsville, MN, for appellant.
Lonnie F. Bryan, AUSA, argued, Minneapolis, MN, for appellee.
Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
BYE, Circuit Judge.
In this appeal, we are asked to decide whether a garnishment action brought by Geraldine Lang in Minnesota state court against the Social Security Administration (SSA) was removed to federal court in a timely manner. The district court held the government complied with the thirty-day time limit for removal set forth in 28 U.S.C. § 1446(b). We disagree, and therefore reverse and remand with instructions to the district court to remand this case to state court.
I
On December 26, 2007, Lang obtained a Minnesota state court judgment for unpaid child support against her ex-husband, Thomas Swanson. The judgment amounted to $9,436. At the time, Swanson was receiving Social Security disability benefits from the SSA. Five days later, on December 31, 2007, Lang served a garnishment summons on the SSA seeking to have her state court judgment satisfied out of Swanson's social security payments.[1] Lang *962 pursued the garnishment action in accordance with 42 U.S.C. § 659, under which the United States has agreed to be sued in state court garnishment proceedings brought to enforce child support obligations.
The garnishment summons complied with state law in all respects. Lang served the garnishment summons upon Anne Lewandoski at the SSA's field office in St. Paul, Minnesota. Prior to doing so, Lang's counsel contacted the SSA to determine who the SSA had designated as its "agent . . . to receive orders and accept service of process in matters relating to child support or alimony," 42 U.S.C. § 659(c)(1)(A), and was specifically instructed to serve the garnishment summons on Lewandoski.
Minnesota law requires a person served with a garnishment summons to respond to the summons by sending the creditor "a written disclosure of the garnishee's indebtedness, money, or other property owing to the debtor" within twenty days. Minn.Stat. § 571.75, subd. 1. The SSA did not comply with the garnishment summons. Instead, the SSA contacted Lang's counsel requesting a copy of the state court order of judgment for child support arrearages. Lang provided the SSA with a copy of the state court order on February 18, 2008. The SSA still did not comply with the garnishment summons by sending Lang a written disclosure. Instead, on February 25, 2008, the SSA sent Lang's counsel a letter claiming it could not comply with the garnishment summons because the state court order "does not show that it is to collect child support and/or alimony." The state court judgment expressly indicated the judgment was for child support. The SSA's letter also claimed it did not have "enough information (full name and social security number) for us to identify the person whose benefit payments it will affect." The garnishment summons specifically listed "Thomas M. Swanson" as the debtor and included his social security number.
On March 4, 2008, after the SSA had still failed to comply with the garnishment summons by providing Lang with a written disclosure in accordance with state law, Lang served the SSA with a notice of motion and motion indicating she would be asking the state court for a default judgment pursuant to Minn.Stat. § 571.82, subd. 1,[2] or, in the alternative, for leave to file a supplemental complaint against the SSA pursuant to Minn.Stat. § 571.75, subd. 4.[3] A motion hearing was set for March 25, 2008. The SSA did not serve or *963 file a response to the motion, and did not appear at the hearing.
On April 8, 2008, the state court authorized Lang to serve and file a supplemental complaint. Lang properly served and filed the supplemental complaint on April 10, 2008. The SSA did not file or serve an answer to the supplemental complaint.
On May 16, 2008, Lang properly served the SSA with a notice of motion and motion indicating she would be asking the state court for summary judgment. A motion hearing was set for June 5, 2008. Once again, the SSA did not respond to the motion or appear at the motion hearing to oppose summary judgment. As might be expected, on June 5, 2008, the state court entered judgment against the SSA in favor of Lang in the amount of $9,456.88, the amount requested in the initial garnishment summons. On June 30, 2008, after the default judgment had been entered, the SSA sent Lang's counsel a note stating "WE ARE UNABLE TO PROCESS YOUR REQUEST."
Having properly complied with state garnishment law every step of the way, and now armed with a judgment against the SSA, Lang initiated post-judgment efforts to recoup her child support arrearages. On July 15, 2008, the state court issued a Writ of Execution directed to the Ramsey County (MN) Sheriff. On August 12, 2008, the Ramsey County Sheriff served a written demand on the SSA at its field office in St. Paul, Minnesota. On August 18, 2008, Lang served a notice of motion on the SSA indicating she was seeking an order authorizing the Ramsey County Sheriff to execute the writ of execution and to seize sufficient personal property at the SSA's field office to satisfy the judgment.
On August 26, 2008now 241 days after service of the initial garnishment summons; 140 days after the service of the supplemental complaint; and 84 days after judgment had been entered against the SSAthe government filed a notice of removal in federal district court seeking to remove Lang's garnishment action from state court to federal court. In the notice of removal, the government claimed § 1446(b)'s[4] thirty-day "period for removal has not expired" on the grounds the supplemental complaint "was commenced with insufficient service of process" because it did not comply with Rule 4 of the Federal Rules of Civil Procedure.
Lang timely moved the district court to remand the garnishment action to state court. Lang argued the garnishment summons should be considered the "initial pleading" for purposes of starting § 1446(b)'s thirty-day time limit, rendering the removal untimely. Alternatively, Lang argued even if the supplemental complaint was the "initial pleading" for purposes of § 1446(b)'s thirty-day period, the removal was still untimely because the supplemental complaint had been served 140 days before the government removed the case to federal court.
*964 In response, the government argued the supplemental complaint was the "initial pleading." The government further argued the notice of removal was timely because the supplemental complaint had not been properly served. See Murphy Bros. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) (indicating formal service is required for § 1446(b)'s thirty-day period to begin to run). The government's argument was based on its claim that service of the supplemental complaint was insufficient because it did not comply with Rule 4 of the Federal Rules of Civil Procedure. More specifically, the government argued Lang was required to, and did not "deliver a copy of the summons and the complaint to the United States attorney for the district where the action is brought." Fed.R.Civ.P. 4(i)(1)(A)(i).[5]
The district court agreed with the government that the supplemental complaint, rather than the initial garnishment summons, was the "initial pleading" for purposes of § 1446(b)'s thirty-day period for removing an action. The district court further agreed with the government's contention that the thirty-day period had not yet run because service of Lang's supplemental complaint did not comply with Rule 4 of the Federal Rules of Civil Procedure. The district court then denied Lang's motion to remand the case to state court. In addition, for reasons we need not discuss for purposes of resolving the timeliness issue, the district court thereafter exercised jurisdiction over the action and granted the government's motion to dismiss. Lang filed a timely appeal contending, inter alia, the district court erred when it concluded the government's removal was timely.
II
We review de novo a district court's denial of a motion to remand a case to state court. Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1004 (8th Cir. 2006).
On appeal, Lang contends the district court erred when it determined the supplemental complaint (served 140 days prior to the government's notice of removal) was the initial pleading for purposes of § 1446(b), rather than the garnishment summons (served 241 days prior to removal). We have not previously decided whether, for purposes of a Minnesota state garnishment action, the garnishment summons or the supplemental complaint triggers § 1446(b)'s thirty-day time period for removal. The same question was raised in Koehnen v. Herald Fire Insurance Co., 89 F.3d 525 (8th Cir.1996), but the manner in which Koehnen was resolved made it unnecessary to decide the question. See id. at 529 n. 5.[6]
It is again unnecessary for us to decide which event triggers the thirty-day period, because the government's removal was untimely whether the clock started to run when the initial garnishment summons was served or when the supplemental complaint was served. The government's argument turns entirely on the premise that *965 service of the supplemental complaint was insufficient to start the thirty-day time period because Lang did not comply with Rule 4 of the Federal Rules of Civil Procedure.
There is no support for the remarkable and unprecedented claim that service of certain selective filings in a state court garnishment action must comport with the Federal Rules of Civil Procedure. State rules of procedure clearly governed Lang's state court garnishment action, including the service of the supplemental complaint, a part of the state garnishment process. See, e.g., Winkels v. George A. Hormel & Co., 874 F.2d 567, 568 (8th Cir.1989) ("[S]tate procedural rules govern cases originating in state court until removed to federal court."); see also Minn.Stat. § 571.82, subd. 4 ("The supplemental complaint shall be served upon the garnishee and the debtor and any other parties. The parties served shall answer or respond pursuant to the Minnesota Rules of Civil Procedure for the District Courts, and if they fail to do so, judgment by default may be rendered against them pursuant to section 571.82.").
The district court interpreted 42 U.S.C. § 659(a) in such a way as to conclude the filing of the supplemental complaint changed the "nature" of the state court garnishment action into something other than a state court garnishment action, giving "rise to a new, direct claim against the SSA." Even assuming that is true, it does not follow that the supplemental complaint triggered application of the Federal Rules of Civil Procedure. A supplemental complaint is an integral part of Minnesota's garnishment process, which a creditor may resort to whenever a garnishee fails to provide a written disclosure in response to the garnishment summons (as was the case here) or where the garnishee denies it owes money to the debtor. Service of filings in a state court garnishment are subject to state procedural rules before a creditor serves a supplemental complaint, remain subject to state procedural rules when a creditor serves a supplemental complaint, and remain subject to state procedural rules after a creditor serves a supplemental complaint (unless and until the action is removed to federal court). More to the point, to whatever extent the supplemental complaint may have changed the government's status in the state court garnishment action, the supplemental complaint did not, and could not, convert the state court proceeding itself into a federal court proceeding which would trigger application of the Federal Rules of Civil Procedure.
In addition to advocating an unprecedented application of the Federal Rules of Civil Procedure to state court proceedings, the government's argument runs directly contrary to the very purpose of § 659, which is to have the government treated the same way a private person would be treated with respect to legal process served in a state court garnishment action brought to satisfy a child support obligation. Section 659 is "designed to facilitate garnishment of federal funds where the intended recipient has failed to satisfy a legal obligation of child support." Rose v. Rose, 481 U.S. 619, 634, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987). "The provision was intended to create a limited waiver of sovereign immunity so that state courts could issue valid orders directed against agencies of the United States Government attaching funds in the possession of those agencies." Id. at 635, 107 S.Ct. 2029.
In order to facilitate the goal of the statute, the United States is treated the same as a private person would be treated for purposes of "legal process brought . . . by an individual obligee, to enforce the legal obligation of the individual *966 [i.e., a person entitled to moneys due from or payable by the United States] to provide child support or alimony." 42 U.S.C. § 659(a). In other words, whether government money due or payable to someone who owes child support will be subject to legal process must be "determined in accordance with State law in like manner as if the United States were a private person." United States v. Morton, 467 U.S. 822, 831 n. 13, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984) (citations omitted). "Congress intended the Government to receive the same treatment as a private employer with respect to garnishment orders." Id. at 831, 104 S.Ct. 2769.
It is axiomatic that state rules of civil procedure apply to state court actions, and the federal rules of civil procedure do not. For that reason alone, Lang did not have to comply with Rule 4 of the Federal Rules of Civil Procedure when serving the SSA with a copy of a supplemental complaint in a state court garnishment action. The provisions of § 659, however, make it even clearer that Lang did not have to comply with the Federal Rules of Civil Procedure when serving her supplemental complaint on the SSA. The position advanced by the government thwarts the very purpose of § 659 by applying different and more stringent rules to the legal process involved in a state court garnishment action brought against the United States. Minnesota practitioners are not required to comply with both state and federal rules of procedure when pursuing a child support garnishment action against the United States in Minnesota state courts.
The government urges us to leave the district court's decision intact, claiming this appeal has been mooted by a subsequent order issued in state court authorizing the SSA to garnish 10% of Swanson's monthly disability benefits to satisfy Lang's child support arrearages.[7] We disagree. The "test for mootness . . . is whether the relief sought would, if granted, make a difference to the legal interests of the parties[.]" Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.1990) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). The relief Lang seeks is to have the untimely removed action remanded to state court. She also seeks reversal of the district court's dismissal of her action, which eviscerated the $9,456.88 judgment she obtained in state court. The relief sought here is different than the relief Lang obtained in state court and, if granted, would make a difference to her legal interests. The relief sought herea remand to state court and a reinstatement of a state court judgment for a lump sumdoes not match the relief obtained in state court, which is an order merely authorizing garnishment of 10% of Swanson's monthly disability benefits. The government has not presented any evidence that Lang's child support arrearages have now been fully paid, or even whether garnishment is now taking place. "Relief granted in another tribunal can moot a claim, but only where the relief granted is complete." Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 746 (8th Cir.2004).
In arguing this appeal is moot, the government contends Lang is not entitled to the $9,456.88 judgment she obtained in state court on the grounds 42 U.S.C. § 659 does not waive sovereign immunity for state court garnishment actions to the *967 point that a judgment can be entered directly against the United States. That is an interesting issue, but one on which we express no opinion at this time. The government's argument goes to the merits of the case. Our mootness inquiry focuses on whether the relief Lang seeks here is different than the relief she obtained under the subsequent state court order, not which party may ultimately be correct about the propriety of the relief sought. The government did not provide the district court, or us, with any sound basis for reaching the merits. Whatever challenges the government may have to the validity of the judgment, this untimely removed action is clearly not the appropriate forum for addressing them. The only reason the government has given us for exercising jurisdiction is the unsupportable claim that the Federal Rules of Civil Procedure govern the service of filings in a state court garnishment action. Having been presented with no sound reason for exercising jurisdiction, we must remand this matter to state court without reaching the merits.
III
We vacate the district court's order and judgment of dismissal, and remand this untimely-removed action to the district court with directions to remand the case to state court.
NOTES
[1] The garnishment summons listed the amount due and owing as $9,456.88. The parties do not explain the discrepancy between the state court judgment and the amount sought to be garnished. We presume the slight increase is due to accrued interest. See Minn.Stat. § 548.091, subd. 1a (providing for accrued interest on child support judgments).
[2] Minn.Stat. § 571.82, subd. 1 provides that "[i]f a garnishee fails to serve a disclosure as required . . . the court may render judgment against the garnishee . . . for an amount not exceeding 110 percent of the amount claimed in the garnishment summons." In this case, the amount claimed in the garnishment summons was $9,456.88.
[3] Minn.Stat. § 571.75, subd. 4 provides in relevant part as follows:
[W]here the garnishee denies liability, the creditor may move the court . . . for an order making the garnishee a party to the civil action and granting the creditor leave to file a supplemental complaint against the garnishee and the debtor. The supplemental complaint shall set forth the facts upon which the creditor claims to charge the garnishee. . . . The supplemental complaint shall be served upon the garnishee and the debtor and any other parties. The parties served shall answer or respond pursuant to the Minnesota Rules of Civil Procedure for the District Courts, and if they fail to do so, judgment by default may be rendered against them pursuant to section 571.82.
[4] Section 1446(b) provides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable[.]
28 U.S.C. § 1446(b).
[5] The "districts" referred to in Rule 4(i)(1)(A)(i) of the Federal Rules of Civil Procedure are the ninety-four districts in the federal court system. The garnishment action was not brought in one of the district courts within the federal court system. The state court garnishment action was brought in the First Judicial District for the state of Minnesota, comprised of seven Minnesota counties (Carver, Dakota, Goodhue, LeSueur, McLeod, Scott, and Sibley).
[6] In Reko v. Creative Promotions, Inc., 70 F.Supp.2d 998 (D.Minn. 1999), a district court concluded the trigger for the thirty-day removal period was the date the garnishment creditor served the motion for leave to file a supplemental complaint. Id. at 1001.
[7] The state court order was entered only after, and as a consequence of, the district court's erroneous decision to exercise jurisdiction over this matter and dismiss Lang's action. The state court noted the district court "held the garnishment invalid" in granting the SSA's motion to intervene in the state court action. See Appellee's Addendum at A-13.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1470V
(not to be published)
REBECCA EUGLEY,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 6, 2017, Rebecca Eugley filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 22, 2016. (Petition at 1, 4-5). On November 6, 2019, a decision was issued
awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 64).
Petitioner has now filed a motion for attorney’s fees and costs, dated January 14,
2020 (ECF No. 70), requesting a total award of $62,585.07 (representing $60,599.10 in
fees and $1,985.97 in costs). In accordance with General Order #9 Petitioner filed a
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
signed statement indicating that he incurred no out-of-pocket expenses. (ECF No. 70-3).
Respondent reacted to the motion the same day indicating that he is satisfied that the
statutory requirements for an award of attorney’s fees and costs are met in this case and
defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 71).
Petitioner then filed his reply requesting the entry of a decision awarding the requested
amount in full. (ECF No. 72).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health &
Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
2
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of her
attorneys: for Mr. Altom Maglio, $362.00 per hour for work performed in 2017; and for Mr.
Isaiah Kalinowski, $358 for work performed in 2017, $368 for work billed in 2018, and
$383 for work billed in 2019. (ECF No. 70-1 at 35). Petitioner also requests rates ranging
from $105.00 per hour to $154.00 per hour for paralegal work, depending on the individual
paralegal and the year of the work. (Id). The rates requested are consistent with what
Maglio Christopher and Toale, PA attorneys and paralegals have been awarded for their
work in the Vaccine Program. Accordingly, no adjustment to the requested rates is
necessary.
For time billed in 2020, Mr. Kalinowski is requesting the increased rate of $405.00
per hour for his time billed and the rate of $160 for time billed by his paralegals. Based
on my experience I find the requested increase for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $1,985.97 in overall costs. (ECF No. 70-2 at 1). This amount
is comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $62,585.07 (representing $60,599.10 in fees and $1,985.97 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1611V
(not to be published)
SHEREE GARRETT,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 26, 2017, Sheree Garrett filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”), which she contends meets the Table definition of SIRVA, after
receiving the influenza vaccination on October 28, 2014. (Petition at 1, ¶¶ 1, 8). On
February 14, 2020, a decision was issued awarding compensation to Petitioner based
on the parties’ stipulation. (ECF No. 56).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 24,
2020 (ECF No. 60), requesting a total award of $37,733.29 (representing $36,956.40 in
fees and $776.89 in costs). In accordance with General Order #9 Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 60-4).
Respondent reacted to the motion on February 24, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
61). That same day, Petitioner filed a reply indicating Petitioner did not intend to file a
substantive reply. (ECF No. 62).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $37,733.29 (representing $36,956.40 in fees and $776.89 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In
the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0489V
(not to be published)
AMY GARZA,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 3, 2018, Amy Garza filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of her influenza (“flu”) vaccination on December 22,
2016. (Petition at 1-5). On February 14, 2020, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 42).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 19,
2020 (ECF No. 46), requesting a total award of $37,717.55 (representing $36,126.60 in
fees and $1,590.95 in costs). In accordance with General Order #9 Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 46-
3). Respondent reacted to the motion on February 28, 2020 indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case and defers to the Court’s discretion to determine the amount to be awarded. (ECF
No. 48). On March 4, 2020 Petitioner filed a reply requesting the entry of a decision
awarding the requested amount in full. (ECF No. 49).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health &
Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
2
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of her
attorneys: for Altom Maglio, $362.00 per hour for work performed in 2017 and for Mr.
Isaiah Kalinowski, $358 for work billed in 2017, $368 for work billed in 2018, and $383 for
work billed in 2019. (ECF No. 46-1 at 25). Petitioner also requests rates ranging from
$145.00 per hour to $154.00 per hour for paralegal work, depending on the individual
paralegal and the year of the work. (Id). The rates requested are consistent with what
Maglio Christopher and Toale, PA attorneys and paralegals have been awarded for their
work in the Vaccine Program. Accordingly, no adjustment to the requested rates is
necessary.
For time billed in 2020, Mr. Kalinowski is requesting the increased rate of $405.00
per hour for his time billed and the rate of $160 for time billed by his paralegals. Based
on my experience I find the requested increase for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $1,590.95 in overall costs. (ECF No. 46-2 at 1). This amount
is comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $37,717.55 (representing $36,126.60 in fees and $1,590.95 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 3
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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This is suit seeking to restrain the building or maintaining of an apartment house on certain lots in Goldsmith's addition to Portland.
On October 28, 1910, the Giles Investment Company, a corporation, conveyed Lots 16 and 17 of Block 11, Goldsmith's Addition to Portland, to R.W. Schmeer, trustee. The consideration contributed by the trustee and seven others, of which plaintiff was one and who contributed one-ninth thereof, for the conveyance, was $12,000 — $4,500 in cash and the balance secured by a mortgage. On the same date, defendant, R.W. Schmeer, executed a declaration of trust in writing showing that he held the legal title for the use and benefit of himself and the seven others and further declared that:
"* * * and I do, for myself, my heirs, executors and administrators, covenant and agree to and with said parties and each of them, and with their and each *Page 319
of their executors, administrators, and assigns, that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the purchaser of said property when the same is sold and after deducting any and all sums paid for assessments, taxes, and charges of every kind that may have been paid or advanced by me for the benefit of said property and the payment of said mortgage and interest, that the balance remaining shall be paid to the several parties in interest in proportion to their payments on account of the said purchase price, assessments, taxes, costs, mortgage and interest."
This declaration of trust was accepted by his trustors by the following writing:
"The undersigned, property owners and residents in the vicinity of the hereinbefore described real property, for the purpose of preventing the purchase of said real estate by a stranger and the possible erection thereon of an apartment house or flats, which we consider will be detrimental to the appearance and value of our several residences and lots, have appointed R.W. Schmeer our Trustee to purchase and hold the title of said real estate, and we have contributed to the said purchase price the several amounts as hereinbefore stated, and we hereby further agree to reimburse our said Trustee on demand for any and all sums paid for assessments, taxes and charges of every kind that he may pay on account of said property and said mortgage and interest.
"We hereby agree to the terms and conditions of the Declaration of Trust signed by R.W. Schmeer."
This acceptance was signed by M.G. Thorsen, Mrs. R. Becker, J.R. Krausse, Frank A. Heitkemper, A.L. Levy, C.J. Cook and William Gadsby, the trustors, who with the trustee, Schmeer, had contributed to the purchase price.
In 1914, the majority of the trustors requested the trustee to dispose of the property without restrictions *Page 320
as to apartment houses and flats. The plaintiff was apprised of the desire on the part of the majority and wrote the trustee that while he would very much regret to see an apartment house erected on these lots, closed his letter by saying:
"However, I would not like to be the only one to stand out and if the others concerned would prefer to sell, I would not feel like making any objections provided we could sell for a price which would not mean a loss."
On March 23, 1922, the trustee wrote the plaintiff informing him that at a meeting of the owners the trustee was instructed to sell without restriction as to apartment house and unless objection was made within five days the trustee would offer the property for sale on said terms. Plaintiff made no reply.
The trustee made no sale of the lots and the matter drifted along until about September 1, 1925, when the beneficiaries executed an option to R.W. Schmeer to the lots in question, permitting him to buy said lots without restriction as to their use. The interest of some of the beneficiaries became involved and it required some time to adjust the transfer so as to enable the trustee to convey good title. By its terms, the option would expire on November 1, 1925. However, all the other beneficiaries except plaintiff completed the contract of sale to defendant Schmeer after the expiration of the option. Plaintiff was aware of these transactions. He however refused to complete the contract of sale to Schmeer because the option to purchase had not been exercised within the time therein limited. Notwithstanding that plaintiff knew of the action of defendant Schmeer in buying the interest of *Page 321
the other beneficiaries after the expiration of the option, he gave no notice of his intention to rely upon the terms of the option or to cancel the same, until January, 1926. Thereafter and on November 29, 1926, defendant Schmeer, as trustee and as an individual, conveyed, without restrictions as to apartments or flats, the north one-half of these lots to defendant Larrowe. The trustee thereupon notified plaintiff of the sale and the amount of the purchase price and on December 18, 1926, sent him a check for his proportionate share. This check plaintiff retained in his possession until January 8, 1927, when he returned it to the trustee with the advice that he refused to accept it or sanction the sale.
Defendant Larrowe began the construction of an apartment house upon these lots within a few days after his purchase and completed the excavation for the basement during the month of December, 1927. This construction work was within eighty feet of plaintiff's residence and must have been known to him during its progress. He was informed, as early as January 1, 1927, by the contractor on the job, that defendant Larrowe was constructing an apartment house, but made no move in the matter until January 12, 1927, when he notified Larrowe not to proceed further in the construction.
On March 9, 1927, when the building was about one-half completed, the complaint in this suit was filed, alleging in effect the above facts and further alleging that the trustee, the plaintiff and the other trustors entered into an agreement whereby the trustors and the trustee purchased the lots and,
"* * * when so purchased should never be sold to a stranger for the purpose of building or using on either or both of said lots, or with authority to any *Page 322
purchaser to build or use thereon, an apartment house or flats; but it was agreed that the property should be sold thereafter with a restriction against the erection thereon of an apartment house or flats.
"In order to effect the purpose of said joint undertaking, as aforesaid, and for no other purpose, it was mutually agreed between the contributors to appoint the defendant, R.W. Schmeer, one of the contributors, as the agent of the contributors to effect the purchase of the said property for the benefit of all the members of said joint enterprise, and it was agreed that the legal title of the said property should be taken in the name of the said R.W. Schmeer, to be held by him as trustee for the benefit of and to effect the purpose of the contributors, as aforesaid, and for no other purpose, and the said defendant, R.W. Schmeer, as one of the parties to said joint agreement, agreed with the others to accept said agency and said trusteeship according to the terms of said appointment, and not otherwise."
Plaintiff had contributed one-ninth of the purchase price and was therefore the equitable owner of an undivided one-ninth interest in said property.
Plaintiff attached a copy of the declaration of trust made by defendant Schmeer, the salient parts of which have been heretofore quoted, and made the same a part of his complaint. He further alleged:
"That in and by the said declaration, the said R.W. Schmeer, intended to declare the terms of his trusteeship and his powers and duties thereunder in accordance with the terms of the agreement hereinbefore set out, and to declare that he held said property for the purpose of preventing a stranger from buying said property and building thereon an apartment house or flats, and particularly intended to mean by the following words in the said declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the *Page 323
purchaser of said property,' that he was to dispose of the said real property to effectuate the purpose of the said trust as hereinbefore recited, and not otherwise, and to sell the same subject to the restriction against apartment houses or flats, and not otherwise, and that the good and sufficient deed in the declaration was to be a good and sufficient deed, subject to the said restriction, and not otherwise, and before and at the time of accepting said trusteeship agreed orally to the same effect with plaintiff and the other contributors."
He then alleged, in substance, the sale by Schmeer to Larrowe without restrictions as to apartment houses or flats, and the construction of the apartment house by Larrowe, and that he was damaged thereby and asked for a decree and judgment that the apartment house be abated and removed and the lots restored to their original condition.
To this complaint, defendant filed a demurrer which was sustained by the circuit court. Plaintiff refusing to further plead, the suit was dismissed and the cause appealed to this court.
On that state of the pleadings, this court reversed the decree and judgment and remanded the cause with permission to plaintiff to amend his complaint and ask for an alternative decree for damages in the event the trial court should find that the removal of the apartment house could not be effected except at great loss to defendant Larrowe: Heitkemper v. Schmeer, 130 Or. 644
(275 P. 55, 281 P. 169).
Thereafter, plaintiff amended his complaint so as to conform to the suggestion of this court, said amendments not being material to the issues herein presented and said amended complaint being in effect as hereintofore set out, except that plaintiff alleged damages *Page 324
in the sum of $8,776.23 and changed the prayer to the alternative.
To the amended complaint, defendant Schmeer filed an answer in substance admitting the purchase of the lots by him as trustee, the execution of his declaration of trust, the execution of the writing made by the other beneficiaries in acceptance of his declaration of trust, but denied that there was any other agreement or understanding on his part or to his knowledge except as stated in said declaration and denying generally that plaintiff suffered any damages by reason of the sale of the property without restrictions as to apartment houses or flats. He alleged that in 1914 the plaintiff had waived any right to have the property sold with such restrictions and therefore should be estopped from now claiming the same, and further alleged that in 1922 plaintiff consented to a sale of the lots without such restriction; that in 1925 the plaintiff again waived the right to have such restrictions inserted in any conveyance executed by the trustee, by giving defendant Schmeer an option to purchase said property without such restrictions with the knowledge and information that Schmeer would not purchase the interest of any of the trustors unless he could get the interest of all the trustors and without restrictions as to apartment houses and flats and that plaintiff knew that Schmeer was completing the purchase from the other trustors after the option had expired but that plaintiff gave no notice until January, 1926, of his refusal to go through with the deal, therefore plaintiff should be estopped from now asserting any rights under such restrictions. He further alleged laches on the part of plaintiff in that he was aware on January 1, 1927, that defendant Larrowe was constructing an *Page 325
apartment house on those lots and made no objection until January 12, 1927, and that, notwithstanding defendant Larrowe continued the construction of the apartment house, this suit was not filed until March 9, 1927, at which time the building was 50 per cent completed; the building was to cost $65,000.
The defendant Larrowe filed an answer to the same tenor and effect as that of the defendant Schmeer and further alleged that he had no knowledge or information of any restriction being against said lots until after he made the purchase and expended large sums of money on the property.
The plaintiff, in his reply, denied all the new matter set up in the answer of either defendant and asserted that this court, on the former appeal, placed a construction upon the declaration of trust and the acceptance of said declaration and that the parties should be bound by that decision.
The cause came on for trial and, upon hearing the testimony and argument of counsel, the court made findings in favor of plaintiff and entered an alternative decree and judgment, decreeing that the maintenance of the apartment house constructed on said lots should be abated and the lots restored to their original condition within ninety days or, in default thereof, the plaintiff recover of and from defendant and each of them the sum of $3,000 in full for all damages occasioned by the building of said apartment house. Defendants appeal.
Appellants contend that the circuit court erred in holding that the declaration of trust, signed by defendant Schmeer, and the writing, signed by the beneficiaries, should be construed as one instrument. *Page 326
"No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law." Oregon Code 1930, § 9-905.
The evidence is not clear whether the two papers, the declaration of trust and the acceptance, were attached together at the time of their execution. The complaint would rather intimate they were not. Paragraph XI of the complaint in support of the declaration of trust alleges:
"That when copies of the declaration so made as aforesaid by the said R.W. Schmeer, were delivered to plaintiff and the other contributors, they, in order to make more clear and certain the meaning of said declaration of trust, signed and executed and delivered to the said R.W. Schmeer, the following writings:"
Then follows a copy of the acceptance of the declaration of trust hereinbefore quoted. We do not attach any particular importance in the instant case as to whether these papers were or were not physically attached at the time of their execution. In any event, each writing was practically contemporaneous and it appears that there has never been any question but that the trustee and each of the beneficiaries knew all about both writings all the time. Each writing clearly refers to the same transaction. One writing having been executed by the party "creating the trust" and the other by the party "declaring the trust", they should be read together. *Page 327
This assignment of error is predicated on the circuit court holding that the declaration of trust and the written acceptance thereof, when read as one instrument, prohibits the trustee from ever conveying the property held in trust without restrictions as to apartment houses or flats.
The law favors the greatest latitude of individual freedom of contract but does not look with favor upon limitations upon the use of real property. Any restrictions on the use of such property, must clearly appear in the instrument creating such restrictions, all doubts being resolved in the favor of the untramelled use: Gerling v. Lain, 269 Ill. 337 (109 N.E. 972);Van Duyne v. Chase, 149 Iowa 222 (128 N.W. 300); Casterton v.Plotkin, 188 Mich. 333 (154 N.W. 151); Fortesque v. Carrol,76 N.J. Eq. 583 (75 A. 923, Ann. Cas. 1912A, 79); Hunt v. Held,90 Ohio 280 (107 N.E. 765); Crawford v. Senosky, 128 Or. 232
(274 P. 306). With this view of the law in mind, we proceed to analyze the declaration of trust.
Here were eight people owning, and all but one occupying as a residence, what they considered, at that time, residential property scattered over five blocks in what was Goldsmith's addition to the city of Portland. They jointly purchased the two lots in Block 11, in 1910. Their purpose in purchasing was to prevent the sale to a stranger and the possible erection of an apartment house or flats thereon at that time. There were no building restrictions on any of the other lots in any of the blocks in which either of these persons owned or occupied his residence. In making the purchase, they made use of an agent or trustee to hold the legal title. The conveyance named the grantee therein, defendant R.W. Schmeer, as trustee without *Page 328
disclosing either the terms of the trust, or the beneficiaries. After the passage of the law in 1919 (Oregon Code 1930, § 63-110) the parties knew that anyone buying the property from the trustee might be an innocent purchaser; that a deed from the trustee as grantor would be prima facie evidence of title in the grantee.
In 1910, there were many vacant lots without restrictions as to their use, over which the trustors had no control, in the five blocks in which the trustors' individual residences were located. They must have anticipated the change that has actually occurred in the locality from a strictly residential district to one where apartments, flats, etc., have been built. Almost one-half of the block on which the home of Mr. Levy, one of the trustors, is located, and immediately south of Block 11, is occupied with apartments or flats. It would be very natural for the trustors, knowing the difficulty in getting eight men to agree as to the proper time to make a sale of said property and under what conditions the sale should be made, to place entirely in the hands of the trustee the power to determine when to make the sale and the conditions and the restrictions to be placed against said property.
The trustee did,
"Covenant and agree * * * that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of said property, when the same is sold."
Plaintiff now contends that, by the above declaration, R.W. Schmeer intended to, *Page 329
"* * * declare that he held said property for the purpose of preventing a stranger from buying the said property and building thereon an apartment house or flats and particularly intended to mean in the following words in the declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of the said property'; that he was to dispose of said property to effectuate the purpose of said trust * * * to sell the same subject to the restriction against apartment houses or flats and before and at the time of accepting the trusteeship, agreed orally to the same effect with the plaintiff and other contributors."
There is no evidence of such oral agreement. It is remarkable that if the understanding of said declaration, at the time it was made, was as now claimed by plaintiff, that nothing was mentioned of any restriction to be inserted in the conveyance which the trustee covenanted to make to the purchaser. The disposal of the property was to be left to the trustee's best judgment.
It appears that the man who made the sale to the beneficiaries represented that he had a prospective buyer who desired to and in a short time would buy this property from the trustee and erect thereon a residence. There appears to have been no doubt in the minds of the beneficiaries but that a sale would be made to said prospective buyer and that it would not be necessary to place restrictions in the deed. All the contributors who testified agree that the understanding was that it would be necessary to hold the property but for a very short time. The beneficiaries were all experienced business men of Portland, so that the evidence that a sale would be consummated shortly *Page 330
must have been very convincing. There is no evidence of an intention to hold the property for a considerable length of time, or that it was never to be sold without restrictions against apartment houses and flats. Needless to say, the prospective purchaser failed to materialize. In the meantime the property kept decreasing in value until at the time of the sale by the trustee it would bring about only one-half of what the trustee paid for it.
Plaintiff contends that what is meant by the statement in the declaration of trust, in which defendant Schmeer covenanted to convey the said real property by a "good and sufficient deed", is that the deed that the trustee should make in case of sale would be a "good and sufficient deed" to protect the restrictions. The words "good and sufficient deed" are words of well-known and generally accepted import. They are in common usage in contracts for the sale of land.
"If it had been the intention of the defendant to covenant to execute and deliver a deed without warranty, he should not have used the words `good and sufficient'." Seaboard Air Line Ry. Co. v. Jones, 120 S.C. 354 (113 S.E. 142).
In a specially concurring opinion in the above case, Cothran, J., said, "I concur upon the ground that a covenant to convey by a `good and sufficient deed' means by general warranty." (Citing many cases.)
"It is a general rule that `an agreement to sell land, and to give a good and sufficient deed of it, means a deed that will convey a good title to the land'. Linton v. Allen, 147 Mass. 231,17 N.E. 523." New York N.H. H.R. Co. v. Butter, 276 Mass. 236
(176 N.E. 797).
"The accepted rule is that upon agreement for the sale of land the vendor must be considered as contracting *Page 331
for a general warranty deed unless the contrary is clearly shown. In this case, the contract requires the vendor to execute and deliver a good and sufficient deed of conveyance, and the trial court did not err in construing this to require the vendor to convey by deed with general warranty." Ford v. Street, 129 Va. 437
(106 S.E. 379).
"A good and sufficient deed is a marketable deed — one that will pass a good title to the land it purports to convey. We do not agree with counsel that a stipulation in a contract providing that the grantor shall convey `a good and sufficient deed', is satisfied by a conveyance of any title he may have, whether it be good or bad." Hall v. McKee, 147 Ky. 841 (145 S.W. 1149).
To adopt the meaning of those words now claimed by plaintiff would be giving words of ordinary use and acceptation a strained and unusual construction: Oregon Code 1930, § 9-217. There are no facts or circumstances in the instant case that would justify the court in so construing them.
There is no allegation in the complaint, nor is there any evidence, that the trustee did not use his best judgment in making the sale.
To adopt the construction claimed by plaintiff, would be adding to the trust agreement covenants which neither the trustors nor the trustee made, to say nothing of the statute which provides that when the terms of an agreement have been reduced to writing it is to be construed as containing all those terms and excludes all other evidence of its terms except the writing, with exceptions not material to this case: Oregon Code 1930, § 9-212. We would also have to ignore the provision of the Code defining the office of the judge in the construction of an instrument, "not to insert what has been omitted": Oregon Code 1930, § 9-214. *Page 332
It is undisputed and the fact is that the locality which the trustors wished to protect had been invaded by the erection of many commercial buildings, such as the zoning ordinance permits, some considerable time before the sale by the trustee to defendant Larrowe. In 1924, when the city adopted the zoning ordinance, the property of the trustors, including that of plaintiff was designated as Zone 2, territory in which apartment houses, flats, etc., might be built. But it is claimed by the respondent that this court passed upon the meaning of the declaration of trust and its acceptance thereof when this case was before the court on demurrer: Heitkemper v. Schmeer, supra. What this court passed upon at that time was whether or not the complaint stated a cause of suit. This court did not say that the two papers referred to as the declaration of trust and the acceptance thereof, when read as one, of itself showed a state of facts upon which plaintiff might recover or that a mere inspection of the deed which the trustee held was sufficient to put a purchaser on notice of the trustor's interest therein. The plaintiff, in his complaint, did not rely upon the written declaration of trust but alleged a further agreement made at the time the property was bought by the trustee, portions of said complaint referring to said agreement being above quoted. The complaint with such allegations was sufficient. But, when issue was joined and the agreement denied, it was incumbent upon the plaintiff to prove the allegation relating to such agreement. The plaintiff must have thought that the agreement, alleged in addition to the declaration and acceptance, was necessary to his cause or he would not have so pleaded.
It will be observed that this suit, as originally begun, was to prevent the building of an apartment *Page 333
house or flats on these two lots, alleging that such a building would greatly diminish the value of plaintiff's property.
The plaintiff having alleged that he was damaged by reason of the construction of an apartment house, it was incumbent upon him to establish his allegation by a preponderance of the evidence. It would seem that the preponderance of evidence was entirely against this allegation. Apart from plaintiff's own testimony and that of his wife, the only other witness who testified that the plaintiff's property was damaged was Mr. Dean. He testified that the property was damaged to the extent of $6,000. In stating how he arrived at that conclusion, he says, in effect, that notwithstanding that the property is located in an unrestricted district, as to apartment houses, and that many such buildings have already been erected therein, not until some one actually began the construction of such a building in the immediate vicinity of plaintiff's residence did the lack of restrictions affect its value. His testimony is not borne out by the general experience of property owners under the zoning ordinance of Portland.
On the other hand, Mr. A.H. Hickman, with an experience of twenty-three years in the realty business in Portland, Mr. A.R. Ritter, with twenty-one years of experience in the same business in Portland, Mr. A.C. Callan, a resident of Portland since 1889 and in the real estate business since 1911, and Mr. Henry E. Reed, who has lived in Portland for sixty years and has been in the real estate business continuously for the past seven years, specializing in appraisals, and who had been in the real estate business formerly as early as 1896 and who served for many years as *Page 334
assessor of Multnomah county and is generally recognized as an authority on real estate values in Portland, all testified, in effect, that it is the restriction to residence property in a whole district or zone that gives the property in such districts value as residential property. The fact that property is located in a district without such restrictions, and has already been invaded by commercial buildings, is what decreases its value as residential property rather than the actual construction of one more commercial building. They further testified that the building of the apartment house in suit did not damage or lessen the value of plaintiff's residential property.
The reason given by the beneficiaries for their purchase of the property was because they believed that the erection thereon of apartment houses or flats "will be detrimental to the appearance and value of our several residences and lots". The value they had in mind must have been its commercial value. There is no evidence that the building in question had detracted from the appearance of plaintiff's residence and the preponderance of the testimony is that it has not diminished its value.
The evidence shows that such restrictions of the use of property tend to diminish its value unless it is situate in a restricted residential district. Placing restrictions as to apartments or flats on only two lots in a district where apartment houses and flats already exist and all other lots are unrestricted would greatly diminish the value of the lots so burdened. This is abundantly established by the history of the lots under consideration. The lots in suit have no peculiar residential value over and above that of the other lots in the vicinity. It is not likely that any one desiring to *Page 335
buy strictly residential property would purchase property with such restrictions when there were so many lots without restrictions and without buildings in the vicinity. The purpose for which the lots were acquired has ceased to exist. Restrictions on this tract are no longer of value to plaintiff. The trustee has held the property for more than a reasonable length of time.
We must remember that this is not a suit to abate a nuisance, but to enforce the terms of a trust regarding certain restrictions. The character of the territory sought to be protected having so changed, the purposes of the trust have been defeated by causes outside the trust agreement. The purpose was to protect a district, not an individual residence.
The judgment of the trial court on a question of fact is entitled to weight and consideration but a suit in equity must be tried de novo in this court and while we give the lower court's opinion on questions of fact consideration, this court is by no means bound by the trial court's conclusions. It is argued that the trial court having viewed the premises he is in a much better position to estimate the value of the evidence, than this court. If this were a suit to abate a nuisance, that argument would be entitled to great weight, but the object of the suit is not to determine what damage may have been occasioned by the construction of this particular apartment house, by the manner of its construction and the way in which it is conducted, but as to what damage would be occasioned by the construction of an apartment house when conducted according to law and the ordinances of the city of Portland, and so as not to create a nuisance. Under those circumstances, the view of the particular building is of very *Page 336
slight value in determining the matters at issue in this cause.
In reference to how his property is damaged, plaintiff testified:
"So far as the question you asked, whether it affected the home itself to a great extent, it has destroyed it so far as pleasure and enjoyment of the home is concerned, since they put that apartment there, for several and many reasons. In the first place, it is the outlook of having a very ugly building to stare at in the face from rooms we occupy and like to look out of the window of. It has made a congested condition there; it has a transient population that comes and goes, and it is rather noisy. With that condition there, that has from three to four, sometimes as high as twelve automobiles parked along the land we own right on Pettygrove street. It has resulted several times we could not get in front of our garage, they were parked in front of the garage way. It has resulted in us having to go out and pick up trash and debris in the yard thrown out windows. Children from the apartment have overrun our garden place there; you could not keep them away, and each apartment is fitted with a radio that sometimes keeps going late at night. * * * It has made the house discomfortable. That is, we have never enjoyed it so much. The home means a great deal to myself and family, we use it to enjoy the place, but that has ruined it, so far as enjoying it is concerned. The greatest trouble we have had there, the greatest discomfort, is caused by a condition of smoke. Shortly after they put up that apartment, we were discommoded a great deal by very heavy thick smoke that came roaring out of a chimney on the apartment. I could not understand the smell until I investigated and found out they were using a garbage incinerator. * * *"
He further testified in effect that the smoke was oily and left an oily deposit on his residence. It would get into the house and smoke up the curtains. Some of the smoke he attributed to a defective oil burner. *Page 337
Mrs. Heitkemper, wife of plaintiff, testified to like effect.
Many of the things of which plaintiff complains are not peculiarly or necessarily the result of the erection or maintenance of an apartment house, but of an apartment or other house improperly managed or conducted or equipped.
Nearly every element of damage, of which plaintiff and his wife complain, could easily be eliminated. The smoke nuisance, the noisome odors from the incineration of garbage, the parkings of cars in front of their driveway, they are not obliged to put up with. In no event would defendant Schmeer be liable on these elements. If he is liable at all, he is answerable for the maintaining of an apartment house when properly managed and conducted. It does not seem just or equitable that the owners of eight-ninths of the property should be obliged to forever contribute their interest therein to cater to the esthetic tastes of the owner of the other one-ninth.
Plaintiff has filed a cross-appeal claiming that he is entitled to one-ninth of the price for which the property sold. In this contention, plaintiff is correct. He had a one-ninth interest in the property and is entitled to that proportion of what it sold for.
There are some other questions presented by the record, but, taking the view that we do, they cease to be of any importance.
The decree and judgment of the lower court should be vacated and one entered dismissing the suit as against defendant Larrowe, and awarding plaintiff judgment against defendant R.W. Schmeer in the sum of $363.42.
RAND, C.J., concurs in this dissent. *Page 338
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 23, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHNNY RAY CALDWELL,
Plaintiff-Appellant, No. 05-4046
v. (D.C. No. 2:04-CV-176-DAK)
UTAH STATE PRISON, Mental (D. Utah)
Health; STATE OF UTAH; and
DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Appellant’s brief and the 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 is a pro se civil rights appeal under 42 U.S.C. § 1983. In his claim to
the district court, Mr. Caldwell asserted that his civil rights were violated by Utah
*
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.
Department of Corrections officials (Defendants). Mr. Caldwell claims
Defendants violated his constitutional rights by depriving him of adequate
medical care for his various mental disorders. Mr. Caldwell alleges Defendants’
inaction subjected him to cruel and unusual punishment under the Eighth
Amendment. Mr. Caldwell also claims Defendants violated his right to access the
courts by not providing him adequate legal materials or assistance. The district
court dismissed Mr. Caldwell’s complaint because he failed to state a claim for
relief under 42 U.S.C. § 1983 and entered judgment in Defendants’ favor on both
claims. Mr. Caldwell appeals to this court.
After a thorough review of the Appellant’s brief, the district court’s order,
and the record, and for substantially the same reasons set forth in the district
court’s well-reasoned January 27, 2005 order and judgment of dismissal, we hold
that no relief is available to Mr. Caldwell pursuant to § 1983.
The decision of the district court is AFFIRMED. Mr. Caldwell’s motion
to proceed in forma pauperis on appeal is GRANTED. We therefore remind Mr.
Caldwell that he must continue to make partial payments of his court fees and
costs previously assessed until such have been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
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474 F.3d 783
Alassane SARR, Petitioner,v.Alberto R. GONZALES, United States Attorney General, Respondent.
No. 05-9606.
United States Court of Appeals, Tenth Circuit.
January 22, 2007.
COPYRIGHT MATERIAL OMITTED Sharon A. Healey, Seattle, WA, for Petitioner.
Irene M. Solet (Michael J. Singer and Peter D. Keisler, Assistant Attorneys General, with her on the brief), Civil Division, Department of Justice, Washington, DC, for Respondent.
Before LUCERO, McCONNELL, and HOLMES, Circuit Judges.
McCONNELL, Circuit Judge.
1
Petitioner Alassane Sarr seeks review of a final order of removal issued by the Bureau of Immigration Appeals (BIA), which affirmed a determination by an Immigration Judge (IJ) denying Mr. Sarr's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We reverse the decision of the BIA and remand for further proceedings.
I. BACKGROUND
A. Mauritania
2
The Islamic Republic of Mauritania is located in northwest Africa, bordered by the Atlantic Ocean, Senegal, Mali, Algeria, and Western Sahara. Formerly a French colony, the country gained its independence in 1960, an event that triggered a large migration of native sub-Saharan peoples to the area north of the Senegal River.1 Among these peoples were the Pulaar, or Fulani, a black African nomadic group with roots in the region dating back to at least the fourteenth century.2 The country's ethnic makeup is now approximately forty percent African-Arab-Berber (often called "Black Moor"), thirty percent Arab-Berber ("White Moor"), and thirty percent Black African (mostly Wolof, Tukulor, Soninke, and Fulani).3 Over time, conflict arose between the majority Moor population, which viewed Mauritania as an Arab nation, and the black Africans, who sought a more substantial role for sub-Saharan peoples and their way of life. The conflict came to a head in 1989 when violence erupted between the groups and thousands of black Africans were forced to leave the country and had their land and property confiscated. Though the Mauritanian government denies the allegations, a human rights group maintains that "[s]ince 1989, tens of thousands of black Mauritanians have been forcibly expelled, and hundreds more have been tortured or killed .... The campaign to eliminate black culture in Mauritania, orchestrated by the white Moor rulers, reached its height in the late 1980s and early 1990s...." Human Rights Watch/Africa, Mauritania's Campaign of Terror 1 (1994), Admin. R. at 270. The State Department has also recognized the "intercommunal violence that broke out in April 1989." Mauritania Note, supra note 1.
B. Mr. Sarr's Story
3
On March 3, 2001, Mr. Sarr used a false passport to enter the United States via New York City. On January 28, 2002, he filed applications for asylum, withholding of removal, and protection under the CTA with the Immigration and Naturalization Service (INS), the functions of which are now handled by U.S. Citizenship and Immigration Services within the Department of Homeland Security. During the pendency of these applications, Mr. Sarr relocated to Colorado, and the case was transferred to that venue.
4
In his asylum application and at his immigration hearing, Mr. Sarr claimed that he was a member of the Fulani ethnic group and that he was born in Mauritania in 1976. His father owned a three-acre farm in Kaedi, Mauritania, near the Senegalese border, where Mr. Sarr resided with his family through the age of thirteen. On September 20, 1989, five soldiers (whom Mr. Sarr identified as "white") arrived at the Sarr family home and demanded proof of the family's identity from Mr. Sarr's father. He complied, whereupon the soldiers promptly destroyed the documents. Mr. Sarr also explained to the court, however, that his mother retained his birth certificate, a document he later produced at his asylum hearing as proof of his identity. After destroying the papers, the soldiers assassinated Mr. Sarr's father, beat Mr. Sarr and the other members of his family, and removed the Sarrs from their home. After a brief detention in the local police station, the family members were forced to cross the Senegal River by rowboat, where they were met by Red Cross workers and admitted to a refugee camp in Matam, Senegal. During the asylum hearing, Mr. Sarr described in detail the circumstances of this incident, including the name of the military officer who led the attack on the Sarr family, the vehicle in which the soldiers traveled, the weapons they carried, and the instruments with which they beat the surviving members of the family.
5
According to Mr. Sarr, he remained in the refugee camp until 1996, at which time he moved to the city of Dakar in the hopes of finding help for his family and a "better life." Admin. R. at 89-90. There he became a peddler of merchandise for a shop owner. Mr. Sarr testified that he sent portions of his earnings to his siblings, who remained in the Matam refugee camp. Mr. Sarr also testified that he was unable to obtain legitimate identification or open a bank account while in Dakar. In 2001, Mr. Sarr purchased a false passport and left Dakar for the United States. He testified that he feared if he returned to Mauritania, "[t]he same thing that happened to us in 1989" would happen again. Supp. Admin. R. at 1.4 He stated that he had lost touch with his siblings, who presumably are still in Senegal.
C. The Immigration Judge's Opinion
6
The evidence before the IJ consisted of Mr. Sarr's asylum application and the INS's response, Mr. Sarr's Mauritanian birth certificate, Mr. Sarr's own testimony, which was presented through an interpreter, psychiatric analyses of Mr. Sarr, several State Department Country Reports on Mauritania, and a "packet of material" submitted by Mr. Sarr regarding Mauritania and his situation there.5 Admin. R. at 53. The government performed a forensic examination of the birth certificate, which did not reveal any changes to the document. At the beginning of the hearing, counsel for the Department of Homeland Security explained that the "particular problem with this case" was that Mr. Sarr "had stated to the asylum officer that all family documents were destroyed in the attack, yet he was able to produce the birth certificate. A huge inconsistency." Id. at 77. Counsel also argued that Mr. Sarr's description of conditions in Mauritania "was inconsistent with known conditions in Mauritania" and that "repatriation has been occurring for some time." Id.
7
At the conclusion of the hearing, the IJ delivered an oral decision rejecting Mr. Sarr's petitions for asylum and related relief based upon an adverse credibility finding. The IJ found that Mr. Sarr "failed to show past persecution or a well-founded fear of persecution," and that his testimony "was not sufficiently detailed, consistent or believable to provide a plausible and coherent account of the basis for his fears." Id. at 53-54. In particular, the IJ expressed doubt that Mr. Sarr was truly from Mauritania: "The issue before the Court is whether this guy is from Mauritania or not. I have no idea and I didn't give any credibility to his testimony." Id. at 55; see also id. at 57 ("Again, what this Court has problems with is credibility. I don't know if he's from Mauritania. I don't know if what he's telling me is the truth. He has absolutely nothing to show me that would suggest that he is, in fact, from Mauritania.").
8
The IJ identified three reasons for doubting Mr. Sarr's story. First, and most importantly, the IJ doubted Mr. Sarr's account of how his birth certificate was preserved:
9
[The respondent testified that] his birth certificate that his mother had on her when she died is what he produced for this Court. The problem is when I was listening to the testimony in this particular matter he told us quite clearly that when the soldiers came to his house that, in fact, they asked his father if, in fact, they were Mauritanians or not. That his father brought out the paperwork regarding the family and that the soldiers destroyed all of the paperwork. That nothing was available. Now, all of a sudden, he comes up with a birth certificate. From where, I have no idea other [than] what he said, the mother had it on her. Well, according to what [he told] us previously, ... the father had it and handed it to the soldiers and they destroyed all of the paperwork and ... there was nothing left there.
10
Id. at 54-55. Second, the IJ noted that Mr. Sarr gave two different dates—1994 and 1991—for his mother's death. Third, the IJ questioned why Mr. Sarr did not know the address or phone number of the man for whom he had worked in Dakar, and did not attempt to contact him to obtain corroboration of his story.
11
The IJ found in favor of Mr. Sarr on the issue of past and current conditions in Mauritania. In particular, the IJ stated: "[T]here was a problem between blacks and white Moors [in Mauritania in 1989].... I agree with counsel for the respondent that I don't think things in Mauritania have changed at all." Id. at 55.
D. The BIA's Opinion
12
Mr. Sarr appealed the IJ's decision to the BIA, which affirmed in a short opinion by a single member. After noting that it had "reviewed the record of proceeding, the Immigration Judge's decision[,] ... and the respondent's contentions on appeal," the BIA "agree[d] with the Immigration Judge that [Mr. Sarr] has failed to carry his burden of proof to demonstrate his actual identity, and did not establish either past persecution or a well-founded fear of future persecution that would justify a grant of asylum" or the other requested forms of relief. Id. at 2. The BIA recognized that the IJ did not "completely describe" Mr. Sarr's testimony regarding how his mother retained the birth certificate, but found that "the record reflects that [Mr. Sarr] made contradictory statements with regard to the central issue of the alleged destruction of his family's documents and the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Id. at 2-3. Consequently, the BIA upheld the IJ's adverse credibility finding as not clearly erroneous.
13
The BIA made no finding with respect to changed conditions in Mauritania.
14
Mr. Sarr timely appealed to this Court.
II. DISCUSSION
15
A. Establishing Eligibility for Asylum or Withholding of Removal
16
A deportable alien may seek to remain in the United States by demonstrating that he qualifies for one or more of three statuses: asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3)(A), or relief under the Convention Against Torture, see Pub.L. No. 105-277, § 2242, 112 Stat. 2681, 2681-822-23 (1998); 8 U.S.C. § 1231 (note). To qualify for asylum, an alien must show that he "has suffered past persecution or has `a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.2005) (alteration in original) (quoting 8 U.S.C. § 1101(a)(42)(A) and citing 8 C.F.R. § 208.13(a)). To qualify for restriction on removal, an alien must demonstrate that his "life or freedom would be threatened in [the proposed country of removal] because of [his] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 1208.16(b). Protection under the CTA does not depend on a showing that mistreatment would be based on any particular characteristic (e.g. race or political opinion), but an alien seeking such relief must show that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).
B. Standard of Review
17
When reviewing BIA decisions, an appellate court must "look to the record for `substantial evidence' supporting the agency's decision: `[O]ur duty is to guarantee that factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole.'" Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.2006) (alteration in original) (quoting Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004)). Agency findings of fact are "conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary." Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004) (citing 8 U.S.C. § 1252(b)(4)(B)) (other internal citations and quotation marks omitted). We do not "weigh the evidence or ... evaluate the witnesses' credibility." Woldemeskel v. INS, 257 F.3d 1185, 1189 (10th Cir.2001) (internal citations and quotation marks omitted).
18
"Credibility determinations are factual findings ... subject to the substantial evidence test." Uanreroro, 443 F.3d at 1204. "Because an alien's testimony alone may support an application for withholding of removal or asylum, 8 C.F.R. § 208.13(a), the IJ must give specific, cogent reasons for disbelieving it." Sviridov, 358 F.3d at 727 (internal citation and quotation marks omitted). In formulating those reasons, the trier of fact must look to the "totality of the circumstances" and "all relevant factors." 8 U.S.C. § 1158(b)(1)(B)(iii).
C. Scope of Review
19
Review in this case is complicated by the fact that there exists both an oral decision of the immigration judge and a written decision by a member of the BIA. These two decisions are not identical. The IJ decision relies upon some factors not mentioned by the BIA order, and the BIA order takes issue with the IJ's decision in one potentially important respect. Mr. Sarr contends that our review should be limited to the BIA opinion. The government, on the other hand, would have us look to both the BIA opinion and the IJ's opinion to determine whether the removal order satisfies our standard of review. To resolve this dispute, we turn to general principles of administrative law and to our recent precedent detailing the asylum process and our role within it.
20
Asylum applicants receive a hearing before an immigration judge, at which the applicant has the burden of proving refugee status. 8 C.F.R. § 1208.13(a); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir.1996). If the IJ's ruling is adverse to the applicant, he may seek review by the BIA. 8 U.S.C. § 1229a(c)(5); 8 C.F.R. § 1240.15; 8 C.F.R. §§ 1003.1(b)(3), 1003.38. If the BIA ruling is adverse to the applicant, he may seek review in this Court. "We have general jurisdiction to review only a `final order of removal,' 8 U.S.C. § 1252(a)(1), and there is no `final order of removal' until the BIA acts." Uanreroro, 443 F.3d at 1203 (quoting Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir.2005)).
21
Until 1999, all appeals to the BIA were decided by three-member panels whose opinions constituted the final decision of the agency. Pursuant to regulations promulgated by the Attorney General in 1999 and 2002, the BIA now has three options: decision by a three-member panel with a full explanatory opinion, 8 C.F.R. § 1003.1(e)(6), summary affirmance by a single member of the board without opinion, id. § 1003.1(e)(4), or decision via a brief order by a single member of Board, affirming, modifying, or remanding the IJ's decision, id. § 1003.1(e)(5). See also Uanreroro, 443 F.3d at 1203-04; Tsegay v. Ashcroft, 386 F.3d 1347, 1351-52 (10th Cir. 2004).
22
Our scope of review depends upon which of these three forms the BIA decision takes. If a three-member panel issues a full explanatory opinion, which it does in a "particularly difficult or important case," the "BIA opinion completely supercedes the IJ [opinion] for purposes of [judicial] review." Uanreroro, 443 F.3d at 1203 (citing 8 C.F.R. § 1003.1(e)(6); 67 Fed.Reg. 54878, 54,886 n. 6 (Aug. 26, 2002)). If a single member of the BIA issues a summary affirmance without opinion, which occurs in "more routine appeal[s]," id., the IJ opinion constitutes the decision of the agency for purposes of appeal and the reviewing court looks to that opinion to determine the agency's rationale. Id. at 1203; Yan v. Gonzales, 438 F.3d 1249, 1251 (10th Cir.2006); Sviridov, 358 F.3d at 727. Such an affirmance does not imply BIA approval of all the reasoning in the IJ opinion, but does signify that any potential errors are harmless or nonmaterial. Uanreroro, 443 F.3d at 1203; 8 C.F.R. § 1003.1(e)(4)(ii).
23
"If the case is more significant than an (e)(4) case and less significant than an (e)(6) case," Cruz-Funez, 406 F.3d at 1190, a single BIA member can decide the merits of the appeal and issue "a brief order, affirming, modifying, or remanding" the IJ's order, 8 C.F.R. § 1003.1(e)(5). Such an order is a "middle ground ... between the full opinion and summary affirmance options." Uanreroro, 443 F.3d at 1203-04. In Uanreroro we held that such an order constitutes "the final order of removal under 8 U.S.C. § 1252(a)," and thus the Court "will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." 443 F.3d at 1203-04. We noted, however, that "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Id. at 1204. In other words, because an (e)(5) affirmance is, by definition, a truncated process which can rest on what has been said below, we may consult the IJ's opinion to the extent that the BIA relied upon or incorporated it.
24
Uanreroro identified three general circumstances that call for consultation of the IJ opinion: (1) "where the BIA incorporates by reference the IJ's rationale," (2) where the BIA "repeats a condensed version of [the IJ's] reasons while also relying on the IJ's more complete discussion," and (3) "where the BIA reasoning is difficult to discern and the IJ's analysis is all that can give substance to the BIA's reasoning." Id. The first two categories are obvious and easily applied. Where the BIA explicitly incorporates the IJ's reasoning, we review it. The last category, however, requires more delicate analysis. Where the BIA does not explicitly incorporate or summarize the IJ's reasoning, but its opinion is opaque or otherwise unclear, we may look to the IJ's opinion for guidance on the theory that the BIA did the same. See, e.g., Cruz-Funez, 406 F.3d at 1191 (consulting an IJ opinion in the face of a "somewhat mystifying" (e)(5) order). But as we cautioned in Uanreroro, this category is not an open invitation to turn to the IJ's opinion in every instance. Where the BIA decision does not explicitly incorporate or summarize the IJ's reasoning and "contains a discernible substantive discussion" that stands on its own, "our review extends no further...." Uanreroro, 443 F.3d at 1204. Simply put, the task is to determine whether, in issuing an order under the (e)(5) process, the BIA incorporated the IJ's reasoning, either expressly or by implication. Only then may we impute the IJ's opinion to the BIA.
25
The government argues for a more expansive consideration of the IJ's opinion. But the principles of appellate review stated above are not an artificial creation of this Court. They rest on a fundamental principle of administrative law, announced by the Supreme Court nearly sixty years ago:
26
[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency.
27
SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). In INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam), the Supreme Court stressed that these principles of limited appellate review have "obvious importance in the immigration context." Id. at 16-17, 123 S.Ct. 353. By refraining from deciding immigration appeals on the basis of grounds not expressly or impliedly adopted by the BIA, "we safeguard agency decision making by ensuring that the agency itself makes the decisions entrusted to its authority based on grounds articulated by that entity." Mickeviciute v. INS, 327 F.3d 1159, 1165 (10th Cir.2003). Our procedures for judicial review respect the BIA's discretionary decision to adopt the IJ's opinion in part or in whole (or not at all). In a particular case, government lawyers may find it convenient for us to expand the scope of our review to include portions of the IJ's opinion that were not explicitly or implicitly adopted by the BIA, but that would come at the cost of respect for the agency's own judgment regarding its ground for decision.
28
In seeking a broader role for the IJ's opinion in the context of judicial review of an (e)(5) order, the government directs our attention to the explanation of the (e)(5) process in the preamble to the 2002 regulations:
29
As discussed below, § 3.1(e)(5) also authorizes a single Board member to enter a decision that modifies the immigration judge's decision or remands the case to the immigration judge in any case that does not meet the standards for three-member panel review under § 3.1(e)(6). Such an opinion may properly begin with the opinion of the immigration judge and make specific modifications to that opinion. For example, a single-member opinion may state that the Board member "adopts the opinion of the immigration judge, except to note that" a particular issue is governed by intervening precedent, and to explain that the immigration judge's opinion would still be correct in light of the intervening precedent. Accordingly, such an opinion would conclude that the "immigration judge's opinion is affirmed for the reasons set forth therein and as set forth in this opinion." In this instance, the parties and any reviewing court would be able to look to the combination of the immigration judge's opinion and the single-member decision to understand the conclusions reached in the adjudication.
30
67 Fed.Reg. 54878, 54886 n. 6 (Aug. 26, 2002) (emphasis added). We do not think the preamble supports the government's position. The government calls particular attention to the italicized last sentence, but that sentence does not suggest that the reviewing court should look to "the combination of the immigration judge's opinion and the single-member decision" in every case; rather, it suggests that such a procedure is appropriate only when the single-member opinion expressly adopts the IJ's opinion except in some particular respect. Our approach is entirely consistent with this explanation.
31
In this case, the BIA proceeded under 8 C.F.R § 1003.1(e)(5), and we will review its opinion in accordance with the principles outlined above.
D. Application
32
In a three-paragraph order, a single member of the BIA proceeded under the (e)(5) process and affirmed the IJ's denial of Mr. Sarr's petitions. In the first paragraph, the BIA stated that after "review[ing] the record of the proceeding, the Immigration Judge's decision," and Mr. Sarr's contentions on appeal, it "agree[d] with the Immigration Judge" that Mr. Sarr "failed to carry his burden of proof to demonstrate his actual identity, and did not establish either past persecution or a well-founded fear of future persecution." Admin. R. at 2. Although the BIA did not explicitly state in what respect Mr. Sarr failed to carry his burden of proof, we assume that the problem was with his proof of identity. The principal focus of the litigation before the IJ was on Mr. Sarr's birth certificate, which was his only documentary evidence of Mauritanian citizenship. Although the certificate withstood the government's forensic examination and was consistent with Mr. Sarr's own testimony regarding his place of birth and early residence, Mr. Sarr was unable to offer any confirmation of his identity from Mauritanian authorities. The IJ questioned the authenticity of the birth certificate on the basis of Mr. Sarr's account of the destruction of most of the family's documents.
33
The BIA did not expressly adopt any part of the IJ's opinion. In the second and third paragraphs of its opinion, the BIA responded to Mr. Sarr's arguments on appeal. Only the second paragraph relates to issues on appeal to this Court. That paragraph is addressed to Mr. Sarr's contentions that the IJ's decision "was based on an inaccurate assessment of [Mr. Sarr's] testimony regarding his ability to produce a birth certificate and on an inconsequential inability to remember the year in which his mother died." Id. at 2. The BIA agreed with Mr. Sarr that the IJ's "decision did not completely describe [Mr. Sarr's] testimony with relation to the birth certificate at issue, namely by failing to mention [Mr. Sarr's] statement (Tr. at 14) that his mother had preserved one document." Id. Notwithstanding this error, the BIA declined to find the IJ's ultimate adverse credibility finding clearly erroneous, on the ground that Mr. Sarr "made contradictory statements with regard to the central issue of the alleged destruction of his family's documents and the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Id. at 2-3.
34
The BIA thus modified the grounds on which the IJ reached his adverse credibility determination. A finding that testimony is "not sufficiently detailed" obviously cannot be sustained when the IJ failed even to acknowledge relevant portions of that testimony, namely, Mr. Sarr's testimony regarding his mother's preservation of his Mauritanian birth certificate. The BIA affirmed the IJ's adverse credibility finding solely on the basis of the inconsistency in Mr. Sarr's testimony regarding two issues—the preservation of the birth certificate and the date of Mr. Sarr's mother's death.6
35
Perhaps recognizing that the supposed inconsistency in Mr. Sarr's testimony on these matters is less than met the BIA's eye, the government asks us to disregard the BIA's specific ruling and expand our review to include the IJ's rationale that Mr. Sarr's testimony was "not believable" or "improbable." The government contends that the "fact that the IJ and the Board labeled Sarr's statements regarding the preservation of his birth certificate as `inconsistent,' as opposed to `improbable,' is of no consequence—either can be the basis for an adverse credibility finding." Brief for Respondent at 35. Surely not. Inconsistency and improbability are two different things. Our review of the BIA decision must be confined to the ground identified by the BIA: the supposed inconsistencies in Mr. Sarr's testimony.
36
1. Inconsistency Regarding the Birth Certificate.
37
The first purported inconsistency discussed by the BIA concerns Mr. Sarr's testimony as to the fate of his birth certificate. The BIA recognized that Mr. Sarr offered an explanation for this seeming inconsistency and stated that the IJ did not "completely describe" this explanation. Admin. R. at 2. The BIA concluded, however, that "the record reflects that the respondent made contradictory statements with regard to the central issue of the alleged destruction of his family's documents. ..." Id. The BIA provided no further discussion as to what these inconsistencies were and provided no citation to the record. We are thus left to consult the IJ's more complete discussion and the record itself. As to this issue, the IJ found the following:
38
[R]espondent has ... testified ... [t]hat his father brought out the paperwork regarding the family and that the soldiers destroyed all of the paperwork. That nothing was available. Now, all of a sudden, he comes up with a birth certificate. From where, I have no idea other [than] what he said, the mother had it on her. Well, according to what [he told] us previously, ... the father had it and handed it to the soldiers and they destroyed all of the paperwork and ... there was nothing left there.
39
Id. at 54-55.
40
A review of the record suggests that the IJ and the BIA significantly overemphasize the inconsistent nature of Mr. Sarr's statements. In his Form I-589 asylum application, Mr. Sarr said only this regarding the documents: "[The soldiers] spoke with my father and ordered him to identify himself and also his family members to be Mauritanian citizens. He entered his room and came out with few documents and gave them. After they looked at the documents, they tore the documents and threw the pieces away." Id. at 175. At the hearing before the IJ, Mr. Sarr discussed the document destruction three times:
41
First, at the beginning of the hearing, counsel asked Mr. Sarr how the birth certificate escaped destruction by the soldiers. Mr. Sarr responded:
42
My mother was holding [my birth certificate]. My mother had all the papers. When they came they asked the papers to my father so my father requested that my mother bring them out and she brought everything but this last one that remained with the other papers that were there.
43
Id. at 79. He further explained that mores in the Islamic country of Mauritania accounted for the soldiers' failure to search the mother and children. Id. at 80.
44
During the second discussion of the documents, the following exchange occurred:
45
Q: What did the soldiers want from your father?
46
A: They asked him to prove that he was a Mauritanian citizen.
47
Q: Did he? What did he do about it?
48
A: When they asked him that they requested that he brings [sic] all his paperwork. That's when he went to my mom and requested that she give him all our paperwork.
49
Q: Did he end up giving them away or not?
50
A: Yes.
51
Q: What did they do with them?
52
A: He looked at the paperwork and then he destroyed it.
53
Id. at 82.
54
The third piece of testimony regarding the paperwork consisted of the following:
55
Q: ... How did the soldiers destroy your family paperwork?
56
A: This is how, the paper it has my father's certificate of nationality, his ID, his passport, and then my siblings and everybody else paperwork, certificate. And my father gave it to them hoping that this will save him but they took it and they torn it. It was torn.
57
Id. at 101.
58
As the BIA conceded, the IJ failed to describe fully Mr. Sarr's explanation of how his mother retained the birth certificate. At first, in response to a specific question about his birth certificate, Mr. Sarr said his mother had retained it. Later, in response to more general questions about the family's paperwork, he said all of it was destroyed. Although Mr. Sarr's later statements contain some language about "all" the paperwork and "everybody else[`s] paperwork" being destroyed, these statements were made through a translator and in the shadow of the very specific explanation given at the outset of the questioning on this topic. Taking into account the fact that this colloquy occurred through a translator—and given that the very first thing Mr. Sarr explained about his birth certificate was its absence from the group of destroyed papers—this testimony does not appear contradictory. In the context of all that unfolded at this hearing—and in the context of the concerns this Court has previously raised regarding the testimony of asylum applicants, see Solomon v. Gonzales, 454 F.3d 1160, 1164 (10th Cir.2006)7—there is no direct inconsistency in Mr. Sarr's statements, and there is no apparent inconsistency in their substance. As for any other "contradictory statements with regard to ... the alleged destruction of his family's documents," the BIA failed to point this Court to any and our independent review of the record has revealed none.
59
2. Inconsistency Regarding the Date of the Death of Mr. Sarr's Mother
60
The BIA also stated that "the record reflects that [Mr. Sarr] made contradictory statements with regard to ... the issue of when his mother, who he claimed successfully preserved at least one family document, passed away." Admin. R. at 2-3. For its part, the IJ's opinion adds little substance to this discussion. As a reason for disbelieving Mr. Sarr, the IJ pointed out that Mr. Sarr "indicated to the Court that his mother died in 1994 but this afternoon when he was asked again he said 1991, then he said 1994." Id. at 55.
61
Mr. Sarr discussed his mother's death at three different points during the hearing. The first mention came while Mr. Sarr was discussing the difficulties of life in the refugee camp:
62
Q: What happened with your mother?
63
A: While we were there life was very difficult.... And my mother was with a lot of pain because of everything that happened and I think she died, you know, as a result of all these things.
64
Q: When did she die?
65
A: She died in 1994.
66
Id. at 89. The second discussion of his mother's demise entailed a fairly detailed account of the circumstances surrounding the death, but no specific date was asked for or offered. Id. at 98-99. The third discussion of his mother's death was the subject of some confusion between the court, the lawyers, and the interpreter. It began with Mr. Sarr's lawyer, Ms. Healy, asking Mr. Sarr again to discuss his mother's death:
67
Q: Alassane, at our last hearing there were some questions with regard to the death of your mother and that's what I wanted to ask you about. Can you tell me what year your mother died in?
A: (No audible response.)
68
Id. The IJ then interjected and the following colloquy occurred between him and Ms. Healy:
69
[IJ]: 1994 according to what he said.
70
[Ms. Healy]: Okay.
71
[IJ]: So it's been asked and answered, so.
72
Id. at 119-20. Without further prompting, Mr. Sarr (through his translator) said:
73
In 1991. She got very sick and this was a result of the past thing that happened to us. I was out and when I came back I found her. Again she had relapsed. We took her to the Red Cross and she had office visit there and she was given some pills to take. And we went home and in the afternoon a little bit after 3:00 that's when she died.
74
Id. at 120. Ms. Healy then turned to the IJ and had the following discussion:
75
[Ms. Healy]: And because there was some confusion can I ask again when she died?
76
[IJ]: No.
77
[Ms. Healy]: Okay.
78
[IJ]: She [Mr. Sarr's interpreter] said 1991.
79
[Ms. Healy]: Okay.
80
[IJ]: That's not what he told me last time.
81
[Ms. Healy]: 1991, okay.
82
[IJ]: That's what he said. The last time he told me 1994. That's what I have in my notes.
83
[Ms. Healy]: Right, that's what I have too and so I want to make sure that it was clear because I'm not sure the stories—
84
[IJ]: Well, I got the answer already so.
85
[Ms. Healy]: Okay.
86
Id. at 120-21. Seven questions later, Ms. Healy asked Mr. Sarr what his family painted on his mother's grave marker. He answered: "Her name, the date that she died." Id. at 122. The IJ then directly addressed Mr. Sarr:
87
Q: Tell me what the date is again.
88
A: I do not remember the exact date but I remember the year.
89
Q: Tell me what it is.
90
A: 1994.
91
Q: Okay.
92
Id. at 122.
93
In view of this evidence, two things are evident. First, although there was some confusion as to Mr. Sarr's response (perhaps due to translation issues), Mr. Sarr did, momentarily, contradict himself as to the date of his mother's death. Second, that contradiction was a minor discrepancy that Mr. Sarr quickly corrected. Because the date of his mother's death made no difference to the strength or plausibility of his story, he had no incentive to change or reshape his testimony on this point. We do not believe this minor mistake constitutes substantial evidence upon which an adverse credibility finding can be based. In Diallo v. Gonzales, 447 F.3d 1274, 1283 (10th Cir.2006), this Court affirmed an adverse credibility finding where the petitioner "was given the opportunity to explain ... inconsistencies but failed to do so to the IJ's satisfaction." Here, by contrast, Mr. Sarr was given no opportunity to explain, and the inconsistency is far less significant than that in Diallo.
94
Aside from the lone misstep as to the year, Mr. Sarr's testimony regarding his mother's death was reasonably detailed and consistent. Moreover, the BIA seems to have linked the inconsistency about the date of his mother's death (a point that has little to do with his request for asylum) with the validity of the birth certificate (a point that has much to do with his request for asylum), see Admin. R. at 3 ("[R]espondent made contradictory statements with regard to ... the issue of when his mother, who he claimed successfully preserved at least one family document, passed away.")—a jump that has no logical foundation since, under either date, Mr. Sarr's mother would have been alive at the time of the document destruction.
III. CONCLUSION
95
We hold that the decision to deny Mr. Sarr's requested relief was not supported by substantial evidence. Mr. Sarr presented proof of his Mauritanian citizenship through both documentary and testimonial evidence. The government concedes that it subjected Mr. Sarr's Mauritanian birth certificate to forensic examination and found that it had not been altered. Mr. Sarr also testified that he was born in Mauritania, that his family resided and owned property in Mauritania, and that he lived there until his expulsion at the age of thirteen. As we have previously noted, "an asylum applicant's otherwise credible testimony constitutes sufficient evidence to support an application," Solomon, 454 F.3d at 1165, and while the agency is entitled to disbelieve such testimony, it must have "specific, cogent reasons" for doing so, Sviridov, 358 F.3d at 727 (internal quotation marks and citation omitted). It is quite possible that such reasons exist in this case, but the BIA failed to identify them, either in its own opinion or through incorporation of the IJ's opinion. The BIA concedes that the IJ's analysis of Mr. Sarr's testimony was incomplete. It upheld the IJ's adverse credibility finding based upon two inconsistencies that, if they existed at all, were too minor to constitute substantial evidence. We thus REVERSE the decision of the BIA and REMAND to the agency for further proceedings. On remand, the agency may consider additional evidence regarding Mr. Sarr's Mauritanian identity and may consider alternative grounds, including any possible change in country conditions.
Notes:
1
See U.S. Department of State, Bureau of African Affairs, Background Note: Mauritania, http://www.state.gov/r/pa/ei/bgn/5467.htm (last visited Dec. 26, 2006) (hereinafter "Mauritania Note").
2
See Fulani Empire, in 5 The New Encyclopedia Britannica 42 (15th ed.2002). It appears that the terms "Pulaar," "Pular," "Haalpulaar," "Fulfulde," and "Fulani" are used somewhat interchangeably to describe both an ethnic group and its native tongue. See, e.g., Annette Harrison, Fulfulde Family Language Report (2003), http://www.sil.org/silesr/2003/silesr2003-009.htm (last visited Dec. 26, 2006); Mauritania Note, supra note 1. During the asylum hearing, Mr. Sarr (or perhaps his translator) used "Fulani" and "Pulaar" with reference to both his ethnic group and his language. For simplicity, we will refer to both as Fulani.
3
See Mauritania Note, supra note 1; World Data: Mauritania, in Encyclopedia Britannica (2006) (online version), http://www. britannica.com/wdpdf/Mauritania.pdf (last visited Dec. 26, 2006).
4
This page of the hearing transcript was omitted from the certified Administrative Record, where it would have been between pages 95 and 96. The government submitted the page as a supplement to the record
5
The government sought to introduce the testimony of the asylum officer, but was refused. The government preserved its right to present this evidence in the case of remand
6
The BIA made no reference to the third reason the IJ gave for finding Mr. Sarr not credible: his lack of knowledge of his Dakar employer's address or phone number and failure to contact him. Because the BIA did not expressly or impliedly incorporate this rationale into its opinion, we do not address it. Even if we did, it would not change the outcome of this appeal. The transcript of Mr. Sarr's hearing before the IJ does not reveal that he was asked for the address or phone number of his employer, nor was he asked whether he had attempted to contact the employer or, if not, why not. The sum total of Mr. Sarr's testimony regarding his employer in Dakar was three sentences, with no follow-up questions and no questions on cross-examinationSee id. at 90.
7
InSolomon we observed:
The courts of appeals have frequently noted the inherent problems with credibility determinations in asylum cases. Asylum applicants rarely speak English, and their testimony is plagued with the uncertainties of translation and cultural misunderstanding. They are generally unfamiliar with American procedures and wary of lawyers and officials; often they are not well served even by their own legal counsel. Their escape from persecution sometimes entailed acts of deceit and prevarication, or even bribery or forgery, which complicates evaluation of their veracity in immigration proceedings. Moreover, because of their troubled relations with their native countries, purported refugees often have difficulty in obtaining documentation to back up their claims.
Id. at 1164 (internal citation omitted).
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08-14-2010
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https://www.courtlistener.com/api/rest/v3/opinions/4523064/
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-852
Filed: 7 April 2020
Wake County, No. 18 CVS 2501
SHIRLEY VALENTINE, ADMINISTRATOR OF THE ESTATE OF SHANYE
JANISE ROBERTS, DECEASED, Plaintiff,
v.
STEPHANIE SOLOSKO, PA-C; NEXTCARE URGENT CARE; NEXTCARE, INC.;
NEXTCARE, INC. D.B.A. NEXTCARE URGENT CARE; MATRIX OCCUPATIONAL
HEALTH, INC. and MATRIX OCCUPATIONAL HEALTH, INC. D.B.A. NEXTCARE
URGENT CARE, Defendants.
Appeal by Defendants from order entered 18 March 2019 by Judge Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 4 February
2020.
The Law Office of Thomas E. Barwick, PLLC, by Thomas E. Barwick, for
Plaintiff-Appellee.
Lewis Brisbois Bisgaard & Smith, LLP, by Carrie E. Meigs and Justin G. May,
for Defendants-Appellants.
COLLINS, Judge.
Defendants appeal from an order granting Plaintiff’s motion for an extension
of time to serve the summons and complaint and denying Defendants’ motions to
dismiss and for judgment on the pleadings. Defendants argue that the trial court
erred in its application of Rules 4 and 6 of the North Carolina Rules of Civil
Procedure. Because a trial court is afforded discretion under Rule 6(b) to
VALENTINE V. SOLOSKO
Opinion of the Court
retroactively extend the time for service of process of a dormant summons under Rule
4(c) upon a finding of excusable neglect, we discern no legal error by the trial court.
Accordingly, we affirm the trial court’s order.
I. Procedural History
Plaintiff, Shirley Valentine, the administrator of the estate of her deceased
daughter Shanye Janise Roberts, filed a lawsuit in 2015 alleging medical malpractice
and wrongful death against Stephanie Solosko, PA-C; NextCare Urgent Care;
NextCare, Inc.; NextCare, Inc. D.B.A. NextCare Urgent Care; Matrix Occupational
Health, Inc.; and Matrix Occupational Health, Inc. D.B.A. NextCare Urgent Care
(collectively “Defendants”). The action arose out of medical care that Defendants
provided to the deceased on 10 April 2013. The trial court extended the statute of
limitations to 7 August 2015 pursuant to Rule 9(j) of the North Carolina Rules of Civil
Procedure. Plaintiff voluntarily dismissed the lawsuit without prejudice on
24 February 2017.
Plaintiff timely filed a second lawsuit on 23 February 2018 and the Clerk of
Court issued summonses (“the original summonses”) for all Defendants on that day.
Plaintiff served the original summonses on defendant Solosko on 15 May 2018 and
the other defendants on 17 May 2018 (eighty-one and eighty-three days, respectively,
after the original summonses were issued). Plaintiff filed an affidavit of service of
process on 15 June 2018, including the returned registry receipts as exhibits.
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VALENTINE V. SOLOSKO
Opinion of the Court
Plaintiff sued out alias or pluries summonses1 for all Defendants on 23 May
2018, eighty-nine days after the original summonses were issued. Plaintiff did not
serve these alias or pluries summonses on Defendants.
On 19 July 2018, Defendants filed an answer and a motion to dismiss on the
following grounds: lack of personal jurisdiction, insufficiency of process, insufficiency
of service of process, failure to state a claim upon which relief can be granted, and the
action being time-barred by the statute of limitations. Defendants also filed a motion
for judgment on the pleadings.
Plaintiff sued out alias or pluries summonses again on 22 August 2018,
ninety-one days after issuance of the previous alias or pluries summonses. Plaintiff
did not serve these alias or pluries summonses. On 28 September 2018, Plaintiff filed
a motion to extend time to issue, file, and serve the summonses, the alias or pluries
summonses, and the complaint.
After conducting a hearing, the trial court entered an order granting Plaintiff’s
motion for extension of time for service of the summonses and complaint, and denying
Defendants’ motions to dismiss and for judgment on the pleadings. Defendants filed
notice of appeal.
1 North Carolina Rule of Civil Procedure 4 appears to use the terms “alias or pluries summons”
and “alias and pluries summons” interchangeably, as do our courts. Throughout this opinion, we use
the term “alias or pluries summons.”
-3-
VALENTINE V. SOLOSKO
Opinion of the Court
II. Appellate Jurisdiction
The trial court’s order does not dispose of all claims and all defendants, and is
thus an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(a) (2019); Veazey v. City
of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). There is generally no
right to immediate appeal of an interlocutory order—although immediate appeal may
be permitted if the trial court certifies the order under N.C. Gen. Stat. § 1A-1, Rule
54(b), or if the appellant can show that the order affects a substantial right—because
most interlocutory appeals tend to hinder judicial economy by causing unnecessary
delay and expense. Love v. Moore, 305 N.C. 575, 580, 291 S.E.2d 141, 145-46 (1982).
Here, the trial court could not certify the order pursuant to Rule 54(b) because
“there has been no adjudication as to any claim(s) or part(ies) within the meaning of
Rule 54(b).” Howze v. Hughes, 134 N.C. App. 493, 495, 518 S.E.2d 198, 199 (1999).
Moreover, contrary to Defendants’ argument that the order affects a substantial right
under N.C. Gen. Stat. § 1-277(b), which allows “the right of immediate appeal from
an adverse ruling as to the jurisdiction of the court over the person or property of the
defendant[,]” our courts have routinely held that that section 1-277(b) is limited to
rulings on minimum contacts questions, and does not apply to rulings based on
procedural issues regarding issuance or service of process, such as the order at issue
in this case. See Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 829 (1984).
Nonetheless, “because the case sub judice is one of those exceptional cases where
-4-
VALENTINE V. SOLOSKO
Opinion of the Court
judicial economy will be served by reviewing the interlocutory order, we will treat the
appeal as a petition for a writ of certiorari and consider the order on its merits.”
Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 428, 651 S.E.2d 386, 389
(2007) (citations omitted); N.C. R. App. P. 21(a)(1).
III. Discussion
The central question is whether the trial court may, upon a showing of
excusable neglect, grant an extension of time under these facts to serve a dormant
summons where a second alias or pluries summons was obtained ninety-one days
after the previous alias or pluries summons.
Plaintiff argues that Lemons v. Old Hickory Council, Boy Scouts of America,
Inc., 322 N.C. 271, 367 S.E.2d 655, reh’g denied, 322 N.C. 610, 370 S.E.2d 247 (1988),
and its progeny control the outcome here. Conversely, Defendants contend that
Plaintiff’s failure to timely obtain the second alias or pluries summons effectively
discontinued the action, as was the case in Dozier v. Crandall, 105 N.C. App. 74, 411
S.E.2d 635 (1992).
Rule 4 governs service of process. See N.C. Gen. Stat. § 1A-1, Rule 4 (2019).
Upon the filing of a complaint, summons shall be issued within five days. Id. at
§ 1A-1, Rule 4(a). Rule 4(c) requires that a summons be served within sixty days of
issuance. Id. at § 1A-1, Rule 4(c). A summons not served within sixty days “loses its
vitality and becomes functus officio, and service obtained thereafter does not confer
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VALENTINE V. SOLOSKO
Opinion of the Court
jurisdiction on the trial court over the defendant. However, although a summons not
served within [sixty] days becomes dormant and unserveable, under Rule 4(c) it is
not invalidated nor is the action discontinued.” Dozier, 105 N.C. App. at 75-76, 411
S.E.2d at 636 (citations omitted).
If the summons is not served within sixty days of issuance, Rule 4(d) permits
the action to be continued in existence by an endorsement from the clerk or issuance
of an alias or pluries summons within ninety days of the issuance of the preceding
summons. N.C. Gen. Stat. § 1A-1, Rule 4(d). Any such alias or pluries summons
must be served within sixty days of issuance. See Lemons, 322 N.C. at 275, 367 S.E.2d
at 657.
When there is neither an endorsement nor issuance of alias or pluries
summons within the time specified in Rule 4(d), the action is discontinued as to any
defendant who was not served with summons within the time allowed. N.C. Gen.
Stat. § 1A-1, Rule 4(e). Thereafter, endorsement may be obtained or alias or pluries
summons may issue, but, as to any defendant who was not served with summons
within the time specified in Rule 4(d), the action shall be deemed to have commenced
on the date of such issuance or endorsement. Id.
“Rule 4 . . . must be interpreted in conjunction with Rule 6, which addresses
the computation of any time period prescribed by the Rules of Civil Procedure.”
Lemons, 322 N.C. at 275, 367 S.E.2d at 657. Rule 6 provides:
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VALENTINE V. SOLOSKO
Opinion of the Court
When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at
any time in its discretion with or without motion or notice
order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as
extended by a previous order. Upon motion made after the
expiration of the specified period, the judge may permit the
act to be done where the failure to act was the result of
excusable neglect.
N.C. Gen. Stat. § 1A-1, Rule 6 (2019).
In Lemons, our North Carolina Supreme Court concluded that Rule 6
permitted the trial court to grant an extension of time to serve a dormant summons,
and thus revive it, where the alias summons was served on the defendant after the
time for service of process under Rule 4(c) had expired. Lemons, 322 N.C. at 277, 367
S.E.2d at 658. The plaintiff commenced an action against the defendant on
6 February 1986. A summons was also issued that day but was not served. An alias
summons was issued on 2 May of that year and was served on 5 June, more than
thirty days2 after its issuance. On 13 October 1986, the plaintiff filed a motion for
retroactive extension of time, nunc pro tunc, from 2 June until 6 June to serve the
alias summons. Construing Rule 4 in para materia with Rule 6(b), the Court
determined that the General Assembly, by adopting Rule 6(b), gave trial courts the
authority to extend the time provided in Rule 4(c) to serve a summons upon a finding
2 At the time the summons was issued in this case, Rule 4(c) required process to be served
within thirty days. At the time the instant action was commenced, the time allowed under Rule 4(c)
was sixty days.
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VALENTINE V. SOLOSKO
Opinion of the Court
of excusable neglect, and thus to “breathe new life and effectiveness into [a dormant
summons] retroactively after it has become functus officio.” Id. at 274-75, 367 S.E.2d
at 657. The Court concluded that Rule 6 permitted an extension of time to serve a
dormant summons and thus revive it where the alias summons was served on the
defendant after the time for service of process under Rule 4(c) had expired. Id. at
277, 367 S.E.2d at 658.
Applying Lemons in Hollowell v. Carlisle, 115 N.C. App. 364, 444 S.E.2d 681
(1994), this Court concluded that Rule 6 permitted the trial court to grant a plaintiff
an extension of time to serve a dormant summons where no alias or pluries summons
was obtained. Id. at 368, 444 S.E.2d at 683. The defendant was served with the
original summons and complaint sometime between sixty-eight and ninety days after
issuance of the summons. Since the defendant “was served with a dormant summons
within the 90-day limit,” this Court held that “the trial court had the authority
pursuant to the language of Rule 6(b) to extend the time for service of process under
Rule 4(c), ‘to permit the act to be done where the failure to do the act was the result
of excusable neglect.’” Id. See also Wetchin v. Ocean Side Corp., 167 N.C. App. 756,
761, 606 S.E.2d 407, 410 (2005) (“The instant case is factually identical to Lemons.
The alias and pluries summons became dormant after sixty days, prior to plaintiffs’
effectuating service on 20 November 2002, but before the expiration of the summons
on 27 November 2002. The summons was merely dormant at the time of service; it
-8-
VALENTINE V. SOLOSKO
Opinion of the Court
had not expired and the trial court had the discretion to retroactively extend the time
for service of the alias and pluries summons.”).
By contrast, in Dozier, this Court distinguished Lemons and concluded that
Rule 6(b) does not allow a party to continue an action beyond the ninety-day period
specified in Rule 4(e). Dozier, 105 N.C. App. at 77-78, 411 S.E.2d at 637-38. In Dozier,
the plaintiff filed an action on 15 March 1990 alleging personal injuries. A summons
was issued on that day but returned unserved twelve days later. Ninety-two days
after the issuance of the original summons, an alias or pluries summons was issued;
it was returned unserved eleven days later. The defendant accepted service on
20 August 1990 and filed a motion for judgment on the pleadings asserting the three-
year statute of limitations. The plaintiff moved pursuant to Rule 6 to extend the
period for issuance of the alias or pluries summons.
The Court explained that under Lemons, a trial court, pursuant to Rule 6, may
in its discretion and upon a finding of excusable neglect extend the time provided in
Rule 4(c) to serve a dormant summons and thus revive it. Id. Lemons did not control,
however, because the action before the Dozier Court had been discontinued. The
Court explained:
Rule 4(e) specifically provides that where there is neither
endorsement nor issuance of alias or pluries summons
within 90 days after issuance of the last preceding
summons, the action is discontinued as to any defendant
not served within the time allowed and treated as if it had
never been filed. Under Rule 4(e), either an extension can
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VALENTINE V. SOLOSKO
Opinion of the Court
be endorsed by the clerk or an alias or pluries summons
can be issued after the 90 days has run, but the action is
deemed to have commenced, as to such a defendant, on the
date of the endorsement or the issuance of the alias or
pluries summons. Thus, when plaintiff failed to have this
action continued through endorsement or issuance of alias
or pluries summons within 90 days, this action was
discontinued.
Id. at 78, 411 S.E.2d at 638 (internal quotation marks, emphasis, and citations
omitted).
Accordingly, “[w]hile Rule 6 under the Lemons case gives the trial court
discretion upon a showing of excusable neglect to permit an act to be done,” the Court
found “no authority in the rule or in Lemons to overrule the express language of Rule
4(e) as to the effect of failing to have an endorsement or alias or pluries summons
issued ‘within the time specified in Rule 4(d) . . . .’” Id.
Lemons and its progeny control this case, while Dozier involves a factual
situation which materially differs from that presented here. Unlike the defendant in
Dozier who was served some five months after the original summons was issued with
an alias summons that was issued outside the ninety-day time period prescribed by
Rule 4(d), Defendants in this case were served with the original summonses eighty-
one and eight-three days after issuance of the summonses. As in Hollowell,
Defendants were served with dormant summonses within the ninety-day limit
prescribed by Rule 4(d). Under Lemons, the trial court had the authority under Rule
6(b) to extend the time provided in Rule 4(c) to serve the summonses upon a finding
- 10 -
VALENTINE V. SOLOSKO
Opinion of the Court
of excusable neglect, and thus to “breathe new life and effectiveness” into the dormant
summonses retroactively after they had become functus officio. Lemons, 322 N.C. at
274-75, 367 S.E.2d at 657. Accordingly, “the trial court had the authority pursuant
to the language of Rule 6(b) to extend the time for service of process under Rule 4(c),
‘to permit the act to be done where the failure to do the act was the result of excusable
neglect.’” Hollowell, 115 N.C. App. at 368, 444 S.E.2d at 683.
As the trial court found that Plaintiff’s service of the original summonses
outside the sixty-day period prescribed in Rule 4(c) was a result of excusable neglect,3
and the trial court had the authority to invoke its discretion to retroactively extend
the time for Plaintiff to serve the summonses and complaint to 23 May 2018 and to
explicitly deem service of process timely under Rule 4, the trial court did not err in
granting Plaintiff’s motion for an extension of time to serve the summonses and
complaint.4 Moreover, as service of process was deemed timely under Rule 4, the trial
court obtained personal jurisdiction over Defendants. See Fender v. Deaton, 130 N.C.
3 This finding is not challenged and is thus binding upon us. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The trial court’s finding that Plaintiff’s failure to renew the alias
or pluries summons resulted from excusable neglect is not germane to this appeal, as the trial court
did not extend the time for suing out the second alias or pluries summons.
4 The trial court also found that “Plaintiff’s failure to renew her Alias and Pluries Summons
prior to the hearing of these Motions were the result of excusable neglect.” To the extent the trial
court’s order granting “Plaintiffs Motion to Extend the Time to Issue[], File and Serve Summonses and
Complaint” allowed Plaintiff an extension of time to renew her Alias and Pluries Summons, such
extension was erroneous under Dozier. See Dozier, 105 N.C. App. at 78, 411 S.E.2d at 638 (There is
“no authority in the rule or in Lemons to overrule the express language of Rule 4(e) as to the effect of
failing to have an endorsement or alias or pluries summons issued ‘within the time specified in Rule
4(d) . . . .’”).
- 11 -
VALENTINE V. SOLOSKO
Opinion of the Court
App. 657, 659, 503 S.E.2d 707, 708 (1998) (“[I]t is well established that a court may
only obtain personal jurisdiction over a defendant by the issuance of summons and
service of process by one of the statutorily defined methods.”). Accordingly, Plaintiff’s
action was not barred by the statute of limitations. Thus, the trial court did not err
by denying Defendants’ motions to dismiss and for judgment on the pleadings.
IV. Conclusion
Because the trial court had the authority to exercise discretion under Rule 6(b)
to extend the time for Plaintiff to serve dormant summonses under Rule 4(c) upon a
finding of excusable neglect, we discern no legal error by the trial court. Accordingly,
we affirm the trial court’s order.
AFFIRMED.
Judges STROUD and BERGER concur.
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04-07-2020
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-12746
TIMOTHY DEAL vs. MASSACHUSETTS PAROLE BOARD.
Middlesex. November 5, 2019. - April 6, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Parole. Imprisonment, Parole. Administrative Law, Decision,
Judicial review.
Civil action commenced in the Superior Court Department on
March 14, 2018.
The case was heard by C. William Barrett, J., on motions
for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Merritt Schnipper (Barbara Kaban also present) for the
plaintiff.
Matthew P. Landry, Assistant Attorney General, for the
defendant.
David Rassoul Rangaviz, Committee for Public Counsel
Services, & Benjamin Niehaus, for Massachusetts Association of
Criminal Defense Lawyers & another, amici curiae, submitted a
brief.
2
BUDD, J. The plaintiff, Timothy Deal, is serving a life
sentence for committing murder in the second degree when he was
seventeen. He sought review of the parole board's (board's)
denial of his application for parole in the Superior Court,
alleging that the board abused its discretion by failing to
analyze properly the "distinctive attributes of youth" in coming
to its decision. See Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 675 (2013) (Lenk, J., concurring)
(Diatchenko I), quoting Miller v. Alabama, 567 U.S. 460, 472
(2012). The judge entered judgment in favor of the board, and
the plaintiff appealed. We allowed Deal's application for
direct appellate review, and for the reasons detailed infra, we
affirm the judge's order allowing the board's motion for
judgment on the pleadings.1
Background. 1. Underlying facts. We recount the facts as
found by the board, supplemented by uncontested facts presented
in Deal's parole application and hearing. The victim and Deal
were next-door neighbors and close friends. In September 2001,
the victim, who was facing drug charges, agreed to become an
informant for police and purchased marijuana from Deal in a
"controlled buy." Based on information provided by the victim,
1 We acknowledge the amicus brief submitted in support of
Deal by the Massachusetts Association of Criminal Defense
Lawyers and the youth advocacy division of the Committee for
Public Counsel Services.
3
police secured a warrant to search Deal's home, where Deal
shared a bedroom with his older brother, and subsequently
arrested Deal and his brother on drug and firearm charges.
In January 2002, after Deal's release on bail, he and a
companion went to the victim's home. A fight ensued between
Deal and the victim, during which Deal stabbed the victim
multiple times. The victim died from his wounds that evening.
Two days after his arrest on murder charges, Deal telephoned the
victim's mother; when she asked why he killed her son, Deal
responded, "[The victim] was a snitch. . . . [W]e tried to keep
it from you."
Deal was seventeen years old at the time of the killing.
He was indicted and tried for murder in the first degree, and a
jury convicted him of the lesser included offense of murder in
the second degree. Deal was sentenced to life with the
possibility of parole after fifteen years, making him eligible
for parole in early 2017.
2. The parole hearing. Deal applied for parole in
December of 2016. In advance of his parole hearing, Deal
submitted a memorandum describing his childhood, his
rehabilitation, and his plans for housing and employment if
paroled. Deal also submitted a report by a forensic
psychologist concluding that Deal would be a low risk for
recidivism if paroled based on risk assessments and an interview
4
with Deal. The application included submissions in support of
parole from more than ten friends and family members, including
the victim's mother. The Boston police department and the
district attorney for the Suffolk district submitted letters in
opposition, both alleging that Deal killed the victim in
retaliation for acting as an informant.
At the hearing in December 2016, Deal gave an opening
statement apologizing to the victim's family and stating his
responsibility and regret for the murder. When asked to give
his account of the killing, Deal stated that he had not planned
or intended to kill the victim in retaliation for cooperating
with police; rather, an argument over "something petty"
escalated into a fight during which Deal grabbed a knife from a
friend and then stabbed the victim multiple times. Board
members noted their concern that Deal may have killed the victim
in retaliation for acting as a police informant, questioning in
particular why, two days after Deal's arrest for murder, he
called the victim's mother and told her the victim was a
"snitch." In response, Deal characterized the telephone call as
an attempt to give context for why he, a close friend of the
victim's family, ended up fighting and killing the victim.
In its written decision, the board denied parole and
scheduled Deal's next review for December 2020, determining that
Deal "[had] not demonstrated a level of rehabilitative progress
5
that would make his release compatible with the welfare of
society," and that Deal's "version of the offense . . . [was]
not plausible." After exhausting his administrative appeals,
Deal challenged the board's decision by bringing a complaint in
the nature of certiorari in the Superior Court. See Diatchenko
v. District Attorney for the Suffolk Dist., 471 Mass. 12, 30
(2015) (Diatchenko II). A judge in the Superior Court granted
the board's motion for judgment on the pleadings and denied
Deal's cross motion for the same, concluding that the board's
decision was not an abuse of discretion. We allowed Deal's
application for direct appellate review.
Discussion. General Laws c. 127, § 130, sets forth the
standard the board is to apply when making parole decisions.
The board may grant parole only where it finds,
"after consideration of a risk and needs assessment, that
there is a reasonable probability that, if the prisoner is
released with appropriate conditions and community
supervision, the prisoner will live and remain at liberty
without violating the law and that release is not
incompatible with the welfare of society."
Id.
The board is afforded significant deference with regard to
its parole decisions. As the granting of parole is a
discretionary function of the executive branch, generally the
judiciary's role is limited to reviewing the constitutionality
of the board's decision and proceedings. Commonwealth v. Cole,
6
468 Mass. 294, 302-303 (2014). See, e.g., Crowell v.
Massachusetts Parole Bd., 477 Mass. 106 (2017) (reviewing claims
that parole decision violated constitution and statutes, and
remanding for further development of record); Quegan v.
Massachusetts Parole Bd., 423 Mass. 834 (1996) (reviewing
constitutional claims that board may not consider refusal to
admit guilt in parole determination); Doucette v. Massachusetts
Parole Bd., 86 Mass. App. Ct. 531 (2014) (reviewing alleged due
process violations in parole revocation proceeding, and
conducting certiorari review of merits of board's decision to
revoke parole).
Parole decisions for juvenile homicide offenders like the
plaintiff are handled differently, however. Unlike adult
offenders, juveniles have "diminished culpability and greater
prospects for reform, and, therefore, they do not deserve the
most severe punishments," including sentences of life without
parole (quotations omitted). Diatchenko I, 466 Mass. at 659-
660, citing Miller, 567 U.S. at 471. "[B]ecause the brain of a
juvenile is not fully developed, either structurally or
functionally, by the age of eighteen, a judge cannot find with
confidence that a particular offender, at that point in time, is
irretrievably depraved." Diatchenko I, supra at 670. In
particular, "[r]elying on science, social science, and common
sense," the United States Supreme Court has pointed to three
7
"distinctive characteristics of youth" that make juveniles
constitutionally different from adults for purposes of
sentencing. Id. at 660, 663.
These characteristics include what are commonly referred to
as the Miller factors: (1) children's "lack of maturity" and
"underdeveloped sense of responsibility, leading to
recklessness, impulsivity, and heedless risk-taking"; (2) their
"vulnerability to negative influences and outside pressures,
including from their family and peers," and relatedly, their
"limited control over their own environment" and inability to
"extricate themselves from horrific, crime-producing settings";
and (3) their "unique capacity to change as they grow older"
(alteration and quotations omitted). Diatchenko II, 471 Mass.
at 30, citing Diatchenko I, 466 Mass. at 660. See Miller, 567
U.S. at 471.
Thus, we held that juvenile offenders who have been
convicted of murder in the first degree may not be sentenced to
life in prison without the possibility of parole. Diatchenko I,
466 Mass. at 669-671. We went on to hold that juvenile
offenders sentenced to a mandatory term of life in prison,
(i.e., those convicted of murder in the first or second degree)
are entitled to a "meaningful opportunity to obtain release [on
parole] based on demonstrated maturity and rehabilitation"
(citation omitted). Id. at 674. See Commonwealth v. Okoro, 471
8
Mass. 51, 62-63 (2015); G. L. c. 119, § 72B. We further held
that a "meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation" means that the board
must consider the "distinctive attributes of youth" in
determining whether the juvenile is likely to reoffend.
Diatchenko II, 471 Mass. at 23.
In addition, although in the normal course parole decisions
are not subject to judicial review, Cole, 468 Mass. at 302-303,
we have determined that to ensure that juvenile homicide
offenders receive a meaningful opportunity for parole, they are
entitled to judicial review of board decisions on their parole
applications under the abuse of discretion standard.2 Diatchenko
II, 471 Mass. at 14, 31. "In this context, a denial of a parole
application by the board will constitute an abuse of discretion
only if the board essentially failed to take [the Miller]
factors into account, or did so in a cursory way."3 Id. at 31.
2 Juvenile homicide offenders also must have access to
counsel and access to funds to retain counsel and experts.
Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass.
12, 14 (2015) (Diatchenko II).
3 This abuse of discretion standard is grounded in our
balancing of the two constitutional considerations discussed
supra: the fundamental imperative of proportionality in
sentencing under art. 26 of the Massachusetts Declaration of
Rights, and the "strict separation of judicial and executive
powers" under art. 30. See Diatchenko II, 471 Mass. at 27-28.
9
The plaintiff contends that the board abused its discretion
by denying him parole without more thoroughly analyzing various
factors related to his youth. Deal argues that in order to
enable effective judicial review, and guarantee juvenile
homicide offenders a meaningful opportunity to obtain release,
the parole board's decisions must "expressly address in writing
the youth-specific considerations present in each case, place
that evidence in the context of the overall parole standard, and
explain by reference to that evidence why the [b]oard
nevertheless denied parole if it did." The judge determined
that "[w]hile the better practice may have been for the board to
more specifically outline its findings and discussion in
relation to the individual Miller factors, as opposed to its
general statement that it considered them, such a level of
detail is not required, particularly given the discretion
afforded to the board." Upon review, we conclude that the board
did not abuse its discretion, as it adequately considered the
requisite youth-related factors.4
In support of his argument, the plaintiff points to the
fact that the board simply recites the Miller factors as among
the considerations relevant to its decision without connecting
those factors to any of the evidence presented at the hearing.
4 We review the Superior Court judge's ruling de novo.
Champa v. Weston Pub. Sch., 473 Mass. 86, 90 (2015).
10
We agree with the plaintiff and the concurrence that merely
stating that the board considered the Miller factors, without
more, would constitute a cursory analysis that is incompatible
with art. 26 of the Massachusetts Declaration of Rights. See
Diatchenko II, 471 Mass. at 31. However, upon review of the
board's written decision, it is clear that the board's single
mention of the Miller factors was not the beginning and end of
the board's consideration of those factors.
The decision described various negative influences and
stressors in Deal's environment leading up to the killing,
including Deal's adult brother enlisting his aid in dealing
drugs, his family's mounting financial and legal hardships, and
his struggle to adapt to a change in schools. Although the
board did not explicitly state the connection, these facts
clearly relate to Deal's "vulnerability to negative influences
and outside pressures, including from [his] family and peers"
and his "limited control over [his] own environment" (alteration
and quotation omitted). See Diatchenko II, 471 Mass. at 30,
citing Miller, 567 U.S. at 471. Further, although the board
found that Deal's "version of the offense" was not plausible,
its written decision acknowledged the "loss of friendship" and
escalating confrontations between Deal and the victim stemming
from Deal's arrest on information provided by the victim --
facts that illuminate the board's consideration of Deal's "lack
11
of maturity . . . leading to recklessness, impulsivity, and
heedless risk-taking." See Diatchenko II, supra. Finally, the
board's decision noted Deal's participation in various
rehabilitative programs, employment, and religious activities
while incarcerated, each of which pertains to Deal's "unique
capacity to change as [he] grow[s] older." See id.
Although the board's decision did not designate each fact
to a particular attribute of youth, the decision's inclusion of
these facts supports the board's certification that it did
consider the Miller factors in a noncursory way. Had the board
expressly connected these facts to the Miller factors, there
would have been no doubt that it gave thoughtful consideration
to those factors. Making these connections explicit, rather
than implicit, will allow the board to make clear to reviewing
courts that it gave due consideration to the Miller factors.
The plaintiff also argues that the board impermissibly
based its decision on factors that are "irrelevant, or at least
of diminished significance, to juvenile cases." In particular,
Deal contends that the board focused more on the conclusion that
Deal's version of events was "not plausible" than on the
attributes of youth. The plaintiff's argument fundamentally
misunderstands our holding in Diatchenko II. Although we held
that the board must consider the "distinctive attributes of
youth" in order for a juvenile homicide offender to have a
12
"meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation," we did not say that the board's
decision had to rise or fall on those factors. See Diatchenko
II, 471 Mass. at 23, 30. It is apparent from the decision that
the board was primarily concerned about the plaintiff's failure
to provide a "plausible" account of why he stabbed the victim
fourteen years after he committed the crime. This concern is
indicative of the plaintiff's incomplete "acknowledgement of his
wrongdoing or . . . his refusal to acknowledge his guilt" --
considerations which may be relevant to rehabilitation, see
Quegan, 423 Mass. at 836 -- rather than a rigid application of
the traditional penological justifications (incapacitation,
retribution, or deterrence), which are "suspect" as applied to
juvenile sentences, see Diatchenko I, 466 Mass. at 670-671.5
Further, the board's concern, noted in its decision, that Deal
had not gone on record to take responsibility for the killing
until ten years after the crime reinforces the board's
legitimate reasoning that a longer period of rehabilitation
5 Importantly, the board's written decision did not adopt
the district attorney's argument that "[a] positive vote for
parole . . . may send the wrong message to other criminals."
Although the board noted its concern that Deal may have killed
the victim in retaliation for being a "snitch," it did so in the
context of Deal's rehabilitation, as evidenced by his possible
lack of acknowledgment of the full severity of his crime.
13
would be necessary before release is compatible with the welfare
of society.
The plaintiff argues as well that the board abused its
discretion by denying parole without discussing the details of
the risk assessment and report conducted by a forensic
psychologist who concluded that Deal would be a low risk for
recidivism if paroled. In its decision, the board noted that it
"considered testimony" from the psychologist and that it
"considered a risk and needs assessment," without discussing
what the expert and risk assessment found or explaining why
those findings were not enough to warrant parole. By denying
parole on the grounds that Deal "[had] not demonstrated a level
of rehabilitative progress that would make his release
compatible with the welfare of society," the necessary
implication is that, in the board's view, Deal's incomplete
rehabilitation contradicted the risk assessment and the forensic
psychologist's conclusion that Deal would be a low risk to
recidivate. "[T]he opinion of a witness testifying on behalf of
a sex offender need not be accepted by the hearing examiner even
where the board does not present any contrary expert testimony."
See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender
Registry Bd., 470 Mass. 102, 112 (2014), quoting Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 637 (2011). Nevertheless, the better practice,
14
as described in the concurrence, would be to articulate the
reasons and evidence overcoming the contrary expert opinion.
As discussed supra, ultimately the board must determine
whether there is "a reasonable probability" that the applicant
would not recidivate if given the proper support, and that
"release is not incompatible with the welfare of society." See
G. L. c. 127, § 130. Although our review of parole decisions
for juvenile homicide offenders is limited, we note that here,
even taking into consideration youth-related factors, the board
had reason to conclude that the plaintiff had failed to
demonstrate a "level of rehabilitative progress that would make
his release compatible with the welfare of society." The Miller
factors, although an important consideration, may or may not
play a determinative role in the board's decision depending on
the circumstances of a particular applicant. In denying Deal's
parole application, the board determined that Deal's incomplete
rehabilitation, as evidenced by his failure to give a plausible
account of his motivations for killing the victim, outweighed
the favorable Miller evidence. In future cases where, as here,
evidence relevant to the Miller factors militates in favor of
release but the board nevertheless denies parole, the better
practice would be to specify the reasons and supporting facts
that overcome the Miller considerations. Additionally, in light
of the concerns raised by the concurrence, where the board bases
15
its denial of parole on a determination that the applicant's
version of events is not plausible, the board should indicate
both why that version is not plausible and how that
implausibility bears on the applicant's likelihood to recidivate
or the compatibility of release with the welfare of society.
Conclusion. For the foregoing reasons, we conclude that
the board's decision denying Deal's parole application was not
an abuse of discretion. The board based its decision on the
statutory standard of rehabilitation and compatibility with the
welfare of society, and its consideration of the distinctive
attributes of youth was not merely cursory. Accordingly, the
Superior Court judge's order granting the board's motion for
judgment on the pleadings and denying Deal's motion for the same
is affirmed.
So ordered.
GANTS, C.J. (concurring, with whom Lenk, J., joins). In
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 671 (2013) (Diatchenko I), we held that life imprisonment
for a juvenile, even when convicted of murder, is cruel or
unusual punishment in violation of art. 26 of the Massachusetts
Declaration of Rights unless the juvenile has the possibility of
being released on parole. We also held that, when the juvenile
becomes eligible for parole, the parole board (board) must
provide the juvenile with a "meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation." Id.
at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). And
in Diatchenko v. District Attorney for the Suffolk Dist., 471
Mass. 12, 24-29 (2015) (Diatchenko II), we declared that a
"meaningful opportunity to obtain release" requires not only a
right to the assistance of counsel and a right to have access to
the assistance of expert witnesses, but also a right of judicial
review "to ensure that the board exercises its discretionary
authority to make a parole decision for a juvenile homicide
offender in a constitutional manner."
In Diatchenko II, supra at 30, we also articulated what it
means for the board to exercise its discretionary authority in a
constitutional manner. Looking to the reasoning in Miller v.
Alabama, 567 U.S. 460, 471 (2012), we stated that the board must
consider that juveniles have "diminished culpability" for the
2
murder they committed because of the "distinctive attributes" of
youth: a "lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk-taking; vulnerability to negative influences and
outside pressures, including from their family and
peers; . . . limited contro[l] over their own
environment[;] . . . [and lack of] the ability to extricate
themselves from horrific, crime-producing settings" (quotations
and citation omitted). Diatchenko II, supra. The board must
also consider that juveniles have the "unique capacity to change
as they grow older" and therefore "greater prospects for reform"
(citations omitted). Id. Unless the board considers these
distinctive attributes of youth, as well as the consequences of
aging into adulthood, the board denies the juvenile "a real
chance to demonstrate maturity and rehabilitation." Id.
The purpose of judicial review is to ensure that "the board
has carried out its responsibility to take into account the
attributes or factors just described in making its decision."
Id. Recognizing that "the decision whether to grant parole to a
particular juvenile homicide offender is a discretionary
determination by the board," we apply the abuse of discretion
standard. Id. at 31. "[A] denial of a parole application by
the board will constitute an abuse of discretion only if the
3
board essentially failed to take these factors into account, or
did so in a cursory way." Id.
We have yet to articulate how we can ensure that the board
acted in a constitutional manner by providing a juvenile
homicide offender a "meaningful opportunity to obtain release"
after seriously considering the "distinctive attributes" of
youth. I conclude that the only way we can ensure that the
board did not abuse its discretion is to require the board to
show through its findings that it gave meaningful individualized
consideration to these attributes of youth in reaching its
decision. I also conclude that the board's findings here fail
to meet that requirement for three reasons.
First, the board's decision consists of three sections: a
statement of the facts of the underlying murder case, a
statement describing the evidence presented at the parole
hearing, and the "decision." As shown by the appendix to the
amicus brief submitted by the Massachusetts Association of
Criminal Defense Lawyers and the youth advocacy division of the
Committee for Public Counsel Services, apart from two sentences
specific to Deal, the "decision" is boilerplate language used in
virtually all forty-five of the juvenile homicide offender
parole decisions it reviewed, with only the name of the juvenile
4
changed.1 Essentially, the board simply identifies the so-called
Miller factors and declares in all these cases that it
1 The "decision" section is reprinted below, with the
boilerplate language highlighted in bold:
"The Board is of the opinion that Mr. Deal has not
demonstrated a level of rehabilitative progress that would
make his release compatible with the welfare of society.
The Board recommends that Mr. Deal partake in more
programming, such as Criminal Thinking and Restorative
Justice. The Board believes that the version of the
offense given by Mr. Deal is not plausible. A longer
period of positive institutional adjustment and programming
would be beneficial to Mr. Deal's rehabilitation. The
Board considered all factors relevant to the Diatchenko
decision in making this determination.
"The applicable standard used by the Board to assess a
candidate for parole is: 'Parole Board Members shall only
grant a parole permit if they are of the opinion that there
is a reasonable probability that, if such offender is
released, the offender will live and remain at liberty
without violating the law and that release is not
incompatible with the welfare of society.' 120 C.M.R.
300.04. In the context of an offender convicted of first
or second degree murder, who was a juvenile at the time the
offense was committed, the Board takes into consideration
the attributes of youth that distinguish juvenile homicide
offenders from similarly situated adult offenders.
Consideration of these factors ensures that the parole
candidate, who was a juvenile at the time they committed
murder, has 'a real chance to demonstrate maturity and
rehabilitation.' Diatchenko v. District Attorney for the
Suffolk District, 471 Mass. 12, 30 (2015); See also
Commonwealth v. Okoro, 471 Mass. 51 (2015).
"The factors considered by the Board include the offender's
'lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and
heedless risk taking; vulnerability to negative influences
and outside pressures, including from their family and
peers; limited control over their own environment; lack of
the ability to extricate themselves from horrific, crime-
producing settings; and unique capacity to change as they
5
considered them, without demonstrating in any way how it
considered them. I do not suggest that the board must provide a
detailed analysis of each Miller factor, but it must do more
than simply declare in a perfunctory manner that it considered
them. There must be some meaningful individualized analysis,
supported by evidence in the parole record, as to whether the
Miller factors contributed to cause the parole applicant's
participation in the murder, and as to whether his or her
conduct while incarcerated has demonstrated that he or she has
outgrown these attributes of youth through maturity and
rehabilitation.
Second, under G. L. c. 127, § 130, a parole permit "shall
be granted only if the board is of the opinion, after
consideration of a risk and needs assessment, that there is a
reasonable probability that, if the prisoner is released with
appropriate conditions and community supervision, the prisoner
grow older.' Id. The Board has also considered a risk and
needs assessment, and whether risk reduction programs could
effectively minimize Mr. Deal's risk of recidivism. After
applying this standard to the circumstances of Mr. Deal's
case, the Board is of the opinion that Mr. Deal is not yet
rehabilitated, and his release is not compatible with the
welfare of society. Mr. Deal, therefore, does not merit
parole at this time.
"Mr. Deal's next appearance before the Board will take
place in four years from the date of this hearing. During
the interim, the Board encourages Mr. Deal to continue
working towards his full rehabilitation."
6
will live and remain at liberty without violating the law and
that release is not incompatible with the welfare of society."
Section 130, therefore, requires the board to make two
determinations: whether "the prisoner will live and remain at
liberty without violating the law," and whether "release is not
incompatible with the welfare of society." Id. The board
effectively conflates the two by finding that Deal's
"rehabilitative progress," which appears to be its proxy term
for the risk of recidivism, falls short of what would be needed
to make his release "compatible with the welfare of society." I
agree with the board that the prisoner's risk of recidivism is
the determinative factor. See, e.g., Crowell v. Massachusetts
Parole Bd., 477 Mass. 106, 113 (2017) ("the board must be able
to consider whether the symptoms of a prisoner's disability mean
that he or she has a heightened propensity to commit crime while
released on parole"); Diatchenko II, 471 Mass. at 23 ("The
question the board must answer for each inmate seeking parole
[is], namely, whether he or she is likely to reoffend . . .");
Jimenez v. Conrad, 678 F.3d 44, 46 (1st Cir. 2012) (no matter
how good applicant's prison conduct may have been, parole shall
be granted "only if" board finds that there is "reasonable
probability" that prisoner will not violate law if granted
release).
7
But, as the court notes, ante at , the board's
determination regarding Deal's risk of recidivism appears to
rest primarily on its finding that Deal's description of his
offense "is not plausible." The board, however, fails to
identify what it finds implausible about Deal's description.
Deal accepted responsibility for the murder, expressed remorse
for his role in it, and admitted that the victim's cooperation
with the police, which resulted in Deal's arrest for drug and
firearms possession, created substantial friction in what had
once been a close relationship with a neighbor he had thought of
as an older brother. He also said that this was not the first
time that he had visited the victim's house after learning that
the victim had provided information to the police about him.
If the board believed that, despite his denials, Deal
entered the victim's home on the day of the killing planning to
kill him because of the victim's cooperation with the police, or
that he stabbed the victim with the intent to kill, it should
say so and identify the evidence in the parole record that
supports such a finding. It should be noted that Deal was
charged with murder in the first degree on the theory of
premeditation but found guilty only of murder in the second
degree. As a result, we can infer that the jury, after hearing
the evidence at trial, had a reasonable doubt whether Deal acted
with premeditation or with an intent to kill, or both. Where,
8
as here, the jury did not convict the parole applicant of the
crime charged, the board should act with caution and care before
it concludes that the applicant was nonetheless guilty of the
crime charged.
Moreover, even if the board had an adequate factual basis
to conclude that the killing occurred differently from what was
described by Deal, that alone cannot suffice to establish that
Deal poses a significant risk of recidivism. Here, Deal
accepted his guilt; the board only challenges his version of
events. However, even if he had denied his guilt, there is
little, if any, empirical support for a link between acceptance
of guilt and a decreased likelihood of recidivism. See, e.g.,
Hanson & Morton-Bourgon, The Characteristics of Persistent
Sexual Offenders: A Meta-Analysis of Recidivism Studies, 73 J.
Consulting & Clinical Psych. 1154, 1159 (2005) (meta-analysis of
sex offender recidivism studies concluding that denial of guilt
"had little or no relationship with recidivism"); Harkins,
Howard, Barnett, Wakeling, & Miles, Relationships Between
Denial, Risk, and Recidivism in Sexual Offenders, 44 Archives
Sexual Behav. 157, 157 (2015) ("the presumption that denial
represents increased risk, which is common in much of the
decision making surrounding sex offenders, should be
reconsidered").
9
Even before these studies, we recognized the limited role
that the failure to acknowledge guilt should play in a parole
decision: "The absence of such an acknowledgment [of guilt]
provides no weight on the scale in favor of parole, and thus, in
a sense, has a negative effect on a prisoner's parole
application." Quegan v. Massachusetts Parole Bd., 423 Mass.
834, 837 (1996). And although we did not reach the question, we
recognized that due process might forbid "denial of parole
solely because a prisoner, who was otherwise fully qualified for
release on parole, did not acknowledge his guilt." Id. Indeed,
if a prisoner's failure to acknowledge guilt alone were to
suffice to support a denial of parole, a prisoner wrongfully
convicted of murder as a juvenile might never be paroled unless
he or she falsely accepted responsibility for a crime he or she
never committed. See Medwed, The Innocent Prisoner's Dilemma:
Consequences of Failing to Admit Guilt at Parole Hearings, 93
Iowa L. Rev. 491, 529 (2008) ("Proclaiming innocence at a parole
hearing typically harms one's chances for release . . . while
'admitting' guilt can serve as a mitigating factor").
Third, § 130 requires the board to consider "a risk and
needs assessment" in evaluating the prisoner's risk of
recidivism. G. L. c. 127, § 130. The parole record reflects
two risk assessments. The first is the Department of
Correction's own objective risk assessment, which assesses
10
Deal's risk of recidivism as low, and also assesses his criminal
thinking, his anger, and his substance abuse as low. The second
was conducted by Deal's expert witness, Dr. Ira Packer, who
administered several tests, most importantly, the HCR-20 3d ed.
(Historical, Clinical, Risk Management) Scale, which Packer
described as "the most commonly used instrument for assessing
violence risk" and which placed Deal at "low risk" for violent
recidivism. Having conducted these tests, as well as a clinical
interview, Packer reached the opinion that Deal "would be at low
risk for recidivism if paroled."
At the parole hearing, parole member Dr. Charlene Bonner
declared that she was "in forensics," and "in the world I'm
in . . . [Packer is] regarded as . . . one of the best." Bonner
also noted that Packer provided risk assessments that were
"objective" and were "not an opinion," which were "very
favorable" to Deal. She also noted that Packer "did something
that a lot of evaluators won't do," and provided his opinion
that Deal "would be at low risk to reoffend."
The board in its decision declared that it had "considered
a risk and needs assessment," and considered Packer's testimony
and findings. Yet, nowhere in its decision did it address why
it rejected the risk assessment by the Department of Correction
or the HCR-20 test, or Packer's expert opinion regarding the
risk of recidivism. The board is not required to accept the low
11
recidivism risk determined by a risk assessment or opined by a
prisoner's expert. See Doe, Sex Offender Registry Bd. No. 10800
v. Sex Offender Registry Bd., 459 Mass. 603, 637 (2011) ("The
opinion of a witness . . . need not be accepted by the hearing
examiner . . ."). But where it effectively rejects that
estimation of risk by denying parole, it should explain why and
identify the evidence it relied on to find a higher estimation
of risk. See Doe, Sex Offender Registry Bd. No. 23656 v. Sex
Offender Registry Bd., 483 Mass. 131, 136 (2019), quoting Police
Dep't of Boston v. Kavaleski, 463 Mass. 680, 694 (2012) ("an
agency must 'explain[] on the record its reasons for rejecting
portions of [an expert's] testimony'"). See also Langlitz v.
Board of Registration of Chiropractors, 396 Mass. 374, 381
(1985), citing Arthurs v. Board of Registration in Med., 383
Mass. 299, 310 (1981) ("an agency or board may not sit as a
silent witness where expert testimony is required to establish
an evidentiary basis for its conclusions"); New Boston Garden
Corp. v. Assessors of Boston, 383 Mass. 456, 470 (1981) ("The
board may not reject [the] testimony without a basis for such
rejection in the record"); Robinson v. Contributory Retirement
Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985) ("where . . .
there is uncontradicted testimony concerning a subject which is
beyond the common knowledge and experience of the finder of
fact, that testimony may not be rejected without a basis for
12
such rejection in the record"). Otherwise, without such
meaningful individualized analysis, a court cannot ensure that
the board has truly considered risk assessments in reaching a
parole decision.
I concur in the court's judgment only because, at the time
of this parole decision, we had yet to articulate what the board
must do to demonstrate through its findings that it gave
meaningful individualized consideration to the Miller factors
and the likelihood that age and maturity will diminish these
attributes of youth and reduce the risk of recidivism. In the
absence of this guidance, where the board declared that it
considered all that it should consider, I cannot say that it
abused its discretion in denying parole. And I recognize that
Deal is entitled to a new parole hearing in December 2020 where,
if his parole were denied, we would expect meaningful
individualized findings that are far less conclusory and
perfunctory than here.
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Affirmed.
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07-29-2022
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915 So. 2d 580 (2005)
Alan Boyd PRESTWOOD
v.
STATE of Alabama.
CR-04-0366.
Court of Criminal Appeals of Alabama.
February 25, 2005.
Rehearing Denied April 8, 2005.
Certiorari Denied June 10, 2005.
*581 Alan Boyd Prestwood, pro se.
Troy King, atty. gen., and Marc A. Starrett, asst. atty. gen., for appellee.
Alabama Supreme Court 1041077.
BASCHAB, Judge.
The appellant, Alan Boyd Prestwood, alleges that he has convictions for theft of property and second-degree escape. He further alleges that the trial court sentenced him, as a habitual offender, to serve concurrent terms of twenty years in prison on each conviction. See § 13A-5-9, Ala.Code 1975. On October 20, 2004, the appellant filed a "Petition for Reconsideration Pursuant to § 13A-5-9.1, Code of Alabama (1975)," seeking reconsideration of his sentences. Citing Kirby v. State, 899 So. 2d 968 (Ala.2004), the circuit court treated the petition as a motion pursuant to § 13A-5-9.1, Ala.Code 1975; stated that the ruling in Kirby applied only to defendants who are serving sentences of imprisonment for life without the possibility of parole; found that the appellant was not entitled to reconsideration of his sentences; and denied the petition. The appellant filed a "Motion to Alter, Amend or Vacate Judgment," arguing that the circuit court had misapprehended § 13A-5-9.1, Ala.Code 1975. Quoting Kirby, the circuit *582 court found that the appellant was not entitled to reconsideration of his sentences and denied the motion. This appeal followed.
I.
The appellant argues that the circuit court did not have jurisdiction to rule on his petition because it did not allow him to proceed in forma pauperis or require him to pay a filing fee. The State agrees that, if the appellant's petition is considered to be a motion pursuant to Rule 32, Ala. R.Crim. P., then the circuit court did not have jurisdiction to rule on the petition. However, in Burl v. State, 908 So. 2d 314, 315 (Ala.Crim.App.2004), we explained:
"The Court's holding in Kirby implicitly overruled this Court's holding in Robinson v. State, 837 So. 2d 882 (Ala.Crim.App.2002) (Shaw, J., concurring in the result), that Rule 32, Ala. R.Crim. P., is the proper avenue for seeking implementation of § 13A-5-9.1 ..."
Therefore, the appellant's petition was not a motion pursuant to Rule 32, Ala. R.Crim. P. Moreover, in Kirby, the Alabama Supreme Court stated:
"By requiring in § 13A-5-9.1 that the provisions of § 13A-5-9 are to be applied retroactively, however, the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced."
899 So.2d at 971 (emphasis added). Because a § 13A-5-9.1 motion involves reopening an existing case, a circuit court is not required to grant a petitioner indigent status or to require a petitioner to pay a filing fee before it can obtain jurisdiction over the case. Therefore, the appellant's and the State's arguments in this regard are without merit, and the circuit court had jurisdiction to rule on the appellant's petition.
II.
The State argues that the circuit court's denial of the appellant's petition for reconsideration of his sentences is not an appealable order. However, in Kirby, when it reversed this court's order dismissing Kirby's appeal, the Alabama Supreme Court implied that such orders are appealable. Further, in Alabama Department of Mental Health & Mental Retardation v. State, 873 So. 2d 1176, 1177-78 (Ala.Crim.App.2003), we noted:
"There is no right to appeal granted in the Alabama Constitution of 1901. This Court's appellate jurisdiction is prescribed in § 12-3-9, Ala.Code 1975, which states:
"`The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases.'
"Amend. No. 328, § 6.03(a), Ala. Const. 1901, also states that this Court shall `exercise' its appellate jurisdiction `under such terms and conditions as shall be provided by law and by rules of the Supreme Court.'
"As we recently stated in Dixon v. City of Mobile, 859 So. 2d 462, 463 (Ala.Crim.App.2003):
"`"The right of appeal is wholly statutory and is authorized in criminal cases from a judgment of conviction." McCray v. State, 46 Ala.App. 588, 589, 246 So. 2d 475, 476 (Ala.Crim.App.1971). "Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt." Thornton v. State, 390 So. 2d 1093, 1096 (Ala.Crim.App. *583 1980). "An appeal cannot be taken from an order subsequent to the judgment of conviction unless authorized by statute." Harris v. State, 44 Ala.App. 632, 632, 218 So. 2d 285, 286 (1969).'"
(Footnote omitted.) Once a conviction has been obtained and a corresponding sentence has been imposed, the convicted defendant may appeal the conviction and sentence to this court. As we explain in Part I of this opinion, a § 13A-5-9.1 motion involves reopening an existing case, in which there has been a conviction and sentence, for possible resentencing. Logically, then, any order either granting or denying a request for reconsideration of a sentence would be appealable.
Although we hold that such orders are appealable, we further hold that this court's review of such orders will be limited. As long as the circuit court has jurisdiction to rule on a § 13A-5-9.1 motion; reviews any such motion that is properly filed before it by an inmate who is eligible for reconsideration; and, if it chooses to resentence a petitioner, imposes a sentence that is authorized by §§ 13A-5-9(c)(2) or 13A-5-9(c)(3), Ala.Code 1975, we will not second-guess that court's discretionary decision. Compare Rheuark v. State, 625 So. 2d 1206 (Ala.Crim.App.1993) (holding that the initial decision to grant or deny probation is entirely within the discretion of the trial court and is not reviewable on appeal); C.D.C. v. State, 821 So. 2d 1021, 1025 (Ala.Crim.App.2001) (holding that the decision to refer a defendant to drug court is solely within the prosecutor's discretion and is not subject to appellate review). Accordingly, the State's argument is without merit.
III.
Finally, the appellant argues that the circuit court improperly concluded that he was not eligible for reconsideration of his sentences pursuant to § 13A-5-9.1, Ala.Code 1975. Specifically, he appears to contend that § 13A-5-9.1, Ala.Code 1975, applies to all nonviolent convicted defendants who were sentenced as habitual offenders. In response, the State argues that the circuit court properly denied the appellant's request because he does not fall within the categories of inmates who are eligible for reconsideration, as set forth by the Alabama Supreme Court in Kirby.
Before May 25, 2000, § 13A-5-9, Ala.Code 1975, provided:
"(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:
"(1) On conviction of a Class C felony, he must be punished for a Class B felony;
"(2) On conviction of a Class B felony, he must be punished for a Class A felony;
"(3) On conviction of a Class A felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years.
"(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:
"(1) On conviction of a Class C felony, he must be punished for a Class A felony;
"(2) On conviction of a Class B felony, he must be punished by imprisonment for life or for any term of not more than 99 years by not less than 15 years;
*584 "(3) On conviction of a Class A felony, he must be punished by imprisonment for life or for any term not less than 99 years.
"(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:
"(1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years;
"(2) On conviction of a Class B felony, he must be punished for life in the penitentiary;
"(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole."
(Emphasis added.) Effective May 25, 2000, § 13A-5-9, Ala.Code 1975, provided:
"(a) In all cases when it is shown that a criminal defendant has been previously convicted of a felony and after the conviction has committed another felony, he or she must be punished as follows:
"(1) On conviction of a Class C felony, he or she must be punished for a Class B felony.
"(2) On conviction of a Class B felony, he or she must be punished for a Class A felony.
"(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.
"(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished as follows:
"(1) On conviction of a Class C felony, he or she must be punished for a Class A felony.
"(2) On conviction of a Class B felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years by not less than 15 years.
"(3) On conviction of a Class A felony, he or she must be punished by imprisonment for life or for any term of not less than 99 years.
"(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
"(1) On conviction of a Class C felony, he or she must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.
"(2) On conviction of a Class B felony, he or she must be punished by imprisonment for life or any term of not less than 20 years.
"(3) On conviction of a Class A felony, where the defendant has no prior convictions for any Class A felony, he or she must be punished by imprisonment for life or life without the possibility of parole, in the discretion of the trial court.
"(4) On conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony, he or she must be punished by imprisonment for life without the possibility of parole."
(Emphasis added.) When it amended § 13A-5-9, Ala.Code 1975, the Legislature made substantive changes only to §§ 13A-5-9(c)(2) and 13A-5-9(c)(3), Ala.Code 1975. As the Alabama Supreme Court explained in Kirby:
*585 "In 2001, the Legislature passed Act No. 2001-977 (`the Act') in an attempt to make the 2000 amendments to § 13A-5-9 retroactive. The stated purpose of the Act was `to provide further for eligibility for parole consideration of non-violent offenders.' The Act, now codified as § 13A-5-9.1, states in its entirety:
"`The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.'
"....
"... Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders."
899 So.2d at 970-74. Therefore, the only inmates who would be eligible for reconsideration of their sentence(s), in the discretion of the circuit court, are (1) nonviolent offenders with three prior felony convictions who were subsequently convicted of a Class B felony and sentenced to life in prison pursuant to § 13A-5-9(c)(2), Ala.Code 1975, and (2) nonviolent offenders with three prior felony convictions, none of which was for a Class A felony, who were subsequently convicted of a Class A felony and sentenced to imprisonment for life without the possibility of parole pursuant to § 13A-5-9(c)(3), Ala.Code 1975.
In its order denying the appellant's "Motion to Alter, Amend or Vacate," the circuit court found:
"Petitioner is serving two concurrent twenty-year sentences for the offenses of attempted theft of property in the first degree (a Class C felony)[1] and escape in the second degree (a Class C felony). The petitioner was sentenced as a habitual offender.
"In [Kirby v. State, 899 So. 2d 968 (Ala.2004)], the Alabama Supreme Court stated that `it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced *586 to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony.' (Emphasis supplied.) Petitioner does not fall into either of these narrowly defined classes and is, therefore, not subject to the application of Section 13A-5-9.1."
(C.R. 16-17.) We agree with the circuit court's interpretation of the Alabama Supreme Court's holding in Kirby and its conclusion that the appellant was not eligible for reconsideration of his sentences. Therefore, it properly denied the appellant's petition for reconsideration of his sentences.
For the above-stated reasons, we affirm the circuit court's judgment.
AFFIRMED.
McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., concurs in the result.
NOTES
[1] We note that the appellant alleges only that he pled guilty to "theft of property," that he was sentenced as a habitual offender, and that it does not appear that he appealed his convictions and sentences. (C.R. 3.) As is the situation with Rule 32 petitions, it would be helpful if the petitioner, the State, the circuit clerk, and/or the circuit court would include in the record as much information as possible concerning the original conviction(s) and sentences(s) and prior felony convictions of inmates requesting reconsideration of their sentences pursuant to § 13A-5-9.1, Ala.Code 1975.
Further, even assuming that the appellant pled guilty to first-degree theft of property, which is a Class B felony, he still would not be entitled to relief because his sentence was twenty years in prison rather than life imprisonment.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-951
Filed: 7 April 2020
Mecklenburg County, No. 16CRS238807
STATE OF NORTH CAROLINA
v.
JOSHUA KOIYAN, Defendant.
Appeal by Defendant from judgment entered 3 May 2019 by Judge Donnie
Hoover in Mecklenburg County Superior Court. Heard in the Court of Appeals 18
March 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Tien Cheng,
for State-Appellee.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
Katz, for Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from judgment entered upon a jury verdict of guilty of
robbery with a dangerous weapon. Defendant argues that the trial court plainly erred
by admitting expert testimony because the testimony did not demonstrate that the
expert applied accepted methods and procedures reliably to the facts of the case. We
discern no plain error.
I. Background
STATE V. KOIYAN
Opinion of the Court
On 24 October 2016, a grand jury indicted Defendant Joshua Koiyan for
robbery with a dangerous weapon, in violation of N.C. Gen. Stat. § 14-87. On 29 April
2019, Defendant’s case came on for trial. The evidence at trial tended to show: On
12 October 2016, two employees were working at a Boost Mobile store in Charlotte,
North Carolina. The employees were Ana Torres and Guadalupe Morin, both of
whom worked the floor of the store as sales representatives. That afternoon, both
observed a young man—later identified as Defendant—enter the Boost Mobile store;
Defendant wandered the store for approximately 45 minutes and repeatedly asked
the employees whether the store sold iPhones. Torres noticed that Defendant seemed
nervous and she became suspicious that something was going to happen; in light of
her suspicion, Torres took all of the money out of her cash register except for the
dollar bills and hid the money. Torres also took pictures of Defendant with her
personal cell phone while he spoke with Morin.
Approximately 45 minutes after Defendant entered the store, and after all
other customers had exited, Defendant pulled out a silver gun and jumped over the
counter. Defendant ordered Morin to open the cash registers, and then told both
women to go to the corner while he put the money into a plastic bag. Defendant then
took Torres’ purse, which contained two of her cell phones, her passport, her jewelry,
and her wallet, along with several display phones. Defendant told the women, “I’m
not going to hurt you all today because you all are being good,” jumped back over the
-2-
STATE V. KOIYAN
Opinion of the Court
counter, and ran out of the store. Torres followed Defendant out of the store but lost
sight of him, and then called 911.
Charlotte Mecklenburg Police Officers Kelly Zagar and David Batson arrived
at the store within four to five minutes. Torres provided them with a description of
Defendant, explaining that he was: a black male; approximately 5’7” tall; skinny
build; wore a black visor, black hoody, and jeans; and looked to be about 20 years old.
Zagar secured the crime scene for evidence and called the Charlotte Mecklenburg
Crime Scene Search. Keywana Darden, an investigator with the Crime Scene Search
team, collected, documented, and preserved all of the evidence found at the store. The
evidence included surveillance footage taken from cameras located inside the Boost
Mobile store and photographs of the scene. Darden also dusted areas throughout the
store and obtained latent fingerprints from the scene. Torres also gave the officers
the photographs she took of Defendant while he was in the store. Those photographs
were later obtained by the news media and broadcasted to the public.
On 14 October 2016, two days after the robbery, Defendant was apprehended
and arrested by the Charlotte Mecklenburg police. Torres independently viewed
Defendant’s mugshot online but did not participate in a photographic or in-person
lineup.
During the trial, Torres testified for the State and identified Defendant as
being the individual who committed the armed robbery of the Boost Mobile store.
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STATE V. KOIYAN
Opinion of the Court
Prior to trial, Defendant filed a motion to suppress Torres’ in-court identification,
arguing that Torres could not make an identification of him until just one week before
trial. Defendant argued that Torres admitted to viewing his mugshot prior to the
trial and thus could not independently identify him as the perpetrator. The trial
court denied Defendant’s motion to suppress, and Torres identified Defendant at trial
in the presence of the jury.
Todd Roberts, a latent fingerprint examiner with the State of North Carolina,
testified as an expert witness at trial. Roberts testified to his education, training in
the field of latent fingerprint analysis, and his conclusion that the latent fingerprints
found at the Boost Mobile store were a match to Defendant’s fingerprints.
On 3 May 2019, the jury found Defendant guilty of robbery with a firearm. The
trial court sentenced Defendant to 45-66 months’ imprisonment. Following
judgment, Defendant gave oral notice of appeal.
II. Discussion
Defendant’s sole argument on appeal is that the trial court plainly erred by
admitting Roberts’ expert opinion that Defendant’s fingerprints matched the latent
fingerprints left at the Boost Mobile store because Roberts’ testimony did not
demonstrate that he applied accepted methods and procedures reliably to the facts of
this case.
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STATE V. KOIYAN
Opinion of the Court
Defendant acknowledges his failure to object to Roberts’ testimony at trial but
specifically argues plain error on appeal. “For error to constitute plain error, a
defendant must demonstrate that a fundamental error occurred at trial.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). In order
to show fundamental error, a defendant must establish prejudice—that the error “had
a probable impact on the jury’s finding that the defendant was guilty.” Lawrence,
365 N.C. at 518, 723 S.E.2d at 334 (quotation marks and citation omitted).
Accordingly, we review whether the trial court erred in admitting Roberts’ testimony
for plain error.
It is the trial court’s role to decide preliminary questions concerning the
admissibility of expert testimony. N.C. Gen. Stat. § 8C-1, Rule 104(a) (2019). Rule
702 of the North Carolina Rules of Evidence governs testimony by experts. Pertinent
to Defendant’s argument, Rule 702 provides as follows:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable
principles and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
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STATE V. KOIYAN
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N.C. Gen. Stat. § 8C-1, Rule 702(a) (2019). Prongs (a)(1), (2), and (3) together
constitute the reliability inquiry discussed in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S.
136 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). State v.
McGrady, 368 N.C. 880, 890, 787 S.E.2d 1, 9 (2016). “The primary focus of the inquiry
is on the reliability of the witness’s principles and methodology, not on the conclusions
that they generate[.]” Id. (internal quotation marks and internal citations omitted).
However, “conclusions and methodology are not entirely distinct from one another[;]”
thus, when the “analytical gap between the data and the opinion proffered” is too
great, the trial court is not required to admit the expert opinion evidence “that is
connected to existing data only by the ipse dixit of the expert.” Id. (internal quotation
marks and citation omitted).
In State v. McPhaul, 256 N.C. App. 303, 314, 808 S.E.2d 294, 304 (2017), this
Court recently examined expert testimony regarding latent fingerprint analysis
under the three-prong reliability test set forth in McGrady. In McPhaul, the State’s
expert witness testified that she had worked as a print examiner for more than nearly
a decade; explained that each fingerprint contains distinguishing characteristics
called “minutia”; and testified that it was possible to identify the source of a latent
print by comparing the print to an individual’s “known impressions” and evaluating
the “minutia points.” Id. She further explained that she uses an optic camera to
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STATE V. KOIYAN
Opinion of the Court
compare the minutia points and examine the print pattern type, and she stated that
the procedures she followed were commonly used in the field of fingerprint
identification. Id. at 315, 808 S.E.2d at 304.
However, when the expert testified to her ultimate conclusions, the expert was
“unable to establish that she reliably applied the procedure to the facts of this case[.]”
Id. The expert concluded that the latent print matched the defendant’s fingerprints,
and stated that she based that conclusion on her “training and experience.” Id. The
State asked the expert whether her other conclusions were based upon “the same
procedure” she described to the jury, and the expert stated that was correct. Id. at
316, 808 S.E.2d at 305. This Court determined that the expert’s testimony was
insufficient and failed to satisfy Rule 702’s three-pronged reliability test because the
testimony failed to show that the expert “reliably applied that methodology to the
facts of the case” and failed to explain “how she arrived at her actual conclusions in
this case.” Id. As the expert’s testimony “implicitly asked the jury to accept her expert
opinion that the prints matched[,]” this Court determined the testimony insufficient
and held that the trial court erred by admitting the testimony. Id.
We determine that the testimony here is similar to the testimony in McPhaul
and hold that Roberts’ testimony failed to demonstrate how he arrived at his
conclusion that Defendant’s fingerprints matched the fingerprints left at the Boost
Mobile store. On direct examination, Roberts first explained that he was a latent
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STATE V. KOIYAN
Opinion of the Court
fingerprint examiner, had worked in the field for more than 14 years, and that his
primary responsibilities were to “evaluate, compare, and attempt to identify latent
[fingerprint] lifts collected by a crime scene investigator . . . to its individual[.]”
Roberts has degrees in “correctional and juvenile services and criminal justice,” two
years of in-house training with the State Crime Lab, and has been trained in “logical
latent analysis, advanced palm print comparison techniques, forensic ridgeology, and
fingerprint comparisons.” At the time of trial in this case, Roberts had testified as an
expert witness in latent fingerprint identification more than 75 times in state and
federal courts and estimated that he had identified and analyzed “tens of thousands”
of fingerprints.
Roberts explained that he examines fingerprints by looking for three levels of
detail, with “level 1 being the basic just ridge flow. The level 2 detail is what we use
for identification, that is, consists of ending ridges and bifurcations and their spatial
relationship to each other. And then the level 3 [] detail is more on the microscopic
level, but it’s actually the structure of the ridge. It’s the pores located within the
ridge[.]” Roberts explained that he takes the latent fingerprints, puts it beside an
inked fingerprint, magnifies the prints, and examines the likenesses or
dissimilarities. Roberts testified that an example of “level 1 detail . . . is a right loop,
meaning that the ridge is just coming from the right side of the finger. They loop
around the core and then back out the right side.” “[L]evel 2 detail . . . , they’re located
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STATE V. KOIYAN
Opinion of the Court
within the print . . . . The ending ridges and the bifurcations is what makes that print
unique. There are places that you can see a bifurcation come over to another
bifurcation, creating an enclosure.” “The level 3 detail . . . includes the pores within
the print. . . . [T]hose holes that are in the ridge are pores, they’re actually in the top
of ridge, and that’s what secretes sweat, allows the fingerprint to print. That is the
level 3 detail.” This testimony sufficiently explained Roberts’ qualifications, training,
and expertise, and showed that Roberts uses reliable principles and methods.
However, Roberts testified to his conclusions later on direct examination:
[State]: The latent-print cards that were in State’s Exhibit
6, did you compare those to [Defendant’s prints] that were
State’s Exhibit 11?
[Roberts]: Yes, ma’am.
[State]: Did any of those latent prints match [Defendant’s]
prints?
[Roberts]: They did.
[State]: Which ones?
[Roberts]: 2-4-2, 2-4-3, 2-4-4, and then 2-11-1. All were
identified to [Defendant].
Pursuant to Rule 702, this testimony is insufficient as it fails to show that
Roberts applied accepted methods and procedures reliably to the facts of this case in
order to reach his conclusion that the fingerprints were a match. While Roberts
testified earlier that he generally examines prints for “three levels of detail” and looks
for “ridges and bifurcations and their spatial relationship” on each print, Roberts
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STATE V. KOIYAN
Opinion of the Court
failed to provide any such detail when testifying as to how he arrived at his
conclusions in this case. Moreover, he never explained what—if any—characteristics
from the latent fingerprints matched with Defendant’s fingerprints. Instead, when
asked whether any of the prints matched, Roberts merely stated that they did and
provided no further explanation for his conclusions. Like in McPhaul, Roberts’
testimony had the impermissible effect of “implicitly ask[ing] the jury to accept [his]
expert opinion that the prints matched.” McPhaul, 256 N.C. App at 316, 808 S.E.2d
at 305. As Roberts failed to demonstrate that he “applied the principles and methods
reliably to the facts of the case,” as required by Rule 702(a)(3), we determine that the
trial court erred by admitting the testimony.
However, under plain error review, we do not conclude that the trial court
plainly erred by admitting the testimony. Defendant cannot show that he was
prejudiced as a result of this error because of the otherwise overwhelming evidence
that he was the perpetrator of the robbery.
Torres provided two photographs of Defendant, which she took with her cell
phone while Defendant was in the Boost Mobile store, and the State entered the
photographs into evidence and published them to the jury. Torres also provided
testimony that Defendant was the individual who robbed her and the Boost Mobile
store. The State entered into evidence the surveillance video footage taken from the
store, played the video for the jury, and Torres identified Defendant when he
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STATE V. KOIYAN
Opinion of the Court
appeared on screen. Torres further identified Defendant by pointing him out in the
courtroom as the perpetrator of the robbery, and stated that she was “a hundred
percent” certain that Defendant was the person who robbed her. Torres noted that
she spent nearly 45 minutes with Defendant while he robbed the Boost Mobile store,
and that she would not “forget his face.”
Altogether, Torres’ testimony and in-court identification of Defendant, along
with the photographs of Defendant and surveillance video footage showing Defendant
rob the Boost Mobile store, provided sufficient evidence that Defendant was the
perpetrator of the robbery. In light of this overwhelming evidence, we are not
persuaded by Defendant’s argument that the trial court’s error was so great as to
have had “a probable impact on the jury’s finding that the defendant was guilty.”
Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 (citation omitted). As such, we conclude
that the trial court’s admission of Roberts’ expert testimony was not plain error.
NO PLAIN ERROR.
Judges DILLON and BROOK concur.
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IN BANC.
This is an action to recover damages for injuries to property owned by plaintiff consisting of cattle, hogs, chickens, hay, oats, fences, etc., which, on November 21, 1921, were located on land owned and occupied by the plaintiff along the border of the Siletz River. *Page 631
The defendant operated a large sawmill near the headwaters of the river. In connection therewith defendant had constructed and used a dam for the purpose of forming a large pond for the handling of its logs. Said pond included an area between five and six hundred acres. The dam was 42 feet in height, 200 feet in length and was equipped with a flood-gate 18 feet in width and of the depth of 18 to 20 feet.
On Sunday, November 20, 1921, while the river was at flood stage and still rising, and while the pond was overflowing the dam for at least a portion of the way, the defendant opened the gate of the dam and permitted the water in the pond to flow down the river thereby, according to plaintiff's contention, overflowing the banks of the stream and the lands occupied by plaintiff some 40 miles below the dam and washing and damaging plaintiff's property.
Trial before a jury resulted in a verdict and judgment against the defendant from which this appeal is taken. Further facts will appear in the opinion.
AFFIRMED.
While the testimony is in some respects indefinite and others contradictory, and while much space is occupied with presenting the law in this case, there is really but one question for decision, *Page 632
and that is, whether there was any substantial evidence to justify the verdict in this case.
The following principles of law may be taken as well established. First, as applicable to this case, that the defendant had the right to erect and maintain its dam at the place where it was constructed and to impound the water therein to the full height of the dam. Second, that it had, in case of a flood or unusual high water, the right to permit flood waters to pass through or over the dam in such quantities as flowed into it. Third, that they had no right, after having impounded the water, to release it in larger quantities than were then flowing into it from above thereby adding to the normal flow of waters so released by their act in raising the flood-gate. Fourth, that if, in addition to the normal flow, defendant, by suddenly releasing large quantities of water in addition to the flood water then coming into its dam, caused damage to the plaintiff either solely by the water so released, or concurrently with the flood water which was going down, it is liable for such damage.
The evidence indicates that there was a tremendous and unusual storm extending not only over the basin of the Siletz River, but generally over the county of Lincoln. It is fair to say that the storm and rise of the water caused by the rainfall, if not unprecedented, at least, had no precedent within recent years as is shown by the fact that bridges not only on the Siletz River, but on other streams remote from the Siletz basin, were also carried away and more or less damage done to property upon the banks of such streams.
The plaintiff labored under the difficulty of having to present its case upon the testimony of witnesses *Page 633
then or theretofore in the employ of the defendant, and presumably not particularly anxious to communicate voluntarily any fact which might be of injury to defendant's case. The defense of defendant is that at the time of opening the gate, it released no more water than was coming in from above and that if that was the case, the court should have directed a verdict for the defendant as the burden of proof was upon the plaintiff to show that defendant released more water through its gate than the flood waters flowing into the pond. While the testimony on this point, on behalf of plaintiff, is far from being wholly satisfactory, we are of the opinion that there was testimony enough to entitle the case to go to the jury. If, as claimed by defendant, the dam was already full and the water overflowing, there could be no reasonable necessity for opening the flood-gate and allowing the water to escape through it. Having reached, according to this theory, the point where the flood waters would pass over the dam, there could be no further danger to the dam or other mill property by reason of the water flowing in from above.
It seems plain, from the circumstances of the case, that the object of raising the gate was not therefore to permit the flood waters going into the pond to escape, but to permit flood waters already accumulated in the pond likewise to escape for defendant's own convenience or safety to its buildings, and that the plaintiff had a right fairly to infer that, in addition to the flood waters passing over the top of the dam, the defendant, by the act of suddenly raising the gate, set free a tremendous amount of water, which had accumulated in the dam and which necessarily and suddenly increased the flow in the river *Page 634
below. While the exact amount of the rise from this cause is not capable of mathematical calculation, it was for the jury to say, under all the circumstances, whether this contribution of impounded water was a contributory cause to the injuries suffered by plaintiff.
It stands to reason that an opening 12 by 18 feet, which is the minimum fixed by the witnesses in a pond of water containing 600 acres and 40 feet in depth at the head of the dam, was competent to have produced the cause of the accident, or, at least, that it was fairly probable that the injury was produced by the acceleration of water in the bed of the stream below the dam rather than by other causes which will be hereinafter mentioned. It seems from the evidence that the rise, while all of the time during Saturday and Sunday was rapid, within a few hours after the flood-gate was raised it rose with very great suddenness, which renders it fairly probable that the water rushing through the flood-gate out of the dam was a contributory cause of the sudden rise in the river below and the consequent injury. An incident occurring after that on the 25th of November tends to throw some light upon the effect of suddenly opening the flood-gate. On that day the same gate, which was opened on November 20th, broke and went out, allowing the impounded water to rush down the river below and that too while there was little rain on that date. And further, that several hours after the going out of the gate the water below the Siletz agency rose from eight to ten feet without any apparent cause excepting the breaking out of the gate. Assuming that a like effect and a like quantity of water flowed out on November 20th, it furnished some proof upon which a jury had a right to act as to the effect *Page 635
of the water so released on the 20th upon the height of the water below.
It is contended, however, that the storm being general over all the Siletz watershed, and by reason of several streams below the dam being at a highly swollen stage of water, and the jury being unable to differentiate the various factors entering into the unprecedented rise of the Siletz, it amounted to a mere speculation as to whether the opening of the dam was a factor in the injuries produced. Evidence is also introduced of a slide of several acres, which it is contended has a tendency to divert the water from its usual channel over and against the land or premises of the plaintiff. It is claimed that this is another factor in assuming the cause of damage which reduces the consideration of these facts by the jury to mere speculation. But all of these matters, of course, were proper questions for the jury, and we do not think the consideration of their effect was wholly speculative, or that it reduced the question of what particular cause produced the injuries to plaintiff's property to a matter of mere speculation.
Of course, in cases where it is just as probable, on the face of it, that one cause was as likely to have produced the injury as another, there can be no verdict based upon an exact balance of probabilities, which would reduce the verdict to mere guesswork or chance, but we think, taking into consideration all the facts, that there was evidence competent to go to the jury tending to show that the most probable cause of the injury was the sudden release of impounded water from the dam, and that this is not a case in which the court should have directed a verdict. The temptation is great to give the whole testimony in the *Page 636
case, but it would unnecessarily enlarge the scope of this opinion and be of little value to the profession.
The judgment of the Circuit Court is affirmed.
AFFIRMED.
BELT, J., not sitting.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-738
Filed: 7 April 2020
Pitt County, Nos. 18 CRS 50972-73, 18 CRS 653
STATE OF NORTH CAROLINA
v.
RAFIEL FOREMAN, Defendant.
Appeal by defendant from judgments entered 28 August 2018 by Judge Jeffery
B. Foster in Pitt County Superior Court. Heard in the Court of Appeals 4 March
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Forrest P.
Fallanca, for the State.
Michael E. Casterline, P.A., by Michael E. Casterline, for defendant-appellant.
BERGER, Judge.
On August 28, 2018, Rafiel Foreman (“Defendant”) was convicted by a Pitt
County jury of attempted first-degree murder, assault with a deadly weapon with
intent to kill inflicting serious injury (“AWDWIKISI”), and felonious breaking and
entering. On appeal, Defendant contends he received ineffective assistance of counsel
when his trial counsel conceded Defendant’s guilt to assault with a deadly weapon
inflicting serious injury (“AWDWISI”) without his knowing and voluntary consent.
Defendant also argues the trial court erred when it failed to inquire into whether
Defendant’s Harbison acknowledgment was knowing and voluntary. Defendant also
STATE V. FOREMAN
Opinion of the Court
filed a motion for appropriate relief with this Court pursuant to N.C. Gen. Stat.
§ 15A-1418. We find no error, and deny Defendant’s motion for appropriate relief.
Factual and Procedural Background
Defendant and Dawn Rook (“Dawn”) dated for approximately ten years, from
2007 until December 2017. Throughout the course of their relationship, Defendant
never met Dawn’s father, Bennet Rook (“Mr. Rook”). Mr. Rook was unaware that his
daughter had been dating anyone. In December 2017, Dawn ended the relationship
because Defendant was becoming “verbally mean.”
On February 13, 2018, Dawn woke to several messages and missed calls from
Defendant. Since Dawn had blocked Defendant’s phone number, he messaged her
over Facebook Messenger. The messages from Defendant included the following
statements: “You better get a restraining order because this just got worse. I hope
you know you pushed me to do this;” “I hope you know I’m going to physically hurt
her, then I’m coming for you. I swear on my life today;” and “[I]t’s over for everyone
today. I’m glad I’m doing what I’m doing . . . I’m out of my mind, and you just gave
me reasons to hurt people. I’m about to walk up to your house right now and talk
with your father and hope to start a fistfight.” Defendant then sent a photograph of
the Rooks’ home to Dawn, stating “I’m at your [expletive deleted] house, Dawn.
Answer my call or I’m walking up there, I swear.”
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STATE V. FOREMAN
Opinion of the Court
Dawn and her mother had already left for work by the time Defendant arrived
at the Rooks’ home. Mr. Rook, who was in his late 60s, was home alone. Around
10:00 a.m., Mr. Rook saw Defendant carrying a package up the sidewalk. Mr. Rook
did not recognize Defendant but assumed he was a delivery person. Thinking that
his wife or his daughter had ordered something, Mr. Rook met Defendant at the front
door. When Mr. Rook opened the door, Defendant asked, “Are you Benny Rook?”
Defendant then stabbed Mr. Rook and forced his way inside the home. Once inside,
Defendant hit Mr. Rook with two side-tables, a large glass cake dome, and a wine
bottle.
Defendant left the residence. He then called Dawn and told her what he had
done. Meanwhile, Mr. Rook grabbed his gun, locked the door, and called his wife for
help. Officers found broken glass and blood in the Rooks’ home. They also observed
stab marks in the linoleum floor and recovered a bent knife. Defendant also left the
package with his name and address on the delivery label.
By the time Mr. Rook arrived at the hospital, he had lost approximately 20%
of his blood and had sustained “life-threatening” injuries. Mr. Rook had several
lacerations to his head and face and an injury to his left forearm where Defendant
struck him with a table. While in surgery for his injuries, Mr. Rook suffered from an
aspiration event which required the operating team to conduct a bronchoscopy. Mr.
Rook spent several days in the hospital recovering.
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STATE V. FOREMAN
Opinion of the Court
Defendant was tried in August 2018. Prior to opening statements, Defendant’s
counsel introduced a “Harbison Acknowledgment.” This sworn document was signed
by Defendant and his trial counsel, and it stated that:
Pursuant to State v. Harbison, 315 N.C. 175 (1985), I,
Rafiel Foreman, hereby give my informed consent to my
lawyer(s) to tell the jury at my trial that I am guilty of
Assault with a Deadly Weapon Inflicting Serious Injury. I
understand that:
1. I have a right to plead not guilty and have a jury
trial on all of the issues in my case.
2. I can concede my guilt on some offenses or some
lesser offense than what I am charged with if I desire to for
whatever reason.
3. My lawyer has explained to me, and I understand
that I do not have to concede my guilt on any charge or
lesser offense.
4. My decision to admit that I am guilty of Assault with
a Deadly Weapon Inflicting Serious Injury is made freely,
voluntarily and understandingly by me after being fully
appraised of the consequences of such admission.
5. I specifically authorize my attorney to admit that I
am guilty of Assault with a Deadly Weapon Inflicting
Serious Injury.
The following colloquy then occurred between the trial court and Defendant
regarding the Harbison Acknowledgement:
THE COURT: Mr. Foreman, I’m reading a paper that
your attorney handed me. Did he discuss with you his
intention to admit and concede that you are guilty of
assault with a deadly weapon inflicting serious injury?
[DEFENDANT]: Yes, Your Honor, he did.
THE COURT: Do you understand that you have the
right to plead not guilty and be tried by a jury on all issues?
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STATE V. FOREMAN
Opinion of the Court
[DEFENDANT]: Yes, Your Honor.
THE COURT: You understand that if you concede
your guilt in this case, that the jury could in fact find you
guilty of that offense?
[DEFENDANT]: Yes, Your Honor.
THE COURT: And you understand that you do not
have to concede your guilt on that point?
[DEFENDANT]: Yes, Your Honor.
THE COURT: And is the decision to admit your guilt
to assault with a deadly weapon inflicting serious injury
made freely, voluntarily, and understandingly?
[DEFENDANT]: Yes, Your Honor.
THE COURT: Do you understand the ramifications of
that and the consequences of such admission?
[DEFENDANT]: Yes, Your Honor.
THE COURT: And do you specifically authorize your
attorney to admit that you’re guilty of assault with a deadly
weapon inflicting serious injury?
[DEFENDANT]: Yes, Your Honor.
The trial court then found:
that the Defendant . . ., under State v. Harbison, has been
advised of his attorney’s intention to admit his guilt to
assault with a deadly weapon inflicting serious injury;
[t]hat the Defendant has consented to that strategy; [t]hat
consent was given freely and voluntarily after being
advised of his rights; [a]nd that he knowingly, voluntarily,
freely, and understandingly has acknowledged and has
consented to that strategy on behalf of his counsel.
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STATE V. FOREMAN
Opinion of the Court
During opening statements, defense counsel conceded that Defendant was
guilty of AWDWISI pursuant to the Harbison Acknowledgment. Counsel then argued
the evidence would fail to show Defendant intended to kill Mr. Rook. At the close of
the State’s evidence, Defendant moved to dismiss the charges of AWDWIKISI and
attempted murder. Defendant’s motion was denied. The defense presented no
evidence at trial.
Defense counsel also conceded Defendant’s guilt to AWDWISI during closing
arguments and argued that Defendant did not intend to kill Mr. Rook. The jury found
Defendant guilty of AWDWIKISI, attempted first-degree murder, and felonious
breaking and entering.
Defendant timely appeals, alleging he was denied effective assistance of
counsel because his concession of guilt to AWDWISI was not knowing or voluntary
and that he was not informed his admission of guilt would then support a conviction
for attempted first-degree murder. Defendant also alleges the trial court failed to
conduct an adequate Harbison inquiry to determine if he understood the
consequences of his admission of guilt. We disagree.
Standard of Review
“On appeal, this Court reviews whether a defendant was denied effective
assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d
894, 896 (2014). “Under a de novo review, the court considers the matter anew and
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STATE V. FOREMAN
Opinion of the Court
freely substitutes its own judgment for that of the lower tribunal.” State v. Williams,
362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks
omitted).
Analysis
Ordinarily, to prevail on a claim of ineffective assistance of counsel, the
defendant “must show that counsel’s performance was deficient,” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). However, our Supreme Court has held that per se ineffective
assistance of counsel exists “in every criminal case in which the defendant’s counsel
admits the defendant’s guilt to the jury without the defendant’s consent.” State v.
Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985). “Harbison applies when
defense counsel concedes defendant’s guilt to either the charged offense or a lesser
included offense.” State v. Alvarez, 168 N.C. App. 487, 501, 608 S.E.2d 371, 380
(2005). However, Harbison does not apply where defense counsel has conceded an
element of a crime charged, while still maintaining the Defendant’s innocence.
Wilson, 236 N.C. App. at 477, 762 S.E.2d at 897.
Defendant argues that his trial counsel’s concession of guilt to AWDWISI
“effectively admitted to the far more serious charge of attempted first-degree
murder.”
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STATE V. FOREMAN
Opinion of the Court
“For an offense to be a lesser-included offense, all of the essential elements of
the lesser crime must also be essential elements included in the greater crime.” State
v. Rainey, 154 N.C. App. 282, 285, 574 S.E.2d 25, 27 (2002) (citation and quotation
marks omitted). “The essential elements of assault with a deadly weapon inflicting
serious injury are: (1) an assault (2) with a deadly weapon (3) inflicting serious injury
(4) not resulting in death.” State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d
301, 306 (2003) (citations and quotation marks omitted). The essential elements of
attempted first-degree murder are (1) a specific intent to kill another person
unlawfully; (2) “an overt act calculated to carry out that intent, going beyond mere
preparation;” (3) the existence of malice, premeditation and deliberation
accompanying the act; and (4) a failure to complete the intended killing. State v.
Cozart, 131 N.C. App. 199, 202-03, 505 S.E.2d 906, 909 (1998).
AWDWISI is not a lesser-included offense of attempted first-degree murder.
See Rainey, 154 N.C. App. at 285, 574 S.E.2d at 27 (“Assault with a deadly weapon
requires the State to prove the existence of a deadly weapon; however, attempted
murder does not require a deadly weapon. Accordingly, assault with a deadly weapon
inflicting serious injury is not a lesser-included offense of attempted first-degree
murder.”). AWDWISI requires proof of an element not required for attempted first-
degree murder: the use of a deadly weapon. Cozart, 131 N.C. App. at 204, 505 S.E.2d
at 910. In addition, attempted first-degree murder requires proof of elements not
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STATE V. FOREMAN
Opinion of the Court
required for AWDWISI: an intent to kill, and premeditation and deliberation.
Although defense counsel conceded guilt to AWDWISI, the State, in this case, still
had to prove the elements of intent to kill, and malice, premeditation and
deliberation. Because the State had to prove additional elements for attempted first-
degree murder, AWDWISI is not a lesser-included offense and Defendant’s concession
of guilt to that offense does not support a conviction for attempted first-degree
murder.
Furthermore, Defendant’s consent to his concession of guilt for AWDWISI was
knowing and voluntary. Defendant confirmed that he understood the ramifications
of conceding guilt to AWDWISI and that he had the right to plead not guilty.
Defendant’s counsel filed the Harbison Acknowledgment in which Defendant
expressly gave his trial counsel permission to concede guilt to AWDWISI after “being
fully appraised of the consequences of such admission.” In this case, the facts show
that Defendant knew his counsel was going to concede guilt to AWDWISI, and the
trial court properly ensured that Defendant was aware of the ramifications of such a
concession. In addition, at no point at trial did defense counsel concede guilt to
attempted murder. Defendant’s argument that his concession to AWDWISI was a
concession of guilt for attempted murder is meritless. Therefore, we conclude that
Defendant was not denied effective assistance of counsel in violation of Harbison. See
State v. Matthews, 358 N.C. 102, 109, 591 S.E.2d 535, 540 (2004).
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STATE V. FOREMAN
Opinion of the Court
Defendant next argues that the trial court failed to conduct an adequate
Harbison inquiry to determine if he understood the consequences of conceding guilt
to AWDWISI because the court “focused solely on the implications of being convicted
of the lesser assault,” not the “de facto admission of the elements of attempted first-
degree murder.” We disagree.
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Hamilton, ___ N.C. App. ___, ___, 822 S.E.2d 548, 552 (2018), rev.
dismissed, ___ N.C. ___, 830 S.E.2d 822 (2019), and rev. denied, ___ N.C. ___, 830
S.E.2d 824 (2019).
“[T]he trial court must be satisfied that, prior to any admissions of guilt at trial
by a defendant’s counsel, the defendant must have given knowing and informed
consent, and the defendant must be aware of the potential consequences of his
decision.” State v. Maready, 205 N.C. App. 1, 7, 695 S.E.2d 771, 776 (2010). “The
facts must show, at a minimum, that defendant knew his counsel [was] going to make
such a concession.” Matthews, 358 N.C. at 109, 591 S.E.2d at 540 (emphasis in
original).
In State v. Johnson, the defendant argued on appeal that the trial court failed
to conduct an adequate Harbison inquiry as to whether he knowingly and voluntarily
consented to conceding guilt. 161 N.C. App. 68, 76, 587 S.E.2d 445, 451 (2003). At
trial, the court directly asked the defendant the following:
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STATE V. FOREMAN
Opinion of the Court
THE COURT: [Y]ou have heard what [defense
counsel] just said. Have ya’ll previously discussed that
before he made his opening statements?
THE DEFENDANT: Yes, sir, we did.
THE COURT: And did he have your permission
and authority to make that opening statement to the jury?
THE DEFENDANT: Yes, sir, he did.
THE COURT: You consent to that now?
THE DEFENDANT: Yes, sir.
Id. at 77, 587 S.E.2d at 451 (ellipses omitted). This Court found that the trial court’s
inquiry was sufficient “to establish that defendant had previously consented to his
counsel’s concession that he was present and had” committed the crime for which he
was conceding guilt. Id. at 77-78, 587 S.E.2d at 451.
In the present case, Defendant’s concession of guilt to AWDWISI was not a
concession of guilt to attempted first-degree murder because, as stated earlier, the
State still had to prove the elements of intent to kill and premeditation and
deliberation. Moreover, Defendant understood the implications of admitting guilt to
AWDWISI as shown by his colloquy with the trial court. The trial court questioned
Defendant to determine whether he gave his defense counsel permission to admit
guilt. The record demonstrates that Defendant fully understood that trial counsel
was going to concede guilt to AWDWISI, and the Defendant expressly consented to
the concession. Further, Defendant specifically acknowledged that he understood the
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Opinion of the Court
consequences of the concession. In addition, the trial court also inquired as to
whether Defendant met with defense counsel about the admission of guilt, and
whether Defendant understood he could plead not guilty to all issues. Thus, the trial
court did not err.
Finally, Defendant filed a motion for appropriate relief with this Court
pursuant to N.C. Gen. Stat. § 15A-1418. A defendant’s motion for appropriate relief
may be determined by this Court if there is sufficient information in the record. N.C.
Gen. Stat. § 15A-1418 (2019). “A defendant who seeks relief by motion for appropriate
relief must show the existence of the asserted ground for relief.” N.C. Gen. Stat.
§ 15A-1420(c)(6) (2019). Because the trial court conducted an appropriate Harbison
inquiry, as set forth above, Defendant cannot show that his “conviction was obtained
in violation of the Constitution of the United States or the Constitution of North
Carolina.” N.C. Gen. Stat. § 15A-1415(b)(3) (2019). Because Defendant cannot show
the existence of the asserted ground for relief, i.e., a Harbison violation, Defendant’s
motion for appropriate relief is denied.
Conclusion
For the foregoing reasons, we hold Defendant’s consent was knowing and
voluntary as he was aware of the consequences and ramifications of such an
admission. As Defendant’s consent to his attorney’s concession of guilt was knowing
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Opinion of the Court
and voluntary, he was not denied effective assistance of counsel in violation of
Harbison. Defendant’s motion for appropriate relief is denied.
AFFIRMED IN PART, DENIED IN PART.
Judge DIETZ and BROOK concur.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-403
Filed: 7 April 2020
Robeson County, Nos. 12 CRS 55140, 3384–85
STATE OF NORTH CAROLINA
v.
MARQUES RAMAN BROWN
Appeal by defendant from judgments entered 5 March 2018 by Judge Robert
F. Floyd in Robeson County Superior Court. Heard in the Court of Appeals 3
December 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Adren
L. Harris, for the State.
Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant.
DIETZ, Judge.
Defendant Marques Brown shot and killed an off-duty police officer who was
approaching Brown’s car to arrest him on several active warrants. At the time, Brown
was on edge because there had been several attempts on his own life by individuals
who believed Brown had murdered a man named “Fat Boy.”
In the several seconds after the officer pulled up in his car and got out, wearing
ordinary civilian clothes, Brown glimpsed a handgun on the officer, although Brown
admitted that the officer never pointed the weapon at Brown or motioned as if he
STATE V. BROWN
Opinion of the Court
intended to use it. Brown then grabbed his own gun, pointed it out his car window,
and killed the officer. Brown later explained that he feared for his life because “any
time I ever seen somebody coming at me with a gun, it was shot.”
Brown appeals his conviction for second degree murder on the ground that the
trial court wrongly refused his request for instructions related to self-defense. We
reject this argument. Viewing the evidence in the light most favorable to Brown, and
considering the mind of a person of ordinary firmness, it was not reasonable for
Brown to believe that it was necessary to shoot and kill the approaching officer to
avoid serious bodily injury or death. Accordingly, the trial court properly declined to
instruct the jury on these self-defense issues and we find no error in the trial court’s
judgments.
Facts and Procedural History
On the morning of 17 July 2012, Officer Jeremiah Goodson was off duty and
running errands with his wife when he stopped at a gas station. At the gas station,
Officer Goodson told his wife that he saw someone inside the store who had active
warrants and that he needed to drop her off somewhere safe. Goodson took his wife
to a nearby strip mall.
Officer Goodson then contacted his supervisor, Lieutenant Monteiro, to report
that he located a subject with active warrants, Defendant Marques Brown. Goodson
described Brown’s clothing and vehicle and reported that Brown was with a woman
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STATE V. BROWN
Opinion of the Court
and a small child. Lieutenant Monteiro immediately instructed an on-duty officer,
Officer Hayes, to respond to the gas station to assist in serving the warrants and
making the arrest. Monteiro told Goodson to remain on the line and to keep sight of
Brown in case he changed locations.
Officer Goodson reported that Brown’s car moved to a nearby gas station
parking lot. Officer Hayes testified that when he arrived at the parking lot, he blocked
Brown’s car with his patrol vehicle, while Goodson simultaneously pulled his personal
vehicle beside Brown’s car. Hayes saw Goodson step out of his car and take a single
step towards the store before being struck by multiple gunshots. A cashier working
at the gas station witnessed the incident and testified that she saw Goodson exit his
car in the parking lot, that Goodson was “looking in the store like he’s looking for
somebody,” and then “his shirt starts to change colors and he hits the ground.” A
customer at the gas station testified that he heard multiple shots and saw a hand
holding a gun out the window of Brown’s vehicle.
Immediately after the shooting occurred, Officer Hayes drew his weapon and
approached Brown’s vehicle where Brown was sitting in the passenger seat. The front
and back passenger windows were partially rolled down. Hayes opened the door of
Brown’s vehicle and ordered Brown to get out. Hayes saw a gun lying in the front
passenger seat. The gun had a ten-round capacity with six bullets remaining.
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STATE V. BROWN
Opinion of the Court
Captain Johnny Coleman arrived on the scene after learning that an officer
was down and observed Goodson lying face down between his vehicle and Brown’s
vehicle. Goodson was dressed in plain clothes and his head was facing towards the
store. When they rolled Goodson over, there was a gun lying underneath him.
Brown told the officers that he was not aware the man he shot was a police
officer. He explained that Officer Goodson “had a gun in his hand,” although he also
asserted, conflictingly, that he “didn’t see the gun.” When asked about the gun, Brown
also told the officers that Goodson didn’t “raise it and point it at me or nothing.”
On 3 August 2012, Brown was indicted for first degree murder of Officer
Goodson, possession of a firearm by a felon, and possession with intent to sell or
deliver marijuana. The case went to trial on 19 February 2018.
At trial, Dr. Richard Johnson testified that he performed the autopsy on Officer
Goodson and found four gunshot wounds: two in the chest, one in the left side of the
face, and one in the back of the head. Goodson’s cause of death was one of the gunshot
wounds to the chest that was fired from close range and hit the heart.
The State presented surveillance footage of the gas station parking lot while a
detective described what was shown in the video. At 11:00:00, Goodson’s car comes
into view and approaches the passenger side of Brown’s vehicle while Hayes’s marked
patrol car approaches the rear of Brown’s vehicle. At 11:00:03, Goodson’s car comes
to a stop and the driver’s side of Goodson’s car begins to open. At 11:00:05, Goodson
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STATE V. BROWN
Opinion of the Court
starts to step out of his car. At 11:00:06, Goodson is out of his car and standing, and
the door of his car starts to close. At 11:00:07, Goodson’s head starts to drop, he starts
to fall forward, and then is down on the ground. At the same time, the patrol car door
opens and Hayes rushes out.
The entire incident, from Goodson’s approach in his car to his collapse to the
ground, took approximately seven seconds. Goodson was out of his car for only two
seconds. The State also presented dashcam footage of the shooting from Hayes’s
patrol car showing the same timeline of events.
Brown testified that he had a difficult childhood due to his mother’s drug
addiction and witnessing multiple violent incidents as a child. He also explained that
there were attempts on his own life by people who believed that Brown was involved
in the murder of a man named “Fat Boy.”
Brown testified that when he saw Goodson’s car pull up beside him, he grabbed
his gun and took the safety off while the car was still pulling up. Then he saw a man
“looking at me like real mean, like with hate . . . sliding out the car . . . like with a
gun.” Brown then shot at Goodson through the back passenger window because
Brown believed he had a clearer shot through that rolled down window. Brown only
recalled firing three shots.
Brown testified that his actions were “like a reflex.” He explained that he saw
a “glimpse of a gun” as Goodson got out of his car but conceded that Goodson never
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STATE V. BROWN
Opinion of the Court
pointed a gun at him or motioned as if he intended to fire a gun. Brown fired his own
gun because, having seen a glimpse of a gun on Goodson, he believed Goodson
intended to kill him. Brown explained that “any time I ever seen somebody coming at
me with a gun, it was shot. And this is close contact . . . it was too intense.”
Brown presented expert testimony from Dr. George Corvin that Brown has a
“mild intellectual disability” with an IQ of 69 and that Brown suffers from PTSD,
which “impaired” his ability to “perceive what is going on” and “to react to stress
appropriately.” Dr. Corvin testified that, in his opinion, Brown shot Goodson because
he believed Goodson “was going to kill him, was going to shoot him, or at least try to.”
During the charge conference, Brown requested instructions on self-defense
and on the lesser-included offense of voluntary manslaughter based on imperfect self-
defense. The trial court denied Brown’s requests, explaining “it doesn’t rise to self-
defense, because there’s no threat of deadly force been presented against him of this
defendant at all. The evidence would show now the defendant jumped the gun, and
speculated, and he could have speculated that anybody getting out of the car. He
made his mind up, he testified when the car drove up quickly . . . . [A]s soon as the
victim, Officer Goodson, cleared the vehicle, within three seconds he was dead on the
ground, or he was on the ground. Never saw a gun drawn on him, assumed there was
a gun drawn on him.”
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STATE V. BROWN
Opinion of the Court
On 5 March 2018, the jury convicted Brown of second degree murder,
possession of a firearm by a felon, and possession with intent to sell or deliver
marijuana. The trial court sentenced Brown to 258 to 322 months in prison for second
degree murder and a consolidated sentence of 21 to 35 months in prison on the
remaining charges. Brown appealed.
Analysis
Brown argues that the trial court erred by denying his request for a jury
instruction on self-defense. He contends that the evidence, taken in the light most
favorable to him, required the trial court to include that instruction. Brown also
argues that the trial court erred by denying his request for an instruction on the
lesser-included offense of voluntary manslaughter based on imperfect self-defense.
We reject these arguments.
“It is the duty of the trial court to instruct the jury on all substantial features
of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546,
549 (1988). For this reason, “where competent evidence of self-defense is presented
at trial, the defendant is entitled to an instruction on this defense, as it is a
substantial and essential feature of the case.” State v. Morgan, 315 N.C. 626, 643, 340
S.E.2d 84, 95 (1986). In other words, when the evidence, viewed in the light most
favorable to the defendant, discloses facts that are “legally sufficient” to warrant an
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STATE V. BROWN
Opinion of the Court
instruction on self-defense, the trial court must give that instruction to the jury. State
v. Everett, 163 N.C. App. 95, 100, 592 S.E.2d 582, 586 (2004).
Competent evidence of self-defense is evidence that it “was necessary or
reasonably appeared to be necessary” for the defendant “to kill his adversary in order
to protect himself from death or great bodily harm.” State v. Bush, 307 N.C. 152, 160,
297 S.E.2d 563, 569 (1982). “[B]efore the defendant is entitled to an instruction on
self-defense, two questions must be answered in the affirmative: (1) Is there evidence
that the defendant in fact formed a belief that it was necessary to kill his adversary
in order to protect himself from death or great bodily harm, and (2) if so, was that
belief reasonable?” Id. Importantly, our Supreme Court has held that a defendant’s
belief is reasonable only if “the circumstances as they appeared to him at the time
were sufficient to create such a belief in the mind of a person of ordinary firmness.”
State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572 (1981) (emphasis added).
Brown argues that, applying this precedent, the trial court should have given
a self-defense instruction because there was competent evidence that Officer Goodson
“came toward him with his gun drawn.” This, Brown contends, led him to believe that
he was “about to be killed by a man he did not recognize.”
The trial evidence does not support Brown’s argument. Brown’s testimony—
viewed in the light most favorable to him—was that Officer Goodson pulled his car
beside Brown’s and that Brown saw “a glimpse of a gun” when Goodson “slid out the
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STATE V. BROWN
Opinion of the Court
car.” Brown also testified that Officer Goodson “didn’t say nothing” but was “looking
at me like real mean, like with hate.” Brown further testified that the gun he
glimpsed “wasn’t pointed at me.” Still, Brown believed that Officer Goodson was
attempting to kill him because “any time I ever seen somebody coming at me with a
gun, it was shot.”
Brown’s trial testimony was corroborated by his statement to investigators
following his arrest, which was admitted at trial. In that statement, Brown
conflictingly asserted both that he saw a gun and that he “didn’t see the gun.”
Regardless, when discussing Officer Goodson’s gun, Brown explained that Goodson
did not “raise it and point it at me or nothing.”
Brown also presented expert testimony from Dr. Corvin, who explained that
Brown “either saw the gun, or saw him getting the gun, or in one way, shape, form or
fashion came to the conclusion that the individual getting out of the car was getting
a gun or had a gun in his hand, was looking at him mean, had approached him in an
unusually aggressive manner by speeding up and jumping out of the car.” Thus, Dr.
Corvin explained, Brown’s “perception of the events quickly sort of with combined
influences of post traumatic stress and his limited intellect is what he saw in his
mind. . . . He interpreted that what was occurring was dangerous to him. He then
impulsively says he took the gun.”
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STATE V. BROWN
Opinion of the Court
The trial court properly concluded that this evidence was insufficient to create
a reasonable belief that it was necessary for Brown to use deadly force to protect
himself from death or great bodily harm. Specifically, whatever Brown may have
believed—because he was on edge from an earlier attempt on his life, or because he
was suffering from some form of post-traumatic stress, or for any other idiosyncratic
reason—the evidence demonstrated that “in the mind of a person of ordinary
firmness” there was no basis to use deadly force. Norris, 303 N.C. at 530, 279 S.E.2d
at 572.
Uncontradicted witness testimony and video evidence presented at trial
showed that Officer Goodson did not say anything to Brown, did not point a gun at
Brown, and did not have any physical interaction with Brown. The entire incident
lasted only seven seconds. During the first three seconds, Goodson pulled his car into
the parking spot next to Brown’s car and opened the car door. In the next two seconds,
Goodson got out of his car and stood up. Then, less than two seconds later, Brown
pointed a gun out his car window and shot and killed Officer Goodson.
Critically important, even Brown’s own testimony acknowledges that Officer
Goodson—at most—had a gun visible either on his body or in his hand. But the
uncontroverted evidence, including Brown’s own testimony, is that Officer Goodson
was not pointing the gun at Brown or taking any action that indicated he was
attempting to shoot Brown. The evidence, even in the light most favorable to Brown,
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STATE V. BROWN
Opinion of the Court
is that a car pulled up quickly near Brown’s own car, that an unknown man stepped
out of the car in possession of a handgun, and that the man looked at Brown in a
manner that was “real mean” or full of “hate.”
The trial court properly concluded that these facts are insufficient to permit a
self-defense instruction. In the mind of a person of ordinary firmness, this evidence
would not permit the use of deadly force on a complete stranger getting out of a
nearby car. Accordingly, the trial court properly declined to give the requested
instruction on self-defense. See id; Bush, 307 N.C. at 160–61, 297 S.E.2d at 569.
Brown also argues that the trial court erred in denying his request for an
instruction on the lesser-included offense of voluntary manslaughter on the basis that
the jury could have found Brown used excessive force in imperfect self-defense. State
v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). Because, as explained
above, the trial court properly concluded that there was insufficient evidence to
support either perfect or imperfect self-defense as a matter of law, the trial court
properly declined this request for an instruction as well. State v. Owens, 65 N.C. App.
107, 109, 308 S.E.2d 494, 497 (1983); State v. Norman, 324 N.C. 253, 260, 378 S.E.2d
8, 12 (1989). Accordingly, we find no error in the trial court’s decisions to reject
Brown’s request for instructions on self-defense and the lesser-included offense of
voluntary manslaughter.
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STATE V. BROWN
Opinion of the Court
Conclusion
We find no error in the trial court’s judgments.
NO ERROR.
Chief Judge McGEE and Judge ZACHARY concur.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-678
Filed: 7 April 2020
Catawba County, No. 17 CRS 2027-29, 50237-38
STATE OF NORTH CAROLINA
v.
DONALD EUGENE BLANKENSHIP
Appeal by defendant from judgments entered 6 December 2017 by Judge Julia
Lynn Gullett in Catawba County Superior Court. Heard in the Court of Appeals 3
March 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Yvonne B.
Ricci, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew
DeSimone, for defendant-appellant.
TYSON, Judge.
Donald Eugene Blankenship (“Defendant”) appeals from judgments entered
upon his guilty plea to five counts of indecent liberties with minor children. We affirm
the trial court’s order imposing ten years of satellite-based monitoring (“SBM”).
We dismiss Defendant’s unpreserved constitutional challenge to the
reasonableness of the trial court’s order on SBM. We also dismiss Defendant’s
ineffective assistance of counsel (“IAC”) claim.
I. Background
STATE V. BLANKENSHIP
Opinion of the Court
Federal law enforcement officers located in Joplin, Missouri were investigating
David Lee Perkins for filming and distributing child pornography. Perkins
distributed child pornography to Defendant and corresponded via email with him
concerning the minor victim depicted in the pornography. The Federal Bureau of
Investigation executed a search warrant on Defendant at home and confiscated his
computer. During Defendant’s interview, he admitted to receiving, having, and
sharing child pornography on his computer and to fondling several victims.
Defendant was indicted for five counts of taking indecent liberties with
children on 1 May 2017. He pleaded guilty to those charges on 6 December 2017. The
State presented a factual basis for Defendant’s plea, asserting three of the sexual
assault victims, both male and female children, were between the ages of six to
fourteen years old. The State also identified two additional minor victims and child
pornography crimes, for which Defendant was not indicted.
T.S. was six or seven years old between 1 July 2010 and 31 August 2010. T.S.’
parents were friends with Defendant, and they had left T.S. alone with him on several
occasions. Defendant fondled and assaulted T.S. two times by touching T.S.’ penis
and buttocks and had T.S. touch Defendant’s penis.
V.G. was fourteen years old between 1 June 2012 and 30 June 2012. V.G. was
friends with Defendant’s daughter and had stayed overnight at Defendant’s house.
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STATE V. BLANKENSHIP
Opinion of the Court
While V.G. was staying at Defendant’s house, he tried to touch “her breasts and her
vaginal area.”
The third victim, M.B., was eleven years old between 1 June 2012 and 30
September 2012. M.B. was also friends with Defendant’s daughter and visited
Defendant’s house. On “numerous occasions” at Defendant’s house he tried to touch
M.B.’s breasts and vagina. Once M.B. had to “put[] a pillow over her [body] trying to
protect herself” from Defendant’s assaults.
As a part of Defendant’s plea agreement on the five indecent liberties charges,
the State agreed not to proceed on any charges related to the child pornography
Defendant possessed or concerning assaults on the two other unindicted victims.
The State requested to be heard on the imposition of SBM. Prosecutors argued
and the trial court found Defendant had committed sexually violent offenses under
N.C. Gen. Stat. § 14-208.65. The State used the factual basis for the plea and the
findings of the STATIC-99R, an actuarial assessment instrument, as the basis for
requesting the imposition of SBM on Defendant for ten years. The STATIC-99R
concluded Defendant had one point from the individual risk factors, and the
Department of Corrections characterized his risk as “Average Risk.”
On 6 December 2017, Judge Gullett sentenced Defendant to an active term of
five consecutive sentences of 16 to 29 months. Defendant was ordered to register as
a sex-offender for thirty years, and to be subject to SBM for a period of ten years
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STATE V. BLANKENSHIP
Opinion of the Court
following his release from incarceration. On 5 December 2018, Judge Nathaniel J.
Poovey entered an amended judgment nunc pro tunc modifying Defendant’s sentence
to five consecutive active terms of 16 to 20 months each.
Defendant petitioned for writ of certiorari. This Court allowed Defendant’s
petition “for the purpose of granting defendant a belated appeal from the ‘Judicial
Findings and Order for Sex Offenders’ and criminal judgments” dated 6 December
2017. This Court’s order also expressly limited the scope of Defendant’s appeal from
the criminal judgments “to those issues the defendant could have raised on direct
appeal pursuant to N.C. Gen. Stat. [§] 15A-1444 (2017).”
II. Jurisdiction
A defendant entering a guilty plea has no statutory right to appeal the trial
court’s judgment. See N.C. Gen. Stat. § 15A-1444(e) (2019). This Court
discretionarily reviews Defendant’s “Judicial Findings and Order for Sex Offenders”
and criminal judgments under the terms of the writ of certiorari granted on 12
February 2019 pursuant to N.C. Gen. Stat. § 15A-1444(g).
III. Issues
Defendant argues the trial court erred by requiring him to enroll in SBM when
the Department of Corrections (“DOC”) characterized his risk at the lowest level of
the “Average Risk” category on the STATIC-99R form. Defendant also asserts the
State had failed to establish his enrollment in SBM constituted a reasonable search
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STATE V. BLANKENSHIP
Opinion of the Court
under the Fourth Amendment as required by State v. Grady, 372 N.C. 509, 831 S.E.2d
542 (2019). Defendant further argues he received ineffective assistance of counsel
upon his trial counsel’s failure to argue the constitutionality of the SBM program
being applied to him.
IV. SBM Determination
A. Standard of Review
[W]e review the trial court’s findings of fact to determine
whether they are supported by competent record evidence,
and we review the trial court’s conclusions of law for legal
accuracy and to ensure that those conclusions reflect a
correct application of law to the facts found. We [then]
review the trial court’s order to ensure that the
determination that defendant requires the highest possible
level of supervision and monitoring reflects a correct
application of law to the facts found.
State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citations, quotation
marks and brackets in original omitted).
B. Analysis
Defendant argues the trial court erred by requiring him to enroll in the SBM
program for a period of ten years. Defendant contends the trial court’s four additional
findings, the DOC’s “Average Risk” assessment, and the basis for the plea do not
adequately support the legal conclusion requiring Defendant to enroll in SBM for ten
years.
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STATE V. BLANKENSHIP
Opinion of the Court
An offender may be required to enroll in SBM without a finding of a high risk
by the DOC. See State v. Morrow, 200 N.C. App. 123, 132, 683 S.E.2d 754, 761 (2009)
(declining “to adopt . . . construction of the statute that would require a DOC rating
of high risk as a necessary requisite to SBM”).
“[A] trial court’s determination that the defendant requires the highest
possible level of supervision may be adequately supported where the trial court
makes additional findings regarding the need for the highest possible level of
supervision and where there is competent record evidence to support those additional
findings.” State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011) (internal
quotation marks omitted). In Green, this Court held a “trial court may properly
consider evidence of the factual context of a defendant’s conviction when making
additional findings as to the level of supervision required of a defendant convicted of
an offense involving the physical, mental, or sexual abuse of a minor.” Id. at 603, 710
S.E.2d at 295.
Before we consider whether the trial court properly concluded Defendant
requires the highest possible level of supervision, we must first determine whether
the challenged additional findings are supported by competent evidence. The trial
court made the following additional findings of fact: (1) Defendant “sexually assaulted
multiple child victims;” (2) Defendant “sexually assaulted both male and female child
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STATE V. BLANKENSHIP
Opinion of the Court
victims;” (3) “the children ranged in ages from 6 to 14;” and, (4) Defendant “took
advantage of a position of trust to sexually assault his victims.”
“The trial court’s findings of fact are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting.” State v. Brewington, 352 N.C.
489, 498, 532 S.E.2d 496, 501 (2000) (citation omitted). Prior to the start of the SBM
hearing, the trial court engaged in a plea colloquy with Defendant, in which
Defendant stipulated to the State’s factual basis for the plea.
In offering the factual basis to support the plea, the State provided the details
of Defendant’s assault on three minor victims between the ages of six to fourteen
years old. The victims were both male and female. Defendant’s victims were either
guests in his home to visit his daughter or T.S., a six-year-old male child, whose
parents had asked Defendant to care for and protect him. The unobjected to evidence,
that Defendant admitted as a part of his plea bargain, provides competent evidence
to support the trial court’s additional findings. Defendant’s pretext of providing
childcare for T.S. to accommodate T.S.’ parents and affording a purported safe place
for female minors to visit his daughter and then committing these assaults is
especially egregious.
As we have concluded the trial court’s additional findings of fact one, two,
three, and four are supported by competent evidence, we must next determine
whether these findings, along with the “Average Risk” STATIC-99R assessment,
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STATE V. BLANKENSHIP
Opinion of the Court
support the trial court’s determination that Defendant “requires the highest possible
level of supervision and monitoring.” This Court’s review of the trial court’s
determination is to ensure it “reflect[s] a correct application of law to the facts found.”
Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.
Relating to additional finding one, that Defendant “sexually assaulted multiple
child victims,” Defendant argues this finding of fact merely shows the way or manner
of how he committed the offense and did not support its conclusion that Defendant
posed a high risk of re-offending. Defendant argues this issue is governed by State v.
Pell, 211 N.C. App. 376, 712 S.E.2d 189 (2011). Defendant asserts the “evidence
offered very little in the way of predicative statements concerning [the] [d]efendant’s
likelihood of recidivism.” Id. at 382, 712 S.E.2d at 193.
The holding in Pell is inapposite to the present facts. In Pell, the defendant
was sentenced to register as a sex offender, in part, on the trial court’s finding that
he was a “danger to the community.” Id. at 377, 712 S.E.2d at 190. The Court
recognized that the “legislative intent reveals that ‘danger to the community’ only
refers to those defendants who pose a risk of engaging in sex offenses following their
release from incarceration.” Id. at 381, 712 S.E.2d at 192. This Court held the State’s
expert witness’ testimony that defendant was at a low risk of offending and the
victim’s impact statements addressing the impact defendant’s actions had on their
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Opinion of the Court
lives, were insufficient evidence to support a conclusion that the defendant
“represented a ‘danger to the community.’” Id. at 381-82, 712 S.E.2d at 193.
Unlike in Pell, the trial court here found Defendant had “sexually assaulted
multiple child victims.” This finding does not merely relate to the manner of the
commission of the offenses. It shows Defendant’s multiple actions on multiple minor
victims at multiple times rather than a single or isolated incident. The court’s
additional finding corresponds to and is exactly a “predictive statement concerning
Defendant’s likelihood of recidivism.” Id. at 382, 712 S.E.2d at 193.
As previously discussed, the trial court may consider the context under which
the crimes occurred, revealed in the factual basis for Defendant’s guilty plea, when
making additional findings “as to the level of supervision required of a defendant
convicted of an offense involving the physical, mental, or sexual abuse of a minor.”
Green, 211 N.C. App. at 603, 710 S.E.2d at 295. Defendant stipulated to the factual
basis for his plea. Defendant’s crimes of sexually abusing multiple minor victims, on
multiple occasions within the pretext of providing a safe environment to gain access
to them supports the imposition of SBM.
Turning to additional finding two, Defendant “sexually assaulted both male
and female child victims.” Defendant argues this additional finding is contained in
the STATIC-99R assessment and cannot also be considered as an additional finding.
In support of this assertion, Defendant cites State v. Thomas, wherein this Court
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Opinion of the Court
overturned an order of SBM because “additional findings cannot be based upon
factors explicitly considered in the STATIC-99 assessment.” State v. Thomas, 225
N.C. App. 631, 634, 741 S.E.2d 384, 387 (2013).
The STATIC-99 assessment in Thomas included a prior conviction. Id. at 632,
741 S.E.2d at 386. This prior conviction was also listed as an “additional finding.” Id.
However, the finding number two in the present case is distinct from Thomas. The
entire factor was not “explicitly considered” in Defendant’s STATIC-99R. The
challenged finding before us incorporates both male and female victims in
Defendant’s home, while only the male victims were included in the STATIC-99R’s
assessment. In Thomas, both the trial court’s “additional findings” were overruled
by this Court leaving no additional findings to support the SBM order. Id. at 635, 741
S.E.2d at 387-88. Here, additional factors to support the order of SBM are not
duplicative and remain.
Defendant argues additional finding three, “[t]he children range in ages from
6 to 14” does not support a conclusion that Defendant required the highest possible
level of supervision and monitoring. Again, Defendant cites Green, where neither of
the victims were “able to advocate” for themselves. Green, 211 N.C. App. at 601, 710
S.E.2d at 294. However, the statement in Green has been read more expansively than
being limited to victims so young they cannot speak. The finding goes to the general
ability of the victims to advocate and report incidents and abuses. A child, who can
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Opinion of the Court
speak, may also not have the will, courage, or maturity to report what has happened
to them. See State v. Smith, 240 N.C. App. 73, 76, 769 S.E.2d 838, 841 (2015)
(upholding the SBM in part based upon the fact victims were very young females).
Defendant argues additional finding four, “[t]he defendant took advantage of
a position of trust to sexually assault his victims” does not support the conclusion
that he posed a high risk of re-offending. Defendant cites State v. Blakeman, wherein
this Court overruled a determination to impose SBM because insufficient evidence
supported the sentencing factor that the defendant was in a position of trust over the
assault victim. State v. Blakeman, 202 N.C. App. 259, 272, 688 S.E.2d 525, 533 (2010).
In Blakeman, no evidence showed the victim’s “mother had arranged for [the
defendant] to care for [the victim] on a regular basis, or that [the defendant] had any
role in [the victim’s] life other than being her friend’s stepfather.” Id. at 270, 688
S.E.2d at 532.
Here, some of Defendant’s minor victims were placed in Defendant’s care to be
watched and kept safe under the direction of the minor’s parents, or were children
visiting Defendant’s daughter in his home. T.S. is distinguishable from the victim in
Blakeman. The parents of T.S. had left the six-year-old child with Defendant to care
for and monitor the child when he took advantage of a position of trust to assault T.S.
Defendant’s arguments are overruled.
V. Reasonableness of Ten Year SBM
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Opinion of the Court
Defendant argues the State failed to establish his enrollment in SBM
constituted a reasonable search under the Fourth Amendment as required by Grady,
372 N.C. 509, 831 S.E.2d 542. “[T]he State shall bear the burden of proving that the
SBM program is reasonable.” State v. Blue, 246 N.C. App. 259, 264, 783 S.E.2d 524,
527 (2016).
The transcript of Defendant’s SBM hearing shows:
[The State]: Your Honor, that would be the general
presentation of the State for the factual basis and the
findings that the State would like the Court to find
regarding the Static-99 and the additional findings, and in
particular the State would like the Court to, of course,
based on the findings that it’s required to regarding on the
615 Form is that this is a . . . sexually violent offense under
GS 14-208.65. I don’t think there’s any objection to that.
....
Number 2, the [D]efendant has not been classified as a
sexually violent predator.
Number 3, the [D]efendant is not a recidivist.
Number 4, this conviction is not for an aggravated offense.
But we do believe that under 5B, this did involve the
physical, mental or sexual abuse of a minor.
I think [Defendant’s counsel] will probably stipulate to
that.
....
And our recommendation to the Court is based on what you
heard and the nature and what the systematic desire for
child pornography, to exploit children, that this
[D]efendant should be subjected to [SBM] for ten years
after he is let out of incarceration.
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Opinion of the Court
Defendant’s counsel raised no objections or constitutional challenge in
response to the State’s showing and argument. Defendant further raised no
objections or constitutional challenge at any point during this hearing. Defendant’s
counsel filed no motion, objection, or asserted any argument the SBM imposed upon
Defendant was an unreasonable search.
This case mirrors State v. Bishop, wherein the defendant was convicted of
taking indecent liberties with a child and the trial court sentenced him to SBM for a
term of thirty years. State v. Bishop, 255 N.C. App. 767, 768, 805 S.E.2d 367, 368
(2017). The defendant did not raise any constitutional issue before the trial court,
cannot raise it for the first time on appeal, and has waived this argument on appeal.
Id. at 770, 805 S.E.2d at 370. The writ that brought this case before us for review is
expressly limited “to those issues the defendant could have raised on direct appeal
pursuant to N.C. Gen. Stat. 15A-1444 (2017).”
The defendant in Bishop requested the Court invoke Rule 2 of the North
Carolina Rules of Appellate Procedure to hear his arguments and review his
constitutional challenge. Id. This Court held the defendant was “no different from
other defendants who failed to preserve their constitutional arguments in the trial
court, and because he has not argued any specific facts that demonstrate manifest
injustice if we decline to invoke Rule 2, we do not believe this case is an appropriate
use of that extraordinary step.” Id.
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Opinion of the Court
Here, in the exercise of our discretion, we decline to invoke Rule 2 to issue a
further writ of certiorari to review Defendant’s unasserted and unpreserved
argument on appeal. Defendant’s unpreserved constitutional argument challenging
his enrollment in SBM is dismissed. See State v. Spinks, 256 N.C. App. 596, 611, 808
S.E.2d 350, 360 (2017).
VI. Ineffective Assistance of Counsel
Defendant argues his counsel’s failure to argue the constitutionality of the
SBM program before the trial court consisted ineffective assistance of counsel. Our
Court has held “hearings on SBM eligibility are civil proceedings.” State v. Miller, 209
N.C. App. 466, 469, 706 S.E.2d 260, 262 (2011). This Court also held: “IAC claims
are not available in civil appeals such as that form an SBM eligibility hearing.” Id.
An order for enrollment in SBM is a civil penalty. See State v. Brooks, 204 N.C. App.
193, 194-95, 693 S.E.2d 204, 206 (2010). Defendant’s argument is dismissed.
VII. Conclusion
Defendant’s argument that the trial court had no factual basis for requiring
the highest level of monitoring based upon the DOC’s finding of “Average Risk” is
without merit. The conclusion that he requires the highest possible level of
supervision is supported by the factual basis for his plea, the State’s decision not to
pursue further charges, the risks identified by the STATIC-99R, and the four
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Opinion of the Court
additional findings of fact. The trial court properly found and determined SBM could
be lawfully imposed upon Defendant.
Defendant failed to assert at trial and has waived direct appellate review of
any Fourth Amendment challenge to the order requiring him to enroll in the SBM
program for ten years. His argument is dismissed. We also dismiss Defendant’s IAC
claim on this civil issue.
We affirm the judgments entered upon Defendant’s guilty plea. Defendant’s
unpreserved constitutional and his IAC claims are dismissed. It is so ordered.
AFFIRMED IN PART, DISMISSED IN PART.
Chief Judge McGEE and Judge YOUNG concur.
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915 So. 2d 1285 (2005)
Merle RUSS, Jr., Appellant,
v.
Warren J. WOLLHEIM and Sheila H. Wollheim, his wife, Appellees.
No. 2D04-2900.
District Court of Appeal of Florida, Second District.
December 21, 2005.
*1286 Merle Russ, Jr., pro se.
D. James Kadyk of Smith, Clark, Delesie, Bierley, Mueller & Kadyk, Tampa, for Appellee.
WHATLEY, Judge.
Merle Russ, Jr., appeals the summary final judgment entered in favor of the Wollheims in his action against them individually for personal injuries he sustained on April 23, 1997, while descending a ladder on the premises of Dinettes Unlimited, Inc., during his employment with the corporation. Warren Wollheim is president and chief executive officer of Dinettes, and he and his wife Sheila own the real estate on which Dinettes is located. In his complaint, Russ alleged that the Wollheims were negligent per se for constructing the ladder, a stairwell, and a floor in violation of the Pinellas County Building Code.[1] He also alleged that they concealed the violation, that they created a dangerous condition, and that they breached their duty to warn him of said dangerous condition.
We review a summary final judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000).
In their motion for summary judgment, the Wollheims argued, citing Veterans Gas Co. v. Gibbs, 538 So. 2d 1325, 1327 (Fla. 1st DCA 1989), and Haskell Co. v. Lane Co., 612 So. 2d 669 (Fla. 1st DCA 1993), that they are merely the owners of the real estate occupied by Dinettes, that they leased the real estate to Dinettes pursuant to a commercial lease that surrendered *1287 complete possession and control of the premises to Dinettes, that all improvements to the real estate were constructed by Dinettes, and that as the owners and lessors of the premises upon which Dinettes was located, they had no liability to Russ, an invitee of Dinettes.
In Gibbs, 538 So. 2d 1325, and Lane Co., 612 So. 2d 669, the courts held that caveat lessee continues to apply in the context of a commercial lease. Caveat lessee
provides that once a landlord delivers possession and control of the leased premises, including the plumbing, drains, and appliances for heating, lighting and power to the tenant, the landlord is not liable for injury to the property or person of the tenant or those on the premises with the permission of the tenant, even though such injuries are attributable to defects in such apparatus, appliances or fixtures.
Gibbs, 538 So.2d at 1327.
In cases involving a lease, however, the legal relationship (including possession and control of the lessor over the property) between the owner and the property will not necessarily be totally severed. The extent of responsibility for injuries occurring on the property during the term of the lease will depend upon the extent the owner maintains a possessory interest or control over the instrumentality or land which contains a defect which is alleged to have been a proximate cause of the injuries suffered by a plaintiff.
Craig v. Gate Maritime Props., Inc., 631 So. 2d 375, 377 (Fla. 1st DCA 1994) (citing Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987)).
The Wollheims' motion for summary judgment states that the lease surrendered complete possession and control of the premises to Dinettes. Similarly, the Wollheims' affidavits filed in support of their motion state that "by way of the lease" they conferred "complete and exclusive possession and control" of the premises to Dinettes. However, the lease allows the lessee to "alter, add to and improve the Property subject to Lessor's prior written approval." Thus, "by way of the lease," the Wollheims retained a possessory interest or control over the very activity Russ alleged resulted in his injuries. See Craig, 631 So.2d at 377. Consequently, as a matter of law the Wollheims were not entitled to summary final judgment in Russ's premises liability action against them. See Fla. R. Civ. P. 1.510(c).
The Wollheims failed in another respect to carry their burden as the movants to demonstrate that they were entitled to summary judgment. The Wollheims attached to their affidavits the lease as well as the receipts and the copy of the check for the construction of the ladder. The receipts and the check show that Dinettes Unlimited was the customer and that it paid for the alterations on May 14, 1987, whereas the lease contains a date of execution of December 12, 1992. Thus, the Wollheims also failed to show that they had no interest in or control over the premises at the time of the construction of the ladder. Accordingly, we reverse the final summary judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
DAVIS, J., Concurs.
ALTENBERND, J., Concurs with opinion.
ALTENBERND, Judge, Concurring.
I concur in this opinion. I write only to emphasize that we are not questioning the general vitality of the caveat emptor doctrine *1288 as it applies to commercial leases. See Lane Co., 612 So. 2d 669 (certifying a question to the supreme court questioning the future application of this doctrine). The doctrine, however, is subject to some well-recognized exceptions. See Restatement (Second) of Torts §§ 357-62 (1965); see also Propst v. McNeill, 326 Ark. 623, 932 S.W.2d 766, 768 (1996); Deeter v. Dull Corp., Inc., 420 Pa.Super. 576, 617 A.2d 336 (1992).
The facts of this case are somewhat unusual and not well developed in the record. Mr. Russ apparently was employed as a manager of a furniture store operated by Dinettes Unlimited, Inc. The building for this furniture store was owned by Mr. and Mrs. Wollheim and leased to Dinettes Unlimited. Mr. Wollheim, however, is also the president and chief executive officer of Dinettes Unlimited. Thus, it appears that he was directly involved with these facilities on a regular basis in one or both of these capacities.
The record contains little evidence about the allegedly dangerous ladder. The complaint alleges that it was a "make-shift 2' × 4' ladder." It is unlikely that such a ladder would be regarded as a latent defect, but without further development in the record, we cannot conclude as a matter of law that the landlord owed no duty to repair this condition prior to this accident. The record suggests that the ladder was a serious violation of the building code and that Mr. Wollheim may have had actual knowledge of that fact even at the time it was constructed, which may have been in 1987.
No one argues in this case that Dinettes Unlimited has any liability beyond its obligation to provide workers' compensation benefits or that Mr. Wollheim has any liability as an officer of the employer. See § 440.11, Fla. Stat. (1997). On the other hand, if Mr. Wollheim was directly involved in the decision to construct a ladder instead of a stairwell in a building that he was leasing to his own corporation, on the basis of this limited record, we cannot rule out the possibility that he could be liable in tort to Mr. Russ.
NOTES
[1] Russ's complaint incorrectly alleges that the Wollheims' violation of the building code was negligence per se. A building code is designed to protect the general public rather than a particular class of individuals, and therefore, violation of a building code is merely evidence of negligence. Grand Union Co. v. Rocker, 454 So. 2d 14 (Fla. 3d DCA 1984); see Lindsey v. Bill Arflin Bonding Agency Inc., 645 So. 2d 565 (Fla. 1st DCA 1994); Liberty Mut. Ins. Co. v. Kimmel, 465 So. 2d 606 (Fla. 3d DCA 1985). Therefore, Russ had to show more than that the Wollheims violated the building code to present a prima facie case of negligence.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-441
Filed: 7 April 2020
Mecklenburg County, No. 15 CVD 20548
LAI YING TAM HARDY, Plaintiff
v.
MICHAEL FRANKLIN HARDY, Defendant
Appeal by Plaintiff from Order entered 21 December 2018 by Judge Aretha V.
Blake in Mecklenburg County District Court. Heard in the Court of Appeals 29
October 2019.
Moen Legal Counsel, by Lynna P. Moen, for plaintiff-appellant.
No brief filed on behalf of defendant-appellee.
HAMPSON, Judge.
Lai Ying Tam Hardy (Plaintiff) appeals from an Order on Contempt concluding
Michael Franklin Hardy (Defendant) was in criminal contempt for failure to pay
spousal support but not in contempt for failure to pay child support. We dismiss this
appeal because Plaintiff fails to establish this Court has jurisdiction, thus precluding
appellate review.
Factual and Procedural Background
Plaintiff and Defendant were granted a Judgment of Dissolution in California
on 2 November 2007 (California Order). As part of the California Order, Defendant
HARDY V. HARDY
Opinion of the Court
was required, starting in November 2007, to pay Plaintiff $750.00 per month in
spousal support for three years and $1,065.00 per month in child support. Until
approximately 2015, Plaintiff never sought, and Defendant never paid, any payments
under the terms of the California Order.
On 5 November 2015, Plaintiff filed a petition for registration of the California
Order in Mecklenburg County District Court. On 15 February 2018, Plaintiff filed a
notice of registration of the California Order for enforcement purposes only in
Mecklenburg County District Court. Thereafter, Plaintiff filed a Motion for Contempt
with the Mecklenburg County District Court on 23 February 2018. In her Motion for
Contempt, Plaintiff alleged “[Defendant] has willfully failed and refused to abide” by
the California Order through his failure to pay either child or spousal support.
Therefore, Plaintiff requested the trial court issue an “Order requiring [Defendant]
to appear and show cause, if any he has, why he should not be held in contempt and
punished for civil and/or criminal contempt.” Plaintiff further prayed “[Defendant]
be found in civil or criminal contempt for failure to comply with the [California
Order].”
On 28 February 2018, the trial court entered an Order to Show Cause and
Appear stating “it further appearing to the Court that there is probable cause to
believe that contempt exists on the part of Defendant” and ordering Defendant “to
appear and show cause, if any there be, why he should not be adjudged in willful
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HARDY V. HARDY
Opinion of the Court
contempt of Court.” Prior to a hearing on this Order, the trial court entered a Consent
Order for Permanent Child Custody and Visitation (Consent Order) on 12 April 2018,
which provided in relevant part—“The entry of this Consent Order resolves issues of
child custody, child support, and attorney’s fees, currently existing between [Plaintiff]
and [Defendant] herein regarding the best interests, parenting time and general
welfare of the parties’ minor child.”
On 12 October 2018, Plaintiff filed an Amended Notice of Hearing notifying
Defendant “that the pending claim of Motion for Contempt and Motion to Establish
Child Support Arrearage Schedule in the above-referenced matter is now set for trial
for the 19th day of November, 2018[.]” On 16 October 2018, the trial court issued an
Amended Order to Show Cause and Appear, which is identical to the 28 February
2018 Order to Show Cause and Appear except for changing the appearance date to
19 November 2018.
On 19 November 2018, Plaintiff and Defendant, both represented by counsel,
appeared before the trial court for a contempt hearing. At no point during the hearing
did either party or the trial court clarify whether the proceeding was for criminal or
civil contempt. On 21 December 2018, the trial court entered its Order on Contempt.
The Order begins by noting the 19 November 2018 hearing came on for hearing “upon
Plaintiff’s Motion for Contempt” but does not mention its own Amended Order to
Show Cause and Appear. The Order on Contempt found the “Consent Order was
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HARDY V. HARDY
Opinion of the Court
entered that resolved the issues of permanent child custody and child support, but
did not address spousal support”; “[Plaintiff’s] basis for contempt upon the issues of
child support and attorney’s fees was negated by the Consent Order . . . , which
resolved issues of child support then existing between the parties, including then-
pending Motion for Contempt”; and “[Defendant] has failed to pay spousal support
per the stipulations of the California Order [and Defendant] is in willful violation of
the [California Order].”
Based on these Findings, the trial court concluded “there is no basis for a
finding of contempt against [Defendant] regarding the issue of child support” and
that “[Defendant] is in criminal [contempt] for failing to comply with the [California]
Order on spousal support.” Accordingly, the Decretal Section of the Order on
Contempt stated in relevant part:
1. [Plaintiff’s] motion for contempt regarding child support is
denied.
2. [Plaintiff’s] motion for contempt regarding spousal support is
granted.
3. [Defendant] is in criminal contempt for failure to pay spousal
support.
4. [Defendant] is sentenced to fifteen (15) days incarceration.
The foregoing sentence is suspended and [Defendant] shall be
on unsupervised probation for six months under the following
terms and conditions:
a. [Defendant] shall pay to [Plaintiff] $168.75 per month
beginning January 15, 2019.
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HARDY V. HARDY
Opinion of the Court
5. Each party shall bear their own costs for this action.
[Plaintiff’s] claim for attorney’s fees is denied as attorney’s fees
are not recoverable upon a finding of criminal contempt.
On 18 February 2019, Plaintiff filed Notice of Appeal to this Court from the Order on
Contempt.
Failure to Establish Grounds for Appellate Jurisdiction
“It is well established that the appellant bears the burden of showing to this
Court that the appeal is proper.” Johnson v. Lucas, 168 N.C. App. 515, 518, 608
S.E.2d 336, 338, aff’d per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). “Where the
appellant fails to carry the burden of making such a showing to the court, the appeal
will be dismissed.” Id. (citation omitted).
Here, Plaintiff’s statement of grounds for appellate review states: “This appeal
is from a final judgment of a district court in a civil action; thus appeal lies of right
directly to this Court. N.C. Gen. Stat. § 7A-27(c) (2012).” Plaintiff cites a repealed
version of Section 7A-27, which is now found at Section 7A-27(b)(2). See 2013 N.C.
Sess. Law 411, § 1 (N.C. 2013); see also N.C. Gen. Stat. § 7A-27(b)(2) (2019). More
significantly though, Plaintiff fails to acknowledge Chapter 5A of our General
Statutes governs both civil and criminal contempt proceedings, including specifically
the right to appeal. Moreover, Plaintiff fails to articulate any basis for appealing from
an order denying her contempt motion and, in particular, fails to distinguish whether
the trial court’s denial was grounded in civil or criminal contempt.
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HARDY V. HARDY
Opinion of the Court
The distinction between civil and criminal contempt is important.
At the outset we note that contempt in this jurisdiction may
be of two kinds, civil or criminal, although we have stated that
the demarcation between the two may be hazy at best. Criminal
contempt is generally applied where the judgment is in
punishment of an act already accomplished, tending to interfere
with the administration of justice. Civil contempt is a term
applied where the proceeding is had to preserve the rights of
private parties and to compel obedience to orders and decrees
made for the benefit of such parties.
A major factor in determining whether contempt is civil or
criminal is the purpose for which the power is exercised. Where
the punishment is to preserve the court’s authority and to punish
disobedience of its orders, it is criminal contempt. Where the
purpose is to provide a remedy for an injured suitor and to coerce
compliance with an order, the contempt is civil. The importance
in distinguishing between criminal and civil contempt lies in the
difference in procedure, punishment, and right of review.
O’Briant v. O’Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985) (emphasis added)
(citations omitted); see also Hancock v. Hancock, 122 N.C. App. 518, 522, 471 S.E.2d
415, 418 (1996) (explaining “the character of the relief is dispositive of the distinction
between criminal and civil contempt, and where the relief is imprisonment, but the
contemnor may avoid or terminate imprisonment by performing an act required by
the court, then the contempt is civil in nature” (citation omitted)).
Willful noncompliance with a court order may constitute either criminal or civil
contempt. See N.C. Gen. Stat. §§ 5A-11(a)(3); -21(a) (2019). The process for
instituting either a civil or criminal contempt proceeding is set by statute. See id. §§
5A-14, -15; -23 (2019) (summary proceeding for criminal, plenary proceeding for
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HARDY V. HARDY
Opinion of the Court
criminal, and civil, respectively). Pursuant to Section 5A-15, a judicial official may
institute plenary criminal contempt proceedings1 “by an order directing the person to
appear before a judge at a reasonable time specified in the order and show cause why
he should not be held in contempt of court.” Id. § 5A-15(a). Whereas, civil contempt
proceedings may be initiated:
(1) by the order of a judicial official directing the alleged
contemnor to appear at a specified reasonable time and show
cause why he should not be held in civil contempt; (2) by the notice
of a judicial official that the alleged contemnor will be held in
contempt unless he appears at a specified reasonable time and
shows cause why he should not be held in contempt; or (3) by
motion of an aggrieved party giving notice to the alleged
contemnor to appear before the court for a hearing on whether the
alleged contemnor should be held in civil contempt.
Cumberland Cty. v. Manning, ___ N.C. App. ___, ___, 822 S.E.2d 305, 308 (2018)
(citations and quotation marks omitted).
In civil contempt, “[a]n alleged contemnor has the burden of proof under the
first two methods used to initiate a show cause proceeding.” Cumberland Cty. ex rel.
Lee v. Lee, ___ N.C. App. ___, ___, 828 S.E.2d 548, 551 (citation omitted), disc. rev.
denied, 372 N.C. 708, 830 S.E.2d 836 (2019). “However, if an aggrieved party initiates
a show cause proceeding instead of a judicial official, the burden of proof is on the
aggrieved party instead, because there has not been a judicial finding of probable
cause.” Id. (citation and quotation marks omitted). On the other hand, in a show-
1A trial court may also institute summary criminal contempt proceedings for direct criminal
contempt under Section 5A-14. See id. § 5A-14(a).
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HARDY V. HARDY
Opinion of the Court
cause proceeding for criminal contempt, the contemnor does not have the burden of
proof; rather, the “trial court must find facts supporting . . . contempt, and the facts
must be established beyond a reasonable doubt.” State v. Phillips, 230 N.C. App. 382,
385, 750 S.E.2d 43, 45 (2013) (alterations, citation, and quotation marks omitted).
Importantly, the appeal process differs markedly between civil and criminal
contempt orders entered in district court. Section 5A-17(a) provides—“A person
found in criminal contempt may appeal in the manner provided for appeals in
criminal actions, except appeal from a finding of contempt by a judicial officer inferior
to a superior court judge is by hearing de novo before a superior court judge.” N.C.
Gen. Stat. § 5A-17(a) (2019) (emphasis added). Whereas, Section 5A-24 provides—“A
person found in civil contempt may appeal in the manner provided for appeals in civil
actions.” Id. § 5A-24 (2019). Further, as a general principle, “[o]ur statutes make no
provision for appeal when a person is found not in contempt.” Patterson v. Phillips,
56 N.C. App. 454, 454, 289 S.E.2d 48, 49 (1982). Thus, there is no individual right to
appeal a trial court’s decision not to hold an alleged contemnor in criminal contempt.
See id. at 456, 289 S.E.2d at 50 (“The government, the courts and the people have an
interest in the prosecution of criminal contempt charges; however, the plaintiff
individually has no substantial right to the relief requested.”). In the civil contempt
context, however, our Court has recognized a right to appeal the dismissal of a civil
contempt charge so long as “the order affects a substantial right claimed by the
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HARDY V. HARDY
Opinion of the Court
appellant.” Equipment Co. v. Weant, 30 N.C. App. 191, 194, 226 S.E.2d 688, 690
(1976) (citation omitted).
Here, it is not entirely clear Plaintiff has any right to appeal the Order on
Contempt. 2 Although the trial court expressly found Defendant in criminal contempt
for failure to pay spousal support, the Order on Contempt only states Plaintiff’s
“motion for contempt regarding child support is denied.” Plaintiff cites no specific
authority allowing for appellate review of this Order. If this conclusion by the trial
court relates to criminal contempt, then Plaintiff has no right to appeal the Order.
See Patterson, 56 N.C. App. at 454-56, 289 S.E.2d at 49-50 (citations omitted).
Further, even assuming the trial court’s conclusion Defendant was not in contempt
regarding child support relates to civil contempt, Plaintiff’s brief still fails to
articulate why or how this appeal is proper. As discussed supra, the right to appeal
2 Neither the process employed by the parties and the trial court nor the trial court’s Order on
Contempt is a model of clarity. For instance, Plaintiff in her Motion for Contempt requested the trial
court issue a show-cause order ordering Defendant to show cause “why he should not be held in
contempt and punished for civil and/or criminal contempt.” The trial court’s Order to Show Cause and
Appear states only “it further appearing to the Court that there is probable cause to believe that
contempt exists on the part of Defendant[.]” At the contempt hearing, neither the trial court nor the
parties clarified whether the proceeding was for civil contempt, criminal contempt, or both. When
rendering its ruling on criminal contempt for failure to pay spousal support, the trial court based its
ruling in part on Defendant’s “failure to meet his burden that he was not in willful noncompliance”
with the California Order; however, Defendant does not bear the burden in criminal contempt
proceedings. See Phillips, 230 N.C. App. at 385, 750 S.E.2d at 45 (citation omitted). Indeed, the trial
court failed to provide Defendant with the protections afforded an alleged contemnor in criminal
contempt, including the right against self-incrimination. See Bishop v. Bishop, 90 N.C. App. 499, 505-
06, 369 S.E.2d 106, 109-10 (1988) (citation omitted). Although the trial court expressly found
Defendant in criminal contempt for failing to pay spousal support in its Order on Contempt, the trial
court failed to designate whether its finding of no contempt regarding child support was based on civil
or criminal contempt.
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HARDY V. HARDY
Opinion of the Court
the dismissal of a civil contempt charge only exists if “the order affects a substantial
right claimed by the appellant.” Weant, 30 N.C. App. at 194, 226 S.E.2d at 690
(citation omitted). Plaintiff, however, makes no argument a substantial right of
Plaintiff’s will be affected absent review by this Court of the Order on Contempt.
Although such an argument could potentially be made, “[i]t is not the role of the
appellate courts . . . to create an appeal for an appellant.” Viar v. N.C. Dep’t of
Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Plaintiff’s failure to present
any adequate basis upon which we can determine whether this Court has jurisdiction
to review her appeal precludes our ability to substantively review this case and
constitutes a failure to meet her burden to establish this Court’s jurisdiction. See
Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338 (citation omitted).
Indeed, Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure
specifically requires an appellant’s brief to include a statement of the grounds for
appellate review, which “shall include citation of the statute or statutes permitting
appellate review.” N.C.R. App. P. 28(b)(4) (emphasis added). It is unclear whether
the trial court’s denial of contempt was grounded in civil or criminal contempt, and
Plaintiff fails to establish any ground, statutory or otherwise, for appealing the
portion of the trial court’s Order denying contempt. This constitutes a substantial
violation of the appellate rules, impairing our review. See Dogwood Dev. & Mgmt.
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HARDY V. HARDY
Opinion of the Court
Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366-67 (2008)
(citations omitted). Therefore, we must dismiss this appeal.
Conclusion
Accordingly, for the foregoing reasons, we dismiss Plaintiff’s appeal.
APPEAL DISMISSED.
Judges INMAN and BERGER concur.
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https://www.courtlistener.com/api/rest/v3/opinions/4523078/
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-511
Filed: 7 April 2020
Alamance County, No. 18CVD1960
WANDA GRAHAM and GEORGE L. GRAHAM, Plaintiffs,
v.
STEPHANIE JONES, Defendant.
Appeal by Defendant from order entered 16 November 2018 by Judge Larry D.
Brown, Jr., in Alamance County District Court. Heard in the Court of Appeals 4
December 2019.
Fairman Family Law, by Kelly Fairman, for Plaintiffs-Appellees.
North Carolina Central University School of Law Clinical Legal Education
Program, by Nakia C. Davis, Esq., for Defendant-Appellant.
COLLINS, Judge.
Defendant appeals a custody order granting her full physical and legal custody,
care, and control of her minor child but granting the minor child’s grandparents
visitation. Defendant argues that the trial court erred by proceeding with a best
interest of the child analysis after granting Defendant full physical and legal custody,
care, and control of the child and, based on this analysis, erred by granting Plaintiffs
visitation with the child. For the reasons stated below, we reverse the trial court’s
order and dismiss the custody action.
GRAHAM V. JONES
Opinion of the Court
I. Factual Background
Wanda Graham and George L. Graham (“Plaintiffs”) are the paternal
grandparents1 of Abby.2 Abby was born on 8 February 2018 to Plaintiffs’ son,
Christopher Tice Butler, Jr. (“Christopher”), and Stephanie Jones (“Defendant”).
Christopher, Defendant, and Abby lived with Plaintiffs in Snow Camp, North
Carolina from the date of Abby’s birth until July 2018. In July and August 2018,
Christopher, Defendant, and Abby lived together in a rental apartment in North
Carolina with Defendant’s two other minor children.
By Domestic Violence Protective Order (“DVPO”) entered 13 August 2018,
Defendant was found to have attempted to cause Christopher bodily injury on 6
August 2018 by slapping him while he was holding Abby. The DVPO prohibited
Defendant from having contact with Christopher, granted Christopher temporary
custody of Abby, and granted Defendant visitation with Abby for one hour per week.
The DVPO was to expire by its terms on 13 August 2019. Christopher and Abby
moved back into the Plaintiffs’ home. Defendant moved to Texas and did not exercise
her visitation with Abby.
On 30 September 2018, Christopher passed away in an automobile accident.
Abby remained in Plaintiffs’ home. On 2 October 2018, Plaintiffs filed a complaint
1 George L. Graham is Abby’s paternal step-grandfather.
2 We use a pseudonym to protect the identity of the minor child. See N.C. R. App. P. 3.1(b).
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GRAHAM V. JONES
Opinion of the Court
pursuant to N.C. Gen. Stat. § 50-13.1(a) seeking “full legal custody of the minor child”
and “primary physical custody of the minor child on an emergency, temporary, and
permanent basis.” Plaintiffs alleged, inter alia, “Defendant stated she will be in the
jurisdiction on Thursday, October 4, 2018, to retrieve the child and remove her from
the jurisdiction”; “Defendant abandoned the minor child and moved to Floresville, TX
in August 2018 with no notice and has had minimal contact with Plaintiff[s]
regarding the welfare of the minor child”; “Defendant suffers from severe depression
and bi-polar disorder, for which she does not take her prescribed medication”;
“Defendant also cuts herself as a side effect of her mental disorders”; “Defendant has
been hospitalized in the psychiatric unit at Alamance Regional Medical Center due
to her mental disorders”; and “Defendant has acted inconsistently with her
constitutionally-protected status and custody should be granted to the Plaintiffs.” On
3 October 2018, the trial court entered an Ex Parte Order granting Plaintiffs custody
of Abby, prohibiting Defendant from removing Abby from Plaintiffs’ custody, and
setting a temporary custody hearing for 24 October 2018. On 15 October 2018,
Defendant filed an answer to the complaint.
On 24 October 2018, the parties appeared for the temporary custody hearing
in Alamance County District Court. After the hearing, the trial court took the matter
under advisement. On 26 October 2018, the trial court gave an oral ruling from the
bench. The oral ruling was reduced to writing and entered on 16 November 2018
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GRAHAM V. JONES
Opinion of the Court
(“Custody Order”). In the Custody Order, the trial court made sixty-three findings of
fact and, based upon those findings, concluded, inter alia:
6. That the court is not considering the best interest of the
minor child standard at this posture of the case.
7. Defendant is not an unfit parent.
8. Defendant has not abandoned her daughter.
9. That the minor child has not been neglected by
Defendant.
10. That Defendant has not acted in a manner inconsistent
with her constitutionally protected right as a parent.
11. That Defendant is a fit and proper person to have full
physical and legal custody of the minor child.
12. That it is in the best interest of the minor child to place
full physical and legal custody with Defendant,
Stephanie Jones.
13. That Plaintiffs are fit and proper person[s] to have
reasonable visitation with the minor child.
14. That the Court has the authority to grant Plaintiffs
reasonable visitation.
15. That it is in the best interest of the minor child to have
reasonable visitation with Plaintiffs, Wanda Graham
and George Graham.
The trial court thus ordered that Defendant have “full physical, legal, custody
care and control” of Abby, but that Plaintiffs should have visitation with Abby, who
was approximately nine months old at the time, as follows: (a) On the third weekend
of every month Plaintiffs have unsupervised visitation from Friday at 6 a.m. to
Monday at 6 a.m. The parties shall exchange the child at a neutral location half–way
between Plaintiffs’ home in North Carolina and Defendant’s home, which was in
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GRAHAM V. JONES
Opinion of the Court
Texas at that time; (b) Plaintiffs are permitted to video chat with Abby four times per
week, every Monday, Thursday, Friday, and Sunday, from 6:00 p.m. to 7:00 p.m.; and
(c) Plaintiffs have unsupervised visitation with Abby for a period of two uninterrupted
weeks during the summer. “The weeks shall be defined as 6:00[]a.m. on Monday to
6:00[]a.m. on Monday (14 days).”
On 13 December 2018, Defendant filed notice of appeal.
II. Discussion
Defendant argues on appeal that the Custody Order is immediately appealable
as it is a permanent order. In the alternative, Defendant argues that the Custody
Order is immediately appealable as it affects a substantial right. Defendant further
argues that the trial court erred by proceeding with a best interest analysis after
granting Defendant full physical and legal custody, care, and control of Abby, and
erred by granting Plaintiffs visitation with Abby.
A. Immediate Appellate Review
We first determine whether this appeal is properly before us. Defendant
argues that the Custody Order is immediately appealable because it (1) is a
permanent custody order and (2) affects a substantial right.
1. Permanent Custody Order
A party is generally not entitled to appeal from a temporary custody order
while a permanent custody order is immediately appealable. Brown v. Swarn, 257
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GRAHAM V. JONES
Opinion of the Court
N.C. App. 418, 422-23, 810 S.E.2d 237, 240 (2018) (citation omitted). “[A] temporary
or interlocutory custody order is one that does not determine the issues, but directs
some further proceeding preliminary to a final decree.” Smith v. Barbour, 195 N.C.
App. 244, 250, 671 S.E.2d 578, 583 (2009) (internal quotation marks and citation
omitted). “[W]hether an order is temporary or permanent in nature is a question of
law, reviewed on appeal de novo.” Id. at 249, 671 S.E.2d at 582 (citation omitted).
A “temporary custody order[] establish[es] a party’s right to custody of a child
pending the resolution of a claim for permanent custody—that is, pending the
issuance of a permanent custody order.” Regan v. Smith, 131 N.C. App. 851, 852–53,
509 S.E.2d 452, 454 (1998) (citations omitted). In contrast, “[a] permanent custody
order establishes a party’s present right to custody of a child and that party’s right to
retain custody indefinitely. . . .” Id. “Generally, a child custody order is temporary if
. . . ‘(1) it is entered without prejudice to either party, (2) it states a clear and specific
reconvening time in the order and the time interval between the two hearings [is]
reasonably brief[,] or (3) the order does not determine all the issues.’” Kanellos v.
Kanellos, 251 N.C. App. 149, 153, 795 S.E.2d 225, 229 (2016) (quoting Senner v.
Senner, 161 N.C. App. 78, 81, 587 S.E.2d 675, 677 (2003)). If the order “does not meet
any of these criteria, it is permanent.” Peters v. Pennington, 210 N.C. App. 1, 14, 707
S.E.2d 724, 734 (2011) (citation omitted). “Further, it is the satisfaction of these
criteria, or lack thereof, and not any designation by a district court of an order as
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GRAHAM V. JONES
Opinion of the Court
temporary or permanent which controls.” Kanellos, 251 N.C. App. at 153, 795 S.E.2d
at 229 (citations omitted).
a. Prejudice
“An order is without prejudice if it is entered without loss of any rights; in a
way that does not harm or cancel the legal rights or privileges of a party.” Marsh v.
Marsh, 816 S.E.2d 529, 532 (N.C. Ct. App. 2018) (quotation marks, brackets, and
citation omitted). The Custody Order before us “granted full physical, legal, custody
care and control” of Abby to Defendant, with visitation to Plaintiffs. Unlike the Ex
Parte Order entered in this case which expressly stated, “This is a temporary order
and not prejudicial to either party[,]”the Custody Order does not contain express
language indicating that it was entered without prejudice to either party. See, i.e.,
Senner, 161 N.C. App. at 81, 587 S.E.2d at 677 (holding the custody order was entered
“without prejudice” because it contained express language stating as such).
Moreover, it is not clear from the plain language of the Custody Order that it was
entered without the loss of rights, or otherwise prejudicial to the legal rights of either
party. See Marsh, 816 S.E.2d at 532 (“Even though the trial court did not include
express language in the order stating it was entered ‘without prejudice,’ it is clear
from the plain language of the order that it was entered without the loss of rights, or
otherwise prejudicial to the legal rights of either party.”). To the contrary, the plain
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GRAHAM V. JONES
Opinion of the Court
language of the Custody Order indicates it was permanently adjudicating the parties’
rights with respect to Abby’s custody.
b. Reconvening Time
The Custody Order does not state a reconvening time. Kanellos, 251 N.C. App.
at 153, 795 S.E.2d at 229. Moreover, no language in the Custody Order indicates that
any further reconvening time is contemplated. The Custody Order grants “full
physical, legal, custody care and control” of Abby to Defendant and sets forth a
visitation schedule for Plaintiffs for the indefinite future. Furthermore, the Custody
Order encompasses future conduct, including “[t]hat the parties may mutually agree
to additional visitation[,]” and that Defendant shall continue her mental health
treatment and prescription medications.
c. Determination of Issues
As the trial court found in the Custody Order, “the question in this matter is a
question of whether the parent [Defendant] is unfit or acted in a manner that is
inconsistent with her constitutionally protected right as a parent.” The trial court
made extensive findings of fact, addressing, inter alia, Defendant’s mental health,
drug addiction, ability to provide financial support for Abby, the nature of Abby’s
relationship with Plaintiffs, and whether Defendant was a fit and proper parent who
had acted consistently with her constitutionally protected right as a parent.
Based upon these findings, the trial court concluded, inter alia:
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GRAHAM V. JONES
Opinion of the Court
7. Defendant is not an unfit parent.
8. Defendant has not abandoned her daughter.
9. That the minor child has not been neglected by
Defendant.
10. That Defendant has not acted in a manner inconsistent
with her constitutionally protected right as a parent.
11. That Defendant is a fit and proper person to have full
physical and legal custody of the minor child.
12. That it is in the best interest of the minor child to place
full physical and legal custody with Defendant, Stephanie
Jones.
The trial court accordingly ordered that Defendant “be granted full physical, legal,
custody care and control” of Abby. Thus, the Custody Order “determine[d] all the
issues.” Kanellos, 251 N.C. App. at 149, 795 S.E.2d at 229.
Plaintiffs argue that the Custody Order is temporary because, as in Sood v.
Sood, 222 N.C. App. 807, 809, 732 S.E.2d 603, 606 (2012), it fails to determine a
holiday visitation schedule for Abby. In Sood, the trial court’s custody order granted
joint legal custody of the minor child to both biological parents and specified a
custodial schedule for the upcoming Christmas holiday and spring break, but did not
resolve the holiday custodial schedule for the indefinite future. Id. at 809, 732 S.E.2d
at 606. Based in part on the lack of a future holiday custodial schedule, this Court
concluded the order was temporary.
In the present case, the Custody Order concluded that Defendant, Abby’s
biological mother, “has not acted in a manner inconsistent with her constitutionally
protected right as a parent” and granted Defendant “full physical, legal, custody care
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GRAHAM V. JONES
Opinion of the Court
and control” of Abby. Thus, unlike the order in Sood, the Custody Order here granted
Defendant full custody of Abby at all times, resolving the holiday custodial schedule
for the indefinite future. The visitation schedule set forth in the Custody Order
comprised the complete grant of visitation to Plaintiffs, Abby’s grandparents, for the
indefinite future.
Plaintiffs further argue that the Custody Order is temporary because it failed
to analyze whether Plaintiffs had standing to bring this custody action. “Standing is
a necessary prerequisite to a court’s proper exercise of subject matter jurisdiction.”
Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878 (2002). “If a party does
not have standing to bring a claim, a court has no subject matter jurisdiction to hear
the claim.” Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175,
177, 607 S.E.2d 14, 16 (2005). Here, the trial court specifically concluded, “That this
Court has subject matter jurisdiction to hear this matter.” This conclusion
necessarily encompasses the trial court’s conclusion that Plaintiffs had standing to
bring this custody action.3
3 Had the trial court concluded that Plaintiffs lacked standing to bring this custody action, the
trial court would have been required to dismiss the action. See Chavez v. Wadlington, 821 S.E.2d 289,
291 (N.C. Ct. App. 2018) (affirming the trial court’s order dismissing plaintiff’s complaint for lack of
subject matter jurisdiction where plaintiff lacked standing as an “other person” pursuant to N.C. Gen.
Stat. § 50-13.1(a) to seek custody of the minor children at issue).
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GRAHAM V. JONES
Opinion of the Court
We acknowledge that the Custody Order was issued as a result of a temporary
custody hearing, and that the trial court decreed in the Ex Parte Order that a
temporary order would be entered as a result of the temporary hearing. However,
“[a] trial court’s label of a custody order as ‘temporary’ is not dispositive[,]” Sood, 222
N.C. App. at 809, 732 S.E.2d at 606 (citation omitted), and precedent dictates that an
order that does not meet any of the Kanellos criteria is permanent. Peters, 210 N.C.
App. at 14, 707 S.E.2d at 734. As the Custody Order was not entered without
prejudice to the parties, does not set a reconvening time for a subsequent hearing,
and determines all of the issues before the trial court, the Custody Order is a final
order. Defendant’s appeal is therefore properly before this Court. N.C. Gen. Stat.
§ 7A-27(b)(2) (2019).
2. Substantial Right
In addition to the Custody Order being permanent, the Custody Order affects
a substantial right and is thus immediately appealable.
An interlocutory order may be immediately appealed in
only two circumstances: (1) when the trial court, pursuant
to N.C.R. Civ. P. 54(b), enters a final judgment as to one or
more but fewer than all of the claims or parties and
certifies that there is no just reason to delay the appeal; or
(2) when the order deprives the appellant of a substantial
right that would be lost absent appellate review prior to a
final determination on the merits.
High Rock Lake Partners, LLC v. N.C. Dep’t of Transp., 204 N.C. App. 55, 61, 693
S.E.2d 361, 366 (2010) (citation omitted). In the present case, the Custody Order was
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GRAHAM V. JONES
Opinion of the Court
not certified by the trial court pursuant to Rule 54(b). However, citing Price v.
Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), and Petersen v. Rogers, 337 N.C. 397,
445 S.E.2d 901 (1994), Defendant asserts that the trial court’s order awarding
visitation rights to Plaintiffs implicated Defendant’s constitutionally protected
interest in the custody, care, and control of Abby.
In Petersen, our Supreme Court explicitly recognized “the strength of the right
of natural parents as against others[.]” Petersen, 337 N.C. at 403, 445 S.E.2d at 904.
Petersen also adopted precedent of this Court holding that “parents’ paramount right
to custody includes the right to control their children’s associations[.]” Id. at 403, 445
S.E.2d at 904-05 (quoting Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716
(1977) (“So long as parents retain lawful custody of their minor children, they retain
the prerogative to determine with whom their children shall associate.”)). Our
Supreme Court reiterated these principles in Owenby v. Young, 357 N.C. 142, 579
S.E.2d 264 (2003), in which it
[n]ote[d] that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to
make decisions concerning the care, custody, and control of
their children. This parental liberty interest is perhaps the
oldest of the fundamental liberty interests the United
States Supreme Court has recognized. This interest
includes the right of parents to establish a home and to
direct the upbringing and education of their children.
Indeed, the protection of the family unit is guaranteed not
only by the Due Process Clause, but also by the Equal
Protection Clause of the Fourteenth Amendment and
possibly by the Ninth Amendment. . . . The protected
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GRAHAM V. JONES
Opinion of the Court
liberty interest . . . is based on a presumption that [parents]
will act in the best interest of the child.
Id. at 144-45, 579 S.E.2d at 266 (internal quotation marks and citations omitted); see
also Troxel v. Granville, 530 U.S. 57 (2000).
In In re Adoption of Shuler, 162 N.C. App. 328, 590 S.E.2d 458 (2004), the
biological father of a minor child appealed the trial court’s denial of his motion to
dismiss a third-party petition to adopt the child. This Court held that, although the
father’s appeal was interlocutory, the trial court’s order affected a substantial right
because it “eliminate[d] the [father’s] fundamental right . . . , as a parent, to make
decisions concerning the care, custody, and control of [the child][.]” Id. at 330, 590
S.E.2d at 460 (internal quotation marks and citation omitted).
In the present case, we similarly conclude that the trial court’s order directing
Defendant to allow Plaintiffs access to and visitation with Abby affected Defendant’s
fundamental right to make decisions concerning the care, custody, and control of her
child, including the child’s association with third parties. Notwithstanding statutory
provisions that permit grandparents to seek visitation rights in limited
circumstances, this Court has explicitly held that “[a] grandparent is a third party to
the parent-child relationship. Accordingly, the grandparent’s rights to the care,
custody[,] and control of the child are not constitutionally protected while the parent’s
rights are protected.” Eakett v. Eakett, 157 N.C. App. 550, 554, 579 S.E.2d 486, 489
(2003). In this case, Defendant “enjoys a constitutional right to the care, custody, and
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GRAHAM V. JONES
Opinion of the Court
control of [her] child that [sprung] upon the death of [Christopher,] the custodial
parent[,] to the exclusion of and superior to any interest held by a grandparent.”
Rivera v. Matthews, 824 S.E.2d 164, 169 (N.C. Ct. App. 2019). The trial court’s order
granting visitation to Plaintiffs therefore affected a substantial right, and
Defendant’s appeal is properly before us.
B. Custody
Defendant next argues that the trial court erred by engaging in a best interest
analysis after granting Defendant full physical and legal custody, care, and control of
Abby and by granting Plaintiffs visitation with Abby.
Four statutes address grandparent custody and visitation in North Carolina.
Under N.C. Gen. Stat. § 50-13.1(a),
Any parent, relative, or other person, agency, organization
or institution claiming the right to custody of a minor child
may institute an action or proceeding for the custody of
such child, as hereinafter provided. . . . Unless a contrary
intent is clear, the word “custody” shall be deemed to
include custody or visitation or both.
N.C. Gen. Stat. § 50-13.1(a) (2019). While “[i]n certain contexts ‘custody’ and
‘visitation’ are synonymous[,] . . . it is clear that in the context of grandparents’ rights
to visitation, the two words do not mean the same thing.” McIntyre v. McIntyre, 341
N.C. 629, 634, 461 S.E.2d 745, 749 (1995). Thus, “[a]lthough this broad statute
describes general standing to seek custody or visitation, our Supreme Court has
applied canons of statutory construction to determine the statute only grants
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GRAHAM V. JONES
Opinion of the Court
grandparents standing for custody, not visitation.” Wellons v. White, 229 N.C. App.
164, 174, 748 S.E.2d 709, 717 (2013) (citing McIntyre, 341 N.C. at 635, 461 S.E.2d at
750) (other citation omitted). A grandparent initiating a proceeding for custody under
N.C. Gen. Stat. § 50-13.1(a) must allege that the parent is unfit or has acted in a
manner inconsistent with her parental status. See Eakett, 157 N.C. App. at 553, 579
S.E.2d at 489 (citations omitted); Yurek v. Shaffer, 198 N.C. App. 67, 75, 678 S.E.2d
738, 744 (2009).
The following three statutes (“grandparent visitation statutes”) “provide
grandparents with the right to seek ‘visitation’ only in certain clearly specified
situations[,]” McIntyre, 341 N.C. at 635, 461 S.E.2d at 749-50: (1) N.C. Gen. Stat.
§ 50-13.2(b1) allows grandparents to be granted visitation as part of an ongoing
custody dispute, although it does not allow grandparents to initiate an independent
action for visitation. See Moore v. Moore, 89 N.C. App. 351, 353, 365 S.E.2d 662, 663
(1988); (2) N.C. Gen. Stat. § 50-13.2A permits a biological grandparent to request
visitation with the grandchild if the grandchild is adopted by a stepparent or relative
of the child, provided the child and grandparent have a substantial relationship; and
(3) N.C. Gen. Stat. § 50-13.5(j) allows grandparents to seek visitation by intervening
in an existing custody case and alleging facts sufficient to support a showing of a
substantial change of circumstances affecting the welfare of the child since the
original order was entered and that modification is in the best interest of the child.
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“Th[ese] situations do not include that of initiating suit against parents whose family
is intact and where no custody proceeding is ongoing.” McIntyre, 341 N.C. at 635, 461
S.E.2d at 750. Thus, under the grandparent visitation statutes, “a grandparent’s
right to visitation arises either in the context of an ongoing custody proceeding or
where the minor child is in the custody of a stepparent or a relative.” Id. at 634, 461
S.E.2d at 749.
“[W]here one parent is deceased, the surviving parent has a natural and legal
right to custody and control of the minor children.” McDuffie v. Mitchell, 155 N.C.
App. 587, 589, 573 S.E.2d 606, 607-08 (2002) (citation omitted). “That maxim was no
less true when the sole surviving parent was the non-custodial parent of the
children[.]” Rivera, 824 S.E.2d at 168-69.
Here, when Plaintiffs filed their complaint, there was no ongoing custody
proceeding as Defendant had a natural and legal right to custody and control of Abby
upon Christopher’s death, see McDuffie, 155 N.C. App. at 589, 573 S.E.2d at 607-08,
and Abby had not been adopted by a stepparent or relative. Thus, Plaintiffs lacked
standing to bring a claim for visitation under any of the grandparent visitation
statutes. However, as Plaintiffs stress in their brief, whether there was an ongoing
custody proceeding or whether Abby “was living in an intact family when this action
was filed” are “irrelevant” considerations as Plaintiffs were not seeking visitation
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Opinion of the Court
under any of the grandparent visitation statutes, but instead brought their action for
custody under N.C. Gen. Stat. § 50-13.1(a).
In their complaint, Plaintiffs alleged that Defendant was unfit and had acted
inconsistently with her parental status. Plaintiffs thus had standing to bring this
custody action pursuant to N.C. Gen. Stat. § 50-13.1(a). See Eakett at 553, 579 S.E.2d
at 489; Rodriguez v. Rodriguez, 211 N.C. App. 267, 274, 710 S.E.2d 235, 240 (2011).
Nevertheless, even when grandparents have standing to bring a custody action, to
gain custody they must still overcome a parent’s “constitutionally-protected
paramount right . . . to custody, care, and control of [the child.]” Petersen, 337 N.C.
at 403-04, 445 S.E.2d at 905. “While the best interest of the child standard would
apply in custody disputes between two parents, in a dispute between parents and
grandparents there must first be a finding that the parent is unfit.” Sharp v. Sharp,
124 N.C. App. 357, 361, 477 S.E.2d 258, 260 (1996) (citation omitted).
“If a natural parent’s conduct has not been inconsistent with his or her
constitutionally protected status, application of the ‘best interest of the child’
standard in a custody dispute with a nonparent would offend the Due Process
Clause.” Price, 346 N.C. at 79, 484 S.E.2d at 534. Accordingly, only after the trial
court has determined that the parent has acted in a manner inconsistent with his or
her protected status may the trial court apply the best interest of the child test to
determine custody. Seyboth v. Seyboth, 147 N.C. App. 63, 67, 554 S.E.2d 378, 381
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GRAHAM V. JONES
Opinion of the Court
(2001). If, however, the grandparent is not able to show that the parent has lost his
or her protected status, the custody claim against the parent must be dismissed. See
Owenby, 357 N.C. at 148, 579 S.E.2d at 268 (reinstating the trial court’s order
dismissing grandparent’s custody action where grandparent “failed to carry her
burden of demonstrating that defendant forfeited his protected status”).
In this case, based upon its extensive findings of fact, the trial court concluded,
in relevant part:
7. Defendant is not an unfit parent.
8. Defendant has not abandoned her daughter.
9. That the minor child has not been neglected by
Defendant.
10. That Defendant has not acted in a manner inconsistent
with her constitutionally protected right as a parent.
11. That Defendant is a fit and proper person to have full
physical and legal custody of the minor child.
Although the trial court initially concluded, “6. That the court is not
considering the best interest of the minor child standard at this posture of the case[,]”
the trial court’s following conclusions plainly indicate otherwise:
12. That it is in the best interest of the minor child to place
full physical and legal custody with Defendant, Stephanie
Jones.
13. That Plaintiffs are fit and proper person[s] to have
reasonable visitation with the minor child.
14. That the Court has the authority to grant Plaintiffs
reasonable visitation.
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GRAHAM V. JONES
Opinion of the Court
15. That it is in the best interest of the minor child to have
reasonable visitation with Plaintiffs, Wanda Graham and
George Graham.
As Defendant remained entitled to constitutional protection of her parental
status upon Christopher’s death, Rivera, 824 S.E.2d at 168-69, and the trial court
found that Defendant was not an unfit parent and had not acted inconsistently with
her constitutionally-protected status as a parent, the trial court’s application of the
“best interest of the child” standard before concluding that Plaintiff was entitled to
full legal and physical custody of Abby “offend[s] the Due Process Clause.” Price, 346
N.C. at 79, 484 S.E.2d at 534. Moreover, as the trial court found that Defendant was
not an unfit parent and had not acted inconsistently with her
constitutionally-protected status as a parent, the trial court’s “inquiry into
[Plaintiffs’] fitness for purposes of custody was irrelevant[,]” Petersen, 337 N.C. at
404, 445 S.E.2d at 905; the trial court erred in concluding that it had the authority to
grant Plaintiffs visitation; and the trial court’s application of the “best interest of the
child” standard to grant Plaintiffs visitation again “offend[s] the Due Process Clause.”
Id.
As the trial court found that Defendant was not an unfit parent and had not
acted inconsistently with her constitutionally protected status as a parent, there was
no basis for the trial court to grant visitation to the Plaintiffs. See Rodriguez, 211
N.C. App. at 279, 710 S.E.2d at 244 (in a custody action brought by grandparents
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Opinion of the Court
pursuant to N.C. Gen. Stat. § 50-13.1, “there was no basis for the trial court to grant
visitation to the [grandparents]” where “defendant did not act inconsistently with her
status as a parent, and the trial court did not make a finding that defendant was
unfit”).
III. Conclusion
For the reasons articulated above, we reverse the Custody Order and remand
the case to the trial court with instructions to dismiss Plaintiffs’ action and dissolve
the Ex Parte Order and the Custody Order. See Owenby, 357 N.C. at 148, 579 S.E.2d
at 268 (reinstating trial court’s order dismissing plaintiff’s custody action and
dissolving all orders previously entered).
REVERSED AND REMANDED.
Judges BRYANT and HAMPSON concur.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 517
Action for double indemnity under a life policy by Betty Jean Trevathan against the Mutual Life Insurance Company of New York. From a judgment for the plaintiff, defendant appeals.
AFFIRMED.
On May 10, 1937, the Mutual Life Insurance Company of New York, the defendant herein, issued a policy in the sum of $1000 on the life of Clarence E. Trevathan, the husband of the plaintiff, in *Page 518
which she was named as beneficiary. The policy was in the form of an annual dividend, ordinary life policy, providing for the payment of double indemnity in case of the death of the insured by accident. The insured died on April 15, 1939, from injuries received in a collision between a motorcycle driven by him and a truck. On notice of the insured's death, the defendant paid to the plaintiff the sum of $1000 but declined to pay the double indemnity, then and now contending that the insured met his death while engaged in the commission of a felony, and that his death was not accidental within the meaning of the policy. Plaintiff thereupon brought this action to recover the additional $1000 and, from a judgment in her favor, the defendant has appealed.
The particular provisions of the policy upon which the defendant relies are as follows:
"The double indemnity will be payable upon receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, * * * provided that the double indemnity shall not be payable if death resulted directly or indirectly * * * from committing an assault or felony; * * *".
The only evidence offered by either party showing the circumstances which had occurred just prior to the happening of the accident is contained in a stipulation entered into on the trial that, if one H.C. Diamond was called as a witness for plaintiff, he would testify as follows:
"I am a sergeant in the Vancouver, Washington, police force and, at about 11:30 p.m. on April 14, 1939, was operating a police car in Vancouver accompanied by officer C.W. Friauf. We arrested said Clarence Edgar Trevathan, Jr., who was riding a motorcycle *Page 519
with a young man named Haag as passenger, for passing a stop button and exceeding the speed limit, and took them to the police station. I there fixed Trevathan's bail at $15.00. He was unable to put this up so I took the keys from the motorcycle, which was parked at the curb opposite the police station, thereby locking the ignition and lighting system and told him that the motorcycle was impounded and he could not take it until he put up the bail. A few minutes later Officer Friauf and I heard the motorcycle start and soon afterward, as we were driving west on First Street between Main and Washington Streets, Trevathan passed us on the motorcycle and started south across the Interstate Bridge. We pursued him and tried to get him to stop but instead of doing so he continued across the bridge at a high rate of speed according to our speedometer, between 85 and 90 miles per hour. We were alongside him until a point on the bridge between Hayden Island and the Oregon mainland, where we slackened our speed to enable him to pass a car he was overtaking driven by G.F. Repsinski of Portland, Oregon, which he otherwise would have been unable to avoid striking. He passed this car and, as he approached the intersection of Swift Road and the bridge approach road, our car was perhaps 150 feet behind him and Officer Friauf was holding our spotlight on him.
"There is a filling station in the angle between Swift Road and the bridge approach and some gravel had worked out on to the pavement of the bridge approach from this filling station. We saw Trevathan skid in this gravel. As Trevathan approached this intersection a West Oregon Lumber Co. truck also approached it on Swift Road and came to a full stop at the stop button. The driver of the truck then started up again and, hearing our siren, came to a second stop with the rear end of its cab about in line with the stop button.
"There was a second truck a few feet behind this truck on Swift Road. From our observation of Trevathan and his motorcycle it looked as if he first intended *Page 520
to go by the front end of the first mentioned truck and then changed his mind when it started up from the first stop, or was unable to carry out this intention because of loss of control of the motorcycle due to the gravel on the pavement, and tried to pass it in the rear. Probably he did not expect the truck to stop a second time and I think it is possible that had it not done so he might have been successful in passing to the rear of the truck. As it was, however, he was unable to avoid the collision and struck the side of the truck at a point near the left rear wheel, thereby sustaining injuries which resulted in his death later that night.
"I think the accident was caused by a combination of the speed at which Trevathan was travelling, the loose gravel on the pavement near the point of collision, the fact that the truck stopped, started up, and then stopped again, and perhaps also the fact that it was followed by the other truck which there was a possibility that Trevathan might strike if he succeeded in missing the first one; also probably by Trevathan being confused by the danger in which he unexpectedly found himself."
Considered in the light of the testimony which it was stipulated would be given by Diamond if produced as a witness, it is clear that the insured was not engaged in the commission of a felony at the time he received the injuries which caused his death.
Larceny is the unlawful and felonious stealing, taking and carrying away of the personal property of another, of some value, with felonious intent on the part of the taker to deprive the owner of his property permanently. It is said that this description includes all essential elements of the crime of larceny. See note, 2 Wharton's Criminal Law, 12 ed., section 1097. It is, of course, elementary that a man cannot be convicted of stealing property of which he is the absolute owner, but it is also well settled that, if personal property in *Page 521
the possession of one other than the general owner by virtue of some special right or title is taken from him by the general owner, such taking is larceny if it is done with the felonious intent of depriving such person of his rights, or of charging him with the value of the property. See note, 58 A.L.R., p. 331, and cases there cited. Thus, one having the property in goods may be guilty of stealing them from one to whom he has given them in custody as special possession, as in the case of a lawful lien, pledge, bailment or levy of legal process. 2 Wharton's Criminal Law, 12 ed., section 1177.
In the instant case, it is admitted that the insured was the absolute owner of the motorcycle and that the offense for which he was arrested was "passing a stop button and exceeding the speed limit" within the city of Vancouver, Washington. There is no statute of the state of Washington, nor is there any ordinance of the city of Vancouver, so far as shown, which conferred upon any arresting officer the right to impound a motorcycle for that offense, or to accept it as security for bail. The only statute of that state to which our attention has been called, which authorizes the impounding of a motor vehicle of any kind by an officer making an arrest, is section 6360-12, Rem. Rev. Stat. That statute makes it unlawful to operate a motor vehicle not equipped in the manner required by law, or the equipment of which is not in a proper condition. It further provides that if the equipment of such vehicle is defective "in such a manner that it may be considered unsafe", it "may be prevented from further operation until such equipment defect is corrected", and that any peace officer may impound it until it has been placed in a satisfactory condition. It is clear that this statute does not give the impounding officers anything like a *Page 522
property right in the vehicle. The purpose of the statute is to prevent the operation of such vehicle until repaired and, when so impounded, the impounding officer has no actual financial or property interest in the impounded article either as security for some indebtedness or otherwise. Hence, the retaking of his own motorcycle by the insured, under the circumstances testified to by the officer, was not larceny nor did it amount to a felony.
It is also clear that the officers who arrested the insured had no authority to admit him to bail or to accept either cash or property in lieu of bail. As said in 8 C.J.S., Bail, section 38:
"Admitting to bail or allowing bail is, of course, an entirely different act from the taking, accepting, or approving of bail after its allowance; the former, as will be seen infra section 39a, is generally considered to be a judicial act to be performed by a court or judicial officer while the latter is merely a ministerial function which may be performed by any authorized officer."
Again, in section 52, id., it is said:
"In the absence of statute conferring such right a magistrate or officer has no authority to accept a cash bail or a deposit of money in lieu of bail."
See also 6 Am. Jur., Bail and Recognizance, sections 69 and 70.
The power to fix bail is a judicial power and, in the absence of statute, is one which is vested exclusively in the courts. The only Washington statute applicable thereto, to which our attention has been called, is section 2089, Rem. Rev. Stat. In construing this statute, the Washington supreme court held, inKellogg v. Witte, 107 Wash. 691, 182 P. 570, that, in the absence of a statute, a justice of the peace had no authority to *Page 523
accept cash bail, and, in Lee v. Severyns, 151 Wash. 403,276 P. 94, it was held that the fixing and acceptance of cash bail by the chief of police of Seattle was illegal. From this, it follows that the arresting officers had no authority to fix the amount of the insured's bail or to accept any personal property in lieu of bail, and that their action in respect thereto was illegal and void and vested in them no right, title or special property in the motorcycle.
Nor do we find any merit in the contention that the insured did not die "as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes". The testimony shows that the insured was 21 years and two months of age when he met his death; that he was married and lived in Portland; that earlier in the evening he had left his home, stating to his wife that he was going for a ride and left his home for that purpose; that when returning, he was arrested in Vancouver, and the keys of his motorcycle taken from him on a charge that he had passed a stop button and was driving at an excessive rate of speed, but was not placed under any personal restraint other than as above stated. From these circumstances, it seems obvious that the insured's intention, in retaking his motorcycle, was to return to his home and that he had no reason to anticipate that he would be subjected to any unusual or extraordinary danger in so doing. However, when he was being pursued by the Washington state officers at a highly dangerous rate of speed with their siren blowing and their spotlight fixed on him, he naturally increased his speed in order to escape being again arrested. He had no reason to expect that the loaded truck, which stopped before passing through *Page 524
the intersection over which he was about to travel, would start up and again stop, blocking his passage, nor did he have any reason to anticipate that, because of loose gravel on the highway, he would lose control of his motorcycle and come into collision with the loaded truck. Moreover, the arresting officers had no right to pursue the insured into Oregon, since no felony had been committed. Section 26-1541, O.C.L.A., limits the authority of officers of another state to pursue and make an arrest in Oregon to cases where the person is fleeing from arrest and "is believed to have committed a felony in such other state". It was held by the supreme court of Washington in Van Riper v.Constitutional Government League, 1 Wash. 2d 635,96 P.2d 588, 125 A.L.R. 1100, that a violation of traffic laws, in failing to stop before entering a street intersection and in driving at an excessive rate of speed, is not a criminal violation of law within an exception contained in a policy that there should be no liability for "death due to acts committed in criminal violation of law". Hence, the officers, in attempting to arrest the insured in Oregon, had no reason to believe that he had committed a felony in the state of Washington and, therefore, had no authority to pursue him beyond the Washington state line. But for such unauthorized and illegal pursuit, together with the loose gravel upon the highway and the movement of the loaded truck, which blocked the highway, any one of which may be said to have caused the accident and none of which he had any reason to anticipate when he repossessed himself of his motorcycle, the insured would not have been killed.
This case, therefore, does not come within the rule that death inflicted during the commission by insured of a voluntary or intentional act is not by accidental *Page 525
means, if the result was inevitable and could have or should have been foreseen.
The policy contains no definition of the word "accidental". The word, therefore, should be given its ordinary, usual, and popular signification or meaning, as indicating an event which takes place without one's foresight and expectation, and is not the natural and probable consequence of an ordinary or common act, as distinguished from an event the occurrence of which involved no element of chance or unexpectedness. Couch on Insurance, section 1137. Webster's Unabridged Dict., title "Accident", defines the word "accident" as "an event which takes place without one's foresight or expectation; an event which proceeds from an unknown cause, and, therefore, not expected; chance, casualty, contingency". The word "accident" has also been defined as any event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and unexpected to whom it happened, and took place without the concurrence of the will of the person by whose agency it was caused. See Hanley v. Fidelity Cas. Co.,180 Iowa 805, 161 N.W. 114; Couch on Insurance, section 1137.
The policy provides that double indemnity shall be payable "upon receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes". That the insured died as the direct result of his collision with the truck is admitted, but it is contended that, since he was driving voluntarily and intentionally at a highly dangerous rate of speed, his death was not caused by accidental means, independently and exclusively of all *Page 526
other causes. "Accidental means" is used in a contract of insurance in its common significance of happening unexpectedly without intention or design. Bohaker v. Travelers Ins. Co.,215 Mass. 32, 102 N.E. 342, 46 L.R.A. (N.S.) 543.
"* * * `Accidental means', as used in an insurance policy, signifies a happening by chance and without intention or design, which happening is unforeseen, unexpected, and unusual at the time it occurs. * * * The authorities are agreed, however, that whatever the rule as to death or injuries resulting from the voluntary act of the insured, where the death or injury is caused by some act of the deceased or insured not designed by him, or not intentionally done by him, it is death or injury by accidental means." 29 Am. Jur., Insurance, section 933.
"It is generally held that death or injury does not result from accident or accidental means within the terms of an accident policy where it is the natural result of the insured's voluntary act, unaccompanied by anything unforeseen, except the death or injury. Where, however, the death or injury is not the natural or probable result of the insured's voluntary act, or something unforeseen occurs in the doing of the act, the death or injury is held to be within the protection of policies insuring against death or injury from accident and is by some courts held to be within the protection of a policy insuring against death or injury produced by or resulting from accidental means. According to this view, if in the act which precedes the death or injury, although an intentional act, something unforeseen, unexpected, and unusual occurs which produces the death or injury, it is accidentally caused or results from accidental means. On the other hand, a number of courts draw a distinction between `accident' and `accidental means', on the theory that although the result of an intentional act may be an `accident', the act itself, that is the cause, where intended, is not an `accidental means'. This line of cases holds that, where an unusual *Page 527
or unexpected result occurs by reason of the doing by the insured of an intentional act where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means, that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. But whether or not it is deemed that a death or injury by accidental means may be produced by a voluntary act, it is clear that if death or injury results from an act not designed or intended by the insured, it is a death or injury by accidental means." 29 Am. Jur., Insurance, section 941.
That it was negligent for the insured to drive his motorcycle at a dangerous rate of speed may be conceded but negligence alone is not sufficient, under the terms of this policy, to defeat the liability of the defendant. The general rule applicable thereto is stated by Couch on Insurance, section 1138, as follows:
"* * * as a general rule, and the better one, the negligence of an insured will not defeat liability on a policy insuring against bodily injuries resulting from accident or accidental means, even though such negligence contributed thereto; at least if the result was not one the insured anticipated, or could reasonably have anticipated, and which he had no intention of producing; and this, even though his negligence was gross, and provided the policy does not expressly stipulate against liability for negligence or wilful exposure to danger, etc."
Again, as said in 29 Am. Jur., Insurance, section 942:
"Recovery on an accident insurance policy is not defeated by the mere fact that negligence of the insured contributed to the injury, unless the policy expressly excepts from the risk accidents due to the negligence of the insured." *Page 528
Under the terms of this policy, it is clear that the doctrine of proximate or remote causes, as applied in negligence cases, is not applicable to any of the questions involved here, since, regardless of whether the insured may have been negligently driving when he sustained the injuries which caused his death, such negligence, if there was such, will not relieve the defendant from its liability under the double indemnity clause, nor make the death of the insured one not caused by "accidental means, independently and exclusively of all other causes", within the meaning of the policy. See Cornelius on Accidental Means, 2 ed., pp. 131 and 132, and cases there cited.
There are other assignments of error referred to in defendant's brief but none of them, in our opinion, constitutes reversible error.
The judgment must, therefore, be affirmed and, upon its affirmance, the plaintiff, under section 101-134, O.C.L.A., becomes entitled to an additional attorney's fee upon this appeal. She was awarded an attorney's fee of $350 in the trial of the cause in the court below. Taking this into consideration as well as the amount involved herein — $1000 and interest for a short period of time — we are of the opinion that an attorney's fee of $450 for the services rendered in both courts is reasonable. It is, therefore, hereby ordered that an additional attorney's fee of $100 be allowed to the plaintiff for the services performed in this court.
Judgment affirmed. *Page 529
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-613
Filed: 7 April 2020
Pasquotank County, No. 18-CVS-12
KAREN BAUMAN, Plaintiff,
v.
PASQUOTANK COUNTY ABC BOARD, Defendant.
Appeal by Plaintiff from order entered 1 March 2019 by Judge Marvin K.
Blount in Pasquotank County Superior Court. Heard in the Court of Appeals 4
February 2020.
Gregory E. Wills for Plaintiff-Appellant.
Roberson Haworth & Reese, PLLC, by Alan B. Powell, Christopher C. Finan,
and Andrew D. Irby, for Defendant-Appellee.
INMAN, Judge.
Plaintiff Karen Bauman (“Plaintiff”) appeals from an order granting judgment
on the pleadings in favor of Defendant Pasquotank County ABC Board (the “Board”).
After careful review, we affirm the trial court’s order.
I. FACTUAL AND PROCEDURAL HISTORY
The record below discloses the following:
Plaintiff’s grandmother, Margaret Fletcher, owned considerable acreage in and
around Elizabeth City, North Carolina. Ms. Fletcher passed away in 1990, and her
BAUMAN V. PASQUOTANK CTY. ABC BD.
Opinion of the Court
will provided that her real property holdings be placed in a testamentary trust for
the benefit of her son—Plaintiff’s father—Charles Fletcher. The will provided that
the trust remainder would pass to Plaintiff at her father’s death. The will named as
trustee Emma Norris (“Emma”), who was not a family member at the time of Ms.
Fletcher’s death, and delegated to Emma full and sole discretion to sell the corpus for
the benefit of Mr. Fletcher and to terminate the trust at any time.
The trustee-beneficiary relationship between Emma and Mr. Fletcher
eventually took on a more romantic character and, in 1997, the two were married.
On the day the marriage license was issued, Emma, in her capacity as trustee,
conveyed the majority of the real property in the trust to Mr. Fletcher individually by
general warranty deed. Nine days later, Emma arranged for Mr. Fletcher to execute
a deed conveying that same property to her in her individual capacity.
The deeds did not transfer the entirety of the trust’s real estate holdings
because they failed to describe a .66 acre tract in Elizabeth City (the “Disputed
Tract”). Thus, while the vast majority of the trust’s corpus now belonged to Emma
individually, the Disputed Tract remained within the trust.
Emma executed a deed purporting to transfer the Disputed Tract to the Board
in exchange for $165,000 in March of 2000. The deed lists the grantor as Emma “and
husband, [Mr.] Fletcher[,]” and both signed the deed individually without reference
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BAUMAN V. PASQUOTANK CTY. ABC BD.
Opinion of the Court
to the trust. Emma deposited the proceeds from the sale in a personal account under
her name only. The Board built and operated an ABC store on the property.
In 2015, Mr. Fletcher and Plaintiff filed suit against Emma for undue
influence, fraud, and breach of fiduciary duty in connection with her transfers of the
real property out of the trust. Emma and Mr. Fletcher died while the suit was
pending, and their respective estates were substituted in as parties. Those claims
were ultimately resolved by summary judgment entered in favor of Plaintiff and her
father’s estate. In 2017, Plaintiff and the new trustee learned that the Disputed Tract
had never been conveyed out of the trust and, on 8 January 2018, Plaintiff filed a
quiet title action against the Board.
The Board responded to Plaintiff’s complaint by asserting counterclaims for
adverse possession under color of title and reformation, among others. The Board
then moved for judgment on the pleadings under Rule 12(c) of the North Carolina
Rules of Civil Procedure, while Plaintiff moved for partial summary judgment on all
pertinent claims discussed above. Both motions came on for hearing before the trial
court on 20 December 2018.
The trial court requested that counsel first argue the Board’s motion for
judgment on the pleadings. Following those arguments, the trial court took the
matter under advisement and concluded the hearing without proceeding to argument
on Plaintiff’s motion for summary judgment. And, although it had received
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Opinion of the Court
evidentiary exhibits pertinent to Plaintiff’s motion, the trial court announced that it
would not consider those exhibits in deciding the Board’s motion. The trial court
ultimately entered judgment on the pleadings in favor of the Board. Plaintiff now
appeals.
II. ANALYSIS
A. Standard of Review
Judgment on the pleadings is appropriate “where the pleadings fail to reveal
any material issue of fact with only questions of law remaining.” Fisher v. Town of
Nags Head, 220 N.C. App. 478, 480, 725 S.E.2d 99, 102 (2012). Granting judgment
on the pleadings “is not favored by law and the trial court is required to view the facts
and permissible inferences in the light most favorable to the nonmovant.” Carpenter
v. Carpenter, 189 N.C. App. 755, 762, 659 S.E.2d 762, 767 (2008). “This Court reviews
de novo a trial court’s ruling on motions for judgment on the pleadings. Under a de
novo standard of review, this Court considers the matter anew and freely substitutes
its own judgment for that of the trial court.” Reese v. Mecklenburg Cty., 200 N.C. App.
491, 497, 685 S.E.2d 34, 38 (2009) (citations omitted).
B. Adverse Possession Against Trust Beneficiaries
Plaintiff concedes on appeal that the Board “has possessed the land in dispute
under a claim of right for 17 years before her lawsuit was filed and that the . . . deed
to the [Board] adequately described the property.” She thus limits her argument to
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the “sole contention . . . that th[e] shortened period of adverse possession . . . [of] seven
years under ‘color of title’ cannot be applied [to] the facts presented in this record.”
More specifically, Plaintiff asserts that the seven-year term for adverse possession
under color of title cannot run against the beneficiaries of a trust when the trustee is
responsible for creating color of title in the adverse possessor. She relies on our
Supreme Court’s decisions in King v. Rhew, 108 N.C. 696, 13 S.E. 174 (1891), Deans
v. Gay, 132 N.C. 227, 43 S.E. 643 (1903), and Cherry v. Power Co., 142 N.C. 404, 55
S.E. 287 (1906).
King, like this case, involved the purported transfer of real property held in a
testamentary trust. 108 N.C. at 697, 13 S.E. at 174. There, the beneficiary of the
trust and her husband—but not the trustee—executed a deed transferring the real
property to a third party, and the purported grantee took possession of the land. Id.
at 698, 13 S.E. at 174. When the beneficiary died, and more than seven years after
the grantee took possession, several heirs with contingent remainder interests in the
trust sued to recover the real property. Id. The Supreme Court held that the seven-
year period for adverse possession under color of title had run against the heirs
because the trustee of the trust could have brought a legal challenge as the true owner
of the property against the grantee on behalf of the trust’s beneficiaries. Id. at 699,
13 S.E. at 175. In other words, the Supreme Court followed the default rule that if
the seven-year period for adverse possession under color of title has run against the
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trustee, then it has also run against the trust’s beneficiaries. Id.1 The Supreme
Court, in applying the rule, distinguished a decision from Tennessee, Parker v. Hall,
39 Tenn. 641 (1859), that reached a different result under a different set of facts:
[Parker] only decides that the [beneficiaries] are not barred
where the trustee estops himself from suing by selling the
property, and thus “uniting with the purchaser in a breach
of the trust.” The wrong, says the court, is to the
[beneficiaries] and not to the trustee, and he “could not sue
or represent them.” It has never been insisted that the bar
is effective against the [beneficiaries] except in cases where
the trustee could have sued, as in this case, and failed to do
so.
King, 108 N.C. at 704, 13 S.E. at 176-77.
The Supreme Court again addressed this general rule in Deans, when a
testator’s will established a testamentary trust for the benefit of her daughter and
grandchildren and naming her daughter as trustee. 132 N.C. at 228, 43 S.E. at 644.
Per the trust documents, the real property was to be held in the trust “for the benefit
of [the daughter] and her children forever.” Id. The daughter and her husband
executed a mortgage deed encumbering the land held by the trust to a third party,
who then conveyed that mortgage interest to the defendant. Id. The defendant later
foreclosed on the property and ultimately purchased it. Id. 25 years later, the
daughter and her children filed suit against the defendant seeking his removal. Id.
1 King was not the first decision from our Supreme Court adopting this rule. See, e.g., Clayton
v. Cagle, 97 N.C. 300, 303, 1 S.E. 523, 525 (1887) (“The interests of the [beneficiaries] are, as to
strangers to the deed, under the protection of the trustee, and share the fate that befalls the legal
estate by his inaction or indifference.” (citations omitted)).
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In resolving the case, the Supreme Court distinguished King and declined to
apply the general rule on adverse possession found therein. Id. at 231, 43 S.E. at 645.
The Supreme Court held that although a mortgage interest was validly conveyed by
the trustee, that mortgage interest did not include a power of sale. Id. at 232, 43 S.E.
at 645. And, seizing on the fact that the daughter had executed the mortgage deed
as trustee, the Court held that the defendant’s possession could not satisfy an adverse
possession claim because the defendant took “possession under, and not adverse to
the trustee.” Id. at 231, 43 S.E. at 645. The Court continued:
There is no ouster of the trustee; she puts him in. He takes
the legal title subject to the trust, the declaration of which
is in his chain of title, and therefore his possession cannot
become adverse to the [beneficiaries]. In this respect the
case is distinguished from the case of King v. Rhew[.]
Id.
The final case cited by Plaintiff, Cherry, involved a tract of real property held
in trust for a woman with her husband acting as trustee. 142 N.C. at 408, 55 S.E. at
288. The wife possessed “an equitable estate for the joint life of her husband and
herself and a contingent remainder in fee dependent upon her surviving him, with
remainder over to her children dependent upon her predeceasing her husband.”
Id. at 409, 55 S.E. at 288. The trust document provided that the wife could transfer
her interest only upon the consent of the trustee, but in any event could not “dispose
of a larger estate than that vested in her.” Id. The husband and wife ultimately
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Opinion of the Court
conveyed the real property in the trust to a third party in 1868, with the husband
executing the deed in his capacity as trustee. Id. at 407, 55 S.E. at 288. The property
was eventually conveyed to the defendant, who continued possession of the property.
Id. The wife died in 1885, and the husband died in 1903. Id. Their children
eventually brought suit in 1906 to recover the property from the defendant. Id.
The Supreme Court first addressed what was transferred by the deed, and held
that the husband had executed the conveyance in his capacity as trustee; however, it
construed the deed as only conveying the wife’s interest in the property, i.e., “an
equitable estate for the joint life of her husband and herself and a contingent
remainder in fee dependent upon her surviving him[.]” Id. at 409, 55 S.E. at 288.
Thus, the defendant possessed the property under that equitable interest until her
death and, because the trustee had agreed to the transfer of the equitable interest,
there was no adverse possession during that time such that the rule utilized in King
did not apply. Id. at 410, 55 S.E. at 289. Instead, the Supreme Court held that the
period of adverse possession began when the wife predeceased her husband, as the
wife’s interest under the trust extinguished upon her death and the property should
have devolved in fee simple to the children at that time. Id. In other words, because
the trustee conveyed less than a fee simple interest in the property to the defendant
and that conveyance was made under the terms of the trust, the defendant’s
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possession was not adverse until the trust was extinguished and complete title passed
to the children. Id.
In sum, the above cases stand for the following propositions: (1) if a trustee
may sue to eject an adverse possessor, the time for adverse possession under color of
title runs against the trust beneficiaries, King, 108 N.C. at 699, 13 S.E. at 175; and
(2) if the trust possesses rights short of a fee simple interest in real estate and the
trustee, acting in that capacity, transfers those rights to a third party, the term of
adverse possession does not begin to run until the trust is extinguished and fee simple
passes to the beneficiaries. Deans, 132 N.C. at 231, 43 S.E. at 645; Cherry¸ 142 N.C.
at 410, 55 S.E. at 289.
C. Plaintiff’s Appeal
The facts of this case do not lend themselves to a neat application of King,
Deans, and Cherry based on the close reading discussed above.
Deans and Cherry are distinctly inapposite from this case. As demonstrated
by the allegations of the complaint and supporting exhibits,2 Emma did not convey
2 A trial court may consider documents attached to a complaint in ruling on a motion for
judgment on the pleadings without converting it into summary judgment because “documents . . .
attached to and incorporated within a complaint . . . become part of the complaint.” Weaver v. Saint
Joseph of the Pines, Inc., 187 N.C. App. 198, 204, 652 S.E.2d 701, 707 (2007) (citation omitted). We
also note that a dispositive motion aimed at the pleadings does not become a summary judgment
motion where the parties submit extraneous documents so long as it is clear from the record that those
materials were not considered by the trial court in reaching its ruling. See Estate of Belk by and
through Belk v. Boise Cascade Wood Products, L.L.C., ___ N.C. App. ___, ___, 824 S.E.2d 180, 182-83
(2019) (noting that a motion to dismiss under Rule 12(b)(6) is not converted to a summary judgment
motion if the record shows the trial court limited its consideration to the pleadings).
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Opinion of the Court
the Disputed Tract to the Board in her capacity as trustee. Nor did she purport to
bind the trust in any way. By contrast, in Deans and Cherry, the defendants took
title from trustees under the terms of the respective trusts, so that possession during
the life of each trust was not adverse. Given the unique and distinguishing facts of
this case, we hold that the Board took possession of the Disputed Tract adverse to,
instead of under, the trust.
The basis for tolling adverse possession against trust beneficiaries announced
in Parker and echoed in King does not apply to this case. Plaintiff argues that the
Board had no adverse possession during the term of the trust because Emma was
estopped from suing to eject the Board under the theory of estoppel by deed. See, e.g.,
Crawley v. Stearns, 194 N.C. 15, 16, 138 S.E. 403, 403 (1927) (“[A]s to his grantee the
maker of a deed will not be heard to contradict it, or to deny its legal effect . . . , or to
say that when the deed was made he had no title. As against his grantee he is
estopped to assert any right or title in derogation of this deed.”). However, estoppel
by deed binds “only . . . parties and privies.” Dixieland Realty Co. v. Wysor, 272 N.C.
172, 182, 158 S.E.2d 7, 15 (1967). Plaintiff offers no explanation of how Emma’s
conveyance solely in her individual capacity worked to estop her from challenging the
conveyance as trustee on behalf of the trust.3
3 We note that all trustees are empowered to bring suit “to enforce claims of the trust[,]” N.C.
Gen. Stat. § 36C-8-811 (2019) (emphasis added), and, in light of the complaint’s allegations and
Plaintiff’s insistence on appeal that Emma’s conveyance to the Board was purely an individual act that
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Opinion of the Court
Further, and as pointed out by the Board, Parker and King discuss tolling the
term of adverse possession against beneficiaries when the trustee breaches the trust
by impermissibly exercising a power of sale and, in doing so, “unit[es] with the
purchaser in a breach of the trust.” King, 108 N.C. at 704, 13 S.E. 174 at 177 (quoting
Parker, 39 Tenn. at 646). Here, however, Emma possessed the right as trustee to sell
trust property in her sole discretion, and the judgment in the constructive fraud case
against Emma as trustee did not invalidate the conveyance of the Disputed Tract to
the Board.4 Although the complaint contains a conclusory allegation that Emma and
the Board “united in a breach of the . . . trust[,]” the complaint’s allegations and
supporting documents attached to it do not place this case within that language as
used in Parker and King. See cf. Restatement 2d of Trusts, § 327, Comment I (1959)
(“If the trustee in breach of trust transfers trust property to a third person . . . who
does not knowingly participate in the breach of trust, and the trustee is barred by the
in no way bound the trust, the facts do not compel the legal conclusion that Emma was legally estopped
from asserting the trust’s claim to oust the Board in her capacity as trustee. See Hendricks v.
Mendenhall, 4 N.C. 371 (1816) (holding executors’ endorsement of a deed in their capacity as executors
of an estate did not estop them from challenging the deed in their individual capacities as heirs); cf.
Brooks v. Arthur, 626 F.3d 194, 201 (4th Cir. 2010) (“The rule of differing capacities is generally
understood to mean that defendants in their official and individual capacities are not in privity with
one another for the purposes of res judicata.”). But see Dillingham v. Gardner, 222 N.C. 79, 80, 21
S.E.2d 898, 899 (1942) (holding a party in his individual capacity was equitably estopped from
contesting a judgment against him in his capacity as sole trustee when “the plaintiff himself has acted
upon the assumption that the interest of the plaintiff in the former case and the interest of the plaintiff
in the instant case were identical.”).
4 The summary judgment order in that cases discusses fraud only in the context of Emma’s
transfers of real estate from the trust to her husband and from her husband to herself. That judgment
concerned and voided only those two deeds, and Appellant acknowledges in her brief that “the
pleadings and affidavits contained [in that case file] show that the issue of title ownership of the .66
acres in dispute in this case, was never litigated in that case.”
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Opinion of the Court
Statute of Limitations or laches from maintaining a suit against the transferee, the
beneficiary is also barred, . . . even though the beneficiary does not know of the breach
of trust.” (emphasis added)).
Given the above distinctions from King, Deans, and Cherry¸ and in light of the
particular facts of this case, we hold that the trial court properly granted judgment
on the pleadings in favor of the Board. The complaint and its attachments do not
demonstrate facts falling within the exception to the general rule that adverse
possession under color of title will run against the trust’s beneficiaries. In adopting
that rule, our Supreme Court believed it “so plain that it was deemed unnecessary to
cite authorities, and the Court was content to leave the question on the manifest
reason of the thing.” Carswell v. Creswell, 217 N.C. 40, 46, 7 S.E.2d 58, 61 (1940)
(citation and quotation marks omitted). In discussing the equity of its application,
our Supreme Court declared:
If by reason of neglect on the part of the trustees,
[beneficiaries] lost the trust fund, their remedy is against
the trustees, and if they are irresponsible, it is the
misfortune of the [beneficiaries], growing out of the want
of forethought on the part of the maker of the trust, under
whom they claim.
Id. (citations and quotation marks omitted). In the face of these prevailing principles,
the unique facts here do not plainly situate Plaintiff’s claim inside the claimed
exception to this rule.
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III. CONCLUSION
For the foregoing reasons, and in light of the particular facts of this case, we
affirm the trial court’s order granting judgment on the pleadings in favor of the Board.
Because we hold the entry of judgment on the pleadings was proper and it appears
from the record that the trial court did not consider evidence outside the pleadings,
we do not address Plaintiff’s contention that the Board’s motion was converted to one
for summary judgment.
AFFIRMED.
Judges BRYANT and DILLON concur.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1721V
(not to be published)
KRISTEN AMMERMAN,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 6, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Alison H. Haskins, Maglio Christopher & Toale, PA, Sarasota, FL, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On November 6, 2018, Kristen Ammerman filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
December 2, 2016. (Petition at 1). On January 9, 2020, a decision was issued awarding
compensation to Petitioner based on the Respondent’s proffer. (ECF No. 29).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated February 3,
2020 (ECF No. 34), requesting a total award of $32,212.77 (representing $31,393.50 in
fees and $819.27 in costs). In accordance with General Order #9 Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 34-3).
Respondent reacted to the motion on February 12, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
35). Petitioner did not file a reply to Respondent’s response.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
2
A. Hourly Rates
Petitioner requests the following rates of compensation for the work of his
attorneys: for Altom Maglio, $381.00 per hour for work performed in 2018 and $400.00
for work performed in 2019; for Danielle Strait, $322.00 per hour for work performed in
2018; for Brent Elswick, $323 per hour for work performed in 2018 and $335 for work
performed in 2019; and for Ms. Alison Haskins, $387 for work billed in 2019. (ECF No.
34-1 at 19). Petitioner also requests rates ranging from $145.00 per hour to $154.00 per
hour for paralegal work, depending on the individual paralegal and the year of the work.
(Id). The rates requested are consistent with what Maglio Christopher and Toale, PA
attorneys and paralegals have been awarded for their work in the Vaccine Program.
Accordingly, no adjustment to the requested rates is necessary.
For time billed in 2020, Ms. Haskins is requesting the increased rate of $414.00
per hour for her time billed and the rate of $160 for time billed by the paralegals. Based
on my experience I find the requested increases for time billed in 2020 to be reasonable
and award it herein.
ATTORNEY COSTS
Petitioner requests $819.27 in overall costs. (ECF No. 34-2 at 1). This amount is
comprised of obtaining medical records, travel costs and the Court’s filing fee. I have
reviewed all of the requested costs and find the overall amount to be reasonable and shall
award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $32,212.77 (representing $31,393.50 in fees and $819.27 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In
the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk shall enter judgment in accordance with this decision. 3
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DAVID OROZCO, §
No. 08-19-00064-CR
Appellant, §
Appeal from the
v. §
34th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20180D00991)
§
OPINION
Appellant David Orozco was indicted for two counts of aggravated assault against a public
servant and one count of evading arrest or detention with a motor vehicle. After the State rested
its case-in-chief in the guilt phase of Orozco’s jury trial, the State moved to dismiss the two
aggravated-assault counts, and Orozco subsequently pleaded guilty to the remaining count of
evading arrest or detention with a motor vehicle. Consequently, the jury then found Orozco guilty
of the evading charge, and at the conclusion of a punishment phase in front of the same jury, the
jury sentenced him to seven years’ confinement. In two issues on appeal, Orozco argues that his
trial counsel rendered ineffective assistance in the punishment phase of his trial by: (1) failing to
move for a mistrial at one juncture in a witness’s testimony and failing to move for an instruction
to disregard at another juncture of the testimony; and (2) failing to present any mitigation evidence.
Without having benefit of a record containing trial counsel’s explanation for actions or inactions,
we hold that Orozco failed to prove any deficient performance and affirm the trial court’s
judgment.
BACKGROUND
On the day of Mardi Gras in 2018, the El Paso Police Department established a heightened
presence at the busy Cincinnati Street Entertainment District in an effort to manage the foot traffic
of the large crowds and to generally patrol the area. Around 2 a.m., Orozco drove up to an
intersection within the district in his Ford Mustang with its headlights off, and an officer attempted
to get Orozco’s attention by shining a flashlight at him. Orozco looked at the officer but
accelerated towards the next intersection at an erratic speed. At that next intersection, Orozco ran
the stop sign and forced some officers who were crossing the street to jump out of his way to avoid
being hit. Officers in patrol units pursued Orozco’s car, and a chase ensued.
During the course of this pursuit, Orozco ran another stop sign, crashed into a car carrying
multiple occupants, spun out on the pavement, sped through a few intersections, jumped from his
vehicle, and ran from police on foot. When he left his vehicle, it rolled downhill before hitting a
brick wall. After continuing the chase on foot, the officers eventually arrested Orozco when they
found him as he tried hiding next to a sleeping transient. When conducting an inventory search of
Orozco’s car, officers found marihuana and alcohol inside the vehicle.
During the punishment phase of trial, the State presented testimony from Abraham Guzman
who identified himself as the driver of the car with multiple passengers that had been struck by
Orozco. While questioning Guzman, the State attempted to elicit testimony regarding injuries
suffered by his passengers as a result of the collision. At one juncture, the State asked Guzman
2
about injuries suffered by a female passenger, and Orozco’s trial counsel objected on the bases of
hearsay and speculation. The trial court sustained the objection and instructed the jury to disregard
Guzman’s testimony on that point. Trial counsel did not respond with a motion for mistrial. At
another juncture, the State asked Guzman about injuries suffered by a male passenger, and trial
counsel once again objected on the same bases. The trial court sustained this objection, as well.
Trial counsel did not request an instruction to disregard.
Although Orozco’s trial counsel cross-examined the State’s punishment witnesses and
obtained some mitigating concessions from these witnesses, counsel did not present any witnesses
or evidence during the punishment phase of trial.
Following the trial court’s sentence and entry of judgment, Orozco did not file a motion
for new trial or otherwise introduce an affidavit from trial counsel through some other procedural
vehicle. Orozco later filed this direct appeal.
DISCUSSION
Orozco presents two issues for review in which he complains that trial counsel rendered
ineffective assistance in the punishment phase of his trial. In his first issue, Orozco argues in a
two-part complaint that trial counsel rendered ineffective assistance by: (1) failing to move for a
mistrial after the trial court sustained counsel’s hearsay objection and gave an instruction for the
jury to disregard Guzman’s testimony as to the injuries sustained by his female passenger; and (2)
failing to move for an instruction to disregard after the trial court sustained counsel’s hearsay
objection on Guzman’s testimony as to the injuries his male passenger sustained in the car. In his
second issue, Orozco argues that trial counsel rendered ineffective assistance by failing to present
any mitigating evidence in the punishment phase of trial. Among multiple alternative arguments
3
in the State’s brief, the State responds that the record was not developed to the extent necessary
for this Court to fully evaluate the merits of Orozco’s claims where trial counsel was not given an
opportunity to explain his choices at trial and where trial counsel may have had sound trial strategy
for the complained-of decisions.
We address Orozco’s three complaints together in a single analysis because we resolve
them on the same basis.
Standard of Review
To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that: (1)
counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable
probability exists that but for counsel’s unprofessional errors the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). As with the guilt
phase of trial, the standard for assessing ineffective assistance of counsel in the punishment phase
is the two-pronged Strickland test. See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
Strickland, 466 U.S. at 687). A defendant’s failure to make either of the required showings defeats
the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.
2003).
The record must be sufficiently developed to overcome the strong presumption of
reasonable assistance. See id. at 110-11. As recognized by the United States Supreme Court, the
lack of any explanation in the record on direct appeal for trial counsel’s actions or inactions often
precludes any valid consideration of whether counsel’s performance was deficient:
If the alleged error is one of commission, the record may reflect the action taken by
counsel but not the reasons for it. The appellate court may have no way of knowing
whether a seemingly unusual or misguided action by counsel had a sound strategic
motive or was taken because the counsel’s alternatives were even worse. . . . The
4
trial record may contain no evidence of alleged errors of omission, much less the
reasons underlying them.
Massaro v. U.S., 538 U.S. 500, 505 (2003).
As a general rule, a silent record that provides no explanation for counsel’s actions will not
overcome the strong presumption of reasonable assistance with which we afford counsel’s actions
or inactions in our review of an ineffective-assistance claim. See Rylander, 101 S.W.3d at 110-
11. Thus, we will assume a strategic motive if any can be imagined, and as a corollary, we will
find counsel’s performance deficient only if the conduct was so outrageous that no competent
attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
Furthermore, we also note that trial counsel should ordinarily be given an opportunity to explain
their actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111.
Orozco has Failed to Overcome the Presumption of Reasonable Assistance where
there is no Explanation for Trial Counsel’s Choices in the Record
In this case, we are presented with a record that is silent on any explanation as to why trial
counsel made the particular decisions about which Orozco now complains on appeal.
Regarding the two alleged errors of commission in Orozco’s first issue, this Court has “no
way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic
motive or was taken because the counsel’s alternatives were even worse.” See Massaro, 538 U.S.
at 505. Thus, the record is not sufficiently developed to overcome the strong presumption of
reasonable assistance with regard to these two alleged errors by trial counsel, and we hold that
Orozco failed to prove trial counsel rendered deficient performance by failing to move for a
mistrial or by failing to move for an instruction to disregard. See Gomez v. State, No. 08-10-
00276-CR, 2012 WL 390970, at *9 (Tex. App. – El Paso Feb. 8, 2012, no pet.) (not designated for
5
publication); Martinez v. State, No. 08-98-00330-CR, 2000 WL 1476621, at *4 (Tex. App. – El
Paso Oct. 5, 2000, pet, ref’d) (not designated for publication) (cases where this Court held that the
defendant failed to prove deficient performance on his claim that counsel was ineffective for failing
to move for a mistrial where the record was silent as to counsel’s reason for not doing so and where
various strategic reasons existed for such a decision); see also Kirk v. State, No. 14-14-00168-CR,
2015 WL 3524295, at *2 (Tex. App. – Houston [14th Dist.] June 4, 2015, no pet.) (mem. op., not
designated for publication); Molina v. State, No. 05-05-01599-CR, 2006 WL 3218555, at *4 (Tex.
App. – Dallas Nov. 8, 2006, pet. ref’d) (not designated for publication) (cases holding that the
defendant failed to prove deficient performance on his claim that counsel was ineffective for failing
to request an instruction to disregard at trial where there was no affidavit from counsel in the record
to explain his actions and where the defendant therefore failed to overcome the strong presumption
that counsel was effective).
And regarding the alleged error of omission in Orozco’s second issue, this Court likewise
faces the same obstacle of not being able to ascertain whether trial counsel’s actions had a sound
strategic motive or was taken because counsel’s alternatives were worse. See Massaro, 538 U.S.
at 505. Thus, the record is not sufficiently developed to overcome the strong presumption of
reasonable assistance with regard to this alleged error either, and we hold that Orozco failed to
prove that trial counsel rendered deficient performance by failing to present any mitigating
evidence in the punishment phase of trial. See Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim.
App. 2007); Jones v. State, 572 S.W.3d 841, 851 (Tex. App. – Houston [14th Dist.] 2019, no pet.)
(cases holding that the defendant failed to prove deficient performance on his claim that counsel
was ineffective for failing to offer any mitigating evidence during the punishment phase of trial
6
where the record was silent on counsel’s reasons for not doing so and where counsel’s conduct
could have been part of a reasonable trial strategy).
We recognize that some errors by trial counsel can constitute deficient performance even
without an explanation in the record from counsel if such errors are so outrageous that no
competent attorney would have engaged in them. See Andrews, 159 S.W.3d at 101. But trial
counsel’s decisions in this case not to move for a mistrial and not to move for an instruction to
disregard do not belong to this exceptional category of errors because strategic reasons can be
imagined for these decisions. See Gomez, 2012 WL 390970, at *9; Martinez, 2000 WL 1476621,
at *4 (cases where this Court reasoned that various strategic reasons exist for not moving for a
mistrial and that such a decision does not fall within the category of conduct so outrageous that no
competent attorney would have engaged in it); see also Kirk, 2015 WL 3524295, at *2 (reasoning
that counsel’s decision to not request an instruction to disregard was not one in which no competent
attorney would have engaged because “counsel may have strategically determined that the
likelihood of success, and its potential benefits, was outweighed by the potential of drawing further
attention to the testimony”); Molina, 2006 WL 3218555, at *4 (observing that it is possible counsel
might not request an instruction to disregard because it would merely call jurors’ attention to an
incident at trial without truly curing the harm from it). Neither does a decision not to present any
witnesses or evidence during the punishment phase of trial fall into this exceptional category. See
Garza, 213 S.W.3d at 347-48 (reasoning that counsel’s decision not to offer any mitigating
evidence during the punishment phase of trial could have been part of a reasonable trial strategy);
Grundy v. State, No. 05-90-00832-CR, 1991 WL 134592, at *8 (Tex. App. – Dallas July 23, 1991,
pet. ref’d) (not designated for publication) (recognizing multiple reasons why counsel’s decision
7
not to call a defendant’s mother, or other punishment-phase witnesses, could fall into the category
of trial strategy and thus not constitute deficient performance).
Therefore, we overrule Orozco’s first and second issues presented for review based on our
holdings that he failed to show deficient performance on the silent record in this case, and we need
not consider the prejudice component of his ineffective-assistance claims. See Strickland, 466
U.S. at 687; Rylander, 101 S.W.3d at 110.
CONCLUSION
The trial court’s judgment is affirmed.
GINA M. PALAFOX, Justice
April 3, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-602
Filed: 7 April 2020
N.C. Industrial Commission, I.C. No. W58084
THELMA BONNER BOOTH, Widow and Administratrix of the ESTATE OF HENRY
HUNTER BOOTH, JR., Deceased Employee, Plaintiff
v.
HACKNEY ACQUISITION COMPANY, f/k/a HACKNEY & SONS, INC., f/k/a
HACKNEY & SONS (EAST), f/k/a J.A. HACKNEY & SONS, Employer, NORTH
CAROLINA INSURANCE GUARANTY ASSOCIATION on behalf of AMERICAN
MUTUAL LIABILITY INSURANCE, Carrier, and on behalf of THE HOME
INSURANCE COMPANY, Carrier, Defendants
Appeal by Plaintiff from Opinion and Award entered 30 April 2019 by the
North Carolina Industrial Commission. Heard in the Court of Appeals 4 December
2019.
Wallace & Graham, by Edward L. Pauley, for plaintiff-appellant.
Nelson Mullins Riley & Scarborough LLP, by Christopher J. Blake, for
defendant-appellee North Carolina Insurance Guaranty Association.
HAMPSON, Judge.
Factual and Procedural Background
Thelma Bonner Booth (Plaintiff) appeals from an Opinion and Award on
Remand of the Full Commission of the North Carolina Industrial Commission
(Commission) dismissing her claim against Hackney Acquisition Company, f/k/a
Hackney & Sons, Inc., f/k/a Hackney & Sons (East), f/k/a J.A. Hackney & Sons, and
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
the North Carolina Insurance Guaranty Association (NCIGA) on behalf of both
American Mutual Liability Insurance and the Home Insurance Company
(Defendants). Specifically, the Commission granted NCIGA’s Motion to Dismiss on
behalf of Home Insurance Company on the basis Plaintiff’s claim was barred by the
North Carolina Insurance Guaranty Association Act’s (Guaranty Act) bar date
provision and/or statute of repose.1 N.C. Gen. Stat. §§ 58-48-35(a)(1), -100(a) (2019).
The Record reflects the following relevant facts:
Henry Hunter Booth Jr. (Decedent) was employed as a welder by Hackney
Acquisition Company (Hackney) from 1967 through 1989. Hackney held workers’
compensation insurance through the Home Insurance Company, covering Decedent
as an employee from 1988-1990. On 13 June 2003, a New Hampshire court declared
Home Insurance Company insolvent in an Order for Liquidation. The New
Hampshire court further ordered all claims against the company be filed by 13 June
2004.
In June 2008, Decedent was diagnosed with lung cancer, from which he died
on 27 April 2009. On 1 December 2009, Plaintiff filed a Form 18 “Notice of Accident
1 Plaintiff’s claim against NCIGA for coverage provided by the now-allegedly insolvent
American Mutual Liability Insurance is not before this Court on appeal. Plaintiff makes no argument
as to coverage by NCIGA for claims related to American Mutual Liability Insurance. Indeed, the
Record is devoid of any indication of the status of this aspect of Plaintiff’s claim. It is Plaintiff’s
contention, agreed to by NCIGA, the Commission’s Opinion and Award is a final adjudication of all of
Plaintiff’s claims. Thus, it appears—certainly for purposes of this appeal—Plaintiff has abandoned
any claim against NCIGA related to coverage provided by American Mutual Liability Insurance.
-2-
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
to Employer and Claim of Employee, Representative, or Dependent” on behalf of
Decedent for worker’s compensation benefits with the Commission. Plaintiff’s Form
18 was supported by a written opinion letter from Dr. Arthur L. Frank opining to a
reasonable degree of medical certainty Decedent’s lung cancer was caused by “his
exposures to welding fumes in combination with his habit of cigarette smoking.”
On 17 June 2013, NCIGA, on behalf of now-insolvent Home Insurance
Company, filed a Form 61 “Denial of Workers’ Compensation Claims.” On 20 October
2015, NCIGA filed a Motion to Dismiss Plaintiff’s claims, arguing claims related to
Home Insurance Company were barred under the Guaranty Act’s bar date
provision—N.C. Gen. Stat. § 58-48-35(a)(1)—and the five-year statute of repose—
N.C. Gen. Stat. § 58-48-100(a).
A Deputy Commissioner denied NCIGA’s Motion on 2 December 2015. On 5
January 2016, NCIGA appealed to the Full Commission. Before the Full
Commission, Plaintiff argued that interpreting the Guaranty Act’s bar date and
statute of repose to deny otherwise valid claims before they existed was a “violation
of constitutional due process” under the North Carolina and United States
Constitutions. On 7 December 2016, the Full Commission certified to this Court the
questions of the constitutionality of the bar date provision and statute of repose under
the North Carolina and United States Constitutions.
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BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
On 7 November 2017, this Court, in Booth v. Hackney Acquisition Co., held
both of these provisions of the Guaranty Act were constitutional under the State and
Federal Constitutions and remanded the matter to the Full Commission for further
proceedings. See 256 N.C. App. 181, 189, 807 S.E.2d 658, 664 (2017), disc. rev. denied,
370 N.C. 696, 811 S.E.2d 594 (2018).
On remand from the Court of Appeals, the Full Commission issued its Opinion
and Award on 30 April 2019 granting the NCIGA’s Motion to Dismiss, concluding
Plaintiff’s claim was barred by both the Guaranty Act’s bar date and the statute of
repose. Plaintiff timely appealed from this Opinion and Award.
Issue
The sole issue on appeal is whether this Court may interpret the Guaranty Act
to include Plaintiff’s claim even though the plain language of the bar date provision
and statute of repose exclude coverage.
Analysis
Plaintiff contends strict application of the Guaranty Act’s bar date provision
and separately the statute of repose “def[y] the nature and purpose[ ]” of the Guaranty
Act and the North Carolina Workers’ Compensation Act because it bars claims, such
as Decedent’s, that arise due to occupational diseases discovered after the bar date
and statute of repose, respectively, rendering recovery under the Guaranty Act
impossible. Accordingly, Plaintiff raises an argument of statutory construction,
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BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
which we review de novo. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590,
592 (2010) (“Issues of statutory construction are questions of law, reviewed de novo
on appeal.”)
I. The North Carolina Insurance Guaranty Association
NCIGA is a “nonprofit, unincorporated legal entity” created by the General
Assembly in the 1971 Guaranty Act to “provide a mechanism for the payment of
covered claims under certain insurance policies . . . to avoid financial loss to claimants
or policyholders because of the insolvency of an insurer . . . .” N.C. Gen. Stat. §§ 58-
48-25, -5 (2019) (emphasis added); An Act to Provide for the Establishment of the
North Carolina Insurance Guaranty Association, 1971 N.C. Sess. Law 670 (N.C.
1971). The Guaranty Act’s coverage expanded in 1993 to include workers’
compensation claims made against insolvent insurers. See 1991 N.C. Sess. Law 802,
§§ 1, 13 (N.C. 1991). “Under the Guaranty Act, when an insurer becomes insolvent
and is liquidated by the insurance regulator of this or another state, NCIGA becomes
‘obligated’ to pay for ‘covered claims’ on behalf of the insolvent insurer in accordance
[S]ection 58-48-35.” N.C. Ins. Guar. Ass’n v. Board of Tr. of Guilford Technical Cmty.
College, 364 N.C. 102, 104, 691 S.E.2d 694, 696 (2010).
Here, for NCIGA to incur liability for Plaintiff’s claim against the insolvent
Home Insurance Company, the claim must be a “covered claim.” See N.C. Gen. Stat.
§ 58-48-35(a)(1). A “covered claim” is
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BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
an unpaid claim . . . in excess of fifty dollars ($50.00) and [that]
arises out of and is within the coverage and not in excess of the
applicable limits of an insurance policy to which this Article
applies as issued by an insurer, if such insurer becomes an
insolvent insurer after the effective date of this Article and (i) the
claimant or insured is a resident of this State at the time of the
insured event[.]
Id. § 58-48-20(4). A covered claim does “not include any claim filed with [NCIGA]
after the final date set by the court for the filing of claims against the liquidator or
receiver of an insolvent insurer.” Id. § 58-48-35(a)(1)(b).
Separately, the Guaranty Act’s statute of repose provides an otherwise covered
claim “not instituted against the insured of an insolvent insurer or [NCIGA], within
five years after the date of entry of the order by a court of competent jurisdiction
determining the insurer to be insolvent, shall thenceforth be barred forever as a claim
against [NCIGA].” Id. § 58-48-100(a).
Here, NCIGA contends Plaintiff’s claim is barred by the bar date in Section 58-
48-35(a)(1), as both parties agree the bar date is 13 June 2004 and Plaintiff did not
file her claim until 1 December 2009. Additionally, NCIGA contends even if Plaintiff’s
claim constitutes a covered claim notwithstanding the bar date, Plaintiff’s claim is
barred by the five-year statute of repose. Specifically, in order to meet the statute of
repose, Plaintiff (or Decedent) would have had to file a claim within five years of the
date the New Hampshire court declared Home Insurance Company to be insolvent.
-6-
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
Id. § 58-48-100(a). Specifically, in this case, this would have required Plaintiff or
Decedent to have filed a claim by or before 13 June 2008.
Plaintiff concedes strict application of the bar date and statute of repose would
operate to bar her claims. However, Plaintiff argues this result is untenable because
Decedent was not diagnosed with Lung Cancer until 23 June 2008 and did not pass
away until 2009, rendering Plaintiff’s ability to comply with the 13 June 2004 bar
date an impossibility. Additionally, Plaintiff contends the five-year statute of repose
date (13 June 2008) would also render it impossible for Plaintiff to pursue her claim
for death benefits because Decedent did not pass away until 2009. Plaintiff,
therefore, requests this Court to construe the bar date provision and statute of repose
liberally, arguing this interpretation would be in line with the way our Courts
interpret workers’ compensation statutes. See Chaisson v. Simpson, 195 N.C. App.
463, 469, 673 S.E.2d 149, 155 (2009) (citation and quotation marks omitted) (“Our
Supreme Court has repeatedly held that our Workers’ Compensation Act should be
liberally construed to effectuate its purpose to provide compensation for injured
employees or their dependents[.]”).
Acknowledging, the Guaranty Act is not part of the statutory workers’
compensation regime found in Chapter 97 of our General Statutes, and indeed covers
a broader scope of claims involving insolvent insurance carriers, for purposes of
argument we assume Plaintiff’s position is the correct framework for our analysis.
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BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
However, even applying the liberal rules of construction articulated by the North
Carolina Supreme Court in interpreting workers’ compensation statutes, we cannot
reach Plaintiff’s desired result. Our Supreme Court has stated three primary guiding
principles for interpreting our workers’ compensation statutes.
First, the Workers’ Compensation Act should be liberally
construed, whenever appropriate, so that benefits will not be
denied upon mere technicalities or strained and narrow
interpretations of its provisions. Second, such liberality should
not, however, extend beyond the clearly expressed language of
those provisions, and our courts may not enlarge the ordinary
meaning of the terms used by the legislature or engage in any
method of judicial legislation. Third, it is not reasonable to
assume that the legislature would leave an important matter
regarding the administration of the Act open to inference or
speculation; consequently, the judiciary should avoid ingrafting
upon a law something that has been omitted, which it believes
ought to have been embraced.
Ketchie v. Fieldcrest Cannon, Inc., 243 N.C. App. 324, 326-27, 777 S.E.2d 129, 131
(2015) (quotation marks omitted) (citing Shaw v. U.S. Airways, Inc., 362 N.C. 457,
463, 665 S.E.2d 449, 453 (2008)).
Plaintiff argues for a sweeping interpretation of the Guaranty Act, contending
“the General Assembly decided to protect all employees and employers against
insolvencies when it created the NCIGA.” However, NCIGA is not the legal successor
to the insolvent insurer. Rather, NCIGA’s only obligation is to pay claims falling
within the statutory definition of “covered claims.” See City of Greensboro v. Reserve
Insurance Co., 70 N.C. App. 651, 664, 321 S.E.2d 232, 240 (1984) (“[A] guaranty
-8-
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
association is not the legal successor of the insolvent insurer; rather, it is obligated to
pay claims only to the extent of covered claims[.]”). Indeed, the plain language of the
Guaranty Act expressly limits coverage only to “covered claims.” N.C. Gen. Stat. §
58-48-5. Likewise, the five-year statute of repose is couched in equally clear language
barring any claims not settled or instituted within five years of the date the insurer
is judicially determined insolvent:
Notwithstanding any other provision of law, a covered claim with
respect to which settlement is not effected with the Association,
or suit is not instituted against the insured of an insolvent insurer
or the Association, within five years after the date of entry of the
order by a court of competent jurisdiction determining the insurer
to be insolvent, shall thenceforth be barred forever as a claim
against the Association.
Id. § 58-48-100(a).
Thus, in order to reach the result for which Plaintiff advocates, this Court
would be required to ignore the clearly expressed language of the bar date provision
and statute of repose. N.C. Gen. Stat. §§ 58-48-35(a)(1)(b), -100(a). This we may not
do even applying a liberal construction of the statute.
Plaintiff additionally argues, given the remedial purpose of the Guaranty Act,
the General Assembly could not have intended to eliminate an entire class of
claimants—those who suffer from a subsequently diagnosed latent occupational
disease—from the scope of the Guaranty Act’s coverage. Plaintiff reasons in enacting
the bar date and statute of repose, the “General Assembly did not consider
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BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
occupational disease claims where the insolvency can occur years before the diagnosis
of the occupational disease.” However, “it is not reasonable to assume that the
legislature would leave an important matter regarding the administration of the Act
open to inference or speculation[.]” Shaw, 362 N.C. at 463, 665 S.E.2d at 453.
The statute of repose was added to the Guaranty Act in 1985. 1985 N.C. Sess.
Law 613, § 9 (N.C. 1985). Four years later, in 1989, the bar date was added. An Act
to Amend the Postassessment Insurance Guaranty Association Act, 1989 N.C. Sess.
206, § 3 (N.C. 1989). Then, the Guaranty Act was expanded to include coverage for
covered workers’ compensation claims beginning in 1993. An Act Concerning the
Workers’ Compensation Security Funds, 1991 N.C. Sess. Law 802, § 1 (N.C. 1991).
Notably, in expanding the scope of coverage of the Guaranty Act, the General
Assembly did not amend the bar date or statute of repose or make any accommodation
for their application to workers’ compensation claims (whether by injury or
occupational disease). Under principles of statutory construction, we must presume
the General Assembly was aware of the prior statutes establishing the bar date and
statute of repose and elected not to make any alterations. See Williams v. Alexander
County Bd. of Educ., 128 N.C. App. 599, 603, 495 S.E.2d 406, 408 (1998) (citation
omitted) (“In ascertaining the intent of the legislature, the presumption is that it
acted with full knowledge of prior and existing laws.”).
- 10 -
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
Furthermore, by 1991, the Legislature was aware of the history of latent
occupational diseases. See Wilder v. Amatex Corp., 314 N.C. 550, 558, 336 S.E.2d 66,
71 (1985) (majority) (“Both the Court and the legislature have long been cognizant of
the difference between diseases on the one hand and other kinds of injury on the other
from the standpoint of identifying legally relevant time periods. This is demonstrated
by examination of some of the workers’ compensation statutes and this Court’s
decisions interpreting them.”); Id. at 563, 336 S.E.2d at 74 (Meyer, J., dissenting) (“I
cannot concur in Part II of the majority opinion which concludes that our legislature
did not intend that occupational disease cases . . . should be covered by the statute of
repose . . . . With regard to legislative intent, the majority seems to ascribe to the
members of the General Assembly an unawareness of developments in the legal arena
in the early 1970s, when that statute was enacted, that I find naive. At that point in
time, delayed manifestation injuries, together with the time-delayed product injuries,
constituted a giant wave that was breaking upon the courts.”).
Nevertheless, Plaintiff points to instances in which our Courts have avoided
strict application of statutes time-barring workers’ compensation claims—including
for example applying equitable principles of estoppel2—and, indeed, points to Wilder
in particular as a judicially created exception to a statute of repose. Wilder, 314 N.C.
at 562, 336 S.E.2d at 73. In Wilder, our Supreme Court held a now-repealed workers’
2 There is no argument in this case NCIGA should be estopped from asserting either the bar
date or statute of repose.
- 11 -
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
compensation statute of repose in question did not apply to occupational disease
claims. Id. However, in Wilder, the Court specifically concluded “the legislature
intended the statute to have no application to claims arising from disease.” Id. The
Court, looking at the bill’s legislative history, identified a “deliberate omission of
reference to disease as this statute made its way through the legislative process[.]”
Id. Indeed, the Court tracked the language of the statute through the legislative
process and noted “[a]s finally enacted the statute omitted all references to claims
arising out of disease.” Id.
Here, the Guaranty Act’s bar date and statute of repose do not distinguish
between types of claims. To the contrary, the triggering dates for purposes of both
are established not by the occurrence of injury or disease but are tied solely to the
insolvency of the insurance carrier. Without evidence of legislative intent otherwise,
the case sub judice is not analogous to Wilder, and accordingly, “the judiciary should
avoid ingrafting upon a law something that has been omitted which it believes ought
to have been embraced.” Shaw, 362 N.C. at 463, 665 S.E.2d at 453 (citations and
quotation marks omitted).
Here, we agree with Plaintiff the statutory regime of the Guaranty Act as it
currently exists fails to provide accommodation for latent occupational disease claims
that may not manifest until expiration of the bar date and/or the statute of repose.
However, Plaintiff’s requested “remedy lies with the Legislature and not with the
- 12 -
BOOTH V. HACKNEY ACQUISITION CO.
Opinion of the Court
Court, whose business it is to administer and expound the law, not to make it.”
Hawkins v. County of Randolph, 5 N.C. 118, 121 (1806). Even attempting to construe
the Guaranty Act liberally, as Plaintiff requests, “our courts may not enlarge the
ordinary meaning of the terms used by the legislature or engage in any method of
‘judicial legislation.’ ” Shaw, 362 N.C. at 463, 665 S.E.2d at 453 (citation and
quotation marks omitted). We are constrained by the plain language of the Guaranty
Act and “should avoid ingrafting upon a law something that has been omitted[.] Id.
Therefore, we decline to adopt Plaintiff’s proffered reading of the Guaranty Act. The
Commission, thus, correctly determined Plaintiff’s claim against NCIGA arising from
the insolvency of Home Insurance Company is barred under either the statutory bar
date and/or the statute of repose.
Conclusion
Accordingly, for the foregoing reasons, the Order of the Full Commission is
affirmed.
AFFIRMED.
Judges BRYANT and COLLINS concur.
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OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MOODY
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MOODY2017 OK 30394 P.3d 223Case Number: SCBD-6420Decided: 04/11/2017THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2017 OK 30, 394 P.3d 223
STATE OF OKLAHOMA, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,v.CHAD WARD MOODY, Respondent.
BAR DISCIPLINARY PROCEEDING
¶0 The complainant, Oklahoma Bar Association, commenced disciplinary proceedings against the respondent, Chad Ward Moody. Based on evidence presented during a hearing, the Trial Panel concluded that two voicemails sent from the respondent to a client were unprofessional, inappropriate, vulgar, offensive, and served no legitimate purpose thereby bringing discredit to the professional of law, violating RGDP 1.3. The Trial Panel also found this conduct prejudicial to the administration of justice in violation of ORPC Rule 8.4(d).
Loraine Dillinder Farabow, Oklahoma Bar Association, Oklahoma City, Oklahoma, for complainant.Chad Ward Moody, respondent, pro se.
THE RESPONDENT IS REPRIMANDED AND ORDERED TO PAY COSTS.
Winchester, J.
¶1 The complainant, Oklahoma Bar Association, filed its complaint against the respondent, Chad Ward Moody, pursuant to Rule 6, Rules Governing Disciplinary Proceedings (RGDP),1 alleging violations of Rule 1.3 (RGDP)2 and Rule 8.4(d) of the Oklahoma Rules of Professional Conduct (ORPC).3 The Trial Panel heard this disciplinary matter, found the respondent had violated ORPC 8.4(d) and his actions warranted discipline. The Panel recommended that the respondent be publically censured.
I. FACTS
¶2 Nichalas Frank hired the respondent in November of 2015 to represent him in three (3) criminal cases pending in Oklahoma County District Court. Mr. Frank's grandfather paid the respondent the five-hundred dollar ($500) retainer fee required to obtain his services, and Mr. Frank was to pay an additional total of $4,000.00 to the respondent in six monthly payments.4 Frank, however, failed to make any further payments.
¶3 On March 15, 2016, the respondent learned during a staff meeting that Mr. Frank had not made any additional payments for attorney fees. The respondent reacted to this by telephoning Frank and, in front of his staff, leaving two messages containing expletives and threats. We will address the content of the messages later in this opinion.
¶4 After receiving the respondent's voicemail messages, Frank contacted a local Oklahoma City TV news station. In an interview with the station he stated he feared for his life because the respondent was pretty powerful, and "I'm pretty sure he can do what he wants to do at any moment." The TV station aired the news story on March 16, 2016, and played bleep-censored audio of both voicemail messages left by the respondent. He refused to be interviewed and did not comment on the allegations.
¶5 On March 17, 2016, Mr. Frank filed a grievance with the Oklahoma Bar Association regarding the respondent's conduct. That same day the respondent filed motions to withdraw from Frank's cases and was authorized to do so by the District Court on March 21, 2016.
¶6 In his written response to Frank's grievance, the respondent advised he had appeared in court on Frank's behalf and continued the cases because he was not getting paid, and he was trying to consolidate them before the same judge. The respondent went on to state that when he learned Frank had not paid the fee promised, he left the two voicemails, "in an attempt to get Frank to pay him so that he would not have to withdraw." In his written response, the respondent also stated that Frank
". . . needed me to get his attention and I did. . . . I simply spoke to him in words he understood. My communication was directed to him personally, and was intended to be private in nature. Sometimes communications with difficult drug addicted clients has [sic] to be blunt and straight forward to impress upon them the reality of their situation."
¶7 On July 13, 2016, the Bar Association filed a formal Complaint, at the Office of the Chief Justice of the Oklahoma Supreme Court. The Complaint alleged the respondent violated his professional duties under Rule 8.4(d) (ORPC), and Rule 1.3 (RGDP).
II. STANDARD OF REVIEW
¶8 In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive jurisdiction. State ex rel. Oklahoma Bar Ass'n v. Garrett, 2005 OK 91, ¶ 3, 127 P.3d 600, 602. Our review of the evidence is de novo in determining if the Bar has proven its allegations of misconduct by clear and convincing evidence; the Trial Panel's recommendations are neither binding nor persuasive. State, ex rel. Oklahoma Bar Ass'n v. Anderson, 2005 OK 9, ¶15, 109 P.3d 326, 330. This Court's responsibility is not to punish an attorney, but to assess the continued fitness to practice law, and to safeguard the interests of the public, the courts, and the legal profession. State ex rel. Oklahoma Bar Ass'n v. Wilburn, 2006 OK 50, ¶3, 142 P.3d 420, 422.
III. DISCUSSION
¶9 The Bar Association alleges that the respondent violated Rule 8.4(d) ORPC, which states that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice," and Rule 1.3 RGDP, which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."
¶10 The Bar Association asserts that the respondent's attempt to get his client to pay his fee by abuse and threats constitutes conduct prejudicial to the administration of justice in violation of ORPC 8.4(d). This Court has acknowledged the vagueness that Rule 8.4(d) presents, but has upheld the rule as "sufficiently definite for the purpose of disciplinary proceedings." Oklahoma Bar Ass'n v. Bourne, 1994 OK 78, ¶6, 880 P.2d 360, 361. To establish a violation of ORPC 8.4(d), the "interference contemplated must be serious" and must include some element of "deceit, dishonesty, misrepresentation, criminality, sexual misbehavior or other morally reprehensible conduct." State, ex rel. Oklahoma Bar Ass'n v. Minter, 2001 OK 69, ¶ 24, 37 P.3d 763, 774, (citing Bourne at ¶8).
¶11 The respondent objects to the Trial Panel's characterization of his conduct as "morally reprehensible." He believes the conduct involved merely offensive behavior and insults. He argues that the Trial Panel has expanded "morally reprehensible" beyond deceit, dishonesty, misrepresentation, criminality, and sexual misbehavior. While he appears to be focused on his choice of expletives, we are focused on the subject matter of the two recorded messages.
¶12 The respondent writes that "Swear words are the exclamation marks of spoken language." Modern dictionaries describe the words used by the respondent as offensive and vulgar. Because words in dictionaries are the result of substantial research, we accept that they accurately reflect the current public opinion of the words the respondent chose to use. We delete these expletives in quoting his messages.
The respondent left this message at 10:31 AM:
"Mr. Frank, this is Chad Moody. It's not your [deleted]. It's not your piece of [deleted] that you step on. It's not your slave. It's not your [deleted]. It's Chad Moody who works for you, but you won't [deleted] pay me! So why don't you come to my office, because I'm having a frustrating day, and I would like to really beat the [deleted] out of somebody and that way, you can at least make yourself somewhat useful to the human race. [Deleted] pay me [deleted]!"
Again, at 10:33 AM, the respondent telephoned Frank, and in front of his staff, left this message:
"Mr. Frank, by the way, Chad Moody, calling you back, and at this point, I really do think you should probably find other counsel because I'm to the point of wanting to see you go to prison and that's not a good equation. It gives me a horrible conflict of interest. So I'm letting you know I've got this conflict of interest because I would love to see your sorry [deleted] in prison because you're using me like your [deleted]."
¶13 The facts show that the phone calls immediately followed information from the respondent's staff informing him that Mr. Frank had not paid the attorney fees he had promised to pay. The respondent's subsequent verbal abuse and threats were a coercive attempt to intimidate Mr. Frank into paying. The substance of the messages does not support the respondent's explanations that he was trying to shock Mr. Frank into following the respondent's recommendations to him so he would receive a lighter sentence. The respondent's assertion that his choice of language was in his client's best interest and the language is protected by the First Amendment's Freedom of Speech Clause, found in the Constitution of the United States, is merely unpersuasive rationalization for rash acts.
¶14 The recorded tirade reveals that the respondent no longer intended to represent his client, he only wanted his fees to be paid. He is entitled to his fees, and as an attorney, he should know bullying and threats are not acceptable behavior for a professional who has sworn to uphold the rule of law. The courts are open to protect breaches of contract. Of all people, a lawyer should know that.
¶15 He asserts that he had no notice that the messages he left could violate Rule 8.4(d). As he must know, our society does not allow debt collectors to use abusive tactics such as threats of violence and name-calling to collect debts. 15 U.S.C.A. § 1692d (1) and (2).5 Although those laws were written to control abuse from professional debt collectors and not lawyers whose practice is criminal law, Congress enacted the statute it believed would benefit and protect the public from professionals who misuse their positions. The respondent surely realizes such behavior for a lawyer would be considered by the public to be "contrary to prescribed standards of conduct."
¶16 We are concerned that the respondent does not appear to realize that his use of intimidation and threats to collect a debt due him is unacceptable behavior for an attorney. He shows no remorse, no embarrassment for his actions. He even defends the actions as protected speech. He testifies that his client deserved it for lying to him about paying the attorney fees. From his own testimony, he has asserted that such behavior is not his ordinary course of dealing with the clientele he has chosen to represent, that is, those who are accused of violating drug laws. Neither his two attorney witnesses, nor a member of his staff, who also testified at his hearing, were willing to testify that such invective should be considered acceptable behavior for an attorney. His actions violate ORPC 8.4(d), and RGDP 1.3. Justice cannot be administered by taking the position of a foe, by belittling one's own client, nor by informing the client that his lawyer wants to physically beat him and then see him go to prison. In other words, the respondent's conduct is prejudicial to the administration of justice. Such action also brings discredit upon the legal profession.
¶17 In mitigation, the facts support this is not the respondent's typical method of handling his clients. He has not been disciplined by this Court before. We expect that the respondent will not repeat his behavior. There is no evidence before this Court that Mr. Frank suffered any legal harm regarding his criminal cases as the result of the respondent's withdrawal as Mr. Frank's attorney.
IV. CONCLUSION
¶18 Complainant has established by clear and convincing evidence that the respondent violated Rule 8.4(d) of the Oklahoma Rules of Professional Conduct, and Rule 1.3 of the Rules Governing Disciplinary Proceedings, and we find that his discipline should be a public reprimand and payment of the costs of these proceedings in the amount of $2,498.75, within 90 days of the publication of this opinion. IT IS SO ORDERED.
THE RESPONDENT IS REPRIMANDED AND ORDERED TO PAY COSTS.
GURICH, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, WYRICK, JJ., concur.
KAUGER, COLBERT, JJ., concur in result.
COMBS, C.J., not voting.
FOOTNOTES
1 Rule 6. Formal Proceedings Before Supreme Court and Professional Responsibility Tribunal, 5 O.S.2011, ch. 1, app. 1-A, Rules Governing Disciplinary Proceedings.
2 Rule 1.3, 5 O.S.2011, ch. 1, app. 1-A, RGDP, provides "The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline."
3 Rule 8.4(d), 5 O.S.2011, ch. 1, app. 3-A, provides "It is professional misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of justice. . . ."
4 After being retained, the respondent appeared on Frank's behalf and continued the cases that were pending in the state district court.
5 15 U.S.C.A. § 1692d (1)and(2) provide "A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. . . ."
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Supreme Court Cases
CiteNameLevel
1994 OK 78, 880 P.2d 360, 65 OBJ 2227, State ex rel. Oklahoma Bar Ass'n v. BourneDiscussed
2001 OK 69, 37 P.3d 763, 72 OBJ 2604, STATE EX. REL. OKLAHOMA BAR ASSN. v. MINTERDiscussed
2005 OK 9, 109 P.3d 326, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. ANDERSONDiscussed
2005 OK 91, 127 P.3d 600, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GARRETTDiscussed
2006 OK 50, 142 P.3d 420, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WILBURNDiscussed
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In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI,
WD83075
Respondent, OPINION FILED:
v.
April 7, 2020
TIMOTHY WOLF,
Appellant.
Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Keith Bradley Marquart, Judge
Before Division Four: Karen King Mitchell, Chief Judge Presiding,
Edward R. Ardini, and Thomas N. Chapman, Judges
Timothy Wolf appeals the Buchanan County Circuit Court’s denial of his Rule 29.07(d)
motion to withdraw his guilty plea for manifest injustice. He contends that he was misled or
induced to plead guilty to class D felony criminal nonsupport by misapprehension or mistake.
He also contends that the lack of a transcript from the September 10, 2015, hearing on the
motion to revoke probation prevents meaningful appellate review of the trial court’s denial of his
motion to withdraw guilty plea. The appeal is dismissed.
Background
Pursuant to section 568.040, Timothy Wolf was charged with the class D felony of non-
support of his minor child. On August 30, 2011, Wolf pleaded guilty to the charge pursuant to a
plea agreement. During the plea hearing, Wolf admitted that the minor child was his daughter,
that there was a child support order requiring him to support her, that he failed to provide
adequate food, clothing, lodging, and medical attention for her, and that the total arrearage was
over $7,000 (exceeding twelve monthly payments under the child support order). He testified
that the reason he did not provide support was because “work was kind of slow at the time,” but
that he did not want to present such defense at trial. Wolf further stated that he understood the
charge, the maximum possible punishment, and the rights he was giving up by pleading guilty.
He testified that he had not been pressured or threatened or promised anything other than the plea
agreement to plead guilty. Wolf acknowledged that under the plea agreement, he would receive a
suspended imposition of sentence and a period of probation in exchange for his guilty plea. In
his Petition to Enter Plea of Guilty filed with the trial court, Wolf acknowledged that as a
condition of his probation, he would be required to pay his current child support obligation of
$395 per month plus $105 per month toward the arrearage. Finding a factual basis for the plea
and finding that Wolf knowingly, voluntarily, and intelligently waived his rights, the trial court
accepted Wolf’s guilty plea. It further accepted the plea agreement, suspended imposition of
sentence, and placed Wolf on probation for four years with the requirement that he make the
agreed monthly child support and arrearage payments.
On March 23, 2012, the State filed a motion for probation revocation, and the trial court
issued an order to show cause. The notice to Wolf was returned undeliverable, a warrant was
issued for his arrest, and he was arrested on October 29, 2012. At the hearing on the motion to
revoke on January 3, 2013, Wolf admitted the probation violation. He was continued on
probation.
2
On April 24, 2013, the State filed a second motion to revoke probation alleging that Wolf
violated a condition of probation by failing to pay court-ordered child support. The trial court
issued a show cause order. The notice to Wolf was returned undeliverable, an arrest warrant was
issued, and Wolf was arrested on August 6, 2013. At the December 3, 2013, hearing on the
motion to revoke, Wolf admitted to the probation violation, and the trial court took the case
under advisement and set a hearing for February 6, 2014. Wolf failed to appear at the February 6
hearing, and an arrest warrant was issued. Wolf was arrested on April 30, 2014. On May 6,
2014, the trial court continued Wolf on probation and extended his probation an additional year.
At a June 5, 2014 probation status hearing, Wolf informed the trial court that he was employed.
On July 31, 2014, the State filed its third motion to revoke probation for failure to pay
court-ordered child support. The trial court issued a show cause order and set a hearing on the
order for August 28, 2014. Wolf failed to appear on that date, and a warrant was issued for his
arrest. Wolf was arrested on October 21, 2014. After several continuances, the State withdrew
its motion to revoke probation on March 19, 2015, and Wolf was continued on probation.
On June 2, 2015, the State again moved to revoke Wolf’s probation for failing to pay
court-ordered child support. Wolf failed to appear at the show cause hearing, and an arrest
warrant was issued. Wolf was arrested on August 2, 2015. On September 10, 2015, the trial
court took up the motion to revoke, and Wolf waived a hearing and admitted the probation
violation. The trial court sustained the motion to revoke probation, ordered a sentencing
assessment report, and set a sentencing hearing for October 8, 2015. At the sentencing hearing,
the trial court noted that Wolf had repeatedly absconded from supervision and repeatedly
admitted to violating the conditions of probation. The court sentenced Wolf to four years in the
custody of the Department of Corrections.
3
On November 20, 2015, Wolf filed a Rule 24.035 motion for post-conviction relief. Wolf
v. State, 552 S.W.3d 790, 791-92 (Mo. App. W.D. 2018). His amended motion alleged that
counsel was ineffective in failing to fully investigate and explain possible defenses to the charge.
Id. The motion court denied the motion without an evidentiary hearing, and Wolf appealed on
June 7, 2017. Id. at 792. While the appeal was pending, Wolf escaped from supervision, and a
warrant from the Board of Probation and Parole was issued for his arrest on February 18, 2018.
Id. Wolf remained at large until at least June 26, 2018, the date this court dismissed his appeal
under the escape rule. Id. at 792-793.
On July 10, 2019, Wolf filed a motion to withdraw his guilty plea for manifest injustice
under Rule 29.07(d). He alleged that the trial court erred in ordering him to pay $500 per month
in child support and arrears as a condition of his probation and in revoking his probation and
sentencing him to imprisonment for failing to pay that amount. Wolf asserted that there was no
evidence in the record that the $500 per month he was ordered to pay complied with section
568.040.6(1), RSMo Cum. Supp. 2019, specifically no evidence presented that that sum was not
greater than fifty percent of his monthly adjusted gross income.
At the July 25, 2019, hearing on the motion, the trial court took judicial notice of Wolf’s
original dissolution judgment and the modified judgment, Wolf’s circuit court payment history
reports, his Petition to Enter Plea of Guilty, the order of probation signed by Wolf, the sentencing
assessment report, the court file in Wolf’s Rule 24.035 case, and this court’s opinion in Wolf, 552
S.W.3d 790. No witness testimony was presented. The trial court then took the case under
advisement.
On August 8, 2019, the trial court denied Wolf’s Rule 29.07(d) motion to withdraw his
guilty plea for manifest injustice. It found that Wolf had paid nothing towards his child support
4
in thirty-one of the fifty months that he was on probation. It further found that, when the court
accepted Wolf’s plea, it did not find that the $500 per month ordered as a condition of Wolf’s
probation was less than fifty percent of his adjusted gross income, but that Wolf nevertheless
agreed to monthly payment of that amount as part of his plea. Furthermore, the trial court found
that Wolf’s probation was revoked for non-payment of his current child support obligation, and
not for failure to pay periodic payments towards arrearages. Finally, the trial court found that
Wolf did not raise the claim in his Rule 24.035 motion and that he also “lost his right to avail
himself of this remedy by absconding from his parole while his Rule 24.035 motion was
pending.”
This appeal by Wolf followed.
Discussion
Wolf raises two points on appeal. In his first point on appeal, Wolf contends as follows:
The Trial Court erred in Overruling Appellant’s Motion to Withdraw Guilty Plea
for Manifest Injustice, because Appellant was misled or induced to plead guilty by
misapprehension or mistake, in that § 568.040.6(1) requires that the periodic
payment that is ordered as a condition of probation shall be in such aggregate
sums as is not greater than fifty percent of the offender’s adjusted gross income.
Wolf’s Rule 29.07(d) motion did not assert that he was misled or induced to plead guilty
by misapprehension or mistake. Wolf’s only claim below was that the trial court erred in
ordering him to pay $500 per month in child support and arrears as a condition of his probation
(and in revoking his probation and sentencing him to imprisonment for failing to pay same)
because there was no evidence in the record that that amount complied with section
568.040.6(1)—specifically no evidence that $500 per month was not greater than fifty percent of
his adjusted gross income.
5
Arguments not raised before the trial court are not preserved for review. Loutzenhiser v.
Best, 565 S.W.3d 723, 730 (Mo. App. W.D. 2018). “Parties are bound by the position they took
in the trial court and will not be heard on a different theory on appeal.” Id. (internal quotes and
citation omitted). The appellate court will not convict a trial court of error on an issue not put
before it to decide. Id. Nevertheless, Rule 84.13(c) permits this court to consider plain errors
affecting substantial rights, though not raised or preserved, if manifest injustice or miscarriage of
justice results therefrom. McGinnis v. Northland Ready Mix, Inc., 344 S.W.3d 804, 815 (Mo.
App. W.D. 2011). Even if Wolf’s unpreserved argument is considered ex gratia, it is without
merit.
Rule 29.07(d) provides, “A motion to withdraw a plea of guilty may be made only before
sentence is imposed or when imposition of sentence is suspended; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his plea.” Following the imposition of sentence, Rule 29.07(d) has a very
limited role. State v. Paden, 533 S.W.3d 731, 738 (Mo. App. W.D. 2017); State v. Onate, 398
S.W.3d 102, 106 (Mo. App. W.D. 2013)(citing Brown v. State, 66 S.W.3d 721, 730-31, 731 n.5
(Mo. banc 2002); disagreed with on unrelated grounds by State ex rel. Zinna v. Steele, 301
S.W.3d 510, 516-17 (Mo. banc 2010)). While Rule 29.07(d) may permit broader relief at earlier
stages of a criminal proceeding, it is allowed following the defendant’s sentencing and remand to
the Department of Corrections only if it raises grounds for relief other than those enumerated in
Rule 24.035.1 State v. Tritle, No. WD82746, 2020 WL 420765, at *2 (Mo. App. W.D. Jan. 28,
1
Rule 24.035(a) provides, in pertinent part:
A person convicted of a felony on a plea of guilty claiming that the conviction or sentence
imposed violates the constitution and laws of this state or the constitution of the United States,
including claims of ineffective assistance of trial and appellate counsel, that the court imposing the
6
2020); Paden, 533 S.W.3d at 738; Gray v. State, 498 S.W.3d 522, 528 (Mo. App. W.D. 2016);
Onate, 398 S.W.3d at 106. See also State ex rel. Fite v. Johnson, 530 S.W.3d 508, 510 (Mo. banc
2017) (citing Brown, 66 S.W.3d at 730 n.5) (“Rule 29.07(d) does not apply to claims enumerated
within Rule 24.035.”). A claim that a guilty plea was not knowingly and voluntarily entered is a
claim that the conviction violates the constitution and laws of this state or the constitution of the
United States and, thus, falls within the claims enumerated in Rule 24.035(a). Paden, 533
S.W.3d at 738; Gray, 498 S.W.3d at 528; Onate, 398 S.W.3d at 106.
Wolf’s claim that he was misled or induced to plead guilty by misapprehension or
mistake challenges the voluntariness of his guilty plea, is within the scope of Rule 24.035, and is
required to be asserted in a timely Rule 24.035 motion. Wolf, however, failed to raise this claim
in his Rule 24.035 motion. Thus, the claim is time-barred and procedurally defaulted.2 The
appeal must be dismissed.3 Tritle, 2020 WL 420765, at *2; State v. Backues, 568 S.W.3d 892,
893 (Mo. App. W.D. 2018).
sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the
maximum sentence authorized by law may seek relief in the sentencing court pursuant to the
provisions of this Rule 24.035. This Rule 24.035 provides the exclusive procedure by which such
person may seek relief in the sentencing court for the claims enumerated.
2
Cf. State v. Doolin, 572 S.W.3d 112, 118 (Mo. App. W.D. 2019) (defendant’s claim in Rule 29.07(d) motion that
he was induced to plead guilty by counsel’s assurance that he would never be required to register as a sex offender
was not procedurally barred; it did not fall within Rule 24.035 because movant pleaded guilty to a misdemeanor for
which post-conviction relief under Rule 24.035 is not available); State v. Knox, 553 S.W.3d 386, 392 n.4 (Mo. App.
W.D. 2018) (defendant’s Rule 29.07(d) motion in which he claimed that his plea was not knowing, voluntary, or
intelligent was filed before sentencing, and, therefore, cases such as Brown and Onate holding such claim can only
be challenged in a Rule 24.035 motion and not in a Rule 29.07(d) motion were inapplicable).
3
Wolf raises additional claims in the argument section under point one attacking the trial court’s denial of his Rule
29.07(d) motion to withdraw his guilty plea. He asserts that the trial court violated section 568.040.6(1) in ordering
him to pay $500 per month in child support as a condition of probation because it did not ensure that the aggregate
sum of the payments toward arrearages and for current support was not greater than 50 percent of his adjusted gross
income. He claims that it was immaterial that the plea agreement contained such condition to pay child support
since the condition violated the limitation provision of section 568.040.6(1). He also argues that the 2009 child
support order relied upon by the trial court to determine current child support was stale. These claims were not
included in the point relied on and are not addressed. Rule 84.04(e) requires the argument section of a brief to be
7
The appeal is dismissed.
/s/Thomas N. Chapman
Thomas N. Chapman, Judge
All concur.
limited only to those errors included in the point relied on. A claim raised for the first time in the argument portion
of the brief and not encompassed by the point relied on is not preserved for appeal. Burns v. Taylor, 589 S.W.3d
614, 622 n.5 (Mo. App. W.D. 2019).
Wolf also raises a second point on appeal claiming that the lack of a transcript from the September 10, 2015
probation revocation hearing prevents meaningful review of the trial court’s denial of his motion to withdraw guilty
plea. An appellant is entitled to a full and complete transcript for an appellate court’s review. State v. Barber, 391
S.W.3d 2, 5 (Mo. App. W.D. 2012). Reversal is required only where the party is free from fault or negligence and
has exercised due diligence to correct the deficiency in the record, and his right of appeal is prejudiced because a
transcript of the proceeding cannot be prepared. Id. at 5. Wolf makes this claim (regarding lack of the probation
revocation hearing transcript) even though his unpreserved point on appeal does not assail whether he violated the
conditions of his probation, but instead seeks to withdraw his guilty plea (entered four years before his probation
revocation hearing) on the basis that his plea was based on a “misapprehension or mistake” (not knowingly entered).
He makes this claim in spite of the fact that, at the sentencing hearing shortly after the probation revocation hearing,
his own counsel stated, “I think Mr. Wolf would be the first person to admit that he has not done, with this past
probation, what needed to be done to be successful.” Wolf did not provide any additional evidence at the hearing of
his 29.07(d) motion to withdraw his guilty plea (not his own testimony, nor that of counsel) – nothing that would
indicate what occurred at the probation revocation hearing or how that impacted his unpreserved point on appeal.
Lacking any apparent effort to cure the purported deficiency in the record, and failing to indicate how that
deficiency prejudices his appeal, Wolf nevertheless requests this court to reverse the denial of the motion to
withdraw guilty plea, and to remand to the trial court for the opportunity to prove good cause for failing to meet the
financial conditions of his probation (a remedy that does not comport with his request to vacate the plea). Because
our disposition of point one is dispositive, Wolf’s second point need not be addressed.
8
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This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Lamont S. JESSIE, Chief Warrant Officer Two
United States Army, Appellant
No. 19-0192
Crim. App. No. 20160187
Argued November 5, 2019—Decided April 6, 2020
Military Judge: Rebecca K. Connally
For Appellant: Captain Zachary A. Gray (argued); Lieuten-
ant Colonel Christopher D. Carrier, Lieutenant Colonel Tif-
fany D. Pond, and Captain Benjamin A. Accinelli (on brief);
Lieutenant Colonel Todd W. Simpson, Captain Joseph C.
Borland, and Captain Heather M. Martin.
For Appellee: Captain Christopher T. Leighton (argued);
Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
liams, and Major Hannah E. Kaufman (on brief); Major
Marc B. Sawyer.
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY and Judge RYAN joined.
Judges OHLSON and SPARKS filed separate dissenting
opinions.
_______________
Judge MAGGS delivered the opinion of the Court.
A general court-martial found Appellant guilty, contrary
to his pleas, of two specifications of sexual assault of a child
of twelve years or older, but under the age of sixteen, one spec-
ification of conduct unbecoming an officer, and one specifica-
tion of adultery in violation of Articles 120b, 133, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b,
933, 934 (2012). The court-martial sentenced Appellant to a
reprimand, four years of confinement, and a dismissal. The
convening authority approved the adjudged findings and sen-
tence.
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
On appeal, Appellant asked the U.S. Army Court of Crim-
inal Appeals (ACCA) to reduce his sentence on the grounds
that the visitation rules at his confinement facility violated
his First and Fifth Amendment rights by depriving him of all
direct and indirect contact with his biological children. United
States v. Jessie, No. ARMY 20160187, 2018 CCA LEXIS 609,
at *2, 2018 WL 6892945, at *1–2 (A. Ct. Crim. App. Dec. 28,
2018) (en banc). The ACCA, with ten judges sitting en banc,
concluded that it had no obligation to review Appellant’s con-
stitutional challenges and that considering them would be in-
appropriate. 1 Id. at *18–19, 2018 WL 6892945, at *7–8. Four
of the ten judges dissented. Id. at *25, 2018 WL 6892945, at
*9–10.
We granted Appellant’s petition to determine whether Ar-
ticle 66(c), UCMJ, 10 U.S.C. § 866(c) (2012), required the
ACCA to consider his constitutional claims and, if so, whether
these claims have merit. 2 We now affirm the ACCA’s decision.
I. Background
While temporarily living in the household of a close friend
and her family, Appellant engaged in sexual misconduct. The
victim of this misconduct was one of his friend’s daughters,
1 Appellant also sought relief based on post-trial delay and other
matters personally asserted pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). The ACCA decided that these matters
lacked merit. Jessie, 2018 CCA LEXIS 609, at *2 n.1, 2018 WL
6892945, at *1 n.1.
2 The assigned issues are:
I. Whether the Army court erred by considering mil-
itary confinement policies but refusing to consider
specific evidence of Appellant’s confinement condi-
tions.
II. Whether the Army court conducted a valid Article
66 review when it failed to consider Appellant’s con-
stitutional claims.
III. Whether Appellant’s constitutional rights were
violated by a confinement facility policy that barred
him from all forms of communication with his minor
children without an individualized assessment
demonstrating that an absolute bar was necessary.
2
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
who was about thirteen years old at the time. Subsequent rev-
elations led to the charges, the findings, and the sentence in
this case.
Appellant began serving his approved sentence of confine-
ment at the Joint Regional Confinement Facility (JRCF) at
Fort Leavenworth, Kansas, in March 2016. At the time, the
JRCF’s visitation policy for child sex offenders such as Appel-
lant was Military Correctional Complex Standard Operating
Procedure 310 (SOP 310). This policy, which the JRCF has
since amended, 3 required “inmates who committed sexual of-
fenses with minor children not to have written, telephonic, or
in-person contact with any minor child without prior approval
by the [facility’s commander].”
In March and June 2017, Appellant asked the confine-
ment facility’s commander for permission to communicate
with his biological children, who at the time were under the
age of eighteen. The commander denied both requests. The
commander explained that to obtain approval for communi-
cation with minor children under SOP 310 an inmate had to
complete a sex offender treatment program. And to be eligible
for this program, the inmate had to accept responsibility for
committing the offenses for which he was confined. Because
the confinement facility determined that Appellant did not
accept responsibility, he could not participate in the program
and, therefore, he could not obtain the commander’s approval.
On appeal, Appellant asked the ACCA to use its authority
under Article 66(c), UCMJ, 4 to find that his sentence was in-
appropriate. He argued that the ACCA should reduce his sen-
tence because his confinement conditions violated the Consti-
tution. Specifically, he claimed that SOP 310 violated his
3 According to the ACCA, an amended policy went into effect in
November 2018. The amended policy allows children to visit an in-
mate based on an individualized assessment of risk. The ACCA did
not know whether Appellant’s children could visit him under the
new policy.
4 Congress amended Article 66, UCMJ, effective January 1,
2019. National Defense Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, §§ 531(j), 1081(c)(1)(K), 131 Stat. 1385, 1598
(Dec. 12, 2017). The amendment moved the language in paragraph
(c) to paragraph (d)(1) and slightly modified it.
3
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
First Amendment right of freedom of association by denying
him contact with his children and his Fifth Amendment priv-
ilege against self-incrimination by requiring him to accept re-
sponsibility for his offenses in order to communicate with his
biological children.
The ACCA assumed for the purposes of the appeal that
SOP 310 effectively prevented Appellant from having contact
with his biological children between March 2016 and Novem-
ber 2018 and that Appellant had exhausted all administrative
means of challenging SOP 310. The ACCA, however, deter-
mined that it had no obligation to consider Appellant’s First
and Fifth Amendment claims when assessing his sentence.
The ACCA further decided that if it had authority to consider
the constitutional claims, it would be inappropriate to do so. 5
The ACCA therefore did not address the merits of Appellant’s
claims in conducting its review under Article 66(c), UCMJ.
The ACCA ultimately affirmed Appellant’s approved sen-
tence.
II. Whether the ACCA Conducted a Proper
Review of Appellant’s Sentence
Assigned Issue II asks whether the ACCA conducted a
proper review of Appellant’s sentence under Article 66(c),
UCMJ, when it did not consider his First and Fifth Amend-
ment claims in assessing the lawfulness and appropriateness
of his sentence. This issue requires us to address the prelimi-
nary question of whether the ACCA was authorized to con-
sider the materials outside the record that Appellant submit-
ted in support of his constitutional claims. These materials
included SOP 310, Appellant’s requests for an exception to
SOP 310, and the commander’s denial of those requests. This
preliminary question is a question of law that we review de
novo. See United States v. Gay, 75 M.J. 264, 267 (C.A.A.F.
2016).
Answering the question of whether a Court of Criminal
Appeals (CCA) may consider materials outside the record
5 The ACCA stated: “If we may consider appellant’s claims for
post-trial sentencing relief, but are not required to, the question
next becomes whether we should. For several reasons, we think not
in this case.” 2018 CCA LEXIS 609, at *12, 2018 WL 6892945, at
*5.
4
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
when reviewing a sentence under Article 66(c), UCMJ, is dif-
ficult because our past decisions have produced three distinct
lines of precedent. Some precedents hold that the CCAs may
consider only what is in the record. See, e.g., United States v.
Fagnan, 12 C.M.A. 192, 194, 30 C.M.R. 192, 194 (1961). Other
precedents have permitted the CCAs to supplement the rec-
ord by accepting affidavits or ordering additional factfinding
hearings when the CCAs decide issues that are raised by ma-
terials in the record but that are not fully resolvable by those
materials. See, e.g., United States v. Brennan, 58 M.J. 351
(C.A.A.F. 2003). Still other precedents have allowed the CCAs
to consider materials outside the record for a limited class of
issues even though those issues are not raised by anything in
the record. See, e.g., United States v. Erby, 54 M.J. 476, 477
(C.A.A.F. 2001). We analyze Article 66(c), UCMJ, and these
three lines of precedent below.
A. Article 66(c), UCMJ
Article 66(c), UCMJ, has long governed the review of sen-
tences by the CCAs and the two predecessors of the CCAs, the
Boards of Review and the Courts of Military Review. The rel-
evant version of this provision states:
In a case referred to it, the Court of Criminal Ap-
peals may act only with respect to the findings and
sentence as approved by the convening authority. It
may affirm only such findings of guilty and the sen-
tence or such part or amount of the sentence, as it
finds correct in law and fact and determines, on the
basis of the entire record, should be approved. In
considering the record, it may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the
trial court saw and heard the witnesses.
10 U.S.C. § 866(c) (2012).
Our cases addressing the scope of the CCAs’ review of sen-
tences under Article 66(c), UCMJ, have focused on three sig-
nificant parts of the second sentence of the quoted language.
First are the words specifying that a CCA can affirm only so
much of a sentence that it finds “correct in law.” These words
prevent a CCA from affirming an unlawful sentence, such as
one that violates the prohibition against cruel and unusual
5
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
punishment in the Eighth Amendment and Article 55, UCMJ.
See Erby, 54 M.J. at 478.
Second are the words specifying that a CCA may affirm
only so much of a sentence as it “determines . . . should be
approved.” Pursuant to these words, a CCA may not affirm
any portion of a sentence that it finds excessive. See United
States v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010). Accord-
ingly, the CCAs have “broad discretionary power to review
sentence appropriateness.” United States v. Kelly, 77 M.J.
404, 405 (C.A.A.F. 2018).
Third are the words specifying that a CCA must review
the sentence “on the basis of the entire record.” In Fagnan,
this Court construed the phrase “entire record” to include the
“record of trial” and “allied papers.” 12 C.M.A. at 194, 30
C.M.R. at 194. Under the Rules for Courts-Martial (R.C.M.)
applicable to this case, the “record of trial” contains all of the
items listed in R.C.M. 1103(b)(2), and the “allied papers” are
items now identified as “matters attached to the record” in
accordance with R.C.M. 1103(b)(3). 6 In addition, the “entire
record” also includes briefs and arguments that government
and defense counsel (and the appellant personally) might pre-
sent regarding matters in the record of trial and “allied pa-
pers.” See United States v. Healy, 26 M.J. 394, 396 (C.M.A.
1988).
B. Precedents Restricting the CCAs to Reviewing
Materials Included in the “Entire Record”
Strictly following the text of Article 66(c), UCMJ, some
precedents have limited the CCAs to considering only mate-
rials included in the “entire record” when reviewing sen-
tences. In the leading case, Fagnan, the appellant asked the
6 The nature of the appellate issue determines the extent to
which a CCA may consider “matters attached to the record.” For
example, a CCA may consider a rejected exhibit (i.e., something
that would not be part of the record of trial), in an appeal challeng-
ing the ruling that denied admission of the exhibit. See United
States v. Leal, 44 M.J. 235, 237 (C.A.A.F. 1996). In contrast, in re-
viewing the legal and factual sufficiency of the evidence, a CCA may
consider only admitted evidence found in the record of trial. See
United States v. Heirs, 29 M.J. 68, 69 (C.M.A. 1989).
6
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
Army Board of Review not to approve his bad conduct dis-
charge. 12 C.M.A. at 193, 30 C.M.R. at 193. To support this
request, the appellant sought to introduce a favorable psychi-
atric assessment and a favorable report regarding his conduct
while in confinement. Id. at 193, 30 C.M.R. at 193. The Board
of Review declined to consider these documents, explaining
that because the proffered submission “concerns matters
which occurred months after the convening authority acted
upon the sentence and forwarded the record of trial, it is not
a part of the record subject to review under Article 66.” Id. at
193, 30 C.M.R. at 193. This Court affirmed, holding that un-
der Article 66(c), UCMJ, “the board of review is expressly re-
stricted by Congress to the ‘entire record’ in assessing the ap-
propriateness of the sentence.” Id. at 194, 30 C.M.R. at 194.
This Court further reasoned that, if military justice proceed-
ings are to be “truly judicial in nature,” then the appellate
courts cannot “consider information relating to the appropri-
ateness of sentences when it has theretofore formed no part
of the record.” Id. at 195, 30 C.M.R. at 195.
Fagnan established a clear rule that the CCAs may not
consider anything outside of the “entire record” when review-
ing a sentence under Article 66(c), UCMJ. See Edward S.
Adamkewicz Jr., Appellate Consideration of Matters Outside
the Record of Trial, 32 Mil. L. Rev. 1, 16 (1966). This Court
subsequently applied this rule in Healy, a case in which the
appellant asked the Army Court of Military Review (ACMR)
to consider twenty-five documents outside of the record when
assessing the appropriateness of his sentence. 26 M.J. at 395.
These documents, most of which were written by prison offi-
cials, recommended early release. Id. at 395 & 395 n.3. The
ACMR refused to consider the documents on grounds that the
documents addressed clemency rather than sentence appro-
priateness. Id. at 395. This Court affirmed, ruling that the
ACMR could not consider matters of clemency in determining
sentence appropriateness. Id. at 396–97. The Court stated
that it “need not decide” whether the ACMR could consider
additional documents relevant to sentence appropriateness
as opposed to clemency. Id. at 397. But after citing Article
66(c), UCMJ, Fagnan, and other decisions, see id. at 395, the
Court cautioned: “[T]he Code does not provide an opportunity
7
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
for the accused and his counsel to supplement the ‘record’ af-
ter the convening authority has acted.” Id. at 396–97.
The rule in Fagnan does not preclude the CCAs from con-
sidering prison conditions when reviewing a sentence under
Article 66(c), UCMJ, if the record contains information about
those conditions. In Gay, the CCA reduced a prisoner’s sen-
tence under Article 66(c), UCMJ, because prison officials,
without justification, had made him serve part of his sentence
in maximum security solitary confinement. 75 M.J. at 266.
Information about these conditions appeared in the record be-
cause the appellant had complained about them in submis-
sions to the convening authority. 7 See United States v. Harri-
son, 16 C.M.A. 484, 487, 37 C.M.R. 104, 107 (1967) (citing
Fagnan and holding that a Board of Review may consider ma-
terials submitted to the convening authority). The govern-
ment argued before this Court that the CCA had abused its
discretion because Article 66(c), UCMJ, does not authorize
granting sentence appropriateness relief for post-trial con-
finement conditions. 75 M.J. at 266–67. But we disagreed,
holding that imposing solitary confinement without justifica-
tion was a “legal deficiency,” and that a CCA may reduce a
sentence under Article 66(c), UCMJ, based on “a legal defi-
ciency in the post-trial confinement conditions” as part of its
sentence appropriateness determination. Id. at 269.
Similarly, in United States v. White, the appellant claimed
that confinement officials violated the prohibition against
cruel and unusual punishment in the Eighth Amendment and
Article 55, UCMJ, when they severely harassed him and de-
nied him medical treatment. 54 M.J. 469, 470–71 (C.A.A.F.
2001). This Court rejected the government’s arguments that
we lacked jurisdiction to consider the appellant’s claims, hold-
ing that Article 67(c), UCMJ, 10 U.S.C. 867(c) (2000), pro-
vides this Court jurisdiction to determine on direct appeal
whether a sentence is being executed in a manner that of-
fends the Eighth Amendment or Article 55, UCMJ. Id. at 472.
7 The R.C.M. 1105 submission was a “matter[] attached to the
record” under R.C.M. 1103(b)(3)(C), and the convening authority’s
action was part of the “record of trial” under R.C.M.
1103(b)(2)(D)(iv).
8
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
Although White focused on this Court’s jurisdiction under Ar-
ticle 67(c), UCMJ, rather than a CCA’s jurisdiction under Ar-
ticle 66(c), UCMJ, the decision is consistent with Fagnan be-
cause the appellant had presented his claim to the convening
authority before raising it on appeal. Id. at 470. Materials
supporting the claims were thus part of the “entire record.”
C. Precedents Allowing the CCAs to Supplement
the Record in Resolving Issues Raised in the Record
This Court has never overruled Fagnan and has continued
to cite the decision in recent years. See, e.g., United States v.
Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (following Fagnan on
the issue of what constitutes the “entire record” under Article
66(c), UCMJ). But notwithstanding the strict interpretation
of Article 66(c), UCMJ, in Fagnan, some precedents have al-
lowed the CCAs to supplement the record when deciding is-
sues that are raised by materials in the record. In these prec-
edents, the CCAs have accepted affidavits or ordered
hearings to determine additional facts pursuant to United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) (per
curiam).
For example, in Brennan, the appellant sought sentence
relief before the CCA on grounds that she had suffered sexual
assaults and harassment during her post-trial confinement.
58 M.J. at 352. The appellant initially complained about this
mistreatment in her submissions to the convening authority.
Id. On appeal to the CCA, she also submitted an affidavit con-
taining additional details. Id. at 353. The CCA and later this
Court both considered the affidavit even though it was not
part of the entire record. Id. This Court has similarly allowed
a CCA to accept affidavits or order a DuBay hearing when
necessary for resolving claims of ineffective assistance of trial
defense counsel and a wide variety of other issues when those
claims and issues are raised by the record but are not fully
resolvable by the materials in the record. See, e.g., United
States v. Parker, 36 M.J. 269, 272 (C.M.A. 1993) (listing ex-
amples of issues in which DuBay hearings have been ordered
for gathering additional facts on appeal).
These precedents are not strictly consistent with Fagnan
and Article 66(c)’s requirement that CCAs limit their review
to the “entire record.” They also appear to be inconsistent
9
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
with general federal practice, which typically would require
collateral litigation to address claims that are raised by the
record but that cannot be resolved on appeal by materials in
the record. See 16A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3956.1 (5th ed. 2019) (stat-
ing, as an example, “where the court of appeals holds that a
defendant is unable to establish, on direct appeal, a claim of
ineffective assistance of trial counsel because the evidence
needed to support the claim is outside the record on appeal,
the defendant should pursue the ineffective-assistance claim
on collateral review”). This Court has acknowledged that
there is “no mechanism set out in the Uniform Code of Mili-
tary Justice for this Court or the Courts of Military Review to
evaluate such post-conviction claims” via affidavits and
DuBay hearings. United States v. Polk, 32 M.J. 150, 152
(C.M.A. 1991). But this Court has nonetheless justified the
exception to the strict language of Article 66(c), UCMJ, on
grounds of precedent and necessity. The Court has concluded
based on experience that “extra-record fact determinations”
may be “necessary predicates to resolving appellate ques-
tions” that arise during Article 66(c), UCMJ, reviews. Parker,
36 M.J. at 272.
D. Precedents Allowing the CCAs to Consider
Matters Entirely Outside the Record
A third class of precedents, however, has gone further and
allowed the CCAs to consider materials outside the “entire
record” when reviewing issues that were not raised by any-
thing in the record. The clearest example is Erby. The appel-
lant in that case asserted that prison officials severely har-
assed him when he first arrived at the confinement facility to
serve his sentence. 54 M.J. at 477. He asked the CCA for re-
lief, arguing that his confinement conditions subjected him to
cruel and unusual punishment. Id. The CCA held that “it had
no authority to review [the] appellant’s complaint because the
mistreatment was not a part of the approved sentence, nor
was it raised in [the] appellant’s clemency request to the con-
vening authority.” Id. This Court reversed the CCA, holding
that the CCA erred in concluding that it lacked authority to
review the claims. Citing White, the Court held that the CCA
has a duty to determine whether a sentence is “correct in
law,” which “includes authority to ensure that the severity of
10
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
the adjudged and approved sentence has not been unlawfully
increased by prison officials.” Id. at 478 (internal quotation
marks omitted) (quoting White, 54 M.J. at 472). The Court
remanded the case for further factfinding. Id. at 479. Erby is
inconsistent with Fagnan and the cases allowing supplemen-
tation for resolving matters raised by the record because the
“entire record” contained no information concerning the ap-
pellant’s mistreatment in the confinement facility.
A similar decision is United States v. Pena, 64 M.J. 259
(C.A.A.F. 2007). In Pena, the appellant was convicted of sex-
related offenses. Id. at 261. A clemency and parole board or-
dered him to participate in a rigorous supervised release pro-
gram for seventy-two days, ending on the last day of his ap-
proved sentence of confinement. Id. at 263. The appellant
argued on appeal to this Court that this requirement consti-
tuted cruel and usual punishment, unlawfully increased the
punishment to which he had been sentenced, and rendered
his guilty plea improvident. Id. at 264. The CCA determined
that it had jurisdiction to consider the appellant’s allegations
regarding the release program but denied him relief on the
merits. United States v. Pena, 61 M.J. 776, 777–78 (A.F. Ct.
Crim. App. 2005). This Court affirmed, determining that the
appellant had not presented sufficient proof to warrant relief.
The Court explained:
When an appellant asks us to review the post-
trial administration of a sentence, we are typically
confronted by issues in which the pertinent facts are
not in the record of trial. In such a case, it is partic-
ularly important that the appellant provide us with
a “clear record” of the facts and circumstances rele-
vant to the claim of legal error.
64 M.J. at 266. This statement is inconsistent with Fagnan in
that it contemplates that a CCA may consider materials out-
side the “entire record” when conducting a review under Arti-
cle 66(c), UCMJ.
E. Reconciling and Applying the Conflicting Precedents
The foregoing discussion raises the question of how to rec-
oncile the three categories of cases. The Government argues
that we can accommodate their discord by ruling that CCAs
may consider materials outside the entire record only when
assessing cruel and unusual punishment claims, such as
11
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
those in Erby, and that CCAs cannot consider materials out-
side the entire record in other contexts. In contrast, relying
on Erby, Pena, and White, Appellant argues that appellants
should have the right to supplement the record whenever
they raise claims of constitutional or statutory violations. Ap-
pellant grounds this position principally on the language in
Article 66(c), UCMJ, requiring the CCAs to determine that a
sentence is “correct in law.” 8
Looking carefully at all of these cases, we do not see a good
reason for disagreeing with Fagnan. 9 The second sentence of
Article 66(c), UCMJ, says: “[The CCA] may affirm only such
findings of guilty and the sentence or such part or amount of
the sentence, as it finds correct in law and fact and deter-
mines, on the basis of the entire record, should be approved.”
Article 66(c), UCMJ (emphasis added). The Court in Fagnan,
in our view, correctly interpreted the express requirement
that a CCA base its review on the “entire record” to mean that
a CCA cannot consider matters outside the “entire record.”
We see nothing in the statutory text requiring special treat-
ment for all appeals raising statutory or constitutional
claims. The “entire record” restriction, under the grammar
and punctuation of the second sentence, applies equally
whether the CCA is reviewing a sentence’s correctness in law,
8 Appellant at times also grounds this position on the “should
be approved” language of Article 66(c), UCMJ. In this context, our
prior decisions have not clearly delineated the difference between
the “correct in law” and sentence appropriateness determinations,
nor specified under which provision post-trial confinement condi-
tion claims fall.
9 Sometimes we are forced to choose between conflicting prece-
dents, accepting one and overruling the other. Compare United
States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (following most
recent precedent), with United States v. Perkins, 78 M.J. 381, 388
(C.A.A.F. 2019) (declining to follow more recent precedent due to
strong reasons to adhere to an earlier precedent). In this case, how-
ever, the question is not whether we must follow one line of prece-
dent and completely reject another, but instead only whether we
should expand recent precedents like Erby into new contexts when
this step would further erode older precedents like Fagnan.
12
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
reviewing a sentence’s correctness in fact, or determining
whether a sentence should be approved. 10
We also see no reason, in this case, to reconsider the sec-
ond category of precedents described above. Those precedents
have created an exception to Fagnan by allowing courts to
consider affidavits and gather additional facts through a
DuBay hearing when doing so is necessary for resolving is-
sues raised by materials in the record. In the present case,
Appellant did not present any claim regarding confinement
facility policies in his submissions to the convening authority.
Accordingly, nothing in the record raises an issue regarding
those policies. The precedents in the second category, accord-
ingly, have no bearing on this case.
This leaves only the question whether, in this case, we
should extend the third category of precedents. As described
above, Erby and Pena allowed appellants to raise and present
evidence of claims of cruel and unusual punishment and vio-
lations of Article 55, UCMJ, even though there was nothing
in the record regarding those claims. As we consider this
question, we note that the opinions in Erby and Pena did not
address the language of Article 66(c), UCMJ, that limits a
CCA’s review to the “entire record.” They did not address
Fagnan’s contrary holding. They also identified no limiting
principle regarding the scope of a CCA’s review. If a CCA’s
review authority is limitless, then much of the restrictive
wording in Article 66(c), UCMJ, would be superfluous. See
Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 837
(1988) (explaining that courts should be “hesitant to adopt an
interpretation of a congressional enactment which renders
superfluous another portion of that same law”). Accordingly,
we believe that Fagnan rather than Erby should control in
this case.
Applying Fagnan now, we start by recognizing that the
“entire record” contains no information about SOP 310 or the
application of the policy to Appellant. Neither the record of
10 Because both the sentence appropriateness and correctness
in law determinations require a decision based upon the “entire rec-
ord,” we need not determine whether post-trial confinement condi-
tions fall under one or both provisions.
13
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
trial nor the other matters attached to the record of trial men-
tion the policy. Instead, Appellant first raised his claims re-
garding the policy in the form of an affidavit, with attach-
ments, submitted to the ACCA. Appellant’s case also differs
from Erby because he has not argued that SOP 310 or its ap-
plication to him violates Article 55, UCMJ, or the Eighth
Amendment. Accordingly, under the interpretation of Article
66(c), UCMJ, established in Fagnan and now affirmed here,
we conclude the ACCA could not have considered this mate-
rial.
Three important observations about our holding and rea-
soning require attention. First, our decision today cabins but
does not overrule Erby or Pena, with respect to Article 55,
UCMJ, or Eighth Amendment claims. Consistent with the
Government’s proposal for accommodating the discordant
precedents, all we must decide today is that the practice of
considering material outside the record should not be ex-
panded beyond the context of Article 55, UCMJ, and the
Eighth Amendment. We may decide in a future case whether
these holdings with respect to such claims should be over-
ruled, modified, or instead allowed to stand as “aberration[s]”
that are “fully entitled to the benefit of stare decisis” because
they have become established. Flood v. Kuhn, 407 U.S. 258,
282 (1972).
Second, this decision does not overrule, call into question,
or otherwise affect Brennan or any other decision in the sec-
ond category of cases described above. Those decisions are dis-
tinguishable because they concerned issues raised by materi-
als in the record but not fully resolvable by those materials.
Those decisions also could not be easily cabined because they
have not been as limited in their subject matter as decisions
in the third category of cases, which have concerned only
Eighth Amendment and Article 55, UCMJ, post-trial confine-
ment claims. See Parker, 36 M.J. at 272 (identifying prece-
dents in the second category of cases that concern a variety of
issues).
Third, we note that the parties and the ACCA have dis-
cussed a number of competing policy arguments. For exam-
ple, among other considerations, the majority of the ACCA
observed that inmates generally have other venues, such as
14
United States v. Jessie, No. 19-0192/AR
Opinion of the Court
the U.S. district courts, for pursuing remedies for prison con-
ditions. See, e.g., Jessie, 2018 CCA LEXIS 609, at *18, 2018
WL 6892945, at *7 (citing Walden v. Bartlett, 840 F.2d 771,
774–55 (10th Cir. 1988)). The ACCA also reasoned that sen-
tence assessment under Article 66(c), UCMJ, is an imperfect
mechanism for addressing such claims, which other federal
courts can remedy by awarding damages or issuing injunc-
tions. Id. at *18, 2018 WL 6892945, at *7. On the other hand,
Appellant points out that resolving such claims at the CCAs
is often more convenient than pursuing collateral litigation.
A dissenting judge at the ACCA further noted that the CCAs
have not been overly burdened in hearing Eighth Amendment
and Article 55, UCMJ, claims. Id. at *42–43, 2018 WL
6892945, at *18 (Hagler, J., joined by Berger, C.J., dissent-
ing).
We take no position with respect to any of these competing
policy arguments. We think policy arguments should not
guide our decision in this case because the text of Article
66(c), UCMJ, does not permit the CCAs to consider matters
that are outside the entire record. See Universal Health Servs.
v. United States, 136 S. Ct. 1989, 2002 (2016) (explaining that
“policy arguments cannot supersede the clear statutory text”).
Policy arguments, of course, may guide Congress and the
President in the future if they choose to revise Article 66(c),
UCMJ.
III. Conclusion
We have answered Assigned Issue II in the affirmative by
concluding that the ACCA conducted a valid review under Ar-
ticle 66(c), UCMJ, even though it did not consider Appellant’s
constitutional claims. As a result, we answer Assigned Issue
I, which asks whether the ACCA erred by refusing to consider
specific evidence of Appellant’s confinement conditions, in the
negative. We need not answer Assigned Issue III, which con-
cerns the merits of Appellant’s constitutional claims, because
the documents that Appellant cites to support these claims
are outside the record.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
15
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting.
The majority holds that when a Court of Criminal Appeals
(CCA) is fulfilling its statutory responsibilities under Article
66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 866(c) (2012), and determining whether a sentence is correct
in law and fact and should be approved, the CCA is prohibited
from allowing the parties to supplement the record except in
those tightly circumscribed instances where the appellant
raises Eighth Amendment and Article 55, UCMJ, 10 U.S.C.
§ 855 (2012), claims. I disagree. In my view, this Court’s
caselaw authorizes a CCA to supplement the record in addi-
tional contexts where the CCA concludes that such a step is
necessary in order for it to perform its statutory duties under
Article 66(c), UCMJ, in an effective and informed manner.
Therefore, I respectfully dissent.
The majority squarely roots its holding in this case on the
wording of Article 66(c) and on our decision in United States
v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192 (1961). Specifically,
the majority first highlights the language in Article 66(c) that
states that a CCA must make its sentence appropriateness
determination “on the basis of the entire record.” The major-
ity then emphasizes that in Fagnan, this Court interpreted
the phrase “entire record” as meaning only the “record of
trial” and “allied papers.” 12 C.M.A. at 194, 30 C.M.R. at 194.
I view this inordinately restrictive view of this issue as mis-
guided.
To begin with, the reference in Article 66(c), UCMJ, to the
CCA making its sentence appropriateness determination “on
the basis of the entire record” should be seen as a transpar-
ency and due process requirement rather than as a limitation
on the powers of the CCA to supplement the record. That is,
the purpose of this provision is to ensure that a decision by
the CCA is not based on matters outside the record and that
the parties are informed ahead of time of evidence the CCA
will rely upon in reaching its decision. (See United States v.
Holt, where this Court held that a CCA is precluded from con-
sidering “extra-record” materials when making a sentence ap-
propriateness determination. 58 M.J. 227, 232 (C.A.A.F.
2003) (citation omitted) (internal quotation marks omitted).)
I see nothing in the language of Article 66(c) that precludes
the CCA from allowing the parties to supplement the record if
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting
that court deems it necessary in order to perform its statuto-
rily mandated duties, and then basing its sentence appropri-
ateness determination on “the entire record,” which would in-
clude this supplemental material.
Next, I conclude that the majority’s reliance on Fagnan as
controlling precedent is misplaced. To be clear, if Fagnan
stood alone as the only case to address this issue, I would
likely agree with the majority’s conclusion. But as the major-
ity admirably recounts in its own opinion, that is hardly the
situation.
For example: In United States v. Brennan, 58 M.J. 351
(C.A.A.F. 2003), the appellant sought sentence relief based on
her post-trial confinement conditions, and this Court consid-
ered the appellant’s affidavit on this topic even though it had
not been submitted to the convening authority and was not
part of “the entire record.” In United States v. Parker, 36 M.J.
269, 272 (C.M.A. 1993), this Court noted that we have author-
ized post-trial hearings pursuant to United States v. DuBay,
17 C.M.A. 147, 149, 37 C.M.R. 411, 413 (1967), “in a growing
miscellany of circumstances where extra-record fact determi-
nations were necessary predicates to resolving appellate
questions.” In United States v. Boone, 49 M.J. 187, 193
(C.A.A.F. 1998), the appellant raised an ineffective assistance
of counsel claim, and this Court noted that “there are legiti-
mate and salutary reasons for the now-Court of Criminal Ap-
peals to have the discretion to obtain evidence by affidavit,
testimony, stipulation, or a factfinding hearing, as it deems
appropriate.” In United States v. Erby, 54 M.J. 476, 479
(C.A.A.F. 2001), the appellant sought sentence relief based on
his post-trial confinement conditions, and this Court re-
manded the case to the CCA for “whatever factfinding is re-
quired … [in order to] review the merits of appellant’s claims
under Article 66(c), and determine what relief, if any, is ap-
propriate.” And in United States v. Pena, 64 M.J. 259, 266–67
(C.A.A.F. 2007), the appellant sought sentence relief based on
his post-trial confinement conditions, and this Court deemed
his “declaration” on this topic as being insufficient not be-
cause it was not part of the record that went to the convening
authority but because it consisted of mere “generalized state-
ments.” See also United States v. White, 54 M.J. 469, 472
(C.A.A.F. 2001). The Pena Court stated:
2
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting
When an appellant asks us to review the post-trial
administration of a sentence, we are typically con-
fronted by issues in which the pertinent facts are not
in the record of trial. In such a case, it is particularly
important that the appellant provide us with a “clear
record” of the facts and circumstances relevant to
the claim of legal error.
64 M.J. at 266 (quoting United States v. Miller, 46 M.J. 248,
250 (C.A.A.F. 1997)).
In reviewing this caselaw which is not consistent with our
decision in Fagnan, the majority decides to hew to our holding
in the latter case. I disagree with this approach for the rea-
sons cited below.
First, Fagnan, which was decided nearly sixty years ago,
conflicts with more recent precedent. As this Court recently
stated in United States v. Hardy, “When confronted with con-
flicting precedents, [this Court] generally follow[s] the most
recent decision.” 77 M.J. 438, 441 n.5 (C.A.A.F. 2018).
Second, there is not just one case that conflicts with the
older Fagnan case—there are several. When it comes to a duel
of precedents, not only recency but also frequency surely
should play a role.
Third, unlike at the time of the Fagnan decision, a number
of federal circuit courts have now determined that they have
the authority to supplement the record on appeal in special
circumstances. See, e.g., United States v. Rothbard, 851 F.3d
699, 702 (7th Cir. 2017) (supplementing the record to address
the reasonableness of the district court’s sentence); 16A
Charles Alan Wright et al., Federal Practice and Procedure
§ 3956.4 (5th ed. 2019). Given this federal civilian practice,
the judicial nature of the CCAs would support, not preclude—
as suggested by Fagnan—supplementation of the record on
appeal in appropriate instances. This is especially true in
light of the fact that the CCAs are unique appellate courts
with “unrivaled statutory powers.” United States v. Kelly, 77
M.J. 404, 405 (C.A.A.F. 2018). Their “scope of review … differs
in significant respect from direct review in the civilian federal
appellate courts” to include that a CCA “conducts a de novo
review of the sentence under Article 66(c) as part of its re-
sponsibility to make an affirmative determination as to sen-
tence appropriateness.” United States v. Roach, 66 M.J. 410,
3
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting
412 (C.A.A.F. 2008). If the more limited federal circuit courts
have the authority to supplement the record on appeal, then
the CCAs’ uniquely broad authority under Article 66(c)
clearly weighs in favor of also allowing the CCAs to determine
when to allow supplementation.
Fourth, unlike in the federal civilian court system, there
is “no mechanism set out in the Uniform Code of Military Jus-
tice for this Court or the [CCAs] to evaluate … post-conviction
claims,” and thus DuBay hearings—which were adopted more
than fifty years ago—have “proved to be a useful tool” in this
regard. United States v. Polk, 32 M.J. 150, 152–53 (C.M.A.
1991). In other words, the military justice system does not
have a procedure in place, such as in the federal civilian court
system, where collateral litigation is used to address claims
that cannot be resolved on the basis of the material already
contained in the record. DuBay hearings help to fill that role.
This process has a long history in the military, is not unduly
burdensome, can provide adequate relief to aggrieved service-
members in a timely manner under a host of circumstances,
and can keep the issue “in house” rather than requiring the
servicemember to resort to the civilian legal system to vindi-
cate his or her rights that were allegedly violated by the mil-
itary.1 And yet, despite the multitude of cases over more than
fifty years where the CCAs and this Court have employed this
procedure, the majority explicitly notes that in a future case
it may seek to overturn long-standing precedent and thereby
further limit an appellant’s ability to supplement the record—
even in those instances where the alleged violation of rights
1 The majority seems to accept the CCA’s claim that civilian
federal courts can award damages to military prisoners. (“[T]he ma-
jority of the ACCA observed that inmates generally have other ven-
ues, such as the U.S. district courts, for pursuing remedies for
prison conditions.” See, e.g., Jessie, 2018 CCA LEXIS 609, at *18,
2018 WL 6892945, at *7 (citing Walden v. Bartlett, 840 F.2d 771,
774–55 (10th Cir. 1988)).” United States v. Jessie, __ M.J. __, __
(14―15) (C.A.A.F. 2020).) However, this claim offers false hope
given that the Feres doctrine prohibits lawsuits by military prison-
ers against the federal government. See Schnitzer v. Harvey, 389
F.3d 200, 203 (D.C. Cir. 2004) (“Every circuit to consider the issue
[of whether and how the Feres doctrine applies to military prison-
ers], however, has found the doctrine to apply without modifica-
tion.”).
4
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting
rises to constitutional dimensions. Specifically, the majority
states:
We may decide in a future case whether these hold-
ings with respect to such claims [i.e., whether prece-
dents authorizing the supplementation of the rec-
ord—such as through DuBay hearings—in those
cases where Article 55, UCMJ, and Eighth Amend-
ment claims are raised,] should be overruled, modi-
fied, or instead allowed to stand as “aberration[s]”
that are ‘fully entitled to the benefit of stare decisis’
because they have become established. Flood v.
Kuhn, 407 U.S. 258, 282 (1972).
Jessie, __ M.J. at __ (14) (second alteration in original). This
is an ominous pronouncement.2
Fifth, the rationale of the majority opinion brings into
question the validity of this Court’s own rules and practices.
Specifically, Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2012),
states that this Court “shall review the record,” but then
C.A.A.F. R. 30A of this Court’s Rules of Practice and Proce-
dure allows this Court to consider new material on motion
from a party for issues that were not raised by the record.3
(Emphasis added.) It is odd indeed if this Court, which does
not have the same factfinding and review authority as a CCA,
has the power to supplement the record but a CCA does not.
In light of these factors, I conclude that the majority is
mistaken in concluding that the CCA was prohibited from
considering the materials submitted by Appellant regarding
the conditions of his post-trial confinement. Indeed, in regard
to the disposition of the instant case, I would remand the case
2 The majority also states that its decision does not overrule or
call into question those decisions that fall within the second cate-
gory of cases identified in its opinion. However, as my colleague
Judge Sparks observes, the logic of the majority opinion would seem
to limit the CCAs to the record reviewed by the convening authority
even for this second category of cases.
3 I note two recent examples in which we have permitted sup-
plementation of the record to grant reconsideration to address is-
sues that were not raised by materials in the record. See United
States v. Springer, 79 M.J. 138 (2019) (summary disposition);
United States v. Barry, 76 M.J. 407 (C.A.A.F. 2017) (summary dis-
position).
5
United States v. Jessie, No. 19-0192/AR
Judge OHLSON, dissenting
to the CCA. Pursuant to this remand, I would emphasize that
in the course of conducting their Article 66, UCMJ, review,
the CCA has broad discretion to permit the parties to supple-
ment the record. Because the majority holds to the contrary,
I respectfully dissent.
6
United States v. Jessie, No. 19-0192/AR
Judge SPARKS, dissenting.
I agree with the majority’s assessment of the three differ-
ent lines of precedent related to the court of criminal appeals’
consideration of materials outside the record as part of an Ar-
ticle 66(c), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 866(c) (2012), sentence appropriateness review.
However, like my colleague Judge Ohlson, I am troubled by
the decision to cabin off the entire line of precedent constitut-
ing the majority’s third category, those cases that allow the
lower courts to consider material outside the record for a lim-
ited class of issues not raised by anything in the record.
United States v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192,
194 (1961), is nearly sixty years old and involves an appel-
lant’s request for what is essentially clemency, a reduction of
his sentence based on good behavior. I am reluctant to use
this as the basis for denying a more liberal interpretation of
“the entire record” in cases following in the footsteps of
United States v. Erby, 54 M.J. 476 (C.A.A.F. 2001), and
United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), which
raised serious questions of sentence appropriateness rather
than just clemency. The majority is correct that Article 66,
UCMJ, instructs the lower courts to review issues “on the
basis of the entire record.” But it also entrusts the lower
court with the weightier responsibility of ensuring an ac-
cused’s sentence is “correct in law.” Confining our review
only to the existing record, without exception, would limit
the lower court’s ability to do this.
Sentence appropriateness is a somewhat fluid issue. It is
conceivable that sentencing issues could arise or ripen or
come to defense counsel’s attention only after the convening
authority has acted. To my mind, the courts of criminal ap-
peals are bound, under Article 66, UCMJ, to consider any col-
orable constitutional claim related to sentence appropriate-
ness even if that requires review of documents outside the
record of trial. The line of cases extending from Erby and Pena
should not be considered “aberration[s].” United States v. Jes-
sie, __ M.J. __ (14) (C.A.A.F. 2020) (alteration in original) (in-
ternal quotation marks omitted) (citation omitted). To the
contrary, the lower court’s right to consider matters beyond
the record to resolve claimed violations of the Eighth Amend-
ment and Article 55, UCMJ, 10 U.S.C. § 855 (2012), should
justifiably extend to the resolution of other credible constitu-
tional claims. Once it has evaluated all the information avail-
able to it, the lower court has the discretion to determine
United States v. Jessie, No. 19-0192/AR
Judge SPARKS, Dissent
whether the appellant’s constitutional rights have been in-
fringed upon and whether the court is in a position to fashion
a plausible remedy. The fact that an appellant did not raise a
sentencing issue with the military judge or convening author-
ity simply should not bar consideration of a legitimate consti-
tutional claim.
Though the majority opinion is clear about its narrow ap-
plication, I nonetheless have concerns that, if we rely here
upon a literal interpretation of the phrase “on the basis of
the entire record,” nothing in Article 66, UCMJ, would limit
such strict application to only cases involving sentencing re-
view. This Court has frequently reviewed cases from the
courts of criminal appeals in which the trial record has been
supplemented on appeal. See, United States v. Navarette, 79
M.J. 123, 125―26 (C.A.A.F. 2019) (as part of a motion for a
Rule for Courts-Martial 1203(c)(5) mental health inquiry,
the lower court considered the appellant’s discharge paper-
work following a post-trial hospitalization for psychiatric
care); United States v. Datavs, 71 M.J. 420, 423 (C.A.A.F.
2012) (in an ineffective assistance of counsel claim, the lower
court considered multiple supplemental affidavits and re-
ports relevant to trial defense counsel’s performance). If we
were to extend the logic of the majority, would not the lower
courts be confined to “the entire record” when considering
these cases as well?
Given these concerns, I respectfully dissent.
2
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01-03-2023
|
04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4523090/
|
In the Missouri Court of Appeals
Eastern District
SOUTHERN DIVISION
STATE OF MISSOURI, ) No. ED107538
)
Respondent, )
) Appeal from the Circuit Court of
) Cape Girardeau County
vs. ) Cause No. 16CG-CR00658
)
LANCE M. SWALVE, ) Honorable Craig D. Brewer
)
Appellant. ) Filed: April 7, 2020
OPINION
Lance M. Swalve (“Defendant”) appeals the trial court’s judgment entered upon a jury
verdict finding him guilty of one count of driving while intoxicated (“DWI”). Defendant raises
two points on appeal. In his first point, Defendant argues that the trial court abused its discretion
in denying his motions for judgment of acquittal because the State presented insufficient
evidence for a reasonable juror to find him guilty of the charged offense beyond a reasonable
doubt. And in his second point, Defendant asserts that the trial court abused its discretion in
denying his objection to the State’s use of twelve beer bottles during its closing argument to
demonstrate the amount of alcohol that Defendant had allegedly consumed before driving.
Defendant contends that the prosecutor’s statement constituted prejudicial error because the
demonstrative use of the beer bottles misrepresented the evidence admitted at trial and there was
a reasonable probability that it affected the jury’s verdict.
1
Finding that the trial court did not err, we affirm the judgment of the trial court.
I. Factual and Procedural Background
Defendant was charged by information on or about April 14, 2016, of one count of DWI
after Defendant was observed in an allegedly intoxicated state by several witnesses at the Isle
Casino in Cape Girardeau, Missouri on the evening of March 10, 2016, before Defendant entered
a vehicle and drove away from the casino. A jury trial on the matter was held on August 9, 2017.
At trial, the State presented evidence detailing the events that formed the basis of Defendant’s
DWI charge. Specifically, the State presented testimony by Ryan Adams (“Adams”) (a casino pit
manager), Brian McGowan (“McGowan”) (a casino security supervisor), Rodney Beard
(“Beard”) (a casino surveillance supervisor), and Sergeant Blaine Adams (“Sgt. Adams”) (a
Missouri State Highway Patrol officer who was working with the Missouri Gaming Commission
at the casino) and offered surveillance video and video still images of Defendant while he was
present at the casino on March 10, 2016. Defendant did not present any evidence.
The evidence presented at trial demonstrated the following. Defendant arrived at the Isle
Casino at approximately 5:15 p.m. on March 10, 2016. Upon arriving, Defendant purchased a
pint of beer from a casino bar, and thereafter played table games on the casino floor for the
following five hours. During the approximately five hours that Defendant played table games, he
obtained 12 more alcoholic beverages—specifically, 12 16-ounce bottles of beer. Beard, who
reviewed all of the surveillance footage of Defendant while he was at the casino, confirmed that
he did not see Defendant give any drinks away or pour any drinks out. At about 10:20 p.m.,
Defendant disputed the result of a hand of blackjack, where he claimed that he did not “wave
off” the dealer. As a result of this dispute, Adams was alerted and made contact with Defendant
and the blackjack dealer. Prior to speaking with Defendant at this point, Adams had not
2
interacted with Defendant or received any other notifications about Defendant’s behavior. After
speaking with Defendant, Adams (who was trained to identify intoxicated persons in connection
with his job, as it was casino policy to disallow intoxicated persons on the casino floor) believed
that Defendant was intoxicated based on him being argumentative, slurring his speech, and
appearing red in the face.
Adams then contacted Sgt. Adams regarding Defendant’s potential intoxication. Sgt.
Adams and McGowan responded to the casino floor to speak with Defendant, and invited
Defendant to view the surveillance video footage of the hand of blackjack that Defendant
disputed. After viewing the footage, Defendant conceded that he was incorrect and did indeed
wave off the dealer during the hand at issue. Following their interaction with Defendant, Sgt.
Adams and McGowan (both of whom are trained to identify intoxicated persons) both concluded
that Defendant was intoxicated because he had glassy and bloodshot eyes, slurred his speech,
swayed where he stood, and had an odor of intoxicants. Upon making this determination, Sgt.
Adams told Defendant that, per casino policy, Defendant could not return to the casino floor
because he was intoxicated. Defendant was then escorted to the casino lobby at 10:34 p.m.
Approximately 20 minutes later at 10:54 p.m., Defendant requested to again speak with
Sgt. Adams and attempt to prove that he was not intoxicated. Sgt. Adams asked Defendant how
intoxicated he was on a scale of one to ten (one being sober and ten being drunk to the point of
staggering, vomiting, and falling down), to which Defendant responded “five.” After this second
interaction, Sgt. Adams believed that his determination regarding Defendant’s intoxication was
still correct, and advised Defendant that he needed to wait five or six hours before he drove home
or to find a ride home. Sgt. Adams encountered Defendant for the final time that night when
Defendant attempted to re-enter the casino floor at approximately 11:18 p.m. When this last
3
interaction concluded at approximately 11:20 p.m., Sgt. Adams again noted the signs of
Defendant’s intoxication (particularly, Defendant’s argumentative demeanor) and again told
Defendant that he could not drive home because of his “extremely intoxicated” state.
Surveillance video showed that Defendant thereafter exited the casino and initially
entered the passenger seat of a vehicle; however, after a few minutes, Defendant switched
positions with the person in the driver’s seat of the vehicle and proceeded to drive away. After
learning that Defendant drove away, Sgt. Adams entered his patrol car and attempted to pursue
Defendant because he believed that Defendant was DWI. Sgt. Adams also contacted another
Missouri State Highway Patrol officer who was on duty that night and gave him a description of
Defendant’s vehicle to further attempt to detain Defendant, but neither Sgt. Adams nor the other
officer was able to locate Defendant’s vehicle. On March 12, 2016, Sgt. Adams called
Defendant’s home, and notified him that he would be receiving a ticket for DWI. In response,
Defendant stated to Sgt. Adams, “I made a bad mistake last night.”
At the close of the State’s evidence and at the close of all the evidence, Defendant filed
motions of acquittal, both of which were denied. During the rebuttal portion of the State’s
closing argument, the prosecuting attorney placed a 12-pack of beer bottles (which were used
previously during trial to illustrate the type of drinks that Defendant was served) on the jury rail
and referenced them to demonstrate the amount of alcohol that Defendant allegedly consumed in
the five hours that he was on the casino floor. Defendant objected to this statement on the
grounds that it was “highly inappropriate,” which the trial court overruled. The jury found
Defendant guilty of the DWI charge, and Defendant was sentenced to 180 days in jail with
execution of that sentence suspended and Defendant placed on two years’ supervised probation.
This appeal follows.
4
II. Discussion
Point I
In his first point on appeal, Defendant argues that the trial court abused its discretion in
denying Defendant’s motions for judgment of acquittal because the State presented insufficient
evidence such that a reasonable juror could not have found Defendant guilty beyond a reasonable
doubt of the DWI charge. Defendant further asserts that “[i]t was impossible for a reasonable
juror to find [Defendant] guilty based on the evidence presented at trial as the time interval
between his last possible consumption of alcohol and his departure from the Casino dispelled any
reasonable doubt that he was intoxicated.”
a. Standard of Review
“We review claims challenging the sufficiency of the evidence supporting a criminal
conviction by determining whether the State presented sufficient evidence at trial from which a
reasonable jury might have found the defendant guilty of all the essential elements of the crime
beyond a reasonable doubt.” State v. Lopez, 539 S.W.3d 74, 78 (Mo. App. E.D. 2017) (citing
State v. Gibbs, 306 S.W.3d 178, 181 (Mo. App. E.D. 2010)). We accept as true all evidence and
inferences therefrom supporting the jury’s verdict, and disregard all contrary evidence and
inferences. State v. Gittemeier, 400 S.W.3d 838, 841 (Mo. App. E.D. 2013).
b. Analysis
“A person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle
while in an intoxicated or drugged condition.” Section 577.010.1.1 “To sustain a conviction, the
State must prove through direct or circumstantial evidence not only that the defendant was
intoxicated, but also that the defendant operated the vehicle while in this condition.” Lopez, 539
1
All references are to Mo. Rev. Stat. Cum. Supp. 2016.
5
S.W.3d at 78; see also State v. Donovan, 539 S.W.3d 57, 66 (Mo. App. E.D. 2017) (“[T]o obtain
a DWI conviction, the State must prove beyond a reasonable doubt that the defendant
(1) operated a vehicle (2) while intoxicated.”). “Circumstantial evidence is evidence that does
not directly prove a fact but gives rise to a logical inference that the fact [exists].” Lopez, 539
S.W.3d at 78 (citing State v. Putney, 473 S.W.3d 210, 216 (Mo. App. E.D. 2015)).
Circumstantial and direct evidence are given the same weight when considering the sufficiency
of the evidence. Id. (citing State v. Shoemaker, 448 S.W.3d 853, 856 (Mo. App. W.D. 2014)).
In this case, there is abundant evidence detailing Defendant’s intoxicated state prior to
driving. Specifically, the exhibits and testimony presented at trial showed that Defendant was
served 13 alcoholic beverages in the five hours before his interactions with Adams, McGowan,
and Sgt. Adams, that each of those individuals noticed that Defendant exhibited indicators of
intoxication (such as slurred speech, facial redness, glassy and bloodshot eyes, swaying while
standing, smelling of intoxicants, and being argumentative), and that Defendant drove away from
the casino just over an hour after first interacting with those witnesses and just 16 minutes after
Sgt. Adams last identified that Defendant was intoxicated. We find that a reasonable jury could
have found Defendant guilty beyond a reasonable doubt of the DWI charge from this evidence
and the reasonable inferences drawn therefrom.
Even absent chemical and field-sobriety tests, the State may still meet its burden of proof
to show that a defendant was intoxicated while driving. Gittemeier, 400 S.W.3d at 841; State v.
Scholl, 114 S.W.3d 304, 307–08 (Mo. App. E.D. 2003). “[T]he State may prove intoxication
through circumstantial evidence and the testimony of witnesses who had a reasonable
opportunity to observe the defendant.” Lopez, 539 S.W.3d at 78 (citing Putney, 473 S.W.3d at
215–16); see also Gittemeier, 400 S.W.3d at 842 (“The State may meet its burden of proof solely
6
through the testimony of any witness who had reasonable opportunity to observe the defendant’s
physical condition.”). While there were no blood test results or field-sobriety test results
presented to show that Defendant was intoxicated when he drove, the testimony of Adams,
McGowan, and Sgt. Adams combined with the circumstantial evidence presented here
(specifically, that Defendant obtained 13 alcoholic beverages in the hours before driving home)
is sufficient to give rise to the logical inference that fact was true. See Lopez, 539 S.W.3d at 78.
Defendant’s primary argument is that the “significant time gap” between his drinking and
when he drove combined with there being no evidence of exactly how much alcohol Defendant
consumed prior to driving make it “impossible for a reasonable juror to find [Defendant] guilty.”
We first note that it is reasonable for the jury to infer that Defendant consumed all or a
substantial portion of the 13 drinks he was served at the casino; it is logical that Defendant would
not continue to order drinks unless he finished the one he had previously.2 As the jury clearly
inferred from the evidence presented that Defendant consumed enough alcohol to become
intoxicated, we accept it as true. See Gittemeier, 400 S.W.3d at 841; Lopez, 539 S.W.3d at 78.
Further, in support of his contention that it is impossible for a reasonable jury to find him
guilty of the DWI charge because of the gap in time between his drinking and when he drove,
Defendant largely relies on Missouri DWI cases where the defendant was in a car accident and
the defendant’s intoxication was discovered some time after. Specifically, Defendant argues that
the holding of State v. Byron, 222 S.W.3d 338 (Mo. App. W.D. 2007) (citing State v. Dodson,
496 S.W.2d 272, 273–74 (Mo. App. W.D. 1973)), where the court overturned the defendant’s
DWI conviction because the defendant could have obtained and consumed alcohol and become
intoxicated in the time between when he crashed his car and when he was found intoxicated by
2
For further discussion of why it was reasonable to infer that Defendant consumed all or most of the alcohol he was
served, see infra Point II, B. Analysis.
7
police, is applicable to this case. In Byron, the evidence showed that the defendant had an
accident when he ran his car off the road, but was only found some time later intoxicated at his
home. Id. at 342–43. During the time between the accident and when police found the defendant
intoxicated, he had walked from the accident scene to a grocery store, where he was picked up
by his father and driven home. Id. The court in Byron concluded that “because of the evidentiary
gap, we cannot say that under the law Byron’s guilt of driving while intoxicated was
demonstrated by the evidence to such a degree that the jury could find guilt beyond a reasonable
doubt.” Id. at 343–44.
The facts of this case are quite distinguishable from those present in Byron. The result of
Byron turned on the amount of time between the accident and when the defendant’s intoxication
was discovered (between 40 minutes and almost 1.5 hours) and that the defendant had
opportunity to obtain alcohol after the accident such that there was reasonable doubt as to
whether he became intoxicated only after driving, and not before or while driving. Id. Here, there
was plentiful evidence presented at trial demonstrating that Defendant was intoxicated prior to
driving; the testimony of the witnesses trained to identify intoxicated persons certainly supports
that Defendant was intoxicated from the time he left the casino floor (at approximately 10:20
p.m.) to the last interaction that Defendant had with Sgt. Adams (at approximately 11:20 p.m.).
Sgt. Adams confirmed during his testimony that he observed the same signs of Defendant’s
intoxication (bloodshot and glassy eyes, slurred speech, argumentative behavior, and strong odor
of intoxicants on his breath) during his final interaction with Defendant at 11:20 p.m.
(approximately 16 minutes before Defendant drove away from the casino) as his previous
encounters with Defendant. From that evidence in particular, the jury could certainly reasonably
infer that Defendant was still intoxicated when he drove away from the casino at 11:36 p.m.
8
Missouri DWI cases addressing a temporal gap between when a defendant was observed
intoxicated and when the defendant drove a vehicle state generally that an interval of 30 minutes
or less “is on its face sufficiently close in time to support an inference of intoxication while
driving.” Lopez, 539 S.W.3d at 78 (citing State v. Davis, 226 S.W.3d 927, 929 (Mo. App. W.D.
2007)).3
In essence, Defendant proposes that he could have become sober between when Adams,
McGowan, and Sgt. Adams observed him intoxicated and when he drove. However, “[t]he State
is not required to disprove every possible theory under which a defendant could be innocent,” but
rather, “evidence is sufficient to support guilt if any reasonable inference supports guilt, even if
other ‘equally valid’ inferences do not.” State v. Rastorfer, 574 S.W.3d 282, 287 (Mo. App.
W.D. 2019) (quoting State v. Varnell, 316 S.W.3d 510, 518 (Mo. App. W.D. 2010) and Putney,
473 S.W.3d at 219). Undoubtedly, the time between driving and intoxication is often a
determinative factor in DWI cases, and in this case, the direct and circumstantial evidence
presented (specifically, that showing Defendant obtained 13 beers, was observed intoxicated at
11:20 p.m., and drove away from the casino at 11:36 p.m.) supported the reasonable inference by
the jury that Defendant was intoxicated while driving, and we must disregard any inference to
the contrary. See Gittemeier, 400 S.W.3d at 841; Lopez, 539 S.W.3d at 78. We therefore find that
the State presented sufficient evidence from which a reasonable jury could have found Defendant
guilty beyond a reasonable doubt of the DWI charge.
Point I is denied.
3
While we note that both Lopez and Davis addressed factual situations where the defendant was observed
intoxicated shortly after driving, we believe the holdings of those cases are persuasive in this case, as both
emphasized that 30 minutes was a brief enough timespan to support that the defendants were intoxicated when they
drove.
9
Point II
In Defendant’s second point on appeal, he argues that the trial court abused its discretion
in overruling his objection to the State’s use of twelve beer bottles during the rebuttal portion of
its closing argument to demonstrate how much Defendant had to drink before driving away from
the casino. Defendant asserts that this abuse of discretion was prejudicial to his defense because
the use of the twelve-pack of beer bottles misrepresented the evidence presented during trial and
created a reasonable probability that the jury’s verdict would have been different absent that
statement.
a. Standard of Review
Where a defendant objects to a statement made by the prosecuting attorney during
closing arguments, we review the trial court’s alleged error for abuse of discretion. State v.
Tramble, 383 S.W.3d 34, 37 (Mo. App. E.D. 2012); State v. Brown, 337 S.W.3d 12, 14 (Mo.
banc 2011). “An abuse of discretion occurs when a defendant is prejudiced such that ‘there is a
reasonable probability that the outcome at trial would have been different if the error had not
been committed.’” State v. Holmsley, 554 S.W.3d 406, 410 (Mo. banc 2018) (quoting State v.
Deck, 303 S.W.3d 527, 540 (Mo. banc 2010)). “Closing arguments must be examined in the
context of the entire record.” Tramble, 383 S.W.3d at 37 (quoting Deck, 303 S.W.3d at 540).
b. Analysis
“The trial court has broad discretion in controlling the scope of closing arguments.” State
v. Cross, 497 S.W.3d 271, 279 (Mo. App. E.D. 2016); see also Tramble, 383 S.W.3d at 37. The
State is allowed to argue the evidence and all reasonable inferences therefrom during closing
argument. State v. Walter, 479 S.W.3d 118, 125 (Mo. banc 2016) (citing Brown, 337 S.W.3d at
14). However, while the State has wide latitude during closing argument, “courts should exclude
10
statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or
otherwise tend to confuse the jury.” Cross, 497 S.W.3d at 279; Holmsley, 554 S.W.3d at 410.
“The latitude given to parties in closing does not serve as an end run around the law of
evidence,” but rather, “[c]losing argument grants each side the opportunity to highlight the
evidence that was presented.” Walter, 479 S.W.3d at 125 (quoting Brown, 337 S.W.3d at 15).
During the rebuttal portion of the State’s closing argument in this case, the prosecuting
attorney referenced a 12-pack of beer bottles (that had been used earlier during trial when Sgt.
Adams confirmed that those were the type of beverage served to Defendant) to suggest that
Defendant had consumed that amount of alcohol plus one pint of beer before driving.
Specifically, the prosecutor stated to the jury, “[Y]ou now know how much he had to drink, and I
know how much he had to drink. And what’s the answer to that question? The answer to that
question --” at which point, the prosecutor referred to the 12-pack of beer bottles and Defendant
objected. After Defendant’s objection was overruled by the trial court, the prosecutor clarified
repeatedly that the 12-pack was equal to the amount of alcohol that Defendant obtained, and
pointed out that Beard had testified that he did not see Defendant give any drinks away or throw
drinks out while reviewing the hours of surveillance footage of Defendant at the casino.
In this case, we cannot say that the trial court abused its discretion in overruling
Defendant’s objection to the prosecutor’s statement referencing the 12-pack of beer bottles. First
and foremost, as alluded to supra Point I, B. Analysis, the State’s inference that Defendant
consumed all or most of the drinks that he obtained is a reasonable one that could be drawn from
the evidence presented. The photographic stills and surveillance video of when Defendant
obtained his drinks, Beard’s testimony that he did not see Defendant give any drinks away or
pour drinks out, and testimony by Adams, McGowan, and Sgt. Adams regarding Defendant’s
11
intoxicated state support the inference that Defendant consumed most if not all of the drinks he
obtained. Considering the combined evidence presented, the State’s inference that Defendant
consumed an amount of alcohol equal to or greater than the 12-pack of beer was a reasonable
one that fell within the wide latitude that the State is granted during closing argument. Walter,
479 S.W.3d at 125; Brown, 337 S.W.3d at 14. Further, we find that there is no reasonable
probability that the outcome of trial would have been different absent the prosecutor’s statement,
as that statement simply repeated the evidence presented at trial and made a reasonable inference
from that evidence. See Holmsley, 554 S.W.3d at 410. As such, we find that the trial court did
not abuse its discretion in overruling Defendant’s objection to the prosecutor’s statement during
the State’s closing argument.
Point II is denied.
III. Conclusion
For the foregoing reasons, we find that there was sufficient evidence presented from
which a reasonable jury could have found Defendant guilty beyond a reasonable doubt of the
DWI charge and that the trial court did not abuse its discretion in overruling Defendant’s
objection to the prosecutor’s statement referencing the 12-pack of beer bottles during the State’s
closing argument. The judgment of the trial court is affirmed.
_______________________________
Colleen Dolan, Chief Judge
Robert G. Dowd, Jr., J., concurs.
Lisa P. Page, J., concurs.
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In the Missouri Court of Appeals
Eastern District
DIVISION THREE
JOHN DODD JACKSON, JR., ) No. ED107664
)
Movant/Appellant, ) Appeal from the St. Louis County
) Circuit Court
vs. )
)
STATE OF MISSOURI, ) Honorable Maura B. McShane
)
Respondent/Respondent. ) Filed: April 7, 2020
Introduction
John Dodd Jackson, Jr. (Appellant) appeals from the motion court’s judgment overruling
his amended Rule 24.0351 motion for post-conviction relief which sought to set aside his guilty
pleas to one count of first-degree child molestation in Case No. 09SL-CR02858-01 and three
counts of first-degree child molestation in Case No. 15SL-CR00495-01. Appellant alleged no
facts in either his pro se or amended post-conviction relief motion that his pro se motion was
timely filed or the untimely filing fell into a recognized exception. Accordingly, we vacate the
judgment of the motion court and remand the cause to the motion court with directions to enter
an order dismissing Appellant’s motion with prejudice.
1
All rule references are to Mo. R. Crim. P. (2016) unless otherwise indicated.
Procedural Background
Appellant pleaded guilty to one count of first-degree child molestation in Case No. 09SL-
CR02858-01 in 2010. He was sentenced to seven years in the Missouri Department of
Corrections (DOC); however, his sentence was suspended and he was placed on five years of
probation.
Appellant was charged in March 2015 with three counts of first-degree child molestation
in Case No. 15SL-CR00495-01. He pleaded guilty to all three counts in August 2015 and the
trial court scheduled Appellant to be sentenced in October 2015. On October 16, 2015, the trial
court sentenced Appellant to concurrent twenty-five-year sentences in the DOC on each count.
On the same date, Appellant waived his probation revocation hearing in Case No. 09SL-
CR02858-01 and was sentenced to the previously imposed sentence of seven years in the DOC,
to run concurrent to the sentence imposed in Case No. 15SL-CR00495-01.
Appellant filed his pro se motion for post-conviction relief pursuant to Rule 24.035 on
April 19, 2016. In his motion, regarding the date in which he was delivered to the DOC to serve
his sentence, Appellant stated he was “[n]ot sure of exact date but it was after 10/16[.]” The
guilty plea and sentencing transcripts were filed on May 4, 2016. On June 14, 2016, the public
defender’s office entered its appearance on Appellant’s behalf and requested an additional thirty
days to file an amended motion for post-conviction relief. The trial court granted Appellant’s
request for an extension on June 15, 2016.
On August 16, 2016, privately retained defense counsel (private counsel) entered his
appearance on behalf of Appellant. The public defender’s office filed a motion to withdraw,
which the motion court granted on August 25, 2016. Private counsel filed an amended motion
for post-conviction relief on Appellant’s behalf on September 9, 2016. The amended motion did
2
not contain any factual allegations as to the date Appellant was delivered to the DOC, but rather
stated, “On April 19, 2016, Movant timely filed his Rule 24.035 initial motion to vacate, set
aside or correct the judgments or sentences in the form of Criminal Procedure Form No. 40….”
Due to the retirement of the judge who presided over the plea and sentencing of Appellant, the
case was reassigned to the motion court judge on September 14, 2016.
An evidentiary hearing was held on Appellant’s amended motion for post-conviction
relief on August 27-28, 2018. The record was left open, and the deposition of Appellant’s
original defense counsel was held on November 30, 2018, and submitted to the motion court as
part of the record. On December 18, 2018, the motion court entered an order denying
Appellant’s post-conviction motion. The motion court entered its findings of fact and
conclusions of law on January 25, 2019, addressing the merits of Appellant’s motion. The
motion court found Appellant failed to establish both that he was not competent to plead guilty
and that he received ineffective assistance of counsel. This appeal follows.
Point Relied On
Appellant claims the motion court clearly erred in denying his amended motion for post-
conviction relief because he established by a preponderance of the evidence that counsel’s
representation was ineffective and fell below the objective reasonableness standard because
counsel failed to investigate Appellant’s competency to ensure his plea would be knowing,
intelligent, and voluntary.
Discussion
Before we are able to reach the merits of Appellant’s amended motion, we must first
address the State’s contention that Appellant’s appeal should be dismissed because his pro se
post-conviction motion was not timely filed in that neither Appellant’s pro se nor amended
3
motion for post-conviction relief alleged the specific date Appellant was delivered to the DOC.
The State first raised the issue of lack of timeliness on appeal in its brief, and as a result the
motion court did not consider it. Despite the issue being raised for the first time on appeal, the
State cannot waive noncompliance with the time limit in Rule 24.035, and “even if the State does
not raise the issue, it is the court’s duty to enforce the mandatory time limits and the resulting
complete waiver in the post-conviction rules.” Roberts v. State, 407 S.W.3d 89, 92 (Mo. App.
W.D. 2013), quoting Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012) (internal quotations
omitted).
Timeliness of Post-Conviction Motion
Under Rule 24.035, a motion to vacate, set aside, or correct the judgment or sentence
must substantially conform to Criminal Procedure Form No. 40 and must be filed within 180
days of the date the person is delivered to the DOC. Rule 24.035(b). Paragraph 4(b) of Criminal
Procedure Form No. 40 requests “[t]he date upon which you were delivered to the custody of the
department of corrections to serve the sentence you wish to challenge.” “…Criminal Procedure
Form No. 40 requires pleading the date of delivery to custody to enable determination of
timeliness from the face of the pro se motion.” Marschke v. State, 946 S.W.2d 10, 11 (Mo. App.
W.D. 1997), quoting Lestourgeon v. State, 837 S.W.2d 588, 591 (Mo. App. W.D. 1992) (internal
quotations omitted).
“[A] movant seeking post-conviction relief ‘must allege facts establishing that the
motion is timely filed.’” Hall v. State, 528 S.W.3d 360, 36162 (Mo. banc 2017), quoting
Dorris, 360 S.W.3d at 267. “Dorris plainly holds that the burden of pleading and proving facts
showing the motion was timely filed rests with the movant.” Id. at 362 (emphasis in original).
The burden of alleging and proving that the motion is timely filed can be met by
the movant in one of three ways: (1) by filing the original pro se motion timely so
4
that the file stamp on the motion reflects that it is filed within the time limits
[prescribed] in the rule; (2) alleging in the original pro se motion and proving by a
preponderance of the evidence that the movant’s circumstances fall within a
recognized exception to the time limits; or (3) alleging in the amended motion and
proving by a preponderance of the evidence that the circuit court misfiled the
motion.
Vogl v. State, 437 S.W.3d 218, 226 (Mo. banc 2014), citing Dorris, 360 S.W.3d at 267.
“While it is defendant’s burden to show that his motion is timely, nothing in the rule
requires dismissal of the motion if the showing of timeliness is not made in the pro se Form 40
itself, but rather is made based on other aspects of the record, or is included in an amended Form
40 filed by counsel.” Allen v. State, 986 S.W.2d 491, 493 (Mo. App. W.D. 1999) (internal
citation omitted). Missouri case law has “recognized that failure of the pro se motion to allege
dates essential to show whether the motion is timely can be corrected at a hearing or by the filing
of an amended motion.” Id.
However, dismissal of a post-conviction motion for relief is appropriate where Appellant
does not allege facts in either the pro se motion or the amended motion that demonstrate the pro
se motion was either timely filed or that the untimely filing fell into a recognized exception to
the time limits. See Smith v. State, 948 S.W.2d 240 (Mo. App. S.D. 1997) (dismissing movant’s
Rule 24.035 motion as untimely when neither pro se motion nor amended motion revealed the
date movant was delivered to the custody of the DOC); Marschke, 946 S.W.2d at 10 (dismissing
movant’s Rule 24.035 motion as untimely when movant failed to plead the date of delivery to the
custody of the DOC in either pro se or amended motions and instead the “only yardstick
provided by [Movant] by which the timeliness of his motion could be measured was the date of
sentencing,” which would have made the motion untimely by four days).
Similar to Marschke, Appellant did not allege or prove in either the pro se or amended
motion the date he was delivered to the custody of the DOC. Thus, we are only able to measure
5
the timeliness of his motion from the date of his sentencing, October 16, 2015,2 which would
have made Appellant’s pro se motion due on April 13, 2016. Appellant did not file his pro se
motion until April 19, 2016, making it untimely. Because Appellant did not carry his burden of
pleading or proving otherwise, we hold Appellant’s motion was untimely in violation of Rule
24.035.
Conclusion
The motion court’s judgment is vacated, and the cause is remanded with instructions to
dismiss Appellant’s Rule 24.035 motion with prejudice.
SHERRI B. SULLIVAN, J.
Mary K. Hoff, P.J., and
Angela T. Quigless, J., concur.
2
Our review of the other material included in the record on appeal also did not disclose the date Appellant was
delivered to the custody of the DOC. As Respondent points out in its brief, Appellant did not include the docket
sheets or any of the documents filed in the underlying criminal case in the legal file for our review.
6
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Bank of Am., N.A. v Cudjoe (2018 NY Slip Op 00126)
Bank of Am., N.A. v Cudjoe
2018 NY Slip Op 00126
Decided on January 10, 2018
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 January 10, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
VALERIE BRATHWAITE NELSON, JJ.
2015-08422
(Index No. 630/11)
[*1]Bank of America, N.A., respondent,
vMarva Cudjoe, appellant, et al., defendants.
Marva Cudjoe, Elmont, NY, appellant pro se.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Rajdai D. Singh of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Marva Cudjoe appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Nassau County (Adams, J.), dated February 20, 2015, which, inter alia, denied her motion pursuant to CPLR 3124 to compel discovery and granted that branch of the plaintiff's cross motion which was for summary judgment on the complaint insofar as asserted against her.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage given by the defendant Marva Cudjoe (hereinafter the defendant) to secure a note in the sum of $348,000. The plaintiff alleged, among other things, that the defendant defaulted on the note and mortgage by failing to make the monthly payment due June 2010. The defendant, appearing pro se, answered the complaint with a general denial as to the allegations in the complaint. When no settlement was reached and the action was released from the mandatory settlement part, the defendant moved to compel disclosure relating to the plaintiff's ownership of the note. The plaintiff opposed the motion and cross-moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant. The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion.
Generally, on a motion for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see DLJ Mtge. Capital, Inc. v Sosa, 153 AD3d 666, 667). When the defendant has placed standing in issue, the plaintiff must also, as part of its prima facie showing, demonstrate that it has standing (see Onewest Bank, N.A. v Mahoney, 154 AD3d 770; Bethpage Fed. Credit Union v Caserta, 154 AD3d 691). If the plaintiff meets its burden, the burden shifts to the defendant to raise a triable issue of fact (see Bank of Am., N.A. v DeNardo, 151 AD3d 1008, 1010). Here, the defendant's mere general denial of the allegations in the complaint did not raise the issue of the plaintiff's standing, so the defense of lack of standing was waived, and the plaintiff was not required to demonstrate, prima facie, its ownership of the note at [*2]the time the action was commenced (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015). Thus, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, the note, and evidence of the defendant's default. In opposition, the defendant failed to raise a triable issue of fact (see Emigrant Bank v Marando, 143 AD3d 856, 857). Accordingly, the Supreme Court properly granted that branch of the plaintiff's cross motion which was for summary judgment on the complaint insofar as asserted against the defendant.
In light of the defendant's waiver of the issue of the plaintiff's standing to commence the action and the defendant's failure to seek leave to amend her answer to raise that issue (cf. US Bank, N.A. v Primiano, 140 AD3d 857, 857), the Supreme Court properly denied the defendant's motion pursuant to CPLR 3124 to compel discovery on that issue (cf. U.S. Bank N.A. v Ventura, 130 AD3d 919, 920).
The defendant's contentions that the plaintiff's submissions were insufficient to demonstrate that it complied with the notice requirements of RPAPL 1304 and that the plaintiff failed to comply with the condition precedent set forth in RPAPL 1306 are improperly raised for the first time on appeal (see Bank of Am., N.A. v Barton, 149 AD3d 676, 679; 40 BP, LLC v Katatikarn, 147 AD3d 710, 711).
The defendant's remaining contentions are without merit.
BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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We are unable to sanction appellant's contention that the evidence is not sufficient to support the conviction. The Ford automobile of the injured party was stolen upon the street. It was shown that the appellant and the witness Courts acted together in taking the car. Their conduct before and at the time of the theft was peculiar to a degree that it aroused the suspicion of the observers. There was no question of identity. The car was taken to another town and sold for an inadequate consideration. It was worth about $500 and was sold for $100. The identification number had been changed. Courts, in his testimony, assumes, in the main, the responsibility for the theft, claiming that appellant was not present when the number was changed. He concedes, however, that appellant knew that the car was stolen. He was present at the time that it was sold. The conduct of the parties before and after the theft was detailed upon the trial, and in our judgment, the nature of appellant's connection with the theft was peculiarly a question for the jury's determination.
The motion for rehearing is overruled.
Overruled. *Page 306
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F I L E D
United States Court of Appeals
Tenth Circuit
February 2, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
AARON J. DURHAM ,
Plaintiff-Appellant,
v.
U N ITED STA TES O F A M ER ICA;
JEFFREY B. W HEATON, Dr.,
D.D.S.; AR DEN T HEA LTH
SER VIC ES, LLC ; STA TE O F No. 06-2299
NEV AD A; STATE OF NEW (D.C. No. CIV-06-290 M CA /AC T)
M EX ICO; H EA LTH CA RE FO R THE (D .N.M .)
HO M ELESS; UN IVERSITY O F NEW
M EX ICO HEA LTH SCIEN CES;
U N IV ERSITY O F K A N SA S
M ED ICAL C EN TER ; STA TE OF
C ALIFO RN IA ,
Defendants - Appellees.
OR DER AND JUDGM ENT *
Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.
*
After examining appellant’s brief and the 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) and 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. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff-Appellant Aaron Durham, proceeding pro se and in forma
pauperis, appeals the district court’s sua sponte dismissal of his suit pursuant to
28 U.S.C. § 1915(e)(2). 1 M r. D urham claimed in his action under 42 U.S.C. §
1983 that the Defendants-A ppellees violated his constitutional rights by, inter
alia, surgically implanting “optical electron microcircuits” in fillings in his teeth
and utilizing the signals broadcast by these devices to monitor M r. Durham’s
location and speech, in service of a larger project of investigating and prosecuting
M r. Durham as an enemy combatant.
W e review dismissal pursuant to 28 U.S.C. § 1915 for abuse of discretion.
M cW illiams v. State of Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997). Under
the abuse of discretion standard, “a trial court's decision will not be disturbed
unless the appellate court has a definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances.” U nited States v. W eidner, 437 F.3d 1023, 1042 (10th Cir.
2006) (quoting M cEwen v. City of N orman, 926 F.2d 1539, 1553-54 (10th Cir.
1
Section 1915(e)(2) provides, in relevant part:
Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that--
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
-2-
1991)). “An abuse of discretion occurs w hen the district court’s decision is
arbitrary, capricious, or whimsical, or results in a manifestly unreasonable
judgment.” Id. (quoting M oothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994)).
Finding no evidence of caprice, whimsy, or a clear error in judgment in the
district court’s ruling, we AFFIRM its dismissal of M r. Durham’s complaint
under § 1915(e)(2).
ENTERED FOR THE COURT
David M . Ebel
Circuit Judge
-3-
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 18, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
W ILLIAM R. TURNER,
Petitioner-A ppellant,
v. No. 06-3135
(D.C. No. 05-CV-3103-RDR)
RAY ROBERTS, W arden, El Dorado (Kansas)
Correctional Facility; ATTO RN EY
GEN ERAL O F KANSAS,
Respondents-Appellees.
ORDER *
Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.
W illiam R . Turner, a state prisoner appearing pro se, 1 seeks a certificate of
appealability (COA) to challenge the district court’s denial of his petition for w rit
of habeas corpus under 28 U.S.C. § 2254. 2 Exercising jurisdiction under 28
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
1
W e liberally construe M r. Turner’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998).
2
The district court denied M r. Turner’s request for a COA.
U.S.C. § 2253(c)(1), we see no basis for appeal and deny his application for a
COA.
M r. Turner was convicted in Kansas state court of two counts of aggravated
indecent liberties with a child, one count of criminal sodomy, and two counts of
indecent liberties with a child. He appealed directly to the Kansas Court of
Appeals, contending inter alia that the trial court erred in failing to instruct the
jury it had to agree unanimously on a particular underlying act of taking indecent
liberties and in admitting evidence of his prior crimes and gang affiliation. The
court of appeals affirmed M r. Turner’s convictions for aggravated indecent
liberties with a child and criminal sodomy but reversed his two convictions for
indecent liberties with a child. State v. Turner, 32 P.3d 1241 (Kan. Ct. App.
2001) (unpublished). The K ansas Supreme Court denied review. The state chose
to dismiss the reversed charges rather than retry them.
M r. Turner then unsuccessfully collaterally challenged his conviction. The
state trial court determined he was not entitled to relief stemming from improper
admission of evidence of prior crimes, drug use, or gang affiliations because these
issues had been decided on direct appeal. It held M r. Turner’s claims of speedy
trial violations, judicial misconduct, prosecutorial misconduct, and sufficiency of
the evidence were procedurally barred because they could have been raised on
direct appeal but were not. The court denied M r. Turner’s ineffectiveness of
counsel claim on the merits. The decision was affirmed by the Kansas Court of
-2-
Appeals, and the Kansas Supreme Court denied review.
M r. Turner sought relief in federal court asserting five issues. The district
court held M r. Turner’s claims of improper admission of prior crimes,
prosecutorial misconduct, and insufficiency of the evidence were procedurally
barred. It nevertheless addressed the issues on the merits and denied them along
with his claims regarding the trial court’s failure to give a unanimity instruction
and his counsel’s alleged ineffective assistance. In his application to this court,
M r. Turner asserts a denial of due process arising from admission of prior crimes
evidence, prosecutorial misconduct, insufficiency of the evidence, and ineffective
assistance of counsel.
M r. Turner’s convictions are based on the following facts in the record. In
the summer of 1998, he and his w ife, M arsha W illiamson-Turner, resided with his
wife’s mother. D uring that time, the Turner’s fourteen year-old niece, H.W .,
frequently visited the home and sometimes spent the night. During June 1998,
M r. Turner fondled H .W. Shortly thereafter, the Turners moved into their own
home. H.W . frequented the new residence and often babysat for the Turner’s
young daughter while her aunt was at work. During this time, M r. Turner touched
and fondled H.W . on an almost daily basis.
In 1999, H.W . was sleeping in the Turner’s bedroom. H.W . laid down in
the bedroom while M r. Turner remained in the living room watching television
with his wife and his daughter. After his wife and child fell asleep in the living
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room, M r. Turner went into the bedroom where H.W . was asleep, removed all of
his clothing, and laid on the bed next to H .W . M r. Turner positioned himself so
that his penis was touching H.W .’s buttocks. He then fondled her breasts and
removed her clothing. M r. Turner proceeded to insert his fingers in H .W .’s
vagina and perform oral sex on her. At some point during the incident, M r.
Turner masturbated. He ejaculated on H.W .’s buttocks. Throughout the event,
H.W . asked M r. Turner to stop. M r. Turner responded by telling H.W . to be quiet
or she would wake up his wife. H.W . took a shower, then awakened her aunt and
told her to go and sleep in the bedroom with M r. Turner. H.W . dozed on the
couch until morning. The next day, H.W . told a friend and her friend’s
grandmother about the incident.
K.C., a fourteen year-old friend of H .W ., also fell victim to M r. Turner. In
July 1998, M r. Turner, H.W ., and K.C. were at a local sw imming pool. While
there, M r. Turner fondled K .C. atop her sw imming suit. K.C. requested that M r.
Turner stop. He did not and proceeded to put his hand inside K.C.’s swimming
suit and insert his fingers into her vagina. The next day, the three returned to the
pool, and M r. Turner fondled K.C. as he had done the previous day.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state
habeas petitioner “has no absolute entitlement to appeal a district court’s denial of
his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).
To vest the court of appeals with jurisdiction, he first must obtain a COA. See id.
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at 336. A COA will issue only if petitioner makes “a substantial showing of the
denial of a constitutional right.” Slack v. M cDaniel, 529 U.S. 473, 483 (2000)
(citing 28 U.S.C. § 2253(c)(2)). To do so, petitioner must show “that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Id. (citation and quotation marks omitted).
In determining w hether the petitioner has made the required showing, we
review the claims presented in his § 2254 petition and generally assess their
merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District
Court’s application of A EDPA to petitioner’s constitutional claims and ask
whether that resolution was debatable among jurists of reason.” Id. Thus, where
petitioner’s federal habeas claims w ere adjudicated on the merits in state court,
we will grant an application for a COA only where the state court decision was
debatably “‘contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court . . .’ or was ‘based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d
935, 936-37 (10th Cir. 2004). “If the claim was not heard on the merits by the
state courts, and the federal district court made its own determination in the first
instance, we review the district court's conclusions of law de novo and its findings
of fact, if any, for clear error.” LaFevers v. Gibson, 182 F.3d 705, 711 (10th
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Cir.1999).
Federal courts need not review habeas corpus issues that were defaulted in
state courts if the default constitutes an independent and adequate state ground
unless cause and prejudice or a fundamental miscarriage of justice can be shown.
See Coleman v. Thom pson, 501 U.S. 722, 750 (1991). M r. Turner contends the
state procedural rule barring presentation of the issues of prosecutorial
misconduct and insufficiency of the evidence is not firmly established and
regularly applied. W e decline to address whether Kansas Supreme Court Rule
183(c) is an independent and adequate state procedural ground to bar M r.
Turner’s claims. Rather, like the district court, we reach the merits of his claims.
See United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (declining to
address whether a claim was procedurally barred when claim would fail on the
merits). W e first address those claims decided on the merits for the first time in
the federal habeas proceedings, and follow with a discussion of the claims
decided on the merits in the state proceedings, applying the appropriate standards
in turn.
W e review a sufficiency of the evidence claim in a habeas corpus
proceeding to determine w hether, 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. Kelly v. Roberts, 998
F.2d 802, 807, 808 (10th Cir. 1993). W e accept the jury's resolution of the
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evidence as long as it is within the bounds of reason. Id. at 808. “This standard
of review respects the jury’s responsibility to weigh the evidence and draw
reasonable inferences from the testimony presented at trial.” Dockins, 374 F.3d at
939. Here, the testimony of the victims and third-parties provided substantial and
credible evidence from which the jury could easily and rationally conclude that
M r. Turner was guilty beyond a reasonable doubt of the crimes charged. M r.
Turner points to no evidence that discredits the victim and witness accounts of the
crimes.
M r. Turner’s claim of prosecutorial misconduct must also fail. He alleges
“[t]he prosecutorial misconduct during the trial w as egregious and designed to
keep the scales of justice tipped in favor of the prosecution. The prosecutions
[sic] delays and attempts to elicit testimony that it knew or should have known to
be false rose to the level of constitutional concern.” Aplt. Br., Arguments and
Authorities at ¶ 6. To succeed on this issue, M r. Turner must show the
prosecutor’s conduct rendered his trial fundamentally unfair. Short v. Sirmons,
472 F.3d 1177, 1195 (10th Cir. 2006) (citing Donnelly v. DeChristoforo, 416 U.S.
637, 645 (1974)). M r. Turner complains that the prosecutor purposely delayed his
trial and continuously referred to M r. Turner as a “drug dealing gang member
who beats his wife.” Reply to State’s Resp. to Def.’s Pet. for W rit of Habeas
Corpus at 3, Turner v. Roberts, No. 05-3103, 2006 W L 749580 (D. Kan. M ar. 23,
2006).
-7-
The facts regarding the delay of M r. Turner’s trial are these. The state
moved to continue the original trial date of November 8, 1999 until January 3,
2000. On December 21, 1999, the state filed a motion to allow evidence of prior
crimes. Because M r. Turner did not obtain evidence regarding those prior crimes
until D ecember 30, 1999, he requested a continuance to properly prepare for trial.
The continuance was granted and the trial reset for M arch 6, 2000. Def.’s M ot. to
Dismiss at 1-2, State v. Turner, No. 99-CR-2287. M r. Turner offers no evidence
showing that the prosecution moved for the admission of prior crimes for the
purpose of delaying the trial.
W e have reviewed the trial transcript and find no instances of name-calling;
instead, there are factual statements elicited from witnesses as to M r. Turner’s
involvement in matters such as use and possession of narcotics, gang membership,
and domestic violence. Oftentimes, M r. Turner’s counsel opened the door for the
state to pursue such information. See, e.g., Tr. Tran., Vol. II at 93-94 (eliciting
information on re-direct about M r. Turner’s gang affiliation after subject of gang
membership introduced on cross-examination); Tr. Tran., Vol. III at 71-96
(eliciting information on cross about domestic violence incidents between the
Turners after door opened to same on direct examination). Such usual trial
practice cannot be considered prosecutorial misconduct. The prosecutor did not
act in a way that rendered M r. Turner’s trial fundamentally unfair.
W e now turn to M r. Turner’s claims of improper admission of prior crimes.
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At trial, the state introduced evidence that M r. Turner had committed sexual
crimes against minor girls on two previous occasions. His counsel objected. The
trial court admitted the evidence for the limited purpose of showing intent for the
indecent liberty charges and instructed the jury accordingly. Finding the evidence
immaterial to the indecent liberties charges and thus improperly admitted, the
Kansas Court of Appeals reversed those charges. State v. Turner, No. 85,666 at
12 (Kan. Ct. App. Sept. 28, 2001) (unpublished).
But we disagree with M r. Turner’s assertion that there is no other credible
evidence supporting his remaining convictions for aggravated indecent liberties
with a child and criminal sodomy. Aplt. Br. A rguments and Authorities at ¶ 5. A
review of the testimony of the victims and of third parties with whom the victims
spoke compellingly details the crimes. M oreover, there is no reason to believe
that the jury did not adhere to the limiting instruction given by the trial court. “A
central assumption of our jurisprudence is that juries follow the instructions they
receive.” United States v. Castillo, 140 F.3d 874, 884 (10th Cir.1998). Given
that the trial court gave the jury a limiting instruction as to the prior crimes
evidence and that the appellate court reversed the very charges that the evidence
was intended to support, we cannot conclude that the resolution of this issue is
debatable among reasonable jurists. Cf. Duvall v. Reynolds, 139 F.3d 768, 787-88
(10th Cir. 1998) (holding improper admission of prior acts does not rise to the
level of constitutional error if the trial judge instructs jury to disregard the
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evidence).
Finally, we address M r. Turner’s contention that he received ineffective
assistance of counsel. In making this claim in state court, M r. Turner alleged
several errors, all of which the state court found were either contradicted by the
record or concerned strategic and tactical decisions of counsel. See Turner v.
State, No. 90,552, 2004 W L 1714945, at *1 (Kan. Ct. App. Oct. 26, 2004). The
federal district court gave thorough treatment to M r. Turner’s numerous claims of
ineffective assistance of counsel and the resulting denial is not debatable under
the AEDPA standard we must apply.
A ccordingly, for substantially the reasons stated by the district court, we
conclude that reasonable jurists would not disagree with that court’s dismissal of
M r. Turner’s claims. Because M r. Turner has not “made a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his
request for a COA. W e also deny his request to proceed in form a pauperis.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROBERT L. M ILLER,
Plaintiff-Appellant,
v. No. 06-5174
(D.C. No. 05-CV-245-FHM )
M ICH AEL J. ASTRU E, * (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
Robert L. M iller appeals the district court’s affirmance of the decision of
the Commissioner of the Social Security Administration denying his application
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for supplemental security income payments.
M r. M iller claimed disability beginning February 20, 2003, due to status
post spinal meningitis, hypertension, and reduced vision. The Administrative
Law Judge (“ALJ”) denied benefits after finding that M r. M iller did not have a
severe impairment or combination of impairments as is required at step two of the
five-step evaluation process. See 20 C.F.R. § 404.1520 (describing five-step
evaluation process). The Appeals Council considered the new medical evidence
M r. M iller submitted after the hearing but nonetheless affirmed the A LJ’s
decision. 1 W e have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g),
and we affirm.
In this appeal, M r. M iller has raised the same issues he raised in the district
court, namely that the Commissioner (1) failed to make a proper evaluation at
step two of the sequential evaluation process, (2) failed to fully and fairly develop
the record, and (3) improperly assessed his credibility.
M r. M iller’s arguments are without merit. In its well-reasoned order, the
district court thoroughly analyzed each of M r. M iller’s claims using the same
standard of review that governs our review, see Aplt. App. Vol. I at 16-17, and
we find the district court’s analysis and conclusions to be persuasive on each
1
After the hearing before the ALJ, M r. M iller w as diagnosed with hepatitis.
Aplt. App. Vol. II at 144. This new evidence, along with other medical reports
presented to the Appeals Council, is part of the administrative record before us as
we evaluate the Commissioner’s decision for substantial evidence. See O’Dell v.
Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
point, id. at 18-22. Accordingly, we see no reason to repeat the district court’s
analysis, and we affirm for substantially the same reasons set forth in the district
court’s order.
Entered for the Court
Neil M . Gorsuch
Circuit Judge
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I desire to concur in the conclusion reached in the dissenting opinion of Mr. Justice Kornegay.
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Submitted on stipulation, briefs and oral argument.
Opinion for defendant rendered January 22, 1985.
Affirmed 302 Or. 128, 727 P.2d 614 (1986). *Page 18
The plaintiffs appeal from the defendant's adjustments to their personal income tax returns for tax years 1975, 1976 and 1977. During these years, the plaintiffs were partners in the partnership of Lem Wilson and Sons. In 1973, Oregon property owned by the partnership was acquired by the United States through eminent domain proceedings and the partnership realized a gain for income tax purposes.
The partnership elected to defer recognition of the gain for state and federal income tax purposes under IRC § 1303 (1954) by acquiring like-kind property consisting of a theatre and a ranch in Oregon and a post office facility in Illinois. The defendant disallowed nonrecognition treatment as applied to the investment in the Illinois property pursuant to ORS 314.290
which limits the deferral of tax recognition of gain to exchanges where the property newly acquired has a situs in Oregon.
ORS 314.290(1) states:
"[W]here laws relating to taxes imposed upon or measured by net income make provision for deferral of tax recognition of gain upon the voluntary or involuntary conversion or exchange of tangible real or personal property, such provisions shall be limited to those conversions or exchanges where the property newly acquired by the taxpayer has a situs within the jurisdiction of the State of Oregon."
The plaintiffs contend that ORS 314.290 is invalid and unenforceable on the grounds that it (1) violates the commerce clause, art I, § 8, d 3, of the United States Constitution, (2) violates the fourteenth amendment, § 1, equal protection, (3) violates the fourteenth amendment, § 1, due process of law, and (4) violates art 1, § 32, and art 1, § 20, of the Oregon Constitution.
I Does ORS 314.290 violate the commerce clause of the UnitedStates Constitution?
1. Plaintiffs quote Pike v. Bruce Church, 397 U.S. 137, 142,90 S Ct 844, 25 L Ed 2d 174, 178 (1970), as support for their allegation that a state statute which affects interstate commerce must pass a three-part test to withstand scrutiny under the commerce clause:
"Although the criteria for determining the validity of state *Page 19
statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. * * * If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
In considering ORS 314.290, inquiry is directed to the following:
(1) Does the statute regulate evenhandedly to effect a legitimate state interest?
(2) Is the burden on interstate commerce excessive in relation to the state benefits?
(3) Could the interest be promoted as well with a lesser impact on interstate commerce?
ORS 314.290 limits deferral of tax recognition of gain upon the voluntary or involuntary conversion or exchange of real property to those conversions or exchanges where the property newly acquired by the taxpayer has a situs within the jurisdiction of the State of Oregon. The tax rate and the tax amount are the same regardless of whether the taxpayer chooses to make a like-kind exchange within or without Oregon.
Recognition of the gain is required if property newly acquired is outside the jurisdiction of Oregon in order to insure that gains realized on investment property in Oregon are recognized and the taxes on such gain are paid. If the gain is deferred and taxed in a subsequent sale, the state could be without jurisdiction to tax that portion of the gain attributable to Oregon since it might be a sale by a nonresident of out-of-state property.
The court in Taylor v. Conta, 106 Wis.2d 321, 316 N.W.2d 814
(1982), found that differential treatment of new *Page 20
residences inside and outside the state has a substantial relation to a legitimate state objective, that of raising revenue and in order to achieve equality among the taxpayers.
2. This court finds that Oregon has a legitimate state interest to protect and that ORS 314.290 does so uniformly affecting all exchanges where the situs of the new property is outside the state.
The plaintiffs contend that ORS 314.290 discriminates against interstate commerce because "the taxpayer who makes a like-kind exchange for out-of-state property (a transaction in interstate commerce) is taxed, while the taxpayer who makes the same like-kind exchange, but purchases Oregon property (an intrastate transaction), is not taxed." (Plaintiffs' Opening Brief, at 10-11.)
Plaintiffs have wrongly stated the case. In both events, the taxpayer is taxed and the rate used to determine the taxpayer's liability is the same. The difference between the transactions lies solely in recognition of the gain as opposed to deferral of the gain. In both events, the taxpayer has a tax liability which must be satisfied immediately or some time in the future.
3. The plaintiffs claim that the burden placed upon interstate commerce is excessive in relation to the state benefits derived from ORS 314.290. Plaintiffs assert that the extent of the burden that will be tolerated depends on the nature and purpose of the local interest involved and the availability of alternatives having a lesser impact on interstate commerce. The plaintiffs contend that the purpose of the statute is to raise revenue. A more careful analysis indicates that the purpose was to prevent losing revenue which was legally due the state. By the plaintiffs' own words, quoting testimony from Dean Ellis, Committee Counsel, Minutes, House Committee on Taxation, March 15, 1957, the purpose of ORS 314.290 was " 'to prevent escapement of taxable income in case of conversion' to out-of-state property." (Plaintiffs' Opening Brief, at 13.)
Plaintiffs charge that the practical effect of the statute is to hinder attempts to move investments or businesses to another state by making it financially more difficult for investments to leave Oregon and thus violating the purpose of *Page 21
the commerce clause. In answer to this statement, the defendant noted that recognition of gain in a year different from that of its realization may or may not result in a financial burden, depending upon the taxpayer's particular circumstances and upon the tax law in effect at the time of the recognition. If the taxpayers' situation offered possibilities for "sheltering" gains, immediate recognition could be more financially advantageous than deferral of the gain. The plaintiff has not persuaded the court that ORS 314.290 imposes a burden on interstate commerce that is excessive in relation to the state benefits.
Inquiry is now directed to the plaintiffs' claim that the state's interest could be promoted as well with a lesser impact on interstate commerce. Plaintiffs assert that the amount of tax raised by ORS 314.290 is "necessarily small in relation to the overall amount of tax revenue generated by Oregon [and] could certainly be raised by a means that would not excessively burden interstate commerce." (Plaintiffs' Opening Brief, at 14.)
4. In Taylor v. Conta, supra, the court found a legitimate state objective in allowing residents to defer gain on sale of their residences while taxing former residents immediately. Discussion centered on the fact that the state would have no jurisdiction to tax gain attributable to Wisconsin on the sale by a nonresident of out-of-state property and former residents could escape being taxed altogether. The court concluded that no reasonable alternative existed for collecting the deferred gain once a taxpayer leaves the state.
The plaintiffs offered no reasonable alternative for collecting the deferred gain in the present case. The court rejects the plaintiffs' unsupported statement that the revenue gained by the application of ORS 314.290 could be raised by other means.
The court finds that application of the test propounded by the plaintiffs as found in Pike v. Bruce Church, supra, results in negative answers to the three questions involved. Therefore, ORS 314.290 does not violate the commerce clause of the United States. *Page 22
II Does ORS 314.290 violate the fourteenth amendment right ofequal protection?
The fourteenth amendment of the United States Constitution mandates that "[n]o State shall make or enforce any law which shall * * * deprive any person within its jurisdiction the equal protection of the laws."
The plaintiffs admit that a state has wide discretion in the classification of subjects for taxation but asserts that the classification must rest on some ground of difference which is fairly related to the object of the legislation so that all persons similarly situated are treated alike.
5. The plaintiffs contend that ORS 314.290 arbitrarily discriminates within a class of taxpayers by immediately taxing some and allowing others a tax deferral. However, the court has recognized the power to subclassify persons included in a particular class. Jarvill v. City of Eugene, 289 Or. 157,613 P.2d 1 (1980); Huckaba v. Johnson, 281 Or. 23, 573 P.2d 305
(1978); Dutton Lbr. Corp. v. Tax Com., 228 Or. 525, 365 P.2d 867
(1961).
The classification " 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.' " Allied Stores of Ohio v. Bowers,358 U.S. 522, 526, 79 S Ct 437, 3 L Ed 2d 480, 485 (1959). As noted above, the legislative intent embodied in the statute at issue is to avoid loss of tax on gains legitimately owed the state due to a taxpayer's removing himself from the state's jurisdiction. Therefore, the classification fulfills the requirement noted by Allied Stores of Ohio, supra. The court finds that ORS 314.290 is not violative of the fourteenth amendment right of equal protection.
III Does ORS 314.290 violate the fourteenth amendment rightof due process?
Substantive due process is explained in terms of the power of the state to tax. School Dist. No. 12 v. Wasco County, 270 Or. 622, 529 P.2d 386 (1974).
6. Other comments on due process follow:
"[I]t is, by now, absolutely clear that the Due Process Clause does not empower the judiciary 'to sit as a "superlegislature to *Page 23
weigh the wisdom of legislation" * * *.' " Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S Ct 2207, 57 L Ed 2d 91, 99 (1978) (quoting Ferguson v. Skrupa, 372 U.S. 726, 731, 10 L Ed 2d 93, 83 S Ct 1028, 95 ALR2d 1347).
"A state is free to pursue its own fiscal policies if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society.
"* * * The simple but controlling question is whether the state has given anything for which it can ask return." Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S Ct 246, 85 L Ed 267, 270-271
(1940).
The plaintiffs assert that the tax assessed under ORS 314.290
violates due process because it is not related to any additional benefit provided to taxpayers who make a like-kind exchange for out-of-state property. The controlling question, however, as stated above, is: "[W]hether the state has given anything for which it can ask return."
During the period leading up to the transaction which resulted in gain for the plaintiffs, the State of Oregon afforded the plaintiffs' property the protection and services of its government. For this protection and service, the state asks, pursuant to ORS 314.290, that tax legally due it be recognized in instances where the exchange for like property has a situs outside Oregon's jurisdiction in order to prevent a possible escape from Oregon taxation. Having provided protection and services, there is no violation of due process when the recognition of gain is required in return.
IV Does ORS 314.290 violate art I, § 32, or art I, § 20, ofthe Oregon Constitution?
The plaintiffs' assertion that the statute violates art I, § 32, of the Oregon Constitution, requiring that all taxation shall be uniform on the same class of subjects, is merely another approach to or a restatement of the plaintiffs' primary claims of lack of equal protection and due process. Having answered these arguments above, the court finds that art 1, § 32, of the Oregon Constitution is not violated by ORS 314.290.
Plaintiffs alleged that ORS 314.290 violates art I, § 20, of the Oregon Constitution which mandates that "[n]o law *Page 24
shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."
"The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is invoked, or the privileges and immunities provision in Art I, § 20 of the Oregon Constitution. Fundamentally, classification is a matter committed to the discretion of the legislature and the courts will not interfere with the legislative judgment unless it is palpably arbitrary." Plummer v. Donald M. Drake Co., 212 Or. 430, 437, 320 P.2d 245 (1958).
The court has already found that the classification is not arbitrary but "rests upon some ground of difference having a fair and substantial relation to the object of the legislation." Allied Stores of Ohio v. Bowers, supra, at 527. Therefore, it follows that ORS 314.290 does not violate art I, § 20, of the Oregon Constitution. In view of the foregoing, the court finds that ORS 314.290 is constitutional.
In addition to challenging the constitutionality of ORS314.290, plaintiffs assert that the entire proceeding in this case was invalid because the defendant failed to notify or assess the partnership and all the partners of the proposed deficiency as required by ORS 305.265.
The defendant asserts that the partnership was notified of the proposed revision. (Defendant's Answer, at 2.) The defendant admits that no deficiency was assessed against two other partners in the partnership and denies that such action is required by statute.
ORS 305.265(2) states:
"[T]he department shall examine or audit it, [a report or return] if required by law or the department deems such examination or audit practicable. If the department discovers * * * that a deficiency exists, it shall compute the tax and give notice to the person filing the return of the deficiency and of the department's intention to assess the same, * * *."
IRC § 701 (1954) states:
"A partnership as such shall not be subject to the income tax * * *. Persons carrying on business as partners shall be *Page 25
liable for income tax only in their separate or individual capacities."
IRC § 702 (1954) requires:
"In determining his income tax, each partner shall take into account separately his distributive share of the partnership's —
"* * * * *
"(2) gains and losses from sales or exchanges of capital assets held for more than 1 year, * * *."
Therefore, the filing of a partnership return is merely an informational return with the tax liability due to any partnership gains being proportionately assumed by each partner in his individual income tax return.
Pursuant to ORS 305.265, the department is given discretionary authority to audit returns. There is no legislative mandate requiring that every return filed be audited. If a deficiency is discovered, the department is required to "give notice to the person filing the return of the deficiency and of the department's intention to assess the same." (Emphasis added.) The plaintiffs' personal income tax return was audited and it has been stipulated that the required notice was sent to the plaintiffs. The plaintiffs requested and received a conference regarding the assessment pursuant to ORS305.265(6). Therefore, the court finds that the defendant followed statutory guidelines. The plaintiffs' plea that the assessment should be cancelled because the proceedings were invalid is without merit.
Therefore, the court affirms the defendant's assessment of additional Oregon personal income taxes for the tax years 1975, 1976 and 1977. *Page 26
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This is an attempt by the plaintiff in error to appeal from an order of the trial court sustaining a demurrer to a plea in abatement. No final judgment was entered in the case. An appeal does not lie in this court except from a final judgment of a trial court of record. The question attempted to be raised here can and would properly be raised by appeal after a judgment of conviction is had.
The Attorney General has filed a motion to dismiss the appeal, as follows:
"Comes now Charles West, Attorney General, and appearing especially and for the purposes of this motion only, moves the court to dismiss the pretended appeal herein for the following reasons: Because no final judgment has ever been rendered against this defendant from which an appeal may be taken, this being an attempted appeal by way of bill of exceptions from the order of the court sustaining a demurrer to a plea in abatement, which was an intermediate order of the trial court, and not a judgment that can be appealed from. Wherefore, the Attorney General says that this appeal should be dismissed with instructions to the trial court to proceed with the trial of this case.
"CHAS. WEST, Attorney General.
"SMITH C. MATSON, Assistant Attorney General."
The motion is well founded and is sustained, and the appeal is hereby dismissed.
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523114/
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2893-18T2
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
THE COMMISSIONER OF THE
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
and THE ADMINISTRATOR OF
THE NEW JERSEY SPILL
COMPENSATION FUND,
Plaintiffs-Appellants,
v.
HESS CORPORATION, f/k/a
AMERADA HESS CORPORATION
and BUCKEYE PARTNERS, LP,
Defendants-Respondents.
________________________________
Argued November 4, 2019 – Decided April 7, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4579-18.
Allan Kanner (Kanner & Whiteley, LLC) of the
Louisiana bar, admitted pro hac vice, argued the cause
for appellant (Gurbir S. Grewal, Attorney General and
Allan Kanner, attorneys; Richard F. Engel, Deputy
Attorney General, Allan Kanner, Elizabeth B. Petersen
(Kanner & Whiteley, LLC) of the Louisiana bar,
admitted pro hac vice, and Allison S. Brouk (Kanner &
Whiteley, LLC) of the Louisiana bar, admitted pro hac
vice, of counsel and on the briefs).
Christopher R. Gibson argued the cause for respondent
Hess Corporation, f/k/a Amerada Hess Corporation
(Archer & Greiner, PC, attorneys; Christopher R.
Gibson, Marc A. Rollo, Patrick M. Flynn and Matthew
R. Conley, of counsel and on the brief).
Brendan K. Collins (Ballard Spahr, LLP) of the
Pennsylvania bar, admitted pro hac vice, argued the
cause for respondent Buckeye Partners, LP (Ballard
Spahr, LLP, attorneys; Brendan K. Collins, David A.
Haworth and Daniel T. Mullin, on the brief).
PER CURIAM
By leave granted, plaintiffs the New Jersey Department of Environmental
Protection (DEP), The Commissioner of the New Jersey Department of
Environmental Protection and The Administrator of the New Jersey Spill
Compensation Fund, appeal from an order entered December 21, 2018 by the
Law Division dismissing under Rule 4:6-2(e), certain counts of their complaint
against defendant Hess Corporation f/k/a Amerada Hess Corporation (Hess), and
its successor in interest in certain property, defendant Buckeye Partners L.P.
(Buckeye). As originally filed, plaintiffs' complaint sought damages arising from
A-2893-18T2
2
the environmental contamination of property that had been historically used as an
oil refinery and terminal. Plaintiffs sought relief under the Spill Compensation and
Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to -23.24, the Water Pollution
Control Act (the WPCA), N.J.S.A. 58:10A-1 to -20, and under New Jersey common
law for public nuisance, trespass, and strict liability. The Law Division's order
dismissed the complaint to the extent it alleged common law trespass and strict
liability, and limited the public nuisance claim to one for injunctive relief only.
For the reasons that follow, we affirm in part and reverse in part.
I.
The facts gleaned from the pleadings and motion record are summarized
as follows. Hess began operating a refinery in the Port Reading section of
Woodbridge Township in 1958. It sold the property to Buckeye in 2013. The facility
was and still is used to store and process crude oil and other refined petroleum
products.
Plaintiffs' complaint alleged that hazardous materials "discharged" from the
refineries during Hess's ownership of the property. Specifically, plaintiffs alleged
that a tank failure in October 1969 released 8,000,000 gallons of crude oil affecting
the nearby Smith Creek and Arthur Kill, and that additional lesser discharges of oil
occurred in 1990 and 1992, followed by a discharge of cat feed, containing
A-2893-18T2
3
hazardous substances, in 1992. Site investigations confirmed that hazardous
substances contaminated the surface water, soil, and groundwater in surrounding
areas, including the environmentally sensitive Arthur Kill, Smith Creek, and
estuarine and marine wetlands located along the Arthur Kill. In December 1992, in
an effort to address the issues caused by the contamination, Hess and plaintiffs
entered into a Memorandum of Agreement (MOA) so that plaintiffs could govern
Hess's investigations and remedial actions at the site.
Plaintiffs filed their complaint on August 1, 2018, contending that defendants
had not acted to assess or restore the injured natural resources. Plaintiffs alleged that
the hazardous substances had adversely affected the site's groundwater, surface
water, sediment, wetlands, and biota. Plaintiffs sought damages, and declaratory
and injunctive relief against Hess and Buckeye.
Count one of plaintiffs' complaint sought restoration of natural resources, as
well as damages under the Spill Act, because of the alleged discharge of hazardous
substances and pollutants from the refinery. Count two alleged violations of the
WPCA for defendants' unauthorized discharge of pollutants and sought damages as
well as reimbursement for costs associated with correcting the damage done to the
land. Count three alleged public nuisance, as the contamination of the surrounding
natural resources constituted a substantial and unreasonable physical invasion of
A-2893-18T2
4
property. Count four alleged trespass because the contamination constituted an
unauthorized physical invasion of property. Finally, count five alleged common law
strict liability in that storing and discharging hazardous substances constituted an
abnormally dangerous activity.
In response, Hess contended it continued to work with plaintiffs to restore the
environment, and that plaintiffs never communicated any dissatisfaction with its
remedial efforts. Buckeye contended that hazardous substances contaminated the
area before it purchased the property, and that plaintiffs insufficiently alleged that it
was responsible for any discharges of hazardous materials.
In October 2018, Hess filed a motion to dismiss plaintiffs' trespass claim, and
its public nuisance claim to the extent it claimed monetary rather than injunctive
relief. In November 2018, Buckeye filed a motion to dismiss plaintiffs' trespass,
public nuisance, and strict liability claims in their entirety. Buckeye also joined in
Hess's motion.
The motion judge heard oral argument on December 21, 2018 before issuing
his order that day, simultaneously granting defendants' motions and dismissing with
prejudice the complaint's trespass and common law strict liability claims as to both
Hess and Buckeye, and limiting the remedy for the public nuisance claim to
A-2893-18T2
5
injunctive relief. The judge set forth his reasons in a comprehensive, thoughtful
written decision. We later granted plaintiffs' motion for leave to appeal.
II.
On appeal, plaintiffs argue that the motion judge erred by concluding the
Spill Act subsumed their common law claims against Hess and Buckeye, that
Hess and Buckeye were not engaged in abnormally dangerous activities
warranting the application of strict liability, that they could not maintain an
action for trespass because the State lacked a sufficient interest in the property,
and that their trespass claim should be restored because the State owns the water
resources for the State. Finally, plaintiffs contend that the judge improperly
limited the remedies available to them under their claim for public nuisance.
"We review a grant of a motion to dismiss a complaint for failure to state
a cause of action de novo, applying the same standard under Rule 4:6-2(e) that
governed the motion court." Wreden v. Township of Lafayette, 436 N.J. Super.
117, 124 (App. Div. 2014). The standard of our review for dismissal of a
complaint under that rule, is whether the pleadings even "suggest[]" a basis for
the requested relief. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.
739, 746 (1989); see also Green v. Morgan Props., 215 N.J. 431, 451-52 (2013).
A-2893-18T2
6
As a reviewing court, we assess only the legal sufficiency of the claim.
Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005).
Consequently, "[a]t this preliminary stage of the litigation [we are] not
concerned with the ability of plaintiffs to prove the allegation contained in the
complaint." Printing Mart, 116 N.J. at 746. Rather, we accept the factual
allegations as true, Sickles, 379 N.J. Super. at 106, and "search[] the complaint
in depth and with liberality to ascertain whether the fundament of a cause of
action may be gleaned even from an obscure statement of claim," Printing Mart,
116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.
Super. 244, 252 (App. Div. 1957)).
"However, we have also cautioned that legal sufficiency requires
allegation of all the facts that the cause of action requires." Cornett v. Johnson
& Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010), aff'd as modified, 211
N.J. 362 (2012). In the absence of such allegations, the claim must be dismissed.
Ibid.
We conclude from our de novo review of the pleadings that the motion
judge incorrectly determined that the Spill Act subsumed plaintiffs' common law
claim for strict liability and that, in any event, strict liability was inapplicable
because Hess did not maintain an abnormally dangerous activity on the
A-2893-18T2
7
premises. In all other aspects, the judge correctly determined that balance of
defendants' motions. We address each issue serially, as argued by plaintiffs.
The Spill Act Claims
A.
In granting defendants' applications, the motion judge dismissed the fifth
count of plaintiffs' complaint that alleged defendants were strictly liable to
plaintiffs for the costs of cleaning up the contaminated area. In his written
decision, the motion judge explained that under the Supreme Court's holding in
New Jersey Department of Environmental Protection v. Ventron Corp., 94 N.J.
473, 488 (1983), "those who use . . . land for the conduct of abnormally
dangerous activities are strictly liable for resultant damages," regardless of fault.
The judge concluded that if "the storage and processing of crude oil and refined
petroleum products" constituted an abnormally dangerous activity, plaintiffs'
complaint sufficiently stated a cause of action for strict liability. However, the
judge also concluded that under Ventron, those activities were not abnormally
dangerous and even if they were, plaintiffs' claims based upon strict liability
were "deemed to be subsumed within the Spill . . . Act," "much like common
law claims for negligence and implied warranties are deemed subsumed under
A-2893-18T2
8
the New Jersey Product Liability Act, N.J.S.A. 2A:58C-1 [to -11]." We disagree
with these conclusions.
Contrary to the motion judge's view, the Spill Act did not subsume any of
plaintiffs' common law claims. The Spill Act specifically preserves all such
claims by expressly stating the remedies provided under the Spill Act are in
addition to those provided by existing common or statutory law, subject only to
a prohibition against double recovery for the same damages or cleanup costs.
See N.J.S.A. 58:10-23.11v; see also Ventron, 94 N.J. at 493 (stating the
remedies under the Spill Act "are in addition to existing common-law or
statutory remedies"). "Spill Act liability does not eliminate common law
liability . . . ." N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 420 N.J. Super.
395, 401-02 (App. Div. 2011). The Spill Act permits the DEP to pursue
remedies under both the common law and the Spill Act because the Spill Act
"establishes new remedies for activities recognized as tortious both under prior
statutes and the common law." Ventron, 94 N.J. at 499.
The ability to pursue relief under both the Spill Act and common law was
consistent with the Legislature's intention to grant the DEP "broad implied
powers" to prevent environmental contamination. N.J. Dep't of Envtl. Prot. v.
A-2893-18T2
9
Exxon Mobil Corp., 393 N.J. Super. 388, 399 (App. Div. 2007).1 Under the
Spill Act, separate from any common law right, the DEP has a statutory right to
hold parties strictly liable if they discharge hazardous materials, along with the
ability to pursue alternative common law theories of liability. Ibid.; see also
N.J.S.A. 58:10-23.11g(c)(1) (stating violators "shall be strictly liable . . . without
regard to fault, for all cleanup and removal costs no matter by whom incurred");
Exxon, 420 N.J. Super. at 397, 407 (reversing dismissal of complaint on statute
of limitations grounds and finding that statute did not "foreclose common law
causes of action unless the legislative intent specifically provided otherwise").
The common law "remains important in DEP's litigation efforts, especially for
filling in any gaps in relief that the statutes may fail to cover." Exxon, 420 N.J.
at 402; see also T&E Indus., Inc. v. Safety Light Corp., 123 N.J. 371, 386 (1991)
(stating the common law "doctrine of strict liability for abnormally-dangerous
activities" ensures that there are no gaps for abnormally dangerous conduct ).
Consequently, the State's enactment of the Spill Act did not abrogate the
1
The Legislature wanted to protect the State's lands and waters by making the
State a trustee of its environmental resources. N.J.S.A. 58:10-23.11a. Part of
this pollution included "discharge of petroleum products and other hazardous
substances." Ibid. Polluters may be held liable "for damage sustained within
this State as a result of any discharge of [hazardous] substances." Ibid.
A-2893-18T2
10
plaintiffs' right to seek a judgment under the common law holding defendan ts
liable for damages, if any.
B.
Next, we address whether plaintiffs' complaint sufficiently alleged a cause
of action for common law strict liability based upon defendants' maintaining an
abnormally dangerous condition. The motion judge, citing to the Law Division's
opinion in Biniek v. Exxon Mobil Corp., 358 N.J. Super. 587 (Law Div. 2002),
which addressed a gas tank vendor's liability for contamination emanating from
a single neighborhood gas station, concluded that "[s]ince New Jersey's courts
have not found the storage and processing of crude oil and refined petroleum
products as an 'abnormally dangerous' activity . . . the . . . claim for strict
liability must . . . fail."
We disagree with the motion judge's conclusion and now hold that the
storage and processing of petroleum, to the extent allegedly undertaken by Hess
on its property, was an abnormally dangerous condition for which strict liability
may be imposed. However, as to Buckeye's alleged liability, we agree with the
trial judge, that the complaint failed to set forth sufficient facts to maintain an
action for strict liability.
A-2893-18T2
11
At the outset, we reject any analogy between Hess's operations and that of
a gas station as discussed in Biniek. As the motion judge described in detail, in
the present matter, we are dealing with an oil refinery and storage facility that
was established in 1958, covered 210 acres adjacent to public waterways, and,
at which, over the years, "there have been numerous spills and leaks . . . that
caused injuries to . . . natural resources" and exposed people to "hazardous
substances and pollutants" that "have been linked to lasting effects on the human
central nervous system and respiratory tract, blood disorders, and other serious
health conditions." Comparison of the Hess facility to a gas station is therefore
totally inapposite for many reasons.
Plaintiffs alleged that defendants stored and discharged various
contaminants into the surrounding natural resources. Under a claim of common
law strict liability, defendants could only be held accountable without fault if
they maintained an abnormally dangerous condition or operation on the
premises or allowed others to do so. See Ventron, 94 N.J. at 488 (stating common
law strict liability is limited to those who "use[d], or permit[ted] others to use,
land for the conduct of abnormally dangerous activities"). In order to determine
whether Hess's operations constituted an abnormally dangerous activity, we
must apply the test articulated in Ventron.
A-2893-18T2
12
As the Supreme Court explained in Ventron, which addressed the strict
liability of a company that intentionally dumped pollutants into a creek, a court
must consider the following factors:
(a) [the] existence of a high degree of risk of some harm
to the person, land or chattels of others; (b) likelihood that
the harm that results from it will be great; (c) inability to
eliminate the risk by the exercise of reasonable care; (d)
extent to which the activity is not a matter of common
usage; (e) inappropriateness of the activity to the place
where it is carried on; and (f) extent to which its value to
the community is outweighed by its dangerous attributes.
[Id. at 491-92 (quoting Restatement (Second) of Torts §
520 (1977).]
In T&E Indust., our Supreme Court applied the Ventron test and imposed
common law strict liability when it found that processing radium constituted an
abnormally dangerous activity. 123 N.J. at 394-95. Examining the six factors, the
Court found that radium is an "extraordinarily-dangerous substance" whose
processing is not a "common activity," especially in an urban setting. Id. at 394.
The property which processed the radium was also designated a "Superfund site"
because radiation levels exceeded permitted levels and posed a health risk to anyone
who entered the premises. Ibid. The Court found that although radium was a useful
substance, its utility was outweighed by the danger of processing the substance. Ibid.
Therefore, under the Court's holding, the processing of certain substances may allow
A-2893-18T2
13
for common law strict liability if the benefits of producing a substance are
outweighed by environmental damage and a threat to the surrounding community.
We conclude that plaintiffs' allegations about Hess's operations
sufficiently stated a cause of action for common law strict liability. Hess's
operations constituted an abnormally dangerous activity for purposes of
maintaining a claim of common law strict liability against Hess. The extent of
the operations, its proximity to sensitive waterways and environmental areas,
and the danger of the pollutants allegedly used in Hess's operations that were
discharged, albeit unintentionally, satisfy the Ventron criteria.
We reach a different conclusion as to Buckeye. Regarding plaintiffs'
claim against that entity, the complaint never mentions any activities conducted
by Buckeye or anyone else during its ownership that has anything to do with any
alleged discharge or contamination. As we already noted, common law strict
liability is limited to those who "use[d], or permit[ted] others to use, land for the
conduct of abnormally dangerous activities." Ventron, 94 N.J. at 488. In Ventron,
the Court did not hold a defendant real estate developer liable because it did not
contribute to any contamination. Id. at 493. The same logic applies to Buckeye and
A-2893-18T2
14
for that reason, the fifth count of the complaint seeking to impose common law strict
liability against Buckeye was properly dismissed.2
Trespass
The motion judge also dismissed the fourth count of plaintiffs' complaint
that asserted a claim of trespass against both defendants. In reaching his
decision, the judge adopted the reasoning in an unpublished Law Division
opinion, which we reversed on other grounds, see Exxon, 420 N.J. Super. at 395,
and in the published cases cited therein, including a federal district court case
from the District of New Mexico. According to the judge, under those cases,
plaintiffs did "not have an actionable claim or cause of action under the common
law theory of trespass with respect to what is alleged here" because the State
never held "exclusive possession" of the subject property and any "possessory
interest" it held under the public trust doctrine as "trustee, for the benefit of its
citizens, of all natural resources within its jurisdiction," was also "non-
exclusive, as it would be shared by, among and with the citizens of the State."
2
In their reply brief, plaintiffs contend that Buckeye owned the site in
September 2018, when another alleged spill occurred, after plaintiffs filed their
complaint. Because that allegation was not part of the complaint, the motion
judge did not have an opportunity to consider the claim, and therefore we will
not do so now. However, our decision is without prejudice to plaintiffs moving
before the trial court to amend their complaint.
A-2893-18T2
15
Plaintiffs claim that the motion judge erred when he dismissed its trespass
claim because the State has ownership rights of water resources under the public
trust doctrine. They argue that they hold the water resources as trustees of the State,
that they have a parens patriae responsibility to protect its resources, and any
pollution of public waters constitutes a trespass. We disagree. 3
Under New Jersey law, "[a]n action for trespass arises upon the
unauthorized entry onto another's property, real or personal." Pinkowski v.
Township of Montclair, 299 N.J. Super. 557, 571 (App. Div. 1997). A trespass
requires that the invasion be to land that is in the exclusive possession of the
plaintiff. Ventron, 94 N.J. at 488-89.
Land in the public trust is held by the State on behalf of a second party,
the people.[4] Ibid. Such land cannot be in "exclusive possession" of the State
3
Plaintiffs' parens patriae argument was not raised before the motion judge.
For that reason, we do not consider it on appeal. See Correa v. Grossi, 458 N.J.
Super. 571, 576 n.2 (App. Div. 2019); State v. Robinson, 200 N.J. 1, 20 (2009)
(quoting Nieder v. Royal Indem. Ins., 62 N.J. 229, 234 (1973)) ("[A]ppellate
courts will decline to consider questions or issues not properly presented to the
trial court when an opportunity for such a presentation is available unless the
questions so raised on appeal go to the jurisdiction of the trial court or concern
matters of great public interest.").
4
The doctrine has been applied to ensure public access to beach areas.
Township of Neptune v. N.J. Dep't of Envtl. Prot., 425 N.J. Super. 422, 439
(App. Div. 2012). It is applied to ensure the public's "reasonable access to the
A-2893-18T2
16
as the interest created by the doctrine is intended to ensure that others have use
of the same land. It does not grant to the State the exclusive possession of
property.
Applying these principles, we conclude the motion judge here correctly
dismissed the fourth count of plaintiffs' complaint.
Public Nuisance
In his order, the motion judge dismissed the third count of plaintiffs'
complaint "insofar as [it] seeks damages in the form of monetary relief other
than the injunctive remedy of abatement." (Emphasis added). In reaching his
decision, the judge cited to the Court's holding in In re Lead Paint Litigation,
191 N.J. 405 (2007), and concluded that the only available remedy to the State
was that of abatement. The judge rejected plaintiffs' contention that abatement
included "restoration of the disaffected or damage[d] natural resources" "at the
expense of" defendants. Quoting from Lead Paint, the judge held that "[t]he
sea." Ibid.; Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 324 (1984);
see also Raleigh Ave. Beach Ass'n v. Atlantis Beach Club, Inc., 185 N.J. 40, 63
(2005) (Wallace, J., dissenting) ("We have interpreted the public trust doctrine
to require broad public access to those lands that are held in public trust.").
There are no cases applying the doctrine to create an exclusive possessory
interest in any land or waterways.
A-2893-18T2
17
only basis for a money damage remedy arises in the context of a private action
[as compared to an action by the State] for public nuisance."
Plaintiffs argue on appeal that the motion judge erred by limiting their
possible relief for public nuisance to injunctive relief. They do not challenge
the motion judge's determination that they are not entitled to seek typical tort
damages arising from Hess's operations creating a public nuisance, such as loss
in value of property, that could be available to a private plaintiff who suffered
special injuries. Rather, they contend that the judge's order prematurely
foreclosed them from recovering any "monetary relief," which could include the
cost of abatement. To the extent the judge's order can be read in that manner,
we agree.
Public nuisance is "an unreasonable interference with a right common to the
general public." Id. at 425 (quoting Restatement (Second) of Torts § 821B (1979)).
As detailed in Lead Paint, actions for public nuisance can be brought by both private
citizens and public entities, but the available remedies are different for the two.
Public entities cannot seek monetary relief for public nuisance because "a public
entity which proceeds against the one in control of [a] nuisance may only seek to
abate, at the expense of the one in control of the nuisance." Id. at 429 (emphasis
added). As the Court explained in Lead Paint, public entities do not have a right,
A-2893-18T2
18
"either historically, or through the Restatement (Second) . . . to seek to collect
money damages in general. Rather, there is only a private plaintiff's right to recover
damages through an action arising from a special injury."[5] Id. at 428-29 (citation
omitted). Although a public entity's right to seek abatement "include[s] the right to
visit upon the owner of the land from which the public nuisance emanates, [as well
as] the obligations, including the costs, of the abatement . . . [it cannot] seek to collect
money damages in general." Id. at 428; see also City of Paterson v. Fargo Realty
5
The damages a private party can recover for trespass or nuisance are
(a) the difference between the value of the land before
the harm and the value after the harm, or at [plaintiff's]
election in an appropriate case, the cost of restoration
that has been or may be reasonably incurred;
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as occupant.
[Ayers v. Township of Jackson, 106 N.J. 557, 571
(1987) (quoting Restatement (Second) of Torts
§ 929(1) (Am. Law Inst. 1979)); see also Kornbleuth v.
Westover, __ N.J. __, __ (2020) (slip op. at 13-14).]
Such damages may include "natural resource damages [that] are viewed as the
difference between the natural resource in its pristine condition and the natural
resource after the cleanup, together with the lost use value and the costs of
assessment." Exxon, 420 N.J. Super. at 410 (quoting Utah v. Kennecott Corp.,
801 F. Supp. 553, 568 (D. Utah 1992)).
A-2893-18T2
19
Inc., 174 N.J. Super. 178, 185 (App. Div. 1980) ("It has long been recognized that a
right to reimbursement will accrue to a municipality for its expenses in rightfully
demolishing a building constituting a public nuisance.").
Here, then, we affirm the motion judge's dismissal of plaintiffs' claim in the
third count of their complaint for damages, but restore their ability to otherwise seek
"monetary relief" associated with any judgment ordering abatement of a public
nuisance, if plaintiffs succeed on their claim.
III.
In sum, we remand so the order under appeal can be clarified to state that the
dismissal of plaintiffs' claim for "monetary relief" in the third count of the complaint
does not encompass costs of abatement. We affirm the dismissal of the fourth count
asserting trespass, and we reverse the dismissal of the fifth count asserting common
law strict liability against Hess.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.6
6
Our holding is without prejudice to a party seeking leave from the trial court
to amend their pleadings to assert additional claims or defenses not previously
set forth in their original filings.
A-2893-18T2
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4523117/
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases i s limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0843-18T4
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.T.,
Defendant-Appellant,
and
T.K., Sr.,
Defendant.
___________________________
IN THE MATTER OF
T.K, Jr. and I.K.,
Minors.
___________________________
Submitted February 26, 2020 – Decided April 7, 2020
Before Judges Koblitz and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0202-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Marc R. Ruby, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Dana L. Paolillo, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Melissa R. Vance, Assistant
Deputy Public Defender, on the brief).
PER CURIAM
S.T.1 appeals from a February 23, 2017 order entered in Essex County
determining that she abused or neglected her then three-year-old son and one-
year-old daughter in large part by spending extended unsupervised time with the
children in October 2016, contrary to a provision of a March 26, 2015 order
terminating litigation.2 Because the March 2015 order, entered by a Hudson
1
We use initials pursuant to Rule 1:38-3(d)(12).
2
After the February 2017 fact finding hearing, S.T.'s motion to transfer venue
from Essex to Hudson County was granted due to a conflict posed by S.T.'s
relative who worked for the Division in Essex County. The court order noted
that S.T. "has had an earlier . . . case transferred to Hudson County based on
these same facts."
A-0843-18T4
2
County judge, was entered by the court off the record with only the Deputy
Attorney General present, we reverse.
New Jersey Division of Youth and Family Services (Division)
investigative worker Natasha Daniels testified that the two young children were
living with their father. S.T. had lost her parental rights to two older children
due to her mental health problems. A March 2015 court order, entered before
the younger child was born, afforded her only supervised visitation with the
older child. Caseworker Jennifer Donahue testified that in October 2016, after
looking for the family for about a month, she and another caseworker went to a
daycare center where the son was present. They were informed that the little
girl was no longer attending. When S.T. arrived at the daycare with the little
girl, the caseworkers asked S.T. questions regarding her housing and her history
with the Division. S.T. was evasive and uncooperative, became irate and began
cursing at the daycare staff. She buckled the children into their car seats in her
car and sped away rather than surrender the children to the Division workers.
No other adult was with S.T. A day or two later, both children were located at
A-0843-18T4
3
the daycare facility and removed by the Division.3 The daycare reported no
issues concerning the children's care.
The Division sought a finding of abuse or neglect because, as the Deputy
Attorney General said:
Your Honor, it's simple. [S.T.] wasn't supposed to have
unsupervised parenting time with her children. She was
defying the court order. She was putting her children
at risk. And for those reasons I'd ask the [c]ourt to
make a finding of abuse and neglect under Title [Nine].
The factfinding judge stated that S.T. had a "long history with the Division" and
a history of untreated mental illness. She noted that the parents were
uncooperative with the Division, adding: "And what is of particular concern to
this [c]ourt is the violation of the court order of March [26]." The judge said:
You know, evidence of the mother's refusal to conform
to this court ordered condition is not in [and] of itself
abuse and neglect. But it is an indication to this [c]ourt
that mom is not capable or has no desire to follow the
rules. That order made it very clear. And to this [c]ourt
it's only further evidence of her unwillingness to
cooperate and act in a manner that was in the best
interest of her children.
3
"Pursuant to N.J.S.A. 9:6-8.29, legislation sponsored by Senator Dodd, the
Division is authorized to take custody of a child on an emergency basis in order
to protect the child's safety." N.J. Div. of Child Prot. & Permanency v. K.G.,
445 N.J. Super. 324, 329 n.3 (App. Div. 2016). The children were subsequently
returned to the custody of both parents and the litigation dismissed in September
2018.
A-0843-18T4
4
And I can't state it clear enough that order was very
clear. Mom had counsel in that matter. I'm assuming
she participated in that matter, and she still violated the
order.
On appeal, S.T. argues that her violation of the March order by picking
her children up from daycare did not constitute abuse or neglect, the trial judge
should have granted an adjournment to allow S.T.'s sister to testify, and the
judge erred in relying on S.T.'s history of mental illness when no competent
evidence of her illness was admitted into evidence. We reverse based on the
first issue raised and need not discuss the others.
We must "accord deference to factfindings of the family court because it
has the superior ability to gauge the credibility of the witnesses who testify
before it and because it possesses special expertise in matters related to the
family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
We may not "second-guess or substitute our judgment for that of the family
court, provided that the record contains substantial and credible evidence to
support" the family court's decision. Id. at 448-49.
Through the admission of "competent, material and relevant evidence,"
the Division must prove by a preponderance of the evidence that the child was
abused or neglected. N.J.S.A. 9:6-8.46(b). In pertinent part, Title Nine provides
the following definition:
A-0843-18T4
5
"Abused or neglected child" means a child less than
[eighteen] years of age . . . whose physical, mental, or
emotional condition has been impaired or is in
imminent danger of becoming impaired as the result of
the failure of his parent or guardian, as herein defined,
to exercise a minimum degree of care . . . in providing
the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted
harm, or substantial risk thereof . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
Our Supreme Court has discussed "what standard of care is codified by
the phrase 'failure to exercise a minimum degree of care.'" G.S. v. Dep't of
Human Servs., 157 N.J. 161, 178 (1999). The Court concluded that "'minimum
degree of care' refers to conduct that is grossly or wantonly negligent, but not
necessarily intentional." Ibid. "Essentially, the concept of willful and wanton
misconduct implies that a person has acted with reckless disregard for the safety
of others." Id. at 179. "[A] guardian fails to exercise a minimum degree of care
when he or she is aware of the dangers inherent in a situation and fails
adequately to supervise the child or recklessly creates a risk of serious injury to
that child." Id. at 181.
"[A] parent or guardian's past conduct can be relevant and admissible in
determining risk of harm to the child." N.J. Div. of Youth & Family Servs. v.
A-0843-18T4
6
I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). A new finding of abuse or
neglect may not, however, rely solely on a parent's history.
We recently emphasized that all proceedings in children in court cases that
result in an order must be held on the record. N.J. Div. of Child Prot. &
Permanency v. P.O. & M.C.D., 456 N.J. Super. 399, 409 (App. Div. 2018).
Although the Essex County factfinding judge assumed that the March 2015 order
restricting S.T.'s contact with her child was entered after S.T.'s participation
with the assistance of counsel, the Hudson County March order, which was
introduced into evidence at the factfinding hearing, on its face belies those
assumptions. The order states in capital letters: "MATTER NOT HEARD ON
THE RECORD." It reflects that no parent, defense lawyer or law guardian was
present, and that the order was entered with the Deputy Attorney General present
based on the Division's letter of the previous day. The order awards sole legal
and physical custody of the child to his father, affording the mother "supervised
visits" with no provision for eventual unsupervised contact should conditions
change.
The record not only fails to demonstrate that she was given an opportunity
to be heard prior to the March 26, 2015 order, it also fails to substantiate that
S.T. was given notice of the supervision requirement.
A-0843-18T4
7
Under these circumstances, the record does not contain substantial and
credible evidence that S.T. abused or neglected either of her two young children.
We reverse, without opining on whether the violation of a court order in other
circumstances might constitute evidence of abuse or neglect. The Division
should ensure that if S.T.'s name is on the Child Abuse Registry4 due to this
factfinding, her name is removed. See N.J. Dep't of Children & Families v.
L.O., 460 N.J. Super. 1, 11-14 (App. Div. 2019) (describing the consequences
of a finding of abuse or neglect while holding that a parent is entitled to counsel
at an administrative factfinding).
Reversed. We do not retain jurisdiction.
4
See N.J.S.A. 9:6-8.11.
A-0843-18T4
8
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4243691/
|
***********************************************
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STATE OF CONNECTICUT v. DENNIS SALMOND
(AC 40237)
Alvord, Elgo and Sullivan, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a pistol or
revolver in connection with the shooting death of the victim, the defen-
dant appealed. The defendant’s conviction stemmed from an incident
in which he allegedly approached the victim’s parked vehicle and fatally
shot him. The victim’s friend, J, was in the vehicle at the time, and he
was a witness to the shooting. J identified the defendant as the shooter
from photographic arrays that were shown to him by the police, and
later identified the defendant as the shooter before the jury during
trial. On appeal, the defendant claimed that the trial court violated his
constitutional right to due process by denying his motion to suppress
J’s in-court identification of him, and abused its discretion by denying
his request for a special credibility instruction with respect to J’s testi-
mony. Held:
1. The trial court did not abuse its discretion by allowing J to make an in-
court identification of the defendant: the court’s determination that,
although the out-of-court identification procedure was unnecessarily
suggestive, the state had proven the reliability of J’s in-court identifica-
tion by clear and convincing evidence was supported by the record,
which demonstrated that J was personally familiar with the defendant,
that J had the opportunity to view the defendant in broad daylight on
the morning of the murder from the front passenger seat of the motor
vehicle and again as J fled from the scene and saw the defendant
unmasked, that J’s description of the shooter’s appearance, which was
given prior to his identification of the defendant from a photographic
array, was generally consistent with the defendant’s appearance as cap-
tured by surveillance video, as described by a 911 caller, and as testified
to by J at trial, and that the eight day time period between the crime
and J’s interview in which he identified the defendant was not so long
as to render his identification unreliable; furthermore, any alleged evi-
dentiary error as to the in-court identification was harmless and had
very little, if any, likelihood of affecting the jury’s verdict, as the state
had a strong case against the defendant even without J’s in-court identifi-
cation.
2. The defendant’s unpreserved claim that the trial court should have granted
his request to charge and charged the jury that the out-of-court identifica-
tion procedure was not substantive evidence of guilt due to its sugges-
tiveness was not reviewable, the defendant having failed to raise before
the trial court the particular objection that he asserted on appeal; the
record demonstrated that the defendant’s request to charge did not
specifically state that the out-of-court identification procedure was not
substantive evidence of guilt due to its suggestiveness, and although
defense counsel objected to the court’s proposed jury charge regarding
the identification of the defendant, he merely referred the court to the
language in the defendant’s request to charge, which did not address
whether the jury should be permitted to use the out-of-court identifica-
tion as substantive evidence of the defendant’s guilt.
3. The trial court did not abuse its discretion in denying the defendant’s
request for a special credibility instruction regarding J’s testimony: there
was no basis in the record for the jury to reasonably conclude that J
was involved in the murder of the victim so as to warrant an accomplice
instruction, as the jury could have reasonably found that J and the victim
were close friends and had known each other for eight or nine years,
and that J pleaded with the defendant to stop shooting at the victim;
moreover, the defendant’s claim that the trial court was required to give
a special credibility instruction with respect to J’s testimony because he
was akin to a jailhouse informant was unavailing, as a special credibility
instruction is required in situations where a prison inmate has been
promised a benefit by the state in return for his testimony regarding
incriminating statements made by a fellow inmate, and the trial court
was not required to give a special credibility instruction under the cir-
cumstances here, where J, an incarcerated witness, had testified con-
cerning events surrounding the crime that he had witnessed outside of
prison, the court’s general credibility instruction having been sufficient
under those circumstances.
Argued October 11, 2017—officially released February 13, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a pistol
or revolver, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two,
where the charge of murder was tried to the jury before
Blawie, J.; thereafter, the court, Blawie, J., denied in
part the defendant’s motion to suppress; verdict of
guilty; subsequently, the charge of criminal possession
of a pistol or revolver was tried to the court, Blawie,
J.; judgment of guilty, and the defendant appealed;
thereafter, the court, Blawie, J., issued an articulation
of its denial of the defendant’s motion to suppress.
Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Pamela J. Esposito, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant, Dennis Salmond,
appeals from the judgment of conviction of murder in
violation of General Statutes § 53a-54a (a) and criminal
possession of a pistol or revolver in violation of General
Statutes (Rev. to 2013) § 53a-217c (a) (1). On appeal,
the defendant claims that the trial court (1) violated
his constitutional right to due process by denying his
motion to suppress an eyewitness’ in-court identifica-
tion of him, and (2) abused its discretion by denying
his request for a special credibility instruction with
respect to the testimony of that eyewitness. We disagree
and, accordingly, affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
This case is the end result of a dispute over ‘‘drug
turf’’ in the east end of Bridgeport. The victim, Kiaunte
‘‘Stretch’’ Ware, lived on Sixth Street in Bridgeport and
sold drugs in that neighborhood. The defendant1 had
recently returned to live in the east end and started
selling drugs on Sixth Street. The defendant was not a
Sixth Street regular, but he ‘‘[w]as . . . out there
enough’’ to be noticed by the victim and his friend,
Richard Jackson. On July 15, 2013, the victim and the
defendant had a physical altercation on Sixth Street.
Later that day, the defendant sent a text message to a
friend stating that he had been jumped by the victim
and another male, who told him that he could not come
on Sixth Street. The defendant further stated that he
‘‘wasn’t hearing [that]’’ and that he was looking for a
gun. On July 16, 2013, the victim pulled a gun on the
defendant while the defendant was with his children
at a nearby park.
Unlike the victim, Jackson had no issue with the
defendant, and the two interacted on four or five occa-
sions in the two weeks prior to the victim’s murder.
On one occasion, Jackson and the defendant shared a
marijuana cigarette and talked for approximately
twenty minutes. On another occasion, the two sat
together on the porch steps of a property on Sixth
Street. Jackson and the defendant also exchanged
remarks as they passed by each other on the street.
Jackson did not witness the July 15, 2013 altercation,
but the next day he was shown a cell phone video
recording of the incident.
On the morning of July 17, 2013, at approximately
7:20 a.m., the victim and Jackson were sitting in a car
outside the victim’s apartment on Sixth Street. The vic-
tim sat in the driver’s seat with his window rolled down,
and Jackson sat next to him in the front passenger
seat. The two friends talked about the July 15, 2013
altercation and Jackson cautioned the victim that his
dispute with the defendant was unnecessary. The defen-
dant walked up Sixth Street wielding a small black
handgun and approached within three feet of the driv-
er’s side of the victim’s car. The defendant was wearing
a black shirt and his face was covered up to the top of
his nose, leaving only his eyes and the top of his head
exposed. The defendant fired at the victim and then
uttered the words ‘‘bitch ass n*****.’’ Jackson told the
defendant to ‘‘chill’’ and that he had ‘‘proven his point.’’
The defendant, however, fired more bullets, hitting the
victim in the left upper neck, left upper shoulder, back
and chest. The defendant then fled.
Jackson also fled because there were outstanding
warrants for his arrest and he feared becoming involved
with the police. As Jackson ran east toward Bunnell
Street through the backyards of houses on Sixth Street,
he said aloud, ‘‘I’m going to jail.’’ He then heard a voice
reply, ‘‘[m]y bad my n*****,’’ and realized that the defen-
dant, whose face was no longer covered, was running
close behind him. The defendant continued running in
the direction of Stratford Avenue.
A juvenile standing in the backyard of a house on
Bunnell Street, which abutted the backyards of houses
on Sixth Street, heard the gunshots and called 911.
Shortly thereafter, police and emergency response per-
sonnel found the unconscious victim, who was later
pronounced dead at Bridgeport Hospital. The police
recovered four spent bullets from the victim’s car, four
spent casings in the roadway and a white tank top in
the grass near the victim’s car. A firearm never was
recovered.
On the basis of video surveillance2 and witness inter-
views,3 Detective Robert Winkler applied for, and was
issued, a warrant for the arrest of the defendant on
July 25, 2013. That same day, Jackson was arrested
on unrelated charges and interviewed by Detectives
Winkler and Dennis Martinez about the victim’s murder.
Initially, Jackson was reluctant to provide the detec-
tives with the assailant’s identity. Jackson stated that
he had been sitting in the victim’s car for approximately
four to seven minutes before the assailant ran up to
the car and started shooting at the victim. He described
the victim’s assailant as a black male at least six feet,
three inches tall, wearing a black shirt and a scarf or
shirt covering most of his face, and wielding a black
small caliber gun. Jackson stated that as he was running
to his girlfriend’s apartment on Bunnell Street, the
assailant, whose face was still covered, ran by him and
continued in the direction of Stratford Avenue. Later
in the interview, Martinez inadvertently used the defen-
dant’s street name, ‘‘Sleep,’’ instead of the victim’s street
name, ‘‘Stretch.’’ Jackson was shown portions of the
Stratford Avenue surveillance video and he confirmed
that the man in the video was the person he recognized
as the assailant. He claimed, however, that he did not
know the assailant’s name. Jackson stated that he had
seen the assailant on Sixth Street previously and would
recognize him if he saw him again. He also stated that
he knew the assailant’s voice because he had heard it
before and that he could match that voice to a face.
The detectives conducted a blind sequential photo
array of eight photographs. When he was shown the
seventh photograph, that of the defendant, Jackson
became quiet and asked to return to his cell multiple
times. The detectives urged Jackson to tell them what
he knew and whether the seventh photograph was the
assailant. Jackson asked to speak alone with Winkler
and attempted to negotiate a release on a promise to
appear on his unrelated charges. Winkler stated multi-
ple times that he could try to help but could not promise
anything. Jackson admitted that he knew the defendant
was the assailant all along, identified him in the seventh
photograph in the array and stated that Martinez already
had used his street name, ‘‘Sleep.’’
On July 30, 2013, the defendant was arrested and
charged with murder and criminal possession of a pistol
or revolver. Prior to trial, the defendant moved to sup-
press Jackson’s out-of-court identification and any sub-
sequent in-court identification of the defendant,
claiming, inter alia, that the procedures used by the
detectives during the out-of-court identification were
unnecessarily suggestive, and that, as a result, any in-
court identification would be tainted by the improper
out-of-court identification. In response, the state con-
tended that it did not seek to offer Jackson’s out-of-
court identification of the defendant at trial.
A seven day jury trial commenced on September 24,
2014. During trial, outside the presence of the jury, the
court conducted a two part evidentiary hearing on the
defendant’s motion to suppress. After reviewing Jack-
son’s videotaped interview and hearing testimony from
Winkler,4 the court determined that the police identifi-
cation procedure was unnecessarily suggestive and sup-
pressed the out-of-court identification. The court
reasoned that Martinez’s inadvertent use of the defen-
dant’s street name and ‘‘showing [Jackson] the surveil-
lance video that only contained [the defendant was]
tantamount to making a suggestion as to who should
be picked out of the [photographic] array.’’
The court then addressed the reliability of any subse-
quent in-court identification. The court heard testimony
from Jackson, who stated that he knew that the defen-
dant was the shooter prior to the interview, but did
not want to provide that information to the detectives.
Jackson testified that there weren’t ‘‘too many different
people . . . on Sixth Street’’ and that he ‘‘[paid] atten-
tion to who was out there.’’ It was important for Jack-
son, who was involved in the sale of narcotics, to know
who the regular people were, ‘‘because other people
could be snitches.’’ Jackson further testified that he had
seen the defendant on Sixth Street four or five times
in the two weeks prior to the shooting, and had become
familiar with both the defendant’s appearance and
voice. Jackson indicated that he would have known
that the defendant was the shooter even if he had not
seen him a second time as he was running away. The
court then asked Jackson the following questions:
‘‘The Court: Sir, you were shown some video by the
detectives that was taken from a street pole camera
that day. Is that right?
‘‘[Jackson]: Yes.
‘‘The Court: Did that video influence or plant the idea
in your mind that [the defendant] was the shooter?
‘‘[Jackson]: No.
‘‘The Court: How sure are you of that?
‘‘[Jackson]: A hundred percent.
‘‘The Court: And did Detective Martinez, using the
name Sleep while he was interviewing you, did that
influence your identification of the defendant here in
court as the shooter of [the victim]?
‘‘[Jackson]: No.’’
On the basis of Jackson’s testimony, the court ruled
that ‘‘the state [had] established by clear and convincing
evidence that under the totality of the circumstances
. . . [Jackson’s] in-court identification . . . [was]
based upon his independent recollection and [was]
untainted by any faulty pretrial identification process.’’
The court made the following findings of fact in support
of its determination: ‘‘[T]his case did not involve a one-
time encounter between an eyewitness and a shooter
who was a total stranger’’; ‘‘[t]he defendant and Jackson
had been together in each other’s company in close
proximity in social settings [on Sixth Street] in the days
leading up to [the victim’s] murder’’; ‘‘Jackson . . . was
already personally familiar with [the defendant] before
[the victim] was murdered’’; ‘‘[Jackson] was also privy
to the bad blood that existed between [the defendant]
and the victim at the time of the shooting’’; ‘‘Jackson
had a chance to view the [defendant] that morning,
both during and after the murder’’; ‘‘Jackson also inter-
acted and spoke with the defendant immediately after
[the defendant] shot [the victim]’’; and ‘‘Jackson demon-
strated an obvious reluctance to cooperate [during his
interview] with [the] detectives.’’ (Emphasis omitted.)
Jackson then testified before the jury and identified
the defendant as the man who shot the victim. Jackson
testified that the main factor in being able to identify
the defendant as the shooter was seeing him unmasked
as they ran away from the crime scene. On October 6,
2014, the jury found the defendant guilty of murder in
violation of § 53a-54a (a) and the court found him guilty
of criminal possession of a pistol or revolver in violation
of General Statutes (Rev. to 2013) § 53a-217c (a) (1).
Thereafter, the court sentenced the defendant to a total
effective sentence of fifty years incarceration. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The defendant’s principal claim on appeal is that the
trial court violated his federal constitutional right to due
process by denying his motion to suppress Jackson’s
in-court identification of him.5 The defendant’s argu-
ments in support of that claim are twofold. First, he
argues that, although the court determined that the
out-of-court identification procedure was unnecessarily
suggestive,6 the court improperly concluded that the
state had proven the reliability of Jackson’s in-court
identification by clear and convincing evidence. Sec-
ond, he argues that the court improperly permitted the
jury to consider Jackson’s out-of-court identification as
evidence of guilt. We disagree.
A
We first address the defendant’s claim that the court
improperly concluded that the state had proven the
reliability of Jackson’s in-court identification by clear
and convincing evidence. Specifically, the defendant
argues that Jackson’s ‘‘brief prior acquaintance’’ with
the defendant and Jackson’s ‘‘denial that the identifica-
tion procedure affected him’’ does not constitute clear
and convincing evidence of reliability.7 In response, the
state contends that, although the trial court improperly
shifted the burden of proving the reliability of Jackson’s
in-court identification onto the state, Jackson was suffi-
ciently familiar with the defendant to minimize the risk
of misidentification, and that this familiarity, consid-
ered under the totality of the circumstances sur-
rounding the crime and subsequent identification,
demonstrates that the trial court’s ruling was not an
abuse of its discretion. Without determining whether
the trial court improperly shifted the burden of proof
onto the state, we conclude that the court did not abuse
its discretion by allowing Jackson to make an in-court
identification of the defendant.
We begin by setting forth the applicable standard of
review and the legal principles that guide our analysis of
a defendant’s constitutional challenge to an eyewitness
identification procedure. ‘‘Our standard of review of a
trial court’s findings and conclusions in connection with
a motion to suppress is well defined. A finding of fact
will not be disturbed unless it is clearly erroneous in
view of the evidence and pleadings in the whole record
. . . . [W]here the legal conclusions of the court are
challenged, we must determine whether they are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision . . . .
We undertake a more probing factual review when a
constitutional question hangs in the balance.’’ (Internal
quotation marks omitted.) State v. Aviles, 154 Conn.
App. 470, 478–79, 106 A.3d 309 (2014), cert. denied, 316
Conn. 903, 111 A.3d 471 (2015).
‘‘[W]e will reverse the trial court’s ruling [on evi-
dence] only where there is an abuse of discretion or
where an injustice has occurred . . . and we will
indulge in every reasonable presumption in favor of the
trial court’s ruling. . . . Because the inquiry into
whether [identification evidence] should be suppressed
contemplates a series of factbound determinations,
which a trial court is far better equipped than this court
to make, we will not disturb the findings of the trial
court as to subordinate facts unless the record reveals
clear and manifest error.’’ (Internal quotation marks
omitted.) State v. Dakers, 155 Conn. App. 107, 112–13,
112 A.3d 819 (2015); accord State v. Ledbetter, 275 Conn.
534, 548, 881 A.2d 290 (2005), cert. denied, 547 U.S.
1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
‘‘[B]ecause the issue of the reliability of an identifica-
tion involves the constitutional rights of an accused
. . . [our appellate courts] are obliged to examine the
record scrupulously to determine whether the facts
found are adequately supported by the evidence and
whether the [trial] court’s ultimate inference of reliabil-
ity was reasonable.’’ (Internal quotation marks omit-
ted.) State v. Ledbetter, supra, 275 Conn. 547; see also
State v. Aviles, supra, 154 Conn. App. 479. ‘‘[T]he
required inquiry is made on an ad hoc basis and is
two-pronged: first, it must be determined whether the
identification procedure was unnecessarily suggestive;
and second, if it is found to have been so, it must be
determined whether the identification was nevertheless
reliable based on an examination of the totality of the
circumstances.’’ (Internal quotation marks omitted.)
State v. Ledbetter, supra, 547–48; see also Manson v.
Brathwaite, 432 U.S. 98, 110–14, 97 S. Ct. 2243, 53 L.
Ed. 2d 140 (1977).
‘‘[A]n out-of-court eyewitness identification should
be excluded on the basis of the procedure used to elicit
that identification only if the court is convinced that
the procedure was so suggestive and otherwise unrelia-
ble as to give rise to a very substantial likelihood of
irreparable misidentification.’’ (Emphasis omitted.)
State v. Marquez, 291 Conn. 122, 142, 967 A.2d 56, cert.
denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163
(2009). ‘‘That the initial identification ha[s] been invali-
d[ated] . . . place[s] the state under a constitutional
restraint to establish an independent basis for the subse-
quent [in-court identification]. Thus, the burden [is] on
the state to establish by clear and convincing evidence
that the subsequent [in-court identification is] based
on the [witness’] independent recollection.’’ State v.
Mitchell, 204 Conn. 187, 204, 527 A.2d 1168, cert. denied,
484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987);
see also State v. Guertin, 190 Conn. 440, 459, 461 A.2d
963 (1983). ‘‘[R]eliability is the linchpin in determining
the admissibility of identification testimony . . . . To
determine whether an identification that resulted from
an unnecessarily suggestive procedure is reliable, the
corruptive effect of the suggestive procedure is weighed
against certain factors, such as the opportunity of the
[witness] to view the criminal at the time of the crime,
the [witness’] degree of attention, the accuracy of [the
witness’] prior description of the criminal, the level of
certainty demonstrated at the [identification] and the
time between the crime and the [identification].’’ (Inter-
nal quotation marks omitted.) State v. Mitchell, 127
Conn. App. 526, 534, 16 A.3d 730, cert. denied, 301 Conn.
929, 23 A.3d 724 (2011); see also Manson v. Brathwaite,
supra, 432 U.S. 114; Neil v. Biggers, 409 U.S. 188, 199–
200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
With the foregoing factual background and legal
framework in mind, we now review the trial court’s
denial of the defendant’s motion to suppress Jackson’s
in-court identification. We begin our analysis by
addressing the court’s factual finding that Jackson was
‘‘personally familiar’’ with the defendant. The defendant
disagrees with this finding and, instead, contends that
he and Jackson were ‘‘near strangers.’’ Specifically, the
defendant argues that ‘‘the state did not cite to any case
in which a twenty minute conversation and three to four
brief encounters over two weeks creates’’ sufficient
familiarity ‘‘to identify him from a brief glimpse . . .
or from seven spoken words.’’ In response, the state
argues that the court’s factual findings were supported
by the record.
At the outset, we note that our Supreme Court has
declined to ‘‘articulate a specific rule regarding the
degree of familiarity that an eyewitness must have with
a suspect . . . .’’ State v. Williams, 317 Conn. 691, 707,
119 A.3d 1194 (2015). ‘‘Rather, the typical approach is
to consider the nature and extent of the eyewitness’
prior knowledge of the suspect, along with all of the
other facts and circumstances of the crime and the
subsequent identification of a perpetrator, to determine
whether a trial court has abused its discretion . . . .
[A]ffording flexibility to trial courts is desirable due to
the myriad and unpredictable ways in which crimes
occur and are witnessed and in which individuals may
have had previous contact with each other. . . . [I]n
a case in which an eyewitness has a limited, stressful
encounter with a criminal actor whose features are
largely concealed, a high level of prior familiarity likely
would be necessary . . . . On the other hand, if a wit-
ness has ample opportunity to view a perpetrator under
conditions conducive to an accurate identification and
identifies him or her shortly thereafter, a lesser degree
of familiarity may suffice.’’ (Citation omitted; footnote
omitted.) Id., 707–708.
The record demonstrates that Jackson had a height-
ened awareness of who was present on Sixth Street,
including the defendant. Jackson had interacted with
the defendant at least four times in the two weeks prior
to the victim’s murder. On the basis of these interac-
tions, Jackson stated that he was able to recognize
the defendant by both his appearance and his voice.
Jackson also was aware of the ongoing dispute between
the defendant and the victim at the time of the shooting.
We therefore conclude that the trial court’s finding that
Jackson was personally familiar with the defendant was
supported by the record.
We next address Jackson’s opportunity to view the
defendant at the time of murder. ‘‘This consideration
implicates factors that relate to the [witness’] condition
at the time as well as the external environment.’’ State
v. Artis, 136 Conn. App. 568, 595, 47 A.3d 419 (2012),
rev’d on other grounds, 314 Conn. 131, 101 A.3d 915
(2014). Jackson was an eyewitness to the crime. As
the trial court explained, Jackson ‘‘had a front row
seat to [the victim’s] murder.’’ Jackson even referred
to himself as the ‘‘star witness’’ because he ‘‘[was] the
one closest to the person that got killed.’’ Jackson had
two opportunities to view the defendant in broad day-
light on the morning of the murder; once from the front
passenger seat of the vehicle, and again as he fled from
the crime scene and saw the unmasked defendant.
Jackson’s description of the perpetrator’s appear-
ance, which was given prior to the unduly suggestive
police identification procedure and his identification of
the defendant from a photographic array, was generally
consistent with the defendant’s appearance as captured
by the surveillance video, as described by the 911 caller8
and as testified to by Jackson at trial. The defendant
contends that Jackson’s differing descriptions as to
what type of pants the assailant was wearing suggests
that he altered his original description after viewing
the surveillance video. We disagree that this claimed
discrepancy is significant, as Jackson himself acknowl-
edged that he was not staring at the assailant’s pants
and was not sure what he was wearing. We note that
Jackson, when testifying before the jury, stated for the
first time that the defendant’s face was uncovered and
visible as they ran away from Sixth Street. Although
Jackson’s withholding of this fact until trial was proper
fodder for the jury to consider when assessing his credi-
bility, it does not significantly impact our analysis of
the defendant’s claim on appeal. See State v. Williams,
supra, 317 Conn. 713–14 (fact that witness gave more
complete description of defendant at trial than during
police interview does not compel reversal of trial
court’s ruling).
Finally, the eight day time period between the crime
and Jackson’s interview in which he identified the
defendant is not so long as to render Jackson’s identifi-
cation unreliable.9 See, e.g., State v. Sanchez, 128 Conn.
App. 1, 11, 15 A.3d 1182 (2011) (concluding that sixteen
month period between crime and identification did not
render witness’ identification unreliable), aff’d, 308
Conn. 64, 60 A.3d 271 (2013); State v. Henton, 50 Conn.
App. 521, 535, 720 A.2d 517 (four month period between
crime and identification did not render witness’ identifi-
cation unreliable), cert. denied, 247 Conn. 945, 723 A.2d
322 (1998); State v. McClendon, 45 Conn. App. 658,
666, 697 A.2d 1143 (1997) (two year period between
crime and identification did not render identification
unreliable where victim had ample opportunity to see
defendant, had high degree of attention during encoun-
ter and provided detailed description at time of inci-
dent), aff’d, 248 Conn. 572, 730 A.2d 1107 (1999).
Therefore, after reviewing the record, we conclude that
the court’s denial of the defendant’s motion to suppress
Jackson’s in-court identification was supported by the
record, and not an abuse of its discretion.
Moreover, any alleged evidentiary error as to the in-
court identification was harmless. ‘‘[T]he test for
determining whether a constitutional error is harmless
. . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained.’’ (Internal quotation marks omitted.)
Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999); see also State v. Cook, 287
Conn. 237, 252, 947 A.2d 307, cert. denied, 555 U.S. 970,
129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). ‘‘[W]hether an
error is harmful depends on its impact on the trier of
fact and the result of the case. . . . This court has held
in a number of cases that when there is independent
overwhelming evidence of guilt, a constitutional error
would be rendered harmless beyond a reasonable
doubt. . . . If the evidence may have had a tendency
to influence the judgment of the jury, it cannot be con-
sidered harmless. . . . That determination must be
made in light of the entire record [including the strength
of the state’s case without the evidence admitted in
error].’’ (Internal quotation marks omitted.) State v.
Aviles, supra, 154 Conn. App. 478.
In this case, the jury heard motive evidence in the
form of testimony about the dispute and ensuing physi-
cal altercations that occurred in the two days prior to
the murder. The jury viewed the timestamped video
surveillance of the defendant walking toward Sixth
Street and then fleeing after the shooting, which the trial
court described as ‘‘very incriminating.’’ See footnote
2 of this opinion. At trial, the defendant conceded that
he was the person on the surveillance footage. The jury
also heard a recording of a phone call the defendant
made to his girlfriend from his holding cell, in which
he asked her if the police had ‘‘[found] anything in [her]
house.’’ Additionally, the defendant elicited evidence
of Jackson’s out-of-court identification of the defen-
dant. See part 1 B of this opinion. We therefore con-
clude, on the basis of the strength of the state’s evidence
against the defendant, that any alleged error had very
little, if any, likelihood of affecting the jury’s verdict.
B
We next turn to the defendant’s claim that the court
‘‘should have granted [the defendant’s] request to
charge and charged the jury that the out-of-court identi-
fication procedure was not substantive evidence of guilt
because of its suggestiveness.’’ The defendant contends
that his claim was preserved by his September 29, 2014
request to charge. In response, the state argues that the
defendant is not entitled to review of this claim because
(1) it was not preserved by the defendant’s request to
charge, and (2) the defendant has either induced these
errors or waived them pursuant to State v. Kitchens,
299 Conn. 447, 10 A.3d 942 (2011).10 We conclude that
the defendant’s claim was not preserved by his request
to charge or exceptions taken at trial and, accordingly,
we do not reach its merits.
The following additional facts and procedural history
are necessary for the resolution of this claim. During
the cross-examination of Winkler, defense counsel
introduced portions of Jackson’s out-of-court identifi-
cation ‘‘in order to show that Jackson mistakenly identi-
fied [the defendant] because of the unnecessarily
suggestive procedure.’’ The state objected to its admis-
sion. The court sustained the state’s objection, but
noted that the defendant ‘‘[had opened] the door to the
state possibly using other portions [of the out-of-court
identification] to rehabilitate the identification that
[Jackson] made of the defendant because the [out-of-
court identification] that the court had previously
ordered stricken because it was suggestive has been
introduced into this case by the defense. . . . [T]he
state [is] free to inquire to show that [Jackson] did
in fact make that identification.’’ (Emphasis added.)
Defense counsel then requested a limiting instruction
that the comments of the interviewing detectives should
not be taken for their truth; however, defense counsel
did not request a limiting instruction as to Jackson’s
statement. The court then instructed the jury as follows:
‘‘The . . . evidence is being offered for the statements
of [Jackson]. . . . [Y]ou’ll hear certain expressions of
opinion by the police officers and those are not being
offered for the truth of their opinions . . . but to show
their effect on [Jackson] or his responses to those state-
ments.’’ Jackson’s videotaped interview was then admit-
ted into evidence as a full exhibit and viewed by the jury.
On September 29, 2014, the defendant submitted a
draft request to charge that stated in relevant part: ‘‘In
this case, the identification of the defendant by the
witness, [Jackson], was the result of suggestive identifi-
cation procedures.’’ On October 3, 2014, the court pro-
vided defense counsel and the state with a draft of
its proposed jury instructions. That same morning, the
court, defense counsel and the prosecutor then
reviewed the proposed jury instructions page by page.
The court indicated that it had incorporated language
from the Connecticut criminal jury instructions into
the section regarding ‘‘identification of the defendant.’’
Defense counsel objected, and referred the court to the
defendant’s September 29, 2014 request to charge the
jury with the following language: ‘‘In this case, the iden-
tification of the defendant by the witness, [Jackson],
was the result of suggestive identification procedures.’’
The court denied that request, stating: ‘‘The court’s
problem with the [defendant’s] request is the jury may
well make that determination. . . . I’m not preventing
you from arguing it. I anticipate you arguing it . . . .
But I can’t make that leap and make a finding of sugges-
tiveness. I found that while there was a taint to the
out-of-court identification, I was satisfied based upon
[Jackson’s] statements and his prior familiarity with
the defendant before the homicide, that his in-court
identification was not the result of any suggestive out-
of-court identification procedure. . . . I’m not going to
charge this jury that the identification was suggestive.
That may be something that [the jurors] make a [deter-
mination] as to which might create reasonable doubt.
But I can’t tell [the jury] that as a matter of law in
this instruction because I believe it is marshaling the
evidence in a way that’s not appropriate in a charge
which is supposed to be . . . right down the middle.’’
It is well settled that ‘‘[a]n appellate court shall not
be bound to consider error as to the giving of, or the
failure to give, an instruction unless the matter is cov-
ered by a written request to charge or exception has
been taken by the party appealing immediately after
the charge is delivered. Counsel taking the exception
shall state distinctly the matter objected to and the
ground of objection.’’ Practice Book § 16-20; accord
Practice Book § 42-16. ‘‘Thus, a party may preserve for
appeal a claim that an instruction, which was proper
to give, was nonetheless defective either by: (1) submit-
ting a written request to charge covering the matter; or
(2) taking an exception to the charge as given. . . .
Moreover, the submission of a request to charge cov-
ering the matter at issue preserves a claim that the trial
court improperly failed to give an instruction on that
matter.’’ (Internal quotation marks omitted.) State v.
Johnson, 165 Conn. App. 255, 284, 138 A.3d 1108, cert.
denied, 322 Conn. 904, 138 A.3d 933 (2016). ‘‘In each
of these instances, the trial court has been put on notice
and afforded a timely opportunity to remedy the error.
. . . It does not follow, however, that a request to
charge addressed to the subject matter generally, but
which omits an instruction on a specific component,
preserves a claim that the trial court’s instruction
regarding that component was defective.’’ (Emphasis
omitted; internal quotation marks omitted.) State v.
Silva, 113 Conn. App. 488, 495, 966 A.2d 798 (2009).
‘‘[T]he sina qua non of preservation is fair notice to the
trial court. . . . An appellate court’s determination of
whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated [in the
trial court] with sufficient clarity to place the trial court
on reasonable notice of that very same claim.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Sease, 147 Conn. App. 805, 814, 83 A.3d 1206, cert.
denied, 311 Conn. 932, 87 A.3d 581 (2014).
We have reviewed the record in its entirety and find
that at no time did the defendant put the trial court on
notice of the alleged error now claimed on appeal. The
record demonstrates that the defendant’s request to
charge did not include the specific language that ‘‘the
out-of-court identification procedure was not substan-
tive evidence of guilt because of its suggestiveness.’’
Although defense counsel objected to the court’s pro-
posed jury charge regarding the ‘‘identification of the
defendant,’’ he merely referred the court to the language
in the defendant’s request to charge, which did not
address whether the jury should be permitted to use
the out-of-court identification as substantive evidence
of the defendant’s guilt. ‘‘To permit [the defendant] to
raise a different ground on appeal than [that] raised
during trial would amount to trial by ambuscade, unfair
both to the trial court and to the [state]. . . . Inasmuch
as the defendant raises a claim on appeal different from
the one that he raised at trial, he is not entitled to review
of his claim.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Saunders,
114 Conn. App. 493, 504, 969 A.2d 868, cert. denied, 292
Conn. 917, 973 A.2d 1277 (2009). We therefore conclude
that the defendant’s claim has not been preserved for
our review.
II
The defendant’s final claim is that the trial court
abused its discretion in denying his request for a special
credibility instruction with respect to Jackson’s testi-
mony. The defendant contends that a special credibility
instruction was required because Jackson was either
an accomplice or a jailhouse informant. We disagree.
The following additional facts and procedural history
are necessary to our resolution of this claim. On Sep-
tember 29, 2014, the defendant submitted a request to
charge, stating in relevant part: ‘‘A witness who testified
in this case, [Jackson], is currently incarcerated and is
awaiting trial for some crimes other than the crime
involved in this case. At the time this witness first pro-
vided information to the police, he was also incarcer-
ated and awaiting trial for some crimes other than the
crime involved in this case. You should look with partic-
ular care at the testimony of this witness and scrutinize
it very carefully before you accept it. You should con-
sider the credibility of this witness in the light of any
motive for testifying falsely and inculpating the
accused.’’
On October 3, 2014, the court denied the defendant’s
request to provide a special credibility instruction to
the jury regarding Jackson, stating: ‘‘I . . . think that
this is a case that’s so completely removed from infor-
mant . . . if you believe this witness, he’s sitting right
next to someone who’s shot dead multiple times at very
close range. He is as close an eyewitness as I’ve ever
seen in any murder. Whether he’s reliable and whether
his identification is solid, that’s a question for [the jury].
But this man had a front row seat to this whole thing,
if you believe him. And so I don’t find him to be an
informant in that sense. He’s an eyewitness with bag-
gage, [which] is perhaps a better characterization of
him, and whether that baggage is sufficient to sink his
credibility [is] a question for the jury. . . . I’m not going
to give the [requested] informant instruction for
those reasons.’’
We turn to the legal principles that guide our review
of the defendant’s claim. ‘‘It is a well established princi-
ple that a defendant is entitled to have the jury correctly
and adequately instructed on the pertinent principles
of substantive law. . . . The primary purpose of the
charge to the jury is to assist [it] in applying the law
correctly to the facts which [it] find[s] to be estab-
lished.’’ (Citations omitted; internal quotation marks
omitted.) State v. Ortiz, 252 Conn. 533, 560–61, 747 A.2d
487 (2000). ‘‘[T]he test of a court’s charge is not whether
it is as accurate upon legal principles as the opinions
of a court of last resort but whether it fairly presents
the case to the jury in such a way that injustice is not
done to either party under the established rules of law.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper.’’ (Internal quotation marks omitted.) State v.
Bialowas, 178 Conn. App. 179, 187–88, 174 A.3d 853
(2017).
‘‘Generally, a [criminal] defendant is not entitled to
an instruction singling out any of the state’s witnesses
and highlighting his or her possible motive for testifying
falsely.’’ State v. Ortiz, supra, 252 Conn. 561; accord
State v. Colon, 272 Conn. 106, 227, 864 A.2d 666 (2004),
cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d
116 (2005). Our Supreme Court has recognized three
exceptions to this general rule, including the accom-
plice exception and the jailhouse informant exception.
See State v. Diaz, 302 Conn. 93, 101–102, 25 A.3d 594
(2011). Neither the accomplice nor the jailhouse infor-
mant exception is applicable in this case.
A
The defendant claims that the court was required to
provide an accomplice credibility instruction to the jury
regarding Jackson’s testimony. Specifically, the defen-
dant contends that the jury could have concluded that
Jackson was involved in the shooting due to his pres-
ence and subsequent flight from the crime scene; and
because he displayed concern over being suspected as
the culprit.
‘‘[When] it is warranted by the evidence, it is the
court’s duty to caution the jury to scrutinize carefully
the testimony if the jury finds that the witness intention-
ally assisted in the commission, or if [he] assisted or
aided or abetted in the commission, of the offense with
which the defendant is charged. . . . [I]n order for one
to be an accomplice there must be mutuality of intent
and community of unlawful purpose.’’ (Internal quota-
tion marks omitted.) State v. Jamison, 320 Conn. 589,
597–98, 134 A.3d 560 (2016); see also State v. Gentile,
75 Conn. App. 839, 855, 818 A.2d 88 (‘‘[t]he court’s duty
to so charge is implicated only where the trial court
has before it sufficient evidence to make a determina-
tion that there is evidence that the witness was in fact an
accomplice’’ [internal quotation marks omitted]), cert.
denied, 263 Conn. 926, 823 A.2d 1218 (2003).
In the present case, there was no basis in the record
for the jury to reasonably conclude that Jackson was
involved in the murder of the victim. The jury could
have reasonably found the following additional facts.
Jackson and the victim had known each other for eight
or nine years. Jackson was very close friends with the
victim and described him as a ‘‘big brother.’’ On the
morning of the murder, they talked about ‘‘getting out
of the hood’’ and had planned on driving to New Haven
to fill out applications at Gateway Community College.
Jackson pleaded with the defendant to stop shooting
at the victim. The evidence adduced at trial simply did
not warrant an accomplice instruction. We therefore
conclude that the court did not abuse its discretion in
denying the defendant’s request for an accomplice
instruction.
B
The defendant also claims that the court was required
to provide a special credibility instruction to the jury
regarding Jackson’s testimony because he was ‘‘akin to
a jailhouse informant.’’ The defendant contends that
this exception is applicable because Jackson attempted
to negotiate the detectives’ assistance prior to identi-
fying the defendant.
Our Supreme Court adopted the jailhouse informant
exception in State v. Patterson, 276 Conn. 452, 886 A.2d
777 (2005), holding that a special credibility instruction
is required in situations where a prison inmate ‘‘has
been promised a benefit by the state in return for his
or her testimony’’ regarding incriminating statements
made by a fellow inmate. Id., 469; see also State v. Diaz,
supra, 302 Conn. 102 (‘‘a jailhouse informant is a prison
inmate who has testified about confessions or inculpa-
tory statements made to him by a fellow inmate’’). In
Diaz, our Supreme Court declined to interpret its deci-
sion in Patterson as ‘‘[requiring] a special credibility
instruction when an incarcerated witness has testified
concerning events surrounding the crime that [he] wit-
nessed outside of prison’’; State v. Diaz, supra, 102;
reasoning that such an exception ‘‘would swallow the
rule that the trial court generally is not required to give
such an instruction for the state’s witnesses.’’ Id., 110.
Instead, when the ‘‘jury [is] aware of the [nonjailhouse
informant] witness’ involvement in the criminal justice
system and their expectations that they would receive
consideration in exchange for their testimony,’’ a gen-
eral credibility instruction is sufficient. Id., 103.
Jackson testified at trial regarding events that he
personally witnessed from his ‘‘front row seat.’’ There-
fore, the defendant’s claim is controlled by Diaz and
fails accordingly. See State v. Jackson, 159 Conn. App.
670, 673–75, 123 A.3d 1244 (2015) (jailhouse informant
instruction inapplicable where ‘‘incarcerated witness
receive[d] a benefit from the state in exchange for testi-
mony regarding a crime [he claimed to have] personally
observed prior to his incarceration’’), cert. granted on
other grounds, 325 Conn. 917, 163 A.3d 617 (2017); State
v. Carattini, 142 Conn. App. 516, 523–24, 73 A.3d 733
(jailhouse informant instruction inapplicable where
witness testified regarding ‘‘observations and recollec-
tions of the events surrounding the murder’’), cert.
denied, 309 Conn. 912, 69 A.3d 308 (2013). Moreover, the
court, in its charge to the jury, gave a general credibility
instruction regarding the testimony of witnesses. In that
instruction, the jury was told to consider if ‘‘the witness
[had] an interest in the outcome of the case, or any
bias or prejudice concerning any party or any matter
involved in this case’’ and to ‘‘evaluate the testimony
of all witnesses by [the jury’s] own knowledge of human
nature and of the motives that influence and control
human actions.’’ See State v. Ebron, 292 Conn. 656, 675,
975 A.2d 17 (2009), overruled on other grounds by State
v. Kitchens, supra, 299 Conn. 472–73; State v. Carattini,
supra, 525–27. We therefore conclude that the court
did not abuse its discretion in denying the defendant’s
request for a jailhouse informant instruction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant is also known by his street name, ‘‘Sleep’’ or ‘‘Sleepy.’’
2
On the day of the murder, Detective Robert Winkler reviewed surveil-
lance footage from cameras posted by the Bridgeport Police Department
at three intersections along Stratford Avenue. The defendant emerged from
an apartment at the intersection of Stratford and Hollister Avenues at approx-
imately 7 a.m. The defendant walked west on Stratford Avenue, in the
direction of Sixth Street, while using his cell phone. The defendant had
something white draped over his shoulder and his dominant right hand was
positioned in a way that suggested he was carrying a concealed weapon.
At 7:22 a.m., minutes prior to the shooting, the camera posted at the intersec-
tion of Stratford and Newfield Avenues captured the defendant at the corner
of Stratford and Bunnell walking in the direction of Sixth Street. The shooting
was not captured on video as there was no camera focused on that area of
Sixth Street. At 7:27 a.m., the defendant emerged from the empty lot on the
corner of Bunnell and Stratford without the white item. The defendant
continued eastbound on Stratford Avenue, at times running, repeatedly
looking back in the direction of Sixth Street.
3
In the defendant’s arrest warrant, Detective Robert Winkler stated that
an anonymous witness was shown the surveillance video and ‘‘immediately
. . . identified ‘Sleepy’ as the individual.’’
4
Winkler testified that prior to the interview, he knew that Jackson was
the victim’s friend and was sitting in the passenger seat of the victim’s car
at the time of the homicide. He further testified that he ‘‘was quite confident
that [Jackson] was familiar with the [defendant], just reluctant to give [him]
specific details.’’
5
The defendant also asks this court to consider whether his state constitu-
tional rights provide him greater protection. We decline to review the defen-
dant’s state constitutional claim because it is inadequately briefed. The
defendant allots two paragraphs of his brief to this claim, which provides
no substantive analysis in support of his claim. This court is ‘‘not required
to review issues that have been improperly presented . . . through an inade-
quate brief. . . . Analysis, rather than mere abstract assertion, is required
in order to avoid abandoning an issue by failure to brief the issue properly.
. . . Where a claim is asserted in the statement of issues but thereafter
receives only cursory attention in the brief without substantive discussion
or citation of authorities, it is deemed to be abandoned.’’ (Internal quotation
marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Because the defendant’s
state constitutional claim is inadequately briefed, we decline to address it.
6
On appeal, the state has not challenged the trial court’s finding with
respect to the suggestiveness of the out-of-court identification.
7
The defendant also asks this court to extend our Supreme Court’s holding
in State v. Dickson, 322 Conn. 410, 141 A.3d 810 (2016), cert. denied,
U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017), to disallow in-court
identifications in situations ‘‘when the out-of-court identification procedure
is unnecessarily suggestive and either suppressed or the prosecution
declines to offer it as evidence, and there is a factual dispute about the
witness’ ability to identify the defendant.’’ The state contends that ‘‘Dickson
itself . . . rejects such an extension.’’ We agree with the state. In effect,
the defendant asks us to overrule Supreme Court precedent. However, ‘‘[i]t
is not within our function as an intermediate appellate court to overrule
Supreme Court authority.’’ (Internal quotation marks omitted.) State v.
Holmes, 59 Conn. App. 484, 487–88, 757 A.2d 639 (2000), aff’d, 257 Conn.
248, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L.
Ed. 2d 229 (2002). In Dickson, our Supreme Court narrowly held that ‘‘in
cases in which identity is an issue, in-court identifications that are not
preceded by a successful identification in a nonsuggestive identification
procedure implicate due process principles and, therefore, must be pre-
screened by the trial court.’’ (Footnote omitted.) State v. Dickson, supra,
415. The Dickson court recognized that ‘‘[a] different standard applies when
the defendant contends that an in-court identification followed an unduly
suggestive pretrial identification procedure that was conducted by a state
actor. In such cases, both the initial identification and the in-court identifica-
tion may be excluded if the improper procedure created a substantial likeli-
hood of misidentification.’’ (Emphasis added.) Id., 420; see also id., 447 n.31.
That ‘‘different standard’’ is applicable here and, therefore, is the standard
that we will apply in analyzing the defendant’s claim.
8
The caller described the gunman as being ‘‘very tall,’’ wearing all black
and having a black and white bandana covering his face.
9
Additionally, although Jackson did not come forward with information
voluntarily, the court properly viewed these facts under the totality of the
circumstances, given the unwillingness of neighborhood residents to provide
information or testimony for fear of being labeled as a ‘‘snitch.’’ The court
itself noted that ‘‘[it understood] how difficult it is to get people to testify
in inner city homicides.’’ Jackson testified that being known on the street
as a snitch was not a good reputation to have. The court also heard testimony
from the 911 caller that his aunt told him to ‘‘shut up’’ in Spanish while he
was speaking to the 911 operator, and that she was not supportive of his
speaking to police. Bridgeport Police Officer Ilidio Pereira, the initial officer
to arrive on scene, testified that he was not ‘‘successful in locating anyone
who [wanted to provide] information about a suspect’’ and that ‘‘it didn’t
look like anyone wanted to talk to [him] because they quickly walked away.’’
This was not uncommon in Pereira’s experience as an officer, because people
‘‘don’t want to be known as a . . . [snitch], someone that’s cooperating
with law enforcement to . . . apprehend the suspect of a crime.’’
10
The defendant has not requested review as to this claim under State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Accordingly, we need not
determine if these claims have been waived pursuant to State v. Kitchens,
supra, 299 Conn. 447. See State v. Hall-Davis, 177 Conn. App. 211, 240, 172
A.3d 222 (2017) (‘‘[i]t is well established in Connecticut that unpreserved
claims of improper jury instructions are reviewable under Golding unless
they have been induced or implicitly waived’’ [internal quotation marks
omitted]).
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01-03-2023
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02-09-2018
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https://www.courtlistener.com/api/rest/v3/opinions/3837875/
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Action by the Columbia Digger Sand Gravel Company against the Ross Island Sand Gravel Company. Judgment for plaintiff, and defendant appeals.
REVERSED. REHEARING DENIED.
This is an action for damages arising out of an alleged breach of a contract. The contract is set forth as exhibit A to the complaint. The gravamen of plaintiff's complaint is that, said contract being in full force and effect, the defendant failed to give and allot to plaintiff 50 per cent of its truck hauling of sand, gravel and fill material under the contract; that the shortage during the time the contract was in force was 10,853 yards and by reason thereof plaintiff was damaged by loss of profit it would have made from such additional hauling, to which it was entitled under the contract. The larger amount mentioned as damages in the original complaint was reduced by plaintiff to $2,400. The cause was tried to the court and a jury and a verdict was rendered in favor of plaintiff for the amount demanded, for which judgment was entered. At the close of plaintiff's testimony in chief defendant moved for a nonsuit, and at the termination of all the *Page 98
evidence defendant moved for a directed verdict in its favor. Defendant appeals and assigns error upon the refusal of the motions.
The history of the controversy is about as follows: Prior to and in 1928, many different corporations, partnerships and individuals were engaged separately in the sand and gravel business in Portland, Oregon. Prior to the contracts several of these corporations united their interests in a general sales plan for the mutual benefit of each associate member, whereby the Central Sand Gravel Company, called herein the Central Sand, was organized. The constituent members of this organization were Hackett Digger Company, Hawthorne Dock Company, Columbia Truck Company, Pacific Bridge Company, Nickum Kelly, James A.C. Tait Company, Star Sand Company, and the Ross Island Sand Gravel Company, called Ross Island herein. Some independent operators did not join the Central Sand at the time of its organization. Plaintiff in this case, the Columbia Digger Sand Gravel Company, called herein Columbia Digger, was in the sand and gravel business, but when it entered into the contract set forth as exhibit A it retired from such business for a certain time, as by the terms of that agreement. The contract between the Ross Island and the Central Sand, which was similar to the contracts of the other associate members, was attached to the complaint as exhibit B. These contracts were executed July 21, 1928. By the terms of the contract, exhibit B, Ross Island was to be awarded 21 per cent of the sand and gravel truck deliveries of the Central Sand, and, under the terms of exhibit A, the Columbia Digger, the plaintiff, was to have 50 per cent of the Ross Island's truck hauling of sand, gravel and fill material. *Page 99
Plaintiff claims that the Ross Island, the defendant, failed to deliver to it the 50 per cent quota of the 21 per cent of the truck hauling which Ross Island was awarded under these contracts.
The complaint alleges the corporate character of plaintiff and defendant, the executions of exhibits A and B, and asserts that the contracts were breached by defendant's refusal to deliver the 10,853.06 yards of truck hauling as required in said written contract, to plaintiff's damage. The answer admits the formal allegation of incorporation, the execution of the contracts, and denies the other allegations of the complaint, including the breach of the contract, the failure of defendant to deliver the allotted yardage, as claimed by plaintiff, and the damage. The answer then affirmatively alleges that, by the contract upon which the complaint is based, the plaintiff agreed at all times during the life thereof to keep and have available and in good repair automobile trucks of proper size and sufficient number, properly and promptly to make all deliveries as called for by the defendant; that while the contract, exhibit A, was in force, the Central Sand sold to Readymix Concrete Company, another corporation, certain sand and gravel, and allotted to defendant the delivering thereof; that such sales to Readymix Concrete Company were delivered at the Ross Island bunkers without truck deliveries; that the defendant allotted to plaintiff and plaintiff did more than 50 per cent of all defendant's available truck hauling of sand, gravel and fill material during the life of the contract and was paid in full therefor. The answer also alleges that plaintiff wrongfully claims and bases his cause of action upon the theory that the truck hauling of mixed concrete made by Readymix Concrete Company *Page 100
from the sand and gravel delivered to Readymix Concrete Company by defendant, which deliveries were made from plants of the Readymix Concrete Company to its own customers, should have been taken into consideration by defendant in arriving at the available truck hauling within said period and that during such period plaintiff was given opportunity to haul and there was offered to plaintiff for hauling 50 per cent of the available truck hauling of defendant, and also 50 per cent of the truck hauling of the Readymix Concrete Company for the same period. Defendant does not allege that 50 per cent of the Readymix Concrete Company truck hauling was offered to plaintiff by defendant, but that plaintiff failed and refused to do more than a small portion of the Readymix Concrete Company's hauling for such period and failed and refused to keep and have available and in good repair automobile trucks of proper size and of sufficient number, properly and promptly to do such truck hauling.
Plaintiff's reply alleges that exhibit A was entered into in furtherance of a general plan for the organization of Central Sand, as before stated; that Central Sand was the managing unit of the plan whereby its constituent members participated in a share of the sand and gravel business of Portland; that that contract was a part of the general plan, and one of the principal considerations from the plaintiff to defendant was the fact that plaintiff retired from the sand and gravel business for a period of not more than five years, or for such period as the Central Sand contract with defendant was in force; that when plaintiff and defendant executed exhibit A there were three methods of delivering sand, gravel and fill material, to wit: (1) by loading barges; (2) by loading on railroad cars; *Page 101
(3) by truck delivery, of which plaintiff was to have 50 per cent; that both parties entered into the contract on the assumption that all sand and gravel would be delivered in one of three ways and thereby plaintiff would receive substantially the same profits which it theretofore had made before making said agreement. The reply then alleges that the order for sand and gravel from Readymix Concrete Company was secured for Central Sand by defendant and allotted to defendant by Central Sand at its option, instance and request; that said Readymix Concrete Company was organized soon after the execution of exhibit A and was owned by the managing officer or officers of Ross Island and was a subsidiary thereof; that the Readymix Concrete Company was not a consumer but a dealer, and that Readymix Concrete Company merely mixed sand and gravel with water and cement and thereafter delivered the same to the various retail customers throughout the city of Portland; that after Ross Island commenced making deliveries of sand and gravel to Readymix Concrete Company, plaintiff protested to defendant that such delivery, as well as the delivery of the Readymix Concrete Company product by Readymix Concrete Company to its own customers, was a breach of exhibit A; that the claim was made in good faith and plaintiff threatened defendant with legal proceedings by reason thereof and made claim that the action of defendant constituted a breach by defendant of exhibit A, so as to release plaintiff from any further compliance therewith; that in settlement of said claim and said threatened litigation and to induce plaintiff to continue with its agreement and to secure a waiver and relinquishment by plaintiff of its damage claim, defendant *Page 102
"agreed that the sand, gravel and fill material delivered by it to the Readymix Concrete Company and in turn delivered by the Readymix Concrete Company, after being mixed with cement and water, was within the purview of the contract between plaintiff and defendant with respect to all sand, gravel and/or fill material contained in the product of the Readymix Concrete Company, and the defendant further agreed that it would as a part of its aforesaid contract with plaintiff and in compliance with the terms thereof secure for the plaintiff the hauling of sand, gravel and materials delivered by defendant to said Readymix Concrete Company, and that the defendant would pay plaintiff for the hauling of said sand, gravel and fill materials included in the products of the Readymix Concrete Company at the same rate provided for the hauling thereof in the aforementioned contract referred to as exhibit A, with an additional undertaking on the part of the defendant for the reimbursement of plaintiff for that portion of the Readymix product consisting of cement and water which the plaintiff was required to haul in addition to the sand, gravel and fill materials; and defendant further agreed in consideration thereof that it would secure for plaintiff the special trucks necessary to haul said products of the Readymix Concrete Company at a rental of $3 per hour, and that the sand, gravel and/or fill material contained in the product of the Readymix Concrete Company was to be considered as a part of the hauling of the plaintiff under said contract, exhibit A, and that subject to the provisions hereinbefore set forth said contract was to, and did remain in full force and effect until May 2, 1931".
The reply further alleges that plaintiff accepted the aforesaid modifications and supplement to the said contract as shown in exhibit A, and, apparently supplying an allegation which was omitted from the complaint in the reply, alleges that plaintiff was ready, willing and able to perform the conditions thereof and *Page 103
to pay the truck rental and to supply any and all trucks to do the hauling specified; that payment for such hauling was made by defendant whether hauled alone or part of the Readymix products and the surplus of cement and water was paid for otherwise, through arrangements made by defendant; "that defendant failed and refused to keep its said contract, exhibit A, and failed and refused to secure a sufficient amount of the hauling of sand, gravel and fill material, or of the sand, gravel and fill materials contained in the products of the Readymix Concrete Company to bring its business up to the 50 per cent of the truck hauling to which plaintiff was entitled under said contract, known as exhibit A, as supplemented by defendant. That the profits which would have accrued to plaintiff for the hauling of sand, gravel or fill material, whether hauled alone or hauled as a part of the product of the Readymix Concrete Company was substantially the same under the arrangement as hereinbefore set forth".
The allegation in defendant's answer, that plaintiff agreed at all times during the life of the contract to keep and have available and in good repair automobile trucks of proper size and sufficient in number to properly and promptly make all deliveries as called for by defendant herein, is admitted by plaintiff in its reply, but it further alleges that the contract, exhibit A, was entered into in furtherance of the general plan of dividing the business between most of the larger producers, as detailed.
The reply admits the allegation of the answer to the effect that the Central Sand sold to Readymix Concrete Company sand and gravel and allotted to this defendant the delivery thereof and that the places to *Page 104
which the sand and gravel thus sold were deliverable were located immediately adjoining the bunkers of this defendant and such deliveries were made by this defendant to said Readymix Concrete Company without any truck hauling. It, therefore, seems that the parties agreed that the sand and gravel which Ross Island delivered at the Readymix Concrete Company were delivered at the bunkers without any truck hauling. Therefore, as far as plaintiff's claim relates to Readymix, such claim relates to delivering of Readymix products by Readymix Concrete Company to its own customers. This is the crux of this case. Turning to the contract, exhibit A, wherein the plaintiff is designated as the "Trucker", and the defendant is designated as the "Gravel Co.", it is agreed that "the Trucker shall have and be given and allotted by the Gravel Co. fifty per cent (50%) of the Gravel Co.'s truck hauling of sand, gravel and fill material, under the aforesaid contract between the Gravel Co. and the said Central Sand Gravel Co.". Therefore, it is plain that the defendant agreed to allot to the plaintiff a portion of the gravel company's truck hauling and that the contract did not embrace or refer to the hauling of any other company or concern.
The Readymix Concrete Company placed their bunkers close to the Ross Island bunkers. Defendant alleges in its answer that the places to "which the sand and gravel thus sold were deliverable were located immediately adjoining the bunkers of this defendant and such deliveries were made by this defendant to said Readymix Concrete Company without any truck hauling". Plaintiff admitted this in its reply. There is nothing in either of the contracts, exhibits A or B, to prevent Ross Island from delivering sand and gravel *Page 105
from its bunkers to any one and receiving pay therefor, without having anything to do with hauling it away. It was only a certain per cent of the truck hauling of the Ross Island which defendant agreed to furnish plaintiff and not a certain per cent of the sand and gravel which it delivered or sold through the Central Sand.
This, it will be noticed, is sought to be remedied by plaintiff by alleging that there was a supplemental agreement or adjustment, as it is practically admitted that the defendant was awarded 56 per cent of all the other hauling of the gravel company. Not counting the Readymix product, it will be seen at once that the controversy pertains to the Readymix product, which was delivered by the defendant to the Readymix Concrete Company at its bunkers. After delivery it was the hauling of the Readymix Concrete Company and not the hauling of the Ross Island.
After the charge to the jury, counsel for plaintiff stated that "plaintiff's theory is that a new situation had arisen and that there was a readjustment. * * *" Plaintiff sought recovery upon the supplemental contract and not upon the original contract.
Defendant assigns error of the court in entering judgment against defendant because the plaintiff's complaint herein is insufficient for the reason that one seeking to recover on a contract by another's failure to perform must allege and prove that he himself has performed the contract. Lewis v. Siegman,135 Or. 660, 664 (296 P. 51, 297 P. 1118). The case seems to have progressed beyond this point. The allegation is found in the reply which was suggested by the matter set forth in the answer, and we think, that being the case, the complaint was sufficient in that the defect or omission in the complaint was cured by the answer and *Page 106
reply. Turner v. Corbett, 9 Or. 79; Catlin v. Jones, 48 Or. 158
(85 P. 515).
Defendant assigns that the court erred in receiving the verdict of the jury and entering judgment thereon because the jury did not follow the court's instructions. Plaintiff seeks recovery for loss of profits for defendant's failure to deliver it the full quota of 50 per cent of defendant's sand and gravel truck hauling under the written contract, and the defendant alleges and proves, outside of the Readymix product, that plaintiff was allotted more than 50 per cent of defendant's available truck hauling of sand and gravel and was fully paid therefor.
The court further charged the jury:
"That in and by the terms of the contract plaintiff herein agreed to at all times during the life thereof keep and have available and in good repair automobile trucks of proper size and sufficient in number to properly and promptly make all deliveries as called for by the defendant herein. Now that is a duty which rested upon the plaintiff, and the plaintiff alleges that it has fully performed all the duties by it to be performed, and if you should find that the plaintiff did not provide these sufficient trucks, as is alleged, then of course the plaintiff could not prevail and your verdict should be for the defendant."
Again, the court charged the jury as follows:
"Now we have here a grievance that was instituted by the Columbia Digger Sand and Gravel Company as plaintiff, and it asserts a grievance against another corporation known as the Ross Island Sand Gravel Company. When we resort to the formal statement presented by the plaintiff we find that its grievance is based upon an alleged breach of a contract, a written contract. The plaintiff, the Columbia Digger Sand and Gravel Company, asserts and alleges here that on July 21st, 1928, it entered into a contract with the defendant, *Page 107
the Ross Island Sand Gravel Company, which contract is attached to its complaint, and it asserts that by virtue of that contract a certain duty arose on the part of the defendant Ross Island Sand Gravel Company to it, the plaintiff, and that the defendant breached that duty. That is the core of the controversy.
"The contract between these corporations sets out the respective duties one to the other, and it is to this contract and to this contract alone that we resort to find out what the parties themselves have recognized as the duty of one to the other. * * *"
The court recited the allegations in regard to the modification of the contract, but the question as to whether the supplemental contract or adjustment was made by and between the plaintiff and defendant was not submitted to the jury or asserted by the court. The instructions are based wholly upon the written contract. The Readymix Concrete Company was organized and operated by Harold Blake. Mr. Blake also owned another corporation, known as the Pacific Building Materials Company, and the arrangement in regard to the defendant's hauling the Readymix product was made with Mr. Blake. The plaintiff asserts that Blake was acting for the Ross Island. If we were to pass upon the facts, we should be compelled to say that the testimony does not show that he was acting for the Ross Island, but was acting for the Readymix Concrete Company, and the testimony indicates that he was willing to have the plaintiff haul Readymix for the Readymix Concrete Company; that at first the trucks which were used were not suitable and the material would stick in the truck and caused great expense. Defendant hauled for about four months, and, on account of the deficient revenue, ceased to haul *Page 108
for eleven months. After trying what is called a "bathtub" style of truck, which was not a success, Blake's company, the Pacific Building Materials Company, at an expense of about eight to ten thousand dollars, constructed a revolving type of truck so that the material — sand, gravel, cement and water — could be mixed as it was moved from the bunkers of the Readymix Concrete Company to the contractor. Plaintiff hauled Readymix with a truck of Blake's company, at a rental of $3 per hour. Mr. E.E. Crout, president of the plaintiff corporation, testified that he paid out more rent for trucks at $3 per hour than he received; that he did not have any equipment to deliver from the Ross Island; that he got it from Pacific Building Materials Company, one of Blake's companies. The defendant was not interested in the Readymix product. It had delivered its sand and gravel to the Readymix Concrete Company and its interest therein appears to have ceased, except for some slight testimony which is in the nature of a conclusion, to the effect that Blake was acting for the Ross Island. The testimony indicates that the officers of defendant were anxious to placate plaintiff and secure hauling for it from the Readymix Concrete Company in order to keep the Central Sand organization intact, but it does not indicate that the Readymix product was comprehended within the written contract. It came into the picture about a year after the contract was made.
The instructions given by the court to the jury to the effect that plaintiff could recover upon the written contract alone should have been followed by the jury, and a verdict contrary to such instructions is erroneous. It is settled law that the charge of the court to the jury, without objections or exceptions thereto, *Page 109
whether right or wrong, becomes the law of the case. 20 R.C.L. 272, § 55; Tou Velle v. Farm Bureau Co-op. Exchange, 112 Or. 476
(229 P. 83, 229 P. 1103); Western Mont. Nat. Bank v. HomeIns. Co., 75 Mont. 16 (241 P. 611); Cooper v. Girdler, 239 Ky. 565
(39 S.W.2d 1009); Copeland v. Benson Hdwe. Co., 24 Ala. App. 127
(131 So. 1).
The testimony in the case did not sustain a verdict under the instructions of the court. Bridenstine v. Gerlinger MotorCar Co., 86 Or. 411 (168 P. 73, 922); Hughes v. Holman,110 Or. 415 (223 P. 730, 31 A.L.R. 1108).
Defendant predicates error upon the charge of the court leaving the question to the jury as to whether this Readymix was within the contract for the reason that it leaves the construction of the contract to the jury and not to the court. The construction of a written contract is for the court, and should not devolve upon the jury. § 9-214, Oregon Code 1930;Henry v. Harker, 61 Or. 276 (118 P. 205, 122 P. 298); City ofSeaside v. Randles, 92 Or. 650 (180 P. 319); Rose v. U.S. Lbr. Box Co., 108 Or. 237 (215 P. 171); Wallace v. American LifeIns. Co., 111 Or. 510 (225 P. 192, 227 P. 465).
We think it would have been appropriate for the court to have instructed the jury that the hauling of Readymix was not embraced in or provided for in the written contract, and that in order for the jury to find that defendant breached its contract for hauling the Readymix product for the Readymix Concrete Company they must first find that the plaintiff and defendant entered into a contract for the hauling of Readymix by plaintiff for the Ross Island, or, in other words, the question of whether the written contract was subsequently modified or a supplemental contract *Page 110
was entered into by the parties should have been presented to the jury. Plaintiff in its reply pleaded that there was a modification of the contract, exhibit A, and that plaintiff accepted the modification and supplement to said contract. Plaintiff now contends that the gist of its reply is that the parties had interpreted the contract in a certain way. With this contention we are unable to agree.
Plaintiff's secretary and treasurer, O.F. Borsian, testified as a witness on direct examination, as follows:
"Q. Just state what the controversy was that arose between plaintiff and defendant with reference to this Ready-Mix product and the delivery of it.
"A. Well, they were pioneers of Ready-Mix. We tried to haul the Ready-Mix in steel boxes and it would not come out; we had to take a pick and shovel and dig it out. Of course, we couldn't deliver it in our regular steel boxes so then Mr. Blake got a bathtub type. They were not much better, and later on he got the revolving type and I guess they are a success.
"Q. Well, now, did you have — what I am asking you, did you have any controversy with the Ross Island — when I say `you' I mean the Columbia Digger Sand Gravel Company — with reference to your right of hauling this sand and gravel that was in the Ready-Mix Concrete Company product?
"A. No, sir."
Plaintiff does not now claim that it was equipped with its own equipment to haul the Readymix product, although it claims that such product was within the terms of the original contract. Mr. E.E. Crout, plaintiff's president, as a witness, testified on cross-examination as follows:
"Q. Did you ever have any equipment of your own to deliver Readymix?
"A. No, sir. *Page 111
"Q. You said at one time that the Ross Island Sand Gravel Company furnished you equipment. Do you stand by that?
"A. Mr. Blake.
"Q. Will you stand by your statement?
"A. I don't think I made that statement.
"Q. Did you ever get any equipment to deliver from the Ross Island?
"A. No, sir.
"Q. Did they have any such agreement?
"A. Not to my knowledge.
"Q. From where did you get the equipment?
"A. From the Pacific Building Materials Company.
"Q. Mr. Blake's company?
"A. One of Mr. Blake's companies."
Blake's testimony of the circumstances in regard to the leasing of the trucks to haul Readymix is not attempted to be denied by Mr. Crout. Mr. Blake said he made the arrangements on behalf of his own companies, to wit: Readymix Concrete Company and Pacific Building Materials Company. Blake asserts he did not represent Ross Island and had no authority to do so in these transactions and every officer of Ross Island swears that the Ross Island made no agreement with plaintiff whatever relative to furnishing trucks under the alleged modification, as set forth in the reply. It appears without contradiction that Ross Island had no trucks for hauling sand and gravel or Readymix, and was in no way interested in hauling the Readymix product for the Readymix Concrete Company. The claim of plaintiff in regard to hauling Readymix for defendant seems to be a kind of synthetic hauling.
Not taking into consideration the Readymix product, it is admitted that the defendant awarded plaintiff 56 per cent of its truck hauling and paid therefor. No *Page 112
controversy whatever seems to have arisen between plaintiff and defendant until the Readymix concrete came into existence. The Readymix Concrete Company was an independent company, organized by Mr. Blake, but the pleadings charge no fraud in the organization, and the court instructed the jury:
"The Readymix Company is an Oregon corporation. It is the same as if it were named John Jones. It is an entirely different entity. There may be personalities, there may be individuals in one company or in both companies, but in so far as we are trying this case the Readymix Company is an entirely different personality. It is known as the Readymix Concrete Company. Now the Ross Island Company says that the Central Company sold to this Readymix Concrete Company sand and gravel and allotted to the defendant the delivery, but such delivery by the Ross Island Sand Gravel Company was made without truck delivery. That is its contention. That is the first thing that is set forth in the defendant's separate answer: That the Central Company sold to this third corporation known as the Readymix Concrete Company sand and gravel, and that the delivery of it was allotted to the defendant, but that such delivery was to be made without truck delivery."
The Readymix Concrete Company not being in existence when the contracts, exhibits A and B, were executed, it is quite plain that its business transactions were not within the contemplation of the parties to the two contracts. Under the court's instructions the jury was limited to the consideration of plaintiff's rights under the original contract, exhibit A. It is practically uncontradicted that defendant performed that contract, unless Readymix was embraced therein.
The record shows that the jury awarded damages to plaintiff for profits for the eleven months during *Page 113
which time plaintiff did not haul or attempt to haul any Readymix. Mr. Crout estimates the profit on Readymix at 20 cents per cubic yard. The verdict awards a larger sum.
The admissions made by a party to a legal controversy stand upon a different footing from those made by an ordinary witness. The officers of the defendant corporation represent the corporation. The admissions by a party made intelligently are judicial admissions which are binding upon the court and the parties, and the jury and the court should take them as true. 22 C.J. 329, § 370; Connor v. Lake Shore M.S. Ry. Co., 168 Mich. 29
(133 N.W. 1003); Cogan v. Cass Ave. F.G. Ry. Co.,101 Mo. App. 179 (73 S.W. 738).
It follows that the judgment of the circuit court must be reversed. The cause will be remanded for such further proceedings as may be deemed appropriate, not inconsistent with this opinion.
RAND, C.J., CAMPBELL and BAILEY, JJ., concur. *Page 114
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07-06-2016
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The plaintiffs in error, hereinafter called the defendants, were convicted of having possession of intoxicating liquor, to wit, whisky, and were each sentenced to pay a fine of $100 and serve 30 days in the county jail. From the judgment the defendants have appealed to this court.
The petition in error, with case-made attached, was filed in this court on February 14, 1929. No brief has been filed in support of the errors assigned, nor has there been any personal appearance for the defendant or oral argument submitted in support of their assignments.
The record in this case has been carefully examined, and we find the information was sufficient to charge an offense; that the testimony is sufficient to show the defendants guilty; and that the defendants were accorded a fair and impartial trial. *Page 14
Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523120/
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04/07/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 24, 2020
STATE OF TENNESSEE v. STEPHEN DAMIAN LEDET
Appeal from the Circuit Court for Anderson County
No. B6C00174 Donald Ray Elledge, Judge
___________________________________
No. E2019-00909-CCA-R3-CD
___________________________________
Stephen Damian Ledet, Defendant, was convicted by a jury of possession of a Schedule
II controlled substance for resale and tampering with evidence. On appeal, Defendant
claims the evidence was insufficient to sustain the convictions. After review of the
record and briefs, we affirm the convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.
Stephanie M. Jernigan, Maryville, Tennessee, for the appellant, Stephen Damian Ledet.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Dave S. Clark, District Attorney General; and Anthony
Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Jury Trial
Oak Ridge Police Department (ORPD) Officer Timothy Allen Buckner testified
that on April 13, 2016, he was on patrol when he saw a vehicle with the passenger-side
brake light “busted off.” He said the lamp “illuminated white from the rear of the
vehicle.” Officer Buckner initiated a stop. He advised Defendant, who was the driver,
why he stopped the vehicle and asked him for his driver’s license, registration, and proof
of insurance. He said that Defendant was visibly shaking as he reached for the
documents and would not make eye contact or speak to him. The passenger identified
herself as Anita Stevens. He said that he was concerned by Defendant’s conduct. He
returned to his patrol car and ran Defendant’s license through his data base.
Once backup arrived, Officer Buckner asked Defendant to exit the vehicle. He
asked Defendant “if there [was] anything illegal in the vehicle, most importantly weapons
and then went into narcotics.” When Defendant answered “no,” Officer Buckner asked
for permission to search, and Defendant consented. Officer Buckner radioed Officer Ray
Steakley and asked him “to bring his K-9 partner Bika on scene to do an exterior vehicle
sniff of the car.” He then spoke to Ms. Stevens through the passenger-side window. He
told her that Defendant said she had “narcotics on her.” Officer Buckner testified that
was not true and that Defendant never said that. He then “asked [Ms. Stevens] if she had
anything on or in her.” Ms. Stevens initially denied having any drugs. After the dog
alerted on the vehicle, she admitted she had drugs “in her.” Officer Buckner contacted
Officer Sandy Bell and asked her to come to the scene. Outside the presence of the male
officers, Officer Bell retrieved a silver cylinder from Ms. Stevens’ vagina and delivered it
to Officer Buckner. Officer Buckner examined the contents of the cylinder, which
contained four corner bags of a crystalline substance. Based on his training, he said that
the substance appeared to be crystal methamphetamine.
Officer Buckner took both individuals into custody and advised them of their
Miranda rights. Defendant asked Officer Buckner “if he took the charge, what would his
outcome be.” Defendant then stated that “he didn’t know she had [the
methamphetamine] on her and then he went back and said he did.” Officer Buckner said
that he told Defendant to not say the methamphetamine was his “just to help her out, [and
that he] want[ed] the honest truth about it.” Defendant was placed in Officer Buckner’s
patrol car and transported to the police station.
On cross-examination, Officer Buckner acknowledged that he “had previous
interactions with [D]efendant and Ms. Stevens[.]” Officer Buckner agreed that many of
the people he stops are nervous.
Officer Sandy Bell testified that she was called to the scene by Officer Buckner
because a female officer was required to perform a cavity search of a female. She said
that it was not uncommon for a female to hide drugs in her vagina. Once she retrieved
the silver cylinder, she turned it over to Officer Buckner.
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Lieutenant Matthew Tedford testified that he drove the evidence to the Tennessee
Bureau of Investigation (TBI) Crime Laboratory in Knoxville. TBI Special Agent Carl
Smith testified as an expert in forensic chemistry. He analyzed the evidence and
confirmed that “the crystalline substance” contained in four Ziploc corner bags was
methamphetamine and that the total weight was “two and a half grams.”
Anderson County Sheriff’s Department Deputy Simon Burn testified that he was
assigned to the Seventh District Drug Task Force. He said that methamphetamine is
often sold in the corners cut from Ziploc bags.
Ms. Stevens testified that she was dating Defendant at the time of her arrest. She
said that neither she nor Defendant was working at that time. She admitted that she had
three prior felony convictions. She said that she knew that Defendant had
methamphetamine in the car. She said that Defendant stated, “[T]here’s cops, shove this”
and handed her a metal container filled with methamphetamine. She knew Defendant
wanted her to put the container in her vagina. She said that she had hidden drugs like that
before. She said that the methamphetamine was for Defendant to sell and for their
personal use. She said they paid twenty dollars per one-tenth of a gram of
methamphetamine. She said Officer Buckner told her that Defendant had told him “that I
had something on me.” She said she thought Defendant “told on [her].” She continued
to deny that she had drugs in her possession until the dog alerted on the vehicle. She
said, “[T]here [wa]s no further point of me having them go through getting a court order
to take me to a hospital and have it removed from me.” When Officer Bell arrived, Ms.
Stevens retrieved the cylinder and handed it to her. Ms. Stevens was charged and pled
guilty without any “promise” as to her sentence. At the time of the trial, Ms. Stevens was
on probation and was going to college. She had no probation violations in the two and
one-half years since her arrest.
On cross-examination, Ms. Stevens said that she knew the container had
methamphetamine in it because she and Defendant had used methamphetamine from that
container that morning. She said that her relationship with Defendant ended “then and
there,” referring to the arrest. She spent 120 days in jail before she was released.
After a Momon hearing, Defendant elected not to testify. Defendant called his
father, Ronald Ledet. Ronald Ledet testified that he had legal issues with Ms. Stevens,
but the trial court did not allow Mr. Ledet to go into detail about those issues.
The jury convicted Defendant of possession of a Schedule II controlled substance
for resale (count one) and tampering with evidence (count two). The trial court sentenced
Defendant to concurrent terms of eleven years in count one and five years in count two
and ordered the sentences to be served in the Department of Correction. Defendant
timely appealed.
-3-
Analysis
In this appeal, Defendant contends that the evidence presented at trial was
insufficient to sustain his convictions for possession of Schedule II controlled substance
for resale and tampering with evidence. The State argues that there was sufficient
evidence to sustain the convictions. We agree with the State.
Standard of Review
Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007). “A jury verdict approved by the trial judge accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the State’s
theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Possession of Schedule II Controlled Substance for Resale
It is an offense to knowingly possess a controlled substance with the intent to sell
or deliver the controlled substance. Tenn. Code Ann. § 39-17-417(a)(4) (2019). A
person “acts knowingly with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances
exist.” Tenn. Code Ann. § 39-11-302(b) (2019).
Defendant argues that he did not have possession of the controlled substance
because he did not have the power and intent to exercise control over the cylinder of
methamphetamine that was in Ms. Stevens’ vagina. We agree that Ms. Stevens, not
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Defendant, was in actual possession of the methamphetamine at the time law
enforcement officers obtained the cylinder from Ms. Stevens. However, “in criminal
cases, a possession element may generally be established by showing actual or
constructive possession.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). Actual
possession refers to physical control over an item, whereas constructive possession
“requires that a person knowingly have ‘the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others.’” State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Craig,
522 F.2d 29 (6th Cir. 1975)); see also State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).
“Constructive possession depends on the totality of the circumstances in each case.”
State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013). Neither the “mere presence” of an
individual in an area where drugs are found, nor the “mere association” of an individual
with a person in control of the drug “is sufficient, standing alone, to find constructive
possession.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987); see also
State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000).
Ms. Stevens testified that, when Officer Buckner initiated the traffic stop,
Defendant gave her the cylinder containing the methamphetamine and said, “[T]here’s
cops, shove this.” Based on her previous experience, she understood that Defendant was
telling her to conceal the cylinder in her vagina. Ms. Stevens testified that the
methamphetamine was for Defendant to sell and for their personal use. Defendant first
stated to Officer Buckner that he did not know that Ms. Stevens had the
methamphetamine on her but then admitted that he knew she did. During his
conversation with Officer Buckner, Defendant said that “it was his and then said it wasn’t
his.” Officer Buckner said that Defendant waivered several times about whose
methamphetamine it was.
The evidence was sufficient for the jury to determine that Defendant had actual
possession of the cylinder of methamphetamine before Officer Buckner initiated the
traffic stop, that Defendant directed Ms. Stevens to conceal it in her vagina, and that he
intended to reobtain actual possession from Ms. Stevens if the police failed to discover
the drugs. The evidence was sufficient for the jury to find that Defendant had “the power
and intention . . . to exercise dominion and control over” the methamphetamine.
Williams, 623 S.W.2d at 125 (internal quotation marks omitted).
Tampering with Evidence
Tenn. Code Ann. § 39-16-503(a)(1) (2019) defines the offense of tampering with
physical evidence as follows:
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(a) It is unlawful for any person, knowing that an investigation or official
proceeding is pending or in progress, to:
(1) [a]lter, destroy, or conceal any record, document or thing with
intent to impair its verity, legibility, or availability as evidence in the
investigation or official proceeding. . . .
Defendant had control over the cylinder of methamphetamine. When he realized
that he was being stopped by the police, he directed Ms. Stevens to conceal the
methamphetamine. The evidence was sufficient for the jury to determine that Defendant,
knowing that an investigation was imminent, took steps to conceal evidence of a crime.
Conclusion
There is sufficient evidence to sustain the convictions. The judgments of the trial
court are affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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I concur in the opinion of Mr. Justice MOFFAT. It must be admitted that the ordinance provision with respect to insurance is vague and indefinite. As now worded it bears the construction that the proceeds from insurance in case of loss would be used solely for the purpose of retiring bonds. As so construed, the provision is clearly open to the objections urged against it and for the reasons stated by Mr. Justice MOFFAT the writ should be made permanent. I see no objection, however, to the carrying of insurance for the protection of the system or any part thereof against fire, earthquake, or other hazard, where the premiums are payable from the operation and maintenance fund and the proceeds in case of loss are subjected to the rehabilitation of the system or the parts thereof damaged or destroyed. By this arrangement the city as well as the bondholders would be amply protected.
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04/07/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 24, 2020
STATE OF TENNESSEE v. SHONIQUE NECHELLE SMITH
Appeal from the Criminal Court for Hamilton County
No. 302453, 302596, 303551 Barry A. Steelman, Judge
___________________________________
No. E2019-01400-CCA-R3-CD
___________________________________
Shonique Nechelle Smith, Defendant, appeals from the trial court’s judgment revoking
community corrections and requiring her to serve the balance of her sentence in
incarceration. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.
Steven E. Smith, District Public Defender, and Elizabeth L. Williams, Assistant District
Public Defender, Chattanooga, Tennessee, for the appellant, Shonique Nechelle Smith.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Brian C. Bush,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Guilty Plea and Sentence
On May 8, 2018, Defendant pled guilty in fifteen different cases to eighteen
criminal offenses. She was sentenced to concurrent terms of eleven months and twenty-
nine days on eleven misdemeanor theft cases, concurrent terms of thirty days on three
criminal trespass cases to be served concurrently with the theft sentences, two years each
for two E felony theft cases, four years for attempted possession of contraband in a penal
institution, and four years for attempted tampering with evidence. The four felony
sentences were ordered to be served on community corrections concurrently with each
other but consecutively to the sentence for the misdemeanors. The effective sentence was
eleven months and twenty-nine days to serve, and upon release from custody, four years
in Phase II of the Hamilton County Community Corrections Program.
Revocation Hearing
Timothy E. Mott, Program Manager for the Hamilton County Community
Corrections Program, testified that he began supervising Defendant upon her release from
custody on August 28, 2018. The order assigning Defendant to the Phase II program
required Defendant to “wear the electronic monitoring device, not use drugs or alcohol,
submit to drug testing when requested[;] obey the work, school, counseling and curfew
schedules established[;] and comply with all provisions of any behavior agreement.”
According to Mr. Mott, Defendant was placed on house arrest and was advised that she
could only leave to search for a job, report to probation, or address a medical emergency.
Defendant was also required to attend a drug treatment program operated by the Council
for Alcohol and Drug Abuse Services (CADAS). In August 2018, Defendant falsely
reported to Mr. Mott that she had attended the CADAS program. On August 31, 2018,
Defendant tested positive for Nordiazepam, Oxazepam, Codeine, and Morphine. She
was unable to provide a prescription for any of the substances. On September 3, 2018,
Defendant was away from her home from 2:29 a.m. until 6:37 a.m. On nine other
occasions in September, she failed to return home by 4:00 p.m. as required under the
terms of her house arrest. She claimed that she was training to be a dispatcher at
Millennium Cab Company and working at a cleaning service, but she failed to provide
proof of her employment as requested by Mr. Mott. On September 14, 2018, Defendant
tested positive for thirteen different substances, including methamphetamine. On
September 18, 2018, Defendant was “kicked out” of the mandated New Freedom
program for using her cell phone. On September 28, 2018, Defendant tested positive for
fourteen substances, adding Xanax to the previous list. Mr. Mott said that Defendant
failed to report on October 1, 2018. He attempted to contact Defendant several times.
She finally called back and rescheduled her appointment for October 4 but again failed to
report.
Mr. Mott filed his first violation report on October 10, 2018, claiming that
Defendant violated the following conditions of her Community Corrections Behavior
Contract: No. 7 which required her to follow the instructions of her probation officer; No.
8 which required her to refrain from using intoxicants or any controlled substance or
mind altering drug; No. 13 which required her to provide a biological specimen for the
purpose of DNA analysis and to pay a testing fee of $37.00; and No. 15 which required
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her to remain on house arrest as directed by her probation officer. Mr. Mott said that he
filed the violation report because Defendant “kept failing drug tests, failed to comply
with instructions, [and was] repeatedly late for appointments.” He testified that, although
Defendant was required to attend the New Freedom classes, she only attended one class
and was “kicked out.” He said that she failed to do any community service and that she
“[p]retty much was noncompliant the entire time” she was in the program.
Mr. Mott filed an “Addendum to Violation Report,” alleging a new violation of
her Community Corrections Behavior Contract. Mr. Mott stated that Defendant left her
house address on September 28, 2018, and had not reported or made contact with him or
his office in more than thirty days. The report stated that Defendant “has been declared
an Absconder from Community Corrections.”
Lakeasha Garner, Defendant’s mother, testified that Defendant lived with her
while on community corrections. She said that Defendant was working for a cleaning
service and was training to be a dispatcher at a cab company. Ms. Garner testified that
the cleaning service picked Defendant up for work around 7:30 a.m. and brought her
home between 3:00 and 4:00 p.m. She said that, one time, the cleaning service called Mr.
Mott because Defendant was intoxicated. Ms. Garner claimed that she took the
Defendant to the cab company where she worked at night. She also said she also took
Defendant to a methadone clinic. Ms. Garner volunteered that she went to the methadone
clinic herself. Ms. Garner also admitted that she was involved in some of the thefts with
her daughter.
Ms. Garner said that, after a “so-called girlfriend” came back into Defendant’s
life, Defendant “cut off her house-arrest band” and “r[a]n off with her.” Ms. Garner said
that Defendant was smart but that she had anger issues and had followed the wrong
crowd. She said that all of her daughter’s problems were caused by drugs. Ms. Garner
claimed that Defendant had changed and now wanted to go to CADAS. Ms. Garner said
that Defendant could live with her if released.
Defendant testified that, upon release from custody, she went through an
orientation for community corrections. She said that she did not know she was supposed
to go to CADAS until she failed the drug screens. She said that she went to CADAS in
September and was admitted but that, because she had her son with her, they told her she
“would [have to] come back to get [her] bed.” She said that she was working for Mr.
Jones’s cleaning service and with Millennium Taxi Company during her time in
community corrections. She said that she provided Mr. Mott with training papers from
the cab company. She said that she attended one class at New Freedom but that she “was
put out.” She stated:
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I wasn’t complying because I was using, but I sat in Mr. Mott’s office and
told him, “Mr. Mott, I got a[n] issue. I got a problem.” I don’t see how he
do[es]n’t remember that, because I was in tears like I am now. It is what it
is. I can’t -- I gotta get some help.
On cross-examination, Defendant admitted that she was a drug addict and had
been using drugs for four or five years, even while incarcerated from January to August
2018. She said she “got in [a] lethal relationship” with her girlfriend and that she “fell
off” and “started shooting heroin.” Defendant admitted that she was with her girlfriend
between October 2018 and March 2019. She said Mr. Mott contacted her boss trying to
verify her employment, so she stopped work because she knew that she would “be getting
violated because of my drug scenes.” When asked about her arrest in Knoxville,
Defendant claimed that her girlfriend “kicked [her] out,” that a friend took her to
Knoxville, and that she went into Walmart and was arrested for trespass and theft because
Walmart “was familiar with [her].”
At the conclusion of the revocation hearing, the trial court found that Defendant
was not cooperative with Mr. Mott and that her record on community corrections “was
replete” with “noncompliance.” The court found that Defendant failed to complete
CADAS, failed to go to CADAS “when she said she did,” and that when she finally did
go to CADAS, she was intoxicated. The court found that she “[f]ailed to comply with
instructions, failed to attend New Freedom classes, did not do community service, did not
provide a DNA sample or pay the fee for such, was constantly late, [and] was
noncompliant the entire time” that she was in community corrections. The court noted
that she destroyed Hamilton County property by cutting off her house arrest band and
then absconded to Knoxville where she was arrested “because she was on a no-trespass
list” at Walmart. The court characterized Defendant as a “serial thief[,]” which was “a
real feat for somebody as young as [Defendant.]” The court concluded that Defendant
had “not done one single thing that would merit another chance. Nothing.”
Following a hearing, the trial court revoked Defendant’s community corrections
sentence and ordered her to serve the balance of her sentence.
Defendant timely appealed.
Analysis
Defendant contends that the trial court abused its discretion by revoking her
community corrections sentences and ordering her to serve her sentences in confinement.
Defendant claims that the trial court should have ordered her into a mandatory drug
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treatment program. The State argues that the trial court acted within its discretion. We
agree with the State.
The decision to revoke a community corrections sentence rests within the sound
discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991)
(applying the probation revocation procedures and principles contained in Tennessee
Code Annotated section 40-35-311 to the revocation of a community corrections
placement based upon “the similar nature of a community corrections sentence and a
sentence of probation”); see also State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013)
(holding that an abuse of discretion standard with a presumption of reasonableness
applies to all sentencing decisions). To establish an abuse of discretion, the defendant
must show that there is no substantial evidence in the record to support the trial court’s
determination regarding the violation. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2000)
(citing Harkins, 811 S.W.2d at 82. A violation of probation or community corrections
need only be proven by a preponderance of the evidence. See Tenn. Code Ann. § 40-35-
311(e)(1) (2019); see also Tenn. Code Ann. § 40-36-106(e)(3)(B) (2019). If the evidence
is sufficient to show a violation of the terms of supervision, the trial court may, within its
discretionary authority, revoke the community corrections sentence and require the
defendant to serve his sentence in confinement “less any time actually served in any
community-based alternative to incarceration.” Tenn. Code Ann. § 40-36-106(e)(4)
(2019).
There was overwhelming evidence admitted during the revocation hearing to
prove that Defendant violated the conditions of her Community Corrections Behavior
Contract. Defendant failed to complete the mandatory drug program with CADAS, failed
to comply with numerous instructions concerning house arrest, failed to complete New
Freedom classes, did not do her community service, did not provide a DNA sample or
pay the fee, was constantly late in reporting to her community corrections officer, and
tested positive for numerous drugs numerous times. Defendant removed her house arrest
band and absconded to Knoxville where she was arrested on new charges. The trial court
did not abuse its discretion by revoking Defendant’s community corrections sentences
and ordering her to serve her sentences in confinement.
Conclusion
In consideration of the foregoing, we affirm the judgment of the trial court
revoking community corrections and ordering Defendant to serve the balance of her
sentence.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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J-A16001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY BABINGER, II
Appellant No. 1101 WDA 2016
Appeal from the Judgment of Sentence imposed June 27, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007140-2015
BEFORE: STABILE, J. FORD ELLIOTT, P.J.E. , and STRASSBURGER,* J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2018
Appellant, Harry Babinger, II, appeals from the judgment of sentence
the Court of Common Pleas of Allegheny County imposed on June 27, 2016.
Appellant challenges the discretionary aspects of his sentence. Upon review,
we affirm the judgment of sentence. However, for the reasons explained
below, we reverse the trial court’s November 8, 2016 order finding that
Appellant is a Sexually Violent Predator and remand for the sole purpose of
having the trial court issue the appropriate notice under 42 Pa.C.S.A. §
9799.23 as to Appellee’s registration requirements.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A16001-17
The trial court summarized the procedural background of the instant
matter as follows:
On February 11, 2016, following a jury trial, [the trial court]
declared a mistrial. On April 12, 2016, a second jury found
Appellant guilty of Involuntary Deviate Sexual Intercourse With a
Child (“IDSI”), Unlawful Contact With Minor, Sexual Assault,
Incest of a Minor, Indecent Assault Person Less Than 13 Years of
Age, and Endangering Welfare of Children (“EWOC”). [The trial
court] sentenced Appellant to 20 to 40 years of incarceration for
IDSI and three to six years for Incest of a Minor consecutive to
the IDSI sentence. [The trial court] further sentenced Appellant
to two concurrent seven years probationary sentences,
consecutive to incarceration, at the Unlawful Contact and EWOC
counts. The aggregate sentence imposed was 23-46 years
incarceration with seven years consecutive probation. Appellant
filed a Post-Sentence motion on June 28, 2016, which [the trial
court] denied on June 30, 2016.
Trial Court Opinion, 1/18/17 at 1-2 (footnotes omitted).
Following a hearing, on November 7, 2016, the trial court found
Appellant to be a Sexually Violent Predator. See Trial Court Order,
11/8/16.1
Appellant argues the trial court failed to state any reason for
Appellant’s sentence.2 The statement is inaccurate. After presiding over
____________________________________________
1
The order in question is dated November 7, 2016, but it was filed on
November 8, 2016. The order does not provide any information as to the
length of term of registration. At time of sentencing, however, the trial
court indicated that Appellant “would be a lifetime registrant.” N.T.
Sentencing, 6/27/16, at 16.
2
The challenge raised on appeal involves the IDSI sentence only.
-2-
J-A16001-17
Appellant’s trial (twice), and after hearing two witnesses and counsel at
sentencing, the trial court stated:
Having sat through this case twice, having read the presentence
report and considering the relevant portions but not the portions
that were stricken, being the testimony and arguments made
here today at sentencing, [] in light of all of the information
provided to me, I do find that [Appellant] is a dangerous
predator whether or not he meets the criteria under [SORNA],
which I believe that he will, and I will order that he be submitted
to that evaluation.
N.T. Sentencing, 6/27/16, at 16-17.
Clearly, the trial court stated its reasons for the sentence imposed,
including finding Appellant to be a “dangerous predator.” Thus, Appellant’s
claim that the trial court failed to state any reason for the sentence is
groundless.3
We construe, therefore, Appellant’s claim as challenging the sufficiency
of the reasons for the sentence imposed, which constitutes a challenge to
the discretionary aspects of his sentence. See, e.g., Commonwealth v.
Thomas, 573 A.2d 9, 12 (Pa. Super. 1988) (“A challenge to the adequacy of
a statement of reasons is viewed as an appeal of a discretionary aspect of
sentencing.”). Even so, however, the claim does not have merit.4
____________________________________________
3
In his Rule 1925(b) statement, Appellant acknowledged that the trial court
remarks were sparse, and that the trial court’s explanation for the sentence
consisted of one reason, namely that he was a “dangerous predator.”
4
Our standard of review of challenges to the discretionary aspects of a
sentence is well-settled. We apply an abuse of discretion standard.
(Footnote Continued Next Page)
-3-
J-A16001-17
Assuming the sufficiency of the reasons claimed raise a substantial
question for our review, we find the claim meritless.
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects
court was aware of relevant information regarding defendant’s
character and weighed those considerations along with any
mitigating factors). Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 668
A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195
(1996) (stating combination of PSI and standard range sentence,
absent more, cannot be considered excessive or unreasonable).
Moury, 992 A.2d at 171.
_______________________
(Footnote Continued)
Additionally, because challenges to the discretionary aspects do not entitle
to an appellate review as of right, an appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test to determine: 1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether appellant’s brief has
a fatal defect; and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code. See
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010).
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J-A16001-17
As noted above, the trial court’s statements for the sentence came
after the trial court had the opportunity to consult Appellant’s Presentence
Investigation Report (“Report”), and hear two witnesses and counsel’s
arguments at the sentencing hearing.
It is uncontested that the Report provided information, inter alia,
about Appellant’s past, including a criminal conviction for endangering the
welfare of children and corruption of minors at docket 6198-2006, and a
conviction for corruption of minors at docket 12171-1996.5 The Report also
shows that Appellant was previously ordered to complete sex offender
treatment and “refused to participate, refused to accept responsibility, and
did not successfully complete the program before the period of his five
years[’] probation had expired.” Trial Court Opinion, 1/18/17, at 4 (quoting
Transcript, Sentencing Hearing, 6/27/16, at 13-14). Moreover, the Report
shows that in 2009 behavioral experts concluded that Appellant suffered
from pedophilia, and that he was a very “dangerous, predatory man.” N.T.
Sentencing, 10/20/16, at 14. Finally, it is uncontested that the sentence
imposed is within the standard range of the guidelines.
____________________________________________
5
It is worth noting that Appellant did not contest the accuracy of the Report,
with the exception of those matters discussed on page 7 of the sentencing
transcript, which are not relevant here.
-5-
J-A16001-17
Upon consideration of the record, and in light of the foregoing
authorities, we conclude Appellant’s claim that the sentencing court failed to
state sufficient reasons for the sentence imposed on the record fails.
Appellant also relies on Commonwealth v. Coulverson, 34 A.3d 135
(Pa. Super. 2011), for the proposition that a trial court commits an abuse of
discretion if it considers “the impact on the victim to the exclusion of other
sentencing factors such as the rehabilitative needs of the defendant,”
Appellant’s Brief at 24, or the “impact on community.” Id. at 26.
Coulverson, however, is distinguishable. In Coulverson, the defendant
pled guilty to rape, IDSI, sexual assault, aggravated indecent assault,
robbery, unlawful restraint, terroristic threats, and two counts of indecent
assault that he committed when he was 19 years old. Coulverson, 34 A.3d
at 138-39. The sentencing court imposed an 18 to 90-year aggregate term
of imprisonment, which included the imposition of multiple consecutive
statutory maximum sentences to accomplish the upper end of the sentence.
Id. at 139. On appeal, we found that the imposition of a 90-year maximum
sentence on a 19-year old defendant was “clearly unreasonable” as the trial
court imposed a virtual life sentence, failing to give any consideration to
defendant’s characteristics and improperly basing its determination that
defendant should “spend as much of his life in prison as the court could
order[.]” Id. at 148.
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In the present case, as opposed to Coulverson, the trial court
imposed a standard range sentence that did not extend to the statutory
maximum. Indeed, the minimum sentence and the maximum sentence are
both within the standard range of the guidelines and the maximum sentence
is two times the minimum sentence. In contrast, in Coulverson, the
defendant’s maximum sentence was five times his minimum sentence.
Additionally, we discern no indication that the sentencing court sentenced
Appellant with a “fixed purpose of keeping [Appellant] in jail for life,”
Coulverson, 34 A.3d at 149 n. 3, or other factors found improper in
Coulverson. Reliance on Coulverson is, therefore, misplaced.
Finally, Appellant seems to suggest that the trial court specifically had
to address on the record all points or statements he made at the sentencing
hearing, and that failure to do so equates to failure to consider those points.
For example, Appellant argues the trial court should have considered that he
was 53 years old. Appellant’s Brief at 25. In the same vein, Appellant
argues the trial court abused its discretion in not mentioning on the record
at what age he would be eligible for parole or at what age the court
supervision would end. Id. at 26-27. Similarly, Appellant argues that the
trial court’s failure to acknowledge on the record Appellant’s health
conditions and skills was an abuse of discretion. We are unaware of any
authority supporting Appellant’s suggestions. Indeed, “a lengthy discourse
on the trial court’s sentencing philosophy is not required. Rather, the record
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as a whole must reflect the court’s reasons and its meaningful consideration
of the facts of the crime and the character of the offender.”
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006); see
also Commonwealth v. Brown, 741 A.2d 726 (Pa. Super. 1999) (en
banc), appeal denied, 790 A.2d 1013 (Pa. 2001) (stating court meets
requirement that it state on record reasons for sentence imposed if court
states that it has consulted presentence investigation (“PSI”) report). Here,
the record reveals the sentencing court was fully aware, inter alia, of
Appellant’s characteristics, as described in the Report reviewed by the
sentencing court. We conclude, therefore, Appellant is entitled to no relief
on the grounds raised before us.
While the instant appeal was pending, another panel of this Court
issued an opinion in Commonwealth v. Butler, --- A.3d ----, 2017 WL
4914155 (Pa. Super. October 31, 2017). In Butler we held that the
statutory mechanism for Sexually Violent Predator (SVP) designation was
constitutionally flawed under Apprendi6 and Alleyne7 because it increases
the criminal penalty to which a defendant is exposed without the chosen
fact-finder making the necessary factual finding beyond a reasonable doubt.
As a result, we held trial courts may no longer designate convicted
____________________________________________
6
Apprendi v. New Jersey, 530 U.S. 466 (2000).
7
Alleyne v. United States, 570 U.S. 99 (2013).
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defendants SVPs (nor may they hold SVP hearings) until the General
Assembly enacts a constitutional designation mechanism. Id. at *6. In the
meantime, trial courts must notify a defendant that he or she is required to
register for 15 years if he or she is convicted of a Tier I sexual offense, 25
years if he or she is convicted of a Tier II sexual offense, or life if he or she
is convicted of a Tier III sexual offense. Id.
Here, Appellant was determined to be an SVP under the now
unconstitutional SVP mechanism. While Appellant does not challenge his
SVP determination, we raise it sua sponte as it involves the legality of the
sentence. Id. at *2. Accordingly, in light of Butler, we must reverse the
trial court’s SVP order, and remand this case to the trial court for the sole
purpose of issuing the appropriate notice under Pa.C.S.A. § 9799.23.
Butler, supra.
Order reversed. Judgment of sentence affirmed in all other aspects.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2018
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On December 9, 1936, the Circuit Court in and for Lee County, Florida, entered a final decree dissolving the bonds of matrimony between Evelyn Lacey Davis and Robert H. Davis. The decree awarded the custody of the children of the parties, viz.: Mary Davis and Robert Howard Davis, III, to Evelyn Lacey Davis, but the right to visit the children by the father for at least twice each week was granted and also the custody of the children *Page 283
was to be with the father a period of three months of each calendar year.
The parties made a property settlement in lieu of alimony, support money and counsel fees and the same was approved by the terms of the final decree.
On September 16, 1939, Robert H. Davis, as petitioner, applied to the Court for an order awarding the custody to him of his daughter, Mary Davis, then 15 years of age, and his son, Robert H. Davis III, 12 years of age. The petition alleged the mother, Evelyn Lacey Davis, for certain reasons appearing in the petition, was an improper person to have the custody of the minor children. The petition likewise asked for a modification of the final decree as to the monthly payments previously ordered paid to Mary Lacey Davis for her support, as well as the support and maintenance of the children.
On November 27, 1939, Evelyn Lacey Davis filed her petition in the same cause seeking an allowance of counsel fees, suit money and costs pendente lite. On November 27, 1939, Evelyn Lacey Davis filed a motion in said cause to dismiss the petition seeking a change in the award of the custody and control of the minor children and simultaneously therewith filed a motion to strike described portions of the petition filed by Robert H. Davis seeking an order for the custody of Mary Davis and Robert Howard Davis, III.
On February 12, 1940, the lower court entered an order: (a) denying the motion of Evelyn Lacy Davis to strike described portions of the petition of Robert. H. Davis; (b) denying the motion of Evelyn Lacey Davis to dismiss the petition filed by Robert H. Davis; (c) granting a motion of Robert H. Davis to dismiss the petition of Evelyn Lacey Davis for an order permitting or allowing attorney's fees, suit money and costspendente lite. *Page 284
On March 15, 1940, Evelyn Lacey Davis filed a petition for writ of certiorari in this Court in which it was alleged that the order of the lower court dated February 12, 1940, was erroneous.
It is well established that minor children are wards of the court and its responsibility is to make and enter such orders touching the welfare and best interests of the child as from time to time may seem necessary. If the welfare of the child and its interests require that the custody should be awarded to another, the court will make such an order or decree as the interests of the child requires. See Mooty v. Mooty, 131 Fla. 151, 179 So. 155; Bourn v. Hinsey, 134 Fla. 404, 183 So. 614; Myers v. Stewart, 117 Fla. 173, 157 So. 499. We think the petition sufficient in its allegation to support testimony upon which to base an order awarding the custody of the two minor children.
It is next contended that the lower court erred in overruling the motion of Evelyn Lacey Davis to strike certain portions of the petition of Robert H. Davis wherein he seeks an order awarding the custody of the two minor children and a modification of the amounts paid to Evelyn Lacey Davis for her support and the support of the two minor children. The motion to strike has been carefully considered and the order of the court overruling and denying the motion has not been made to appear erroneous, however we do not commit ourselves to the view that the court may interfere with the formal property settlement.
It is next contended that the lower court erred in dismissing the petition of Evelyn Lacey Davis for allowance of attorney's fees, court costs and suit money. We have considered the authorities cited by counsel for appellant to sustain their contention on this assignment, but the contention is without merit, as the case of Vinson v. Vinson, 139 Fla. 146,190 So. 454, controls on this point. *Page 285
The writ of certiorari prayed for is hereby denied and the interlocutory order of the lower court is affirmed and the cause remanded for further proceedings in the lower court not inconsistent with this opinion.
It is so ordered.
WHITFIELD, P. J., and BROWN, J., concur.
THOMAS, J., concurs in opinion and judgment.
Chief Justice TERRELL and Justice BUFORD not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Athey and Senior Judge Haley
Argued at Fredericksburg, Virginia
PUBLISHED
JOHN CARLOS BARDALES
OPINION BY
v. Record No. 0455-19-4 JUDGE RANDOLPH A. BEALES
APRIL 7, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Daniel E. Ortiz, Judge1
Andrew W. Lindsey (Price Benowtiz, LLP, on brief), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
John Carlos Bardales entered a plea agreement in which he pled guilty to a robbery he
committed while he was a minor. He was sentenced to “the Department of Juvenile Justice for a
determinate period as a serious juvenile offender pursuant to § 16.1-285.1 . . . not to exceed his
twenty-first (21st) birthday” and “[f]ollowing his release from the Department of Juvenile
Justice, . . . a sentence as an adult” in the Department of Corrections (DOC) for five years. After
the Department of Juvenile Justice (DJJ) requested that the circuit court review Bardales’s
placement with DJJ, the circuit court on February 19, 2019 suspended his five-year incarceration
with DOC on the condition that he successfully complete the special DOC Youthful Offender
Program pursuant to Code § 19.2-311 and Code § 53.1-63. Bardales now challenges the circuit
court’s final order, claiming that it violated his plea agreement.
1
Judge Jan L. Brodie presided over all the proceedings in the case except for the final
proceeding. Judge Daniel E. Ortiz presided over that hearing and entered the final order on
February 19, 2019.
I. BACKGROUND2
Bardales was indicted3 in February 2017 for a robbery he committed on October 24,
2016, when he was seventeen years old. On February 27, 2017, while still seventeen, Bardales
signed a plea agreement. Paragraph 7 of the plea agreement stated in full:
The following is submitted: The defendant will plead guilty to the
charge, be found guilty and will be sentenced accordingly. The
only agreement with regards to sentencing is that in exchange for
the defendant’s plea, the Commonwealth agrees that the defendant
shall receive a blended sentence that would allow him to serve the
portion of any active sentence in the custody of the Department of
Juvenile Justice to the extent that he is eligible for such placement,
however, such an agreement does not limit this court’s ability to
sentence the defendant within the full range of punishment. The
Commonwealth nolle prossed related and unrelated charges at
preliminary hearing.
At the February 27, 2017 hearing on Bardales’s guilty plea, Bardales was represented by
Joseph Dailey. After conducting a plea colloquy, the circuit court accepted Bardales’s guilty
plea. Based on counsel for appellant’s request (and the Commonwealth’s concurrence) that
Bardales be screened for the Youthful Offender Program, the circuit court ordered a presentence
investigation and screening for the Youthful Offender Program and scheduled the sentencing
hearing for June 9, 2017.
2
Part of the record in this case was sealed. In order to appropriately address the
assignment of error raised by appellant, this opinion includes some limited portions of the record
that were sealed. Consequently, “[t]o the extent that this opinion mentions facts found in the
sealed record, we unseal only those specific facts, finding them relevant to the decision in this
case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall,
294 Va. 283, 288 n.1 (2017).
3
The Fairfax County Juvenile and Domestic Relations District Court entered an order
dated January 19, 2017 stating, “The Commonwealth timely filed a notice of intent to try
defendant as an adult. At the hearing, defendant confirmed that he was aware of his right to a
preliminary hearing on this charge, but that he would waive that hearing.” The order certified
the case to the grand jury of the circuit court.
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At the June 9, 2017 sentencing hearing, Bardales’s counsel requested “some sort of
blended sentence to DJJ.” Counsel stated, “John [Bardales] is asking for the court for an order
for him to be committed to the Department of Juvenile Justice until he’s 21, with the remaining
amount of time suspended -- or the adult time suspended which allows him to be on probation.”
After the circuit court confirmed that Bardales did not desire to participate in the DOC Youthful
Offender Program, the court sentenced him to DJJ as a serious juvenile offender, followed by
five years of incarceration in DOC.
A year later, in a memorandum dated June 29, 2018, DJJ notified the circuit court that
“Bardales is having difficulty adjusting to the expectations of the Virginia Department of
Juvenile Justice (DJJ) and is struggling with adhering to daily operational rules within the Bon
Air Juvenile Correctional facility to the degree that he is affecting the wellbeing of other
residents and staff.”4 The memorandum from DJJ requested the circuit court to review its order
regarding Bardales before the two-year automatic review would occur in June 2019.5 The court
scheduled a hearing for the matter in September 2018. On September 11, 2018, the court entered
an order granting Bardales’s motion to replace his original counsel with new counsel, who then
sought to argue a motion to reconsider Bardales’s sentence.6
4
A June 6, 2018 DJJ progress report shows that Bardales “accrued several infractions
and two criminal charges since starting his sentence June 26, 2017,” including a conviction for
misdemeanor possession of a controlled substance and a pending charge of assault on a law
enforcement officer.
5
Pursuant to Code § 16.1-285.1(F), DJJ is to petition the court that committed the
juvenile to DJJ for a review of the continued commitment of the juvenile at least sixty days prior
to the second anniversary of his commitment to DJJ, but may also petition the court for an earlier
review.
Code § 16.1-285.1(E) provides that “[t]he court which commits the juvenile to the
6
Department under this section shall have continuing jurisdiction over the juvenile throughout his
commitment.” (Emphasis added.)
-3-
At the September 14, 2018 hearing, Bardales’s new counsel argued that “if [Bardales]
serves an active portion outside of DJJ, that is functionally a rejection of his plea agreement. His
plea agreement says any active portion has to be in DJJ.” The circuit court disagreed with
Bardales’s position, noting, “This plea agreement only says that he would serve a portion of the
active sentence in the custody of DJJ. It doesn’t say that his whole sentence would be in DJJ.”
When the circuit court stated that it would place Bardales to serve the remainder of his sentence
in DOC, counsel stated, “For the record, I’m objecting that the plea has been violated, but if
we’re shifting to what’s next, we would ask for what everyone said he should have gotten in the
first place, which is [the] youthful offender [program].” After hearing that the Commonwealth
did not object to Bardales’s placement in the Youthful Offender Program, the circuit court
“continu[ed] this matter to December 13[, 2018] to determine his eligibility for the youthful
offender program as an alternative to the DJJ and short of sending him just over to DOC.”
At the conclusion of the December 13, 2018 hearing, the circuit court entered an order
placing Bardales “into the Youthful Offender Program, if eligible” and once again continued the
matter for a review hearing to determine his eligibility for that program.
At that February 8, 2019 hearing, the judge noted that, after conducting an assessment,
the Youthful Offender Program staff deemed Bardales “eligible [but] not suitable” for the
Youthful Offender Program. Despite the staff’s assessment, the circuit court entered a final
order on February 19, 2019 which suspended the five years of the sentence to DOC imposed on
June 9, 2017, conditioned upon Bardales’s remand to the custody of DOC “for an indeterminate
period of time not to exceed four years” for his successful completion of DOC’s Youthful
Offender Program, pursuant to Code § 19.2-311. Bardales timely filed an appeal of this order.
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On appeal, Bardales argues, “The trial court erred by sentencing Appellant to active
incarceration outside the Department of Juvenile Justice, in violation of Appellant’s accepted
plea agreement.”
II. ANALYSIS
A circuit court’s interpretation of a plea agreement is governed by the law of contracts
and is a matter of law subject to de novo review. Hood v. Commonwealth, 269 Va. 176, 181
(2005); Commonwealth v. Sluss, 14 Va. App. 601, 604 (1992). These agreements “are subject to
due process safeguards which require that the government strictly adhere to the terms of its
agreement.” Sluss, 14 Va. App. at 604. To the extent that factual findings of the circuit court are
part of the analysis, we cannot disturb factual findings made by the circuit court unless they are
plainly wrong. Hood, 269 Va. at 181; Naulty v. Commonwealth, 2 Va. App. 523, 527 (1986).
The question before us then is simply one of interpretation of the plea agreement.
Bardales argues, “The plain language of th[e] agreement specified that any active incarceration
portion of the blended sentence would be served in the DJJ.” He also argues that “the trial
court’s ultimate sentencing of Appellant to additional active incarceration outside of DJJ violated
the terms of the plea agreement.” In his argument, Bardales focuses on the words “the” and
“any” from one sentence in paragraph 7 of the plea agreement as follows:
The only agreement with regards to sentencing is that in exchange
for the defendant’s plea, the Commonwealth agrees that the
defendant shall receive a blended sentence that would allow him to
serve the portion of any active sentence in the custody of the
Department of Juvenile Justice to the extent that he is eligible for
such placement, however, such an agreement does not limit this
court’s ability to sentence the defendant within the full range of
punishment.
(Emphasis added.) Focusing on those words, Bardales argues that any actual incarceration
outside of DJJ violates his plea agreement.
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However, Bardales’s argument does not take into account the entirety of paragraph 7, or
even the entirety of the sentence on which he focuses. The sentence at issue reads,
The only agreement with regards to sentencing is that in exchange
for the defendant’s plea, the Commonwealth agrees that the
defendant shall receive a blended sentence that would allow him to
serve the portion of any active sentence in the custody of the
Department of Juvenile Justice to the extent that he is eligible for
such placement . . . .
(Emphasis added.) Importantly, the rest of the sentence says, “however, such an agreement does
not limit this court’s ability to sentence the defendant within the full range of punishment.” In
addition, paragraph 4 of the plea agreement states, in part, “My attorney has advised me that the
punishment which the law provides is as follows: commitment to the Department of Juvenile
Justice, or confinement in a state correctional facility for life or any term not less than five years,
or a blended juvenile and adult sentence.” (Emphasis added.) Because the plea agreement did
not limit the circuit court’s ability to sentence Bardales for up to a confinement for life, as
Bardales acknowledged in the plea agreement, the court logically must be able to place him in
confinement somewhere other than DJJ, which is limited by statute to confining juveniles only
until they turn twenty-one years of age (see Code § 16.1-285.1(C)). The plea agreement itself
anticipates that Bardales could be in DOC – through use of the language “a blended juvenile and
adult sentence.”
Bardales’s eligibility for placement in DJJ includes his age (a juvenile may not be
committed to DJJ beyond his twenty-first birthday, see Code § 16.1-285.1(C)), but is not limited
to his age, see, e.g., Code § 16.1-285.1(D) (providing that DJJ’s placement decisions “shall be
made based on the availability of treatment programs at the facility; the level of security at the
facility; the offense for which the juvenile has been committed; and the welfare, age and gender
of the juvenile”). Here, DJJ sent a memorandum to the circuit court requesting a review because
Bardales was “affecting the wellbeing of other residents and staff.” In addition, a DJJ progress
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report showed that Bardales “accrued several infractions and two criminal charges,” including a
conviction for possession of a controlled substance and a pending charge of assault on a law
enforcement officer while in DJJ. The circuit court, after reviewing the information presented to
it, determined that Bardales was no longer eligible to be placed in DJJ because of his conduct.
At the September 14, 2018 hearing, the circuit court stated, “[R]ight now [Bardales has] thrown
away his chances at DJJ. They want him out of there.” At the December 13, 2018 hearing, the
court stated, “You’ve [Bardales] had a horrendous history over in DJJ. I’ve never seen anything
like this, someone that just can’t look and do what’s requested, required of them. . . . This is
serious stuff.” And at the February 8, 2019 hearing, the circuit court stated, when considering
whether to place Bardales in the Youthful Offender Program, “My bigger concern is he’s picking
up assault charges in DJJ.” Each of these statements by the circuit court is a finding of fact by
the court. Given the record before us, we cannot say that the circuit court was plainly wrong in
those findings of fact.
In short, the plea agreement provided that Bardales would “receive a blended sentence
that would allow him to serve the portion of any active sentence in the custody of the
Department of Juvenile Justice to the extent that he is eligible for such placement . . . .”
(Emphasis added.) After Bardales had spent just over a year in the custody of DJJ – based on the
request of DJJ to review the matter and after conducting multiple hearings – the circuit court
removed Bardales from DJJ and placed him in the DOC Youthful Offender Program. Based
upon the evidence in the record, we cannot say that the circuit court erred.
Furthermore, Bardales’s argued interpretation of the plea agreement would ultimately
lead to an absurd result. He argues that, once he turns twenty-one (and thus has aged out of DJJ)
he could be placed on probation, but he could not be committed to active incarceration in DOC
or even its Youthful Offender Program. If Bardales could never be sent to DOC before or after
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he turns twenty-one, there would be virtually no enforcement mechanism for a failure on his part
to comply with probation. In addition, if Bardales’s position were correct, regardless of how bad
Bardales’s behavior and actions were while in the DJJ facility, the circuit court would actually
have no recourse or enforcement mechanism for Bardales outside of DJJ at its disposal. Taking
Bardales’s argument to its logical conclusion demonstrates the absurdity of his position.
For all of these reasons, the circuit court did not err in its interpretation of the plea
agreement and in its final order remanding Bardales to the custody of DOC for its Youthful
Offender Program.
III. CONCLUSION
Contrary to Bardales’s argument that his plea agreement prevented any incarceration
outside of DJJ, his plea agreement explicitly provided that Bardales was to receive “a blended
sentence that would allow him to serve the portion of any active sentence in the custody of the
Department of Juvenile Justice to the extent that he is eligible for such placement . . . .”
(Emphasis added.) The plea agreement also explicitly stated that “such an agreement does not
limit this court’s ability to sentence the defendant within the full range of punishment.”
After receiving a request from DJJ to review Bardales’s placement there because of
Bardales’s actions and behavior while in DJJ, the circuit court held hearings and ultimately
determined that Bardales should be removed from DJJ and placed in the DOC Youthful Offender
Program. Because the circuit court did not err in its interpretation of the plea agreement, it did
not err in its order placing Bardales in the custody of DOC to complete the Youthful Offender
Program. For all of these reasons, we affirm the decision of the circuit court.
Affirmed.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Athey and Senior Judge Haley
Argued at Fredericksburg, Virginia
PUBLISHED
INTERCEPT YOUTH SERVICES, INC. AND
KEY RISK INSURANCE COMPANY
OPINION BY
v. Record No. 1537-19-4 JUDGE RANDOLPH A. BEALES
APRIL 7, 2020
THE ESTATE OF LIZBETH Y. LOPEZ
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Brian J. McNamara (Scott C. Ford; Jillian M. Smaniotto; Ford
Richardson, P.C., on briefs), for appellants.
Charles W. O’Donnell (Charles W. O’Donnell, P.C., on brief), for
appellee.
One day prior to the expiration of the statute of limitations, the Estate of Lizbeth Lopez
filed a claim for benefits with the Virginia Workers’ Compensation Commission (the
Commission). Several months later – after the statute of limitations had expired – Intercept
Youth Services, and its insurer, Key Risk Insurance Company, (collectively, “Employer”) filed
an employer’s application for hearing. The day before the hearing, the Estate of Lopez moved to
withdraw its claim for benefits. Following the hearing, the deputy commissioner granted the
Estate’s motion and dismissed the Estate’s claims. Consequently, the deputy commissioner
dismissed Employer’s application for hearing, concluding that it was not timely filed, that the
Commission now lacked jurisdiction to consider it, and that it was moot, given the Estate’s
withdrawal of its timely filed claim for benefits. The full commission affirmed the deputy
commissioner’s dismissal of Employer’s application for hearing. Employer now appeals that
decision to this Court.
I. BACKGROUND
Lizbeth Lopez worked for Intercept Youth Services, Inc. (“Intercept”) in Lake Ridge,
Virginia, where she acted as a counselor for at-risk youths in transition from foster care to
independent living. Intercept taught these youths life skills and provided them with supervision
in a residential apartment complex. On or about April 17, 2016, one of the individuals in the
program, Ronald Dorsey, murdered Lopez.
On April 16, 2018, one day prior to the expiration of the statute of limitations for filing a
claim before the Commission, Gladys Lopez, Lizbeth Lopez’s mother, and Lopez’s estate
(collectively, “the Estate”) filed a claim for “all benefits available in a fatal case” under the
Workers’ Compensation Act (the “Act”). In the petition, counsel for the Estate stated that it was
filing the claim as a “protective filing only” in order to preserve the claim before the statute of
limitations expired. Counsel asked the Commission not to place the case on the docket for
hearing until a request was made. On April 17, 2018, counsel for the Estate filed an amended
claim for benefits, which also stated that it was a “protective filing only.”
On June 21, 2018, Employer sent a letter to counsel for the Estate, advising that
Employer had accepted the claim as compensable under the Workers’ Compensation Act and
attaching a signed copy of a “Fatal Award Agreement.” In the fatal award agreement, Employer
offered to pay for “Burial and transportation expenses only.” The Estate did not agree to the
fatal award agreement.
On July 19, 2018, Employer filed with the Commission an “Employer and Insurer’s
Request for Hearing,” pursuant to Code § 65.2-702. The request sought a determination of the
“compensability of the claim; the rate of compensation; the amount of funeral expenses incurred;
and the identities of any eligible dependents.” The request stated that it “incorporates by
reference the assertions of fact, and the documents attached to, the claimant’s April 17, 2018
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protective claim for benefits.” The request also advocated that “[t]he fact that the claimant’s
claim is filed as a ‘protective filing only’ has no effect on the employer[’s] and insurer’s right to
request a hearing.”
On July 30, 2018, the Estate filed a letter with the Commission requesting that the matter
be placed on hold until the Prince William County Circuit Court had the opportunity to rule on
an “anticipated Plea in Bar” in a wrongful death action pending in that court arising out of
Lopez’s death. The Commission denied the motion, citing an employer’s statutory right to
request a hearing as well as the lack of evidence that a plea in bar had even been filed in the
circuit court case.
On February 18, 2019, the day before the scheduled hearing before the deputy
commissioner, the Estate moved to withdraw its previous claims for benefits. In response, also
on February 18, 2019, Employer filed a letter arguing that the Estate’s withdrawal of its claims
should not affect the scheduled hearing because Employer’s request for a hearing was a “separate
and independent request” in which Employer had “realleged each and every fact alleged by the
claimant . . . .”
On February 19, 2019, the parties appeared before the deputy commissioner for a hearing
on the matter. The deputy commissioner stated that the Estate’s withdrawal did not affect the
Commission’s ability to hear the claim because the hearing was being conducted on Employer’s
request. The hearing proceeded and the deputy commissioner heard evidence regarding
Employer’s contention that Lopez’s death arose out of and in the course of her employment. The
Estate took the opposite position that Lopez’s death did not arise out of her employment and that
the matter was not compensable under the Act.
On April 23, 2019, the deputy commissioner entered an opinion granting the Estate’s
motion to withdraw its claims for benefits and dismissing the Estate’s claims – a decision that
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neither party appealed to the full Commission. The deputy commissioner noted that the
withdrawal of the claims extinguished the Estate’s right to ever seek benefits under the Act for
Lopez’s death because the two-year period for filing a claim under Code § 65.2-601 had expired.
The deputy commissioner reasoned that because the statute of limitations is jurisdictional, the
Commission lacked jurisdiction to hear any claims on behalf of the Estate regarding Lopez’s
death. The deputy commissioner also concluded that because Employer had no potential liability
under the Act given that the claims had been withdrawn and could never be refiled, the
Employer’s request for hearing and a determination of its rights under the Act was moot. The
deputy commissioner stated, “It would be inappropriate for us to render an advisory Opinion on
whether the deaths of these two women are compensable under the Act in order to address what
we presume to be the employer’s concern regarding the wrongful death claims pending in Circuit
Court.”1 As a result, the deputy commissioner dismissed Employer’s request for hearing.
Employer appealed the dismissal of its request for hearing to the full Commission, which
affirmed with a unanimous opinion. Citing the Supreme Court’s decision in Chalkley v. Nolde
Bros. Inc., 186 Va. 900 (1947), as well as to a number of the Commission’s own cases, the
Commission recognized that an employer can make a request for a hearing even when an
employee has not filed a claim for benefits or when an employee has filed a claim for benefits
but then withdraws it without prejudice. See e.g., McKnight v. Va. Int’l Terminals, 69 O.I.C. 19,
21 (1990) (“[E]very employer who is subject to the provisions of the Virginia Workers’
Compensation Act may file a claim for an award under the Act which would provide benefits
accruing to the interest of the employee or to the interest of the employer.”); Petty v. Duffie
Graphics, Inc., 76 O.W.C. 306 (1997) (concluding employer could request a hearing after
1
The hearing before the deputy commissioner also addressed a claim filed by the estate
of another Intercept employee murdered by Dorsey. That matter is not before us in this appeal.
-4-
claimant withdrew claim without prejudice because employer had a right to depose witnesses
while the evidence was still fresh and because it was entitled to final determination on its
responsibilities for the claim). While recognizing this right, the full Commission in its
unanimous opinion also concluded that “in order to be timely, an employer’s application [for
hearing] under Code § 65.2-702 must be filed within two years of the accident.” Because
Employer’s application for hearing was not filed within two years, the Commission found that its
application was untimely.
The Commission also concluded that, because the Estate had withdrawn its claims for
benefits (which it could never again refile due to the expiration of the statute of limitations) and
because the employer’s request for hearing was filed too late to stand on its own, there was no
claim before it to consider. Thus, the Commission stated, “In this unique procedural posture, we
have no jurisdiction to decide the July 19, 2018 claim.” It also concluded that Employer’s
application for hearing was moot because it “had no actual or potential liability under the Act,”
given that the Estate could never again seek benefits under the Act for Lopez’s death.
II. ANALYSIS
On appeal to this Court, Employer argues that the Commission erred in finding that
Employer’s request for hearing was not timely filed and in concluding that it lacked jurisdiction
to consider the request for hearing because the Estate’s withdrawal of its claims for benefits
deprived the Commission of jurisdiction and rendered the matter moot.2
2
Employer’s interrelated assignments of error state:
1. The Commission erred in finding that the Appellants’ July 19,
2018 Request for Hearing was not timely filed.
2. The Commission erred in finding that the Commission had no
jurisdiction to decide the Appellants’ July 19, 2018 Request for
hearing, on the bases that (a) the Commission erred in finding
that the Appellants’ July 19, 2018 Request for Hearing was not
-5-
In matters appealed from the Commission, this Court reviews questions of law de novo.
Advance Auto & Indem. Ins. Co. of N. Am. v. Craft, 63 Va. App. 502, 514 (2014). However,
“[t]he [C]ommission’s construction of the Act is entitled to great weight on appeal.” Ceres
Marine Terminals v. Armstrong, 59 Va. App. 694, 702 (2012) (quoting Fairfax Cty. Sch. Bd. v.
Humphrey, 41 Va. App. 147, 155 (2003)). Furthermore, in our review, “we construe the
Workers’ Compensation Act liberally for the benefit of employees to effectuate its remedial
purpose of making injured workers whole.” Advance Auto, 63 Va. App. at 514.
Code § 65.2-702(A) states, in relevant part, “If the employer and the injured employee or
his dependents fail to reach an agreement in regard to compensation under this title . . . either
party may make application to the Commission for a hearing in regard to the matters at issue and
for a ruling thereon.” The Supreme Court and the Commission have construed this statute to
mean that an employer can file an application for hearing to have the rights and liabilities of the
parties decided, regardless of whether the employee has filed a claim for benefits. See, e.g.,
Chalkley v. Nolde Bros., 186 Va. 900 (1947); Petty, 76 O.W.C. at 308 (“There is no requirement
. . . that there must be a pending claim for benefits for a hearing. It’s the accident, not the claim,
that triggers the employer’s right to request a hearing to determine contested issues.”).
On appeal to this Court, Employer does not appear to challenge the Commission’s
conclusion that, although an employer can file an application for hearing even when no claim for
benefits has been filed, the application for hearing is still subject to the same two-year statute of
limitations prescribed by Code § 65.2-601. Employer also does not dispute that its request for
timely filed; (b) the Commission erred in finding that the
Appellants’ July 19, 2018 Request was moot due to the estate’s
withdrawal of its claims after the statute of limitations had
expired; and (c) the Commission erred in finding that “any
opinion rendered on the [Appellants’] rights and responsibility
under the Act in this matter would constitute an improper
advisory opinion.”
-6-
hearing was filed more than two years after the date of Lopez’s death. However, Employer
argues that the Commission erred in failing to conclude that Employer’s request for hearing was
still timely because the request for hearing either related back to the Estate’s claims for benefits
or the statute of limitations was tolled by the Estate’s filing of the claims for benefits.
Employer argues that Chalkley requires this Court to find that Employer’s request for a
hearing relates back to the filing of the Estate’s claim for benefits. In Chalkley, a
twelve-year-old boy was injured while riding in a truck driven by an employee of Nolde, who
had engaged Chalkley to assist him with deliveries. 186 Va. at 902-03. The twelve-year-old
boy, Chalkley, through “his next friend,” filed a civil action to recover for his injuries. Id. at
904. The jury found that Chalkley was not an employee, and he prevailed on the claim filed in
circuit court. Id. at 903. After the verdict was returned but before the final judgment was
entered – and within the Act’s then-effective one-year statute of limitations – Nolde’s attorney
sent a letter to the Industrial Commission requesting a hearing to determine Nolde’s “rights and
status” and requesting that Chalkley and Nolde’s compensation insurance carrier be made
parties. Id. at 904-05. In the meantime, the Virginia Supreme Court reversed the civil award to
Chalkley and, in doing so, held that Chalkley was an employee of Nolde. Id. at 906. Following
the reversal, Chalkley’s mother filed a claim with the Commission. The Commission denied the
award, finding that Chalkley failed to file within the statute of limitations. Id. On appeal, the
Virginia Supreme Court reversed. Id. at 907. It held that the employer’s request for hearing
could itself act as the filing of the claim, and thus concluded that a claim had been filed before
the statute of limitations had run. Id. at 906.
Employer misconstrues the Supreme Court’s decision in Chalkley. Employer argues that
Chalkley stands for “a willingness on the parts of the appellate Courts and the Commission to
determine that, provided one party timely files a claim, a claim thereafter filed by an opposing
-7-
party is timely filed if filed during the pendency of the initiating claim.” In Chalkley, however,
the Supreme Court held that the employer’s application for hearing could itself serve as the claim
for benefits – not that it tolled the statute of limitations so that the employee could then file a
claim for benefits. Here, even assuming that Employer’s request for hearing could serve as the
claim for benefits because Employer actually sought benefits on the Estate’s behalf by
“incorporat[ing] by reference the assertions of fact, and the documents attached to, the claimant’s
April 17, 2018 protective claim for benefits,” the Employer’s request was not timely filed within
the statute of limitations as it was in Chalkley. Therefore, after the Estate’s claims were
dismissed, there was no timely filed claim for the Commission to consider as there was in
Chalkley. Accordingly, the Commission did not err in concluding that it lacked jurisdiction to
consider the case. See Barksdale v. H.O. Engen, Inc., 218 Va. 496 (1977) (stating that statute of
limitations for the filing of claims under the Act “is jurisdictional and that failure to file within
the prescribed time will bar a claim”).3
Furthermore, this case is also significantly different from Chalkley in another vital
respect. In this case, the Estate moved to withdraw its claims for benefits and that motion was
granted and not appealed to the full Commission or this Court.4 The Estate’s withdrawal of its
claims puts this case in a unique procedural posture. Because the statute of limitations had run
and, therefore, expired when the Estate’s claims were withdrawn and dismissed by the
Commission, the Estate was forever barred from prosecuting a claim for Lopez’s death under the
Workers’ Compensation Act. Consequently, Employer was not – and could not ever be – subject
3
Barksdale was decided under Code § 65.1-87 (the predecessor to present Code
§ 65.2-601), which then provided a one-year statute of limitations.
4
The full Commission’s opinion states, “The Deputy Commissioner permitted the estate
to withdraw its protective claims, which amounted to a dismissal with prejudice.” The
Commission further noted, “No party appealed that ruling.” Employer does not challenge or
assign error to that statement by the Commission on appeal to this Court.
-8-
to liability under the Act for Lopez’s death. Thus, the Employer’s request that the Commission
determine the “compensability of the claim; the rate of compensation; the amount of funeral
expenses incurred; and the identities of any eligible dependents” was moot, and an opinion on
those matters would be advisory. See Commonwealth v. Harley, 256 Va. 216, 220 (1998)
(“[C]ourts are not constituted . . . to render advisory opinions, to decide moot questions or to
answer inquiries which are merely speculative.” (quoting City of Fairfax v. Shanklin, 205 Va.
227, 229-30 (1964) (second alteration in original))). Therefore, the Commission did not err in
reaching this conclusion.5
III. CONCLUSION
In short, the Commission did not err in finding that it lacked jurisdiction to consider the
matter because there was no timely claim for benefits still before it. While the Estate’s claims
for benefits were timely filed, the deputy commissioner granted the Estate’s later request to
5
We note that Employer has provided no persuasive authority that the Commission was
required to toll the statute of limitations or to allow relation back to the original claim filed by
the Estate in these circumstances. Employer argues that the Commission should have treated its
request for hearing as if it were a counterclaim filed in a civil matter and applied Code
§ 8.01-233(B), which provides for the tolling of the applicable statute of limitations for certain
counterclaims and cross-claims in civil cases. However, Employer, on brief to this Court, states,
“To be sure, the Appellants plainly do not dispute that the tolling provision of Virginia Code
§ 8.01-233 is not applicable to the procedures of the Commission.” Rather, Employer
“contend[s] that the adoption of a counterclaim tolling provision in the context of Employer’s
Applications for Hearing would be a reasonable extension or modification of existing law.”
Thus, Employer recognizes that the Workers’ Compensation Commission is not strictly bound
by the rules of pleading and practice that apply in circuit court. See Sergio’s Pizza v. Soncini, 1
Va. App. 370, 376 (1986) (“While some degree of formality or the use of standardized uniform
procedures and forms may be more conducive to an orderly and expeditious process, rigid or
technical rules of pleading, evidence, or practice in the conduct of hearings [before the
Commission] shall not apply so long as the procedures adopted protect the substantial rights of
the parties.” (citing Reese v. Wampler Foods, Inc., 222 Va. 249, 255 (1981)); see also Boyd v.
People, Inc., 43 Va. App. 82, 87 (2004) (“We will not set aside the commission’s interpretation
of its rules unless that interpretation is arbitrary and capricious.”). The Commission did not err
in finding that the statute of limitations was not tolled and that Employer’s request for hearing
did not relate back to the Estate’s timely filed claims for benefits that were later withdrawn and
then dismissed by the deputy commissioner.
-9-
withdraw them, and that decision was not appealed to the full Commission. After that dismissal
of the Estate’s claims, there was no timely filed claim before the Commission because the
Employer’s request for hearing was filed more than two years after the date of the accident.
Because the Commission had no timely filed claim left before it, the Commission did not err in
concluding that it lacked jurisdiction to hear the case.
In addition, the Commission did not err in concluding that the case was moot. When the
Estate’s motion to withdraw its claims for benefits was granted, the Estate was thereafter
prohibited from ever seeking workers’ compensation benefits arising from this tragic death.
Thus, Employer could never be subject to liability under the Workers’ Compensation Act for
Lopez’s death.6 Therefore, there was nothing for the Commission to decide, and any opinions
the Commission gave on the matter would be advisory.
For all of these reasons, we affirm the decision of the Commission finding that it lacked
jurisdiction to consider the case and concluding that the Employer’s request for hearing was
moot.
Affirmed.
6
The civil litigation filed in the Circuit Court of Prince William County is, of course, a
totally separate matter from the appeal of the workers’ compensation claim now before this
Court.
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One of the duties of the court, and in a sense one of its privileges, is to correct its own errors, once the court is convinced that error has been committed. To this end our rules provide for rehearings in appropriate cases so that contentions not advanced on the original submission may be made, arguments already pressed may be presented in a new light or with stronger emphasis and with greater persuasion, and fallacies in the reasoning of the court exposed. In the present case the petition for rehearing contains no contentions that may be said to be new, although fresh light has been thrown on some of the questions presented; and the petition, with the briefs and oral arguments in its support, does, in my opinion, clearly demonstrate that our opinion wrongly construed the legislation under consideration. That being so, as a member of the majority which rendered the original decision, there is no course open to me except to join in its correction.
The legislation is undoubtedly ambiguous and calls for judicial construction. If that were not so there would be no occasion and no warrant for resorting to administrative interpretation for aid in determining the legislative intent. The strongest argument for the view taken in the former majority opinion is that based *Page 99
upon the failure of the legislature in Ch. 466, Oregon Laws, 1947, to make specific disposition of the so-called "surplus" income tax revenues. The fact that various sums were directed to be transferred from the general fund to special accounts, and particularly that an amount not exceeding $5,000,000.00 was directed to be transferred "to an account in the general fund to be known as the property tax reduction account", leaving the remaining revenues, already collected or estimated, apparently undisposed of otherwise than as "a part of the general fund in the hands of the state treasurer", constituted the basis of a valid argument that such remaining revenues had not been "applied by law to some special purpose."
But, in my judgment, upon more mature consideration, we gave too much weight to that argument. The failure of the legislature to dispose specifically and expressly of the "surplus" did indeed introduce an ambiguity into the law, but it should not be held to be the controlling factor in view of other provisions of Ch. 466, and in view of Ch. 477, Oregon Laws, 1947, and the administrative construction. I see no way of reconciling the conclusion reached in the former decision with the legislative mandate "that such revenue * * * shall not affect the base for computing the limitation on such levy imposed by section 11, Art. XI, Oregon constitution." It would be useless to attempt to add anything to the clear and cogent exposition in the opinion of the Chief Justice of the effect which should properly be given to the matters to which I have referred.
But I deem it worthwhile to comment at somewhat greater length on the case of School District No. 1 v. Bingham, 174 Or. 540,149 P.2d 963, because it has a *Page 100
bearing on the present case which to me at least was not apparent until the argument on rehearing. It was then called to our attention for the first time that the legislation involved in that case contained an express provision which should remove all doubt as to the legislative purpose that income tax revenues may be used only as an offset to a levy on property.
In the Bingham case the court was called upon to construe Ch. 439, Oregon Laws, 1943, which provided for the transfer of an amount not to exceed $5,000,000.00 "derived from taxes on or measured by net income" to the state school support fund to be apportioned to the several counties and thence to the public school districts. Section 1 of this act provides in part:
"The amount received by each school district from this source in any year shall be fully applied to reduce the ad valorem property tax levied by the district for such year, as hereinafter provided, but shall not impair the tax base of the district under the limitation imposed by section 11, article XI, Oregon constitution."
In § 3 it is provided that "each county school superintendent shall determine and certify to the county assessor and to the county treasurer the amount to be paid for such year to each public school district of the county entitled to participate in the distribution of the county's apportionment of said fund". Section 4 reads as follows:
"The county assessor shall subtract from the tax levies of the several public school districts the respective amounts so certified by the county school superintendent, and shall extend on the assessment roll in each case no more than the remainder as the property tax levy of the district for the current fiscal year. Immediately on extension of all such *Page 101
tax levies, the county assessor shall certify to the county school superintendent and to the county treasurer the amounts of such levies as made by the several public school districts, the several amounts by which such levies were reduced under the provisions of this act and the respective remainders extended as the final property tax levies of such districts." (Italics added.)
The foregoing provisions — sustained in the Bingham case — delineate the procedure by which income tax moneys are to reduce the ad valorem property tax of the school districts and at the same time "not impair the tax base". This was to be accomplished by subtracting the amount of the income tax revenues from the district levy and extending only the remainder on the assessment roll — the very method which the Tax Commission insists it is not required to follow. The provisions of the income tax law in effect in 1943 as to preserving the state tax base and expressing the intention that income tax revenues should be applied to reduce the state tax levy on property, are identical with the provisions upon those subjects in the 1947 act. See, Oregon Laws, 1943, Ch. 441, § 1, and Oregon Laws, 1947, Ch. 466, § 1. And, so far as applicable, they are substantially identical with the comparable provisions of the 1943 act involved in the Bingham case quoted above. In that act the legislature spelled out in plain language how these two purposes of reducing the tax levy on property and maintaining the tax base were to be effected, and I think it cannot be assumed that the somewhat ambiguous language of the income tax law touching these matters means anything different from the explicit directions to the assessor in the school support law, or that the legislature intended that a different rule of property tax reduction through the *Page 102
use of income tax revenues should apply to the tax commission than to county assessors.
The Bingham decision therefore is well-nigh controlling authority on the proposition that income tax revenues may be used only as a deduction from or offset against a levy on property.
Beyond that, the Bingham case determines the validity of the procedure authorized by Ch. 477, Oregon Laws, 1947 — a question raised not by counsel but by members of this court, who doubted whether the levy of a tax which is never to be collected but is to be offset by income tax revenues is an exercise of "the power to levy a tax" within the meaning of Art. XI, § 11, Oregon Constitution. I shared those doubts, but have concluded that, to hold that the election provided for by Ch. 477 is not such an election as is contemplated by the constitutional amendment, would be contrary to the clear implications of the Bingham decision, which gives express approval to a tax levy that was never intended to be collected in a case involving the application of that amendment.
The petition for rehearing accurately says: "The basic issue in this case is not where the money should go as a matter of fiscal policy, but who is authorized as a matter of law todecide where it should go." This "basic issue" was obscured on the original presentation of the case by irrelevancies of which the case was stripped on the reargument.
It goes without saying that the only duty of the court is to ascertain the legislative intent from the language of the law, and when ascertained to give it effect. I am entirely satisfied that the decision now rendered is a proper discharge of that duty. *Page 103
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Plaintiffs brought this action to recover on a contract entered into between one A.E. Hyde, Jr., plaintiffs' assignor, and the defendant. The cause was submitted to the court on an agreed statement of facts, and the court made findings of fact and conclusions of law, and entered judgment in favor of the defendant. Plaintiffs appeal.
The controversy resulting in the suit in question grew out of negotiations between the plaintiffs' assignor, A.E. Hyde, Jr., and the defendant. Hyde claimed to be the owner of certain formulae for the manufacture of a product known as "Diato." The complete negotiations between Hyde and Snyder are set forth in the agreed statement of facts, which reads:
(1) "That on the 20th day of December, 1919, at Salt Lake City, Utah, an agreement in writing was made and entered into by and between the defendant Grant Snyder and A.E. Hyde, Jr., which said agreement was in words and figures as follows:
"`Salt Lake City, Utah, December 20th, 1919.
"`A.E. Hyde, Consulting Engineer, Atlas Block, Salt Lake City,
"`Memorandum of Agreement.
"`In consideration of $1,000.00 this day paid to me by Grant Snyder, receipt of which is hereby acknowledged, I hereby agree to have transferred *Page 372
to a corporation organized by Grant Snyder with a capital stock of not less than $50,000.00 the rights to use "Diato" within the confines of the state of California and to deliver to said corporation to be formed, the formula under which said "Diato" is manufactured, provided that said Snyder notifies me on or before the 15th day of January, 1920 that he desires to go on with the deal, in which event he further agrees to pay me an additional $1,000.00 on or before the first day of March, 1920. Further, to have issued to me 20% of the capital stock of the corporation taking over the exclusive rights to use "Diato" in California. Further, a contract with said corporation agreeing to pay me 5% of the net profits of the corporation monthly until the sum amounts to $8,000.00 and this money all to have been paid to me within two years from date of acceptance.
"`In case the said Snyder at any time before the 15th day of January does not desire to go on with this deal; by notifying me of said fact, I agree to return to him the said $1,000.00 not later than the first day of March, 1920.
A.E. Hyde, Jr.'
(2) "That thereafter and on the respective dates on which they bear date, the following indorsements were made upon the face of the said agreement: `Mar.2d 1920. — This Memorandum of Agreement in its entirety is extended until May 1st, 1920.' [Signed] `A.E. Hyde, Jr.' `May 1, 1920. — This Memorandum of Agreement in its entirety is extended until July 1st, 1920.' [Signed] `A.E. Hyde, Jr.' `July 5, 1920. — This Memorandum of Agreement is extended until September 1st, 1920.' [Signed] `A.E. Hyde, Jr.'
(3) "That the sum of $1,000.00 was paid by said defendant to the said A.E. Hyde, Jr., upon the execution of said agreement as therein recited; and the further sum of $1,000.00, as provided in said agreement to be paid on or before the 1st day of March, 1920, was paid by said defendant to the said Hyde within the agreed time as extended by said endorsements.
(4) "That thereafter and on the 18th day of January, 1921, a written addendum to said agreement was made and entered into by and between the said defendant and the said Hyde, and was attached to the said agreement and made a part thereof, the said addendum being in words and figures as follows:
"`Addendum to Memorandum of Agreement Between Grant Snyder and A.E. Hyde, Jr., Dated December 20th, 1919, to Which This Addendum is Attached and Made a Part.
"`January 18, 1921.
"`Permission is hereby given to Grant Snyder to form the Pacific Diato Company as an Arizona corporation with 250,000 shares, par *Page 373
value $1.00 each, and assign to that company the rights covered in the within Memorandum Agreement to apply to Southern California only, in full payment of the capital stock. Said company must assume the payments to be made to me.
"`Subsequently, the capital stock can be increased up to 500,000 shares, and the rights for the remainder of California may be assigned by Grant Snyder to the company in full for the increased stock.
"`A.E. Hyde, Jr., is to receive 20% of the original capital and 20% of the increased capital.
"`If other corporations are organized to which the rights for Northern California will be assigned, then such separate corporations must also agree to make the payments to me as per attached agreement, and I am to receive 20% of the capital stock of such corporations.
"`I agree with Grant Snyder, and through him with the corporation or corporations he shall organize, to give him, or them, any knowledge relative to improvements in Formulae that I may hereafter secure or discover that may relate to Diato Products; and Grant Snyder agrees with me that he, and any companies he organizes will agree to give me the benefits of any Formulae or improvements of Formulae that they at any time discover or come in possession of as they relate to Diato Products. He further agrees for himself, and companies to be formed, to scrupulously guard all formulae, and to respect same as secret, and to refrain from using them in any locality other than the State of California.
"`That he, or they, will use due diligence in seeing that but one man in any company shall be in possession of the Formulae with the exception of a copy of same which shall be sealed and only used in case of emergency.
"`Grant Snyder further agrees to confine the activities of said company, or companies, to the State of California, and to neither manufacture nor ship outside of the State any materials relative to Diato Products without my, or my assigns, written consent.
"`A.E. Hyde, Jr.'
"`Above Addendum accepted and agreed to by me:
`Grant Snyder.'
(5) "That the said Hyde duly and fully performed his part of the said agreement and pursuant thereto communicated to defendant the formula as therein provided, and fully performed all other matters by him agreed to be performed.
(6) "That on January 19, 1921, defendant duly incorporated a corporation under the laws of the State of Arizona, with the knowledge and consent of the said Hyde, and thereafter caused to be issued *Page 374
to the said Hyde 20 per cent of the stock of said corporation, and the said Hyde or his assigns are now the owners thereof.
(7) "That thereafter and on the 4th day of February, 1921, at the first meeting of the Board of Directors of said corporation, defendant submitted to the said Board of Directors in writing the following communication:
"`February 4, 1921.
"`The Board of Directors of the Pacific Diato Manufacturing Company.
"`Gentlemen: I wish to submit to your company the following proposal:
"`First: I am the owner of a license from A.E. Hyde, Jr., of Salt Lake City, which grants to me the exclusive right to manufacture and sell Diato products within the State of California. In order to fully identify such license and to prevent mistakes, I am embodying a copy of this proposal preceding my signature. The experience in other states has shown that such license is very valuable.
"`Second: I propose to assign, set over, and transfer, and if this proposal is accepted and carried out, it will assign, set over and transfer to your corporation the rights, benefits and privileges of said license to apply only to Southern California (more particularly described as the territory of the state lying south of the north lines of the Counties of San Luis Obispo, Kern and San Bernardino).
"`Third: Your company in its resolutions of your Board accepting this proposal, must accept the terms, conditions and payments provided for in the said license and make the pledges required thereby.
"`Fourth: It is made the consideration for such assignment and transfer that your Board will authorize as and when requested the issue to me and persons designated by me of the entire capital stock of your corporation, to wit: 250,000 shares of a par value of $1.00 each; such stock to be declared and made full paid and non-assessable; and the said assignment and transfer must be declared by your Board to be of the value of all of said capital stock by proper resolutions. The qualifying shares issued to directors are accepted as issued in accordance herewith.
"`Fifth: The said license is as follows, to wit: (Copies of Memorandum of Agreement, endorsements thereon and addendum thereto, as in paragraphs 1, 2, and 4 of this statement.)
"`I beg to be advised of your action upon this proposal.
"`Yours respectfully, "`Grant Snyder.'
(8) "That thereupon the following proceedings were had as shown by the minutes of the Board of Directors of said corporation on the said 4th day of February, 1921: *Page 375
"`After the reading of the foregoing proposal, the following resolution was offered by Director Hayes, who moved its adoption:
"`Resolved, That the proposal of Grant Snyder, Dated February 4th, 1921, and just submitted to the Board, be, and the same is hereby accepted by this corporation; and that the rights, agreements and licenses secured thereunder in the judgment of the directors are worth the entire capital stock of the corporation, to wit, 250,000 shares of the par value of $250,000; and,
"`Resolved, That the said rights and property are absolutely necessary and desirable for the uses and purposes of this corporation.
"`Be it Further Resolved, That the Vice-President and the Secretary of the company be, and they hereby are directed to complete the purchase of said rights, agreements and licenses by the original issue of all of said capital stock in accordance with the said proposal, and this corporation hereby accepts the terms and conditions and payments provided for in said license and makes the pledges required there.
"`Resolved Further, That all of said shares when so issued and delivered shall thereupon and thereby become and be fully paid and non-assessable, in accordance with the Articles of Incorporation of the company, and in compliance with the terms of said proposal.
"`The motion to adopt said resolution was seconded by Director Street, and being put by the chairman, it was carried by the unanimous vote of all the directors present.'
(9) "That no payments have been made by the said corporation to the said Hyde or his assigns to apply upon said contract; but that the following payments in addition to the $2,000.00 hereinbefore referred to were made thereon by the defendant Grant Snyder to the said A.E. Hyde, Jr., on the respective dates indicated:
November 29, 1920 ............................................... $250.00
December 6, 1920 ................................................ 100.00
December 26, 1920 ............................................... 250.00
January 14, 1921 ................................................ 50.00
January 15, 1921 ................................................ 25.00
January 19, 1921 ................................................ 25.00
January 22, 1921 ................................................ 50.00
January 29, 1921 ................................................ 150.00
January 30, 1921 ................................................ 50.00
February 1, 1921 ................................................ 50.00
February 5, 1921 ................................................ 12.50
February 10, 1921 ............................................... 50.00
February 12, 1921 ............................................... 25.00
February 16, 1921 ............................................... 25.00
February 17, 1921 ............................................... 75.00
*Page 376
February 20, 1921 ............................................... 25.00
February 22, 1921 ............................................... 100.00
February 25, 1921 ............................................... 50.00
February 28, 1921 ............................................... 50.00
March 1, 1921 ................................................... 150.00
May 10, 1921 .................................................... 500.00
June 3, 1921 .................................................... 5.00
(10) "That on and prior to the 18th day of January, 1926, said Hyde, for a valuable consideration, to wit, the sum of Thirty-four Hundred ($3,400.00) Dollars then owing by him to plaintiffs, assigned all his right, title and interest in and to said contract to the said plaintiffs and plaintiffs are now the owners thereof.
(11) "That, subordinate to said assignment, last above mentioned, and for a valuable consideration, the said Hyde assigned all his equity in said contract to George H. Blood, and the said Blood, for a valuable consideration, afterwards assigned the same to the plaintiffs, who are now the owners thereof.
"Signed and dated at Salt Lake City, Utah, this 11th day of August, 1927.
"Frazer Wallis, "Attorneys for Plaintiffs. "Wilson I. Snyder, "Dan B. Shields, "Attorneys for Defendants."
Plaintiffs have assigned many errors, but the only point involved in the case is the liability of Snyder to pay the $8,000 mentioned in the agreement referred to.
Plaintiffs claim that Snyder was a promoter and personally liable for the said amount. The trial court found that the defendant did not at any time agree to pay A.E. Hyde, Jr., or his successor in interest, the plaintiffs herein, or any other person, the sum of $8,000, or any other sum.
Unless the trial court erred in finding that the defendant was not personally liable for the $8,000 the judgment must be affirmed. The duty of the court is to determine what the contract of the parties is; not to make a contract for them. The memorandum of agreement provides for the payment of certain money by Snyder; the transfer by Hyde of rights 1 to use Diato within the state of California to a corporation organized by Snyder; the additional *Page 377
payment of money by Snyder if he proceeds with the deal; the issuance to Hyde of 20 per cent of the capital stock of the corporation taking over all exclusive rights to use Diato in California, and then follows this language:
"Further, a contract with said corporation agreeing to pay me 5% of the net profits of the corporation monthly until the sum amounts to $8,000.00 and this money all to have been paid to me within two years from date of acceptance."
Plaintiffs insist that the provision of said memorandum of agreement that "this money all to have been paid to me within two years from date of acceptance" is in the nature of a guarantee on the part of the defendant that, in the event and regardless of whether or not the corporation paid 5 per cent of the net profits, the defendant would pay the $8,000 within two years from the date of acceptance. The unambiguous provision of the memorandum of agreement is, however, that a contract would be procured by Snyder from the corporation for the payment to Hyde of 5 per cent of the net profits of the corporation monthly until the sum of $8,000 had been paid. The fair interpretation of the provision that all the money should be paid within two years is that it was a further limitation of time within which the full amount should be paid by the corporation. No fair interpretation of the language used, nor any reasonable inference therefrom, would permit a finding that Snyder was guaranteeing the payment. He may have been a promotor in the sense of organizing the corporation, but he did not undertake to contract for it in the memorandum of agreement, but only to procure from the corporation a contract for the payment to Hyde of $8,000 in the manner and within the time provided. The only fair interpretation allowed by the language of the memorandum of agreement is that at most Snyder was a mere conduit through which Hyde was dealing directly with the corporation organized by Snyder, and, the contract being unambiguous in that respect, Hyde should not now be permitted to substitute Snyder as obligor in the place of the *Page 378
corporation. Doubtless his back sight is keener than his foresight, but that does not permit him to shift liability from the corporation to Snyder in the absence of fraud on Snyder's part, and no such claim is presented in this case.
That Hyde, as well as the defendant, contemplated that payments should be made by the corporation, is further suggested by the provision in the addendum that "said company must assume the payments to be made to me." Counsel for the plaintiffs insist that the general rule applicable to the transaction involved is stated in 14 C.J. p. 269, as follows: "Of course promoters of a corporation are personally liable on contracts which they have entered into personally, even though they have contracted for the benefit of the projected corporation, and although the corporation has been formed and has received the benefit of the contract, and they are not discharged from liability by the subsequent adoption of the contract by the corporation when formed, unless there is a novation or other agreement to such effect."
But, as we view this case, it is not one that falls within the rule. We cannot hold that Snyder agreed to pay the $8,000 personally for the benefit of the corporation, but we are of the opinion that the memorandum of agreement clearly sets forth that the personal liability of Snyder extended 2 only to the payment of the $2,000, which it is admitted he paid, and that his only further obligation was to organize the corporation and to secure a contract from the corporation to pay Hyde the $8,000 out of the net profits of the corporation, and that no personal liability was to rest upon the defendant for the payments.
Plaintiffs have cited several cases upon which they rely as authority for their position. They cite the case of Morse v.Tillotson Wolcott Co. (C.C.A.) 253 F. 340, 351, 1 A.L.R. 1485, and quote the following from the decision of that court:
"Where two or more persons agree that a corporation shall do a certain thing, which they can compel it to do, because they hold a majority of the stock, or otherwise, the corporation is not bound by *Page 379
their agreement, but they bind themselves individually, unless it is expressly agreed that the other party is looking to the corporation, and not to the promoters."
It need only be said, with reference to that case, that the following language: "Unless it is expressly agreed that theother party is looking to the corporation, and not to thepromoters," clearly makes an exception of a case like the one now before the court. Nor can it be said that in this case Snyder agreed that the corporation should pay the money in question. His agreement was that it should agree to pay the same.
If A agrees with B to procure a contract between B and C, and does thereafter procure such contract, the simplest rules of contract would be violated if B could be held liable for the breach of C thereunder solely upon his undertaking to procure such contract.
Plaintiffs cite the following cases: Queen City Furniture Carpet Co. v. Crawford, 127 Mo. 356, 30 S.W. 163, 166; EnnisCotton Oil Co. v. Burks (Tex.Civ.App.) 39 S.W. 966; Wells
v. Fay Egan Co., 143 Ga. 732, 85 S.E. 873, 874; Fentress v.Steele Sons, 110 Va. 578, 66 S.E. 870; Lewis v. Fisher,167 Mo. App. 674, 151 S.W. 172, 173. But none of the cases cited is authority for the contention of plaintiffs, but rather by inference is authority against them.
In Lewis v. Fisher, supra, the court said:
"The law is abundantly settled that, where persons associate together with the purpose of forming a corporation, and one or more of them contracts for the corporation with a third person in advance of the formation of the corporation, such person or persons may be held liable to respond on the contract * * *"
In Ennis Cotton Oil Co. v. Burks, supra, the court said:
"Where the promoters of a company which they intend to organize, but which is not yet in existence, enter into a contract in the name of such company, and there is no agreement that they shall not be personally liable, the promoters will be personally liable on the contract." *Page 380
In Wells v. Fay Egan Co., supra, the contract was entered into in the name of the proposed corporation for the purchase of certain machinery. The contract was signed "Ficklen Spoke Handle Company, by L.M. Wells."
In Queen City Furniture Carpet Co. v. Crawford, supra, the court said:
"But, even when a corporation de facto becomes de jure, and makes a contract of its own, which theretofore had been entered into by its promoters, the promoters are not thereby relieved from the burdens of their own contract; for the plaintiff may elect whether he will hold the corporation or the promoters, unless he had agreed in the first instance to look to the corporation alone, and the corporation has assumed the liablity."
Both plaintiffs and defendants have cited the case of Mt.Pleasant Coal Co. v. Watts (Ind.App.) 151 N.E. 7. In that case it was alleged that plaintiff entered into a contract with two of the defendants whereby defendants promised and agreed with plaintiff that, if he would assign a lease that he owned on certain lands, they would form a corporation with a capital stock of $25,000 issued and paid up, and would set aside and allot to the plaintiff one-sixth of the capital stock of said corporation, and would issue to him, in consideration of the assignment of such lease, $2,000 of the capital stock of the corporation, and would advance to him a sufficient sum of money without interest for him to purchase the balance of his one-sixth interest in said corporation, on the condition that he would pay for the balance of the stock out of the dividends accruing on all his stock and by paying $2 per day out of his salary as mine boss and superintendent of the proposed mine to be opened and constructed. Each of them further agreed, in consideration of such assignment of the lease to the proposed corporation, to employ appellant as mine boss and superintendent of the mine at $8 per day, steady employment during the remainder of his natural life. The question in that case was as to the personal liability of the defendants who entered into the contract. A jury found in favor of the plaintiff. That case *Page 381
certainly cannot be urged as authority for plaintiffs' contention. In the case just cited, the defendants agreed to employ appellant as mine boss and superintendent. It was not a case like the one now before the court. If the defendants had agreed, in consideration of the assignment of the lease to procure a contract from the corporation to be formed, whereby Watts would be employed as mine boss and superintendent, and the defendants had, after the organization of the corporation, procured such a contract, and the corporation had, after its organization, entered into a contract employing Watts as mine boss and superintendent, then the case would be in point.
The judgment is affirmed, at plaintiffs' costs.
CHERRY, C.J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.
EPHRAIM HANSON, J., being disqualified, did not participate herein.
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426 Mich. 223 (1986)
393 N.W.2d 847
HYDE
v.
UNIVERSITY OF MICHIGAN BOARD OF REGENTS
FAIGENBAUM
v.
OAKLAND MEDICAL CENTER
POWERS
v.
PEOPLES COMMUNITY HOSPITAL AUTHORITY
Docket Nos. 74541, 77213, 77815, (Calendar Nos. 6-8).
Supreme Court of Michigan.
Argued March 4, 1986.
Decided October 3, 1986.
*228 Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw) for plaintiffs Hyde.
*229 Fieger & Fieger, P.C. (by Geoffrey N. Fieger), for plaintiff Faigenbaum.
William S. Stern, P.C., for plaintiff Powers.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Mark D. Willmarth and James D. Zazakis), for defendant University of Michigan Board of Regents.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and George L. McCargar and Alan Hoffman, Assistant Attorneys General, for defendant Oakland Medical Center.
Cozadd, Shangle, Smith & Andrews (by B. Ward Smith and John R. Day) for defendant Peoples Community Hospital Authority.
Amici Curiae:
Richard M. Goodman, P.C. (by Susan E. Lister), for Michigan Trial Lawyers Association.
Sommers, Schwartz, Silver & Schwartz, P.C. (by Richard D. Toth).
CAVANAGH, J.
In Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 NW2d 641 (1984), this Court attempted to clarify the parameters of sovereign, governmental, and individual immunity from tort liability granted by the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., and common law. In particular, we redefined the term "governmental function," which appears in § 7 of the act, MCL 691.1407; MSA 3.996(107), as we believed the Legislature *230 intended it to be defined.[1] None of the nine consolidated cases decided in Ross involved the tort liability of a public general hospital, however.
In each of these cases, the plaintiffs seek to hold a public general hospital or medical facility vicariously liable for the negligent diagnosis, treatment, or care rendered by the hospital's employees or agents. Plaintiffs maintain that such hospitals can be held liable in a tort cause of action pursuant to Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978). Two common questions are presented:
1) Should Ross be given prospective effect only or retroactive effect?
2) Did Ross impliedly overrule that portion of Parker which held that the day-to-day operation of a public general hospital is not a governmental function?
We must also decide whether, and under what circumstances, the operation of a public general hospital or medical facility constitutes a proprietary function, which is not entitled to immunity from tort liability under § 13 of the act, MCL 691.1413; MSA 3.996(113).
We hold that the rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved.
*231 We further hold that to the extent that the diagnosis, treatment, and care of patients at a public general hospital or medical facility are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law, the hospital or facility is entitled to immunity from tort liability under § 7. To the extent that Parker held that such activities do not constitute the exercise or discharge of a governmental function, it was impliedly overruled by Ross. In light of 1986 PA 175, however, a governmental agency can be held liable for torts arising out of the ownership or operation of a hospital or county medical facility where the cause of action accrues on or after July 1, 1986.
Finally, we hold that only activities which are conducted primarily for the purpose of producing a pecuniary profit, and which are not normally supported by taxes or fees, are proprietary functions under § 13. The fact that a governmental agency produces a pecuniary profit may be evidence that the agency is engaged in a proprietary function, but it is not conclusive evidence. The focus instead should be on the primary intended purpose of the governmental activity and how the activity is normally funded.
I. FACTS
A. HYDE
Plaintiff Marcia Hyde was treated at the University of Michigan Hospital on July 8, 1974. On June 28, 1976, plaintiffs filed a medical malpractice suit in the Court of Claims, alleging that the hospital employees' negligent diagnoses and medical treatment caused Ms. Hyde to develop a serious post-surgical infection. Defendant Board of Regents asserted governmental immunity as an affirmative *232 defense in its answer. Following a pretrial conference, a pretrial summary was filed on March 30, 1977. The summary indicated that the trial court had given plaintiffs permission to amend their pleadings to allege that the injury had arisen out of the performance of a proprietary function.[2] Further proceedings apparently were held in abeyance pending this Court's decision in Parker.
After Parker was decided, defendant moved for accelerated judgment in April, 1979. Although Parker had held that public general hospitals are not immune from tort liability, defendant argued that this holding should not be given retroactive effect. Before a decision was rendered, this precise issue was resolved by Murray v Beyer Memorial Hospital, 409 Mich. 217; 293 NW2d 341 (1980). Murray held that Parker was to be applied to all cases pending on December 27, 1978, in which an express challenge to governmental immunity had been made and preserved.
Plaintiffs did not file an amended complaint alleging that defendant had been engaged in a proprietary function until October 29, 1982. Defendant moved again for accelerated judgment, claiming that plaintiffs had not made or preserved an express challenge to its governmental immunity until the amended complaint was filed. Since the filing occurred long after Parker was decided, defendant argued that Parker was inapplicable. Plaintiffs countered that they had expressly challenged defendant's immunity prior to Parker at *233 the pretrial conference and the challenge had been preserved by the pretrial summary.
The trial court accepted defendant's argument and entered a judgment for defendant in an order filed February 9, 1983. A majority of the Court of Appeals affirmed.[3] Plaintiffs' application for leave to appeal was pending in this Court when Ross was issued. We thereafter granted leave to appeal. 424 Mich. 858 (1985).
B. FAIGENBAUM
Plaintiff is the guardian of his mother, Anita Katz. Ms. Katz has a long history of mental illness and has been hospitalized several times. On November 20, 1976, she was admitted to Clinton Valley Center, a state psychiatric facility, exhibiting abnormal twitching and movements of her mouth, face, limbs, and tongue.
In February, 1977, Ms. Katz was referred to Oakland Medical Center for a physical examination. The center was administered by the Department of Mental Health and provided general medical services to psychiatric patients. Dr. Joseph Chandler, a neurologist at the center, concluded that Ms. Katz was suffering from a degenerative nerve disease known as Huntington's chorea. Dr. Chandler prescribed Haldol for the condition. Ms. Katz had previously been treated for her mental illness with Haldol and other neuroleptic drugs, such as Thorazine, Stelazine, and Mellaril. When Ms. Katz' condition did not improve, her family insisted that the Clinton Valley Center discontinue administering any neuroleptic drugs. However, her condition did not substantially improve.
In 1979, plaintiff sued eleven doctors, two hospitals, *234 and three drug companies in the Wayne Circuit Court, alleging, inter alia, malpractice and products liability. A suit was also commenced in the Court of Claims against the Oakland Medical Center and Clinton Valley Center. Plaintiff alleged that the doctors had failed to diagnose and treat Ms. Katz for tardive dyskinesia, a motion disorder caused by neuroleptic drugs such as Haldol.[4] It was further alleged that a psychiatrist or neurologist should consider tardive dyskinesia as a possible diagnosis when presented with a patient exhibiting abnormal bodily movements who has a history of exposure to neuroleptic drugs. Proper treatment requires discontinuation of all neuroleptic drugs to prevent the condition from becoming permanent. Plaintiff maintained that Ms. Katz had sustained severe and permanent brain damage and irreversible motor disturbances from repeated administrations of Haldol.
The two actions were joined for trial. Clinton Valley Center was granted summary judgment on the ground of governmental immunity.[5] Several doctors employed by the center were dismissed either on governmental immunity grounds or because plaintiffs failed to show at trial that the doctors were responsible for Ms. Katz' care. A contract claim against the Oakland Medical Center was struck as being duplicative of plaintiff's tort claim. Plaintiff eventually settled with six *235 doctors (including Dr. Chandler), the two hospitals, and the drug companies for $378,000. The only defendant remaining at the close of proofs was Oakland Medical Center. A key issue at trial was whether the center was immune from tort liability under Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 (1978), because the center treated psychiatric patients and was run by the Department of Mental Health.
On July 27, 1982, the circuit court concluded that the Oakland Medical Center could be held liable under Parker because it rendered only general medical care. The court also concluded that Dr. Chandler had been negligent in failing to obtain a complete medical and drug history, to consider tardive dyskinesia as a possible diagnosis, and to familiarize himself with the potential side effects of Haldol. Plaintiff was awarded $1,000,000 in damages (less settlements), $30,000 in attorney fees, and over $15,000 in expert witness and other fees.
The center's appeal was pending in the Court of Appeals when Ross was decided. The Court initially concluded that Ross should be applied to those cases pending on appeal when Ross was decided. Applying the new definition of "governmental function," the Court held that the center was entitled to immunity because the medical treatment rendered was expressly and impliedly authorized by the state constitution, statutes, and administrative regulations. It rejected the argument that the operation of a governmental care facility is a proprietary function because a fee is charged for medical services or an incidental profit is generated. Plaintiff's belated argument that the center could be held liable for breach of contract was rejected because plaintiff had failed to cross-appeal the dismissal of the contract count. The *236 judgment for plaintiff was therefore reversed. 143 Mich. App. 303; 373 NW2d 161 (1985). We granted plaintiff's application for leave to appeal. 424 Mich. 857 (1985).
C. POWERS
On January 10, 1981, Frank Powers was admitted to Annapolis Hospital, a public general hospital operated by defendant Peoples Community Hospital Authority (PCHA). Mr. Powers was diagnosed as suffering from a myocardial infarction. He died several days later, allegedly after his pacemaker malfunctioned.
Plaintiff, decedent's wife, filed suit in April, 1982, against the PCHA and two of its physicians, Drs. Bercu and Jahan. She alleged that the doctors and staff had failed to monitor and treat decedent's heart condition properly. Plaintiff and Dr. Bercu settled for $25,000. The PCHA was granted partial summary judgment to the extent that plaintiff sought to hold it vicariously liable for Dr. Bercu's negligence.[6]
After Ross was decided, the PCHA moved for summary disposition on the ground of governmental immunity.[7] An evidentiary hearing was held, primarily to determine whether Mr. Powers' death *237 arose during the performance of a proprietary function. The undisputed evidence showed that Annapolis Hospital charged for its medical services. It also received tax money from the twenty-four southeastern Michigan communities which participate in the PCHA. The PCHA had amassed substantial sums in its depreciation, excess revenue, and bond and interest accounts. However, none of these funds had been distributed to the state, the participating communities, or the directors and officers of the PCHA or the hospital.
Relying on Faigenbaum, the circuit court concluded that Ross, rather than Parker, should be applied. It found that the operation of the hospital by the PCHA constituted a governmental function because it was expressly authorized by statute. The court further concluded that under § 13 of the governmental immunity act, it had to determine whether the hospital's rendering of medical care for a fee was conducted primarily for the purpose of producing a pecuniary profit. It found that the primary purpose of the PCHA and Annapolis Hospital was to provide health care to the surrounding communities. The PCHA'S motion for summary disposition was therefore granted.[8]
Plaintiff filed an application for leave to appeal with the Court of Appeals. This Court sua sponte granted leave to appeal prior to the decision of the Court of Appeals. 424 Mich. 858 (1985).
II. RETROACTIVITY OF ROSS
Our first task is to determine what case law is applicable in each case. Prior to Parker, the operation of a public general hospital was considered a governmental function under both common law and § 7 of the governmental immunity act. See *238 Parker, 404 Mich 190-191; Martinson v Alpena, 328 Mich. 595; 44 NW2d 148 (1950); Nicholson v Detroit, 129 Mich. 246; 88 N.W. 695 (1902). Parker rejected this well-established case law and concluded that a public general hospital can be held liable for torts committed during its day-to-day operations. Although Parker did not state whether its new rule of law should be given retroactive effect, the question was resolved in Murray v Beyer Memorial Hospital:
[T]he rule of Parker is to be applied to all cases pending on December 27, 1978, in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date. [409 Mich. 221.]
The Court justified this limited retroactive application as follows:
Defendant [hospital] ... urges that Parker v Highland Park, supra, be applied prospectively from the date the opinion was released and not cover other cases pending on that date.
We are satisfied that the adventitious disposition of Parker while we held plaintiffs' application in abeyance should not deprive plaintiffs of the benefit of the rule or make available to defendant a defense we will no longer enforce for others.
We acknowledge that whenever a new rule of law is promulgated some unfairness to those who have relied on the old rule may be claimed. Courts, however, do not alter an established rule of law without thorough evaluation of the policy considerations involved. When the decision to overrule precedent is finally made, the Court is satisfied that the importance of the result reached outweighs any unfairness to those negatively affected by the decision. Applying the ruling prospectively with the exception of that case and cases pending on appeal in which the issue was *239 raised and preserved is an attempt to limit any such unfairness. [Id., pp 222-223.][[9]]
Justice WILLIAMS further noted:
[U]nfortunately, the state of the law as to what constitutes governmental immunity, without further legislative definition, has for some years been in flux.... [T]he opinions of this Court have been such as should warn those who might possibly be affected that they had better seek protection either through insurance or through legislative redefinition. [Id., p 224.]
Like Parker, Ross did not indicate whether it should be applied retroactively. Nevertheless, the opinion repeatedly noted that the rules and definitions articulated therein are new[10] and that the judiciary has the power to redefine the term "governmental function." 420 Mich 609-610.
Plaintiffs present several reasons why Ross should be applied only to cases commenced after the opinion was issued. First, Parker clearly held that immunity from tort liability did not extend to public general hospitals. This holding has never been seriously challenged in the courts or by the Legislature. Second, there was no indication that Ross would overrule Parker, since none of the nine consolidated cases decided in Ross involved the immunity of a public general hospital. Finally, plaintiffs note that other decisions have been given prospective effect only. See, e.g., Putney v Haskins, 414 Mich. 181; 324 NW2d 729 (1982); Tebo v Havlik, 418 Mich. 350; 343 NW2d 181 (1984).
*240 Similar arguments were unsuccessfully presented by public general hospitals to the Murray Court in an effort to limit the effect of Parker. Although the tort liability of public general hospitals may not have been seriously questioned after Parker, the definition of "governmental function" was vigorously debated. The judiciary has wrestled with this problem for over a century with little guidance from the Legislature.[11] We therefore place little reliance on plaintiffs' "legislative acquiescence" argument.
Furthermore, the consolidation of nine factually diverse cases should have signaled to the bench and bar that this Court was reevaluating the definition of "governmental function." Beginning with Parker, no single definition had been adopted by a majority of this Court. In addition, the case law in general was "confused [and] often irreconcilable." Ross, 420 Mich. 596. Given the uncertainty of the law in this area, the bench and bar should have realized that some of our prior decisions, including Parker, might not survive after Ross.
Finally, the general rule is that judicial decisions are to be given complete retroactive effect. We often have limited the application of decisions which have overruled prior law or reconstrued statutes. Tebo, 418 Mich 360-361. Complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law. Id., pp 361-363.[12]
*241 We believe that Ross should be given the same limited retroactive effect that Parker was given by Murray. We therefore hold that the rules articulated in Ross should be applied to all cases commenced after the date our opinion was issued (January 22, 1985), and to those cases pending either in trial or appellate courts on that date which properly raised and preserved a governmental immunity issue.
In Hyde, the initial complaint was filed prior to Parker. The amended complaint, which alleged that the University Hospital had been engaged in a proprietary function, was filed after Parker, but before Ross. The amended complaint was filed with the trial court's permission, and defendant has never argued that the pleading should be struck. Defendant only claimed that plaintiffs' challenge to its immunity came too late to take advantage of Parker. Even if we were to accept defendant's argument, the fact remains that this case was pending in this Court when Ross was issued.[13] Since plaintiffs properly raised and preserved a challenge to defendant's immunity from tort liability in their amended complaint and subsequent appeals, plaintiffs' malpractice claim should be decided pursuant to Ross.
In Faigenbaum, plaintiff's complaint against the Oakland Medical Center was filed after Parker *242 was decided. The center unsuccessfully argued that it was engaged in a governmental function under Perry. The center's appeal was pending in the Court of Appeals when Ross was decided. Since the center properly raised a governmental immunity issue in that appeal, the Court of Appeals correctly concluded that the case should be decided pursuant to Ross.
In Powers, plaintiff's malpractice claim was filed after Parker was decided. Ross was issued while the case was still pending in circuit court. The court correctly concluded that plaintiff's claim should be decided pursuant to Ross.
III. VIABILITY OF PARKER AFTER ROSS
Our second task is to determine whether Ross impliedly overruled Parker's holding that the operation of a public general hospital is not a governmental function under § 7 of the governmental immunity act.
Three opinions were written in Parker, each adopting a different definition of "governmental function." Justice FITZGERALD, joined by Chief Justice KAVANAGH and Justice LEVIN, adopted the narrow "of essence to government" test, i.e., the activity must be of such a peculiar nature that it can only be performed by government. Justice FITZGERALD concluded that the operation of a hospital is essentially a business, regardless of who operates it. Therefore, a governmental agency which decides to engage in such activities should not be entitled to immunity from tort liability. 404 Mich 194-195.
Justice MOODY concurred, but applied the broader "essence of governing" test, i.e., the activity must be one which can be effectively accomplished only by government. Noting the large *243 number of private general hospitals and the governmental agency's lack of direct involvement in a hospital's day-to-day operations, Justice MOODY concluded that public general hospitals are not entitled to immunity. Id., pp 200-202.
Justice RYAN, joined by Justices WILLIAMS and COLEMAN, dissented. Applying the "common good of all" test, Justice RYAN concluded that the examination, diagnosis, and treatment of patients are activities entitled to immunity because they promote the general public health. Id., pp 203-204.
None of the cases decided in Ross involved the tort liability of a public general hospital. However, Ross explicitly rejected each of the definitions of "governmental function" used in Parker. 420 Mich 614-619. "Governmental function" was redefined as
an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. [Id., p 620.]
We noted that this definition "is broad and encompasses most of the activities undertaken by governmental agencies." Id., p 621.
Under Ross, a public general hospital or medical facility is engaged in the exercise or discharge of a governmental function whenever its activities are expressly or impliedly mandated or authorized by constitution, statute, or other law. To the extent that Parker held that such activities do not constitute a governmental function, Parker was impliedly overruled by Ross.[14]
*244 Plaintiffs vehemently argue that it is "unjust" to overrule Parker and deny an injured person the right to recover damages merely because he sought medical care from a public hospital.[15] We are not unsympathetic to these arguments. However, the parameters of sovereign and governmental immunity are governed by statute. Our duty is to interpret the statutory language in the manner intended by the Legislature which enacted § 7 in 1964 and amended it in 1970.
"The controlling test as to the meaning of a statutory provision is always the legislative intent when fairly ascertainable. But the `intent' referred to is the one entertained by the legislature at the time of the passage of the act, and not the intent expressed by a subsequent amendment. In the instant case, to interpret the subsequent amendment as an indication of the legislature's original intent would be mere speculation, not judicial construction." [Detroit Edison Co v Dep't of Revenue, 320 Mich. 506, 519; 31 NW2d 809 (1948).]
See also People v Gilbert, 414 Mich. 191, 200; 324 NW2d 834 (1982).
The governmental immunity act was passed in 1964 to halt this Court's attempts to abolish sovereign and governmental immunity. See Ross, pp 603-606. In both 1964 and 1970, the operation of a public general hospital was considered a governmental function. Parker, 404 Mich 190-191. There is no indication, either in the words of the act or *245 the legislative history, that these Legislatures intended to abrogate a public general hospital's immunity from tort liability. As noted in Ross:
The consensus which our efforts produce today should not be viewed as this Court's individual or collective determinations of what would be most fair or just or the best public policy. The consensus does reflect, however, what we believe the Legislature intended the law to be in this area. [Id., p 596.]
We suggested in Ross that plaintiffs' arguments would be better addressed to the Legislature. Id., p 621. In response to Ross, 1986 PA 175 was enacted, effective July 1, 1986. The Ross definition of "governmental function" is codified in § 1(f).[16] However, § 7(4) specifically allows tort liability to be imposed on a governmental agency which owns or operates a public general hospital or county medical facility.[17] By adopting this narrow exception to the *246 broad immunity granted by Ross and codified by 1986 PA 175, it is clear that the Legislature believed that Ross had impliedly overruled Parker.
In light of this recent legislative activity, today's holding will have limited effect. Sovereign or governmental immunity from tort liability will be extended to a governmental agency operating a public general hospital or medical facility only in those cases involving a cause of action accruing prior to July 1, 1986, which was pending on January 22, 1985, or commenced on or after that date.[18] Where the cause of action accrues on or after July 1, 1986, a governmental agency may be held liable for torts arising out of the ownership or operation of a hospital or county medical facility.
IV. APPLICATION OF ROSS
In each case, plaintiffs seek to hold the defendant vicariously liable for the negligence of its employees or agents. Vicarious tort liability can only be imposed upon a governmental agency where:
1) the employee or agent committed a tort while acting during the course of employment and within the scope of his authority, and
2) the employee or agent committed the tort while engaged in an activity which was nongovernmental or proprietary or which fell within an *247 exception to the governmental immunity act. Ross, pp 623-625.
There is no suggestion that the employees or agents in each case were acting outside the course of employment or scope of authority when the alleged torts were committed. Other than the "proprietary function" exception, plaintiffs have not alleged that any other exception is applicable. We first decide whether the diagnosis, treatment, and care rendered by each hospital, through its employees and agents, constituted the exercise or discharge of a governmental function.
HYDE
Plaintiffs alleged that the employees of the University Hospital negligently diagnosed and treated Ms. Hyde's fracture. The question is whether the diagnosis and treatment of patients were activities which were expressly or impliedly mandated or authorized by constitution, statute, or other law.
The University of Michigan is statutorily required to maintain a department of medicine. MCL 390.8; MSA 15.908. The Legislature expressly authorized the construction and operation of the University Hospital through several appropriation acts.[19] The operation of a hospital implicitly includes the diagnosis and treatment of patients. Since these activities were implicitly authorized by statute, the employees were engaged in the exercise or discharge of a governmental function when the alleged tort was committed.
FAIGENBAUM
Plaintiff argues that the operation of defendant *248 Oakland Medical Center by the Department of Mental Health was an unauthorized, ultra vires activity. Thus, any diagnosis and treatment rendered to Ms. Katz as part of the center's general medical operations did not constitute the exercise or discharge of a governmental function. To evaluate this argument fully, the history and purpose of the center must be detailed.
Oakland Medical Center at all times was operated by the DMH. The center was established in 1968 as the medical-surgical unit of the Clinton Valley Center (then the Pontiac State Hospital). It became a separate administrative unit within the DMH in 1971. The center was created because local medical facilities were reluctant to render medical treatment to mentally ill and developmentally disabled persons residing in state facilities. The center rendered medical treatment primarily to patients from Clinton Valley Center, other state psychiatric facilities, and centers for the developmentally disabled.[20] By 1978, several community hospitals had contracted with the DMH to provide medical and surgical services to mentally ill and developmentally disabled patients. The Oakland Medical Center thereafter discontinued operations.
Plaintiff argues that there is no constitutional or statutory authority which permitted the DMH to establish and operate a general medical care facility. Plaintiff believes that the Court of Appeals incorrectly relied upon § 116 of the Mental Health Code, MCL 330.1116; MSA 14.800(116). That statute *249 allegedly permits the DMH to function only in areas concerning mental health.
We do not interpret the DMH's powers so narrowly. The Legislature expressly authorized the creation and operation of a general medical-surgical unit within the DMH through several appropriations acts. See, e.g., 1967 PA 32; 1971 PA 126. The latter act specifically noted:
The goal of the medical services component [program] is to restore and maintain the physical well-being of the hospital patient population by providing diagnostic, laboratory, medical, surgical, dental services and specialized nursing care for infirm patients.
Each resident of a mental health facility must be given a comprehensive physical and mental examination prior to, or soon after, admission and must be reexamined at least annually. MCL 330.1710; MSA 14.800(710). Recipients of mental health services are entitled to "basic human dignity" under MCL 330.1704(3); MSA 14.800(704)(3), which would include the right to prompt and adequate general medical care. Even if these statutes did not exist, the care and treatment of persons residing in state mental health facilities include an implied responsibility to protect both the residents' physical and mental well-being. See Ross, pp 641, 643. The DMH was ultimately responsible for ensuring that Ms. Katz received necessary treatment for both her physical and mental conditions.
There is nothing in § 116 of the Mental Health Code which would prevent the DMH from fulfilling its statutory duties by operating a general medical care facility for mentally handicapped patients. Section 116 provides in pertinent part:
*250 Pursuant to section 51 of article 4 of the constitution of 1963, which declares that the health of the people of the state is a matter of primary public concern; and pursuant to section 8 of article 8 of the constitution of 1963, which declares that services for the care, treatment, or rehabilitation of those who are seriously mentally handicapped shall always be fostered and supported; the department shall continually and diligently endeavor to ensure that adequate and appropriate mental health services are available to all citizens throughout the state. To this end the department shall have the following general powers and duties:
(a) It may function in the areas of mental illness, mental retardation, organic brain and other neurological impairment or disease, alcoholism, and substance abuse. Priority shall be given to the areas of mental illness and mental retardation. Within the area of mental illness priority shall be given to the more severe forms of such disability.
(b) It may provide, on a residential or nonresidential basis, any type of patient or client service including but not limited to prevention, diagnosis, treatment, care, education, training, and rehabilitation.
* * *
(d) It may operate directly or through contractual arrangement such facilities as are necessary or appropriate.
* * *
(j) It may enter into any agreement, contract, or arrangement with any public or nonpublic entity that is necessary or appropriate to fulfill those duties or exercise those powers that have by statute been given to the department.
* * *
(l) It shall have such powers as are necessary or appropriate to fulfill those duties and exercise those powers that have by statute been given to the department and which are not otherwise prohibited by law.
*251 Subsection (a) specifically permits the DMH to function in areas of organic brain disease and neurological impairment. (Ms. Katz was referred to the Oakland Medical Center because her treating psychiatrists suspected neurological problems.) Subsection (b) authorizes the DMH to provide any type of patient service, including diagnosis, treatment, and care. There is no requirement that the services must be related solely to the patient's mental health. The DMH can provide these services directly, or through contractual arrangement under subsections (d) and (j). Defendant Oakland Medical Center was created because the DMH was unable to provide sufficient medical and surgical services on a contractual basis.
We conclude that the DMH was expressly and impliedly mandated by statute to secure, in some manner, those general medical services necessary for Ms. Katz's physical well-being. The DMH was expressly authorized by statute to provide such services directly through the Oakland Medical Center. The operation of a general medical facility implicitly includes the diagnosis and treatment of patients. Therefore, the employees of defendant center were engaged in the exercise or discharge of a governmental function when the malpractice occurred.
POWERS
Plaintiff initially argues that Annapolis Hospital is not entitled to immunity from tort liability because it is not a "governmental agency." Section 1(d) of the governmental immunity act, MCL 691.1401(d); MSA 3.996(101)(d), defines "governmental agency" as "the state, political subdivisions, and municipal corporations." These terms are also defined in § 1:
*252 (a) "Municipal corporation" means any city, village, township or charter township, or any combination thereof, when acting jointly.
(b) "Political subdivision" means any municipal corporation, county, township, charter township, school district, port district, or metropolitan district, or any combination thereof, when acting jointly, and any district or authority formed by 1 or more political subdivisions.
(c) "State" means the state of Michigan and its agencies, departments, and commissions, and shall include every public university and college of the state, whether established as a constitutional corporation or otherwise.
Although hospitals are not listed in these definitions, plaintiff has overlooked the entity she actually sued. Plaintiff properly sued the Peoples Community Hospital Authority, an entity formed by twenty-four southeastern Michigan communities, which runs five community hospitals, including Annapolis Hospital. An authority formed by one or more political subdivisions is included within § 1(b)'s definition of "political subdivision."[21]
Plaintiff also argues that there is no statute or other law authorizing or mandating the specific types of routine medical care provided by public general hospitals. Plaintiff has misperceived how the Ross definition of "governmental function" *253 should be applied. It is not necessary that there be a specific statutory provision mandating or authorizing a hospital to set bones or deliver babies. Such an interpretation would emasculate the governmental immunity act and Ross, as well as result in a proliferation of unnecessarily detailed legislation. Ross only requires that there be some constitutional, statutory, or other legal basis for the activity in which the governmental agency was engaged when the alleged tort was committed. The governmental immunity act, as interpreted by Ross, permits imposition of tort liability upon a governmental agency only where the agency was engaged in an ultra vires activity, i.e., an activity which is not expressly or impliedly mandated or authorized by constitution, statute, or other law. Ross, p 620.
We conclude that the care and treatment of patients by Annapolis Hospital were expressly authorized by statute. Defendant authority was established pursuant to the joint hospital authority act, MCL 331.1 et seq.; MSA 5.2456(1) et seq. This act authorizes two or more cities, townships, and villages to incorporate a hospital authority in order to construct, own, and operate one or more community hospitals. "Hospital" is specifically defined in the act as a building, structure, or related facility "intended for, incidental, or ancillary to the care of the sick or wounded, or for the care of persons requiring medical treatment...." MCL 331.1(2); MSA 5.2456(1)(2). The employees and agents of Annapolis Hospital were therefore engaged in the exercise or discharge of a governmental function when the alleged torts occurred.
V. "PROPRIETARY FUNCTION" EXCEPTION
Although the employees and agents in each case *254 were engaged in the exercise or discharge of a governmental function when they allegedly committed a tort, this does not mean that defendants are automatically entitled to immunity from tort liability. It must also be determined whether the activity at issue constituted the performance of a proprietary function. See Ross, p 613. If so, defendants can be held vicariously liable under § 13 of the governmental immunity act:
The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the state for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965. [MCL 691.1413; MSA 3.996(113).][[22]]
Although § 13 only refers to the state, Ross judicially extended the statutory definition of "proprietary function" to nonsovereign governmental agencies. Id., pp 613-614. Thus, the following discussion of the "proprietary function" exception applies to all state and local governmental agencies.
In each case, plaintiffs maintain that the hospital or medical facility was performing a proprietary function because it charged a fee for the diagnosis, treatment, and care rendered to its patients. In Hyde, plaintiffs raised this allegation *255 in their amended complaint. However, the lower courts have never passed upon the merits of this allegation. Nor is the record complete enough to permit full review of this claim.
In Faigenbaum, the "proprietary function" exception was not raised until after Ross was decided and shortly before oral arguments were held by the Court of Appeals. That Court held, apparently as a matter of law, that the operation of a governmental care facility cannot be deemed a "proprietary function," even where the facility charges for its services and produces an incidental profit. 143 Mich App 313-314. However, this precise issue was not fully litigated at trial.
Powers is the only case in which a full evidentiary hearing has been conducted, and findings of fact and law made, as to whether the diagnosis, treatment, and care of patients at Annapolis Hospital constituted a proprietary function. We therefore begin our analysis of the "proprietary function" exception with a summary of the undisputed evidence presented in Powers.
Defendant PCHA was organized in 1945 to provide medical services to the rapidly growing western Wayne County communities. The PCHA currently operates five community hospitals, which serve approximately 250,000 patients annually. The number of participating communities has grown from nine to twenty-four. Each community levies an assessment on its residents to redeem construction bonds. In return, the residents are charged a lower fee for medical services than that charged to nonresident patients. Most of the PCHA'S revenue is generated from fees charged for medical services rendered.
The PCHA actively competes with other health care providers for both resident and nonresident patients. In response to changing medical needs of *256 the communities and competition from private health care providers, the PCHA has created an HMO-type health plan, built outpatient health care facilities, and entered into contractual arrangements with non-PCHA hospitals and local employers to gain more patients. Currently, the PCHA is a well-managed and fiscally sound governmental agency. As of June 30, 1983, the PCHA had $9.9 million in its operation, maintenance, and receiving fund; over $30 million in its depreciation (capital expenditures) fund; and $8.3 million in its bond and interest redemption fund.[23] In addition, the revenue over expense account contained over $5.5 million as of June 30, 1983, and $8.4 million as of June 30, 1984.[24] The PCHA has never distributed excess revenues to the state, participating communities, or its board of directors.
The trial court found that § 13 of the governmental immunity act contains two tests: 1) was the activity in question conducted primarily for the purpose of producing a pecuniary profit, and 2) was the activity supported by taxes or fees? The court concluded that even though the PCHA had excess revenues, it did not operate its hospitals primarily to produce a pecuniary profit. Rather, the history of the PCHA clearly indicated that it *257 was established to provide hospital and medical care to the participating communities. The court noted that the excess revenues were channeled into other accounts when necessary and were used solely to operate the hospitals. The fact that the PCHA actively competed with other health care providers went more to Justice MOODY'S "essence of governing" test, which the court believed was "ostensibly overruled" by Ross. The court also noted that the PCHA was funded in part by taxes. Summary disposition was granted to the PCHA because the operation of the hospitals was a governmental, nonproprietary function.
The trial court correctly interpreted § 13. Prior to the enactment of the governmental immunity act, decisions of this Court had differed as to how much, if any, incidental profit could be generated before an activity was deemed to be a proprietary function.[25] However, the Legislature has specifically defined "proprietary function" in § 13 of the act:
Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state,[26] excluding, however, any activity normally supported by taxes or fees.
Unlike the definition of "governmental function," the definition of "proprietary function" is quite specific and needs no interpretation. Before *258 an activity is deemed a proprietary function, it must satisfy two tests:
1) The activity must be conducted primarily for the purpose of producing a pecuniary profit, and
2) The activity cannot normally be supported by taxes or fees.
There is nothing in § 13 which requires that the activity actually generate a profit before it can be deemed a proprietary function. If the availability of immunity turned solely upon an examination of the ledgers and budgets of a particular activity, a fiscally responsible governmental agency would be "rewarded" with tort liability for its sound management decisions. Such a rule could discourage implementation of cost-efficient measures and encourage deficit spending. Moreover, the rule would be difficult to implement and inconsistent in its results. If an activity operates at a loss one year, but makes a profit the next year, does the availability of immunity from tort liability also change? If one of the hospitals operated by the PCHA consistently operates at a loss, would immunity be granted to that hospital, but not the other fiscally sound hospitals?
The existence of a profit is not an irrelevant consideration, however. The fact that a governmental agency pursues an activity despite consistent losses may be evidence that the primary purpose is not to make a pecuniary profit,[27] but it is not conclusive evidence.[28] Conversely, the fact that the activity consistently generates a profit may evidence an intent to produce a profit. However, § 13 permits imposition of tort liability only *259 where the primary purpose is to produce a pecuniary profit. It does not penalize a governmental agency's legitimate desire to conduct an activity on a self-sustaining basis.
Another relevant consideration is where the profit generated by the activity is deposited and how it is spent. If the profit is deposited in the governmental agency's general fund or used to finance unrelated functions, this could indicate that the activity at issue was intended to be a general revenue-raising device.[29] If the revenue is used only to pay current and long-range expenses involved in operating the activity, this could indicate that the primary purpose of the activity was not to produce a pecuniary profit.[30]
The trial court concluded that the PCHA'S primary purpose in operating its hospitals was to provide hospital and medical care to area residents. In light of all the evidence presented, this finding is not clearly erroneous.[31] Even if the funds accumulated in the revenue over expense account are deemed "profit," this is not conclusive evidence that the PCHA'S primary purpose was to produce a pecuniary profit. The excess revenues were not distributed to the state, the participating communities, or members of the PCHA. If other accounts were insufficient to meet current expenses, funds were withdrawn from the revenue over expense account. Thus, the first test of § 13 was not satisfied.
Even if we were to conclude that the PCHA'S primary purpose was to produce a pecuniary profit, the operation of the hospitals was in fact *260 financed primarily by fees charged for medical services rendered and, to a lesser extent, taxes levied by participating communities.[32] Thus, the second test of § 13 was not satisfied. The trial court properly granted defendant PCHA'S motion for summary disposition.[33]
The Legislature has defined "proprietary function" in a very narrow, unambiguous manner. The focus is on the primary intended purpose of the activity and how the activity is normally funded. A plaintiff who merely alleges that a governmental agency provides goods or services for a fee has not sufficiently alleged that the agency is engaged in a proprietary function. Often, an agency is required by statute or other law to charge a fee for its goods and services.[34] Instead, the plaintiff must allege that the primary purpose of the activity is to produce a pecuniary profit and that the activity is not normally supported by taxes or fees.
In Hyde, ¶ 5 of plaintiffs' amended complaint stated
*261 [t]hat the Plaintiff paid valuable consideration for the medical services rendered to her and therefore the Defendants were engaged in a proprietary function by viture [sic] of the fact that there are health care providers in the private sector of society who render the same sort of services.
Plaintiffs bear the burden of pleading facts in their complaint which would justify a finding that recovery in their tort cause of action is not barred by the governmental immunity act. Ross, p 621, n 34; Galli v Kirkeby, 398 Mich. 527, 532, 540-541; 248 NW2d 149 (1976).[35] Paragraph 5 of the plaintiffs' amended complaint merely alleges that plaintiffs paid the University Hospital for medical services which are routinely provided by private medical facilities. Plaintiffs did not allege that the diagnosis, treatment, and care of patients at the hospital was primarily intended to produce a pecuniary profit for the state, and that this activity was not normally supported by taxes or fees. Plaintiffs' amended complaint failed, as a matter of law, to state a tort cause of action which falls within § 13's "proprietary function" exception.
In Faigenbaum, plaintiff did not allege in his Court of Claims complaint that the Oakland Medical Center was engaged in a proprietary function when the malpractice occurred. Nor was this issue litigated. Plaintiff first raised the argument in his supplemental brief filed with the Court of Appeals shortly after Ross was decided. We will not consider this untimely and unpreserved argument. See Swartz v Dow Chemical Co, 414 Mich. 433, 446; 326 NW2d 804 (1982).
Plaintiff also asks that his contract claim *262 against the Oakland Medical Center be reinstated. Prior to trial, the circuit court struck Count II of plaintiff's complaint, and denied his motions for reconsideration, because the contract claim was supposedly duplicative of the tort claim. Plaintiff did not appeal any of these decisions, or raise the contract claim via a cross-appeal. The issue was raised before the Court of Appeals in plaintiff's supplemental brief filed after Ross was decided. The Court refused to consider the issue because it had not been properly appealed.
The fact that substantially identical facts underlie a plaintiff's tort and nontort causes of action does not automatically render them duplicative. Ross, pp 647-648. The trial court should have instead determined whether plaintiff had properly pleaded and could prove the elements of a breach of contract claim. Although we do not condone plaintiff's failure to appeal this issue in a proper manner, we remand this case to the trial court for a determination on this issue. Plaintiff raised the contract claim in his complaint and its viability will determine the outcome of this litigation. Swartz, supra.
VI. CONCLUSION
In Hyde, the decision of the Court of Appeals is affirmed on different grounds.
In Faigenbaum, the decision of the Court of Appeals is affirmed insofar as it held that Ross is to be given limited retroactive effect, and that Parker was impliedly overruled by Ross. The case is remanded to the Wayne Circuit Court for further proceedings on plaintiff's breach of contract claim. We do not retain jurisdiction.
In Powers, the decision of the Wayne Circuit Court is affirmed.
*263 WILLIAMS, C.J., and BRICKLEY, BOYLE, and RILEY, JJ., concurred with CAVANAGH, J.
LEVIN, J. (dissenting).
In 1978, this Court ruled, in Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978), that the operation of a general hospital was not a "governmental function" within the meaning of the governmental tort liability act.[1]
Six years later, in Ross v Consumers Power Co (On Rehearing), 420 Mich. 567; 363 NW2d 641 (1984), this Court ruled that the construction of a drain, operations of a juvenile-care facility by the Department of Social Services, operations of facilities for emotionally disturbed persons by the Department of Mental Health, operations of a school district, the issuance of dredging permits by the Department of Natural Resources, the police response to a disturbance, and operations of a 911 system, were governmental functions.[2] In so ruling, this Court defined "governmental function" as *264 "an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law...."[3]
In two of these cases, consolidated on appeal, it was held, after Ross was decided, that because the operation of a general hospital is an activity that the defendant governmental entities were authorized by law to engage in, they were, pursuant to Ross, immune from tort liability.[4]
After argument in this Court, the governmental tort liability act was amended by 1986 PA 175. There was added, for the first time, a definition of *265 governmental function. Act 175 adopted the Ross definition of governmental function but stated that immunity from tort liability was not granted with respect to the ownership or operation of a hospital except a hospital owned by the Department of Mental Health or the Department of Corrections. The amendments are effective as to causes of action arising on and after July 1, 1986. The amendatory language, in pertinent part, is as follows:
Sec. 1. As used in this act:
* * *
(f) "Governmental function" is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.
* * *
Sec. 7.
* * *
(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(a) "County medical care facility" means that term as defined in section 20104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.20104 of the Michigan Compiled Laws.
(b) "Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.
*266 * * *
Section 2. This amendatory act shall take effect July 1, 1986.
Section 3. (1) Sections 1, 7, and 13 of Act No. 170 of the Public Acts of 1964, as amended by this amendatory act, being sections 691.1401, 691.1407, and 691.1413 of the Michigan Compiled Laws, shall not apply to causes of action which arise before July 1, 1986.[[5]] [Emphasis supplied.]
The Legislature thereby adopted, for causes of action arising on and after July 1, 1986, both the Ross definition of governmental function and the concept (expressed in Parker) that a governmental agency operating a general hospital was subject to tort liability and, as well, the concept (expressed in the companion case of Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 [1978]), that a governmental agency operating a state mental hospital was not subject to tort liability.
Because Act 175 is not effective as to causes of action arising before July 1, 1986, this Court must decide whether to overrule Parker and, if so, whether to make such overruling effective before July 1, 1986.
The question is therefore whether a governmental agency operating a general hospital is subject to tort liability pursuant to Parker in respect to causes of action arising before the July 1, 1986, effective date of Act 175. We would hold that it is.
I
The question whether a governmental agency is immune from or subject to tort liability in respect to the operation of a hospital was not presented *267 and therefore could not have been decided in Ross. We granted leave to appeal in these consolidated cases to decide whether the rationale developed in the Ross opinion should be extended to the operation of a hospital and Parker hence overruled.
Before this Court could decide that question, the Legislature indicated its general satisfaction with the results in Ross, Parker, and Perry; the Legislature adopted in Act 175 the Ross definition eliminating tort liability for all lawful governmental operations, but excepted, as set forth in Parker, the operation of a general hospital but not, as set forth in Perry, the operation of a state mental hospital.
The legislative adoption of the Ross definition of governmental function, and of the Parker/Perry distinction and qualification respecting general and state mental hospitals, were both made effective as to causes of action arising on and after July 1, 1986. The Legislature did not place its imprimatur on the Ross definition unmodified by the Parker/Perry distinction and qualification for causes of action arising before July 1, 1986.
We are obliged in construing legislation, in the instant case the governmental tort liability act, to search for and seek to implement the intent of the Legislature.
Where an amendment is enacted after controversy has arisen concerning the construction of an act, the amendment has, at times, been regarded by this Court as an expression of the legislative view of the original enactment the purpose of the legislation being to clarify, because of the difference of opinion, the meaning of the original act rather than to work a substantive change of law. See Detroit Edison Co v Dep't of Revenue, 320 Mich. 506, 519-520; 31 NW2d 809 (1948). Such an amendment has been viewed as a legislative expression *268 of the "true construction and meaning" rather than a change in law. See Bailey v Clark, 88 US (21 Wall) 284, 288; 22 L. Ed. 651 (1875).
Act 175 expresses the legislative judgment, and thus declared as the public policy of the state, that all lawful governmental operations shall be regarded as governmental functions immune from tort liability except, among others, the operation of a general hospital.
II
In none of the nine cases decided in Ross was the service provided by government mainly provided in the private sector and largely funded in the same manner as like services provided in the private sector. Because Ross did not consider the factual situation presented in Parker, it cannot properly be said today that Parker was impliedly overruled by Ross.
When Ross was decided the Court, aware of Parker, left open the question of Parker's continued viability in recognition of the impropriety of deciding a question not before it. A question left open to be decided at a later date could not have been impliedly decided when Ross was decided.
To be sure, there are situations where, because the facts and context are essentially the same as those in an earlier case, the Court could not properly fail to apply a rule announced in the earlier case and, hence, there has been an implied overruling by the earlier case of any still earlier contrary decision.
This is not such a case. While the language of the Ross definition of governmental function in terms left no room for a distinction, what was said in Ross should, under long-established principles, be read in the context of what was then before the *269 Court.[6]Ross dealt with governmental operations and services that, while duplicated somewhat in the private sector, are mainly provided and funded by government and operations and services solely provided and funded by government.
What was said in Ross could not foreclose this Court from recognizing, when the issue was presented, the difference and distinction between one governmental activity and another the difference and distinction between a governmental activity mainly provided and funded by government and a governmental activity mainly provided in the private sector funded by users without significant governmental subvention.
The opinion of the Court acknowledges that "[n]one of the nine consolidated cases decided in Ross involved the tort liability of a public general hospital...."[7] It nevertheless concludes that Ross impliedly overruled Parker because Ross rejected all the definitions proffered by the justices in Parker and because the definition stated in Ross "is broad and encompasses most of the activities undertaken by governmental agencies."[8] That explanation begs the question whether Ross impliedly overruled Parker by bootstrapping on the obiter dictum of Ross.
To the extent that the Ross definition embraced within its sweeping ambit "governmental" operations and services mainly provided in the private sector and mainly funded by user fees to the extent it dealt with the question theretofore decided in Parker it went beyond the ambit of what was before the Court for decision and beyond the appropriate exercise of judicial authority.
What the Court says in an opinion beyond what *270 is necessary to decision is necessarily obiter dictum. It can be rejected in a later case, as Ross rejected all the definitions of governmental function proffered in Parker.
What the Court does in a particular case rather than what it says is more likely to stand the test of time. What the Court did in Ross was to hold that operations of schools, the Departments of Natural Resources and Mental Health, 911 and police department operations operations without an equivalent counterpart in the private sector, operations largely funded by taxes are governmental functions within the intendment of the governmental tort liability act. That is all the Court did or could properly do.
III
The view that Ross impliedly overruled Parker presupposes either that (i) there is no meaningful difference between such tax-supported governmental operations as police and fire departments, public schools, state-operated mental institutions, and the Department of Natural Resources, on the one hand, and user-supported government operations of a general hospital, on the other, or that (ii) this Court is incapable of defining the term "governmental function" in a manner both consistent with what the Court decided (as distinguished from what it said) in Ross and, in recognition of the difference and distinction between such governmental operations, consistent with what was decided in Parker/Perry.
The Supreme Courts of Pennsylvania, North Carolina, Kansas, and Minnesota,[9] along with this *271 Court in Parker/Perry, differentiated between tax-supported governmental operations and the user-supported operations of a general hospital in holding that a general hospital is subject to tort liability.
Justice MOODY recognized the difference and distinction in Parker/Perry. By his fourth vote, he implemented the difference and distinction for six years.
It is within the competence of this Court to recognize the difference and distinction and to say, for example, that it is beyond the policy and intent of the Legislature in excepting from the general rule of tort liability the operations of government that constitute a "governmental function" to except from the general rule of tort liability the governmental operation of a general hospital because such hospitals, in contradistinction from other governmental operations, generally provide services obtained by most of the state's population in the private sector that are largely funded in the same manner as like services obtained in the private sector.
The Court might thus define (or redefine) "government function" for the period January 22, 1985 (the day Ross was announced), through June 30, 1986 (the day before Act 175 became effective), as any government activity, not ultra vires, other than a service mainly provided the state's population in the private sector that is largely funded, where provided in the public sector, in the same manner and from the same sources as like services obtained in the private sector.
If this Court were in these consolidated cases to recognize the distinction between a general hospital and all other government operations, and to so *272 define or redefine Ross, the result would be the same as that enacted in Act 175. The exception for services mainly provided by, and largely funded in the same manner as like services obtained in, the private sector would plainly, because of the context in which stated, mean general hospitals.[10]
IV
The legislative adoption of the Ross definition was no more than a convenient way of stating what could be said in another way with the same result. Act 175 does not imply that the Legislature viewed Ross as overruling Parker, and most importantly the enactment of Act 175 did not imply that the Legislature viewed Ross as correctly overruling Parker and a correct expression of legislative intent.
"By adopting this narrow exception to the broad immunity granted by Ross and codified by 1986 PA 175, it is clear"[11] not "that the Legislature believed that Ross had impliedly overruled Parker"[12] but that the Legislature believed that the Ross formulation was deficient and inconsistent with sound public policy insofar as general hospitals are concerned.
V
If one focuses on the effective date of July 1, 1986, one could argue, and correctly so, that the Legislature did not make the rules announced in Act 175 the Ross definition modified by the Parker/Perry *273 distinction and qualification effective before July 1, 1986. It does not follow that the Ross definition should, to the extent it is obiter dictum, be effective before July 1, 1986, or that Parker/Perry are overruled or superseded before July 1, 1986.
This Court should not insist that its word formulation in Ross, rejected in this one application by the Legislature, must govern decision in this case. No grand design, plan, or symmetry would be offended by continuing the rule of Parker through July 1, 1986, the effective date of the new legislation.
The codification of the Ross definition effective July 1, 1986, as amended by the exception for general hospitals, means that the codification of the Ross definition as amended did not become effective until July 1, 1986. There is, to repeat, no implication from the July 1, 1986, effective date that the unamended Ross formulation is to be effective before July 1, 1986, or that it is codified and written in stone for the period of January 22, 1985, through June 30, 1986.
One can as readily argue that the application before July 1, 1986, of the Ross definition was rejected by the Legislature, as that the continued application of Parker through June 30, 1986, was rejected.
The question when, if at all, the obiter dictum of Ross becomes effective is a separate question which the Legislature left to the courts. This Court can readily justify delaying the effective date of the Ross dictum or modifying the dictum in recognition that it is dictum and the impolicy of creating a window of immunity by overruling Parker. There is nothing in the legislatively ordained July 1, 1986, effective date that militates for or against either result.
*274 VI
Parker should not be overruled. The result of Parker is now the law for causes of action that arise on and after July 1, 1986. Parker has governed, since 1978, in hundreds, perhaps thousands, of lawsuits settled or tried on the basis of Parker. There are hundreds or perhaps thousands of cases pending in the courts where litigants and lawyers in reliance of Parker have expended considerable energy and large sums in cases awaiting trial. Partial settlements have been entered into and nonhospital defendants not named or released from liability in reliance on the rule of Parker in the expectation of a day in court against a governmental hospital defendant.
The argument that Parker was not precedentially binding because "no single definition had been adopted by a majority of this Court,"[13] ignores both the reliance by bench and bar on the rule of Parker and that the Ross definition is not precedentially binding beyond what was before the Court in Ross and properly then decided. The argument that "the consolidation of nine factually diverse cases should have signaled to the bench and bar that this Court was reevaluating the definition of `governmental function'"[14] ignores that the Court could not properly reevaluate the definition of "governmental function" as applied to a general hospital because none of the nine factually diverse cases concerned the activities of a general hospital. The argument that litigants were warned by judicial dictum assumes that dictum is precedent. The argument that litigants were warned by the inability of four justices to agree on a rationale ignores the need, recognized in Tebo v *275 Havlik, 418 Mich. 350; 343 NW2d 181 (1984), and Gusler v Fairview Tubular Products, 412 Mich. 270; 315 NW2d 388 (1981),[15] of bench and bar to proceed in reliance on the last word from this Court until it speaks more decisively.
VII
Even if Ross impliedly overruled Parker it would not be consequential if it is not overruled effective before July 1, 1986. The same considerations of fairness that prompted this Court to delay the effective date of the new rules announced in Tebo and Gusler require, at least, that the effective date of any overruling of Parker be delayed until January 22, 1985, the day the Ross definition (together with the Ross obiter dictum) was announced.
VIII
The opinion of the Court states:
We hold that the rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved.[16]
Footnote 35 of the opinion states:
Unlike other claims of immunity, sovereign and *276 governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. [Citations omitted.]
It thus appears that a governmental hospital need not plead governmental immunity as an affirmative defense and that the failure to plead an affirmative defense would not be a failure to "preserve" the governmental immunity issue. Nevertheless, under the Court's formulation, the issue must be "properly raised." The opinion does not state whether this might have been done by motion for summary judgment, in the pretrial statement,[17] or otherwise.
It appears, since the opinion of the Court speaks in the past tense "was properly raised and preserved" (emphasis supplied) that the governmental immunity issue must have been properly raised and preserved by January 22, 1985. If that is a correct reading, then if a motion for summary judgment were filed after January 22, 1985, it would be too late. And since the governmental immunity issue need not be raised as an affirmative defense, raising it by answer on or before January 22, 1985, might not be to "properly" "preserve" it.[18] (At least those are some of the arguments one can foresee in the trial courts in the hundreds, perhaps thousands, of cases affected by what is said in today's decision.)
If, as appears, the window of immunity announced by the Court today applies only to cases where motions for summary judgment were filed on or before January 22, 1985, the effect of the *277 decision will indeed be less because there was no reason before this Court's decision in Ross to file such a motion.
Parker thus is not overruled as to cases commenced on or before January 22, 1985, in which the defendant hospital failed to file a premature motion for summary judgment and, possibly, also is not overruled as to cases in which the defendant hospital filed a superfluous affirmative defense. If a case was filed on, say, January 15, 1985, Parker would probably govern because the defendant hospital's answer was not due until after January 22, 1985. If, however, the defendant hospital filed a premature motion for summary judgment that was denied, Parker governs despite the expenditure of energy and money preparing the case for trial in reliance on that denial which presumably would have been predicated on Parker.
The Court has not adequately explained why it has reached such a peculiar result now that the Legislature has spoken and clearly said that the public policy of this state is that general hospitals are not immune from and rather are subject to tort liability.
ARCHER, J., concurred with LEVIN, J.
ARCHER, J. (dissenting).
While I concur with Justice LEVIN's dissent, I write separately.
The Legislature has specifically provided that tort liability may be imposed upon a governmental agency that owns or operates a public general hospital or county medical facility. 1986 PA 175.[1]*278 In providing that these public hospitals cannot claim governmental immunity, the Legislature has approved the continuing validity of this Court's decision in Parker v Highland Park, 404 Mich. 183; 273 NW2d 413 (1978). Although the act does not apply to these cases, the decision of the Legislature which will apply to future cases is a helpful and valuable guide.
In Parker, the majority held that public general hospitals are not immune from tort liability. None of the nine cases decided in Ross involved that issue. The Legislature decided not to grant immunity to governmental agencies that own or operate hospitals or county medical facilities and provided that the agents or employees of such hospitals were not immune from liability.
Months after the Ross decision, the Legislature held hearings on proposals to reform tort law in this state. Although the Legislature limited the noneconomic damages that some plaintiffs could recover in medical malpractice cases, other reforms were not enacted. The Legislature decided to retain tort liability for governmental agencies that own or operate certain general hospitals. Since the Legislature has expressed a clear judgment requiring certain public general hospitals to remain liable, this Court should respect that judgment. Legislators are elected representatives of the people *279 of this state. This decision is particularly unjust since Parker provides the plaintiffs with a remedy, and the Legislature has specifically provided redress for plaintiffs who are similarly situated whose causes of action happen to arise after 1986 PA 175 takes effect.
The government and its agents have a duty to act responsibly in the name of the people who authorize them to act. This is especially true in the area of public health where the sick and injured are especially vulnerable and must rely upon the professional expertise of their caretakers. In expanding the scope of governmental immunity in these cases, the Court is protecting the government and its agents from the legal consequences of negligent acts.
While absolute immunity from liability may be required in limited instances in order to allow some governmental agencies and employees the freedom in which to exercise their mandate from the people, such freedom is not justified in this case.
By authorizing the government to engage in certain activities, such as operating a public hospital, the public has not at the same time relieved the government of its duty to act with care.
As Justice LEVIN correctly observed in his partial dissent in Ross:
Virtually all government activity is expressly or impliedly mandated or authorized by the constitution, a statute, or other law. By perusing the statute books rather than focusing on the specific activity complained of by the plaintiff, the Court casts the net of governmental immunity too far, enabling a governmental entity to expand the scope of its immunity by promulgating an ordinance or other law relating to its activities. [Ross at 684.]
*280 The majority here cites statutory authority which empowers public hospitals to function in the name of the people and then maintains that the same statute immunizes the agency and its employees when they breach the very responsibilities the statute created. The answer to the agency's liability should be determined by focusing upon the specific act or omission of the agency, not by citing the overall governmental objective of the agency.
The determination whether a governmental agency acted within the limits of its authority still requires judicial interpretation. To state that an activity is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law adds little to the analysis we must use to determine the nature of the responsibilities of the agency and whether the specific acts alleged were beyond the public mandate.
Because the majority ignores the precedence of Parker, and extends the immunity of government to an unacceptable degree, I dissent.
NOTES
[1] Under § 7, state and local governmental agencies are immune from tort liability only when they are engaged in a governmental function:
Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.
[2] The pretrial summary contained the following statements:
PLEADINGS SATISFACTORY? No. Plaintiff is given the right to amend his pleadings to show the proprietary function of Defendant.
ARE THERE ANY DEFENSES UNDER RULE 116? Yes. Governmental immunity and statute of limitations.
[3] Unpublished opinion per curiam of the Court of Appeals, decided June 8, 1984 (Docket No. 69664).
[4] Tardive dyskinesia occurs late in the course of neuroleptic drug treatment. The symptoms include protrusion and rolling of the tongue, chewing movements, smacking and pouting of the lips, opening and closing of the mouth, puffing cheeks, grimacing, eye blinking, rocking movements, choreoathetoid movements of the limbs, repeated swallowing, and respiratory dyskinesia. Persons suffering from Huntington's chorea may display similar symptoms. Ms. Katz' chief complaints were an inability to swallow, tense neck muscles, curling of the tongue, pacing and rocking, nervousness, and jerky movements.
[5] Clinton Valley Center was found to be immune from tort liability under Perry v Kalamazoo State Hospital, 404 Mich. 205; 273 NW2d 421 (1978), because it was a state psychiatric hospital.
[6] The PCHA and Dr. Jahan unsuccessfully moved for summary and accelerated judgment on the ground that the release executed between plaintiff and Dr. Bercu also released them of liability. The Court of Appeals denied defendants' application for leave to appeal on February 21, 1985.
[7] This was the first time that the PCHA had raised the "defense" of governmental immunity. However, the PCHA'S failure to raise the issue in its first responsive pleading did not waive it. See n 35. Plaintiff's complaint, filed prior to Ross, contained sufficient facts to raise a governmental immunity issue, or more specifically, a lack thereof. The complaint indicated that the PCHA operated a public general hospital, which was not entitled to immunity from tort liability pursuant to Parker. Moreover, paragraph two alleged that the PCHA was a profit-making institution. This allegation was sufficient to invoke the statutory "proprietary function" exception.
[8] The suit against Dr. Jahan is apparently still pending.
[9] Although Murray initially stated that Parker should be applied to all pending cases which had raised an express challenge, subsequent language referred only to cases pending on appeal. This Court did not intend to distinguish between cases pending at the trial and appellate levels for purposes of applying Parker. See Scudder v Annapolis Hospital, 129 Mich. App. 280, 284-286; 341 NW2d 504 (1983).
[10] 420 Mich. 613, 617, 620-621, 631, 633, 635.
[11] The Legislature has recently codified the Ross definition of "governmental function." See 1986 PA 175, discussed at n 16 and accompanying text.
[12] For example, in Putney v Haskins, this Court interpreted the "name and retain" provision of the dramshop act (MCL 436.22; MSA 18.993) as requiring the allegedly intoxicated defendant to be retained as an interested party defendant throughout an action against the dramshop defendant. 414 Mich. 188. Tebo v Havlik held that Putney should be applied only to cases where the settlement agreement with the allegedly intoxicated defendant was entered into after Putney was decided. 418 Mich. 364. We refused to apply Putney retroactively to the statute's effective date because the Court of Appeals had clearly and consistently held that such settlements were permissible, and the bench and bar had justifiably relied upon this precedent.
[13] Since the amended complaint was properly filed prior to Ross, we need not decide whether plaintiffs' oral assertion of the "proprietary function" exception at or before the pretrial conference, coupled with defendant's knowledge thereof and the trial court's permission to amend the complaint, also constituted an "express challenge" to defendant's immunity.
[14] Plaintiffs note that earlier in the Ross opinion, this Court declined to overrule "this aspect of Parker." Plaintiffs maintain that the aspect of Parker we intended to affirm was its holding that public general hospitals are not immune from tort liability. This argument ignores the context in which the statement was made. The immediately preceding discussion focused on whether this Court has the power to redefine "governmental function," or is bound by the prior common-law definition. We noted that a majority of the Parker Court had concluded that this Court could redefine the term. Id., pp 609-610. We intended to affirm only this "aspect" of Parker.
[15] Plaintiffs raise several equal protection and due process arguments. We do not decide these questions because they were not raised in, or decided by, the lower courts. Ross noted, however, that the Legislature's disparate treatment of public and private tortfeasors is not totally unjustifiable. Id., pp 618-619.
[16] MCL 691.1401(f); MSA 3.996(101)(f) provides:
"Governmental function" is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.
[17] MCL 691.1407(4); MSA 3.996(107)(4) provides:
This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(a) "County medical care facility" means that term as defined in section 20104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.20104 of the Michigan Compiled Laws.
(b) "Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.
1986 PA 175 also modifies the tests for individual immunity from tort liability articulated in Ross.
[18] Even though a plaintiff is unable to recover directly from a governmental agency on a tort cause of action arising prior to July 1, 1986, this does not necessarily mean that he is without a remedy. A plaintiff may be able to allege a nontort claim or a cause of action falling within one of the exceptions to the governmental immunity act. See Ross, pp 647-648. Furthermore, the plaintiff can recover from the individual tortfeasor who caused the injury in certain circumstances. Id., pp 633-634. Plaintiff may ultimately be paid by a governmental agency if the agency has agreed to indemnify its officers, employees, or agents. Id., p 635; MCL 691.1408; MSA 3.996(108).
[19] See, e.g., 1917 PA 96; 1919 PA 178; 1921 PA 351; 1923 PA 310. For further information on the University Hospital, see Shaw, University of Michigan: An Encyclopedic Survey (Ann Arbor: U of M Press, 1951).
[20] On occasion, state prison inmates were treated at the Oakland Medical Center. Emergency care was also rendered to employees of the Clinton Valley Center, but this occurred very infrequently. These facts are not relevant to our determination of whether the DMH was authorized to establish and operate the medical center. We need not decide whether the center was authorized to treat inmates and employees, since the center was authorized to treat patients of mental health facilities, such as Ms. Katz.
[21] Similarly, in Hyde, plaintiffs sued the Board of Regents of the University of Michigan, the entity specifically empowered to be sued under MCL 390.4; MSA 15.904. Public universities are included within § 1(c)'s definition of "state."
In Faigenbaum, plaintiff sued the Oakland Medical and Clinton Valley Centers, but not the DMH. However, the DMH was the department responsible for running the Oakland Medical Center and will ultimately pay any judgment entered, especially since the center is no longer in existence. The governmental immunity act cannot be circumvented merely by naming a facility as the defendant, rather than the state or local governmental agency which operates the facility. Since a department of the state is included within § 1(c)'s definition of "state," the governmental immunity act is applicable.
[22] 1986 PA 175 amended § 13 only insofar as "governmental agency" was substituted for "state" throughout the section. Thus, the subsequent discussion will apply equally to cases decided under the amended version of § 13.
[23] The PCHA was required by federal and state statutes and regulations to maintain a certain level of reserves in several accounts. The depreciation fund was used to finance capital expenditures, such as the purchase of new medical equipment and building renovations. A state moratorium on certain expenditures had resulted in a particularly high amount in the depreciation account. The assessments levied by participating communities were deposited only into the bond and interest account. Since the assessments never fully covered the bond and interest payments, money was withdrawn from certain other accounts when necessary. Two members of the PCHA board of directors testified that the PCHA could survive without the tax assessments.
[24] The parties vigorously debated whether the amount in the revenue over expense account was "profit," since the PCHA and its hospitals were nonprofit organizations and had never distributed these funds in the form of dividends.
[25] See Cooperrider, The Court, the Legislature, and governmental tort liability in Michigan, 72 Mich. L R 187, 229-237 (1973), and cases discussed therein.
[26] In cases involving nonsovereign governmental agencies, an activity conducted primarily to produce a pecuniary profit for the governmental agency, rather than the state, could be deemed a proprietary function. This interpretation is consistent with the recent amendments to § 13. See n 22.
[27] See Joe Davis v Detroit, 98 Mich. App. 705, 711; 296 NW2d 341 (1980), lv den 422 Mich. 892 (1985); Smith v Huron-Clinton Metropolitan Authority Bd of Comm'rs, 49 Mich. App. 280, 283; 212 NW2d 32 (1973).
[28] See Knapp v Dearborn, 60 Mich. App. 18, 25; 230 NW2d 293 (1975).
[29] For example, the net revenue generated by the state lottery is deposited into the state school aid fund. MCL 432.41; MSA 18.969(41).
[30] See Davis, supra.
[31] A similar conclusion was reached in Bullinger v Gremore, 343 Mich. 516, 559; 72 NW2d 777 (1955).
[32] Section 13 does not require that the activity actually be supported by taxes or fees to be immune from tort liability. The activity need only be one which is normally supported by taxes or fees.
[33] Plaintiff notes that the operation of Beyer Hospital by the PCHA was deemed a proprietary function in Lykins v Peoples Community Hospital, 355 F Supp 52 (ED Mich, 1973). In light of Ross and the instant cases, much of the reasoning used in Lykins is no longer valid. The Lykins court believed that all activities of state agencies are either governmental or proprietary. This strict dichotomy was rejected in Ross, p 613 and n 32. Although Lykins was decided well before Parker, the court essentially adopted the stricter "essence to governing" test in determining that the operation of a general hospital by a governmental agency is not a governmental function. Ross rejected this test. Finally, the court did not analyze or apply § 13's definition of "proprietary function."
[34] For example, the PCHA is statutorily required to charge sufficient rates to cover the reasonable cost and value of its services. MCL 331.8i; MSA 5.2456(8i). See also MCL 331.160; MSA 14.1139 (every person who is not a pauper shall pay reasonable compensation to county public hospitals for services rendered); MCL 330.1800 et seq.; MSA 14.800(800) et seq. (every recipient of mental health services who is able to pay must reimburse the DMH for services received).
[35] Unlike other claims of immunity, sovereign and governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. Ross, supra; Galli, p 541, n 5; McCann v Michigan, 398 Mich. 65, 77, n 1; 247 NW2d 521 (1976). Compare MCR 2.111(F)(3)(a).
[1] MCL 691.1401; MSA 3.996(101).
[2] 1. Ross, supra, p 637. The Court posed the issue as involving "only the direct liability of a nonsovereign governmental agency [district and drain commissioner] for its negligence in contracting out, supervising, and inspecting the construction of a drain."
2. Ross, supra, p 640 (Willis v Dep't of Social Services). The Court said "[t]he question therefore is whether allowing decedent to participate in a swimming outing, and the care and supervision of decedent during the outing [with the juvenile care facility], constitute the exercise or discharge of a nonproprietary, governmental function."
3. Ross, supra, pp 642-643 (Siener v Dep't of Mental Health). "We must therefore determine whether the control and supervision of emotionally disturbed patients by [the Department of Mental Health in the Hawthorn Center] and their employees during a field trip is expressly or impliedly mandated or authorized by constitution, statute, or other law."
4. Ross, supra, p 646 (Rocco v Dep't of Mental Health). The Court said the crucial inquiry was "whether the placement of patients within a mental health facility, and the care, control, and supervision of in-patients, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law."
5. Ross, supra, p 649 (Regulski v Murphy). The Court said it was required to "determine whether the instruction and supervision of students enrolled in a building trades class, as well as the provision of safety devices and measures, constitute the exercise or discharge of a nonproprietary, governmental function."
6. Ross, supra, p 653 (Trezzi v Detroit). The Court said: "We therefore must determine whether the categorizing of emergency calls by a 911 operator and the dispatch of police vehicles in accordance therewith are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law."
7. Ross, supra, p 655 (Disappearing Lakes Ass'n v Dep't of Natural Resources). The Court inquired "whether the issuance of dredging permits and extensions, and activities related thereto, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law."
8. Ross, supra, p 660 (Zavala v Zinser). "[W]e must determine whether [a police] officer's decision to request and await backup assistance is expressly or impliedly mandated or authorized by constitution, statute, or other law."
[3] Ross, supra, p 620.
[4] Faigenbaum v Oakland Medical Center, 143 Mich. App. 303; 373 NW2d 161 (1985).
In Powers v Peoples Community Hospital Authority, the circuit court concluded, on the basis of Ross, that the operation of a general hospital was a governmental function. This Court granted leave to appeal prior to decision of the Court of Appeals. 424 Mich. 858 (1985).
In Hyde v Michigan (not officially reported), a divided Court of Appeals ruled that Parker v Highland Park, supra, did not apply because this Court had subsequently held in Murray v Beyer Memorial Hospital, 409 Mich. 217, 221; 293 NW2d 341 (1980), that "the rule of Parker is to be applied to all cases pending on December 27, 1978, in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date," and, in the view of the majority, the plaintiff had not made and preserved an express challenge to the defense of governmental immunity. The Court's disposition makes it unnecessary to express an opinion whether Hyde was correctly decided by the Court of Appeals.
[5] 1986 PA 175, amending MCL 691.1401 et seq.; MSA 3.996(101) et seq.
[6] See Larzelere v Starkweather, 38 Mich. 96, 100 (1878).
[7] Ante, p 230.
[8] Ante, p 243, quoting Ross, supra, p 621.
[9] Flagiello v Pennsylvania Hospital, 417 Pa 486, 491-495; 208 A2d 193 (1965); Sides v Cabarrus Memorial Hospital, 287 NC 14, 18-19; 213 SE2d 297 (1975); Carroll v Kittle, 203 Kan 841; 457 P2d 21 (1969); Stein v Regents of the Univ of Minnesota, 282 NW2d 552 (Minn, 1979).
[10] It does not appear whether any governmental entity other than the Department of Mental Health or Department of Corrections operates a psychiatric hospital.
[11] Ante, pp 245-246.
[12] Ante, p 246.
[13] Ante, p 240.
[14] Ante, p 240.
[15] Considered in terms of the justification for reliance by bench and bar, and thus considered in terms of "fairness," a decision of this Court, until reversed, whether or not four justices can agree on a rationale, should be regarded as at least as "clear and uncontradicted" (ante, p 240) as a decision of the Court of Appeals following which the sole action of this Court was to deny leave to appeal.
[16] Ante, p 230.
[17] The Court of Appeals concluded in Hyde that the judge's statement in the pretrial statement did not "raise and preserve the challenge" absent plaintiffs' amending their complaint. See n 4.
[18] But see Scudder v Annapolis Hospital, 129 Mich. App. 280; 341 NW2d 504 (1983).
[1] MCL 691.1407(4); MSA 3.996(107)(4) provides:
This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(a) "County medical care facility" means that term as defined in section 20104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.20104 of the Michigan Compiled Laws.
(b) "Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.
The act became effective July 1, 1986.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3841246/
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In this case I think that it is unnecessary to pass upon the constitutionality of the statute authorizing the issuance of warrants of arrest under fictitious names. Reserving that question until, if at all, its solution is imperative, I concur in the opinion of Mr. Chief Justice RAND.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3994871/
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The appellant, Bingaman, plaintiff below, is the owner of lots 9 and 10, in block 4, of Brawley's addition to the city of Seattle, on lot 10 of which is situated a two-story brick building. To the south of the property is a public street known as Main street, extending east and west, on which the lots abut. One block south of Main street is another public street known as Jackson street, also extending east and west. In 1909, the city of Seattle regraded Jackson street, and in so doing made a cut, to the south of the appellant's property, ranging in depth approximately from 72 to 85 feet. Following the regrade, the surface ground lying between Jackson street and Main street began to slide into the former street, and has continued to so slide from that time until the present. By the time of the latter part of the year 1922, the slide had reached and extended across Main street, and invaded the appellant's property. On January 6, 1923, a part of the ground on which her building stood gave way, causing the southwest corner of the building to break away and fall. In this action the appellant sought to recover from the city of Seattle for the damages suffered. There was a trial before a jury, in which a verdict in damages of one dollar was returned. A judgment was entered on the verdict, and from the judgment the present appeal is prosecuted.
The liability of the city to answer in damages for injuries to private property caused by the sliding can hardly be said to be any longer an open question. The question of its liability has been a subject of controversy between the city and the different property owners *Page 70
affected thereby, almost from the time of the completion of the regrade, and this court has uniformly sustained its liability.Farnandis v. Seattle, 95 Wash. 587, 164 P. 225; Blomskog,Erickson Cotton v. Seattle, 107 Wash. 471, 182 P. 571; Kentv. Seattle, 121 Wash. 327, 209 P. 529; Island Lime Co. v.Seattle, 133 Wash. 270, 233 P. 273; Davis v. Seattle,134 Wash. 1, 235 P. 4.
We have also held that the question of negligence on the part of the city is not an element entering into the controversy; "that in cases of this kind it is not necessary that negligence be shown before a recovery can be had." Kent v. Seattle; Davisv. Seattle, supra.
[1] The appellant's chief complaint is that the damages returned by the jury are inadequate. That she suffered a substantial damage, the evidence hardly leaves in doubt. It is true, that, owing to the peculiarities of the statute, this is an instance where the injured party, contrary to the usual rule, cannot recover in one action all of the damages that have resulted, or may result, from the action of the city, but must recover in repeated actions as the damages accrue. Island LimeCo. v. Seattle, 122 Wash. 632, 211 P. 285; 133 Wash. 270,233 P. 273. Yet the evidence is all to the effect that the damages accruing, within the limitation of time the jury were permitted to consider, were substantial. Indeed, none of the witnesses for the city estimated them at less than $1,000, and on the evidence of these witnesses alone a larger verdict than $1,000 would have been permissible. The jury, it will be remembered, returned a verdict in favor of the appellant. This was a finding, even if it could be said that there was a substantial controversy over the fact, that the city was liable for the actual damages suffered. The record, therefore, as we view it, presents *Page 71
an instance where the jury, convinced of the merit of the plaintiff's claim, refused to return a verdict in accordance with the merit of the claim. Such a verdict is not in accord with substantial justice. It is, on the contrary, a perversion of justice, and should not be allowed to stand.
The reasons advanced for sustaining the verdict perhaps require notice. The trial judge, in passing upon the appellant's motion to set aside the verdict and grant a new trial, used this language:
"The matter to which I have given most attention is the verdict of the jury for nominal damages. In passing upon this ground of the motion, the court has accepted the contention of the plaintiff that the verdict fixes liability, and if the weight of the evidence shows substantial damages a new trial should be granted.
"But in order to find that the verdict is against the weight of the evidence on this ground, there must be some evidence at least from which the jury might have arrived at a substantial amount of damages. Such evidence the court is unable to find in the record. While it is apparent that there was a physical change in the condition of the premises before and after the slide for which damages might have been allowed if the proof was satisfactory, the court's recollection is that the value testimony actually offered on behalf of both parties contained elements which cannot be taken into consideration under the rule announced by the supreme court in this class of cases.
"Therefore, the only way that the court, even if sitting as a juror as counsel for plaintiff suggests, could have arrived at a verdict for substantial damages, would have been the rough speculation or arbitrary apportionment not justified by the record. Especially is this true since the burden of proof rests on the plaintiff in regard to the amount of damages.
"Furthermore, it is entirely reasonable to say, in view of the record, that though there was physical damage done, the property had no market value prior to *Page 72
the slide, in which event the plaintiff was not financially damaged by the change in condition."
Neither of the reasons here assigned for sustaining the verdict do we find tenable. The testimony to show damages — the "value testimony" referred to by the trial judge — was, as we view it, in accord with the rule as we have hereinbefore announced it, and not contrary thereto. The measure of damages was the difference between the value of the property before the slide encroached upon it and its value after that event; SeattleMattress Upholstery Co. v. Seattle, 134 Wash. 476,236 P. 84, and the questions propounded to the witnesses on both sides contained nothing, in so far as we are able to discover, not pertinent to that issue. Nor do we think it reasonable to say that the property had no market value before the slide. Unquestionably, the approaching slide had a tendency to depreciate its market value, but that it had such a value, both before and after the slide, was the testimony of all the witnesses.
[2] The city argues that the verdict of the jury was, in its substance and effect, a finding in its favor on the question of liability. There are cases which maintain the doctrine that a finding of nominal damages in favor of a plaintiff is, in some instances, equivalent to a finding against him, and our case ofKrulikoski v. Sparling, 82 Wash. 474, 144 P. 692, recognizes the rule. It would seem, however, that it is a rule that should be sparingly applied. There is an incongruity in saying that a verdict in favor of a party is a verdict against him, and the reason for so saying in any instance should at least be clear. Here, the issue on this question was simple and plain. It was merely a question of liability or no liability. There was room for the jury to make but one of two findings. *Page 73
They must find either for the plaintiff or the defendant, and must make the finding before they proceeded to assess the damages. When, therefore, they found, as they did in this instance, "for the plaintiff in the sum of" one dollar, it was a finding in favor of the plaintiff on the question of liability, incapable by construction of any other meaning.
[3] Of the trial-errors assigned necessary to be noticed, the first is the contention that the trial court too narrowly restricted the cross-examination of certain of the city's witnesses. One of them, testifying to values, had testified in a case between other parties, in which he had placed values on neighboring property largely in excess of the values he placed on the appellant's property. The appellant, on his cross-examination, sought to show this fact, but was denied the right so to do by the court. It is our opinion the testimony should have been admitted. There was no great dissimilarity in the situation or in the condition of the properties, nor was the time so remote as to raise a conclusive presumption that there had been any considerable change in values. The evidence was thus admissible as tending to affect the weight to be given to the witnesses' testimony.
[4] In the cross-examination of one of the plaintiff's witnesses the following appears:
"Q. You know, do you not, that the building of the plaintiff is being rented at the present time? A. Yes sir, it is occupied, and I was told they were paying rent. Q. Did they tell you how much they were paying? A. The Japanese said he was paying $25 and had been paying that for 15 years until the building broke, and he occupied just half the building, and now a portion of the building has broken away, so he got over to the west side. Q. He said he had been paying it for 15 years? A. Yes, sir. Q. Do you know what they are paying upstairs? A. I was told they were paying something *Page 74
like a couple of hundred dollars unfurnished, but I think that is more rental than it should bring. Q. That is more than they should get for any reasonable purpose, is it not? A. It would seem so to me."
The objection is to the last question quoted. It is thought to contain an immaterial and vicious insinuation, the suggestion of which amounted to misconduct on the part of the attorney conducting the examination. The question was not objected to at the time it was propounded, nor was the court asked to rule concerning it until after the return of the verdict. Conceding that it bears the interpretation the appellant puts upon it, we think the appellant was too late in his objection to make the error available to him.
[5] Our conclusion requires a reversal of the cause, but not necessarily a new trial. As we have said, the lowest estimate of the appellant's damages by any of the city's witnesses was $1,000, and the city is not in a position to object to a judgment against it for a sum in that amount. Our order will be, therefore, that the judgment be reversed and the cause remanded, with the instruction to grant to the plaintiff the option to take a judgment against the city for the sum of $1,000 and costs, or a new trial.
TOLMAN, C.J., MAIN, and HOLCOMB, JJ., concur.
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Plaintiff recovered judgment against defendants Walton Shea and New Jersey Fidelity Plate Glass Insurance Co., from which the latter appeals. Reversed.
Plaintiff recovered judgment in the sum of $50,570 against defendants for personal injuries received in a collision with an automobile driven by defendant Shea. The collision occurred on the thirty-first day of March, 1928, at about the hour of 9 o'clock A.M. Plaintiff was driving a team and wagon along the Pacific Highway about six miles north of the City of Salem in the intersection of Quimby Road with said Pacific Highway. Defendant Shea was driving his
See 21 R.C.L. 822. *Page 197
automobile along the same highway at said time and collided with plaintiff's team and wagon while the latter was in said intersection. One Plant carried an insurance policy with defendant corporation. He met with an accident near Albany, seriously damaging his car. Albany is about thirty-two miles south of the scene of the collision. He promptly notified the agent of defendant corporation that he could not bring the car into Portland on its own power. The agent of the defendant corporation thereupon instructed him to have the car repaired at Albany. The party repairing the car would not allow the car to be taken out until he was either paid or his bill for his services guaranteed. E.L. McDougal, attorney of record for defendant corporation, was also its adjuster. The agent of defendant corporation referred to said McDougal the matter of adjusting the loss of Mr. Plant. Defendant Shea was a law student in the employ of said McDougal and in that capacity did all kinds of service. Defendant Shea was on his way to Albany to make the adjustment of Mr. Plant's loss when the collision occurred.
Defendant Shea is accused of driving his said automobile:
"At a high, reckless and dangerous rate of speed, approaching the plaintiff's team and wagon from the rear thereof and at said time and place said automobile ran into and struck said wagon on which plaintiff was riding with great force and violence thereby throwing plaintiff from the said wagon and onto his head upon the macadam roadway of Quimby Road thereby inflicting upon plaintiff great bodily injuries * *."
Defendants answered separately. Defendant New Jersey Fidelity
Plate Glass Insurance Company's answer is made up of denials and a further and separate *Page 198
answer which after alleging the incorporation of defendant corporation alleges as follows:
"That during all the times mentioned in plaintiff's complaint this answering defendant did not have one Walton Shea in its employ and had no knowledge of the existence of the said Walton Shea and if the said Walton Shea was performing any work or services for this answering defendant, it was of an independent nature and voluntary and without the knowledge or consent of this answering defendant."
The reply denies this allegation. The judgment is against both defendants and follows the verdict. Defendant corporation only appeals. It assigns twelve alleged errors. The first two assignments are based on the court's refusal to grant defendant corporation a nonsuit at the close of plaintiff's case in chief and defendant corporation's motion for a directed verdict in favor of said corporation and against plaintiff at the close of the testimony. The third, fourth, fifth, sixth and seventh assignments are based on the admission of certain testimony and exhibits. The eighth assignment is the court's refusal to give an instruction directing the jury to return a verdict in favor of defendant corporation. The ninth and tenth assignments are based on the court's refusal to give two other certain instructions; one to the effect that defendant Shea was not an agent or employee of the defendant corporation and the other was an instruction to the effect that he was an independent contractor at the time the injuries were received by plaintiff. The eleventh assignment was based on the court's instruction to the jury bearing on the question of ratification, and the twelfth was based on the court's order striking from the testimony of Dr. Hicks C. Fenton, a witness for defendants, certain *Page 199
portion of his answer to a question. These twelve assignments of error are treated under three propositions of law. The first of which is stated as follows:
"At the time of the accident involved in this action the defendant Shea did not bear such a relation to this appellant as to cast upon this appellant responsibility for the results of that accident."
The second:
"There was no evidence produced in this case which justified any instruction on the doctrine of ratification."
The third:
"The opinion of an expert witness may be admitted to show the probable future consequences of a physical condition, and for that purpose it is proper for the witness to explain to a jury the usual consequences occurring to other persons who have suffered from a similar condition."
Under these three propositions of law the appellant-defendant corporation presents all of the assignments of error. REVERSED.
The case hinges entirely on the question of whether or not defendant Shea was an agent or servant of his co-defendant, New Jersey Fidelity Plate Glass Insurance Company. If he was not such agent or servant, then defendant corporation is not liable for his negligence. Defendant can be *Page 200
liable only under the theory that defendant corporation was defendant Shea's master and by reason of that relation must respond to damages caused by the neglect of its servant, the said Shea: Khoury v. Edison Electric Illuminating Co. (Mass.),164 N.E. 77; Hamrin v. Thompson Yards, Inc., 172 Minn. 536
(216 N.W. 247); notes, 17 A.L.R. 621; 29 A.L.R. 470; 54 A.L.R. 527; Mechem on Agency (2 ed.), 183, § 255.
E.L. McDougal was retained by defendant corporation as its attorney at law. He was appointed the adjuster for defendant corporation. An adjuster of a corporation cannot delegate his authority without special authorization from his principal. An adjuster holds a position of trust requiring special knowledge and skill in the performance of his duties. His relation to his principal is analogous to that of an independent contractor: 2 C.J. 424 (§ 10); Roemhild v. Home Ins. Co., ante, p. 50 (278 P. 87, 89), decided May 28, 1929, wherein Mr. Justice RAND states:
"An adjuster is a person who is selected because of his special skill and fitness and, as in all cases of delegated authority where personal trust or confidence is reposed in the agent, and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal and cannot be delegated to another unless there be a special power of substitution. (Lyon v. Jerome, 26 Wend. 484 [37 Am. Dec. 271].)"
"An agent of the company authorized to adjust a loss and selected for such purpose by reason of his special skill and fitness has no implied power to delegate his authority." 33 C.J. 37.
Ruthven Bros. v. American Fire Ins. Co., 92 Iowa, 316
(60 N.W. 663); Royal Ins. Co. v. Eggleston, 19 Ala. App. 638
(99 So. 828, 829); Waldman v. *Page 201 North British Mercantile Ins. Co., 91 Ala. 170 (8 So. 666, 24 Am. St. Rep. 883); 1 Cooley's Briefs on Insurance, 473;Wright v. Boynton, 37 N.H. 9 (72 Am. Dec. 319, 320).
"In all cases of delegated authority, where personal trust or confidence is reposed in the agent, and especially where the exercise and application of the power is made subject to this judgment or discretion, the authority is purely personal and cannot be delegated to another, unless there be a special power of substitution." Helwig v. City of Gloversville, 158 N.Y. Supp. 477, and cases there cited.
To the same effect is Carroll v. Tucker, 2 Misc. Rep. 397-399 (21 N.Y. Supp. 952).
There is no evidence tending to prove or from which an inference may be drawn that defendant corporation had ever acknowledged defendant Shea to be its agent. The acts and conduct of defendant Shea, the agent of the company and the company adjuster, Mr. McDougal, go no further than to tend to prove that Shea was a servant of said McDougal. This relation is discussed in 1 Mechem on Agency (2 ed.), pp. 241, 243, Section 330:
"In order to justify the inference of an employment as the principal's agent, the circumstances must be such as to reasonably warrant the conclusion that the principal has taken the subagent as his agent, and thereby, ordinarily, becoming liable for his compensation, assuming responsibility for his conduct, accepting the subagent's responsibility to him, and releasing the original agent from such responsibility."
Ordinarily whether or not a servant or agent of an agent is an agent of the principal is a question of fact. There must be some evidence or facts from which an inference can be legally drawn of the consent of the principal that the subagent is the principal's *Page 202
agent. There is no evidence or testimony from which an inference can be drawn that defendant corporation ever consented to or had any knowledge that its co-defendant Shea was acting as its agent. The acts done by defendant Shea at Albany in checking up the bill of the garage which repaired the automobile was done in the name of his employer, Mr. McDougal. Mr. Shea's card, introduced by plaintiff, is simply his name on the card of Mr. McDougal. Now, in the light of the law that McDougal as an adjuster had no authority to delegate his powers as such adjuster, these circumstances and said card are no evidence of a special authority invested in said McDougal to appoint subagents or of the consent of defendant corporation to Shea acting as its agent. Defendant corporation is not shown to be liable to Shea for his compensation. It did not own the machine in which Shea was traveling. It had no control at all over Shea. Shea did not report to the company but to his own employer, Mr. McDougal; consequently none of the evidence tends to establish the relation of principal and agent between defendant corporation and defendant Shea. Without that defendant corporation is not liable to plaintiff for Shea's negligence.
E.L. McDougal, the employer of defendant Shea, was admittedly adjuster for defendant corporation. As such adjuster he was an agent of defendant corporation. Plaintiff presents his case as though that relation authorized him to appoint subagents, but authority does not follow as shown by the authorities cited above, nor does it follow because McDougal was agent of defendant corporation that it would be liable for results of McDougal's negligence in the performance of his duties as such adjuster. McDougal's *Page 203
position as adjuster is analogous to the relation of an independent contractor to his principal. The insurance company would not have any control over the manner in which its adjuster, McDougal, performed his duties. Defendant corporation was interested only in the results accomplished. Mr. McDougal could go to the place where the adjustment must be made by any means of travel chosen by him. He could employ clerks and other servants, but he was responsible for their conduct. They looked to him for pay and were responsible to him. He may be responsible for their negligence committed in the performance of their duty: 1 Mechem on Agency (2 ed.), p. 246, § 343; 2 Mechem on Agency (2 ed.), p. 1453, § 1870; Ramp v. Osborne, 115 Or. 672, 680 et seq. (239 P. 112).
"In the present case the sole interest of the defendant was that Parnell should be at places where the defendant had work to be performed, leaving the means of transportation to Parnell's decision and convenience, but limiting the liability for expense to the defendant to an amount equivalent to the fares of a common carrier. * * If he chose to use his car instead of traveling by a common carrier to go to a particular place, a finding would not be warranted that the defendant had any control over him in the operation of the car or responsibility for the condition of its brakes, lights, or other parts." Khoury v. Edison ElectricIlluminating Co. (Mass.), 164 N.E. 77, decided December 14, 1928.
See Oregon Fisheries Co. v. Elmore Packing Co., 69 Or. 340
(138 P. 862); Cooley on Torts (3 ed.), 1088, 1092; Post Pub.Co. v. Schickling, 22 Ohio App. 318 (154 N.E. 751); Hamrin
v. Thompson Yards, Inc., 172 Minn. 536 (216 N.W. 247); Bell
v. State, 153 Md. 333 (138 A. 227, 58 A.L.R. 1051); Call v.Detroit *Page 204 Journal Co., 191 Mich. 405 (158 N.W. 36, 19 A.L.R. 1164), and notes recorded in 17 A.L.R. 621, 622, 29 A.L.R. 470, 54 A.L.R. 627; Giroud v. Stryker Transp. Co. (N.J. Err. App.),140 A. 305, 306, point 3; Bojarski v. Howlett, Inc., 291 Pa. 485
(140 A. 544); 39 C.J. 1316, 1318, § 1518; Sorenson v.Smith, 65 Or. 78 (129 P. 757, 131 P. 1022, Ann. Cas. 1915A, 1127, 51 L.R.A. (N.S.) 612).
Since E.L. McDougal was not authorized to delegate his authority as an adjuster and he is an independent contractor, or sustains a relation to his principal similar to an independent contractor, defendant corporation is not liable for the negligence of defendant Shea. If said E.L. McDougal had been driving his own car instead of Shea, defendant corporation would not have been liable to plaintiff. Defendant corporation for the same reason is not liable for the damages resulting from defendant Shea's negligence, notwithstanding he was going to Albany to attend to business for defendant corporation. Defendant corporation had no control of Shea's car, did not employ Shea, was under no obligations to pay Shea and did not assume at any time to regulate or prescribe the detailed manner in which Shea's employer McDougal should transact the business submitted to him by defendant corporation.
Nothing herein stated must be taken as an expression of the court's opinion as to the liability of McDougal either to defendant corporation or to plaintiff. McDougal is not a party to this action and would not be bound by anything the court might say in that behalf. There is no intention on the part of the court to express any opinion as to the liability or nonliability of McDougal for the injuries sustained by plaintiff. *Page 205
The authorities cited by plaintiff to sustain his position are nearly all based upon cases where the offending employee was driving his master's car. In such cases the plaintiff was entitled to the presumption that one driving the owner's car was authorized to drive it and was engaged in his employer's business. That presumption is some evidence which the jury must consider: Dalrymple v. Covey Motor Car Co., 66 Or. 533
(135 P. 91, 48 L.R.A. (N.S.) 424). Ordinarily the question of whether or not one is an agent of a principal is a question of fact, but where the evidence is not disputed nor different inferences deduced therefrom, then the question is one of law. When an agency has been proved, the extent of that agency and the agent's authority is a question of law: Bauer v. NorthwestBlowpipe Co., 75 Or. 1, 4 (146 P. 129).
It is strenuously contended by plaintiff that defendant corporation has ratified the acts of its co-defendant Shea. We do not think there is any material evidence tending to prove ratification. Everything that Shea did in the premises was done in the name of his employer McDougal. There is no evidence tending to show that its adjuster, McDougal, had attempted to delegate his authority. Shea reported to McDougal, not to defendant corporation. Shea never represented himself, so far as the evidence shows, to be an agent of the defendant corporation but solely as an agent or employee of McDougal. For these reasons and the other reasons hereinbefore stated for the nonliability of defendant corporation, we hold that there is no evidence of ratification by defendant corporation.
The judgment against defendant corporation is reversed. The cause is remanded, with instruction to *Page 206
the Circuit Court to sustain the motion for a directed verdict in favor of defendant, New Jersey Fidelity Plate Glass Insurance Company.
REVERSED, WITH DIRECTIONS.
BELT and BEAN, JJ., concur.
BROWN, J., absent.
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ORDER
BRUCE J. McGIVERIN, United States Magistrate Judge.
Following a trial on the merits, the jury in this case returned a verdict against defendant Univision Puerto Rico, Inc. (“Univision”) on plaintiff Gerardo Oliver-as-Zapata’s (“Oliveras”) retaliation claims brought under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; and Puerto Rico’s Law No. 115 of December 20, 1991 (“Law 115”), 29 L.P.R.A. §§ 194 et seq. In accordance with the jury’s verdict, judgment was entered in favor of Oliveras in the amount of $3,299;998.00. (Docket No. 170). Subsequently, the court granted Univision’s motion for remittitur (Docket No. 237), and Oliveras agreed to accept the lowered amount of damages set by the court. (Docket No. 240). Presently before the court are Oliveras’s motions requesting reinstatement and/or front pay, and prejudgment interest. (Docket No. 166, 183, 188). Univision has opposed. (Docket No. 178, 189).
Oliveras first requests an order reinstating him to his former position at Univision, and in the alternative seeks the equitable remedy of front pay. The First Circuit has observed that “reinstatement is an important remedy because it most efficiently advances the goals of Title VII by making *87plaintiffs whole while also deterring future discriminatory conduct by employers. As a result, we have said that in employment discrimination cases, the overarching preference is for reinstatement. It is clear to that equitable considerations different and kind or degree from those regularly accompanying reinstatement must be present, if this important remedy is to be denied.” Che v. Massachusetts Bay Transp. Authority, 342 F.3d 31, 43 (1st Cir.2003) (internal quotations and citations omitted).
In Che, the First Circuit also noted a number of special considerations that could form the basis for a denial of reinstatement, including: (1) the strength of the evidence; (2) whether the discharged employee has found comparable work; (3) the absence of a property right in the positionbecause the employee was hired in violation of law; and (4) the ineligibility of the employee for the position, due to failure to meet established qualifications, which would result in immediate discharge. Id., at 43, fn. 1, citing Velazquez v. Figueroa-Gomez, 996 F.2d 425, 429 (1st Cir.1993). Importantly, the Court noted that this list “is certainly not exhaustive.” Id. at 43. Indeed, workplace hostility that could result from the plaintiffs reinstatement may be considered, but “given the importance of reinstatement as a remedy in employment discrimination cases, there must be evidence in the record aside from an employer’s mere participation in the trial to support a finding of extraordinary antagonism if that is to be the basis for the district court’s denial of reinstatement.” Id. at 44. Moreover, the First Circuit has found that “the amount of the damage awards,” along with other factors, can provide “sufficient justification for denying reinstatement.” Velazquez v. Figueroa-Gomez, 996 F.2d 425, 429 (1st Cir.1993); see also Kerr-Selgas v. American Airlines, Inc., 977 F.Supp. 100, 103 (D.P.R.1997) (denying reinstatement upon finding that $1.2 million damage award made plaintiff whole and provided adequate deterrence). In considering remedies under Title VII, the statute also permits the court to consider the rights of innocent employees. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982).
In this case, I find that the equitable remedy of reinstatement is not warranted. In reaching this determination, the overriding consideration is the amount of monetary compensation already awarded, which is more than sufficient to satisfy Title VII’s twin aims of making plaintiff whole and deterring future retaliatory conduct. The award, as reduced by the court and accepted by the plaintiff, provides Oliveras with nearly $2 million. Importantly, as the result of doubling damages under Puerto Rico law, and the awarding of both punitive and liquidated damages under federal law, Oliversas’s award, includes approximately $1.21 million over and above what he received in backpay and for his emotional distress. This amount is certainly sufficient to make Oliveras whole insofar as it constitutes more than thirteen times his annual salary when he left Univision. The amount is also clearly high enough to deter Univision or other employers from engaging in retaliatory conduct. Moreover, Univision points out, and plaintiff does not contest, that Oliveras’s reinstatement would • negatively affect an innocent person who was given Oliveras’s position after his dismissal. In sum, after weighing all of the factors, I find that the remedy of reinstatement is not warranted.1 For the same reasons, I *88find that the alternative equitable remedy of front-pay is not justified. Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 40-41 (1st Cir.1998) (district court within its discretion in denying front pay when plaintiff already received sufficient compensation).
Finally, I find that plaintiff is not entitled to prejudgment interest on the back-pay award, since he received an award of liquidated damages. Linn v. Andover Newton Theological School, Inc., 874 F.2d 1, 6 (1st Cir.1989). Oliveras’s request for prejudgment interest on compensatory damages is likewise denied. Post judgment interest will be applied from the date of entry of final judgment (December 9, 2011).
. Univision also argues that Oliveras’s reinstatement would result in undue tension in the
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 07 2020, 8:31 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian Buckner Baldwin Curtis T. Hill, Jr.
Martinsville, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven E. Ingalls, Jr., April 7, 2020
Appellant/Cross-Appellee/Defendant, Court of Appeals Case No.
19A-CR-950
v. Appeal from the Morgan Superior
Court
State of Indiana, The Honorable Brian H. Williams,
Judge
Appellee/Cross-Appellant/Plaintiff.
Trial Court Cause No.
55D02-1806-CM-1013
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-950 | April 7, 2020 Page 1 of 3
[1] On May 24, 2018, Steven Ingalls, Jr., carved his initials and his girlfriend’s first
initial and last name on the wall of the lockup in the Morgan County
Courthouse during a recess in his trial on other charges. On June 28, 2018, the
State charged Ingalls with Class B misdemeanor criminal mischief for his act of
vandalism. On January 25, 2019, the trial court found Ingalls guilty as charged
and imposed a thirty-day sentence, all suspended. On January 31, 2019, the
trial court appointed appellate counsel to Ingalls. On March 4, 2019, Ingalls’s
appellate counsel entered his appearance and sought leave to file a belated
motion to correct error, which the trial court granted. On March 25, 2019,
Ingalls filed a belated motion to correct error, which the trial court denied the
next day. On April 26, 2019, thirty-one days later, Ingalls filed a notice of
appeal.
[2] Ingalls argues that the trial court committed fundamental error in failing to
timely advise him of the consequences of failing to timely file a written demand
for a jury trial and that he received ineffective assistance of trial counsel. We
need not address these claims on their merits, however, as we agree with the
State that Ingalls forfeited his right to appeal.
[3] It is undisputed that Ingalls filed his notice of appeal thirty-one days after the
trial court’s denial of his motion to correct error, or one day late. Pursuant to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-950 | April 7, 2020 Page 2 of 3
Indiana Appellate Rule 9(A)(5), “[u]nless the Notice of Appeal is timely filed,
1
the right to appeal shall be forfeited except as provided by P.C.R. 2.”
[4] It is true that the Indiana Supreme Court has concluded that forfeiture of the
right to appeal can be forgiven if there are “extraordinarily compelling reasons
why this forfeited right should be restored.” In re Adoption of O.R., 16 N.E.3d
965, 971 (Ind. 2014). Ingalls, however, does not explain exactly which
“extraordinarily compelling” reasons should excuse his untimely filing. Ingalls
mentions that the fundamental liberty interest at issue in O.R. (the right of
parents to establish a home and raise their children) was part of the basis for the
restoration of the biological father’s right to appeal in that adoption case.
While this is true, no such interest is at stake in this case, as Ingalls’s thirty-day
sentence was wholly suspended. Ingalls also does not claim that circumstances
largely beyond his control, whether excusable neglect or something else, caused
his notice of appeal to be untimely. Based on the record before us, we have a
late notice of appeal but no apparent extraordinarily compelling reasons that
would justify restoring Ingalls’s right to appeal. Consequently, we dismiss
Ingalls’s appeal.
[5] Appeal dismissed.
Najam, J., and Tavitas, J., concur.
1
Indiana Post-Conviction Rule 2(1) allows an eligible defendant to petition the trial court for permission to
file a belated notice of appeal, which Ingalls did not do.
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MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Apr 07 2020, 9:11 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Tyler D. Helmond F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin & Chief Deputy Attorney General
Webb
Indianapolis, Indiana Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jody D. Selby, April 7, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2584
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Gary J. Schutte,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
82C01-1908-F6-5504
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 1 of 6
Case Summary
[1] Jody Selby appeals his convictions, following a jury trial, for level 6 felony
possession of methamphetamine and class A misdemeanor possession of a
controlled substance. The sole issue presented for our review is whether the
State presented sufficient evidence to support the convictions. Finding the
evidence sufficient, we affirm.
Facts and Procedural History
[2] On August 5, 2019, at approximately 9:30 p.m., Detective Jeff Taylor of the
Evansville Police Department arrived at a Vanderburgh County residence to
serve a felony warrant for a probation violation on L.T. As Detective Taylor
approached the residence, he observed a red vehicle parked in the driveway
with its passenger door open. Selby was inside the car using a flashlight to look
around the vehicle. Detective Taylor was suspicious about what Selby was
doing, so he did a visual scan of the vehicle and Selby’s hands to make sure that
Selby was not armed, and that there was not a weapon within his reach.
Detective Selby saw no weapons, and he also observed that there was nothing
on the driver’s seat.
[3] Selby was startled when Detective Taylor, who was dressed in his police
uniform, approached and began speaking to him. Selby behaved nervously, his
hands were shaking, and he seemed “like he was unsettled when[] he saw the
police.” Tr. Vol. 2 at 8. Selby gave Detective Taylor his identification upon
request, but he did not make eye contact with the detective and instead looked
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 2 of 6
at the ground. Detective Taylor asked Selby if he lived at the residence, and
Selby responded that he was “staying” there. Id.
[4] Due to Selby’s nervous behavior, Detective Taylor asked Selby to step out of
the vehicle so that he could perform a patdown search for weapons. As soon as
Detective Taylor began the patdown, he felt Selby’s “hand go into his pocket,”
and a struggle ensued. Id. at 10. Detective Taylor grabbed Selby’s wrist and
then felt Selby “flick” his wrist, “as if he pulled something out and it was
tossed.” Id. at 11. The struggle ended when Detective Taylor was able to get
handcuffs on Selby. Detective Taylor moved Selby away from the vehicle, and
then looked to see what Selby had tossed. Detective Taylor observed a white
box sitting on the vehicle’s driver’s seat that had not been there earlier.
Detective Taylor opened the box and found what was later determined to be
5.33 grams of methamphetamine, as well as alprazolam pills.
[5] The State charged Selby with level 6 felony possession of methamphetamine
and class A misdemeanor possession of a controlled substance. The State also
filed a separate habitual offender sentence enhancement. Following trial, a jury
found Selby guilty of both possession charges. Selby then pled guilty to the
habitual offender enhancement. The trial court sentenced Selby to concurrent
terms of two years for the level 6 felony, and one year for the class A
misdemeanor. The court enhanced Selby’s level 6 felony sentence by an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 3 of 6
additional five years for being a habitual offender, for an aggregate sentence of
seven years. This appeal ensued. 1
Discussion and Decision
[6] Selby challenges the sufficiency of the evidence to support his convictions.
When reviewing a claim of insufficient evidence, we neither reweigh the
evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.
2015). We look to the evidence and reasonable inferences drawn therefrom that
support the conviction, and will affirm if there is probative evidence from which
a reasonable factfinder could have found the defendant guilty beyond a
reasonable doubt. Id. In short, if the testimony believed by the trier of fact is
enough to support the conviction, then the reviewing court will not disturb it.
Id. at 500.
[7] To convict Selby of level 6 felony possession of methamphetamine, the State
was required to prove beyond a reasonable doubt that he, without a valid
prescription, knowingly or intentionally possessed methamphetamine (pure or
adulterated). Ind. Code § 35-48-4-6.1(a). To convict Selby of class A
misdemeanor possession of a controlled substance, the State was required to
prove that he, without a valid prescription, knowingly or intentionally
possessed a controlled substance (pure or adulterated) classified in schedule I,
1
Selby does not appeal the habitual offender finding or sentence enhancement.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 4 of 6
II, III, or IV. Ind. Code § 35-48-4-7. Alprazolam is listed as a schedule IV
controlled substance. See Ind. Code § 35-48-2-10.
[8] Selby asserts that the State failed to prove that he possessed either the
methamphetamine, or the alprazolam, found in the white box. Possession can
be actual or constructive. Parks v. State, 113 N.E.3d 269, 273 (Ind. Ct. App.
2018). As Selby did not have actual possession of the white box containing the
contraband at the time it was discovered, we must determine whether the State
proved that he constructively possessed it. 2 To prove constructive possession,
the State was required to prove that Selby had the intent and capability to
maintain dominion and control over the contraband. Id. “When constructive
possession is alleged, the State must demonstrate the defendant’s knowledge of
the contraband.” Bradshaw v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004).
Proof of dominion and control, and therefore knowledge, of contraband has
been found through a variety of means: (1) incriminating statements by the
defendant, (2) attempted flight or furtive gestures, (3) location of substances like
drugs in settings that suggest manufacturing, (4) proximity of the contraband to
the defendant, (5) location of the contraband within the defendant’s plain view,
and (6) the mingling of the contraband with other items owned by the
defendant. Parks, 113 N.E.3d at 273 (citing Henderson v. State, 715 N.E.2d 833,
836 (Ind. 1999)).
2
Although we address Selby’s challenge to the sufficiency of the evidence in terms of constructive possession,
we agree with the State that a reasonable trier of fact could have inferred from the evidence that Selby had
actual possession of the contraband before he discarded it onto the driver’s seat.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2584 | April 7, 2020 Page 5 of 6
[9] Here, Selby was the only person in the vehicle when Detective Taylor
approached. Selby behaved nervously, and, when Detective Taylor performed
a patdown search for weapons, Selby suddenly began struggling and pulled
something from his pocket and “flicked” it. Tr. Vol. 2 at 11. After struggling
with Selby and removing him from the immediate vicinity of the vehicle,
Detective Taylor observed the white box containing the contraband on the
vehicle’s driver’s seat, where it had not been previously. Based upon Selby’s
struggle with Detective Taylor along with his furtive gesture, and the location
and proximity of the contraband to where Selby had just been, it was
reasonable for the jury to infer that Selby had the intent and capability to
maintain dominion and control over the contraband. The State presented
sufficient evidence that Selby constructively possessed the contraband.
Therefore, we affirm his convictions.
[10] Affirmed.
Bailey, J., and Altice, J., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 9, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2035
v. (D. New M exico)
AARO N TH OM AS GATES, (D.C. No. 05-CR-1079 RB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Aaron Thomas Gates appeals his conviction for conspiracy to possess
m arijuana and actual possession of marijuana with intent to distribute. He
contends that the district court plainly erred in allowing Drug Enforcement
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Administration (“DEA”) Agent Tenille Kinsey to testify regarding a previous
conversation she had with M r. Gates’s codefendant in which the codefendant
implicated M r. Gates. Because M r. Gates cannot establish plain error, we affirm
his conviction.
I. BACKGROUND
A. The Checkpoint Stop
On February 16, 2005, Border Patrol Agent Daniel Romero was on duty at
the Interstate 25 checkpoint located north of Las Cruces, New M exico, when a
gray Honda Accord with Oklahoma plates drove through the checkpoint. Agent
Romero yelled at M r. Gates, the driver, to stop. M r. Gates was traveling from
Arizona with his friend Juan Yanez. After M r. Gates stopped the car, Border
Patrol Agent Florencio M ontellano’s drug-detecting canine alerted to the trunk of
the car.
Agent Romero asked M r. Gates if he was carrying anything in the trunk,
and M r. Gates replied he was not. M r. Gates consented to a search of the trunk.
W hen Agent M ontellano opened the trunk, he testified that a strong odor of
m arijuana w as present. A gent M ontellano found three bundles of marijuana, tw o
inside a duffel bag. The duffel bag was inscribed with “Gates, U.S.M .C., United
States M arine Corps.” Rec. vol. III, Tr. at 26-27. The agents also found a loaded
.357 magnum revolver in the trunk.
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At the time of his arrest, M r. Gates was a cadet in the University of
Oklahoma A rmy ROTC program. He had served in the United States M arine
Corps, was about to start on another military career as an officer in the Army.
Having completed the Reserve Officer Training Program, he was to start Officer
Training School on April 11, 2005. M r. Gates, who had been commissioned as a
second lieutenant in the A rmy on December 17, 2004, wore his military
camouflage uniform, although he was neither on military orders nor on the
Army’s payroll at the time of the arrest.
M r. Gates was employed part-time as a security guard. According to his
testimony, he was scheduled to stop that job and to go on active duty in the Army
on February 21, working as a campus recruiter.
B. M r. Gates’s Post-A rrest Statements
Agent M ontellano testified that, in a post-M iranda interview, M r. Gates
told him that he knew the marijuana was in the vehicle, but claimed that it did not
belong to him. According to Agent M ontellano, M r. Gates also admitted that he
let M r. Y anez load it into his car.
DEA Special Agent Kinsey testified that she responded to the call at the
checkpoint and interviewed M r. Gates and M r. Yanez. According to her
testimony, M r. Gates told Agent Kinsey that M r. Yanez asked him if he would
help drive the vehicle from Oklahoma to Tucson to pick up the marijuana in
exchange for $1,500. M r. Gates admitted that the revolver found in the vehicle
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belonged to him. M r. Gates also told Agent Kinsey that his wife had left three
weeks before and that they had financial problems.
During direct examination, Agent Kinsey was asked if she had submitted
the marijuana bundles for fingerprint analysis. Id. at 46. Agent Kinsey said that
she had not done so. When asked w hy not, Agent Kinsey responded: in“Because
I had tw o conversations. I knew who the dope— the marijuana belonged to. I
didn’t need to fingerprint it.” Id. The prosecution then asked “did M r. Gates or
M r. Yanez claim to loading the marijuana?” Agent Kinsey responded, “No. They
did not.” Id.
C. M r. Yanez’s Trial Testimony
M r. Yanez testified that about a week before the arrest, he made
arrangements with another friend to pick up a load of marijuana in Tucson.
According to M r. Yanez, he had been friends with M r. Gates for three years and
that he trusted M r. Gates more than any of his other friends. M r. Yanez testified
that he decided to ask M r. G ates to drive him to Tucson to pick up the marijuana.
At the time, M r. Yanez did not have a vehicle or a driver’s license. M r. Yanez
told agents he was to be paid about $3,000, but at trial he testified he expected to
be paid $1,500 to transport the load of marijuana. He planned to split the money
with M r. G ates.
M r. Yanez testified that M r. Gates picked up M r. Yanez in Oklahoma City
on the afternoon of February 15, 2005. W hen they arrived in Tucson, M r. Gates
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and M r. Yanez took the vehicle to a shopping center where it was picked up and
loaded by a person named “Dinken.” Id. at 75-77. Neither M r. Yanez nor M r.
Gates were present when the vehicle was loaded.
D. The W ritten Statement Signed by M r. Yanez
During a court proceeding after their arrest, M r. Gates gave M r. Yanez a
written statement and asked him to sign it. The statement said that M r. Gates did
not know about the marijuana until they arrived at the checkpoint and that at no
time before the border stop did M r. Gates have any knowledge about the presence
of marijuana in his car. M r. Yanez testified that if he signed the statement, he
thought M r. Gates w ould take responsibility for the gun found in the car. M r.
Yanez signed the document, which was admitted at trial.
E. M r. Gates’s defense
In addition to cross-examining the government’s witnesses, defense counsel
presented evidence that M r. Gates drove his friend to Arizona because he thought
M r. Yanez was considering purchasing a vehicle there. M r. Gates testified he was
planning to visit his sister in Phoenix, and, on redirect, Agent Kinsey recalled
some mention of a sister there. M r. Gates also clarified that he did know about
the marijuana, but not before M r. Yanez told him about it at the checkpoint. M r.
Gates testified in his defense, as did his then-separated spouse, and both testified
about M r. Gates’s clean record and the unlikelihood that M r. Gates would be
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involved in the scheme, given the relatively small amount of money and the high
risk of tarnishing his record.
E. Procedural background
A federal grand jury indicted M r. Gates and M r. Yanez for conspiracy to
possess with intent to distribute less than 50 kilograms of marijuana, in violation
of 21 U.S.C. § 846, and for possession with intent to distribute less than 50
kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. §
841(b)(1)(D). The grand jury also indicted M r. Gates for carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §
924(c)(1)(A)(I). M r. Yanez pleaded guilty to the charges.
Before the case w as submitted to the jury, the district court granted M r.
Gates’s motion for judgment of acquittal on the firearm charge. The jury
convicted M r. Gates on both the drug charges. The district court sentenced Gates
to 21 months’ imprisonment, a sentence six-months below the low end of the
guideline range. M r. Gates now timely appeals.
II. DISCUSSION
M r. Gates raises one contention on direct appeal: that Agent Kinsey’s
testimony improperly referred to a prior consistent statement made by M r. Y anez.
Because M r. Gates failed to raise this argument at trial, we review for plain error.
“Plain error occurs w hen there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
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reputation of judicial proceedings.” United States v. Bowen, 437 F.3d 1009, 1021
(10th Cir. 2006) (internal quotation marks omitted).
Tom e v. United States, 513 U.S. 150, 155-166 (1995), provides that prior
consistent statements offered to rebut a charge against the declarant of recent
fabrication are only admissible under Federal Rule of Evidence Rule 801(d)(1)(B)
if the declarant made the statements before the alleged motive to fabricate arose.
W e agree with M r. Gates that it may be possible to infer the nature and substance
of Agent Kinsey’s previous conversation with M r. Yanez. However, we need not
decide whether the previous conversation violated Fed. R. Evid. 801(d)(1)(B)
because M r. Gates cannot establish that any error affected his substantial rights.
For this reason, we hold that even assuming arguendo that M r. Gates could
meet the first two prongs of plain error analysis, he has failed to show that the
impact of the district court’s alleged error affected his substantial rights. As the
Supreme Court noted in United States v. Olano, in most cases the determination
that an error has affected substantial rights “means that the error must have been
prejudicial: It must have affected the outcome of the District Court proceedings.”
507 U.S. 725, 734 (1993). “It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice.” Id.
M r. Gates has failed to show that Agent Kinsey’s testimony regarding a
previous conversation affected the jury’s verdict. Not only did Agent Kinsey
testify that M r. Gates told her he knew of the presence of the marijuana, but also
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Border Patrol Agent M ontellano testified that, while he w as processing M r. Gates,
M r. Gates told him that he knew about the presence of marijuana. In addition,
M r. Yanez testified as to M r. Gates’s involvement in the conspiracy and of his
knowledge of the presence of marijuana that was in M r. G ates’s own duffel bag.
There was more than sufficient evidence supporting his conviction.
Furthermore, M r. Gates’s counsel had every opportunity to cross-examine
the prosecution’s witnesses, and indeed, thoroughly did so. In particular, defense
counsel cross-examined M r. Yanez regarding his signed statement accepting
responsibility for the marijuana, and stressed that M r. Gates’s only knowledge of
the marijuana w as after M r. Yanez told him it was in the car.
The jury considered all of the above evidence, credited the prosecution’s
witnesses, and found M r. Gates guilty. Given the amount of evidence against
him, M r. Gates cannot establish that any error affected his substantial rights.
III. CONCLUSION
Accordingly, we AFFIRM M r. Gates’s conviction.
Entered for the Court,
Robert H. Henry
Circuit Judge
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Appellant sued to recover for injuries sustained by her son Joseph M. Gallagher caused by a collision between a bicycle on which he was riding and appellee's automobile, on a road from Atlantic City.
The primary issue of the action was appellee's negligence and whether it was the sole cause of the injury, unaided by any neglect on the part of the boy. These questions, submitted to the jury, were determined in appellee's favor. All other questions based on causal liability, since they are the direct result thereof, disappear and are of no consequence to the litigation when the primary issue is held not to exist. Examples of such secondary matters are, the injury to the physical structure, pain and suffering, loss of earning power, loss of companionship, costs incurred in medical attention and other *Page 352
sundry elements which help to make up such law suits. It follows, therefore, when the jury frees a defendant of the charge of negligent conduct producing injury, erroneous admissions of evidence respecting questions of damage or incidents relating thereto, or erroneous instructions based thereon, are immaterial unless they palpably prejudice the jury on the main issue.
The court below may have committed error in admitting evidence in relation to an hereditary tendency to hernia, and in the charge to the jury regarding it; also on the law as to damages. The jury having found no causal connection between appellee's conduct and the accident, these matters were in no sense prejudicial to the main question and are now of no importance. The assignments of error based on such erroneous admission of evidence and the charge of the court in relation thereto and as to damages, are dismissed.
Appellant complains that the court below unduly stressed appellee's testimony. The charge was a correct résumé of all the evidence and we may consider only the record before us. Appellant's misfortune is that the evidence exhibited a much stronger case for defendant than for plaintiff, and, if it created an impession in defendant's favor, it was because the testimony warranted it. The jury undoubtedly took into consideration the story of the boy, who, though accompanied by a number of boy companions, was not corroborated, while appellee's story was supported by three disinterested witnesses. To award compensation at the expense of one who is in no way responsible for an accident would be a "monstrous injustice" as stated by the court below. Appellant is aggrieved at the use of these words but it is to be noted this remark followed another statement by the learned judge wherein the jury was instructed, that, if the appellee ran the boy down, it would be "outrageous if not criminal."
Judgment affirmed. *Page 353
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Appeal dismissed on motion of counsel for Appellee.
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People ex rel. Frederick v Superintendent, Auburn Corr. Facility (2017 NY Slip Op 09063)
People ex rel. Frederick v Superintendent, Auburn Corr. Facility
2017 NY Slip Op 09063
Decided on December 22, 2017
Appellate Division, Fourth 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 December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.
1475 KAH 17-00488
[*1]THE PEOPLE OF THE STATE OF NEW YORK EX REL. TREVOR FREDERICK, PETITIONER-APPELLANT,
vSUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF COUNSEL), FOR PETITIONER-APPELLANT.
TREVOR FREDERICK, PETITIONER-APPELLANT PRO SE.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered October 13, 2016 in a habeas corpus proceeding. The judgment denied the petition and dismissed the proceeding.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus and dismissed the proceeding. Habeas corpus relief is not an appropriate remedy where, as here, the claim raised by petitioner was or could have been raised on direct appeal or in a proceeding pursuant to CPL article 440 (see People ex rel. Haddock v Dolce, 149 AD3d 1593, 1593 [4th Dept 2017], lv denied 29 NY3d 917 [2017]). In addition, inasmuch as petitioner would not be entitled to immediate release even if his present contentions in his main and pro se supplemental briefs had merit, habeas corpus relief was properly denied on that ground as well (see People ex rel. Bagley v Albaugh, 278 AD2d 891, 891-892 [4th Dept 2000], lv denied 96 NY2d 709 [2001]).
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court
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04/06/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0639
No. DA 19-0639
STATE OF MONTANA,
Plaintiff and Appellee,
v.
STEVEN ROBERT FLORES,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including May 13, 2020, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
April 6 2020
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 19, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-3160
v. (D.C. No. 02-CR-40133-SAC)
JOSE LOPEZ-GUZMAN, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Defendant was indicted for possession with intent to distribute
approximately 5.9 kilograms of cocaine in violation of 18 U.S.C. § 841(a)(1).
Defendant filed a motion to suppress evidence allegedly obtained in violation of
*
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.
his Fourth Amendment rights. The district court denied the motion. Defendant
then entered a conditional plea and subsequently brought this appeal.
On September 13, 2002, Defendant was driving eastbound on I-70 through
rural Kansas. Sergeant Rule, driving westbound on that same stretch of road, was
conducting routine patrol when he noticed Defendant following too closely behind
another driver in violation of Kansas traffic law. After noticing the traffic
violation, Sergeant Rule turned around and followed Defendant for approximately
one mile before pulling him over.
After stopping Defendant, Sergeant Rule immediately realized that an
apparent language barrier existed between Defendant and himself; Defendant
spoke Spanish while Sergeant Rule spoke English. Over the course of Sergeant
Rule’s career, he had learned some Spanish and therefore attempted to
communicate with Defendant in both English and in his admittedly poor Spanish.
The two discussed several issues and Sergeant Rule eventually issued Defendant a
traffic citation.
After issuing the traffic citation, Sergeant Rule handed Defendant his
drivers’ license and registration, and began to step away from the car. Before
arriving back to his patrol car, Sergeant Rule turned around and returned to
Defendant’s vehicle to ask Defendant additional questions. Sergeant Rule first
asked Defendant if he could engage him in further questioning. Defendant
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agreed. He then asked Defendant, in Spanish, if he had any drugs. Defendant
denied carrying any drugs. Sergeant Rule then asked in both English and Spanish
if he could search the vehicle. Defendant agreed.
After agreeing to a search of the vehicle, Defendant began to move his car.
Sergeant Rule immediately corrected Defendant’s action by telling him that he
had asked him, Defendant, to exit the car. Defendant complied. Sergeant Rule’s
subsequent search revealed approximately 5.9 kilograms of cocaine.
On appeal, Defendant claims that his consent was not knowingly and
voluntarily given, rendering Sergeant Rule’s search violative of his Fourth
Amendment rights, and, as a result, the district court should have granted
Defendant’s suppression motion. “In reviewing the denial of a motion to
suppress, we must accept the district court’s factual findings unless clearly
erroneous and we view the evidence in the light most favorable to the prevailing
party.” United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999)
(citation omitted). In considering this evidence, “we are mindful that at a hearing
on a motion to suppress, the credibility of the witnesses and the weight to be
given the evidence together with the inferences, deductions and conclusions to be
drawn from the evidence, are to be determined by the trial judge.” United States
v. Werking, 915 F.2d 1404, 1406 (10th Cir. 1990) (internal quotation marks
omitted). Nevertheless, we review de novo the district court’s legal conclusion
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that the search comported with the strictures of the Fourth Amendment. United
States v. Ramirez, 63 F.3d 937, 940 (10th Cir. 1995).
Generally, prior to searching one’s possessions, an officer must have a
warrant issued from a judicial officer. See United States v. Jackson, 381 F.3d
984, 988 (10th Cir. 2004). However, an exception to the warrant requirement
exists when consent is given by the person to be searched. Id. For consent to be
valid, the government bears the burden of proving by a preponderance of the
evidence that the consent was freely and voluntarily given. See United States v.
Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001). “The government must
show there was no duress or coercion, express or implied, that the consent was
unequivocal and specific, and that it was freely and intelligently given.” United
States v. Hernandez, 93 F.3d 1493, 1500 (10th Cir. 1996).
Defendant contends that he could not have given voluntary consent because
he does not speak English very well. The existence of a language barrier can
vitiate consent. See United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir.
1996) (explaining that “language barriers may inhibit a suspect's ability to [act]
knowingly and intelligently”). However, a finding by the district court that a
defendant could converse sufficiently with the officer to demonstrate an
understanding of the officer supports a decision of voluntary consent. See Zubia-
Melendez, 263 F.3d at 1163.
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The district court made such findings in this case:
The court finds . . . that defendant understood Sergeant Rule’s
requests sufficiently to respond to them, and that he did
respond to them. Defendant demonstrated adequate receptive
language skills to consent to search, particularly given the fact
that Sergeant Rule spoke Spanish at crucial times to assure
defendant’s understanding of what was being asked him.
....
Defendant responded to several of Sergeant Rule’s requests
made in English, without any Spanish counterparts, such that
the court is persuaded that defendant understood English
sufficiently to consent to the officer’s request to search the
vehicle.
United States v. Lopez-Guzman, 246 F. Supp. 2d 1155, 1161 (D. Kan. 2003). This
finding was based on a preponderance of the evidence standard. Id. at 1160.
While what Defendant truly understood in his conversation with Sergeant
Rule is difficult to ascertain, we cannot say that the district court’s finding is
clearly erroneous. “A finding of fact is ‘clearly erroneous’ if it is without factual
support in the record or if the appellate court, after reviewing all the evidence, is
left with a definite and firm conviction that a mistake has been made.” Manning
v. United States, 146 F.3d 808, 812 (10th Cir. 1998). After reviewing the record,
including the video-taped encounter between Defendant and Sergeant Rule, we
are not left with a firm conviction that a mistake has been made. Indeed, the high
hurdle imposed by the clearly erroneous standard has not been met.
In addition, Defendant argues that notwithstanding this court’s finding that
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his consent was valid, he revoked his consent when he began to move his car
forward. A suspect may revoke his consent. See United States v. West, 219 F.3d
1171, 1178 (10th Cir. 2000) (recognizing the right of a criminal suspect to
withdraw his consent). The district court again made a clear finding in this
regard: “[T]he movement [of the vehicle] does not appear to evidence defiance of
the officer’s request that defendant move to the shoulder of the road, but rather
compliance with what defendant thought Sergeant Rule’s request to be.” Lopez-
Guzman, 249 F. Supp. 2d at 1162. The fact that Defendant may have
misunderstood the specifics of Sergeant Rule’s request does not demonstrate a
revocation of his consent. 1 Misunderstandings are commonplace in our culture,
regardless if the two parties speak the same language. After reviewing the record,
we do not find the district court’s finding of fact to be clearly erroneous. The fact
that Defendant quickly exited his car when Sergeant Rule clarified his request
defeats Defendant’s argument that he was revoking his consent when he began to
move his car.
1
We also agree with the district court that “the fact of the vehicle’s
movement [is also] insufficient to . . . indicate that [Defendant’s consent] was not
freely given.” Lopez-Guzman, 346 F. Supp. 2d at 1162.
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AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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Plaintiff in error procured amended writ of mandamus commanding the relator as follows:
"THESE PRESENTS ARE, THEREFORE, TO COMMAND YOU to include in the budget of said City for the fiscal year of 1938-1939 a specific appropriation of a sum sufficient to pay relator's said claim in full, and to include in the annual tax levy ordinance of said City of said fiscal year a special tax sufficient to pay said appropriation in full; and to assess, enter, calculate and carry out the said special tax upon the tax rolls of said Town; to collect said Special Tax so levied and assessed, and place and keep the funds derived therefrom in a special sinking fund as and when collected, for the payment and retirement of said described bonds and interest coupons; and to execute and/or certify all papers, certificates and resolutions, and do and perform all acts and duties in the premises necessary to effectuate the commands aforesaid.
"And you are hereby required to be and appear before this Honorable Court at Bushnell, Sumter County, Florida, on the 12th day of September, A.D. 1938, at 10:00 o'clock and show cause, if any you can, why a peremptory writ of mandamus should not be issued herein requiring you to do and perform the acts and duties aforesaid." *Page 313
Attached to the writ and made a part thereof was copy of one of the bonds and upon which petitioner's claim to the right of mandamus is based. That bond, with endorsements thereon, reads as follows:
"EXHIBIT A
Number UNITED STATES OF AMERICA Dollars
"14 $500.00
"STATE OF FLORIDA "County of Sumter "T O W N O F C O L E M A N
"COLEMAN PAVING BONDS, SERIES 'A' OF THE TOWN OF COLEMAN, FLORIDA,
"KNOW ALL MEN BY THESE PRESENTS: That the Town of Coleman, in the State of Florida, is justly indebted and for value received hereby promises to pay to the bearer on the first day of August, A.D. 1936, the principal sum of FIVE HUNDRED DOLLARS with interest thereon at the rate of six per centum per annum from the first day of August, 1926, payable semi-annually on the first day of February and the first day of August of each year, upon the presentation and surrender of the annexed interest coupons as they severally become due. Both principal and interest of this bond are payable in gold coin of the United States of America, of the present standard of weight and fineness, at the office of the National City Bank of the City of New York in the State, of New York, and for prompt payment hereof both principal and interest as the same become due and payable, the full faith, credit and resources of said City are hereby irrevocably pledged.
"This bonds is one of a series of fifteen (15) bonds of like date, tenor and amount, except as to maturities, aggregating Seven Thousand Five Hundred ($7,500.00) Dollars and issued for the purpose of paying the proportion of the *Page 314
cost of certain street improvements assessed against property bounding and abutting upon such improvements in the Town of Coleman, Florida, under the authority of, and in full compliance with Chapter 9298 of the Laws of Florida, Acts of 1923, and pursuant to resolution duly passed by the Town Council of said Town.
"IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things required to be done, precedent to and in the issuance of this bond by the Laws and Constitution of said State and the ordinances of said Town, have been done and have happened; that special assessments against adjoining property for improvements equal to this bond have been set aside as a trust fund for the payment of the principal and interest of this bond, and that in addition thereto, provisions have been made for the levy and collection of direct annual tax upon all the taxable property of and within said Town, sufficient to pay the interest and principal of this bond as the same shall become due and payable, should said special assessments for any reason become insufficient for the payment of such principal and interest; and that the total indebtedness of said Town, including this bond, does not exceed any constitutional or statutory limitation.
"IN WITNESS WHEREOF, the said TOWN OF COLEMAN, Florida, has caused this bond to be signed by its Mayor, President of Town Council, and Clerk, under its corporate seal, and the interest coupons hereto attached to be signed with the facsimile signatures of said Officers, as of the first day of August, A. D. 1926.
"A.W. KIMBROHGH, Mayor, Town of Coleman, Florida.
"(SEAL OF TOWN OF COLEMAN) "H.H. Hall, Town Clerk, Town of Coleman, Florida.
"M.T. Caruthers President, Town Council, Town of Coleman, Florida. "(Conn.) *Page 315 "EXHIBIT A "Number 14 "STATE OF FLORIDA "TOWN OF COLEMAN "COUNTY OF SUMTER "$500.00 "6 Per Cent Paving Bond, Series 'A' "Principal Due August 1st, A.D. 1936
"Interest Payable February 1st and August 1st in each year
"Payable at NATIONAL CITY BANK, New York City, N Y
"CERTIFICATE OF VALIDATION
"This Bond was validated and confirmed by decree of the Circuit Court of the 16th Judicial Circuit of Florida, in and for Sumter County, bearing date of the 14th day of October, A. D. 1926.
"(Signed) W.N. Potter, Clerk of the Circuit Court Sumter County, Florida
"(SEAL OF CIRCUIT COURT)
"EXHIBIT 'B' "Copy of Coupon
"Coupon No. 3 $15.00
"On February 1st, 1928, the Town of Coleman, Florida, will pay to the bearer, at the office of the National City Bank, New York City, the sum of Fifteen ($15.00) dollars in gold coin of the United States of America, of the present standard of weight and fineness, being the semiannual interest due that day on its Coleman Paving Bonds, Series 'A' dated August 1, 1926, and numbered 4.
"A.W. Kimbrough, Mayor, Town of Coleman, Florida.
"H.H. Hall, Town Clerk, Town of Coleman, Florida.
"M.T. Caruthers "President, Town Council, Town of Coleman, Florida." *Page 316
Copy of the decree of validation was also attached to and made part of the alternative writ.
The record shows that that decree was entered in the case of the Town of Coleman, a municipal corporation, Petitioner, v. State of Florida, defendant, and the judgment, inter alia, was:
"This cause coming on to be heard upon the original petition and upon the order against the State of Florida, requiring it, through the Honorable J.W. Hunter, State Attorney, in and for the Sixteenth Judicial Circuit of the State of Florida, to show cause before this Court on the 14th day of October, A.D. 1926, at three o'clock P. M., why bonds of the Town of Coleman, a municipal corporation in Sumter County, Florida, in the sum of Seven Thousand Five Hundred ($7,500.00) Dollars should not be validated and confirmed, which said order was made and entered upon the 22nd day of September, A.D. 1926, and upon notice by the Honorable W.N. Potter, Clerk of the Circuit Court in and for Sumter County, Florida, addressed to the Citizens and Taxpayers of the Town of Coleman, Florida, a municipal corporation, requiring them on the 14th day of October, A.D. 1926, at three o'clock P. M., at Bushnell, Sumter County, Florida, to show cause, if any they have, why said bonds should not be validated and confirmed; and
"It further appearing unto the. Court that a copy of the petition in this cause, together with a copy of the order heretofore issued in this Court directed to the State of Florida, was served on the Honorable J.W. Hunter, State Attorney in and for the Sixteenth Judicial Circuit of the State of Florida on the 22nd day of September, A.D. 1926, and more than eighteen (18) days before the date fixed in said order for the hearing in this cause; and
"It further appearing unto the Court that the said notice *Page 317
to the Citizens and Taxpayers of the said Town of Coleman, Florida, issued by the Clerk of the Circuit Court of Sumter County, Florida, was published in the Sumter County Times, a newspaper of general circulation published in the County of Sumter, State of Florida, there being no newspaper published in the Town of Coleman, Florida, once each week for three (3) consecutive weeks before the date fixed for this hearing, the first publication thereof being more than eighteen (18) days prior to the date fixed for said hearing; and
"It further appearing to the Court that the State of Florida acting by and through its State Attorney in and for the Sixteenth judicial Circuit of the State of Florida, has shown no cause why said bonds should not be validated and confirmed and it further appearing unto the Court that there is and has been no intervention or objection filed on the part of any citizens or taxpayers in any way contesting or objecting to the validation of said bonds;
"IT IS THEREFORE, UPON CONSIDERATION THEREOF, ORDERED, ADJUDGED AND DECREED that the equities of said cause are with the petitioner and that the prayer of said petition should be and the same is hereby granted, and that the said bonds of the said Town of Coleman, Florida, a municipal corporation, amounting in the aggregate to Seven Thousand Five Hundred ($7,500.00) Dollars, mentioned and described in said petition, to-wit:
"Seven Thousand Five Hundred ($7,500.00) Dollars Coleman Paving Bonds Series A, of the Town of Coleman, Florida, being fifteen (15) bonds in Number of the par value of Five Hundred ($500.00) Dollars each with appropriate interest coupons attached thereto evidencing interest on each bond payable semi-annually on February first and August first in each year beginning with the year 1927 at the rate of six (6%) per annum, to be executed in behalf *Page 318
of said Town by the signatures of the Mayor, President of Town Council and Town Clerk; said bonds being dated August first 1926 and maturing serially over a period of ten (10) years beginning with the year 1927; said bonds being secured by special assessments for street improvements in said Town and in default of collection of said, assessments said Bonds and interest to be paid by direct tax on all property within the corporate limits of said Town, be and the same are hereby validated and confirmed; and that when said bonds are issued, the same shall be valid and legal obligations against the said Town of Coleman, Sumter County, Florida, and that this decree shall be forever conclusive on the validity of said bonds and the validity thereof shall never be called into question in any Court in this State.
"DONE, ORDERED, ADJUDGED AND DECREED at Tavares, Lake County, State of Florida, within the Sixteenth Judicial Circuit of said State, this 14th day of October, A.D. 1926."
To the amended alternative writ motion to quash was interposed. Motion to Quash was granted; judgment was entered on relator refusing to plead further, and to that judgment writ of error is prosecuted.
The allegations of the amended alternative writ are sufficient to show that by Chapter 10429, Special Acts of 1925, the Town of Coleman was abolished and the City of Coleman was created.
The record shows that the bonds here involved were issued as of the first day of August, A.D. 1926, which was more than one year subsequent to the abolition of the Town of Coleman and the creation of the City of Coleman.
Before the relator is entitled to have relief prayed in the mandamus proceeding it must be established that the bonds involved are the bonds of the City of Coleman.
So far as the record shows, the Town of Coleman was *Page 319
not authorized to issue any bonds at the date on which these bonds were issued. The bonds upon their face purport to be the bonds of the Town of Coleman and if they are to be held to be the bonds of the City of Coleman, they must be reformed. The reformation of a written instrument is the subject of equity jurisdiction exclusively. See Perkins v. O'Donald, 77 Fla. 710, 82 So. 401; Capital City Bank v. Hilson, 64 Fla. 206, 60 So. 189, Ann. Cas. 1914B 1211. The written instrument involved in this case appears to be the bond of the Town of Coleman and it may not be reformed in mandamus proceedings so as to make it a bond of the City of Coleman under the factual conditions obtaining in this case and under the showing made.
If the bond had been issued by the Town of Coleman while that municipality was in existence the obligation might be made by statute the obligation of the City of Coleman when it was created the successor of the Town of Coleman. But there is no statutory authority shown in the record whereby the City of Coleman after its creation was authorized to issue original bonds in the name of the Town of Coleman. Mandamus may be employed by holder of municipal bonds as a form of execution to enforce collection of matured interest or principal either by requiring levy of taxes to meet the requirement for making the payment, or by sequestering funds already on hand and applicable for payment. Humphreys, et al., v. State ex rel Palm Beach Co. et al., 108 Fla. 92, 145 So. 858. But we take it that had execution issued on a judgment against the Town of Coleman based on an obligation accruing subsequent to the abolishment of that municipality, such execution would not be effective against the City of Coleman without reformation.
The decree of validation does not show an adjudication that the bonds involved were the valid and binding obligations *Page 320
of the City of Coleman. Neither the State of Florida nor the taxpayers were required to answer the City of Coleman in bond validation proceedings.
So it appears that the motion to quash was properly granted and is not necessary for us to discuss other questions presented, as such other questions will be for presentation and determination, if and when proceedings are instituted and prosecuted for the purpose of accomplishing a reformation of the bonds.
The order appealed from is affirmed.
So ordered.
TERRELL, C. J., and THOMAS, J. J., concur.
WHITFIELD, J., concurs in opinoin and judgment.
Justices BROWN and CHAPMAN not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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01-03-2023
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07-05-2016
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393 N.W.2d 427 (1986)
BACKHAULS, INC., et al., Appellants,
v.
Kenneth V. THAKE, et al., Illinois Farmers Insurance Co., a.k.a Illinois Farmers Insurance Group, Respondents.
No. C7-86-753.
Court of Appeals of Minnesota.
September 30, 1986.
Review Denied November 19, 1986.
*428 Carol A. Kubic, Peter J. Pustorino, Pustorino, Pederson, Tilton & Parrington, James R. Gray, Minneapolis, for Backhauls, Inc., et al.
Gary Stoneking, Hvass, Weisman & King, Chtd., Minneapolis, for Kenneth V. Thake, et al.
J. Mark Catron, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, for Illinois Farmers Ins. Co.
Heard, considered and decided by SEDGWICK, P.J., and FORSBERG and LESLIE, JJ.
OPINION
FORSBERG, Judge.
Worker's compensation benefits paid by appellant/employer Backhauls, Inc. and its worker's compensation insurer appellant Aetna Life and Casualty Co. were discontinued after it was determined that the employee was intoxicated at the time of the accident and that his intoxication was the proximate cause of his injuries. Appellants moved for summary judgment against the employee and his no-fault carrier, Illinois Farmers Insurance Company, for reimbursement of monies paid under mistake of law or fact. Respondents cross-moved to dismiss appellants' claim. The trial court granted summary judgment in favor of respondents, based on statutory preclusion of appellants' asserted right to subrogation. We affirm.
FACTS
Kenneth Thake was seriously injured on December 19, 1980, when he was struck by a car while walking along the side of the *429 road in front of Backhauls, Inc., his employer's business. Prior to the accident, Thake had been attending a business meeting at a nearby bar and grill with Merlin Clausen, Backhauls, Inc.'s general manager. The injury occurred as Thake walked back to his truck, located in Backhauls' parking lot. As a result of the accident, Thake suffers permanent brain damage. Thake's medical expenses and lost wages are ongoing.
Because he had been in the scope and course of his employment when the accident causing his injury occurred, Thake brought a worker's compensation claim against his employer. The Backhauls' worker's compensation insurer, Aetna Life and Casualty Company ("Aetna"), paid Thake $136,946.91 in medical expenses and $28,391.13 in wage loss benefits. After investigation, however, Aetna petitioned to discontinue benefits, believing Thake's intoxication to be the proximate cause of the accident. The worker's compensation judge denied the petition, but the Workers' Compensation Court of Appeals reversed, finding Thake's intoxication was the proximate cause of injuries for which he sought compensation. The Minnesota Supreme Court affirmed the discontinuance of benefits in Thake v. Backhauls, Inc., 345 N.W.2d 745 (Minn.1984).
At the time of his injury, Thake was insured by three policies of insurance written by respondent Illinois Farmers Insurance Group ("Farmers") on his family automobiles, each providing for $20,000 in medical benefits and $10,000 in wage loss benefits. Thake received worker's compensation in the months following the accident until the Workers' Compensation Court of Appeals decision. No claim was made by Thake for either medical expenses or wage loss under his Farmers policies until the worker's compensation benefits were discontinued. At the time of the discontinuance, Aetna had paid a total of $165,338.04 in worker's compensation benefits to Thake and his medical care providers.
Appellants Backhauls and Aetna moved for summary judgment against respondents Thake and Illinois Farmers Insurance on its claim for reimbursement of monies paid under mistake of law or fact. Respondents cross-motioned for summary judgment and dismissal of appellants' claim. The trial court dismissed Aetna's claim, and Aetna now brings this appeal.
ISSUE
Did the trial court err in determining that a worker's compensation carrier is not entitled to reimbursement from a no-fault carrier for benefits it mistakenly paid to an injured employee?
ANALYSIS
The standard of review, on appeal from summary judgment, is whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Minn.R.Civ.P., 56.01; Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). The facts of this case are concededly undisputed. Respondents assert, and the trial court agreed, that appellants' claim is essentially an indirect right of subrogation. Appellants counter that their claim for reimbursement of economic loss benefits is not founded in subrogation, but rather in equitable relief in the form of restitution. Whether characterized as subrogation or restitution, the worker's compensation carrier is not entitled to reimbursement from the no-fault carrier for payments made to the injured employee by mistake.
1. The right of an employer or worker's compensation carrier to subrogation is specifically limited by Minn.Stat. § 176.061 to third party tortfeasors. Minn. Stat. § 176.061 provides that if an injured employee elects to receive compensation benefits from the employer, the employer is subrogated to the rights of the employee. Minn.Stat. § 176.061, subd. 3, 5 and 6 (1984). This right of subrogation is limited to damages based on tort liability and does not include sums for which a third party is contractually liable. Janzen v. Land O'Lakes, Inc., 278 N.W.2d 67, 69 (Minn. 1979). The Minnesota Supreme Court has *430 specifically held that a worker's compensation carrier is not entitled to subrogation against proceeds received by the employee in the settlement of his claim pursuant to a policy of uninsured motorist coverage. Cooper v. Younkin, 339 N.W.2d 552, 553 (Minn.1983).
2. Appellants base a request for equitable reimbursement on the anti-stacking provisions of Minn.Stat. § 65B.61 (1984). Section 65B.61, subds. (1) and (2) provide that the payment of worker's compensation benefits is primary, and when an employee receives benefits under worker's compensation and no-fault, no-fault benefits must be reduced by the amount of worker's compensation benefits paid. Metropolitan Transit Commission v. Bachman's, 311 N.W.2d 852, 854-55 (1981).
The Minnesota Supreme Court has applied this provision to entitle a no-fault carrier to intervene in a worker's compensation case and seek reimbursement for payments made for injuries also compensable under worker's compensation. Freeman v. Armour Food Co., 380 N.W.2d 816, 819-20 (1986).
The Freeman case involved an employee who was injured in a car accident while totally disabled from a work related injury. The worker's compensation carrier stopped paying disability benefits to the employee after the car accident, at which time the no-fault carrier began paying no-fault benefits. When the no-fault benefits were exhausted, the employee petitioned for worker's compensation benefits. The supreme court held that the no-fault carrier, which had mistakenly paid insurance benefits not knowing that the worker's compensation coverage was applicable, was entitled to intervene in a compensation proceeding and was entitled to an order for reimbursement out of the compensation award. Id.
Appellants analogize this case to Freeman, arguing that if a no-fault carrier is entitled to reimbursement from a worker's compensation carrier for payments mistakenly made when worker's compensation benefits should have been paid but were not, then a worker's compensation carrier should be entitled to reimbursement from the no-fault carrier for payments mistakenly made when no-fault benefits should have been paid, but were not. Appellants miscontrue both Freeman and § 65B.61. The stacking limits of § 65B.61 do not forbid receipt of compensation through both no-fault and worker's compensation. Rather, § 65B.61 defines worker's compensation benefits as primary and directs a reduction of no-fault benefits by the amount of worker's compensation benefits paid.
It is thus possible for no-fault benefits to be mistakenly overpaid because the carrier doesn't know worker's compensation is also available. In that situation, as in Freeman, the no-fault carrier is entitled to reimbursement from the worker's compensation carrier. However, while it is possible for worker's compensation benefits to be paid by mistake, as in this case, overpayment could not be based on nonpayment of no-fault benefits. No-fault benefits are not primary and do not reduce the amount of worker's compensation benefits paid by the carrier. In that situation, as here, the worker's compensation carrier is not entitled to reimbursement from the no-fault carrier.
3. This result is strongly supported by Minn.Stat. § 176.179 (1984) which specifically bars reimbursement for overpayment of worker's compensation benefits. Section 176.179 provides that payments voluntarily made through mistake in fact or law to an injured employee in apparent accordance with the Workers' Compensation Act and received by the employee in good faith shall not be refunded.
The Minnesota Supreme Court has held that this burden on the employer is valid and deemed it an appropriate legislative objective. Tri-State Insurance of Minnesota v. Bouma, 306 N.W.2d 564, 566 (Minn.1981). The supreme court stated that this provision applies when the conditions of the statute are met. Id. at 565.
In this case appellants freely, voluntarily, and in apparent accord with the workers' compensation statutes paid benefits on *431 behalf of Thake. Thake accepted those benefits in good faith. All the requirements of the statute having been met, the statute mandates that no reimbursement be allowed.
DECISION
The trial court did not err in determining that appellants were not entitled to reimbursement from a no-fault carrier for benefits mistakenly paid to an injured employee.
1. The subrogation right of a worker's compensation carrier provided by Minn. Stat. § 176.061 is limited to damages based on tort liability and does not include proceeds received pursuant to a no-fault insurance policy.
2. The anti-stacking provisions of Minn. Stat. § 65B.61 do not entitle a worker's compensation carrier to be reimbursed by the no-fault carrier for benefits mistakenly paid for injuries compensable under no-fault, but uncompensated by the no-fault carrier.
3. Minn.Stat. § 176.179 specifically bars reimbursement to a worker's compensation carrier for payments voluntarily paid through mistake of fact or law to an injured employee in accordance with the Workers' Compensation Act and received by the employee in good faith.
Affirmed.
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01-03-2023
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10-30-2013
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208 F.3d 536 (5th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.CHAVOR ANTWAN GAMBLE, Defendant-Appellant,
No. 98-50920Summary Calendar
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
April 18, 2000
Appeal from the United States District Court for the Western District of Texas
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:
1
The question in this appeal is whether appellant's habeas petition was timely filed under 28 U.S.C. 2255, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2255 bars any petition filed, on behalf of a federal prisoner more than one year after the final judgment of conviction, but it does not define when a judgment becomes final. Following decisions of this Court and other circuits, we hold that the conviction becomes final, and the one-year period begins to run, upon expiration of the time for seeking certiorari in the U.S. Supreme Court, even where, as here, the appellant has not actually filed such a petition.
2
Gamble's direct appeal to this court of his conviction for crack cocaine possession was dismissed on September 10, 1996, for failure to pay the docketing fee or to seek in forma pauperis status. His pro se 2255 motion was filed in the district court on December 4, 1997. The district court dismissed the petition, rejecting Gamble's argument that his conviction was not "final" for AEDPA limitations purposes until the time for filing a petition for certiorari expired. Gamble has appealed.
3
The district court's interpretation of 2255 finds support in a Seventh Circuitdecision.1 This court, however, recently distanced itself from the reasoning of that circuit, holding that when a federal criminal defendant files a timely certiorari petition on direct appeal, and the Supreme Court denies the petition, the federal judgment of conviction becomes "final" under 2255 on the date of the Supreme Court's denial. United States v. Thomas, 203 F.3d 350, 354-55 (5th Cir. 2000). Thomas carefully avoids the precise issue in this case -- the "finality" date of a conviction when no petition for certiorari has been filed -- but its disagreement with Gendron is unmistakable. Thomas also cites approvingly decisions of the Third and Tenth Circuits that "a conviction becomes final when a defendant's options for further direct review are foreclosed," whether or not those options have been pursued. Id. at 352; see, e.g., Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, 120 S. Ct. 808 (2000).
4
Fidelity to the reasoning of Thomas and to the developing majority rule compel us to conclude that Gamble's petition was timely. It was filed within a year after the ninety-day period for seeking certiorari review of his conviction as finalized in this court.2
5
The judgment of dismissal is therefore REVERSED, and the case is REMANDED to the district court for evaluation on the merits.
Notes:
1
See Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999).
2
The United States contends that Gamble's time limit should have elapsed because he could not seek certiorari from a dismissal for want of prosecution by this court. Alternatively, the government asserts that Gamble's petition fails on the merits. We have no jurisdiction to review the latter argument, Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998), and we are unpersuaded by the former.
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04-25-2010
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Argued on the merits March 9 and affirmed March 29, 1938 ON THE MERITS (77 P.2d 824)
Department 2.
This is a suit for the rescission of a contract for the purchase and sale of a building occupied as a service station and lunchroom and of the fixtures and stock of goods therein. The contract was entered into between the plaintiff and the defendant, W.E. Bramel, on or about June 1, 1936, and, in and by its terms, the plaintiff agreed to buy and the defendant to sell said property for the sum of $5,500. The building stands on premises belonging to one Joseph Weber and these premises are located on Macadam Road just north of the west end of the Sellwood bridge in Multnomah county, Oregon.
On May 10, 1928, Weber demised these premises to one Conway for a term of 10 years for an agreed rental during the time involved in this controversy of $15 per month. Shortly after the making of said lease, Conway, with Weber's consent, assigned the lease for the remainder of the term to the defendant Bramel and he erected said building on the premises and, at the time this controversy arose, was occupying the same as a filling station and lunchroom and claimed to be the owner of the building by virtue of some undisclosed agreement with the landlord.
Desiring to sell the property, Bramel, in May, 1936, employed the defendant Wenger, who was doing business as a broker under the trade name of Fidelity Brokerage Company, and authorized him to contract *Page 702
for the sale of said property for the sum of $5,500 and, upon his finding a purchaser ready and willing to pay said sum, Bramel agreed to pay Wenger the sum of $500 as commission therefor. Under his said employment, Wenger advertised the property for sale and the plaintiff, who resides in Columbia county, went to Wenger's office in Portland and consulted with him in regard to the property. He then visited the property and talked with Bramel and, at that time, was informed by Bramel that he was holding under a lease which then had but 22 months to run. The plaintiff informed Bramel that he was looking for a location for his son, who was then out of employment, to engage in business and that a lease on the premises for 22 months only would not justify the expenditure of so large a sum for the purchase of the property. Whereupon Bramel informed the plaintiff that, if he would purchase the property for $5,500 and pay $3,000 thereof in cash and execute a promissory note for $2,500, bearing interest at 7 per cent per annum, payable in monthly installments of $50 each plus accrued interest, he could and would procure from Weber an extension of the lease for an additional three years upon the same terms as were provided in the original lease. Plaintiff then returned to Wenger's office and entered into an agreement with Wenger that he would pay Wenger $250 in cash and the additional $2,750 upon Bramel's obtaining from Weber an extension of the lease for a period of three years, and it was agreed between them at that time that Wenger would retain all moneys paid him until Bramel secured the extension and, if he failed to do so, would return the money to the plaintiff. With said understanding, the plaintiff paid Wenger said sum of $250. *Page 703
On June 9, 1936, Wenger wrote a letter to the plaintiff (plaintiff's exhibit 11), in which he stated, among other things, that:
"Mr. Bramel contacted the landlord and received his consent for a three-year extension on the lease at $15.00 per month. * * * He (Weber) also consented for Mr. Bramel to give a sublease to you on the same conditions."
Relying on the statements contained in said letter, the plaintiff paid Wenger the further sum of $2,750, thereby completing the cash payment which he had contracted to make and, on June 26, 1936, plaintiff executed a note payable to the order of Bramel for the sum of $2,500, bearing interest at the rate of 7 per cent per annum, and payable in monthly installments of $50 each plus accrued interest, as he had agreed to do and deposited the same in escrow with the Bank of Sellwood to be held by said bank in escrow and not to be delivered by the bank to Bramel until the promised extension of the lease for the additional three years had been obtained and deposited in said bank.
It appears from the evidence that Weber declined to grant said extension and that he also refused to permit Bramel to assign said lease to the plaintiff or to sublease the premises to the plaintiff. When the plaintiff ascertained those facts, he brought this suit to rescind the contract and to recover back the moneys which he had paid and the note which he had executed and placed in escrow and joined in said suit, for the purpose of enjoining them from paying over the money or delivering the note to Bramel, Wenger, who was in possession of the money, and the Bank of Sellwood, which was in possession of the note, and obtained an order enjoining them from delivering the same to the defendant Bramel. *Page 704
Upon the trial of the cause, the lease under which the defendant Bramel was occupying the premises on which the building had been erected was offered and produced in evidence and this lease contains the express provision that:
"Said lessee will not, without the written consent of said lessor being first obtained, voluntarily or involuntarily or directly or indirectly assign or mortgage or pledge this lease or any share or interest therein or permit or allow the same to be assigned or transferred by operation of law or otherwise."
From this it will be seen that, upon Weber's refusal to give his written consent to the assignment of the lease, the plaintiff could obtain no legal right to the possession or occupancy of the building for any purpose or for any length of time, which was a material part of his contract. This constituted a failure of consideration in a material respect which entitled the plaintiff to a rescission of the contract.
Under this contract, the plaintiff was to acquire not only the building, the fixtures and the stock of goods but also to acquire for the remainder of the term and for three years thereafter the right to occupy the building for the purpose of transacting therein the business for which it had been erected. Unless the building could be so occupied, it could be of no possible value to the plaintiff and, since the contract was an entire contract and the consideration which the plaintiff was to pay therefor was not apportionable, the consideration failed and entitled the plaintiff to a rescission of the contract and to a return of the moneys paid and of the note given therefor. See 1 Black on Rescission, sec. 158 et seq. Again, as said by the same author in section 208, when performance of a contract by one of the *Page 705
parties is inherently impossible, or has become impossible in consequence of events occurring after the making of the contract, it is generally the right of the other party to rescind.
From this it follows that, upon Weber's refusal to extend the term of the lease or to permit Bramel to assign the lease for the remainder of the term, as, under the terms of the lease, Weber had a lawful right to do, this constituted such a material breach of the contract upon Bramel's part as to entitle the plaintiff to a rescission of the contract and to a return of the moneys paid and of the note given by him in reliance upon Bramel's promise to perform.
This conforms to the decree entered in the court below. The decree, therefore, is affirmed.
BEAN, C.J., and KELLY and BAILEY, JJ., concur.
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Suit by Methodist Book Concern against Charles V. Galloway and others constituting the State Tax Commission and others to obtain a declaratory judgment and injunction restraining the imposition and collection of property tax against the plaintiff's property. From the part of a decree holding plaintiff's property subject to taxation, plaintiff appeals, and from the part holding plaintiff to be charitable corporation, defendants appeal.
AFFIRMED IN PART; REVERSED IN PART. *Page 588
This is a suit for a declaratory judgment. The plaintiff Methodist Book Concern is a corporation organized under the laws of Ohio and licensed to do business in Oregon. The individual defendants are the members of the State Tax Commission and the sheriff and assessor of Multnomah County, Oregon. It is alleged that the plaintiff is a beneficial and charitable organization, not for profit, its objects being:
"* * * the publication, diffusion and circulation of moral and religious literature, books, periodicals and other publications, under the direction and in conformity with the customs of the Methodist Episcopal Church in the United States of America and the rules and regulations of the General Conference of said Church; the proceeds arising from the operations of the said corporation to be applied to the relief of Effective, Supernumerary, and Superannuated Ministers of the Methodist Episcopal Church in the United States of America, their wives, widows and children, as provided by the constitution of the said Church."
The defendants deny that the plaintiff is a charitable corporation. The principal office of the plaintiff is in Cincinnati, Ohio, but it is the:
"* * * owner of certain personal property consisting of a stock of books and publications published by the Methodist Church and by various other authors, and of certain furniture and fixtures used in connection with the sale and distribution of the stock of goods owned by Plaintiff and located at 231 S.W. Broadway, in the City of Portland, County of Multnomah and State of Oregon."
The plaintiff alleges that for many years the property described has been held exempt from taxation which is denied by the defendants. It is agreed that *Page 589
the defendants intend to impose and collect a property tax against said property and the plaintiff seeks an injunction restraining such action and a declaratory judgment on the following questions:
"1. Is the stock and fixtures of Plaintiff located at 231 S.W. Broadway in the City of Portland, County of Multnomah, and State of Oregon, subject to taxation?
"2. Is the Plaintiff required to pay taxes upon the hereinbefore described property?
The defendants affirmatively allege:
"That plaintiff, in the premises located at No. 231 S.W. Broadway, in the City of Portland, County of Multnomah and State of Oregon, owns, displays and sells and distributes for profit, books, periodicals and sundry other items of personal property and carries on thereat activities in competition with book stores and business enterprises of similar nature which bear their just share of the burden of taxation."
Defendants pray that the plaintiff's complaint be dismissed and that the court enter a declaratory judgment to the effect that the plaintiff is not a charitable corporation and that the stock of goods and fixtures is subject to taxation.
Upon trial of the issues, the court held that the plaintiff is a charitable corporation and that the application of income from the operation of the book store constitutes a charitable activity. However, the court also held that the statutory exemption in favor of charitable corporations does not apply to foreign corporations. It held further that the exemption statute is constitutional and that the plaintiff's property is subject to ad valorem property taxation. The plaintiff appeals from that part of the decree which holds that its property *Page 590
is subject to taxation and the defendants appeal from that part of the decree which holds that the plaintiff is a charitable corporation and that the application of the income therefrom constitutes a charitable activity. The pleadings present at least one justifiable controversy.
We will first consider whether tangible personal property situated in Oregon, owned by a charitable corporation, incorporated under the laws of Ohio but licensed to do business in Oregon, is subject to taxation in Oregon. For the purposes of this discussion, we will assume, without deciding, that the plaintiff is a charitable corporation. The statute provides as follows:
"All real property within this state and all tangible personal property situated within this state, except as otherwise may be provided by law, shall be subject to assessment and taxation in equal and ratable proportion. * * * O.C.L.A., § 110-101.
The foregoing provision remains unchanged in the subsequent amendment of the section. Oregon Laws 1941, ch. 440. The relevant provision of the statute granting tax exemption which also remains unchanged by subsequent amendments is as follows:
"The following property shall be exempt from taxation:
"* * *
"(3) The personal property of all literary, benevolent, charitable and scientific institutions incorporated within this state, and such real estate belonging to such institutions as shall be actually occupied for the purposes for which they were incorporated." O.C.L.A., § 110-201. (Amended, Laws 1945, ch. 296 and Laws 1947, ch. 382.) *Page 591
Plaintiff contends that the provision exempting from taxation the personal property of charitable corporations "incorporated within this state" should be construed to include foreign corporations licensed to do business in the state. We are compelled to reject the proposed construction. The language is plain. To interpret it as suggested would be to write a new statute which is not a judicial function. Even in the case of statutes which grant tax exemption to charitable corporations, without any express words limiting the exemption to domestic corporations, it has frequently, though not universally, been held as a matter of statutory construction that the exemption applies only to domestic corporations.
"The courts generally construe the constitutional and statutory provisions granting such institutions exemptions from taxation to refer and apply only to the institutions of the state, and not to those of foreign states, particularly when they do not dispense their charity or benevolence in the state, or devote their property therein to such purposes in the state. Exemption to charitable, educational, and religious organizations is predicated upon the fact that they render service to the state, for which reason they are relieved of certain burdens of taxation. The effect of an exemption is equivalent to an appropriation for the benefit or maintenance of foreign charities which, at best, have a remote chance only of benefiting the citizens of the state granting the exemption. And such exemptions are not ordinarily construed as applying to institutions established for the purpose of bestowing charity outside the limits of the state granting the exemption. Since the people of one state cannot be taxed for the benefit of the people of another state, there is no reason why an additional burden of taxation should be imposed on the remaining property in the state in order to benefit the people *Page 592
of another state, and even assuming it to be within the power of the legislature of a state to exempt the property of a foreign charitable corporation, an exemption of such property will not be presumed to have been intended, in the absence of a clear legislative direction to that effect. But it seems that if an institution incorporated in one state has property devoted to charitable purposes within another state, such property will be entitled to the exemption bestowed by the tax laws of the latter state upon domestic corporations of such character, where the terms of the exemption provision are not inconsistent with such view." 51 Am. Jur. Taxation, § 556.
In re Sautter's Estate, 142 Neb. 42, 5 N.W.2d 263; and see Inre Fiske's Estate, 178 Cal. 116, 172 P. 390; People v. Woman'sHome Missionary Soc. of M.E. Church, 303 Ill. 418, 135 N.E. 749;Morgan v. Atchison, T. S.F. Ry. Co., 116 Kan. 175,225 P. 1029; The People v. Seaman's Friend Soc., 87 Ill. 246; see alsoCity of Port Huron v. Wright, 150 Mich. 279, 114 N.W. 76; Inre Cooper's Estate, 229 Iowa 921, 295 N.W. 448.
Since the language of the statute expressly refers to institutions incorporated within this state, there is no occasion for the application of rules of construction which have been urged upon us.
"Statutory rules of construction cannot be employed for the purpose of importing ambiguity into language where no ambiguity exists." Inwall v. Transpacific Lumber Co., 165 Or. 560, 108 P.2d 522, syl. 2.
Even if the statute should be deemed ambiguous we would be required to apply the rule repeatedly set forth in our opinions to the effect that tax exemption statutes should be strictly construed and that an exemption should be denied unless it is so clearly granted *Page 593
as to be free of reasonable doubt. Behnke-Walker BusinessCollege v. Multnomah County et al., 173 Or. 510, 146 P.2d 614;Benton County v. Allen et al., 170 Or. 481, 133 P.2d 991;Allen v. Multnomah County et al., 179 Or. 548, 173 P.2d 475.
In the case at bar the language of the statute is clear and the exemption applies only to institutions "incorporated within this state". As we shall show, there is no necessity or justification for placing upon the statute a strained construction in order to avoid alleged unconstitutionality. The plaintiff asserts that O.C.L.A., § 110-201 as amended is violative of the equal protection clause of the federal constitution and of the following provisions of our state constitution:
"No tax or duty shall be imposed without the consent of the people or their representatives in the legislative assembly; and all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax." Oregon Constitution, Art. I, § 32.
"The legislative assembly shall, and the people through the initiative may, provide by law uniform rules of assessment and taxation. All taxes shall be levied and collected under general laws operating uniformly throughout the state." Oregon Constitution, Art. IX, § 1.
It is recognized that the validity of the Oregon tax exemption statute must be tested by the provisions of the equal protection clause of the federal constitution and it is firmly established that the provisions of that clause extend to foreign corporations within the jurisdiction of the state. The constitution safeguards to such corporations the protection of laws applied equally to all in the same situation. Quaker CityCab Co. v. Pennsylvania, *Page 594 277 U.S. 389, 72 L.ed. 927. On the other hand:
"* * * A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the Fourteenth Amendment. See e.g., Tigner v. Texas, 310 U.S. 141, 147, 84 L ed 1124, 1128, 60 S. Ct. 879, 130 A.L.R. 1321. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be. For it is axiomatic that the consequence of regulating by setting apart a classified group is that those in it will be subject to some restrictions or receive certain advantages that do not apply to other groups or to all the public. Atchison, T. S.F.R. Co. v. Mathews, 174 U.S. 96, 106, 43 L ed 909, 913, 19 S. Ct. 609. This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. * * *" Kotch v. River Port Pilot Comrs., 330 U.S. 552, 91 L.ed. 1093.
Again it has been said:
"No question is or could be made by the Corporation as to the right of a State, or a municipality with properly delegated powers, to enact laws or ordinances, based on reasonable classification of the objects of the legislation or of the persons whom it affects. `Equal protection' does not prohibit this. Although the wide discretion as to classification retained by a legislature, often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification. * * *" New York Rapid Transit Corporation v. New York, 303 U.S. 573, 82 L.ed. 1024.
Special regulations applicable only to foreign corporations have been upheld when tested by the equal *Page 595
protection clause. In Metropolitan Casualty Ins. Co. v.Brownell, 294 U.S. 580, 79 L.ed. 1070, the court said:
"* * * courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it. * * *"
See also Lincoln National Life Insurance Co. v. Read,325 U.S. 673, 89 L.ed. 1861. By way of summary we quote the following:
"A statute which unreasonably discriminates against foreign, in favor of domestic, corporations offends the equal protection clause of the Fourteenth Amendment. Where there is no other ground of distinction, a classification of corporations within the state, for the purpose of legislative regulation, into foreign corporations and domestic corporations is an unreasonable and arbitrary classification amounting to a denial of the equal protection of the laws. On the other hand, a state legislature may distinguish between foreign and domestic corporations for some purposes, and a legislative discrimination between such corporations or between foreign corporations and natural persons will be upheld where it has a reasonable basis and is not arbitrary. The ultimate test of validity of a legislative discrimination between foreign and domestic corporations is not whether there are differences between them, but whether such differences are pertinent to the subject of classification and have a rational relationship to the legislative command. * * *" 16 C.J.S., Constitutional Law, § 504. *Page 596
Northwest Auto Co. v. Hurlburt, 104 Or. 398, 207 P. 161; Statev. Kozer, 116 Or. 581, 242 P. 621; Fox v. Galloway, 174 Or. 339, 148 P.2d 922.
"It is everywhere agreed that neither the Fourteenth Amendment to the Federal Constitution nor the the equality and uniformity requirements of the state constitutions prohibit the making of classifications in state legislation relating to taxation. The power of a state to make reasonable and natural classifications for purposes of taxation, it has been said, is clear and not questioned. * * *" 51 Am. Jur., Taxation, § 173.
See 1 Cooley, Taxation, 4th ed., § 332.
The circumstance which justifies the granting of tax exemption to a domestic corporation, while withholding it from one organized under the laws of a sister state is not the fact that one corporation is domestic and the other foreign. The basis for the distinction is found in the fact that the domestic charitable corporation performs a function in the state of its incorporation which is of direct interest to that state and its people. It is relieving the state and its people of burdens which might otherwise be imposed upon them. Such corporations are peculiarly subject to legislative and judicial regulation and guidance. Courts of equity of the domestic state have inherent jurisdiction over charitable trusts. In re John's Will, 30 Or. 494, 47 P. 341, 50 P. 226, 36 L.R.A. 242; 10 Am. Jur., Charities, § 111. On the other hand, courts of one state will not see to the administration of funds bequeathed to a charity of another state. 10 Am. Jur., Charities, § 114. It requires no citation of authorities to support the statement that this state bears a heavy burden of responsibility for the care of the blind, the old and the needy, and has a vital interest in the proper administration *Page 597
of public charities and of charitable corporations operating in the state.
"* * * Exemptions to charitable and educational institutions are bottomed on the fact that they render service to the state, and thus relieve the state and its people of a burden which they otherwise would have to assume. * * *" City of Cincinnati v. Commonwealth, 292 Ky. 597, 167 S.W.2d 709.
It should first be observed that the plaintiff is in a difficult if not embarrassing situation which requires us to affirm the decree of the circuit court which holds that the plaintiff's property is subject to taxation. This we must do, whether the exemption statute be held valid or invalid under the equal protection clause. If the exemption statute should be held unconstitutional, the result would be that both foreign and domestic charitible corporations would be subject to taxation. Obviously a court could not remedy the invalidity by judicially conferring a tax exemption on a class which the legislature refused to exempt. On the other hand, if the exemption statute does not violate the equal protection clause or the provisions of the Oregon Constitution, then the property of the plaintiff, a foreign corporation, would be subject to taxation. A much cited decision is In re Speed's Estate, 216 Ill. 23, 74 N.E. 809. The Illinois statute imposed a tax on property situated within the state, passing by will or intestacy, subject to an amendment which provided that gifts to religious or charitable organizations should not be subject to the tax. There was no express provision limiting the exemption to domestic corporations such as appears in the Oregon statute but the Illinois Supreme Court construed the act as not applying to corporations created under the laws of a sister state. In the *Page 598
Speed case, Illinois land was devised to a charitable corporation of Kentucky. The donee conducted no charitable activities in Illinois. It was held that the devise was subject to inheritance tax. The reason given is significant. We quote:
"* * * It is a universally accepted rule of construction that an act of the General Assembly of a state granting powers, privileges, or immunities to corporations must be held to apply only to corporations created under the authority of that state over which such state has the power of visitation and control, unless the intent that the act shall apply to other than domestic corporations is plainly expressed in the terms of the act. * * *"
Again the court said:
"A clear distinction exists between domestic corporations and corporations organized under the laws of other states. Such corporations fall naturally into their respective classes. Over the one — that which the state has created — the state has certain powers of control; and the other is beyond its jurisdiction. Those of its own creation have been endowed with corporate powers for the purpose of subserving the interests of the state and its people; those which have been given life by the laws of a sister state have entirely different ends and objects to accomplish. The lawmaking power would find many weighty considerations authorizing the classification of foreign and domestic corporations into different classes and justifying the creation of liability on the part of foreign corporations to pay a tax on the right to take property by descent, devise, or bequest under the laws of the state, and at the same time leaving the right of a domestic corporation so to take free of any such exaction."
The case was appealed to the United States Supreme *Page 599
Court and was there affirmed. We quote from the opinion of that court:
"* * * The construction of the act by the supreme court we must accept as determining the meaning of the act. In other words, we must regard the act as if the legislature had, in explicit language, excluded from its provisions foreign corporations. If this renders the act void, plaintiff in error, whether its argument be tenable or untenable, seems to be put in the dilemma urged by the defendant in error, and an affirmance of the judgment is required. If the act of May 10, 1901, is invalid, it cannot give exemption from taxation to either domestic or foreign corporations, and plaintiff in error was rightly taxed under the act of June 15, 1895. Plaintiff in error, of course, does not desire to take exemption from domestic corporations. It desires to remove the discriminatory effect of the amendment of May 10, 1901, by including in its bounty foreign corporations. Can this be done? May a court by construction put into a law that which the legislature has left out? There is a difference between burdens and benefits, and it may well be that a law which confers the latter upon some persons, and thereby increases burdens on others, may be declared invalid by the courts. But if the courts may strike down privileges, may they extend favors and make objects of bounty those whom the legislature has excluded? The questions raise important considerations, but we may pass them, because the contention that the act of 1901 is invalid encounters an insuperable obstacle in the power of the state to classify objects of legislation and discrimination between classes. This power is not unconstitutionally exercised by legislation which exempts the religious and educational institutions of the state from an inheritance tax and subjects educational and religious institutions of other states to the tax. Regarding alone the purposes of the institutions, no difference may be perceived between them, but regarding the spheres of their exercise, *Page 600
and the benefits derived from their exercise, a difference is conspicuous. It is this benefit that may have constituted the inducement of the legislation.
"* * *
"* * * A Federal court would hesitate indeed to put impediments on this power or declare invalid any classification of persons or corporations that had reasonable regard to the purposes of the state and its legislation. And it cannot be said that if a state exempt property bequeathed for charitable or educational purposes from taxation it is unreasonable or arbitrary to require the charity to be exercised or the education to be bestowed within her borders and for her people, whether exercised through persons or corporations." Board of Education v. Illinois, 203 U.S. 553, 51 L.ed. 314.
In People v. Woman's Home Missionary Soc. of M.E. Church, supra, it was held that a bequest made by an Illinois testator to a charitable corporation of Ohio was subject to inheritance tax. The Ohio corporation maintained and operated charitable institutions within Illinois. An attempt was made by counsel for the charity to distinguish the case from In re Speed's Estate, supra. Answering such contention the court said:
"It is contended by appellant that the fact that it has an office in this state, and owns, maintains, and conducts orphanages and deaconess' homes for charitable purposes within this state, distinguishes this case from the Speed Case, supra. It was expressly stated in People v. Western Seaman's Friend Society, supra, that such facts would make no difference in the decision of such a case. Appellant being organized under another state, its organization and its business are controlled by the laws of that state. It placed itself within the jurisdiction of the state within which it was organized, and it is therefore not a person that has placed itself *Page 601
within the jurisdiction of this state. A corporation is not a citizen, within the meaning of section 2 of article 4 and of section 1 of the Fourteenth Amendment of the federal Constitution. The taxing, therefore, of the right of succession to property willed to appellant in this case, is not abridging the privileges or immunities of a citizen of the United States, and, as it has not placed itself within the jurisdiction of this state, such taxation is not denying to any person within the jurisdiction of this state the equal protection of the law.
"* * *
"* * * It is clear that a state is not bound to give its exemption privileges on taxation to foreign corporations, and foreign corporations can claim no such exemption, unless the statute plainly and expressly grants it." People v. Woman's Home Missionary Soc. of M.E. Church, 303 Ill. 418, 135 N.E. 749.
In City of Cincinnati v. Commonwealth ex rel. Reeves, 292 Ky. 597, 167 S.W.2d 709, the court said:
"* * * Presumably, a corporation not organized for pecuniary profit is designed by its incorporators for the attainment or conference upon others of spiritual or cultural benefits, or benefits of a philanthropic nature. But foreign corporations of the all-inclusive category mentioned, are universally held not to be entitled to exemptions from taxation granted by states to similar corporations dispensing their benefits within the state. * * *"
In Hunter College S.S.C. R.C. Ass'n. v. City of New York, 63 N.Y.S.2d 337, syl. 9, it was held that:
"Only corporations organized and existing under New York Law are entitled to tax exemption in New York, and foreign corporation may not claim such exemption, though its powers and their exercise would entitle it to exemption in jurisdiction of *Page 602
its incorporation and in New York were it incorporated in that state."
The case of In re McIntire's Estate, 178 Wash. 81,34 P.2d 432, has an interesting bearing upon the case at bar. A testator of the state of Washington devised and bequeathed her property to a charitable corporation organized under the laws of Connecticut, but it was provided in the will that the income from the property should be used for the support of needy, aged, and dependent ministers of the Congregational church in the state of Washington. Notwithstanding the provision that the charitable bequest should be administered in the state of Washington, it was held that the gift was subject to an inheritance tax in Washington. Many cases were cited in support. The court said:
"While the will provides that the income from the bequest shall be limited for use within this state, the bequest itself must go out of this state into the state of Connecticut to be used in that state by the foreign corporation to produce the income provided by the will. The statute limits the bequest to use within the state of Washington; hence the bequest is not exempt from an inheritance tax.
"`A majority of the states that have adjudicated the question adhere to the view that tax exemptions to charitable or educational institutions are confined to domestic corporations. Blackmore on Inheritance Tax, § 257; Gleason and Otis, Inheritance Taxation (2d Ed.) 233.'"
The court quoted from Ross on Inheritance Taxation, § 146, as follows:
"It has been contended that the exemption of charitable institutions from inheritance taxation applies to all such institutions, regardless of their location within or without the state granting the exemption, for, it is argued, the exemption is in *Page 603
recognition of the beneficent purpose of these institutions, and inasmuch as the purpose is common to them all, wherever located, the exemption should be universal. But the courts have not yielded to this argument. They have held, with unanimity, it is believed, that in the absence of any language plainly indicative of a different intent, the Legislature must be deemed to have made the exception for the benefit of its own institutions only, and that foreign corporations, or institutions without the state, must pay the inheritance tax, although exempt in the state of their domicile, and although some of their charitable work and enterprise are carried on within the state enforcing payment of the tax."
(Italics ours.)
The decision of the Supreme Court of Washington in In reThomas' Estate, 185 Wash. 113, 53 P.2d 305, appears to be directly in point. A resident of Washington bequeathed a portion of her estate to the Salvation Army, a California corporation, but for local uses in Washington. The bequest was held subject to inheritance taxation. The court said:
"`* * * The exemption provisions (Rem. Rev. Stat. §§ 11218, 11218-1) of the statute do not exempt bequests to charitable institutions or religious organizations located outside this state from an inheritance tax. The overwhelming weight of authority is, as stated in Alfred University v. Hancock, 69 N.J. Eq. 470, 46 A. 178, 179,
"`"* * * that, where the legislature grants exemption from such a tax to corporations or organizations, it includes in the exemption only domestic corporations and organizations." * * *
"`While the will provides that the income from the bequest shall be limited for use within this state, the bequest itself must go out of this state into the state of Connecticut to be used in that state by the foreign corporation to produce the income provided by the will. The statute limits the bequest to use *Page 604 within the state of Washington; hence the bequest is not exempt from an inheritance tax.'
"The respondent argues that the McIntire Case is distinguishable from the present case by reason of the fact that, under the terms of the will there involved, the corpus of the trust did not remain in the state of Washington by reason of its being under the dominion of the Connecticut corporation, whereas here the bequest is to be used by, and presumably remain in the control of, the local branch of the California corporation. But this would follow only if the California corporation chose to leave the property here. The decree of distribution sets over to the respondent dominion over the property covered by the bequest, `as is provided in said paragraph ten of the deceased's will.' Assuming that the final proviso refers to the use of the property in this state, the use would be dependent upon the will of the corporation. We must resolve the question of law involved upon principle — by considering what it would be in the power of the corporation to do rather than what it may be disposed to do. While we may assume that the California corporation would faithfully execute the provisions of the will in the use of the property, yet the state would have no visitorial power enabling it to enforce compliance. True, the corporation is registered in the state and permitted to do business therein, but it is not compelled to remain in the state. The testimony taken at the proceeding shows that the local branch officers of the Salvation Army have but limited discretion as agents of the corporation. The essential control is in the officers at the Salvation Army headquarters in California.
"* * *
"The respondent contends that if Rem. Rev. Stat. § 11218, is to be construed as denying to the respondent, a foreign corporation, registered and authorized to do business in this state, an exemption allowed to domestic corporations, the section is in violation of the equal protection clause of the *Page 605
Fourteenth Amendment to the Federal Constitution, as well as article 1, section 12 of the State Constitution. We can see no merit in this contention. The exemption is granted as a matter of grace upon consideration of the public benefits to accrue from the use to which the gift is devoted. To insure its proper application, the state may prescribe the character of agency that shall have the management of the gift, as a condition for its exemption. The authorities cited in the McIntire Case sufficiently answer respondent's contention under this head."
A more detailed consideration of the organization of the Methodist Church and of the control exercised by its various corporate bodies over the affairs of the plaintiff corporation leads to the conclusion that there is a reasonable basis for the classification made by the statute between domestic and foreign charitable corporations and that the plaintiff corporation will not be denied the equal protection of the laws if its personal property is subjected to ad valorem taxation. There has been received in evidence the "Discipline of The Methodist Church" which contains the constitution and laws of the church, covering its various bodies and subsidiaries. From the "Discipline" and undisputed testimony we find that the plaintiff corporation maintains two bank accounts; the one represents an operating fund, but the other, into which all surplus is placed, is in the exclusive control of the national office which can make withdrawals or deposits at will. The General Conference is the lawmaking body of the church, having power to "initiate and to direct all connectional enterprises of the church, such as publishing * * *". Any surplus from the operation of the Portland store goes to the home corporation and then is turned over to the Board of Pensions. Such *Page 606
surplus is not "subject to the desires of the Ohio corporation", the plaintiff here, but is subject to the control of the General Conference. The Board of Pensions is "another corporation of the Methodist Church". Subject to the control of the General Conference, the Board of Pensions makes an appropriation of funds to the various annual conferences for the benefit of conference claimants. The Discipline provides that retired ministers, the widows of ministers, during their widowhood, and dependent children of deceased ministers are conference claimants. The plaintiff is one of four corporations which together constitute the Methodist Publishing House which is under the control and direction of a Board of Publication, the latter being made up of representatives of the various jurisdictional conferences of which there are six in the United States. The manager of the Portland store is solely responsible to the "Publishing Agents" who are in turn selected by the members of the Board of Publication. The members of the Board of Publication are also the members of the plaintiff corporation. The members of the Board of Pensions constitute also the members of three corporations, one of which is "The Board of Pensions of the Methodist Church, Incorporated in Illinois". The latter corporation is responsible for the administration of funds for the support of conference claimants in four jurisdictions, one of which is the "Western Jurisdiction" which includes the ten western states, Alaska and the Hawaiian Islands. In all matters not specifically covered by General Conference legislation, The Board of Pensions has authority to adopt rules and policies for the administration of the support of conference claimants. The Board of Publication members determine the amount of money which shall be distributed *Page 607
through the respective Annual Conferences of the church to conference claimants. Concerning the four corporations which comprise the Methodist Publishing House, the Discipline provides:
"The net produce of the several corporations, after setting up proper reserves for the efficient operation of the business and necessary expansion, shall be paid into a single fund and distributed annually by the Board of Publication to the several Annual Conferences for the persons who are and shall be conference claimants."
The proceeds from the plaintiff corporation constitute but a small portion of the funds which are appropriated for the payment of conference claimants.
From the evidence it clearly appears that there is no authority vested in any person or corporation located in Oregon to determine the disposition of the net proceeds from the plaintiff corporation. The manager of the plaintiff corporation testified that the sums over and above the operating fund immediately become available for the home office "to do with as it pleases". The Ohio corporation which operates the Portland store is without authority to determine the disposition of its surplus funds. It is undoubtedly true that some of the surplus funds of the plaintiff corporation, together with other larger funds, ultimately go to the Annual Conference and through it to conference claimants in Oregon, but so far as any contract or rule of law is concerned, it is apparent that all of the funds derived from the plaintiff corporation could be devoted to charity wholly outside of the state of Oregon.
The facts concerning the disposition and control of the funds of the plaintiff corporation present a *Page 608
reasonable basis for the classification which has been made by statute. We find no violation of the equal protection clause of the federal constitution. The above considerations also dispose of the plaintiff's contention that the statute is in violation of the cited provisions of the Oregon constitution requiring uniformity.
"* * * As above indicated, the Constitution as amended places no restraint upon the power of the legislature in the matter of taxation which was not already enforced upon it by the 14th Amendment to the federal Constitution, with this qualification, if it be a qualification, that among the members or objects included in a class selected by the legislature, inherent uniformity as well as territorial uniformity is required." Standard Lbr. Co. v. Pierce et al., 112 Or. 314, 228 P. 812; and see Corporation of Sisters of Mercy v. Lane County et al., 123 Or. 144, 261 P. 694.
The plaintiff contends that:
"By administrative construction, the exemption of Section 110-201, O.C.L.A., has been applied to Plaintiff for more than twenty-five years, and therefore Defendants are estopped from now changing such construction of the statute."
In support of the contention that the failure of the taxing authorities to impose a property tax upon the plaintiff's property in the past constitutes an estoppel, the plaintiff citesPortland v. Welch et al., 126 Or. 293, 269 P. 868. That case goes no further than to say that the contemporaneous construction placed upon the act by the state officers is very persuasive as to the meaning of the statute. The question was one of statutory construction and the decision was not based upon estoppel. The following authorities indicate that the state is not estopped from levying a tax upon property *Page 609
by the fact that it had omitted to assess such property in previous years: Hibernian Benevolent Society v. Kelly, 28 Or. 173, 42 P. 3, 30 L.R.A. 167; State v. Swensk et al., 161 Or. 281, 89 P.2d 587; Oregon v. Portland Gen. Elec. Co., 52 Or. 502, 95 P. 722, 98 P. 160; 1 Cooley, Taxation, 4th ed. § 61, p. 159. The claim of estoppel by reason of failure to tax in previous years is also met by the provisions of O.C.L.A., § 110-201 as amended by chapter 296, Oregon Laws 1945, which imposed new duties upon assessors to list and evaluate all real property exempt from taxation and which required certain corporations claiming exemptions to file verified lists of property claimed to be exempt and the purpose for which used.
The defendants invite us to render a declaratory judgment to the effect that the plaintiff is not a charitable corporation. In view of our conclusion that the statutory exemptions do not extend to foreign corporations, we find it unnecessary and improper to make any declaration as to whether or not the plaintiff would be entitled to exemption as a charitable corporation if it were incorporated under the laws of Oregon. Since the plaintiff is not so incorporated, we hold that there is no justiciable controversy as to the taxability of such corporations.
"In action for declaratory relief the court must first consider whether a justiciable controversy exists and, if so, whether a declaration of rights should, as a matter of discretion, be made." Rahoutis v. Unemployment Commission, 171 Or. 93, 136 P.2d 426, syl. 2.
"* * * The courts have many times held that a declaration will not be pronounced in suits where the rights of the plaintiff are contingent upon the happening of some event which can not be predicted *Page 610
and which may never occur. * * *" Drake et al. v. City of Portland et al., 172 Or. 558, 143 P.2d 213. And see 62 Harv. L. Rev. 794, (March, 1949.)
For all we know, the Book Concern may never seek incorporation in this state, and if it does, it will no longer be the corporation which is the plaintiff here. It will be time enough to determine the difficult and complicated questions concerning the tax status of domestic corporations which are engaged in enterprises in competition with private business, but whose profits are solely devoted to charitable purposes, when the issue is squarely presented by such a corporation.
Insofar as the decree of the circuit court holds that the plaintiff is not entitled to tax exemption under the provisions of O.C.L.A., § 110-201 as amended, it is affirmed. Insofar as the decree of the circuit court holds that the plaintiff "is a charitable corporation and the operation of its book store in Portland, Oregon, and the application of the income therefrom constitutes a charitable activity", it is reversed solely by reason of the fact that no justiciable controversy exists as to that issue. *Page 611
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FILED
APRIL 7, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36537-9-III
Respondent, )
)
v. )
)
DUSTIN J. HARBOUR, ) UNPUBLISHED OPINION
also known as DUSTIN R. HARBOUR, )
)
Appellant. )
KORSMO, J. — Dustin Harbour appeals his convictions for attempted rape of a
child in the second degree and communicating with a minor for immoral purposes
following an internet sting operation. We reject his challenge to the sufficiency of the
evidence supporting the attempted child rape conviction.
FACTS
Mr. Harbour became enmeshed with the Washington State Patrol’s Internet
Crimes Against Children Task Force, a group involving multiple state and federal
agencies. Detective Jeff Bickford of the Richland Police Department created fictitious
No. 36537-9-III
State v. Harbour
social media profiles to catch adults who intended to engage in sex with minors. He
created a profile on the anonymous social media chatroom “Whisper” where he portrayed
a 13-year-old girl named Kaylee. He posted a public advertisement on Whisper stating
“wish I was older. Everyone my age judges me.”
Mr. Harbour responded to this advertisement and asked if “Kaylee” was interested
in sex. The two conversed by social media and text. “Kaylee” stated she was “almost
14” years old. Mr. Harbour discussed sexual preferences and asked “Kaylee” intimate
questions. Mr. Harbour sent a picture of his genitalia and stated his interest to engage in
oral sex. The two eventually agreed to have oral sex and perform other sexual activities.
“Kaylee” directed Mr. Harbour to meet her at a house the task force set up for the sting
operation and requested Mr. Harbour bring condoms. A trooper portraying “Kaylee”
greeted Mr. Harbour at the house and Mr. Harbour claimed he brought condoms. Law
enforcement then arrested Mr. Harbour, although a search revealed no condoms on his
person.
The case proceeded to jury trial in the Spokane County Superior Court. At trial,
Mr. Harbour testified he believed “Kaylee” was not real and he went to the house only to
identify the roleplaying individual. He claimed the picture of his genitalia was
accidental. The State presented evidence that Mr. Harbour told law enforcement after his
arrest that he knew “Kaylee” was under 14 years old and that he should not talk to her.
2
No. 36537-9-III
State v. Harbour
He claimed he only went to the house to warn “Kaylee” about the dangers of online
predators.
The jury convicted Mr. Harbour of both charged offenses. The court imposed a
low end standard range sentence. Mr. Harbour appealed to this court. The panel
considered this appeal without oral argument.
ANALYSIS
This appeal raises a single, two-prong claim. Mr. Harbour contends the State
presented insufficient evidence that he intended to commit child rape or that he took a
substantial step towards committing rape.
Established standards govern insufficient evidence claims. We review to see if
there was evidence from which the trier of fact could find each element of the offense
proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628
(1980). The reviewing court will consider the evidence in a light most favorable to the
prosecution. Jackson, 443 U.S. at 319; Green, 94 Wn.2d at 221-222. Reviewing courts
also must defer to the trier of fact “on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821,
874-875, 83 P.3d 970 (2004).
3
No. 36537-9-III
State v. Harbour
Attempted rape of a child under RCW 9A.44.076(1) requires proof that the
defendant intended to engage in sexual intercourse with a child under 14 years old. State
v. Wilson, 158 Wn. App. 305, 317, 242 P.3d 19 (2010). Intent to engage in sexual
activity does not necessarily establish intent to engage in sexual intercourse. State v.
A.M., 163 Wn. App. 414, 423, 260 P.3d 229 (2011). A defendant’s own statements or
expressions that he intends to engage in sexual intercourse is sufficient to establish intent.
State v. Sivins, 138 Wn. App. 52, 64, 155 P.3d 982 (2007).
The defendant must also take a substantial step with the requisite intent towards\
committing rape. Wilson, 158 Wn. App. at 317. A substantial step requires an overt act
performed in furtherance of a crime that corroborates the defendant’s intent.1 Id. at 316-
317. Mere preparation to commit a crime is not a substantial step. State v. Townsend,
147 Wn.2d 666, 679, 57 P.3d 255 (2002). Likewise, verbal responses to a solicitation to
commit a crime may not constitute a substantial step. State v. Grundy, 76 Wn. App. 335,
337, 886 P.2d 208 (1994). However, this negotiating stage ends when the defendant
takes an overt act toward committing the crime. Id. at 337-338. Travelling to have sex at
an agreed location constitutes a substantial step. Wilson, 158 Wn. App. at 317; Sivins,
138 Wn. App. at 64.
1
Factual impossibility is irrelevant. RCW 9A.28.020(2).
4
No. 36537-9-III
State v. Harbour
The evidence at trial included Mr. Harbour’s numerous messages to “Kaylee”
about sex and included agreements to engage in oral sex and possibly in other acts. Mr.
Harbour drove to the location given by “Kaylee” and claimed that he had condoms,
further corroborating his stated intent. This evidence allowed a reasonable factfinder to
determine Mr. Harbour intended to have sexual intercourse with “Kaylee.” Because we
review evidence in the light most favorable to the State, any alternative theories Mr.
Harbour presented are not relevant to this claim. The evidence permitted the factfinder to
conclude that Mr. Harbour intended to have sexual intercourse with “Kaylee.”
Mr. Harbour also claims that he did not take a substantial step toward having sex
with “Kaylee” because he was investigating whether she was real and thus still
negotiating before agreeing to have sex. The evidence shows that, after the two reached
an agreement in their text message conversation to have sex, Mr. Harbour followed all
instructions from “Kaylee” to travel to the sting house. He affirmed his identity and
presence of condoms as agreed. The possibility that he lied about the condoms or might
have had alternative plans after arriving is irrelevant. A rational fact finder could
conclude he took overt acts that corroborated his expressed verbal intent to have sex with
“Kaylee.”
The jury heard evidence sufficient to sustain the conviction for attempted rape of a
child in the second degree. Mr. Harbour’s defense theories did not convince the
factfinder and are not relevant to our inquiry.
5
No. 36537-9-III
State v. Harbour
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
________________________________
Korsmo, J.
WE CONCUR:
_________________________________
Pennell, C.J.
_________________________________
Siddoway, J.
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FILED
APRIL 7, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SPOKANE SLAVIC BAPTIST ) No. 36565-4-III
CHURCH, )
)
Respondent, )
)
v. )
)
JOE TRENCHUK, individually and on )
behalf of his marital community dba )
GREEN GLOBAL ENTERPRISES, LLC, ) UNPUBLISHED OPINION
JOE TRENCHUK TRUST, )
)
Appellant, )
)
IVAN KRIGER, individually and on )
behalf of his marital community dba )
GREEN GLOBAL and GREEN GLOBAL )
ENTERPRISES, LLC, and GREEN )
GLOBAL ENTERPRISES, LLC, an )
inactive Washington limited liability )
company, )
)
Defendant. )
LAWRENCE-BERREY, J. — Joe Trenchuk appeals the trial court’s order granting
summary judgment in favor of Spokane Slavic Baptist Church. He argues there are
several genuine issues of material fact that preclude summary judgment. We disagree and
affirm.
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
FACTS
Joe Trenchuk and Ivan Kriger are co-owners of Green Global Enterprises, LLC
(Green Global). On February 14, 2014, Green Global agreed to acquire the old Fred
Meyer building, and Spokane Slavic Baptist Church (the Church) agreed to purchase it
from Green Global for $2,500,000. The parties agreed that the Church would pay Green
Global the purchase price over a period of 25 years at 5 percent interest per year.
From March 20 through May 6, Kriger sent a series of e-mails to the Church. The
e-mails generally requested the Church to quickly pay $250,000 to Kennedy Funding.
One e-mail referred to the $250,000 as “loan fees.” Clerk’s Papers (CP) at 239. The e-
mails explained that the $250,000 was to facilitate a $21 million loan Kennedy Funding
agreed to make to Green Global, which, in part, would allow Green Global to obtain the
old Fred Meyer building. The Church refused to pay $250,000 to facilitate Green
Global’s loan with Kennedy Funding.
The parties reached an agreement on May 15, 2014, memorialized by the following
deposit agreement:
Agreement Letter with Joe Trenchuk Trust
Spokane Slavic Baptist Church is depositing $250,000.00 (Two Hundred
Fifty Thousand) to Joe Trenchuk Trust account for the purpose of obtaining
the loan for the closing [of] the old building of Fred Meyer located at 555
E. Francis Ave. Spokane, Wa.
2
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
If the old building of Fred Meyer is not purchased by Spokane Slavic
Baptist Church by June 15, 2014, the $250,000 is refundable.
CP at 20. Mr. Trenchuk signed the deposit agreement on behalf of his trust, Mr. Kriger
signed on behalf of Green Global, and two Church representatives signed on behalf of the
Church.
In late May 2014, Mr. Trenchuk wired the $250,000 to Kennedy Funding at the
request of Mr. Kriger. The Church did not know of this. As of June 15, 2014, Green
Global had not obtained financing from Kennedy Funding nor was it in a position to
obtain the old Fred Meyer building, much less to sell it to the Church.
In July 2014, Green Global terminated its arrangement with Kennedy Funding.
Green Global released Kennedy Funding from all claims to the $250,000 in exchange for
receiving a partial refund of $30,900.
In December 2015, the Church and Green Global sent a joint letter to Kennedy
Funding requesting a refund of the $250,000 deposit. Kennedy Funding refused the
request. In May 2016 and May 2017, the Church sent written notices to Green Global and
Mr. Trenchuk requesting a refund of the $250,000 deposit. Green Global and Mr.
Trenchuk refused both requests.
In October 2017, the Church brought suit to collect the $250,000 deposit, plus
statutory interest. During discovery, the Church sent requests for admission and
3
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
interrogatories to Mr. Trenchuk. In one interrogatory answer, Mr. Trenchuk stated, “I
was informed by Ivan Kriger that the church had directed him to send the money to
Kennedy Funding so they could obtain the loan for the Fred Meyers [sic] building.” CP
at 375.
The Church eventually moved for summary judgment. Mr. Trenchuk responded to
the motion and argued there were material facts in dispute. By declaration, Mr. Trenchuk
contradicted his earlier interrogatory answer and claimed a Church representative had
directed him to send the $250,000 deposit to Kennedy Funding.
The trial court disregarded Mr. Trenchuk’s inconsistent claim in his declaration,
granted the Church’s motion for summary judgment, and awarded it $250,000 plus
statutory interest. Mr. Trenchuk appealed.
ANALYSIS
SUMMARY JUDGMENT STANDARDS
When reviewing an order of summary judgment, this court reviews the order de
novo. Keck v. Collins, 181 Wn. App. 67, 78, 325 P.3d 306 (2014), aff’d, 184 Wn.2d 358,
357 P.3d 1080 (2015). This court performs the same inquiry into the motion for summary
judgment as the trial court initially did. Id. The evidence and any reasonable inferences
are construed in a light most favorable to the nonmoving party. Id. at 78-79. Summary
4
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
judgment is only appropriate when no material facts are at issue, and the moving party is
entitled to judgment as a matter of law. Id.
PURPORTED ISSUES OF MATERIAL FACT
Mr. Trenchuk argues the trial court erred by granting summary judgment because
there were genuine issues of material fact. He argues (1) the deposit agreement was
modified, (2) he complied with the modified deposit agreement and even the original
deposit agreement, (3) the Church received a refund, and (4) the Church was partly at
fault for its damages. In addition, Mr. Trenchuk argues the deposit agreement was
unconscionable. We address the unconscionability claim first.
1. Unconscionability claim
A contract is unconscionable if it is either substantively unconscionable or
procedurally unconscionable. Nelson v. McGoldrick, 127 Wn.2d 124, 131, 896 P.2d 1258
(1995). Substantive unconscionability is found only where a contract is so one-sided that
it can be called “shocking to the conscience,” “monstrously harsh,” or “exceedingly
calloused.” Id. Procedural unconscionability is found where the manner in which the
contract was entered hid the terms of the contract or removed a party’s ability to
reasonably understand the terms. Id.
5
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
Mr. Trenchuk argues the deposit agreement allowed the Church to trick him into
being a guarantor before it directed the money to Kennedy Funding. He argues the
Church knew the money would be wired to Kennedy Funding and would be
nonrefundable. This argument is not supported by any admissible evidence.
Mr. Kriger repeatedly asked the Church to send $250,000 to Kennedy Funding as a
nonrefundable loan fee. The Church refused to do this. The parties then entered into the
deposit agreement. The deposit agreement was very simple. It required Mr. Trenchuk to
deposit the money in his trust, to use the money only to purchase the old Fred Meyer
building, and to refund the money on request if the sale did not close by June 15, 2014.
Instead of using the money to purchase the old Fred Meyer building, Mr. Trenchuk wired
the money to Kennedy Funding. Whether he believed the money would be used to
purchase the former Fred Meyer building is immaterial. It was not used in this manner.
There is nothing unconscionable about an agreement requiring a person to hold money
and disburse it only for a specific purpose.
2. Performance claims
Mr. Trenchuk makes three separate arguments that he performed the deposit
agreement. We address each in order.
6
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
a. Purported performance of modified deposit agreement
Mr. Trenchuk argues the Church, either itself or through Mr. Kriger, modified the
deposit agreement to have him send the deposit to Kennedy Funding. This argument is
not supported by any admissible evidence.
Referring to his declaration, Mr. Trenchuk argues a Church representative told him
to transfer the funds to Kennedy Funding. This argument is barred under the Marshall1
rule.
The Marshall rule disallows a party from creating an issue of material fact by
submitting a self-serving declaration directly contradicting “unambiguous sworn
testimony” the same party made previously. Sluman v. State, 3 Wn. App. 2d 656, 697,
418 P.3d 125, review denied, 190 Wn.2d 1005, 430 P.3d 254 (2018). This rule is
narrowly construed, and, if the party gives an explanation in their affidavit explaining the
discrepancy, the court may consider the explanation’s plausibility. Id. at 697-98.
Mr. Trenchuk originally answered he was told by Mr. Kriger that the Church had
directed him to send the money to Kennedy Funding so it could obtain the loan for the old
Fred Meyer building. After the Church moved for summary judgment, Mr. Trenchuk
claimed, in his declaration, that a Church representative directed him to send the money
1
Marshall v. AC&S Inc., 56 Wn. App. 181, 782 P.2d 1107 (1989).
7
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
to Kennedy Funding. Mr. Trenchuk never explained the reason for his changed
recollection of this very important fact. Under the Marshall rule, the trial court properly
gave no consideration to the later inconsistent statement.
b. Purported performance of deposit agreement
Mr. Trenchuk makes an alternative argument. He argues Kriger told him to send
the deposit to Kennedy Funding, and the Church is bound by Kriger’s direction because
Kriger was the Church’s agent. Mr. Trenchuk relies on an agreement letter the Church
entered into on November 21, 2013, with Green Global.
In the 2013 letter, the Church authorized “Ivan Kriger, president of Green Global
Enterprises to be our sole negotiator on the property known as Fred Meyer—Located at
525-555 E. Francis Ave. Spokane, WA 99208.” CP at 219. The letter further stated,
“Ivan Kriger has the right of presenting all down payments and purchase price for
Spokane Slavic Baptist Church. Also he can enter into a contract with said seller for
purchase price and financing, should financing be available with said seller.” CP at 219.
In the letter, the Church agreed to “pay commissions to Green Global Enterprises Fifty
Four Thousand dollars ($54,000.00) for [Mr. Kriger’s] work.” CP at 219.
The May 15, 2014 deposit agreement was signed by all participants to the 2013
agreement. The 2014 deposit agreement superseded whatever authority the 2013
8
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
agreement granted over the purchase and financing of the old Fred Meyer building. More
explicitly, the deposit agreement required Mr. Trenchuk to disburse the Church’s
$250,000 deposit for one purpose only, for the Church’s purchase of the old Fred Meyer
building. Instead, Mr. Trenchuk sent the deposit money to Kennedy Funding, and it was
not used for the Church’s purchase of the old Fred Meyer building.
The deposit agreement also required Mr. Trenchuk to refund the $250,000 upon
the Church’s request if the purchase did not occur by June 15, 2014. The Church never
purchased the building. The Church twice requested Mr. Trenchuk to refund the
$250,000, and he twice refused. Even viewing the facts in the light most favorable to Mr.
Trenchuk, he did not perform the deposit agreement.
c. Purported performance: The Church purchased the old Fred
Meyer building by June 15, 2014
Mr. Trenchuk makes a second alternative argument. He argues he performed the
deposit agreement because the Church “purchased” the old Fred Meyer building by
June 15, 2014. This argument requires us to determine the meaning of “purchase” as
used in the parties’ deposit agreement.
We quote the focal sentence of the agreement: “If the old building of Fred Meyer
is not purchased by Spokane Slavic Baptist Church by June 15, 2014, the $250,000 is
refundable.” CP at 20 (emphasis added).
9
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
This court interprets undefined terms in contracts according to the plain meaning
of the words used. Syrovy v. Alpine Res., Inc., 68 Wn. App. 35, 40, 841 P.2d 1279
(1992), aff’d, 122 Wn.2d 544, 859 P.2d 51 (1993). Unless a term is open to multiple
reasonable interpretations, the issue of interpretation is a matter of law. Ladum v. Util.
Cartage, Inc., 68 Wn.2d 109, 116, 411 P.2d 868 (1966).
The word “purchase” has multiple but similar meanings. WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1844 (1993) defines “purchase” as “to get into one’s
possession,” “to acquire (real estate) by any means other than descent or inheritance,” “to
obtain (as merchandise) by paying money or its equivalent,” and “to obtain (something
desired) by an outlay (as of labor, danger, sacrifice).” All of these definitions have a
common meaning—acquiring or obtaining. It is undisputed the Church did not acquire or
obtain the old Fred Meyer building by June 15, 2014, or even after that date. The Church
twice demanded its deposit back, and Mr. Trenchuk twice refused. We conclude Mr.
Trenchuk did not perform the deposit agreement.
3. Receipt of refund
Mr. Trenchuk argues the Church received a refund of $30,900 from Kennedy
Funding. Mr. Trenchuk relies on testimony given by Mr. Kriger during his deposition.
However, Mr. Trenchuk misconstrues Mr. Kriger’s testimony and the facts in evidence.
10
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
During his deposition, Mr. Kriger mentioned an eventual refund from Kennedy
Funding. However, this refund, $30,900, was given from Kennedy Funding to Green
Global. Mr. Kriger’s deposition makes this clear as does a letter from Kennedy Funding
releasing the funds to Green Global. There are no admissible facts to support Mr.
Trenchuk’s argument the Church received these funds.
4. Responsibility for damages
Mr. Trenchuk argues the Church caused its own damages when, in December
2015, it informed Kennedy Funding it did not wish to pursue a loan. This argument also
is contrary to the record.
The record establishes, in July 2014, Green Global terminated its financing
arrangement with Kennedy Funding and, in exchange for releasing Kennedy Funding,
received $30,900. By December 2015, Kennedy Funding was not arranging financing for
Green Global or the Church, and the Church’s $250,000 was gone.
CONCLUSION
There are no genuine issues of material fact. Mr. Trenchuk’s arguments generally
misconstrue the evidence. The trial court did not err by granting summary judgment.
11
No. 36565-4-III
Spokane Slavic Baptist Church v. Trenchuk
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Pennell, C.J.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1926 & 19-1939
LYDIA E. VEGA,
Plaintiff-Appellee/
Cross-Appellant,
v.
CHICAGO PARK DISTRICT,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-451 — Jorge L. Alonso, Judge.
____________________
ARGUED JANUARY 9, 2020 — DECIDED APRIL 7, 2020
____________________
Before WOOD, Chief Judge, and EASTERBROOK and BARRETT,
Circuit Judges.
BARRETT, Circuit Judge. Lydia Vega sued her former
employer, the Chicago Park District, alleging that the Park
District discriminated against her due to her national origin
in violation of Title VII and 42 U.S.C. § 1983. After a seven-
2 Nos. 19-1926 & 19-1939
day jury trial, the jury returned a verdict in Vega’s favor on
both claims and awarded her $750,000 in compensatory
damages. The Park District moved for judgment as a matter
of law on both claims; the district court granted the motion
with respect to the § 1983 claim but denied it with respect to
the Title VII claim. With the § 1983 claim gone, the district
court remitted Vega’s award to $300,000, which is the
statutory maximum under Title VII. It then conducted a bench
trial on equitable remedies and granted Vega back pay,
benefits, and a tax-component award.
On appeal, the Park District challenges the district court’s
denial of its motion for judgment as a matter of law on Vega’s
Title VII claim, several evidentiary rulings, the statutory max-
imum damages award, and the calculation of equitable reme-
dies. Vega cross-appeals the district court’s entry of judgment
as a matter of law on her § 1983 claim. We affirm all of the
district court’s rulings except its grant of the tax-component
award, which we vacate and remand for the district court to
explain its calculation.
I.
Lydia Vega, a Hispanic woman, began her employment
with the Chicago Park District in 1987 and was promoted to
the position of park supervisor in 2004—a position that she
retained until she was fired in 2012 for allegedly violating the
Park District’s employment Code of Conduct. We recount the
story of the Park District’s investigation and termination of
Vega’s employment in the light most favorable to her. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
In late September 2011, the Park District received an anon-
ymous call, accusing Vega of “theft of time”—clocking in
Nos. 19-1926 & 19-1939 3
hours that she had not worked. In response to this accusation,
an investigator for the Park District began surveilling Vega’s
car. A few days later, another anonymous caller again accused
Vega of theft of time. At that point, another investigator began
a separate and simultaneous investigation of Vega. Over the
course of 56 days, Vega was surveilled over 252 times. On nu-
merous occasions, the investigators interrupted Vega at work
in front of her coworkers to ask her questions as a part of the
investigation.
In March 2012, the investigators met with Vega and her
union representative. The investigators had no interest in
hearing Vega’s side of the story; instead, Vega and her union
representative found them to be “pretty dead set” on their
conclusion that Vega had violated the Park District’s Code of
Conduct. By this point, the investigative process was causing
Vega significant anxiety, and in late March, she took medical
leave on the advice of her physician.
Between July and August 2012, Vega received two sepa-
rate Corrective Action Meeting notices accusing her of the
slightly different offense of timesheet falsification—not being
present at her assigned location at the assigned time. After
sending each notice, Mary Saieva, the Park District’s Human
Resources Manager, met with Vega and her union representa-
tive. Saieva, like the investigators, had little use for Vega’s
side of the story. At both meetings, Saieva refused to listen to
Vega’s explanations or review the documents that Vega had
brought with her to dispute the allegations. After the meet-
ings, Saieva called Elizabeth Millan, Vega’s former supervi-
sor, to discuss the discrepancy in Vega’s timesheets. Millan
told Saieva that she might have asked Vega to work from
home on at least one of those occasions, which would explain
4 Nos. 19-1926 & 19-1939
one of the timesheet discrepancies. Saieva, however, disbe-
lieved Millan, who, like Vega, was Hispanic.
Convinced that Vega was guilty, Saieva recommended
that Vega’s employment be terminated. In violation of the
Park District’s commitments under its union agreement,
Saieva neither consulted with Vega’s then-supervisor nor rec-
ommended any progressive discipline. Instead, she told Mi-
chael Simpkins, the Park District’s Director of Human Re-
sources, that Vega should be fired.
Simpkins fired Vega after receiving Saieva’s recommenda-
tion and briefly reviewing the investigative report. According
to the final termination letter, Vega was not fired for theft of
time; rather, she was fired for eleven timesheet falsifications
and for being untruthful during her Corrective Action Meet-
ings. In another violation of its union commitments, the Park
District did not offer Vega’s union a pre-disciplinary agree-
ment. Vega appealed the termination decision to the Park Dis-
trict Personnel Board. At that point, an administrative officer
held a hearing and subsequently concluded that Vega’s em-
ployment was properly terminated. The Personnel Board
adopted that decision.
Vega sued the Park District under Title VII and 42 U.S.C.
§ 1983, alleging discrimination on the basis of national origin.
(We will discuss the evidence that she presented at trial in
greater detail below.) After the evidence was in, the Park Dis-
trict moved under Federal Rule of Civil Procedure 50(a) for
judgment as a matter of law on all of Vega’s claims, but the
district court denied the motion. It sent the case to the jury,
which returned a verdict for Vega on both her Title VII and
§ 1983 claims and awarded her $750,000 in compensatory
Nos. 19-1926 & 19-1939 5
damages. As for Vega’s retaliation claims, however, the jury
found in favor of the Park District.
The Park District renewed its motion for judgment as a
matter of law under Federal Rule of Civil Procedure 50(b) and
moved for a new trial under Federal Rule of Civil Procedure
59. In a separate Rule 59 motion, the Park District also asked
the court to remit the jury’s compensatory award. The district
court granted the Park District’s Rule 50(b) motion on Vega’s
§ 1983 claim but denied it with respect to her Title VII claim.
In light of that disposition, the district court remitted the
jury’s compensatory award to $300,000, which is the statutory
maximum under Title VII.
The district court then conducted a bench trial on equita-
ble remedies. It awarded Vega back pay ($154,707.50 in salary
and $1,200 in lost bonuses) and benefits ($9,255.42 in substi-
tute health insurance premiums). It initially rejected Vega’s
request for a $30,531.27 tax-component award because it
found that Vega had not adequately explained the calculation
justifying that amount. But, after Vega submitted supple-
mental briefing on the issue, the district court awarded Vega
a tax-component award of $55,924.90 without explaining how
it reached that figure. Finally, as an equitable remedy, the dis-
trict court ordered the Park District to reinstate Vega to her
former position as a park supervisor.
The Park District appeals every ruling that it lost except
for Vega’s reinstatement. In her cross-appeal, Vega asks us to
reverse the district court’s judgment as a matter of law on her
§ 1983 claim and to restore the jury’s $750,000 compensatory
damages award.
6 Nos. 19-1926 & 19-1939
A.
The Park District argues that the district court erred by de-
ciding that Vega had presented enough evidence to support
her Title VII claim. We review the district court’s determina-
tion de novo, Empress Casino Joliet Corp. v. Balmoral Racing
Club, Inc., 831 F.3d 815, 822 (7th Cir. 2016), and because Vega
was the nonmoving party on the Rule 50 motion, we draw all
inferences in her favor. Reeves, 530 U.S. at 150.
In a Title VII case, “the sole question that matters” is
“[w]hether a reasonable juror could conclude that [the plain-
tiff] would have kept h[er] job if [s]he had a different ethnic-
ity, and everything else had remained the same.” Ortiz v. Wer-
ner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016). A plaintiff
can prove discrimination through various types of circum-
stantial evidence because “[d]irect evidence—an overt admis-
sion of discriminatory intent—is rare.” Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). So, the fact that Vega relied mainly on
circumstantial rather than direct evidence is of no moment.
What matters is whether she presented enough evidence to
allow the jury to find in her favor—and she did.
For instance, Vega introduced evidence that she was an
effective employee of the Park District for over 20 years and
was promoted multiple times during her employment. The
jump straight to termination was not only in tension with
Vega’s long, favorable record, it violated multiple union com-
mitments. That in itself was important evidence because
“[s]ignificant, unexplained or systematic deviations from es-
tablished policies or practices” can be probative of discrimi-
natory intent. Hanners v. Trent, 674 F.3d 683, 694 (7th Cir.
2012).
Nos. 19-1926 & 19-1939 7
Vega also exposed numerous material errors in the Park
District’s investigation through various forms of testimonial
and documentary evidence. For instance, Vega introduced
evidence that she was not driving her usual vehicle—the one
surveilled by the investigators—on two of the eleven days on
which she supposedly falsified her timesheets. That mattered
because the investigators relied on the movement of Vega’s
usual vehicle to track her whereabouts. To rebut another ac-
cusation, Vega testified that she was present at the park on the
occasion in question but entered the building late because she
had found a dead body at the park earlier that morning. The
jury could have found these and similar pieces of evidence
significant because “flagrant inaccuracies and inconsistencies
in the employer’s supposed reason” for firing the plaintiff can
be evidence of pretext. Harden v. Marion Cty. Sheriff's Dep't,
799 F.3d 857, 866 (7th Cir. 2015). And the jury could treat the
Park District’s lack of interest in Vega’s side of the story as
similarly significant. Vega presented the investigation as a de-
termined effort to build a case against her rather than a neu-
tral effort to discover the truth. The jury was free to side with
Vega by concluding that the charges of timesheet falsification
were a pretextual reason for firing her.
In addition to evidence of pretext, the jury heard testi-
mony that the Park District mistreated other Hispanic em-
ployees. Millan, Vega’s Hispanic former supervisor, testified
that she was assigned to “rough” parks on purpose, while
Ramirez, another Hispanic employee, told the jury that she
retired from her 35-year career at the Park District after a po-
lice officer told her that the Park District investigators were
watching her and her staff. As we have explained, “‘behavior
toward or comments directed at other employees in the pro-
tected group’ is one type of circumstantial evidence that can
8 Nos. 19-1926 & 19-1939
support an inference of discrimination.” Hasan v. Foley & Lard-
ner LLP, 552 F.3d 520, 529 (7th Cir. 2008) (citation omitted).
Vega also had evidence that the Park District disciplined
Hispanics more harshly than other groups. She introduced
data showing that no Caucasian park supervisors were fired
between 2005 and 2012, while 17.6% of the Park District’s His-
panic park supervisors were fired during that same period.
She presented evidence that the Park District’s investigation
into her alleged falsification of timesheets was far more ag-
gressive than its investigations of non-Hispanic employees
accused of similar misconduct. While Vega was surveilled 252
times over the course of 56 days by two different investiga-
tors, a Caucasian park supervisor accused of a similar viola-
tion was surveilled only three times. And while Vega was
fired, the Caucasian park supervisor was not punished even
though the Park District concluded that she had lied on her
timesheets. Similarly, Vega pointed to two other Caucasian
park supervisors, both accused of going to bars during work
hours, who were surveilled only during the mornings, when
bars are typically closed. Vega also presented evidence that
some African-American employees accused of similar time-
sheet violations were never disciplined at all. See Boss, 816
F.3d at 916–17 (holding that the plaintiff can show discrimi-
nation under Title VII by presenting “evidence, whether or
not rigorously statistical, that similarly-situated employees
outside the protected class received systematically better
treatment”); see also Harden, 799 F.3d at 866 (reasoning that
“selective enforcement or investigation” can support a dis-
crimination claim (citation and internal quotation marks
omitted)).
Nos. 19-1926 & 19-1939 9
The Park District maintains that this evidence is irrelevant
because the employees that Vega invoked as comparators
were not similarly situated. For instance, the Park District at-
tempts to distinguish a Caucasian park supervisor who was
accused of, but not disciplined for, a similar timesheet viola-
tion on the ground that she had left the park early in the af-
ternoons during her breaks. But we are hard-pressed to say
that this distinction (or the other minor distinctions to which
the Park District points) would prevent a reasonable jury
from concluding that these employees were similarly situated
to Vega. And while the Park District challenges other of
Vega’s comparators by asserting that they held different po-
sitions and were therefore “not subject to the same standards
as park supervisors,” it offers no explanation of how the
standards differed. Without such an explanation, we can’t as-
sess the strength of this argument.
The Park District insists that there were two employees
who were similarly situated to Vega: two African-American
park supervisors who, like Vega, were fired after an
investigation into their timesheets. The Park District argues
that faced with this evidence, no reasonable jury could have
concluded that it treated comparable non-Hispanic
employees more favorably than they treated Vega. But a
reasonable jury could reject the Park District’s contention that
the two African-American park supervisors were appropriate
comparators. One was fired for theft of time—for which Vega
was investigated but not dismissed—and the other was fired
after the Park District fired Vega. Given these differences, the
jury was free to find that the Park District’s treatment of these
two African-American park supervisors shed little light on its
treatment of Vega.
10 Nos. 19-1926 & 19-1939
The Park District launches one final challenge to Vega’s
Title VII claim: it contends that Vega failed to show a causal
link between the discrimination and her termination. Any dis-
crimination, it says, was on the part of the investigators, who
were not the decisionmakers. The decisions were made by
Simpkins, who fired her, and the Personnel Board, which de-
clined to reverse his decision. Vega introduced no evidence
that Simpkins or any other member of the Board personally
discriminated against her on the basis of her national origin.
To win, therefore, Vega had to show a causal “link between
an employment decision made by an unbiased individual and
the impermissible bias of a non-decisionmaking co-worker.”
Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 379
(7th Cir. 2011). According to the Park District, Vega failed to
do that.
The Park District’s argument on this score is confusing
and underdeveloped. For starters, it is unclear whether we
should treat the Board’s rejection of Vega’s appeal as the rel-
evant “adverse employment action” for purposes of Vega’s
Title VII claim. The Park District implies that the Board was
the final decisionmaker because it had the power to reverse
Simpkins’s decision. But it fails to explain why this is so.
Simpkins plainly possessed decisionmaking authority; had
Vega not appealed his decision to terminate her, his decision
would have been final. This distinguishes Simpkins’s role
from that of the Fire Department Chief in Woods v. City of
Berwyn, the case on which the Park District hangs its hat—in
Woods, the Fire Department chief possessed only the power to
recommend termination to a Board that made the final deci-
sion. 803 F.3d 865, 870–71 (7th Cir. 2015). To conclude that
Vega’s appeal rendered the Board the final decisionmaker in
her case, we need to know how the appellate process worked.
Nos. 19-1926 & 19-1939 11
Did the Board’s disposition of Vega’s appeal reflect its view
that Simpkins’s decision should remain final? Or did the
Board effectively start from scratch and render its own deci-
sion about whether Vega should be terminated? The Park Dis-
trict does not point us to the record evidence that would per-
mit us to make that judgment, and we will not hunt for it our-
selves. See Econ. Folding Box Corp. v. Anchor Frozen Foods Corp.,
515 F.3d 718, 721 (7th Cir. 2008) (“It is not the court’s respon-
sibility to … construct the parties’ arguments for them.”).
Moreover, regardless of whether Simpkins or the Board
was the “final decisionmaker” in the Park District’s termina-
tion process, the dispositive question is whether the discrimi-
natory animus of the investigators and Saieva was a proxi-
mate cause of the termination decision. See Staub v. Proctor
Hosp., 562 U.S. 411, 422 (2011). As the Court has explained, a
“biased report may remain a causal factor if the independent
investigation takes it into account without determining that
the adverse action was, apart from the supervisor’s recom-
mendation, entirely justified.” Id. at 421. The Park District
does not point us to evidence that would allow us to discern
what role the investigative report or Saieva’s recommenda-
tion played in the Board’s review. And again, it is not our job
to comb the record to determine whether it supports the Park
District’s conclusory assertion—really, it is more of an impli-
cation—that the Board’s review was entirely untainted by ei-
ther the investigative report or Saieva’s recommendation.
We do know, however, what the record reflects about the
role of the investigative report and Saieva’s recommendation
in Simpkins’s termination decision. Even if Simpkins himself
harbored no racial animus, the jury could have easily con-
cluded that his review was too superficial to constitute “a
12 Nos. 19-1926 & 19-1939
meaningful and independent investigation.” Schandelmeier-
Bartels, 634 F.3d at 383. After all, Simpkins simply adopted
Saieva’s recommendation without speaking to anyone else
and admitted that he only read the first three pages of the in-
vestigative report. A plaintiff has “plenty of room” to con-
vince the jury that a causal link exists, id. at 381, and a jury
could reasonably find the necessary causal link here.
In sum, the evidence was sufficient to allow a reasonable
jury to find in Vega’s favor on her Title VII claim.
B.
The Park District also argues that the district court’s evi-
dentiary errors deprived it of a fair trial, thereby entitling it to
a new one. “A new trial is appropriate where the verdict is
against the clear weight of the evidence or the trial was not
fair to the moving party.” Johnson v. Gen. Bd. of Pension &
Health Benefits of the United Methodist Church, 733 F.3d 722, 730
(7th Cir. 2013). We review evidentiary rulings for an abuse of
discretion and reverse a district court’s denial of a motion for
a new trial only if there is a significant chance that any error
“affected the outcome of the trial.” Smith v. Hunt, 707 F.3d 803,
807–08 (7th Cir. 2013); see also Jordan v. Binns, 712 F.3d 1123,
1137 (7th Cir. 2013). This case does not present such a rare in-
stance.
Although the Park District challenges numerous eviden-
tiary rulings by the district court, only one warrants even a
brief discussion: the district court’s decision to allow the jury
to view and listen to dozens of surveillance video clips. The
Park District complains that most of these clips were neither
authenticated nor admitted into evidence. This challenge is
hard to take seriously because it essentially begins and ends
Nos. 19-1926 & 19-1939 13
with this conclusory statement. Notably, despite its vehement
complaints that the surveillance videos were not authenti-
cated, the Park District does not contend that the tapes were
anything other than what Vega said they were: footage taken
by the Park District investigators who surveilled her. So far as
we can tell, the Park District’s real problem with the videos is
that they were “irrelevant and prejudicial.” Presumably the
Park District means that the probative value of the videos was
substantially outweighed by the risk that they would unfairly
prejudice the Park District. See FED. R. EVID. 403. Yet the Park
District does not even cite Rule 403, much less develop an ar-
gument as to why allowing the jury to see the videos violated
that rule, much less explain why any error was not harmless.
Given the lack of argument from the Park District, we have
no basis for concluding that the district court abused its dis-
cretion by permitting the jury to see the videos, let alone that
any error warrants reversal.1
C.
The Park District maintains that the district court should
have remitted Vega’s damages from the jury’s original
1 The Park District also argues that the district court erred when it took
judicial notice of the 2010 U.S. Census data about the Hispanic population
in Chicago, allowed testimony regarding the ethnicity of the Park Dis-
trict’s employees in 2015, excluded details of Vega’s administrative ap-
peal, and excluded evidence of a phone call between Vega’s counsel and
the Park District’s former Labor Counsel in 2012. These challenges, how-
ever, go nowhere. Even if every one of these evidentiary rulings was an
abuse of discretion, the Park District makes only the feeblest attempt to
show that there is a significant chance that these supposed errors, either
singly or together, “affected the outcome of the trial.” Smith, 707 F.3d at
807–08.
14 Nos. 19-1926 & 19-1939
$750,000 grant to less than the statutory maximum of $300,000
under Title VII. We review this decision for abuse of discre-
tion, considering “whether the award is monstrously exces-
sive, whether there is no rational connection between the
award and the evidence, and whether the award is roughly
comparable to awards made in similar cases.” Lampley v. Onyx
Acceptance Corp., 340 F.3d 478, 483–84 (7th Cir. 2003) (citation
and internal quotation marks omitted). Deference is particu-
larly appropriate if, as was the case here, “the district court,
which had the benefit of witnessing trial, itself remitted the
jury’s award to an amount that it determined was commen-
surate with the evidence in the present case viewed in light of
comparable cases.” Deloughery v. City of Chicago, 422 F.3d 611,
620 (7th Cir. 2005).
Vega testified extensively about the emotional, mental,
and physical distress that she suffered for the final six months
of her employment. She also testified that she was unem-
ployed for a year and constantly worried about her inability
to afford necessary medication and to support her mother.
The award is rationally related to this testimony and is not
monstrously excessive. See Tullis v. Townley Eng'g & Mfg. Co.,
243 F.3d 1058, 1068 (7th Cir. 2001) (holding that the plaintiff
can support an award for nonpecuniary loss by relying solely
on her own testimony about her emotional distress).
The award is also sufficiently comparable to those made
in similar cases. That is not to say that it is an exact match—
but it doesn’t have to be. We have explained that “[a]wards in
other cases provide a reference point that assists the court in
assessing reasonableness; they do not establish a range be-
yond which awards are necessarily excessive. Due to the
highly fact-specific nature of Title VII cases, such comparisons
Nos. 19-1926 & 19-1939 15
are rarely dispositive.” Farfaras v. Citizens Bank & Tr. of Chi.,
433 F.3d 558, 566 (7th Cir. 2006) (citation and internal quota-
tion marks omitted). And here, the “reference point” of other
cases shows this award to be roughly comparable to other
awards supported by “first- and third-person testimony re-
garding ongoing emotional and physical effects of the dis-
crimination.” Schandelmeier-Bartels, 634 F.3d at 390 (collecting
cases). For instance, in Farfaras, we upheld the jury’s decision
to award the plaintiff $200,000 for loss of dignity, humiliation,
emotional distress, and pain and suffering when that emo-
tional distress was supported by testimony highlighting the
fact that the plaintiff “lost self-esteem, gained weight, [and]
had problems sleeping” as a result of the discrimination. 433
F.3d at 563; see also Deloughery, 422 F.3d at 621 (concluding
that a $175,000 award is comparable to lesser awards granted
in other Title VII cases).
While remitting Vega’s damages to the statutory maxi-
mum was undoubtedly generous, we cannot say that it was
an abuse of discretion. We therefore affirm the award.
D.
The Park District also argues that the district court erred
when it awarded Vega back pay and benefits in lost salary,
lost bonuses, and lost health insurance premiums. Specifi-
cally, the Park District argues that the award was erroneous
because Vega did not mitigate her damages by searching for
comparable employment in her field. In order to prevail on a
failure-to-mitigate argument, the defendant must make two
showings: (1) that the plaintiff was “not reasonably diligent
in seeking other employment,” and (2) that “with the exercise
of reasonable diligence there was a reasonable chance that the
[plaintiff] might have found comparable employment.”
16 Nos. 19-1926 & 19-1939
EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 (7th Cir. 1990).
This is an affirmative defense, and once the district court de-
termines that the defendant has failed to meet its burden,
“[w]e shall not disturb that determination unless it is clearly
erroneous.” Id. The district court found that the Park District
failed both prongs. We agree.
As for the first prong, the Park District argues that Vega
did not exercise reasonable diligence in finding a comparable
job because she did not apply for jobs in the narrow field of
recreation in municipal parks. The district court disagreed. It
found that Vega exercised reasonable diligence because she
applied for over 100 jobs after she was fired. While not all the
jobs she applied for were comparable to her job as a park su-
pervisor, many of them involved working with youth or oth-
erwise engaging with the community. Thus, the district court
determined that the Park District failed to meet the first
prong. Besides—as the district court correctly noted—the
Park District all but ignores the second prong because it pro-
vides virtually no evidence that Vega would have been suc-
cessful in obtaining a sufficiently comparable job in the nar-
row field of recreation in municipal parks even if she had
tried. We affirm the district court’s award of back pay and
benefits.
E.
Finally, the Park District argues that the district court’s
award of a $55,924.90 tax component is flawed because the
district court offered no explanation for its calculation. Here,
we agree with the Park District—the district court abused its
discretion. EEOC v. N. Star Hosp., Inc., 777 F.3d 898, 904 (7th
Cir. 2015).
Nos. 19-1926 & 19-1939 17
In Title VII suits, the district court has the authority to
grant a tax-component award—a payment geared toward
easing the increased tax burden that results from a lump-sum
award of back pay. Id. at 903–04. But the district court must
exercise that authority in a way that permits appellate review.
Id. at 904 (affirming a similar tax-component award while
urging district courts to explain their calculations when grant-
ing such awards). In North Star Hospital, we affirmed a $6,495
award as a “modest, equitable remedy” even though the dis-
trict court did not explain its decision. Id. That said, we em-
phasized that “[s]ilence on the issue tends to frustrate appel-
late review, and it would be wise for district courts to show
their work if and when they adjudge similar tax-component
awards in the future.” Id.
The district court in this case did not explain how it ar-
rived at the $55,924.90 figure, which was substantially higher
than the amount that Vega had originally requested. She ini-
tially sought a tax-component award of $30,531.27, but the
district court denied that request because it could not deter-
mine how Vega calculated that amount. After supplemental
briefing on the issue, Vega revised her calculation and pro-
posed this $55,924.90 figure. The district court accepted
Vega’s revised proposal without saying why.
On appeal, Vega attempts to justify the figure by referenc-
ing some of her submissions to the district court. But even af-
ter reviewing those documents, we are unable to readily dis-
cern whether the calculation is accurate. So, because the dis-
trict court failed to explain its calculation and $55,924.90 is
more than nine times the modest award we affirmed in North
Star Hospital, we vacate the award and remand for the district
court to show its work.
18 Nos. 19-1926 & 19-1939
II.
We now turn to Vega’s cross-appeal. Vega argues that the
district court was wrong to grant the Park District’s Rule 50(b)
motion for judgment as a matter of law on her § 1983 claim.
As we did for Vega’s Title VII claim, we review the district
court’s decision de novo, Empress Casino Joliet Corp., 831 F.3d
at 822, and construe the evidence in Vega’s favor. Reeves, 530
U.S. at 150.
At trial, Vega argued that the Park District was liable un-
der § 1983 because it had a widespread custom of discrimina-
tion against Hispanics. Monell v. Dep’t of Soc. Servs. of the City
of N.Y., 436 U.S. 658, 690–91 (1978) (holding that municipali-
ties “may be sued for constitutional deprivations visited pur-
suant to governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official
decisionmaking channels”). To prevail on this theory, she had
to show both that the custom was widespread and that the
local policymakers were aware of the custom and took no
measures to correct it. Doe v. Vigo Cty., 905 F.3d 1038, 1045 (7th
Cir. 2018); see also Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d
293, 303 (7th Cir. 2010) (holding that, in addition to proving a
widespread custom, the plaintiff must show that the policy-
makers were “aware of the risk created by the custom or prac-
tice and … failed to take appropriate steps to protect the
plaintiff”).
The district court held that Vega’s § 1983 claim failed as
matter of law because even if Vega had sufficient evidence of
a widespread custom of discrimination against Hispanics, she
had insufficient evidence to show that any “policymaker”
knew about it. Vega challenges this conclusion on appeal, ar-
guing that she presented ample evidence to permit a jury to
Nos. 19-1926 & 19-1939 19
find that Simpkins, the Park District’s Director of Human Re-
sources, was a policymaker and that he was aware of the per-
vasive discrimination.
We need not wade into the “policymaker” question,
though, because Vega failed to show that there was a wide-
spread custom of discrimination against Hispanics in the first
place. Marcus & Millichap Inv. Servs. of Chi., Inc. v. Sekulovski,
639 F.3d 301, 312 (7th Cir. 2011) (“It is well established that we
may affirm the result below on any basis that appears in the
record, even if it was not the district court’s ground for dis-
missing the suit.”). Her case that “[t]he offending custom
[was] widespread and well settled” relied heavily on unin-
formative demographic data. See Vigo Cty., 905 F.3d at 1045.
For instance, she emphasized that neither the Human Re-
sources Department nor the Investigations Department em-
ployed any Hispanics and that several Hispanic employees
were replaced by non-Hispanics. But we have previously cau-
tioned against relying on similar statistical evidence because
it lacks critical context such as the ratio of qualified Hispanics
who actually applied for the relevant positions. Hague v.
Thompson Distrib. Co., 436 F.3d 816, 829 (7th Cir. 2006) (hold-
ing that “without knowing how many positions became avail-
able during the relevant time frame, the number and race of
the candidates applying for those positions, and the candi-
dates’ relative qualifications,” statistical evidence about the
racial demographic of a workplace is “next to worthless” (ci-
tation and internal quotation marks omitted)). Similarly, dur-
ing the trial, Vega relied on a comparison between the data in
the 2010 U.S. Census and the ethnic demographic of the Park
District to highlight the comparatively low ratio of Hispanic
employees at the Park District. But this piece of evidence tells
us even less about the Park District’s hiring practices because
20 Nos. 19-1926 & 19-1939
the census data encompasses many more people than just the
relevant market for Park District employees. EEOC v. Chicago
Miniature Lamp Works, 947 F.2d 292, 299 (7th Cir. 1991) (high-
lighting the significance of limiting the data to the “relevant
labor market” when making similar inferences about an em-
ployer’s hiring practice).
Vega had other evidence that was more helpful, but it still
fell short of establishing the kind of “widespread custom”
necessary for municipal liability under § 1983. For instance,
Millan, Vega’s Hispanic former supervisor, Ramirez, a His-
panic employee, and Vega herself all testified that the Park
District treated them poorly compared to their non-Hispanic
counterparts. Yet a handful of instances does not itself
demonstrate a well-settled practice, see Gable v. City of Chicago,
296 F.3d 531, 538 (7th Cir. 2002), and Vega’s other data did not
carry her much farther. She pointed out that between 2005
and 2012, the Park District fired 17.6% of its Hispanic park
supervisors and none of its Caucasian park supervisors. But
the force of this data is limited by the size of the group: the
numbers mean that the Park District fired three Hispanic park
supervisors in a seven-year period. Nor did the testimony of
Vega’s union representative sufficiently move the needle. He
stated that over a ten-year period, he did not represent any
Caucasian park supervisors in disciplinary or investigative
meetings before the Park District. This data lacks context—for
example, it’s not clear how many such meetings occurred dur-
ing this period. Even putting that aside, however, the com-
bined force of this testimony and Vega’s other evidence fails
to establish a widespread practice of discrimination against
Hispanics that was “so permanent and well settled as to con-
stitute a ‘custom or usage’ with the force of law.” City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)
Nos. 19-1926 & 19-1939 21
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68
(1970)).
It is true that Vega had enough evidence to permit a rea-
sonable jury to find in her favor on her Title VII claim for dis-
crimination on the basis of national origin. But the standard
of liability is different under § 1983, and the district court cor-
rectly concluded that Vega’s evidence of discrimination did
not satisfy it.
***
In sum, we AFFIRM the district court’s denial of the Park
District’s motion for judgment as a matter of law on Vega’s
Title VII claim, its decision to remit Vega’s compensatory
award to $300,000, and its award of back pay and benefits. We
VACATE the district court’s tax-component award and
REMAND with instructions to the district court to explain its
calculation. We AFFIRM the district court’s judgment as a
matter of law on Vega’s § 1983 claim.
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The plaintiff recovered judgment against the defendant on a policy of group insurance issued to the Oregon-Washington Railroad Navigation Company for the benefit of its employees, he being its tie and timber inspector. The policy is a combined accident and sickness indemnity. Plaintiff fell on a street of Portland and fractured his left femur. For some time prior to the fall and ever since, plaintiff has been suffering from arteriosclerosis and high blood-pressure. The indemnity was payable in monthly installments of which the defendant paid 11 on a claim for accidental injury. The plaintiff refused to accept the 12th installment because it required him to receipt in full for the entire amount due him. Under the policy he claimed that he was entitled to further installments on the ground that his injury was due to bodily disease. The company refused further payments
See 14 R.C.L. 1333, 1335. *Page 592
because it contended that plaintiff had not given notice in writing as required by the policy of disability resulting from bodily disease. The portions of the policy pertinent are as follows:
"If the employee is disabled for more than seven days through bodily disease, or by reason of bodily injury incurred through violent, external and accidental means while he is not engaged in the actual performance of the duties of his occupation as such employee, but which in either case, wholly and continuously disables him from the performance of all the duties of his occupation, an indemnity consisting of half monthly wages of such employee for the period not exceeding 12 months, during which he shall be so disabled and in case of sickness shall also be confined to the house by reason of such disability. `Confined to the house' as here used means such confinement as will prevent leaving the house for any purpose of business or pleasure but not the leaving of it solely for medical treatment or healthful exercise in its immediate vicinity.
"In the event of payment of indemnity under the last preceding paragraph by reason of disability resulting from bodily disease, if it shall further be that the employee has, within the time covered by the payments there given, become totally and permanently disabled for life from engaging in any work or occupation for wages or profit, an additional indemnity consisting of half monthly wages for a further period of 12 months.
"Indemnity shall, in no instance, be at a less rate than five dollars per week, nor shall it exceed in the aggregate twenty-five hundred dollars as a payment to any one employee as a result of any one accidental injury or of any one sickness. But one indemnity will be payable for disability resulting concurrently from accidental injury and disease, and all indemnity payments except those accrued will cease at the death of the injured or sick employee." *Page 593
The assigned errors are based on rulings on the admission of testimony, giving of certain instructions, refusal to give other instructions requested by the defendant and denying defendant's motions for judgment of nonsuit and for directed verdict. Other facts necessary to understand the reasons for our decision will be found in the opinion.
AFFIRMED. REHEARING DENIED.
Defendant alleges error in the ruling of the court admitting the correspondence between the plaintiff and officials of the O.-W.R. N. Company in his behalf over defendant's objection. The correspondence was offered for the purpose of proving notice was given to the defendant that plaintiff was suffering from bodily disease. The proofs of plaintiff's disability are based upon accidental injury. After the 11 installments were paid and the defendant insisted upon a receipt in full for the twelfth installment, according to the terms of the policy, plaintiff insisted that his disability was the result of bodily disease which entitled him under the policy to 12 more payments. The amount plaintiff was entitled to receive was $117.50 per month for 12 months in case of accident and the same amount for 24 months in case of permanent disability caused by disease. Proofs of disability were required to be given to the defendant monthly. The first report was made on December 30, 1922, and in answer to the question, "How did the accident happen?" recited *Page 594
"Slipped on icy pavement." That report also contains the following information given by plaintiff's physician:
Question No. 9. "How do you understand he was injured?"
Answer. "Walking on icy pavement he slipped and fell."
Question No. 17. "Has claimant any chronic or constitutional disease or physical defect or infirmity; and if so what?"
Answer. "Yes, arteriosclerosis."
The report made March 23, 1923, embodies a statement from plaintiff's employer in which it is stated that he understands the accident to have happened by a fall on a sidewalk. The physician's statement in the same report states the injury to be "fracture neck of femur, paralysis of left leg." The several reports and correspondence objected to were produced by defendant's attorney on compulsion while an involuntary witness for the plaintiff. The correspondence is not between the defendant and its attorney. It was between the plaintiff or those representing him and the defendant. The fact desired to be proven was that written notice was given to the defendant within 20 days after he became disabled of the plaintiff's disability arising from bodily disease. The policy does not require any particular form of notice. The notice given within eight days after the accident and disability of the plaintiff arose contains the statement that plaintiff was suffering from the disease of arteriosclerosis. The physician and surgeon of the plaintiff's employer testified that the fall was the result of this disease. The correspondence introduced was not privileged. It is direct evidence of the fact sought to be proven, namely: That notice was given to the defendant of the bodily disease suffered *Page 595
by the plaintiff. It was competent for that purpose. The case ofDakin v. Queen City Fire Insurance Co., 59 Or. 269
(117 P. 419), is not in point as clearly appears from this statement taken from the opinion in page 273 of the official report:
"The letters chiefly relate to arguments adduced by the respective parties for and against the payment of the loss produced by the fire, and the reasons for and effect of not making proof of loss within the time prescribed."
It is claimed by the plaintiff that the required notice was in said correspondence. The correspondence was the very best evidence of the fact sought to be proven: Blunt v. NationalFidelity Guaranty Co., 93 Neb. 685 (141 N.W. 1033, 1034). It was in the possession of the defendant and produced by it upon the demand of the plaintiff. The case of Emerson v. WesternAutomobile Indemnity Assn., 105 Kan. 242 (182 P. 647), is not in point for the reason that the correspondence admitted was between the defendant and its attorney. Such correspondence is privileged. Some of the correspondence in the case at bar was not material but was not harmful or prejudicial.
The principal defense is based upon the want of notice of plaintiff's sickness. Out of this contention issue all the assignments of error. The reports were sent by the plaintiff or someone for him as required by the defendant. The reports apparently base his claim for indemnity on account of the fall on the sidewalk. These reports as shown above also contained the statement in different language that plaintiff was suffering from bodily disease. In some of the reports his disease is referred to as paralysis, in others arteriosclerosis and others high blood-pressure. In some of the reports two of the said diseases *Page 596
are mentioned. The testimony of the plaintiff at the trial was to this effect:
"And I felt quite dizzy at that time. It was Saturday, and held onto a store rail, an outside store rail several times, by reason of this feeling. When I reached Sixth Street on my way over to Fourth Street I was stricken with this stroke of paralysis or whatever it was and sunk down on the curb and broke my hip."
The testimony regarding plaintiff's mental condition was admissible. It was pertinent to the issue as to whether or not his mistake in reporting on form furnished by defendant for injury by accident was made in good faith. His surgeon testified that he supposed that the form used was immaterial as long as the facts were shown.
The court instructed the jury to the effect that unless the plaintiff gave notice of his disability from sickness within 20 days after becoming so disabled, he could not recover and that an honest mistake made in assigning the cause of his disability would not prevent him from recovering, unless the defendant was misled to its injury thereby.
The contention of the defendant, as near as we can gather from the record and the brief of the defendant, is that the court erred by submitting to the jury the question of whether or not notice of disability by sickness was given. The instructions were as favorable to the defendant as it was entitled to. It is a general rule of law that a mistake honestly made in a notice or proof of loss and seasonably corrected, would not defeat recovery, unless the insurer was misled to its injury by such mistake. If the insurer after receiving proper notice and proof of loss was not prejudiced and had ample opportunity to investigate conditions so as to ascertain *Page 597
the true state of facts, it could not refuse payment because of a mistake in the cause of disability.
The following authorities sustain the instructions which were given to the jury and complained of: 1 C.J. 471-473; 33 C.J. 7, § 650; 33 C.J. 11-13; § 657; 14 R.C.L. 1335, § 505; Van Eman v.Fidelity Casualty Co., 201 Pa. 537 (51 Atl. 177-179); UnitedStates Casualty Co. v. Hanson, 20 Colo. App. 393 (79 P. 167,178); Phillips v. United States Ben. Soc., 120 Mich. 142
(79 N.W. 1-3; Wildey Casualty Company v. Sheppard, 61 Kan. 351
(59 P. 651, 653, 47 L.R.A. 650); Jarvis v. Northwestern Mut.Relief Assn., 102 Wis. 546 (78 N.W. 1089, 72 Am. St. Rep. 895);Hill v. Aetna Life Ins. Co., 150 N.C. 1 (63 S.E. 124);Travelers' Insurance Co. v. Melick, 65 Fed. 178-187 (12 C.C.A. 553, 27 L.R.A. 629).
In the last case cited in the opinion by Judge SANBORN the rule is stated thus:
"The better rule upon this subject is that statements of this nature in proofs of loss are binding and conclusive upon the party who makes them until, by pleading or otherwise, he gives the insurance company reasonable notice that he was mistaken in his statement, and that he will endeavor to show that the death was the result of different cause from that stated in his proofs. After the insurance company has received due notice of this fact, the proofs have the probative force of solemn admissions under oath against interest, but they are not conclusive."
These conclusions dispose of all the assignments of error. The motions for judgment of nonsuit and for a directed verdict were properly denied. There was sufficient evidence of notice having been duly given the defendant of the disability of plaintiff from sickness to take the case to the jury. The defendant *Page 598
had ample opportunity for investigating fully the condition of plaintiff. The fact that the plaintiff was confined to the hospital or the house for 11 months was evidence that his fractured femur was not the sole cause of his disability. That fracture should have healed within about three months. The defendant was advised by the surgeon caring for the plaintiff that his disability was permanent. Every report made to the defendant informed it that plaintiff was suffering from either arteriosclerosis, high blood-pressure or paralysis. The policy fixing the defendant's liability contains this sentence: "But one indemnity will be payable for disability resulting concurrently from accidental injury and disease and all indemnity payments, except those accrued, will cease at the death of the injured or sick employee." The evidence in this case indicates that plaintiff's disability was the result of both accident and disease. The fall broke the femur. The disease caused him to fall. The broken femur would have healed under ordinary circumstances in about three months. His disability increased from the time of the accident, evincing that his disability was caused by the disease. The mistake of the plaintiff in using the form provided by the defendant for accidents instead of disease, while competent evidence of an admission against his interest, was not conclusive when shown to have been used by inadvertence under the belief that the form was not material and where evidence of the true state of facts was given to the defendant. The defendant introduced no evidence, makes no claim that any fraud has been committed, or that it has been in anywise injured by the mistake. It has made no payments by reason of the mistake that it would not have paid had the notice and proofs shown from the first that the disability was caused *Page 599
by disease. Both the accident and the disease concurred in causing the disability. Under the record the question was one of fact which was submitted to the jury with proper instructions. The fact was resolved against the defendant.
Statutory notice is not involved in this case. Keane v. Cityof Portland, 115 Or. 1 (235 P. 677), is not in point. Here the question is the sufficiency of the notice given: 1 C.J. 477, §§ 193, 194; 14 R.C.L. 1333, 1335, §§ 504, 505. The notice here required is based on contract, not on statute.
The policy, under which the plaintiff claims, contains this statement:
"Indemnity shall, in no instance, be at a less rate than five dollars per week, nor shall it exceed in the aggregate twenty-five hundred dollars as a payment to any one employee as a result of any one accidental injury or of any one sickness."
It is conceded that the defendant had paid to the plaintiff the sum of $1,292.50. The plaintiff claims the additional sum of $1,527.50 which would make an aggregate of $2,820. According to the terms of the contract of insurance in no event is the plaintiff entitled to recover in this action in excess of $2,500. It is necessary therefore to reduce the judgment to the sum of $1,207.50 with interest at the rate of 6 per cent per annum from December 16, 1924. In all other respects the judgment is affirmed. Neither party will recover costs and disbursements in this court.
McBRIDE, C.J., and BURNETT and BELT, JJ., dissent.
BEAN and BROWN, JJ., concur.
RAND, J., took no part in this decision.
The court being evenly divided the judgment is affirmed.
AFFIRMED. REHEARING DENIED. *Page 600
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2023
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Anthony Tobias-Haywood
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 14, 2020
Filed: April 7, 2020
[Unpublished]
____________
Before BENTON, GRASZ, and STRAS, Circuit Judges.
____________
PER CURIAM.
Anthony Tobias-Haywood pled guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court1 sentenced Tobias-Haywood to 60 months of imprisonment. Tobias-
Haywood now appeals this sentence, arguing the district court committed both
procedural and substantive errors. We affirm.
In May of 2018, St. Louis Missouri Metropolitan Police Department officers
observed Tobias-Haywood driving a silver Mercedes-Benz matching the description
of a vehicle reported stolen a few days prior. Officers attempted to halt the vehicle
by deploying spike strips, but it accelerated away. Eventually, the vehicle stopped
and the occupants, including Tobias-Haywood, exited and continued to flee on foot.
Tobias-Haywood was soon found in a bush with a satchel containing a handgun
loaded with 31 rounds of ammunition and an extended magazine. He was placed
under arrest and admitted to knowingly possessing the firearm.
Tobias-Haywood first argues the district court erred by failing to provide an
adequate explanation for the sentence imposed and relying solely on his criminal
history. Because Tobias-Haywood raises the issue of procedural error for the first
time on appeal, we review for plain error. United States v. Linderman, 587 F.3d 896,
899 (8th Cir. 2009).
Under the Supreme Court’s precedent in Rita v. United States, the sentencing
court must “set forth enough to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal decision-
making authority.” 551 U.S. 338, 356 (2007). Here, the district court provided a
thorough explanation of its reasoning including reference to the § 3553(a) factors —
specifically considering Tobias-Haywood’s difficult upbringing, criminal history, the
conduct of this offense, and the sentencing objectives of “just punishment, general
deterrence, and incapacitation.” While it is true the district court did not provide a
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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complete recitation of the § 3553(a) factors, this is not required. United States v.
Zayas, 758 F.3d 986, 990 (8th Cir. 2014). The district court adequately explained the
considerations it weighed in order to demonstrate that it had a reasoned basis for the
sentence imposed.
Tobias-Haywood next argues the district court substantively erred by assigning
too much weight to his criminal history and too little weight to other factors. “A
sentencing court abuses its discretion ‘when it . . . fails to consider a relevant factor
that should have received significant weight . . . [or] gives significant weight to an
improper or irrelevant factor.’” United States v. Berry, 930 F.3d 997, 1000 (8th Cir.
2019) (alterations in Berry) (quoting United States v. Feemster, 572 F.3d 445, 461
(8th Cir. 2009) (en banc)). A review of the entire record establishes that the district
court imposed a substantively reasonable sentence. This is true even though it was
an upward variance from the Guidelines range. The district court weighed Tobias-
Haywood’s personal history and characteristics, a letter in support of Tobias-
Haywood, his “horrible” and “completely out of control” criminal history, and the
troubling circumstances of the instant conviction. The district court’s evaluation of
the factors was within the “wide latitude” afforded to sentencing courts to “weigh the
section 3553(a) factors in each case and assign some factors greater weight than
others in determining an appropriate sentence.” United States v. Gasaway, 684 F.3d
804, 808 (8th Cir. 2012) (quoting United States v. Richart, 662 F.3d 1037, 1054 (8th
Cir. 2011)). This is not the “unusual case” where we will reverse for substantive
unreasonableness. United States v. Borromeo, 657 F.3d 754, 757 (8th Cir. 2011)
(quoting Feemster, 572 F.3d at 464).
For the foregoing reasons, we affirm Tobias-Haywood’s sentence.
______________________________
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2812
___________________________
Prudencia Jimenez Galloso
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States
lllllllllllllllllllllRespondent
------------------------------
Immigration Law Professors
lllllllllllllllllllllAmicus on Behalf of Petitioner
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: November 14, 2019
Filed: April 7, 2020
____________
Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.
____________
KELLY, Circuit Judge.
Prudencia Jimenez Galloso petitions for review of a decision of the Board of
Immigration Appeals (BIA) denying her applications for asylum and withholding of
removal. Because we conclude she failed to meet her burden of showing a
well-founded fear of future persecution, we deny the petition for review.
I.
Galloso is a citizen of Mexico. In February 2001, she entered the United States
without inspection. After she was placed in removal proceedings in 2017, she sought
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). Galloso claimed that if she returned to Mexico, she would face future
persecution based on her membership in four particular social groups: (1) Mexican
females; (2) close family members; (3) “Mexican married women in domestic
relationships they are unable to leave”; and (4) “married Mexican women who are
viewed as property by virtue of their position within a domestic relationship.”
At the hearing before the Immigration Judge (IJ), Galloso testified that she
suffered repeated physical and sexual abuse while in Mexico and the United States.
After dropping out of school at age fifteen, she met and married Miguel Orlando Sosa
in Mexico. Sosa abused Galloso until he left for the United States, but Galloso never
reported the abuse to the Mexican police. Sometime after entering the United States,
Galloso divorced Sosa. She then met Juan Alvarez Casanova, married him, and had
a son with him. Casanova began physically and sexually abusing Galloso after they
married. Galloso never called the police about Casanova’s abuse, except for one time
when Casanova locked her and their son outside of the house in the winter. In 2012,
Casanova was removed to Mexico for charges unrelated to Galloso.
Galloso testified that she fears Casanova will harm her if she returned to
Mexico. Since his removal to Mexico, Casanova has repeatedly called Galloso and
threatened to make her “disappear” if she ever came back. Casanova lives in
-2-
Campeche, Mexico, which is five hours away from Merida, the town Galloso would
live in if she returned to Mexico. Casanova knows Galloso’s family lives in Merida
but he has not visited the town since 2012. Despite Casanova’s threats, Galloso
maintained she would not call the Mexican police if she returned because she believes
the police are corrupt and would not help her. For support, she relied on country
condition reports that indicated police corruption is a significant problem in Mexico.
The reports also noted “70 percent of female homicide victims in Mexico were killed
by their intimate partners” and “the majority of these women had sought help from
government authorities, but that nothing had been done because this type of violence
was considered a private matter.”
The IJ denied Galloso’s requests for relief, and the BIA affirmed. The BIA
agreed with the IJ’s determination that Galloso failed to show a well-founded fear of
future persecution. It noted that “[w]hile the country condition reports indicate that
the justice system in Mexico is corrupt, the respondent has not met her burden to
prove that the government either condoned the behavior of her abusers or that the
government was unable to prevent the abuse.” The BIA thus concluded that Galloso
“did not establish that the Mexican government was or would be unable or unwilling
to control her alleged persecutors.” It also found no error in the IJ’s denial of
Galloso’s asylum application as time-barred, and concluded the IJ’s determinations
that only the two “married Mexican women” social groups are cognizable and that
Galloso is not a member of the “Mexican married women in domestic relationships
they are unable to leave” group. Galloso now petitions for review.
II.
“We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or reasoning of the IJ, we also review the
IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d
624, 627 (8th Cir. 2008). We review the BIA’s legal determinations de novo and
-3-
employ the deferential “substantial evidence” standard when reviewing the BIA’s
factual determinations. Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).
Under that standard, “we must affirm the BIA’s factual decisions unless, after having
reviewed the record as a whole, we determine that it would not be possible for a
reasonable fact-finder to adopt the BIA’s position.” Id.
To be eligible for asylum, an applicant must show that she meets the definition
of “refugee.” 8 U.S.C. § 1158(b)(1). A refugee is a person who is outside the country
of that person’s nationality “who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group or political opinion.” 8 U.S.C.
§ 1101(a)(42). An applicant who establishes past persecution is entitled to a
rebuttable presumption that she possesses a well-founded fear of future persecution
on the same basis. 8 C.F.R. § 1208.13(b)(1). But an applicant who fails to establish
past persecution must demonstrate a well-founded fear of future persecution that is
“both subjectively genuine and objectively reasonable.” Bracic v. Holder, 603 F.3d
1027, 1034 (8th Cir. 2010).
Galloso does not contest the agency’s determination that she failed to show
past persecution; instead, she argues that the agency applied an incorrect, heightened
standard of proof when determining that she lacked a well-founded fear of future
persecution from Casanova. She contends that, under 8 U.S.C. § 1101(a)(42) and
caselaw, she is only required to prove that the Mexican government is “unable” or
“unwilling” to control Casanova’s actions; yet the BIA stated she must prove that the
Mexican government “condones” Casanova’s behavior or, as the IJ noted, is
“completely helpless” to prevent it.
The BIA has adopted, and we have approved as reasonable, a definition of
“persecution” that requires a harm to be “inflicted either by the government of [a
-4-
country] or by persons or an organization that the government was unable or
unwilling to control.” Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998). A
government’s ability to control the persecutors is a question of fact, and we must
uphold the agency’s finding regarding this question of fact “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see Saldana v. Lynch, 820 F.3d 970, 976 (8th Cir. 2016) (a
government’s ability to control persecutors is a question of fact).
To the extent that the condone-and-completely-helpless standard conflicts with
the unable-and-unwilling standard, the latter standard controls. See Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“[W]hen faced with conflicting
panel opinions, the earliest opinion must be followed as it should have controlled the
subsequent panels that created the conflict.”) (cleaned up). Compare Miranda, 139
F.3d at 627 (applying the unable-and-unwilling standard), with Menjivar v. Gonzales,
416 F.3d 918, 921 (8th Cir. 2005) (stating for the first time that a petitioner must
show the government condones or is completely helpless to prevent a private actor’s
behavior). But here, even assuming the standards are different, the BIA found
Galloso failed under either and specifically noted it “affirm[s] the Immigration
Judge’s conclusion that the respondent did not establish that the Mexican government
was or would be unable or unwilling to control her alleged persecutors.” Thus,
Galloso has not shown reversible legal error.
In addition, based on the record, we cannot conclude that any reasonable
adjudicator would be compelled to find that she established a well-founded fear of
future persecution under the unable-and-unwilling standard. Because Galloso
testified that she never contacted the police when she was abused in Mexico, she must
provide some evidence to show the Mexican government would be unable or
unwilling to help her. Cf. Ngengwe v. Mukasey, 543 F.3d 1029, 1035–36 (8th Cir.
2008) (determining that petitioner met her burden of proving future persecution
because, even though she never called the police in Cameroon, a relative provided an
-5-
affidavit stating that the police refused to stop a prior beating of a family member as
the police deemed it “a family issue”); Matter of S-A-, 22 I. & N. Dec. 1328, 1334
(BIA 2000) (finding that petitioner met her burden of proof showing that the
government would be unable or unwilling to protect her, despite not contacting the
police, because of “the importance of the corroborative evidence provided by
testimony of the respondent’s aunt and the 1997 Country Reports contained in the
record”). We agree with the BIA that Galloso has not made this showing. The
country reports here are too general and do not support a well-founded fear of future
persecution as to Galloso. The percentage of female homicide victims killed by their
intimate partners is a disturbing statistic. But it does not reveal the total number of
female homicide or domestic violence victims, or how prevalent the problem of
female homicide by intimate partners is in Mexico. Further, the fact that the majority
of the female homicide victims had previously sought help from governmental
authorities, while troubling, does not help Galloso because she undisputedly did not
contact the police and testified that she would not contact the police in the future.
Based on the country reports and her own testimony that she did not and would not
contact the Mexican police, Galloso failed to show that the Mexican government is
unable or unwilling to protect her. And because Galloso cannot satisfy the lower
burden of proof required to establish eligibility for asylum, it follows that she cannot
establish eligibility for withholding of removal. Gutierrez-Vidal v. Holder, 709 F.3d
728, 733 (8th Cir. 2013).
Galloso also argues that the BIA erred by affirming the IJ’s finding that her
asylum application was untimely. The government contends we lack jurisdiction to
review the BIA’s determination that an asylum application was untimely. We need
not reach this issue because, even assuming Galloso’s asylum application was timely,
we find no basis for granting her petition for review as she did not show a
well-founded fear of future persecution.
-6-
Galloso further contends that the BIA erred by (1) failing to address whether
she was a member of the particular social group “married Mexican women in
domestic relationship they are unable to leave” with respect to Casanova; and (2)
affirming the IJ’s determination that “Mexican females” is not a particular social
group. We also need not reach these arguments. Even assuming “Mexican females”
is a cognizable social group and that Galloso is a member of both the “Mexican
females” and “unable to leave” groups, we find that she failed to meet her burden of
proving future persecution and is thus not entitled to relief.
The petition for review is denied.
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Case: 19-11172 Date Filed: 04/07/2020 Page: 1 of 26
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11172
________________________
D.C. Docket No. 0:17-cv-62317-JIC
BBX CAPITAL,
f.k.a. BankAtlantic Bankcorp, Inc.,
Plaintiff - Appellant,
versus
FEDERAL DEPOSIT INSURANCE CORP,
in its corporate capacity,
BOARD OF GOVERNORS OF THE FEDERAL RESERVE BOARD,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2020)
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-11172 Date Filed: 04/07/2020 Page: 2 of 26
This case concerns severance payments that Plaintiff-Appellant BBX Capital
(“BBX”) seeks to make to five former executives of BankAtlantic (the “Bank”), a
federally insured savings bank that BBX’s predecessor-in-interest, BankAtlantic
Bancorp Inc. (“Bancorp”), used to own. Those severance payments were part of a
2011 Stock Purchase Agreement (the “SPA”) that sold the Bank to BB&T
Corporation (“BBT”). At that time, however, the Bank was operating in a “troubled”
condition, and both the Bank and Bancorp were operating under consent orders that
prohibited them from making any so-called golden parachute payments absent
approval by the Federal Reserve Bank (the “FRB”) and concurrence by the Federal
Deposit Insurance Corporation (the “FDIC”; together with the FRB, the “agencies”).
The SPA also called for BBT to reimburse BBX for any severance payments made
to the executives.
After the sale of the Bank was finalized, the FDIC notified BBX that it
considered the severance payments to be golden parachute payments and that it
would approve payments of only twelve months of salary to each executive,
significantly less than what the SPA called for. The FDIC also concluded that BBT
was required to seek and receive approval before making the reimbursement
payments to BBX. Subsequently, the FRB approved the same payment amounts but
took no action with respect to approving any payments over 12 months of salary
because the FDIC had already prohibited any additional payments.
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BBX then filed this action claiming that the agencies’ decisions were arbitrary
and capricious and violated due process. The district court dismissed BBX’s action
against the FRB for lack of standing because FRB had not injured BBX, and the
court granted summary judgment in favor of the FDIC. BBX now appeals. After
careful review of the record and the briefs, we affirm.
I.
A. Legal Framework
In 1990, Congress added Section 1828(k) to Title 12. That section provides
that “the [FDIC] may prohibit or limit, by regulation or order, any golden parachute
payment or indemnification payment” to institution-affiliated parties (“IAPs”),
including “any director, officer, [or] employee” of the insured bank. 12 U.S.C. §§
1828(k), 1813(u). As relevant here, “golden parachute payment” means the
following:
(A) [A]ny payment (or any agreement to make any payment) in the
nature of compensation by any insured depository institution or covered
company for the benefit of any institution-affiliated party pursuant to
an obligation of such institution or covered company that—
(i) is contingent on the termination of such party's affiliation with
the institution or holding company; and--
(ii) is received on or after the date which—
...
(III) the institution's appropriate Federal banking agency
determines that the insured depository institution is in a
troubled condition . . .
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12 U.S.C. § 1828(k)(4)(A).
The FDIC’s implementing regulations define “golden parachute” in a largely
similar manner. See 12 C.F.R. §§ 359.0, 359.1(f). Notably, the regulations define
“payment,” which is incorporated by the golden parachute payment definition, to
include “[a]ny direct or indirect transfer of any funds[.]” Id. § 359.1(k)(1).
The regulations also set forth the process by which a covered company can
seek and receive approval to make golden parachute payments. A covered company
that intends to make a golden parachute payment must file an application with the
FDIC and with its primary federal regulator, in this case the FRB. See 12 U.S.C. §
1813(q)(3)(F); 12 C.F.R. §§ 303.244, 359.4(a)(1), 359.6. A golden parachute
payment is prohibited unless excepted. 12 U.S.C. § 1828(k)(1); 12 C.F.R. § 359.2.
To gain regulatory approval to make a golden parachute payment, the
applicant must first “demonstrate” and “certify” that it is not aware of any reason to
believe the IAP (i) has “committed any fraudulent act or omission, breach of trust or
fiduciary duty, or insider abuse,” (ii) was “substantially responsible” for the
institution’s troubled condition, or (iii) has “violated any applicable Federal or State
banking law or regulation.” 12 C.F.R. § 359.4(a)(4)(i)-(iii); see also 18 U.S.C. §
1828(k)(2). The contents of that certification are not at issue here, but, significantly,
only if the applicant demonstrates that the IAP satisfies those requirements will the
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IAP be eligible to receive a golden parachute payment. 12 C.F.R. § 359.4(a)(4)(i)-
(iii).
If that threshold certification requirement is satisfied, then the regulations
provide for three categories of permissible payments, only two of which are relevant
here: the “regulator’s-concurrence exception” and the “change-in-control
exception.” Id. §§ 359.4(a)(1), (3).1 The regulator’s-concurrence exception permits
a golden parachute payment if “[t]he appropriate federal banking agency, with the
written concurrence of the [FDIC], determines that such a payment or agreement is
permissible[.]” Id. § 359.4(a)(1). The change-in-control exception permits a
“reasonable severance payment, not to exceed twelve months salary,” “in the event
of a[n] [unassisted] change in control of the insured depository institution,” provided
that the institution first “obtain[s] the consent of the appropriate federal banking
agency[.]” Id. § 359.4(a)(3).
In determining whether to permit a payment under one of the listed
exceptions, § 359.4(b) provides that the FDIC and the FRB “may consider” the
following factors:
(1) Whether, and to what degree, the IAP was in a position of
managerial or fiduciary responsibility;
(2) The length of time the IAP was affiliated with the insured depository
institution or depository institution holding company, and the degree to
1
No party contends that the third exception, the “white knight” exception, applies here. 12
C.F.R. § 359.4(a)(2).
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which the proposed payment represents a reasonable payment for
services rendered over the period of employment; and
(3) Any other factors or circumstances which would indicate that the
proposed payment would be contrary to the intent of section 18(k) of
the Act or this part.
12 C.F.R. § 359.4(b)(1)-(3).
B. Factual Background
In 2011, Bancorp sought to sell the Bank, which it owned entirely, to BBT
under the SPA. The SPA provided that, upon closing, Bancorp would be obligated
to make severance payments to, as relevant here, five executives (the “Proposed
Payments”), and BBT would reimburse BBX for those payments. 2 Those Proposed
Payments were significantly greater than each executive’s average salary over the
prior years.
In the wake of the 2008 Great Recession, however, both Bancorp and the Bank
had been deemed to be, and remained in 2011, in “troubled condition,” were covered
companies, and were operating under public consent orders that, among other things,
prohibited the making of any golden parachute payments unless Bancorp complied
with the FDIC’s corresponding regulations. In addition, BBT’s acquisition of the
Bank and Bancorp’s merger with BBX, under the SPA, required regulatory review
2
The Proposed Payments are as follows: Valerie Toalson, Chief Financial Officer
($995,438); Lloyd DeVaux, Chief Operating Officer ($1,319,114); Jay McClung, Chief Risk
Officer ($743,258); Lewis Sarrica, Chief Investment Officer, ($920,451); and Susan McGregor,
Chief Talent Officer ($893,713).
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and approval. To expedite that approval process, Bancorp agreed that it would not
make the Proposed Payments without either a determination by both the FDIC and
the FRB that the payments were not golden parachutes, or FRB and FDIC approval
of the payments. BBT agreed to the same conditions with respect to its
reimbursement payments. The sale of the Bank to BBT closed on July 31, 2012,
with the non-objection of the FDIC and the FRB.
The following year, the FDIC notified BBX that the proposed severance
payments (and any reimbursements) were golden parachutes that could not be made
without FRB approval and FDIC concurrence. With respect to two of the executives,
DeVaux and McClung, the FDIC found that though those executives had previously
executed severance agreements in 1999 and 2001, respectively, the Proposed
Payments set forth in the SPA replaced payments due under the earlier agreements.3
Finally, the FDIC determined that the reimbursement payments from BBT to BBX
also constituted indirect golden parachute payments and therefore required approval.
In September 2013, BBX submitted its applications to make the Proposed
Payments to each of the executives but also reaffirmed its disagreement about the
applicability of the golden parachute provisions.
3
The FDIC subsequently also noted that for both DeVaux and McClung, the amount
provided for under the SPA “was more than the amount due to him upon resignation or change in
control under his employment contract.”
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The FDIC issued its decisions in January 2018. It first confirmed that the
Proposed Payments were subject to the golden parachute regulations. Quoting the
preamble to its golden parachute regulations, the FDIC noted that
§ 1828(k)(4)(A)(ii) “provides that any payment which is contingent on the
termination of an IAP’s employment and is received on or after an institution or
holding company becomes troubled is a prohibited golden parachute. If this
payment is prohibited under the prescribed circumstances, it is prohibited forever.”
So changes to the corporate structure—that is, BBT’s purchase of the Bank and
BBX’s exit from the banking industry—did not change the applicability of the
restrictions.
In addition, the FDIC determined that BBX is subject to golden parachute
regulations as a “covered company” for the purposes of the Proposed Payments.
And even if BBX were not a covered company, the Proposed Payments would still
be subject to the golden parachute restrictions because they arose from the
executives’ employment at BankAtlantic and Bancorp and would be made after the
date those entities had been deemed to be troubled. Finally, the FDIC determined
that the specific Proposed Payment negotiated for each executive qualified as a
golden parachute payment.
Then, turning to whether the Proposed Payments were permissible, the FDIC
concluded that it would not approve payments in any amount above one year’s salary
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for each executive. The FDIC explained that its decision “fully considered
Bancorp’s and the Bank’s supervisory history, BBX’s status as successor to
Bancorp, the agreements at issue, and the text, structure and intent of Section
1828(k), the certification factors found at 12 C.F.R. § 359.4(a)(4), and the
discretionary evaluative criteria found at 12 C.F.R. § 359.4(b).”
Specifically, the FDIC determined that it “would have no objection and would
concur, if the FRB were to approve payment . . . in [an] amount . . . representing
twelve months salary” under the change-in-control exception. But though additional
payments could be permitted under the regulator’s-concurrence exception, the FDIC
determined that additional payments under that exception were not justified based
on its internal guidance and the § 359.4(b) factors. In reaching those conclusions,
the FDIC considered that the executives had limited responsibility for the Bank’s
troubled condition that “arose in the context of a protracted national economic
downturn” and that BBT had acquired the Bank in an unassisted transaction without
loss to the FDIC. Nonetheless, the FDIC found that approval of the entire Proposed
Payment would be contrary to the intent of the golden parachute restrictions and that
independently supported its one year’s salary determination.
About two weeks later, the FRB issued its decision. The FRB approved
payment of 12 months of salary under the change-in-control exception. As to any
excess amounts potentially permissible under the regulator’s-concurrence exception,
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though, the FRB determined that “no further action [wa]s required” and explicitly
“t[ook] no action with regard to those payment amounts” because “FDIC
concurrence,” which had already been withheld, “is required before those payments
can be made.” Finally, the FRB stated, “It is anticipated that BB&T will reimburse
BBX Capital for the golden parachute payments pursuant to Section 5.7(h) of the
[SPA]. BB&T must request approval under 12 C.F.R. part 359 prior to making
reimbursements for the golden parachute payments.”
In response, BBX sued the FDIC and the FRB under the Administrative
Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment.
BBX’s amended complaint asserts that (1) the FDIC’s determinations that the
Proposed Payments are golden parachute payments and the agencies’ refusal to
approve the full Proposed Payment amounts were arbitrary and capricious (Counts I
and II); (2) the agencies violated BBX’s due-process rights by requiring BBT to file
a second application before reimbursing BBX (Count IV); and (3) the court should
declare that BBX is authorized to make the Proposed Payment (Count V).4
4
Count III asserts that the agencies unlawfully or unreasonably delayed in rendering a
decision. Because the agencies subsequently did issue their decisions, that count is not at issue
here.
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The district court subsequently granted summary judgment in favor of the
FDIC and dismissed the FRB for lack of jurisdiction, concluding that the FRB was
not responsible for any injury BBX sustained. We now affirm. 5
II.
We turn first to BBX’s argument that the district court erroneously concluded
that BBX lacked standing to sue the FRB. We review standing determinations de
novo, CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th
Cir. 2006), and find that BBX’s arguments lack merit.
“[S]tanding is an essential and unchanging part of the case-or-controversy
requirement of Article III[,]” which the party invoking federal jurisdiction has the
burden of proving. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
“[T]he irreducible constitutional minimum of standing under Article III consists of
three elements: an actual or imminent injury, causation, and redressability.”
Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1265 (11th
Cir. 2011) (internal quotation marks omitted).6
The causation element, which we focus on here, requires “a causal connection
between the injury and the conduct complained of—the injury has to be fairly
5
We have jurisdiction pursuant to 28 U.S.C. § 1291.
6
A party suing under the APA must also demonstrate prudential standing, which requires
the interest asserted be “within the zone of interests to be protected or regulated by the statute that
he says was violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567
U.S. 209, 224 (2012) (internal quotation marks omitted). BBX’s prudential standing is not at issue.
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traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Lujan, 504 U.S. at 560
(alterations adopted). That requirement does not disappear simply because the
plaintiff has named an administrative agency as a defendant. Instead, as with any
party that is dragged into court, a plaintiff must allege how the agency’s action or
inaction caused the plaintiff’s alleged injury. See Hollywood Mobile Estates Ltd.,
641 F.3d at 1265-66. Simply describing an agency’s regulatory responsibilities is
not enough. Id. On the other hand, standing is not defeated merely because the
complained of injury can be fairly traced to multiple parties. Loggerhead Turtle v.
Cty. Council of Volusia Cty., Fla., 148 F.3d 1231, 1247 (11th Cir. 1998).
BBX first argues that it has standing to sue the FRB because the FRB issued
its decision after the FDIC issued its own decision. That argument is premised on
the text of the regulator’s-concurrence exception, which states that a golden
parachute payment is permissible if “[t]he appropriate federal banking agency [the
FRB], with the written concurrence of the [FDIC], determines that such a payment
or agreement is permissible[.]” 12 C.F.R. § 359.4(a)(1). We do not read that section
as requiring the agencies to act in any particular order. Such a requirement would
have at least one absurd consequence: By issuing its decision before the FRB, the
FDIC, an independent agency, would cause the FRB to violate the regulation and, if
BBX had its way, cause the FRB to injure the golden parachute applicant. We cannot
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countenance that result. And in any event, the FRB did not injure BBX by acting
after the FDIC issued its decision. Because the regulator’s-concurrence exception
requires permission from both agencies, one denial, in any order, vetoes the
Proposed Payment. Here, it was the FDIC’s veto that caused BBX’s injury.
Next, plaintiff argues that the FRB’s substantive decision, as opposed to the
timing of that decision, injured it. We disagree.
As an initial matter, the FRB approved 12 months of salary, the maximum
available, under the change-in-control exception. That decision did not harm BBX.
As to the regulator’s-concurrence exception, the FRB explicitly took no action
because the FDIC had already prohibited any payment under that exception.
Because golden parachute payment approval under that exception requires two
“yeses” from the governing agencies, even if the FRB had approved payments in
excess of 12 months’ salary, no payment could be made. So again, it was the FDIC’s
decision to prohibit any payment in excess of 12 months’ salary, and not the FRB’s
non-decision, that harmed BBX.
Facing the fact that the FRB’s non-decision did not harm it, BBX asserts that
it was harmed by the FRB’s decision to “rubberstamp” the FDIC’s decision. To
begin, that argument is factually incorrect because, as to the regulator’s-concurrence
exception, the FRB neither approved nor rejected the FDIC’s decision. So it didn’t
rubberstamp anything.
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Pointing to Strickland v. Alexander, 772 F.3d 876, 885-86 (11th Cir. 2014),
BBX argues that even the FRB’s performance of a ministerial task supports Article
III standing. But there, we did not hold that the performance of a ministerial task
alone could support standing. Rather, we held that when an injury traceable to a
defendant exists, the ministerial nature of the action taken—i.e., the causal
connection—will not somehow void the injury or causation and thereby defeat
standing. See Alexander, 772 F.3d at 885-86.
BBX’s reliance on Loggerhead Turtle is similarly misplaced. As the district
court explained, “the critical factual difference[] between this case and Loggerhead
Turtle” is that the Loggerhead Turtle defendant had “absolute authority to issue
environmental ordinances that would . . . prevent plaintiffs’ injuries. That is not so
here, where the FRB has no authority whatsoever to control the FDIC—an
independent agency.”
Finally, BBX argues that it was harmed by the FRB’s determination that BBT
must seek approval before reimbursing BBX. True, the FRB’s decision letter stated,
“BB&T must request approval under 12 C.F.R. part 359 prior to making
reimbursements for the golden parachute payments.” But that wasn’t an adverse
decision; it was a statement of the law, as interpreted by the FDIC. The FDIC had
already determined that the payments qualified as golden parachute payments, and
the FRB had no authority to override the interpretation by an independent agency.
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Moreover, in order to expedite approval of the SPA, BBX and BBT contractually
agreed that the Proposed Payments would not be made unless both the FRB and the
FDIC determined the payments were not subject to the golden parachute provisions.
As the FDIC has already rendered an unfavorable determination on that point, BBX
can hardly complain that the FRB somehow injured it by stating that BBT must seek
approval to reimburse BBX—that’s exactly what BBT and BBX agreed to. 7
In sum, because BBX has not shown any injury it has sustained is fairly
traceable to an FRB action or inaction, BBX does not have standing to sue the FRB.
III.
Next, we turn to BBX’s argument that the district court erred by granting
summary judgment in favor of the FDIC. BBX makes two overarching arguments
in support of its primary APA claims. First, BBX asserts that the FDIC decision to
classify the Proposed Payments as golden parachute payments was arbitrary and
capricious. Second, BBX contends that even if that decision was not arbitrary and
capricious, the FDIC’s denial of any payments in excess of 12 months’ salary for
each executive was itself arbitrary and capricious. Finally, BBX argues that the
FDIC’s requirement that BBT obtain approval before reimbursing BBX was
arbitrary and capricious and violated the Due Process Clause.
7
Because our standard of review is de novo and we conclude that BBX has not established
standing to sue FRB, we need not address BBX’s other argument that the district court erred by
applying a proximate-cause standard.
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We review a grant of summary judgment de novo. Preserve Endangered
Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246
(11th Cir. 1996). Summary judgment is proper if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of demonstrating the
absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over such a fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
Federal courts review challenges to agency decisions under the standard set
forth by the APA. See 5 U.S.C. § 706; see also Fund for Animals, Inc. v. Rice, 85
F.3d 535, 541 (11th Cir. 1996). The APA provides, in relevant part, that a court
shall “hold unlawful and set aside agency action, findings, and conclusions” that are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2). “The arbitrary and capricious standard is exceedingly
deferential.” Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257,
1264 (11th Cir. 2009) (internal quotation marks omitted). So long as the agency’s
conclusions are rational, we will not set them aside. Id. That deference is enhanced
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when the agency is making decisions within its area of special expertise, as opposed
to simple findings of fact. Id. Nevertheless, we may find an agency action
arbitrary and capricious where the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.
Id. (quoting Alabama–Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254
(11th Cir. 2007)).
Relatedly, “[w]hen Congress has explicitly left a gap for an agency to fill,
there is an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation, and any ensuing regulation is binding in the
courts unless procedurally defective, arbitrary or capricious in substance, or
manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227
(2001) (internal citation and quotation marks omitted). And “[a]n agency's
interpretation of its own regulations is controlling unless plainly erroneous or
inconsistent with the regulation.” Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th
Cir. 2006) (internal quotation marks omitted). But when a regulation merely parrots
the language of the authorizing statute, the question for the courts is the meaning of
the statute. See Gonzales v. Oregon, 546 U.S. 243, 257 (2006).
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A.
BBX first contends that the golden parachute statute does not cover the
payments at issue here. Specifically, BBX argues that the FDIC has (1) erroneously
decided to apply the golden parachute provisions in perpetuity to any institution ever
classified as “troubled” and (2) erroneously concluded that the SPA fell within the
plain language of the statutory regime. Those arguments fail for essentially the same
reason: the golden parachute provisions focus on qualifying payments, not on
qualifying institutions.
Chevron requires us to first look at the plain meaning of the statute. 8 Chevron
U.S.A. Inc. v. NRDC Inc., 467 U.S. 837, 842-43 (1984). If it is unambiguous and
does not lead to absurd results, then the analysis ends there. Packard v. Comm'r,
746 F.3d 1219, 1222 (11th Cir. 2014); Silva-Hernandez v. U.S. Bureau of Citizenship
& Immigration Servs., 701 F.3d 356, 363 (11th Cir. 2012) (“This Court’s one
recognized exception to the plain meaning rule is absurdity of results.”). “In
determining whether a statute is plain or ambiguous, we consider the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole.” In re BFW Liquidation, LLC, 899 F.3d 1178, 1188 (11th Cir.
2018) (internal quotation marks omitted). A statute is ambiguous “if it is susceptible
8
BBX also argues that we should revisit Chevron. We are, of course, unable to do so.
Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (“[I]t is th[e] [Supreme] Court's prerogative alone to
overrule one of its precedents.”).
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to more than one reasonable interpretation.” Id. Only if we determine the statute is
ambiguous do we reach the second step of Chevron, which requires us to defer to
the agency’s construction of a statute it administers if that construction is
permissible. Chevron, 467 U.S. at 842-43.
Section 1828(k) authorizes the FDIC to prohibit or limit any golden parachute
payment or any agreement to make such a payment: “The term ‘golden parachute
payment’ means any payment (or any agreement to make any payment) . . . that (i)
is contingent on the termination of such party’s affiliation with the institution . . .
and . . . (ii) is received on or after the date the institution’s Federal banking agency
determines that the . . . institution is in a troubled condition[.]” 12 U.S.C. §
1828(k)(4)(A) (emphasis added). The SPA is exactly that: an agreement to make
severance payments by an institution to its executives after the institution was
determined to be (and remained) in a troubled condition. By its plain language then,
the golden parachute statute covers the SPA and the Proposed Payments included
therein.
Rather than addressing the plain language of the statute, BBX argues that
Congress did not intend for the statute to be applied to well-performing executives
of institutions that have recovered from their troubled state. We are unconvinced by
that argument for a host of reasons. First, whatever supposed intent BBX gleans
from its reading of the statute, we may not ignore the plain meaning of the statutory
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text unless it leads to absurd results, which it does not. Second, the Bank was still a
“troubled” institution at the time the SPA was executed, so it had not “recovered.”
Third, despite BBX’s assertion to the contrary, the FDIC does not apply the golden
parachute provisions to once-troubled institutions in perpetuity. 9 Rather, it applies
the provisions to qualifying payments and agreements to pay in perpetuity. So if the
Bank was in fact no longer “troubled,” then it could have executed new severance
agreements that would not have been subject to the golden parachute restrictions.
The FDIC’s focus on payments and agreements to make payments that qualify
as golden parachutes is reasonable and makes sense. A contrary reading would allow
otherwise prohibited golden parachute payments to be made through simple
corporate restructuring or by delaying the payments until after the institution is either
no longer covered (as is the case here) or until after the institution is no longer
“troubled.” See, e.g., Council for Urological Ints. v. Burwell, 790 F.3d 212, 225
(D.C. Cir. 2015) (upholding as reasonable statutory interpretation that prevented
evasion); NRA v. Brady, 914 F.2d 475, 481 (4th Cir. 1990) (same).
BBX’s final two argument can be dispatched with alacrity. First, BBX argues
that the proposed payments do not qualify as golden parachute payments because
9
BBX complains that the FDIC’s final decisions relied on the FDIC’s preamble to its
golden parachute regulations that states, “If th[e golden parachute] payment is prohibited under
the prescribed circumstances, it is prohibited forever.” But that language is perfectly consistent
with § 1828(k).
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BBX was under no obligation to pay severance unless and until the sale of the Bank
to BBT closed, at which point BBX would completely exit banking, making it no
longer subject to FDIC regulations. Cf. 12 U.S.C. § 1828(k)(4)(A) (defining golden
parachute payment as including any payment or agreement to pay “pursuant to an
obligation” that is contingent on the IAP’s termination). But an obligation does not
vanish merely because a triggering precondition has not yet occurred. The SPA was
an agreement that obligated BBX to make certain qualifying payments once certain
conditions were met. That puts it within the golden parachute framework’s purview.
Second, BBX argues that the Proposed Payments to McClung and DeVaux
are not golden parachute payments because those two executives had executed
severance contracts in 1999 and 2001, when the Bank was not in a troubled
condition. That argument fails because, pursuant to the SPA, Bancorp expressly
assumed the Bank’s obligation to pay those executives the amounts contemplated by
the SPA. The earlier agreements are thus irrelevant because the Proposed Payments
to McClung and DeVaux are being made under the SPA, not those earlier
agreements.
Moreover, though the prior severance agreements did not qualify as golden
parachutes, if the two executives were terminated in 2011 (without the SPA
superseding the earlier agreements), the golden parachute provisions would
nevertheless apply to payments due under those agreements. See 12 U.S.C. §
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1828(k)(4)(A) (defining golden parachute payment to include any payment
“received on or after the date on which . . . the institution” is determined to be
“troubled”). Thus, BBX would have us conclude that though payment could not be
made under the prior severance agreements, those same agreements somehow
exempt the SPA’s Proposed Payments to McClung and DeVaux. We cannot agree
with that illogical reasoning.
Because the Proposed Payments fall directly under the plain language of the
statute, we cannot conclude that the FDIC’s decision to apply those provisions was
arbitrary or capricious.
B.
BBX next complains that the FDIC’s decision to deny any payment to the five
executives in excess of 12 months’ salary under the regulator’s-concurrence
exception was arbitrary and capricious. BBX argues that the FDIC’s decision was
arbitrary and capricious because the FDIC failed to consider evidence that the five
executives committed no fraudulent acts or omissions or insider abuses, were not
otherwise responsible for the troubled condition of the Bank, and to the contrary,
steered the bank through the Great Recession to the benefit of depositors.
BBX’s argument gets the regulatory framework wrong. Ordinarily, payments
that qualify as golden parachute payments are prohibited unless excepted and
deemed permissible. 12 C.F.R. § 359.2. Under § 359.4(a)(4), BBX has the initial
22
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burden of showing the executives’ good (or not bad) behavior, which includes
certifying that BBX is not aware of a reasonable basis to believe the executives
committed any fraudulent act, violated any banking law, or were responsible for the
institution’s troubled condition. Only after BBX has satisfactorily made that
showing does the FDIC move on to the question of whether other considerations,
including the discretionary factors set forth in § 359.4(b), weigh in favor of allowing
golden parachute payments to be made. That is, the executives’ good behavior opens
the door to a proposed payment. And once the door had been opened, the statute
and the regulations do not require the FDIC to address the executives’ purported
good behavior when determining whether to permit the Proposed Payments. That
aside, BBX’s argument fails for the additional reason that the FDIC did explicitly
consider the executives’ limited responsibility for the Bank’s troubled condition.
We also conclude that the FDIC’s analysis of the discretionary factors set forth
in § 359.4(b) supports its decision.10 First, the FDIC found that each of the
executives had a “high degree of ‘managerial or fiduciary responsibility.’” As each
executive was a chief officer of some type, that conclusion can hardly be deemed
10
The FDIC’s decision also relied on its internal guidance that advised that the regulator’s-
concurrence exception should not be viewed as permitting golden parachute payments in excess
of one year’s salary. Though BBX mounts several arguments against that guidance, we need not
address them because we find that the FDIC’s analysis of the § 359.4(b) discretionary factors
independently supports its decision. We do, however, reject, as factually inaccurate, BBX’s
argument that the agency based its decision solely on its internal guidance.
23
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arbitrary or capricious. Second, the FDIC considered the length of each executive’s
tenure at the company compared to that executive’s compensation during that time,
finding each of the executives “well compensated during his [or her] tenure.” BBX
does not challenge that conclusion, and we have no basis to doubt it.
As to the third factor, which calls for a more wide-ranging inquiry, the FDIC
“fully considered that the Bank’s troubled condition arose in the context of a
protracted national economic downturn, which hit Florida markets particularly
hard.” It also accounted for the fact that the Bank was acquired in an unassisted
transaction without loss to the FDIC or taxpayer funds. “Nonetheless, the FDIC
f[ound] that approval” of the full Proposed Payment would be “contrary to the
intent” of § 1828(k) because “executives at the helm of” troubled institutions “should
not be awarded windfall payments.” Congress’s primary focus, in enacting the
golden parachute provision, was to prevent executives from “vot[ing] themselves
generous bonuses at the expense of the institution or company . . . .” 136 Cong. Rec.
E3684-02, E3687, 1990 WL 206971 (Oct. 27, 1990); H.R. Rep. 101-681(I), 1990
U.S.C.C.A.N. 6472, 6588 (Sept. 5, 1990) (same).11 That’s the position the
executives were in here.
11
For the same reason, we are unpersuaded by BBX’s argument that because the executives
had substantial managerial and fiduciary responsibilities, they should be awarded the full Proposed
Payments.
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Nor is there any indication that the FDIC relied on factors that Congress did
not intend for it to consider. And we find no merit in BBX’s remaining contentions.
In short, the FDIC’s decision was not arbitrary and capricious because the
FDIC did exactly what it was supposed to do. It considered the discretionary factors,
it considered additional factors that weighed in BBX’s favor, and it neither refused
to consider relevant factors nor relied on irrelevant factors. The explanations the
FDIC offered for denying additional payments were reasonable and did not run
counter to the evidence. We therefore affirm.
C.
Finally, BBX argues that the FDIC’s requirement that BBT seek approval
before reimbursing BBX was arbitrary and capricious because it did not offer any
reasoned basis for the requirement. But in its April 2013 correspondence, the FDIC
did explain why it considered BBT’s reimbursement payments to be “indirect”
golden parachute payments. The FDIC’s final determination letters incorporated
that 2013 correspondence by reference. The decision was therefore not arbitrary or
capricious for failure to provide a reasoned analysis and, in fact, we find the FDIC’s
analysis reasonable.
Nor did the decision violate due process. Other than claiming that it has a
property interest in the reimbursements—which it no doubt does—BBX does not
explain how its due-process rights were violated by the FDIC’s decision requiring
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BBT to gain approval before reimbursing BBX. Due process requires only that
parties whose liberty or property interests are affected by governmental
adjudications be given “notice and an opportunity to be heard.” See United States
v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993). Though BBT’s
reimbursement application and BBX’s proposed payment application may have
some overlap, BBX cites no authority suggesting that the Due Process Clause
prohibits any duplication of labor.
IV.
For the reasons we have described, we affirm the district court’s dismissal of
the claims against the FRB for lack of standing and affirm the grant of summary
judgment in favor of the FDIC. We also CANCEL ORAL ARGUMENT in this
case.
AFFIRMED.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13326
Non-Argument Calendar
________________________
D.C. Docket No. 0:09-cv-60303-WJZ
JEFNEY PHILISTIN,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 7, 2020)
Before LUCK, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jefney Philistin, a pro se Florida state prisoner, appeals from the denial of his
post-judgment motions challenging the adjudication of his 28 U.S.C. § 2254 petition,
claiming that the district court mistakenly failed to hold an evidentiary hearing to
Case: 19-13326 Date Filed: 04/07/2020 Page: 2 of 5
examine the state court’s failure to have Philistin’s competency examined by
multiple experts. This is not the first time Philistin has challenged the state court
competency decision in a § 2254 petition. In 2009, Philistin filed his first § 2254
petition, arguing that the trial court erred by not evaluating his competency to stand
trial. In 2016, Philistin filed a series of motions to amend, supplement, or reconsider
his original § 2254 petition, which the district court denied as untimely and
inappropriate. On appeal of that order, we construed Philistin’s motions collectively
as an application to file a second or successive habeas petition and affirmed the
district court, concluding that the district court lacked subject matter jurisdiction
over Philistin’s 2016 application. In 2018, Philistin again filed numerous motions
to amend, supplement, or reconsider his original § 2254 petition, and the district
court again denied this round of motions as being untimely and inappropriate. In the
instant appeal of that order, Philistin argues that the district court fundamentally
erred and violated his Due Process rights by failing to hold an evidentiary hearing to
complete the evidentiary record concerning the state court’s competency evaluation,
that there was substantial evidence that he was incompetent, and that the magistrate
judge fraudulently falsified the record by stating that there was no record evidence
that he was incompetent to stand trial. After careful review, we affirm.
We review de novo the district court’s subject matter jurisdiction. Zakrzewski
v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). We also review de novo
2
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whether a petition for a writ of habeas corpus is successive, and, thus, whether the
district court lacked jurisdiction to consider it without prior authorization. Patterson
v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017).
A state prisoner who has previously filed a § 2254 petition in federal court
must obtain authorization from this Court before filing a “second or successive”
collateral attack on the same conviction. 28 U.S.C. § 2244(b)(3)(A). Without
authorization, the district court lacks jurisdiction to consider a successive § 2254
petition and must dismiss the claims presented therein. Id. § 2244(b)(4); Tompkins
v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1259 (11th Cir. 2009). A § 2254 petition is
“second or successive” if the petitioner filed a prior § 2254 petition attacking the
same judgment that was denied or dismissed with prejudice. Guenther v. Holt, 173
F.3d 1328, 1329 (11th Cir. 1999). We look beyond the label of a prisoner’s filing to
determine if he is, in substance, seeking relief under § 2254. See Franqui v. Florida,
638 F.3d 1368, 1374-75 (11th Cir. 2011) (construing a state prisoner’s Rule 60(b)
motion as a successive habeas petition). A claim presented in a second or successive
habeas corpus application under § 2254 that was presented in a prior application
shall be dismissed. 28 U.S.C. § 2244(b)(1).
When a petitioner’s motion does not raise a claim based on the merits of his
§ 2254 petition, however, that motion should not be treated as a successive habeas
petition. Gonzalez v. Crosby, 545 U.S. 524, 533 (2005) (holding that a Rule 60(b)
3
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motion challenging a district court’s application of the statute of limitations was not
successive); see also Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir.
2007) (holding that a Rule 60(b) motion alleging only fraud upon the court was not
successive under Gonzalez). Nevertheless, a petitioner’s lack of diligence in raising
a procedural error in a Rule 60(b) motion weighs negatively against reversal. See
Gonzalez, 545 U.S. at 537-38. A Rule 60(b) motion must be brought “within a
reasonable time,” or, if the motion is based on Rule 60(b)(1)-(3), “no more than a
year after the entry of the judgment.” Fed. R. Civ. P. 60(c).
In this appeal, Philistin appears to argue, once again, the merits of his original
2009 habeas petition by challenging the district court’s failure to expand the state
court record concerning his competency. That is, by asking for an evidentiary
hearing on the district court’s reading of the state court record, Philistin seeks to
force the district court to reexamine its previous decision that the state court did not
err in its determination that he was competent to stand trial. Therefore, Philistin
again has raised the merits of the claim presented in his original habeas petition by
asking for an evidentiary hearing, and the district court lacked subject matter
jurisdiction to consider that claim. See 28 U.S.C. § 2244(b)(3)(A) (providing that a
petitioner must receive this Court’s permission to file a second or successive habeas
petition); Guenther, 173 F.3d at 1329.
4
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Moreover, even if we were to broadly construe Philistin’s motions as a
collective Rule 60(b) motion to reopen that does not challenge the merits of his §
2254 petition, his motions are untimely. See Fed. R. Civ. P. 60(c) (noting that Rule
60(b) motions must be brought within a reasonable time). It has been eight years
since the district court denied Philistin habeas relief. An eight-year delay in
challenging the district court’s failure to hold an evidentiary hearing is not “a
reasonable time.” See id. Accordingly, we affirm.
AFFIRMED.
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2019 Decided April 7, 2020
No. 18-1172
NATURAL RESOURCES DEFENSE COUNCIL,
PETITIONER
v.
ANDREW WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION
AGENCY,
RESPONDENTS
ARKEMA INC. AND MEXICHEM FLUOR, INC.,
INTERVENORS
Consolidated with 18-1174
On Petitions for Review of an Action of the
United States Environmental Protection Agency
Peter J. DeMarco argued the cause for petitioner Natural
Resources Defense Council. With him on the briefs were
Melissa J. Lynch and David D. Doniger.
2
Joshua M. Tallent, Assistant Attorney General, Office of the
Attorney General for the State of New York, argued the cause
for State Petitioners. With him on the briefs were
Letitia James, Attorney General, Barbara D. Underwood,
Solicitor General, Steven C. Wu, Deputy Solicitor General,
Michael J. Myers, Senior Counsel, and Morgan A. Costello,
Chief, Office of the Attorney General for the State of New
York; Kwame Raoul, Attorney General, and Daniel I.
Rottenberg, Assistant Attorney General, Office of the Attorney
General for the State of Illinois; Xavier Becerra, Attorney
General, David A. Zonana, Supervising Deputy Attorney
General, and Megan K. Hey, Deputy Attorney General, Office
of the Attorney General for the State of California; Maura
Healey, Attorney General, Christophe G. Courchesne,
Assistant Attorney General, and Megan M. Herzog, Special
Assistant Attorney General, Office of the Attorney General for
the Commonwealth of Massachusetts; Ellen F. Rosenblum,
Attorney General, and Paul A. Garrahan, Attorney-in-Charge,
Office of the Attorney General for the State of Oregon;
Kathleen Jennings, Attorney General, and Valerie M. Edge,
Deputy Attorney General, Office of the Attorney General for
the State of Delaware; Keith Ellison, Attorney General, and
Max H. Kieley, Assistant Attorney General, Office of the
Attorney General for the State of Minnesota; Robert A. Reiley,
Assistant Counsel, Commonwealth of Pennsylvania
Department of Environmental Protection; Karl A. Racine,
Attorney General, and Loren L. AliKhan, Solicitor General,
Office of the Attorney General for the District of Columbia;
Gurbir S. Grewal, Attorney General, and Lisa J. Morelli,
Deputy Attorney General, Office of the Attorney General for
the State of New Jersey; Thomas J. Donovan, Jr., Attorney
General, and Nicholas F. Persampieri, Assistant Attorney
General, Office of the Attorney General for the State of
Vermont; Robert W. Ferguson, Attorney General, and
3
Katharine G. Shirey, Assistant Attorney General, Office of the
Attorney General for the State of Washington.
Benjamin Carlisle, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, Jonathan
Brightbill, Deputy Assistant Attorney General, and Jan M.
Tierney and Diane E. McConkey, Attorneys, U.S.
Environmental Protection Agency.
Keith Bradley argued the cause for intervenors. With him
on the brief were W. Caffey Norman, Dan Himmelfarb, John S.
Hahn, Roger W. Patrick, and William J. Hamel.
Before: SRINIVASAN , Chief Judge, and TATEL and RAO,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN .
Dissenting opinion filed by Circuit Judge RAO.
SRINIVASAN, Chief Judge: Thirty years ago, Congress
amended the Clean Air Act to require that users of ozone-
depleting substances transition to use of less harmful
substitutes. Many users replaced ozone-depleting substances
with hydrofluorocarbons (HFCs). Over time, though, scientists
came to understand that HFCs, while not ozone-depleting
substances, are powerful greenhouse gases that contribute to
climate change.
In 2015, EPA issued a regulation disallowing the use of
HFCs as a substitute for ozone-depleting substances. That rule
was challenged in our court in Mexichem Fluor, Inc. v. EPA,
866 F.3d 451 (D.C. Cir. 2017). We determined that EPA could
validly forbid current users of ozone-depleting substances from
4
switching to HFCs. But we also concluded that EPA lacked
authority to force users who had already switched to HFCs to
make a second switch to a different substitute. We thus vacated
the rule in part and remanded to the agency.
On remand, even though we had sustained EPA’s bar
against use of HFCs with regard to entities who were still using
ozone-depleting substances, the agency decided to implement
our decision by suspending the rule’s listing of HFCs as unsafe
substitutes in its entirety, meaning that even current users of
ozone-depleting substances can now shift to HFCs. And EPA
did so without going through notice-and-comment procedures.
The Natural Resources Defense Council and a group of
states have now filed petitions for review in our court. They
argue among other things that EPA’s rule on remand
improperly amended the agency’s earlier rule without adhering
to notice-and-comment procedures. We agree, and we
therefore grant the petitions for review and vacate the
challenged rule.
I.
In the 1970s, scientists realized that some chemicals used
by humans deplete the layer of ozone gas above the Earth’s
surface that protects humans from ultraviolet radiation’s
harmful effects. See Nat. Res. Def. Council v. EPA, 464 F.3d
1, 3 (D.C. Cir. 2006). Based on those concerns, the United
States and other countries, in the late 1980s, developed the
Montreal Protocol on Substances that Deplete the Ozone
Layer, Sept. 16, 1987, S. Treaty Doc. No. 100–10, 1522
U.N.T.S. 29. The Protocol is an international agreement
requiring signatories to regulate ozone-depleting substances.
5
In 1990, Congress implemented the United States’
obligations under that agreement by adding to the Clean Air
Act a new Title VI, 42 U.S.C. § 7671 et seq. Title VI requires
that, “[t]o the maximum extent practicable,” ozone-depleting
substances “be replaced by chemicals, product substitutes, or
alternative manufacturing processes that reduce overall risks to
human health and the environment.” Id. § 7671k(a). And to
help guard against the replacement of ozone-depleting
substances with alternatives that are themselves harmful, the
statute directs EPA to promulgate rules making it unlawful to
replace ozone-depleting substances with substances that “may
present adverse effects to human health or the environment.”
Id. § 7671k(c). To that end, EPA must maintain lists of
“prohibited” and “safe” substitutes for specific uses. Id.
EPA has promulgated a number of regulations approving
or prohibiting various substitutes for certain end-uses. See,
e.g., Protection of Stratospheric Ozone: Listing of Substitutes
for Ozone-Depleting Substances, 68 Fed. Reg. 4004 (Jan. 27,
2003); Protection of Stratospheric Ozone, 59 Fed. Reg. 13,044
(Mar. 18, 1994). One group of substitutes addressed in many
of those regulations is hydrofluorocarbons (HFCs), a family of
“substances that contain hydrogen, fluorine, and carbon.”
Mexichem, 866 F.3d at 455. In 1994, EPA “concluded that
certain HFCs were safe substitutes for ozone-depleting
substances when used in aerosols, motor vehicle air
conditioners, commercial refrigerators, and foams, among
other things.” Id. Over the following decade, EPA “added
HFCs to the list of safe substitutes for a number of other
products.” Id. Throughout the 1990s and 2000s, as businesses
transitioned away from ozone-depleting substances, they often
employed HFCs as a substitute. See id.
But over time, EPA became increasingly concerned about
HFCs. Although HFCs are not ozone-depleting substances,
6
they are powerful greenhouse gases that, in EPA’s view, “may
contribute to climate change, increasing the incidence of
mortality and the likelihood of extreme weather events such as
floods and hurricanes.” Id. In 2015, after going through
notice-and-comment procedures, EPA promulgated a rule
moving some HFCs from the safe substitutes list to the
prohibited substitutes list. See Protection of Stratospheric
Ozone: Change of Listing Status for Certain Substitutes Under
the Significant New Alternatives Policy Program, 80 Fed. Reg.
42,870 (July 20, 2015). The 2015 Rule prohibited current users
of ozone-depleting substances from replacing those substances
with HFCs. But the Rule also went further, prohibiting the
continued use of certain HFCs by users who had already
switched from ozone-depleting substances to HFCs. See
Mexichem, 866 F.3d at 456.
The latter measure proved too ambitious. In Mexichem,
we determined that EPA’s attempt to regulate users who had
already switched from ozone-depleting substances to HFCs
exceeded the agency’s statutory authority. Title VI, we
concluded, only “makes it unlawful to ‘replace’ an ozone-
depleting substance that is covered . . . with a substitute
substance that is on the list of prohibited substitutes.” Id. at
458 (quoting 42 U.S.C. § 7671k(c)). And businesses “‘replace’
an ozone-depleting substance when they transition to making
[or using] the same product with a substitute substance. After
that transition has occurred, the replacement has been
effectuated,” and there is no longer an “ozone-depleting
substance to ‘replace.’” Id. at 459. And because HFCs are not
ozone-depleting substances, we concluded that once an entity
replaces ozone-depleting substances with HFCs, its HFC use is
no longer regulated by Title VI. In that situation, we held, EPA
lacks authority to require a second substitution in place of
HFCs. See id.
7
At the same time, with regard to EPA’s decision to move
HFCs to the list of prohibited substitutes on a going-forward
basis, we reaffirmed that the agency may “move a substitute
from the list of safe substitutes to the list of prohibited
substitutes” and “may prohibit a manufacturer [or other
regulated entity] from replacing an ozone-depleting substance
that is covered under Title VI with a prohibited substitute.” Id.
at 457. We also rejected the petitioners’ myriad arbitrary-and-
capricious challenges, holding that “EPA reasonably removed
HFCs from the list of safe substitutes.” Id. at 462–63. For
those reasons, we granted the petitions for review of the 2015
Rule “in part,” by vacating the 2015 Rule only “to the extent it
requires manufacturers to replace HFCs with a substitute
substance.” Id. at 464.
Eight months later, in April 2018, EPA published in the
Federal Register a rule explaining its “response to the court’s
decision.” See Protection of Stratospheric Ozone: Notification
of Guidance and a Stakeholder Meeting Concerning the
Significant New Alternatives Policy (SNAP) Program, 83 Fed.
Reg. 18,431, 18,432 (Apr. 27, 2018). EPA issued the 2018
Rule without going through notice-and-comment procedures.
Although EPA recognized that Mexichem effected only a
“partial vacatur of the 2015 Rule,” the agency determined that
it would “not apply the HFC use restrictions or unacceptability
listings in the 2015 Rule for any purpose prior to completion”
of an anticipated future rulemaking on the subject. Id. at
18,433 (italics omitted). EPA’s decision to stop applying the
HFC restrictions in their entirety, rather than only with respect
to users who had already switched to HFCs (as Mexichem had
contemplated), rested primarily on two bases.
First, EPA explained that the “regulatory text promulgated
in the 2015 Rule” had consisted of “individual listing
decisions” that prohibited or restricted the use of a given HFC
8
in a given end-use, without regard to the distinction drawn in
Mexichem between users who had already switched to HFCs
and users still using ozone-depleting substances. Id. at 18,434.
“[F]or each listing decision,” EPA reasoned, “there is no
language that could be understood as being removed or struck
out by the court so that some portion of the listing would
remain in effect pending EPA’s action on remand.” Id.
Second, EPA determined that “attempting to draw the
distinctions made by the court would present practical
difficulties for implementation.” Id. For example, the agency
posited, there could be “complex situations” in which a
regulated entity uses ozone-depleting substances in some
facilities and HFCs in other facilities, such that it would be
unclear whether the entity had already “replaced” ozone-
depleting substances with HFCs. Id. at 18,435.
In sum, EPA “recognize[d] that the court” in Mexichem
had “vacated the 2015 Rule ‘to the extent that’ it requires
manufacturers to replace HFCs.” Id. But given “its expertise
in administering the [relevant] regulations, and its
understanding of the 2015 Rule, EPA conclude[d] that the
vacatur [could not] be implemented” in the way contemplated
by our decision in Mexichem. Id. EPA instead decided to
“treat[]” the vacatur “as striking the HFC listing changes in the
2015 Rule in their entirety.” Id. And the agency thus
determined that it “will not apply the HFC use restrictions or
unacceptability listings in the 2015 Rule for any purpose.” Id.
EPA also announced that it was “prepar[ing] to undertake
notice-and-comment rulemaking” to address various issues
related to Mexichem, HFCs, and the safe substitutes program
more generally. Id. at 18,435–36.
Following publication of that 2018 Rule, both the Natural
Resources Defense Council and a group of states filed petitions
for review of EPA’s action in our court, which we consolidated.
9
Petitioners contend that the 2018 Rule is invalid, both because
EPA improperly issued it without adhering to notice-and-
comment procedures and because it is substantively arbitrary
and capricious. In response, two intervenors (HFC
manufacturers Arkema Inc. and Mexichem Fluor, Inc.) argue
that we lack jurisdiction over the petitions for review because
petitioners fail to demonstrate their standing to seek relief. In
addition, the intervenors and EPA contend that we lack
jurisdiction because the 2018 Rule is not final agency action,
and they also defend the Rule on the merits.
II.
A.
We begin by considering petitioners’ standing. Because
Article III of the Constitution limits us to “resolving cases and
controversies, a showing of standing is an essential and
unchanging predicate to any exercise of our jurisdiction.” Nat.
Res. Def. Council v. EPA, 755 F.3d 1010, 1016 (D.C. Cir.
2014) (internal quotation marks omitted). To establish
standing, a party must demonstrate: “(1) an injury in fact that
is concrete and particularized as well as actual or imminent; (2)
a causal connection between the injury and the challenged
conduct; and (3) a likelihood, as opposed to mere speculation,
that the injury will be redressed by a favorable decision.” Id.
(internal quotation marks omitted). In addition, when a
representational organization like NRDC sues on behalf of its
members, it must also show that (1) “its members would
otherwise have standing to sue in their own right”; (2) “the
interests it seeks to protect are germane to the organization’s
purpose”; and (3) “neither the claim asserted nor the relief
requested requires the participation of individual members.”
Id. (citation omitted).
10
Here, NRDC and at least one of the state petitioners have
satisfied their burden to show an injury both caused by the 2018
Rule and likely to be redressed by a favorable decision. To link
the 2018 Rule to an injury-in-fact, petitioners begin with the
contention that the 2018 Rule, by vacating the entirety of the
2015 Rule’s HFC listings, allows entities to switch from ozone-
depleting substances to HFCs and thus will cause an increase
in HFC emissions. While EPA does not contest that premise,
intervenors do. They argue that the 2018 Rule will not cause
any such increase because it is our decision in Mexichem, as
opposed to the 2018 Rule, that “effectively undid the” 2015
Rule. See Intervenors Br. 27–28.
But, as is discussed below, petitioners’ core contention in
this case is that Mexichem only partially vacated the 2015 Rule,
and that the 2018 Rule then had an independent legal effect by
vacating the rest of the HFC listings in the 2015 Rule. And for
purposes of determining standing, we must assume that
petitioners will prevail on the merits of their argument. See
Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir.
2008). We thus assume that petitioners are correct that the
2018 Rule, and not Mexichem, completed the vacatur of the
2015 Rule’s HFC listings. And no party disputes petitioners’
contention that allowing additional entities to use HFCs will in
fact lead to additional use of HFCs.
Once we accept the premise that the 2018 Rule will lead
to an increase in HFC emissions, the rest of the standing
analysis falls readily into place. As the parties agree, the
release of HFCs contributes to climate change. And NRDC has
submitted a declaration from a member averring that he owns
coastal property in New Jersey that is especially vulnerable to
weather events caused or worsened by climate change, and
New York state similarly demonstrated its proprietary interest
in coastal lands threatened by climate change. See NRDC Br.
11
S.A. 13–19; States Br. 23–24; Snyder Decl. ¶ 30; cf.
Massachusetts v. EPA, 549 U.S. 497, 519 (2007). Petitioners
then have adequately linked the 2018 Rule to an injury-in-fact:
the 2018 Rule will lead to an increase in HFC emissions, which
will in turn lead to an increase in climate change, which will
threaten petitioners’ coastal property. And of course, a vacatur
of the 2018 Rule would redress that injury by restoring the
2015 Rule’s HFC listings as applied to those entities that
Mexichem found EPA could validly regulate, thereby reducing
HFC emissions.
It follows that both NRDC and New York have established
the injury, causation, and redressability requirements of
standing, and New York has shown its standing. (Because New
York has demonstrated its standing, we need not address the
standing of the other state petitioners. See Massachusetts, 549
U.S. at 518). As noted above, however, NRDC must clear two
additional hurdles to establish standing to bring its own
separate petition because it is suing in a representational
capacity: NRDC must show that its petition is germane to its
purpose and that the claims asserted or relief sought do not
require the involvement of its individual members.
NRDC satisfies both of those requirements. As NRDC
explains in its brief, it is an environmental organization that is
“committed to reducing emissions of greenhouse gases” and
that has long “worked on multiple fronts to reduce HFC
pollution.” NRDC Br. 15–16; cf. Nat. Res. Def. Council, 755
F.3d at 1016 (allowing NRDC to proceed in a representational
capacity in an environmental lawsuit). And NRDC neither
seeks any individualized relief nor brings claims dependent on
any individual member’s factual circumstances, which means
that no individual member’s participation is necessary to its
petition. We therefore find that NRDC, like New York, has
established its standing to proceed.
12
B.
We next consider whether the 2018 Rule amounts to final
agency action subject to judicial review. The Clean Air Act
provides for judicial review only of “final action,” 42 U.S.C.
§ 7607(b)(1), a limitation coterminous with the concept of
“final agency action” in the Administrative Procedure Act, 5
U.S.C. § 704. See Sierra Club v. EPA, 873 F.3d 946, 951 (D.C.
Cir. 2017). An action is “final if two independent conditions
are met: (1) the action ‘marks the consummation of the
agency’s decisionmaking process’ and is not ‘of a merely
tentative or interlocutory nature;’ and (2) it is an action ‘by
which rights or obligations have been determined, or from
which legal consequences will flow.’” Soundboard Ass’n v.
Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir. 2018)
(alteration omitted) (quoting Bennett v. Spear, 520 U.S. 154,
177–78 (1997)). The 2018 Rule satisfies both of those criteria.
1.
The 2018 Rule represents the consummation of EPA’s
decisionmaking process. Neither EPA nor intervenors contend
otherwise, and for good reason.
The consummation prong of the finality inquiry requires
us to determine “whether an action is properly attributable to
the agency itself and represents the culmination of that
agency’s consideration of an issue,” or is, instead, “only the
ruling of a subordinate official, or tentative.” Id. (citation
omitted); see id. at 1269 (analyzing whether agency action is
“subject to further agency review” (citation omitted)). Here,
the 2018 Rule was issued under the authority of the
Administrator himself, was published in the Federal Register,
and was the culmination of EPA’s consideration of the issue of
how to treat the 2015 Rule’s HFC listings pending any further
13
formal rulemaking. The 2018 Rule thus is far removed from
the types of agency action—such as informal letters issued by
subordinate officials—that we have held do not amount to the
culmination of an agency’s decisionmaking process. See id. at
1267–68.
The 2018 Rule marks the culmination of EPA’s
decisionmaking for finality purposes notwithstanding the
agency’s characterization of the Rule as an interim resolution:
EPA has stated its intention to commence another rulemaking
that will address the use of HFCs as replacements for ozone-
depleting substances on a permanent basis, and the outcome of
such a process could displace the 2018 Rule going forward.
See 83 Fed. Reg. at 18,435–36. But even if the 2018 Rule were
to be displaced by another rule at some point, our precedents
make clear that an interim agency resolution counts as final
agency action despite the potential for a different permanent
decision, as long as the interim decision is not itself subject to
further consideration by the agency. In that event, the interim
resolution is the final word from the agency on what will
happen up to the time of any different permanent decision.
For example, in Clean Air Council v. Pruitt, 862 F.3d 1
(D.C. Cir. 2017) (per curiam), we held that a stay of a
regulation pending the resolution of a petition for
reconsideration of the regulation qualified as final action: “In
effect, the Administrator has granted a modification of the
mandatory [regulation] for the entire period of time that the
petition is pending. There is no indication that the
[Administrator] intends to reconsider this decision or to vacate
the grant of interim relief. Thus, the [Administrator’s] decision
represents the final agency position on this issue . . . .” Id. at 6
(citation omitted). Similarly, in International Union, United
Mine Workers of America v. Mine Safety & Health
Administration, 823 F.2d 608 (D.C. Cir. 1987), we held that we
14
had jurisdiction over a petition for review of the MHSA’s
decision to grant a mine operator interim relief from a safety
standard pending resolution of the operator’s petition for
permanent modification of the standard. In that case too, we
determined that the grant of relief was “final” notwithstanding
its interim nature because there was “no indication that the
Secretary intends to reconsider . . . or to vacate the grant of
interim relief.” Id. at 614–15.
Here, the 2018 Rule is even more final than were the
interim decisions in Clean Air Council and International
Union. In those cases, a proceeding that could result in an
alteration of the interim resolution—a petition for
reconsideration in Clean Air Council, and a petition for
permanent modification in International Union—had already
been commenced. Here, by contrast, EPA has indicated that it
intends to undertake a further rulemaking at some point but has
not formally initiated the process. And even if EPA in the
future were to do so and were to promulgate a new rule
addressing the treatment of HFCs under Title VI, the 2018 Rule
firmly establishes EPA’s current position that the 2015 Rule’s
HFC listings are unenforceable, and that position will continue
to govern unless and until the agency issues a new rule. That
counts as consummation of agency decisionmaking for finality
purposes.
A contrary conclusion would be incompatible with our
usual practice when an agency informs us that it wishes to
reconsider a rule that is the subject of a pending petition for
review before our court. In such a circumstance, we face a
choice between remanding to the agency or continuing with our
review. See Utility Solid Waste Activities Grp. v. EPA, 901
F.3d 414, 436–38 (D.C. Cir. 2018). But if the prospect of an
agency’s reconsideration of a rule sufficed to render the rule
non-final, then when an agency tells us it wants to reconsider a
15
rule that is before us on review, we could neither remand to the
agency nor continue our review. Instead, we would be
compelled to dismiss for lack of jurisdiction, which we have
never done (or thought it necessary to do) in that situation.
Additionally, if an agency’s indication of an intent to
reconsider an interim (or other) action sufficed to render the
action non-final, agencies could evade judicial review of their
actions even if they impose substantial obligations on regulated
parties over a considerable period of time. Consider, in that
regard, a recent case in our court, Exhaustless v. FAA, 931 F.3d
1209 (2019). That case involved the Federal Aviation
Administration’s regulation of take-off and landing slots at
LaGuardia and John F. Kennedy Airports. Id. at 1210. In 2006
(for LaGuardia) and 2008 (for Kennedy), the FAA published
“interim” regulations governing distribution of those slots
ostensibly for a limited time, and professed an intent to finalize
a permanent rule in the near future. Id. at 1210–12. More than
a decade later, however, those “interim” regulations have been
extended multiple times and remain in effect. Id. It would
make little sense to deem such “interim” rules non-final—and
hence non-challengeable—merely because of the prospect that
they could be displaced at some point by further agency action.
Here, for instance, assuming that EPA has a good-faith
intent to engage in a rulemaking that will settle the treatment
of HFCs on an ostensibly permanent basis, it is wholly
uncertain what the resulting regime will look like or when it
will be in place. It could take the agency considerable time to
gather the necessary input and settle on a solution. And for all
we know, at the end of that process, EPA might even come to
the conclusion that the 2018 Rule already embodies the proper
resolution of the issue (or it could reach any of an unknown
number of other potential solutions). Regardless, until then,
EPA will continue to apply the 2018 Rule. That Rule marks
16
the consummation of the agency’s decisionmaking about the
governing framework unless and until it is superseded.
Finally, any agency action is always subject to
displacement by a future rulemaking. If the mere possibility of
displacement rendered a governing agency rule non-final for
purposes of judicial review, no rule would ever count as final.
Our precedents understandably prescribe a contrary approach,
under which, as long as an agency has completed its
decisionmaking on a challenged rule—even one interim in
nature—the rule satisfies the first prong of the finality test. See
Clean Air Council, 862 F.3d at 6; Int’l Union, 823 F.2d at 614–
15. It follows that, as both EPA and petitioners agree, the 2018
Rule marks the consummation of the agency’s decisionmaking
process.
2.
The 2018 Rule also determined legal rights and obligations
and gave rise to legal consequences for purposes of the second
prong of the finality test. As we have recognized, an agency’s
suspension of regulatory requirements ordinarily “affects
regulated parties’ rights or obligations.” Clean Air Council,
862 F.3d at 7 (internal quotation marks omitted). Here, no
party disputes that, to the extent the 2018 Rule suspends the
2015 Rule’s HFC listings, the 2018 Rule determines legal
rights and obligations and carries legal consequences by giving
regulated parties the legal right to replace ozone-depleting
substances with HFCs.
EPA and intervenors, though, contend that the 2018 Rule
does not determine legal rights and obligations or effect legal
consequences. In their view, it was our decision in Mexichem,
not the 2018 Rule, that suspended the 2015 Rule’s HFC
listings. According to that account, the 2018 Rule “simply
17
applies and implements” Mexichem and “therefore has no
independent legal consequences.” EPA Br. 19. That is
incorrect.
Our decision in Mexichem makes clear that it did not
vacate the HFC listings in the 2015 Rule in their entirety. The
decision rested on an understanding of EPA’s statutory
authority to regulate entities’ replacement of ozone-depleting
substances. We reasoned that an entity “replaces” an ozone-
depleting substance when it switches to a substitute substance,
and that EPA’s statutory authority thus extends only to
regulating the initial switch. See 866 F.3d at 458–59. And
because HFCs are not themselves ozone-depleting substances,
we concluded, EPA had no statutory authority to compel an
entity already using HFCs to replace them with alternate
substitutes. See id. We thus held that EPA cannot permissibly
apply the 2015 Rule’s HFC listings to entities already using
HFCs. Id. We made no suggestion, though, that EPA cannot
apply the 2015 Rule to entities still using ozone-depleting
substances. Our decision accordingly did not vacate the 2015
Rule’s HFC listings in toto.
To the contrary, the Mexichem decision repeatedly evinced
our understanding that we were vacating the HFC listings only
in part. Four distinct times, we emphasized that we were
vacating the 2015 Rule only “to the extent” the Rule requires
replacements of HFCs, id. at 454, 462, 464, confirming that we
otherwise sought to leave the HFC listings intact. Similarly,
when discussing EPA’s theory that it could apply the 2015 Rule
to all parties that had previously used ozone-depleting
substances but had since switched to HFCs, we explained that
the agency had not met the necessary requirements to allow
retroactive rulemaking and that, “[u]nless and until” it did so,
“EPA may not apply the 2015 Rule to require manufacturers to
replace one non-ozone-depleting substitute with another
18
substitute.” Id. at 462. Again, the straightforward implication
of our statement is that EPA may apply the 2015 Rule in other
circumstances.
We echoed the same understanding when, after concluding
that EPA lacked statutory authority to apply the 2015 Rule’s
listings to entities that had already switched to HFCs, we went
on to consider—and reject—the manufacturers’ various
arguments that “EPA’s decision to remove HFCs from the list
of safe substitutes was arbitrary and capricious.” Id. at 462–
63. That entire discussion would have been wholly
unnecessary had we believed that the first part of our opinion
(about EPA’s statutory authority) meant we were vacating the
2015 HFC listings in their entirety.
In short, our decision in Mexichem reinforced throughout
an intention only to forbid EPA from applying the 2015 Rule’s
HFC listings to a discrete set of regulated parties (those that
had already switched from ozone-depleting substances to
HFCs), not to set aside the 2015 Rule’s HFC listings in their
entirety. The 2018 Rule goes further than Mexichem by
instituting a complete vacatur of the 2015 Rule’s HFC listings.
And vacating those listings has the effect of suspending
regulatory requirements, which qualifies as determining legal
rights or obligations and carrying legal consequences for
purposes of the second finality prong.
EPA and intervenors contend that the 2018 Rule
nonetheless has no independent legal effect because “the aspect
of the 2015 Rule that exceeded EPA’s authority” per Mexichem
“flow[s] from the exact same regulatory text” as “the aspect
that did not.” EPA Br. 24. According to EPA and intervenors,
“[t]he listings in the 2015 Rule are thus one, integral action
that” must “necessarily stand or fall as a whole because there
are no components to the regulatory text that can be treated
19
independently and severed.” Id. (internal quotation marks
omitted). Therefore, they argue, even if the Mexichem court
intended to invalidate the 2015 Rule’s HFC listings only in
part, the decision necessarily had the effect of invalidating
those listings in their entirety because there is no discrete,
severable text in the listings that could be struck to implement
the court’s intended partial vacatur.
EPA errs in focusing on the question whether the HFC
listings contained discrete, severable text that Mexichem could
have struck to implement a partial vacatur. It is a routine
feature of severability doctrine that a court may invalidate only
some applications even of indivisible text, so long as the “valid
applications can be separated from invalid ones.” Fallon et al.,
Hart & Wechsler’s: The Federal Courts and the Federal System
170 (7th ed. 2015). As the Supreme Court has explained, when
a court encounters statutory or regulatory text that is “invalid
as applied to one state of facts and yet valid as applied to
another,” it should “try to limit the solution to the problem” by,
for instance, enjoining the problematic applications “while
leaving other applications in force.” Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 328–29 (2006)
(citation omitted) (statute); see Greater New Orleans Broad.
Ass’n v. United States, 527 U.S. 173, 195–96 (1999)
(regulation). Otherwise, a court would be compelled to grant
facial relief in any successful as-applied challenge to a
statutory or regulatory provision. That of course is not the law.
Here, the Mexichem court followed the Supreme Court’s
guidance to “limit the solution to the problem” by vacating the
2015 Rule’s HFC listings only as applied to entities that EPA
lacks authority to regulate (those who had already switched
from ozone-depleting substances to HFCs), leaving the listings
intact as applied to other entities (those who had not). And in
vacating only certain applications of the 2015 Rule without
20
regard to whether the regulatory text is divisible in a
corresponding way, the Mexichem court acted in accordance
with our precedents.
Consider, in that regard, our decision in National Corn
Growers Ass’n v. EPA, 613 F.3d 266 (D.C. Cir. 2010). There,
we considered an EPA regulation that revoked all “tolerances”
(i.e., permissible residues in food) of the pesticide carbofuran,
thereby effectively banning use of carbofuran in food for
human consumption. Id. at 270. We vacated EPA’s rule as
applied to imported foods but left the rule in place as applied
to food produced domestically. See id. at 275. And we did so
without pausing to examine whether the regulatory text was
divisible in a manner corresponding to our partial vacatur. The
pertinent text in fact was not divisible in that way: it revoked
“all of the existing tolerances for residues of carbofuran,”
making no reference to—and drawing no distinction
between—import and domestic tolerances. Carbofuran; Final
Tolerance Revocations, 74 Fed. Reg. 23,046–23,052 (May 15,
2009). We nonetheless “vacate[d] EPA’s final rule” only “to
the extent it revoked the import tolerances for carbofuran,” 613
F.3d at 275, and we rejected challenges to the rule’s application
to domestic tolerances, id. at 272–74.
In Mexichem, we similarly did not engage in any express
severability analysis about the text of the 2015 Rule. Rather,
the decision makes clear its intention to separate unlawful
applications of the 2015 HFC listings from lawful ones, and to
vacate the 2015 Rule only as to the former. If EPA disagreed
with Mexichem’s invalidation only of certain applications
because the agency believed the 2015 Rule’s HFC listings
should be treated as an inseverable whole, see Carlson v. Postal
Regulatory Comm’n, 938 F.3d 337, 351 (D.C. Cir. 2019);
MD/DC/DE Broad. Ass’n v. FCC, 236 F.3d 13, 23 (D.C. Cir.
2001), the agency could have sought a full (rather than partial)
21
vacatur of the rule in a petition for rehearing. Indeed, our court
routinely entertains rehearing petitions about the appropriate
scope of relief. See, e.g., MD/DC/DE Broad. Ass’n v. FCC,
253 F.3d 732 (D.C. Cir. 2001); Davis Cty. Solid Waste Mgmt.
v. EPA, 108 F.3d 1454, 1455 (D.C. Cir. 1997) (per curiam);
Virginia v. EPA, 116 F.3d 499 (D.C. Cir. 1997) (per curiam).
But EPA did not do so.
The upshot is that, after Mexichem, the 2015 Rule’s HFC
listings remained applicable to the class of regulated entities
that continued to use ozone-depleting substances. The 2018
Rule, by suspending the HFC listings as applied to that group
of entities, changed those parties’ legal rights and obligations
from the status quo established by Mexichem. And because the
2018 Rule meets both prongs of the Bennett test for finality, we
have jurisdiction to consider the petitions for review before us
in this case.
III.
We now proceed to assess petitioners’ challenges to EPA’s
adoption of the Rule. Petitioners contend that the 2018 Rule
was a legislative rule and was thus improperly promulgated
without the required notice-and-comment procedures. They
further contend that the Rule is arbitrary and capricious. We
agree with the first of those arguments and therefore have no
occasion to consider the second one.
The Clean Air Act calls for EPA to employ notice-and-
comment procedures whenever it engages in the “promulgation
or revision of regulations under” Title VI. 42 U.S.C. § 7607(d);
see 5 U.S.C. § 553. That requirement, though, applies to the
promulgation only of legislative rules, not interpretive rules.
See Am. Mining Congress v. Mine Safety & Health Admin., 995
F.2d 1106, 1108–12 (D.C. Cir. 1993). Because the 2018 Rule
22
was not promulgated via notice and comment, the pivotal
question is whether the rule is legislative or interpretive.
The “line between interpretive and legislative rules” is
“fuzzy” and “enshrouded in considerable smog.” Id. at 1108
(citation omitted). Our decisions, however, set out a basic
taxonomy. A “legislative rule” is one that has “legal effect” or,
alternately, one that an agency promulgates with the “intent to
exercise” its “delegated legislative power” by speaking with
the force of law. Id. at 1109, 1112 (internal quotation marks
omitted). An “interpretive rule,” meanwhile, is one that
“derive[s] a proposition from an existing document,” such as a
statute, regulation, or judicial decision, “whose meaning
compels or logically justifies the proposition.” Catholic Health
Initiatives v. Sebelius, 617 F.3d 490, 494 (D.C. Cir. 2010)
(citation omitted). An interpretive rule, instead of creating
legal effects, thus puts the public on notice of pre-existing legal
obligations or rights. Here, the 2018 Rule has independent
legal effect beyond that compelled by Mexichem and reflects
EPA’s intent to exercise its delegated legislative power.
First, while EPA now describes the 2018 Rule as merely
interpretive, the Rule itself evinces the agency’s intent to speak
with the force of law. EPA concluded that “attempting to draw
the distinctions made by the court [in Mexichem] would present
practical difficulties,” that those distinctions were not reflected
in the text of the 2015 Rule, and that Mexichem’s partial
vacatur had generated “substantial confusion and uncertainty”
among regulated entities. 83 Fed. Reg. 18,433–35. EPA thus
relied “on its expertise . . . and its understanding of the 2015
Rule” to conclude that the 2015 HFC listings should be
suspended “in their entirety.” Id at 18,435. That manner of
action—identifying a practical problem ostensibly created by a
judicial decision and relying on agency expertise to put forward
a new and different resolution—is quintessentially legislative,
23
manifesting EPA’s intent to exercise its delegated legislative
power and speak with the force of law.
The 2018 Rule has the force of law because it suspends the
2015 Rule’s HFC listings for a class of regulated entities (those
continuing to use ozone-depleting substances) to whom the
2015 Rule still applied after Mexichem. Suspension of a rule
is “tantamount to amending or revoking a rule,” Clean Air
Council, 862 F.3d at 6, and “an agency action which has the
effect of suspending a duly promulgated regulation” (like the
2015 Rule) “is normally subject to APA rulemaking
requirements,” including notice-and-comment procedures.
Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir.
1983). Indeed, because the 2018 Rule had the effect of
amending what is undisputedly a legislative rule (the 2015
Rule), it too is a legislative rule subject to notice-and-comment
obligations: an “amendment to a legislative rule must itself be
legislative.” Sierra Club v. EPA, 873 F.3d 946, 952 (D.C. Cir.
2017).
Our dissenting colleague, while agreeing that the 2018
Rule constitutes final agency action, believes that the Rule is
interpretive rather than legislative, such that notice-and-
comment procedures should be inapplicable. But even
assuming an agency rule can determine “legal rights and
obligations” or carry “legal consequences” (so as to amount to
final agency action) but still lack “legal effects” (so as to fall
short of a legislative rule), see Cal. Cmtys. Against Toxics v.
EPA, 934 F.3d 627, 635 (D.C. Cir. 2019), the 2018 Rule is not
such a needle-threading rule. The 2018 Rule did not merely
interpret Mexichem’s partial vacatur of the 2015 Rule. The
2018 Rule instead expanded Mexichem’s partial vacatur into a
full vacatur, revoking those applications of the 2015 Rule’s bar
on use of HFCs that had remained standing after Mexichem.
24
Our colleague suggests that, insofar as Mexichem vacated
only certain applications of the 2015 Rule while leaving other
applications standing, our decision in that case disregarded the
regulatory history (specifically, a previous EPA rule referred to
as the “1994 Framework Rule”), and reached a resolution
inconsistent with severability principles. See Dissenting Op. 4,
11–15. As explained, however, Mexichem’s partial vacatur of
the 2015 Rule—its invalidation only of certain applications
without examining the severability of the regulatory text—
cohered with our precedents. See National Corn Growers, 613
F.3d 266; see also Illinois Commerce Comm’n v. ICC, 776 F.2d
355, 358–60 (D.C. Cir. 1985).
At any rate, the question for us is not whether Mexichem’s
partial vacatur of the 2015 Rule was correct at the time, or if
we should have examined the regulatory text’s severability in
that opinion. Mexichem’s partial vacatur, whether correct or
incorrect, is now final. And the question for us is whether EPA
in the 2018 Rule merely interpreted Mexichem’s partial vacatur
in the manner of an interpretive rule or instead altered the
decision’s legal effect in the manner of a legislative rule.
The agency did the latter, transforming Mexichem’s partial
vacatur into an across-the-board invalidation of the 2015
Rule’s HFC listings. The agency in fact affirmatively declined
“to draw the distinctions made by the court” in Mexichem. 83
Fed. Reg. 18,434. And the agency expressly “recognize[d] that
the court vacated the 2015 Rule [only] ‘to the extent that’ it
requires manufacturers to replace HFCs” and that the court had
otherwise “rejected the arbitrary and capricious challenges to
the HFC listing changes.” Id. at 18,435. But the agency
nonetheless opted to “implement the court’s vacatur by treating
it as striking the HFC listing changes in the 2015 Rule in their
entirety.” Id. (emphasis added). In other words, EPA “treated”
the decision as having a legal effect—full vacatur—that the
25
decision disclaimed. That is a legislative rule subject to notice-
and-comment procedures.
Intervenors submit that the agency’s failure to abide by
notice-and-comment requirements amounts to harmless error.
See Intervenors Br. 34–36. Of course, though, the entire
premise of notice-and-comment requirements is that an
agency’s decisionmaking may be affected by concerns aired by
interested parties through those procedures. For that reason,
we have “not been hospitable to government claims of
harmless error in cases in which the government . . . fail[ed] to
provide notice.” Allina Health Servs. v. Sebelius, 746 F.3d
1102, 1109 (D.C. Cir. 2014). And we have found cases “in
which a government agency seeks to promulgate a rule by
another name—evading altogether the notice and comment
requirements”—to be the “most egregious” breaches of notice-
and-comment obligations. Id.
This is such a case. EPA wholly failed to provide
petitioners (or any other interested parties) the opportunity to
comment on the best way to implement the distinctions drawn
by our court in Mexichem. Indeed, the very fact that EPA plans
to engage in full notice-and-comment rulemaking in the future
when developing a permanent replacement for the 2018 Rule
suggests that the agency, too, believes that comments from
interested parties may provide valuable input on the matter.
EPA’s failure to abide by notice-and-comment procedures
when promulgating the 2018 Rule then cannot be considered
harmless.
For substantially similar reasons, EPA’s error requires us
to vacate the 2018 Rule. In general, “vacatur is the normal
remedy” for a procedural violation, although we may remand
to the agency without vacatur based on “the seriousness of the
order’s deficiencies and the likely disruptive consequences of
26
vacatur.” Allina Health Servs., 746 F.3d at 1110 (internal
quotation marks omitted). Here, both considerations counsel
in favor of vacatur. First, “[f]ailure to provide the required
notice and to invite public comment—in contrast to the
agency’s failure . . . adequately to explain why it chose one
approach rather than another for one aspect of an otherwise
permissible rule—is a fundamental flaw that normally requires
vacatur of the rule.” Heartland Reg’l Med. Ctr. v. Sebelius,
566 F.3d 193, 199 (D.C. Cir. 2009) (internal quotation marks
omitted). And second, neither EPA nor intervenors have
identified any serious disruptive consequences of vacatur,
resting instead on the regulatory uncertainty that typically
attends vacatur of any rule. See EPA Br. 38–39.
None of this means that EPA was powerless to act in the
face of what it perceived to be practical difficulties and
regulatory uncertainty engendered by Mexichem’s partial
vacatur. First, as noted, EPA could have petitioned the
Mexichem court for rehearing, explaining that it believed the
HFC listings were inseverable and asking the court to vacate
the 2015 Rule in full. Second, EPA could have issued an
interpretive rule (without engaging in notice and comment) to
explain how it understood the Mexichem decision’s partial
vacatur to apply to certain gray areas identified in the 2018
Rule. See 5 U.S.C. § 553(b); 83 Fed. Reg. 18,434–35. Third,
EPA could have exercised its enforcement discretion to focus
its enforcement efforts on entities still subject to regulation
after Mexichem, or it could have resolved difficult questions
through case-by-case adjudications, cf. Blanca Tel. Co. v. FCC,
743 F.3d 860, 867 (D.C. Cir. 2014). Finally, EPA perhaps
could have attempted to invoke the good-cause exception to
promulgate an interim legislative rule without notice and
comment, pending its undertaking a full legislative rulemaking.
See 5 U.S.C. § 553(b).
27
We do not mean to prejudge the ultimate permissibility or
efficacy of any of those options. Rather, we mean only to
highlight that EPA had several options by which it could have
attempted to address the perceived difficulties associated with
implementing our decision in Mexichem. But the one option
EPA could not permissibly pursue was the one it chose:
promulgating a legislative rule without abiding by notice-and-
comment requirements and without invoking any exception to
those obligations.
* * * * *
For the foregoing reasons, we grant the petitions for
review, vacate the 2018 Rule, and remand to EPA for further
proceedings consistent with this opinion.
So ordered.
RAO, Circuit Judge, dissenting: In 2018, the
Environmental Protection Agency issued a guidance document
to provide clarity and regulatory certainty for stakeholders
affected by EPA’s 2015 Rule regulating hydrofluorocarbons
(“HFCs”) and our related decision in Mexichem Fluor, Inc. v.
EPA, 866 F.3d 451 (D.C. Cir. 2017). The majority classifies
the 2018 Guidance as a final legislative rule that should have
been promulgated through notice and comment procedures. I
agree that the 2018 Guidance is a final agency action subject to
our review. Unlike the majority, however, I would classify the
2018 Guidance as an interpretive rule that did not create new
rights or obligations and did no more than articulate the EPA’s
view of what was required by Mexichem in the “near term” and
pending further rulemaking. Because the 2018 Guidance was
an interpretive rule, notice and comment was not necessary. In
addition, EPA’s decision to treat Mexichem as vacating the
entire 2015 Rule was not arbitrary and capricious because it
was effectively compelled by Mexichem. In characterizing the
2018 Guidance as a legislative rule, the majority misinterprets
the EPA’s regulatory framework and unravels Mexichem’s
mandate. I respectfully dissent.
I.
The dispute in this case turns on the interplay between
Mexichem and the EPA’s implementation of that decision in
the 2018 Guidance. To understand the scope and consequences
of the 2018 Guidance requires analyzing “the idiosyncratic
regime of statutes and regulations that govern it.” Cal.
Communities Against Toxics v. EPA, 934 F.3d 627, 632 (D.C.
Cir. 2019). I begin with the original regulatory framework EPA
promulgated in 1994, because this provides essential context
for understanding the 2015 Rule, Mexichem, and the 2018
Guidance.
As the majority explains, the United States ratified the
Montreal Protocol in 1987 to help address the deterioration of
2
the ozone layer. After ratification, Congress amended the Clean
Air Act in 1990 by adding Title VI. See 42 U.S.C. § 7671 et
seq. The amendments require manufacturers and end-users to
phase out various substances that deplete the ozone layer. See
Mexichem, 866 F.3d at 454. For our purposes, the most relevant
provision is Section 612(c), which authorizes EPA to regulate
which chemicals can be used “to replace” ozone-depleting
substances. 42 U.S.C. § 7671k(c). 1
In 1994, the EPA promulgated a framework explaining
how the EPA will regulate HFCs and other substitutes for
ozone-depleting substances. See Protection of Stratospheric
Ozone, 59 Fed. Reg. 13,044 (Mar. 18, 1994) (“1994
Framework Rule”). As relevant here, the Framework Rule
specified that when a chemical is listed as an unacceptable
substitute, no person can continue to use it, even if that person
has already stopped using ozone-depleting substances. Id. at
13,148 (“No person may use a substitute after the effective date
of any rulemaking adding such substitute to the list of
unacceptable substitutes.”). For more than 20 years, EPA
interpreted “replace” under Section 612(c) to apply on an
ongoing basis, each time a person uses the substitute. Id. at
13,048. Under this interpretation, if EPA reclassifies an
acceptable substitute as unacceptable, no one may use it, even
persons who had previously stopped using ozone-depleting
substances. Id. (“[O]nce EPA identifies an unacceptable
substitute, any future use of such substitute is prohibited. Under
any other interpretation, EPA could never effectively prohibit
the use of any substitute, as some user could always start to use
1
The full text reads: “[T]he Administrator shall promulgate rules
under this section providing that it shall be unlawful to replace any
class I or class II substance with any substitute substance which the
Administrator determines may present adverse effects to human
health or the environment, where the Administrator has identified an
alternative.” 42 U.S.C. § 7671k(c).
3
it prior to EPA’s completion of the rulemaking required to list
it as unacceptable.”).
The EPA initially listed HFCs as acceptable substitutes for
ozone-depleting substances. See, e.g., Protection of
Stratospheric Ozone: Listing of Substitutes for Ozone-
Depleting Substances, 68 Fed. Reg. 4,004, 4,005–06 (Jan. 27,
2003). In 2015, the agency changed course and listed HFCs as
unacceptable because they have a significant effect on global
warming. See Protection of Stratospheric Ozone: Change of
Listing Status for Certain Substitutes Under the Significant
New Alternatives Policy Program, 80 Fed. Reg. 42,870 (July
20, 2015) (“2015 Rule”). The 2015 Rule applied to everyone,
including people who had already stopped using ozone-
depleting substances and had “replaced” them with HFCs. As
EPA emphasized, this consequence followed directly from the
1994 Framework Rule. Id. at 42,936–37.
In Mexichem, we rejected EPA’s longstanding
interpretation that the term “replace” encompasses the
continued use of a substitute by people who have already
stopped using ozone-depleting substances. We explained that
EPA’s “reading stretche[d] the word ‘replace’ beyond its
ordinary meaning.” Mexichem, 866 F.3d at 458. We held that
the EPA has no authority under Section 612(c) to prohibit the
use of HFCs by people who adopted them as a substitute for
ozone-depleting substances before the 2015 Rule went into
effect. See 866 F.3d at 456–61. As we explained, a party
“replaces” an ozone-depleting substance when it transitions to
an acceptable substitute; once it does that, the replacement is
over. Because people who have already made the switch to
HFCs are no longer using ozone-depleting substances, the EPA
cannot require them to stop using HFCs—at least not under
Section 612(c), which regulates only the initial replacement of
ozone-depleting substances. Indeed, we emphasized that the
4
EPA’s “boundless interpretation” “border[ed] on the absurd”
because it would give the agency “indefinite authority.” Id. at
459. While we rejected EPA’s interpretation of “replace,” we
held that EPA’s decision to list HFCs as unacceptable
substitutes was, as a general matter, not arbitrary and
capricious. See id. at 462–64. As a remedy, we “vacate[d] the
2015 Rule to the extent it require[d] manufacturers to replace
HFCs with a substitute substance.” Id. at 464.
After Mexichem, the 1994 Framework Rule remains in
effect, although its reasoning was substantially undermined by
our opinion. The majority overlooks this fact—perhaps
because Mexichem never discusses the 1994 Rule and suggests
in passing that the EPA’s interpretation of “replace” was “new”
to the 2015 Rule. See 866 F.3d at 458. The 2015 Rule, however,
did not articulate a “new” interpretation. Rather, before
Mexichem, the EPA consistently maintained that it could
prohibit the use of substitutes like HFCs regardless of whether
a person had already made the substitution before the
regulation went into effect.
In the wake of Mexichem, regulated entities were unsure
of the practical consequences of our remedy and
“experience[ed] substantial confusion and uncertainty
regarding the meaning of the vacatur in a variety of specific
situations.” See Protection of Stratospheric Ozone: Notification
of Guidance and a Stakeholder Meeting Concerning the
Significant New Alternatives Policy (SNAP) Program, 83 Fed.
Reg. 18,431, 18,434 (Apr. 27, 2018) (“2018 Guidance”). In the
2018 Guidance, the EPA sought to clarify how it would
implement Mexichem. In doing so, EPA reiterated that the 1994
Framework Rule—not the 2015 Rule—required that “[n]o
person may use a substitute after the effective date of any
rulemaking adding such substitute to the list of unacceptable
substitutes.” See id. at 18,433 (quoting 40 C.F.R. § 82.174 (the
5
1994 Framework Rule)). The 2018 Guidance emphasized that
prior to Mexichem, the 2015 Rule had operated exactly “like all
other actions EPA has taken implementing the 1994
Framework Rule over the last quarter-century”—namely to
require everyone to stop using the unacceptable substance,
irrespective of whether they had switched to the substitute prior
to the listing. Id. In other words, the agency maintained that the
interpretation invalidated by Mexichem originated in the 1994
Framework Rule.
In the 2018 Guidance, EPA recognized that Mexichem
vacated “the 2015 Rule ‘to the extent that’ it requires
manufacturers to replace HFCs.” Id. at 18,435. EPA proceeded
to analyze how to implement this directive with respect to the
2015 Rule, which “is comprised solely of tables listing …
certain substitutes for specific end-uses.” Id. at 18,434. While
Mexichem suggests that the 2015 Rule could apply to people
still using ozone-depleting substances, the tables in the Rule do
not “draw a distinction between persons using HFCs and those
using an [ozone-depleting substance].” Id. The agency
concluded that the “regulations as currently written do not
provide the distinctions that would be necessary to
accommodate the letter of the court’s vacatur.” Id. After all,
under the 1994 Framework Rule, every listing necessarily
applies to current and future users of a given substance. See id.
at 18,435 (“[T]the listing of HFC’s as unacceptable, or
acceptable subject to use restrictions, is the means by which the
2015 Rule ‘require[d] manufacturers to replace HFCs with a
substitute substance.’”). EPA explained that “[t]he narrower
language used by the court does not exist in either the 2015
Rule or the 1994 Framework Rule; nor do the distinctions
discussed above emerge when those two rules are read
together.” Id. at 18,434. Indeed, the EPA emphasized that to
implement a partial vacatur would require it “to drastically
rewrite the 2015 Rule,” which “would not be appropriate to
6
undertake … without undergoing notice and comment
rulemaking.” Id. at 18,435.
Pending additional notice and comment rulemaking, EPA
determined that the only way to implement Mexichem and to
provide guidance to regulated entities was to read our opinion
as vacating the HFC listing in its entirety. See id. EPA thus
interpreted and implemented Mexichem’s vacatur in the only
way it believed permissible given the indivisible listings in the
2015 Rule and the interpretation set forth in the 1994
Framework Rule. With this more complete regulatory context,
I turn to the appeal before us.
II.
We face two interrelated, yet distinct, inquiries in this case.
First, we must decide whether the EPA’s action was final, a
question about the availability of judicial review. See 5 U.S.C.
§ 704. Second, if the action was final, we must determine
whether it is a legislative or interpretive rule, a question about
the procedures the agency must follow. As our court has
recently observed, “although all legislative rules are final, not
all final rules are legislative, and the finality analysis is
therefore distinct from the test for whether an agency action is
a legislative rule.” Cal. Communities Against Toxics, 934 F.3d
at 631; cf. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251
(D.C. Cir. 2014) (“[E]ven interpretive rules may be subject to
pre-enforcement judicial review.”). 2
2
As the majority frames these questions, the standards for finality
and legislative rules are essentially the same. Indeed, the majority
leaves open the possibility that the category of final, interpretive
rules may be a conceptual null set. Maj. Op. 23. This has no support
in the APA and is foreclosed by Supreme Court precedent. See U.S.
7
The majority conflates aspects of these two standards. For
the purposes of this case’s finality inquiry, we need ask only
whether the agency’s interpretation of Mexichem had “direct
and appreciable legal consequences.” Bennett v. Spear, 520
U.S. 154, 178 (1997). While I agree with the majority that the
EPA’s action is final under this standard, it does not matter
whether the 2018 Guidance created new legal obligations. A
final agency action can include interpretive rules that merely
state the agency’s interpretation of a statute, regulation, or
judicial decision.
The question of whether the 2018 Guidance created new
legal obligations is, however, relevant to the second inquiry—
whether this is legislative rule. Here I part ways with the
majority. Because the 2018 Guidance merely interpreted the
necessary consequences of our vacatur in Mexichem, the
Guidance is a final, interpretive rule that was reasonable and
not arbitrary and capricious.
A.
We have jurisdiction under the Clean Air Act to review the
2018 Guidance only if it was a “final action.” See 42 U.S.C.
§ 7607(b)(1). The term “final action” “is synonymous with the
term ‘final agency action’ as used in Section 704 of the”
Administrative Procedure Act (“APA”). Sierra Club v. EPA,
873 F.3d 946, 951 (D.C. Cir. 2017). To determine whether an
agency action is final, we apply the two-prong test set forth in
Bennett v. Spear: the action must both “mark the
consummation of the agency’s decisionmaking process,” and it
“must be one by which rights or obligations have been
determined, or from which legal consequences will flow.” 520
U.S. 154, 178 (1997) (quotation marks omitted). The parties
Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016)
(observing that the Court frequently reviews interpretive rules).
8
and the majority all agree that the 2018 Guidance reflects the
consummation of the agency’s decisionmaking process, Maj.
Op. 12, so I focus on the second prong.
The central dispute is whether an agency action can have
a sufficiently concrete legal effect for the purposes of Bennett’s
second prong if it simply interprets a legal obligation that stems
from a different legal source. The majority focuses on whether
it was “Mexichem, not the 2018 Rule, that suspended the 2015
Rule’s HFC listings.” Maj. Op. 16. In the finality context,
however, it is unnecessary to determine whether Mexichem
directs suspension of the 2015 Rule or whether the 2018
Guidance independently creates that result. Under Bennett, a
final action is “one by which rights or obligations have been
determined, or from which legal consequences will flow.” 520
U.S. at 178 (quotation marks omitted). The legal consequences
do not necessarily have to flow from the rule itself. If they did,
an interpretive rule could never be final and reviewable, and
we have explicitly held that “even interpretive rules may be
subject to pre-enforcement judicial review.” Nat’l Mining
Ass’n, 758 F.3d at 251; see also U.S. Army Corps of Eng’rs v.
Hawkes Co., 136 S. Ct. 1807, 1815 (2016) (observing that the
Court frequently reviews agency decisions that simply “give
notice of how the [agency] interpret[s] the relevant statute”
(quotation marks omitted)) (discussing Frozen Food Express v.
United States, 351 U.S. 40, 41–44 (1956)). 3
3
The Supreme Court made clear in Hawkes that interpretive rules
can be final actions subject to review, which supersedes any
suggestion in Association of Flight Attendants-CWA, AFL-CIO v.
Huerta, that interpretive rules are not reviewable. See 785 F.3d 710,
713 (D.C. Cir. 2015) (“The guidance offered in Notice N8900.240
reflects nothing more than a statement of agency policy or an
interpretive rule. The Notice is therefore unreviewable.”).
9
An interpretive rule by definition does not create new
obligations, but instead interprets existing legal obligations
under statutes, regulations, and judicial decisions. To be final,
a rule simply has to determine which rights a party has under
the law, and a rule determines rights or obligations if its impact
is “sufficiently direct and immediate” and if it will have a
“direct effect” on “day-to-day” affairs. Abbott Labs. v.
Gardner, 387 U.S. 136, 152 (1967). Put slightly differently,
“[t]he core question is … whether the result of th[e] process is
one that will directly affect the” regulated parties. Franklin v.
Mass., 505 U.S. 788, 797 (1992); accord Dalton v. Specter, 511
U.S. 462, 470 (1994).
The 2018 Guidance was an action “by which rights or
obligations have been determined.” Bennett, 520 U.S. at 178
(quotation marks omitted). In Mexichem’s aftermath, there was
considerable confusion across several industries as to the
meaning of the court’s remedy. See 83 Fed. Reg. at 18,434. The
2018 Guidance explained how the EPA would implement
Mexichem. The agency’s interpretation directly affected
regulated parties: “EPA will not apply the HFC use restrictions
or unacceptability listings in the 2015 Rule for any purpose.”
Id. at 18,433. Thus, irrespective of whether the obligations
followed from our Mexichem decision or an independent
decision by EPA, the 2018 Guidance had an immediate and
practical impact and thus was a final agency action subject to
our review.
B.
The finality of the 2018 Guidance, however, does not
answer the question of whether it is a legislative or interpretive
rule. This question turns on whether the 2018 Guidance merely
articulated the agency’s understanding of Mexichem’s legal
implications, or whether the agency went further than
10
Mexichem and thus created new legal obligations. If the 2018
Guidance was an interpretive rule, the EPA’s decision to skip
notice and comment was perfectly acceptable. See Shalala v.
Guernsey Mem’l Hosp., 514 U.S. 87, 99 (1995) (“Interpretive
rules do not require notice and comment.”); see also 5 U.S.C.
§ 553(b)(3)(A) (“Except when notice or hearing is required by
statute, this subsection [about notice and comment] does not
apply—(A) to interpretative rules.”). On the other hand, if the
2018 Guidance was a legislative rule that brought about a
substantive change to the agency’s Title VI regulations, then
the procedures used were inadequate. See 42 U.S.C.
§ 7607(d)(1)(I) (requiring notice and comment rulemaking for
regulations promulgated under Title VI).
To determine whether a rule is legislative, we ask whether
the agency is exercising its statutory rulemaking authority to
promulgate rules that have the force of law and “impose legally
binding obligations or prohibitions.” Nat’l Mining Ass’n, 758
F.3d at 251; see also Am. Mining Cong. v. Mine Safety &
Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993).
Interpretive rules, on the other hand, “derive a proposition from
an existing document whose meaning compels or logically
justifies the proposition.” Catholic Health Initiatives v.
Sebelius, 617 F.3d 490, 494 (D.C. Cir. 2010). “[T]he critical
feature of interpretive rules is that they are issued by an agency
to advise the public of the agency’s construction of the statutes
and rules which it administers.” Perez v. Mortg. Bankers Ass’n,
135 S. Ct. 1199, 1204 (2015) (quotation marks omitted). Thus,
legislative rules impose new legally binding requirements,
whereas interpretive rules set forth the agency’s explanation of
existing legal requirements. Evaluating EPA’s action in light
of the Mexichem remedy as well as the existing regulatory
scheme demonstrates that the 2018 Guidance was an
interpretive rule.
11
As the majority recognizes, “EPA could have issued an
interpretive rule (without engaging in notice and comment) to
explain how it understood the Mexichem decision’s partial
vacatur to apply to certain gray areas identified.” Maj. Op. 26.
That is precisely what EPA did in the 2018 Guidance when it
stated why Mexichem compelled a prohibition on the use of
HFCs, absent further rulemaking. Mexichem held that EPA
could not interpret Section 612(c) to require people who had
already “replaced” ozone-depleting substances with HFCs to
make another replacement. Mexichem, 866 F.3d at 459
(“EPA’s strained reading of the term ‘replace’ contravenes the
statute and thus fails at Chevron step 1.”). In addition, our court
held that EPA had reasonably chosen to list HFCs as
unacceptable substitutes going forward. Id. at 462–64. The
resulting public confusion and uncertainty stemmed in part
from the fact that our court vacated the 2015 Rule “to the extent
that” it applied to people who had already switched to HFCs
from ozone-depleting substances. Our court remanded to the
EPA for further proceedings without conducting a severability
analysis or otherwise explaining how to implement the vacatur.
Thus, after Mexichem, a practical question remained about
how to implement the decision. Recognizing that “the agency
cannot remain silent on the implications of the court’s vacatur
until such time as the agency can complete a notice-and-
comment rulemaking,” the EPA provided a “near term”
interpretation of our decision. 83 Fed Reg. at 18,435. EPA
concluded that in light of the 2015 and 1994 Rules, the 2015
HFC listings could not be applied “for any purpose prior to
completion of rulemaking.” Id. Although our remedy in
Mexichem could arguably be read to suggest some type of
partial vacatur, the EPA concluded that “[t]he narrower
language used by the court does not exist in [ ] the 2015 Rule.”
Id. at 18,434. According to the EPA, because the Rule is
composed of nothing more than tables—tables that did not
12
make the distinction drawn by our court—the Rule could not
be vacated only in part. “[T]he listing of HFC’s as
unacceptable, or acceptable subject to use restrictions, is the
means by which the 2015 Rule ‘require[d] manufacturers to
replace HFCs with a substitute substance.’” See id. at 18,435
(quoting Mexichem, 866 F.3d at 462). Listing HFCs as
unacceptable necessarily had the effect our court said went
beyond EPA’s statutory authority, so there was nothing that
could be severed from the listing to separate those who had
already switched to HFCs from those who may switch in the
future. “Vacating the 2015 Rule ‘to the extent’ that it imposed
that requirement means vacating the listings. To apply the
court’s holding otherwise would be to drastically rewrite the
2015 Rule.” Id.
The EPA recognized that it could eventually create
sublistings for different types of HFC users, but “such additions
to the 2015 Rule would require notice-and-comment
rulemaking.” Id. at 18,434. Additional rulemaking would be
required not only to address the 2015 Rule’s indivisible
listings, but also to revisit EPA’s interpretation of “replace” in
the 1994 Framework Rule, which was never addressed by
Mexichem and therefore remained on the books, even if its
reasoning was substantially undermined. Id. Thus, pending
further rulemaking, EPA interpreted Mexichem as vacating the
entire list of HFCs. The majority says that the 2018 Guidance
is a legislative rule because the EPA “identif[ied] a practical
problem” and “rel[ied] on agency expertise to put forward a
new resolution.” Maj. Op. 22–23. Yet EPA never suggested it
was crafting a practical solution to a new problem. Rather, EPA
concluded this was the only course of action that was legally
permissible in light of the vacatur in Mexichem.
The majority today provides a different interpretation of
Mexichem, one that rewrites our decision and ignores the
13
regulatory framework still in place after Mexichem. To the
extent the majority seeks to provide a severability analysis not
provided by Mexichem, the majority’s conclusion is
inconsistent with our regulatory severability precedents and
also with the clear vacatur set forth in Mexichem. When
determining whether a regulation may be severed, the court
considers a two-part test. “First, the court must find that ‘the
agency would have adopted the same disposition regarding the
unchallenged portion [of the regulation] if the challenged
portion were subtracted.’” Carlson v. Postal Regulatory
Comm’n, 938 F.3d 337, 351 (D.C. Cir. 2019) (quoting Sierra
Club v. FERC, 867 F.3d 1357, 1366 (D.C. Cir. 2017)).
“Second, the parts of the regulation that remain must be able to
‘function sensibly without the stricken provision.’” Id. (quoting
Sorenson Commc’ns. Inc. v. FCC, 755 F.3d 702, 710 (D.C. Cir.
2014)). The “entire rule must be vacated” if severing only the
unlawful aspects “would severely distort the [agency’s]
program and produce a rule strikingly different from any the
[agency] has ever considered or promulgated in the lengthy
course of these proceedings.” MD/DC/DE Broads. Ass’n v.
FCC, 236 F.3d 13, 23 (D.C. Cir. 2001). Moreover, an agency
action should be vacated in its entirety if “[t]he intertwined
character of the … component parts gives rise to a substantial
doubt that a partial affirmance would comport with the
[agency’s] intent.” Tel. & Data Sys. Inc. v. FCC, 19 F.3d 42,
50 (D.C. Cir. 1994).
Here, the lawful and unlawful “parts” of the 2015 Rule
were not just “intertwined.” Id. They stemmed from the exact
same listing—indeed, the exact same words. The 2015 Rule’s
lawful applications could not survive independently when
Mexichem interpreted the statute in a manner fundamentally at
odds with the underlying 1994 Framework Rule. EPA noted in
the 2018 Guidance that it plans to consider to what extent the
1994 Framework Rule must be modified through future notice
14
and comment rulemaking. Until that occurs, however, the
majority’s solution produces a rule inconsistent with the
agency’s existing regulatory framework for classifying
replacements for ozone-depleting substances.
If the agency had chosen to adopt the majority’s
interpretation after Mexichem, the EPA would have been
required to engage in notice and comment rulemaking. In the
2018 Guidance, EPA noted numerous difficult questions raised
by our decision in Mexichem that the agency planned to
address. See, e.g., 83 Fed. Reg. at 18,435–36 (listing the
questions the agency plans on considering in the future,
including “whether EPA should revisit specific provisions of
the 1994 Framework Rule … to establish distinctions between
users still using [ozone-depleting substances] and those who
have already replaced” them; “[w]hether EPA should
distinguish between product manufacturers and other users”;
and “[w]hether EPA should clarify when the replacement of an
[ozone-depleting substance] occurs: e.g., on a facility-by-
facility basis, or on a product-by-product basis”). As the EPA
reiterated in the 2018 Guidance, the 2015 Rule functioned the
same way as every other listing since 1994: The listing of a
substance as unacceptable would apply to everyone
manufacturing or using that substance. Because the majority
overlooks the existing regulatory framework, it fails to
appreciate that notice and comment rulemaking would be
required to implement its interpretation of Mexichem.
Under the majority’s holding, the 2015 Rule will now
function differently from every other rule promulgated by EPA
under Section 612(c). Instead of following our precedents in
the context of regulatory severability, 4 the majority interprets
4
Many of the cases relied on by the majority do not involve
severability at all. See, e.g., Ayotte v. Planned Parenthood of
Northern New England, 546 U.S. 320 (2006); Greater New Orleans
15
what it considers to be our court’s “intention” in Mexichem.
Even though Mexichem did not engage in any express
severability analysis, the majority concludes that “the decision
makes clear its intention to separate unlawful applications of
the 2015 HFC listings from lawful ones, and to vacate the 2015
Rule only as to the former.” Maj. Op. 20; see also id. at 18
(“[O]ur decision in Mexichem reinforced throughout an
intention only to forbid EPA from applying the 2015 Rule’s
HFC listings to a discrete set of regulated parties.”). Yet
Mexichem did not enjoin particular applications of the 2015
Rule. Nor did it hold the regulation unlawful as applied to
specific parties. Nor did it remand without vacatur for the EPA
to determine how to apply our holding.
Instead, our court repeatedly stated that it was vacating the
2015 Rule insofar as it applies to people who have already
switched to HFCs. See Mexichem, 866 F.3d at 462. To vacate
is to do more than enjoin or modify; it is to invalidate. Not only
did we vacate the Rule, we said that by promulgating it, the
EPA exceeded its statutory authority to a degree that
“border[ed] on the absurd.” Id. at 459.
As EPA explained, “The court clearly intended to vacate
the 2015 Rule to some ‘extent.’” 83 Fed Reg. at 18,434. A
different remedy—for instance, one enjoining particular
Broad. Ass’n v. United States, 527 U.S. 173 (1999). Relatedly, the
majority claims National Corn Growers v. EPA is relevant because
the court vacated a rule “to the extent” it applied to imports, even
though the rule in question did not draw a distinction between
imports and other goods. Maj. Op. 20. (citing 613 F.3d 266, 275
(D.C. Cir. 2010)). That case also failed to address severability. While
National Corn Growers, like Mexichem, vacated a rule “to the
extent” it had unlawful applications, the case said nothing about the
interpretive question that necessarily followed—namely, what it
means to vacate a rule to that extent.
16
applications—would have been inconsistent with the question
presented in Mexichem, which was “whether Section 612 of the
Clean Air Act authorizes the 2015 Rule.” Id. at 456. The
question presented did not concern the application of the 2015
Rule to particular persons, but instead raised a challenge to the
2015 Rule as a whole.
Nothing in Mexichem suggested that EPA could use
enforcement discretion to implement our holding that EPA’s
interpretation exceeded the authority in Section 612(c). 5 Today
the majority chooses to “sever” the 2015 Rule, not by vacating
as Mexichem directed, but by rewriting the Rule to apply to a
subset of regulated entities. Under the majority’s interpretation,
not a single word of the 2015 Rule is vacated; instead, the Rule
will apply as written in some cases but not others. See Maj. Op.
21 (“[A]fter Mexichem, the 2015 Rule’s HFC listings remained
applicable to the class of regulated entities that continued to use
ozone-depleting substances.”). As a formal matter, the text of
the 2015 Rule remains exactly the same. Yet as a practical
matter, it must be read with a judicial asterisk, directing the
agency to execute the 2015 Rule in a manner at odds with both
5
The majority suggests enforcement discretion as an alternative for
implementing Mexichem. Maj. Op. 26. To permit an agency to
implement a partial vacatur through enforcement discretion—thus
leaving the offending rule on the books—undermines this court’s
authority and produces further uncertainty. We should encourage
agencies to distinguish between regulated parties through clear
interpretive guidance, rather than through ad hoc discretion. For
similar reasons, EPA should be wary of the majority’s suggestion to
attempt using the good-cause exception for interim legislative rules,
Maj. Op. 26, another limited regulatory practice this court has
cautioned against abusing. See Mack Trucks, Inc. v. EPA, 682 F.3d
87, 93 (D.C. Cir. 2012) (“We have repeatedly made clear that the
good cause exception is to be narrowly construed and only
reluctantly countenanced.” (quotation marks omitted)).
17
the plain meaning and EPA’s existing regulatory framework.
By contrast, the EPA’s 2018 Guidance is consistent with
Mexichem, the text and structure of the 2015 Rule, and other
regulations under Section 612(c). I would therefore hold that
the 2018 Guidance was an interpretive rule for which no notice
and comment was required.
C.
The petitioners also argue that the EPA’s decision to delist
HFCs was arbitrary and capricious. The majority does not
reach this issue because it concludes that the 2018 Guidance
was a legislative rule and therefore must be vacated because
the EPA did not follow notice and comment procedures.
Because I classify the 2018 Guidance as an interpretive rule, I
proceed to explain why petitioners’ arbitrary and capricious
challenge lacks merit.
The APA mandates that the federal courts “hold unlawful
and set aside agency action, findings and conclusions found to
be—(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C.
§ 706(2)(A). We must ask whether the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its
action[,] … whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error
of judgment.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016) (“One of the basic procedural requirements of
administrative rulemaking is that an agency must give adequate
reasons for its decisions.”).
The petitioners argue that the EPA’s analysis was arbitrary
and capricious because it did not “show that there are good
reasons for the new policy,” NRDC Br. at 36 (quoting Encino
18
Motorcars, LLC, 136 S. Ct. at 2126), and because it failed to
account for the contribution of additional HFCs to “climate
change or its attendant harms.” Id. at 40. An action is arbitrary
and capricious, however, only if the agency failed to consider
“the relevant data.” State Farm Mut. Auto. Ins., 463 U.S. at 43.
We look to “whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error.”
Marsh v. Ore. Nat. Res. Council, 490 U.S. 360, 378 (1989).
The petitioners essentially argue the EPA should have
addressed policy considerations. Policy considerations,
however, were not relevant to interpreting Mexichem, and
therefore EPA was not required to consider them. See Black
Citizens for a Fair Media v. FCC, 719 F.2d 407, 431 n.15 (D.C.
Cir. 1983) (explaining that agencies can “ignore those factors
it considers irrelevant to the statutory scheme”); TransCanada
Pipelines Ltd. v. FERC, 878 F.2d 401, 413 (D.C. Cir. 1989)
(“FERC acknowledged this evidence and ignored it as
irrelevant. We agree that this evidence, by itself, fails to
contradict FERC’s [ ] theory.” (citation omitted)).
As discussed, the 2018 Guidance did nothing more than
interpret Mexichem, and EPA’s interpretation properly
implemented our court’s mandate. In interpreting our opinion,
it simply would not have been relevant to consider what
environmental impacts our decision may have had. The EPA
could not choose to disregard our mandate because it thought a
different outcome was better on policy grounds. An agency
does not act arbitrarily or capriciously when it takes an action
that is required by law. See US Magnesium, LLC v. EPA, 630
F.3d 188, 193 (D.C. Cir. 2011) (holding that an agency’s action
could not have been arbitrary or capricious because the agency
did not have discretion to adopt a different choice); Fitts v. Fed.
Nat. Mortg. Ass’n, 236 F.3d 1, 6 (D.C. Cir. 2001) (explaining
that the exercise of agency “discretion” is necessary to “justify
the application of arbitrary and capricious review”).
19
Ultimately, the petitioners’ argument that the EPA should
have given more reasons for its “new policy” is premised on
their view that the 2018 Guidance was a legislative rule that
created new obligations. Because it was instead an interpretive
rule, additional policy considerations were not relevant, so the
agency’s failure to consider them was not arbitrary and
capricious.
***
Notice and comment rulemaking is a central part of the
administrative framework set forth in the APA and the Clean
Air Act. When an agency issues a legislative rule by exercising
its delegated authority to establish new obligations with the
force of law, it must follow these procedures. In the 2018
Guidance, however, EPA simply interpreted the immediate and
necessary consequences of our decision in Mexichem and left
rewriting the regulatory framework for future notice and
comment rulemaking. Because the 2018 Guidance advised the
public of the EPA’s interpretation of legal obligations created
by this court, it was an interpretive rule properly issued without
notice and comment procedures. I respectfully dissent.
|
01-03-2023
|
04-07-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/4523173/
|
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2020 Decided April 7, 2020
No. 19-5322
IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL
CASES,
JAMES H. ROANE, JR., ET AL.,
APPELLEES
v.
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-mc-00145)
Melissa N. Patterson, Attorney, U.S. Department of
Justice, argued the cause for appellants. With her on the briefs
were Joseph H. Hunt, Assistant Attorney General, Jessie K.
Liu, U.S. Attorney, Hashim M. Mooppan, Deputy Assistant
Attorney General, Paul R. Perkins, Special Counsel, and Mark
B. Stern, Attorney.
Catherine E. Stetson argued the cause for appellees. With
her on the brief were Sundeep Iyer, Pieter Van Tol, Joshua M.
Koppel, Arin Smith, Jon Jeffress, Alan E. Schoenfeld,
2
Stephanie Simon, and Shawn Nolan, Assistant Federal Public
Defender.
Before: TATEL, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge KATSAS.
Concurring opinion filed by Circuit Judge RAO.
Dissenting opinion filed by Circuit Judge TATEL.
PER CURIAM: The Federal Death Penalty Act of 1994
(FDPA) requires federal executions to be implemented “in the
manner prescribed by the law of the State in which the sentence
is imposed.” 18 U.S.C. § 3596(a). It is common ground that
this provision requires the federal government to adhere at least
to a State’s choice among execution methods such as hanging,
electrocution, or lethal injection. The district court held that
the FDPA also requires the federal government to follow all the
subsidiary details set forth in state execution protocols—such
as, in the case of lethal injection, the method of inserting an
intravenous catheter. On that basis, the court preliminarily
enjoined four federal executions.
Each member of the panel takes a different view of what
the FDPA requires. Because two of us believe that the district
court misconstrued the FDPA, we vacate the preliminary
injunction.
3
I
A
On three different occasions, Congress has addressed the
“manner” of implementing the death penalty for federal capital
offenses. In the Crimes Act of 1790, the First Congress
specified that “the manner of inflicting the punishment of
death, shall be by hanging the person convicted by the neck
until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 112, 119.
This provision governed federal executions for over 140 years.
In 1937, Congress changed this rule to make the “manner”
of federal executions follow state law. Specifically, Congress
provided:
The manner of inflicting the punishment of death
shall be the manner prescribed by the laws of the
State within which the sentence is imposed. The
United States marshal charged with the execution of
the sentence may use available State or local facilities
and the services of an appropriate State or local
official or employ some other person for such
purpose …. If the laws of the State within which
sentence is imposed make no provision for the
infliction of the penalty of death, then the court shall
designate some other State in which such sentence
shall be executed in the manner prescribed by the
laws thereof.
An Act To Provide for the Manner of Inflicting the Punishment
of Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress
repealed this provision in 1984, see Sentencing Reform Act of
1984, Pub. L. No. 98-473, § 212, 98 Stat. 1987, but left intact
the underlying capital offenses. Accordingly, federal law still
4
authorized the death penalty, but no federal statute specified
how it would be carried out.
To fill this gap, the Attorney General promulgated a 1993
regulation titled “Implementation of Death Sentences in
Federal Cases.” 58 Fed. Reg. 4898, 4901–02 (Jan. 19, 1993).
It provides that, unless a court orders otherwise, the “method
of execution” of a federal death sentence shall be “[b]y
intravenous injection of a lethal substance or substances in a
quantity sufficient to cause death, such substance or substances
to be determined by the Director of the Federal Bureau of
Prisons.” 28 C.F.R. § 26.3(a)(4) (2019). The regulation also
addresses various other matters including the time and place of
execution, when the prisoner must be notified of the execution,
and who may attend it. Id. §§ 26.3–26.5.
Congress enacted the FDPA in 1994. Under the FDPA, as
under the 1937 statute, the “manner” of implementing federal
death sentences turns on state law. In pertinent part, the FDPA
provides that a United States marshal
shall supervise implementation of the sentence in the
manner prescribed by the law of the State in which
the sentence is imposed. If the law of the State does
not provide for implementation of a sentence of
death, the court shall designate another State, the law
of which does provide for the implementation of a
sentence of death, and the sentence shall be
implemented in the latter State in the manner
prescribed by such law.
18 U.S.C. § 3596(a). The FDPA also provides that a marshal
overseeing an execution “may use appropriate State or local
facilities” and “may use the services of an appropriate State or
local official.” Id. § 3597(a).
5
B
At various times since 2001, the Department of Justice has
developed protocols setting forth the precise details for
carrying out federal executions. One such protocol was
adopted in 2004 and updated in 2019. As updated, the protocol
“provides specific time related checklists for pre-execution,
execution, and post execution procedures, as well as detailed
procedures related to the execution process, command center
operations, contingency planning, news media procedures, and
handling stays, commutations and other delays.” App. 24.
This 50-page document addresses, among other things,
witnesses for the execution, the prisoner’s final meal and final
statement, strapping the prisoner to the gurney, opening and
closing the drapes to the execution chamber, injecting the lethal
substances, and disposing of the prisoner’s body and property.
For the three federal executions conducted between 2001
and 2003, the Bureau of Prisons used a combination of three
lethal substances—sodium thiopental, a barbiturate that
“induces a deep, comalike unconsciousness when given in the
amounts used for lethal injection,” Baze v. Rees, 553 U.S. 35,
44 (2008) (plurality opinion); pancuronium bromide, which
stops breathing; and potassium chloride, which induces cardiac
arrest. None of the three prisoners challenged these
procedures. In 2008, the Bureau memorialized its use of the
three substances in an addendum to its 2004 execution
protocol, and the Supreme Court held that Kentucky’s use of
the same three substances for executions did not violate the
Eighth Amendment, see id. at 44, 63; id. at 94 (Thomas, J.,
concurring in judgment). But by 2011, a “practical obstacle”
to using sodium thiopental had emerged, “as anti-death penalty
advocates pressured pharmaceutical companies to refuse to
supply the drug” for executions. Glossip v. Gross, 135 S. Ct.
2726, 2733 (2015).
6
The Bureau then explored the possible use of other lethal
substances. Its personnel visited state execution sites and
evaluated their protocols. BOP also consulted with medical
experts, reviewed assessments of difficult executions, and
studied relevant judicial decisions. It considered several
options, including three-drug protocols using other
barbiturates, three-drug protocols using weaker sedatives, and
one-drug protocols.
After extensive study, the Bureau recommended use of a
single barbiturate—pentobarbital—to carry out federal
executions. It noted that many recent state executions had used
pentobarbital without difficulty and that courts repeatedly have
upheld the constitutionality of its use for executions. Further,
BOP had located a “viable source” for obtaining it. App. 15,
19.
For these reasons, the Bureau proposed a two-page
addendum to its main execution protocol. The United States
Marshals Service concurred in the proposal. On July 24, 2019,
the Attorney General approved the addendum and directed the
Bureau to adopt it. BOP did so the next day. This 2019
addendum makes pentobarbital the sole lethal substance to be
used in federal executions. The addendum also specifies
procedural details such as dosage, identification of appropriate
injection sites, and the number of backup syringes.
C
This appeal arises from several consolidated cases in
which twelve death-row inmates challenge the federal
execution protocol. The first of these cases was filed in 2005,
by three inmates who are not parties to this appeal. With the
government’s consent, the district court stayed their executions
pending the decision in Hill v. McDonough, 547 U.S. 573
(2006). The government subsequently requested that the case
7
be stayed pending the decision in Baze. With no objection from
the inmates, the district court granted the request. In 2011, the
government announced that it lacked the substances necessary
to implement its execution protocol. From then through 2019,
the consolidated cases were stayed, and the government
submitted status reports explaining that its revision of the
protocol was ongoing. During that time, one of the plaintiffs
involved in this appeal—Alfred Bourgeois—filed a complaint
challenging the unrevised protocol. On the parties’ joint
motion, that lawsuit was stayed pending the revision.
On July 25, 2019, the Department of Justice informed the
district court that it had adopted a revised protocol providing
for the use of pentobarbital. That same day, DOJ set execution
dates for the four plaintiffs involved in this appeal: Daniel Lee,
Wesley Purkey, Dustin Honken, and Bourgeois. Each of them
moved for a preliminary injunction. Collectively, they claimed
that the 2019 protocol and addendum violate the FDPA, the
Administrative Procedure Act, the Federal Food, Drug, and
Cosmetic Act, the Controlled Substances Act, and the First,
Fifth, Sixth, and Eighth Amendments to the Constitution.
On November 20, 2019, the district court issued a
preliminary injunction prohibiting the government from
executing any of the four plaintiffs. In re Fed. Bureau of
Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019
WL 6691814 (D.D.C. Nov. 20, 2019). The court held that the
plaintiffs were likely to succeed on the merits of their claim
“that the 2019 Protocol exceeds statutory authority.” Id. at *7.
In particular, the court concluded that “the FDPA gives
decision-making authority regarding ‘implementation’” of
federal death sentences to states. Id. at *4. Thus, “insofar as
the 2019 Protocol creates a single implementation procedure it
is not authorized by the FDPA.” Id. at *7. The court reasoned
that the requirement to conduct executions “in the manner
8
prescribed” by state law likely applies both to the selection of
an execution method, such as lethal injection, and to
“additional procedural details” such as the precise procedures
for “how the intravenous catheter is to be inserted.” Id. at *4,
*6. The court did not address whether the plaintiffs were likely
to succeed on their various other claims. The court further held
that the balance of equities and the public interest favored a
preliminary injunction. Id. at *7.
The government filed an interlocutory appeal under 28
U.S.C. § 1292(a)(1) and moved this Court immediately to stay
or vacate the injunction. Without addressing the merits, we
concluded that the motion did not meet “the stringent
requirements for a stay pending appeal.” Order at 1, Roane v.
Barr, No. 19-5322 (D.C. Cir. Dec. 2, 2019).
The government applied to the Supreme Court for an
emergency stay or vacatur of the preliminary injunction. The
Court denied the application but directed us to decide the
government’s appeal “with appropriate dispatch.” Barr v.
Roane, 140 S. Ct. 353 (2019 mem.). Three justices explained
their view that the government was “very likely” to succeed on
appeal. Id. (statement of Alito, J.).
We then ordered expedited briefing and argument on the
government’s appeal.
II
A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008).
A party “seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in
9
the public interest.” Id. at 20. On appeal, we review the district
court’s legal conclusions de novo and its weighing of the four
relevant factors for abuse of discretion. Abdullah v. Obama,
753 F.3d 193, 197–98 (D.C. Cir. 2014).
In reviewing a district court’s conclusion as to likelihood
of success, “[t]here are occasions … when it is appropriate to
proceed further and address the merits” directly. Munaf v.
Geren, 553 U.S. 674, 689–92 (2008); see also Wrenn v. District
of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). For several
reasons, we exercise our discretion to resolve the merits of
plaintiffs’ primary FDPA claim. This claim is a purely legal
one, which the parties have briefed thoroughly. At oral
argument, the parties agreed that we should decide it now.
Finally, assessing only the likelihood of success would invite
further litigation and delays on remand, which would hardly
constitute appropriate dispatch.
The plaintiffs press two distinct claims under the FDPA.
The first, on which the district court found they were likely to
succeed, involves the requirement to implement federal
executions in the manner provided by state law. As explained
in separate opinions that follow, Judge Katsas and Judge Rao
both reject that claim on the merits. Judge Katsas concludes
that the FDPA regulates only the top-line choice among
execution methods, such as the choice to use lethal injection
instead of hanging or electrocution. Judge Rao concludes that
the FDPA also requires the federal government to follow
execution procedures set forth in state statutes and regulations,
but not execution procedures set forth in less formal state
execution protocols. Judge Rao further concludes that the
federal protocol allows the federal government to depart from
its procedures as necessary to conform to state statutes and
regulations. On either of their views, the plaintiffs’ primary
FDPA claim is without merit. Accordingly, the preliminary
10
injunction must be vacated, and judgment for the government
must be entered on this claim.
Alternatively, the plaintiffs contend that the federal
protocol and addendum reflect an unlawful transfer of authority
from the United States Marshals Service to the Federal Bureau
of Prisons. The district court did not address this claim, but the
plaintiffs press it as an alternative basis for affirmance, and
both parties ask us to resolve it. A court has discretion to
consider alternative grounds for affirmance resting on purely
legal arguments. See, e.g., United States v. Anthem, Inc., 855
F.3d 345, 349 (D.C. Cir. 2017). And as noted above, in
addressing likelihood of success on the merits, a court has
discretion to decide the claim. Two of us address the
alternative FDPA claim here. As explained in their separate
opinions, Judge Katsas would reject the claim on the merits,
and Judge Rao would hold that it was forfeited.
The government also asks us to decide whether its protocol
and addendum violate the notice-and-comment requirement of
the Administrative Procedure Act. The district court did not
reach that issue, and the plaintiffs urge us not to reach it. Judge
Katsas and Judge Rao resolve the notice-and-comment claim
because, on their view, it involves purely legal questions
intertwined with the merits of the FDPA issues at the center of
this appeal. On the merits, Judge Katsas and Judge Rao
conclude that the 2019 protocol and addendum are rules of
agency organization, procedure, or practice exempt from the
APA’s requirements for notice-and-comment rulemaking.
Judgment for the government must be entered on this claim.
Finally, the government asks us to reject the plaintiffs’
claims under the Food, Drug, and Cosmetic Act and the
Controlled Substances Act. We decline to do so because those
claims were neither addressed by the district court nor fully
11
briefed in this Court. We do share the government’s concern
about further delay from multiple rounds of litigation. But the
government did not seek immediate resolution of all the
plaintiffs’ claims, including the constitutional claims and the
claim that the protocol and addendum are arbitrary and
capricious under the APA. Thus, regardless of our disposition,
several claims would remain open on remand.
III
The Court vacates the preliminary injunction and remands
the case to the district court for further proceedings consistent
with this opinion. For the reasons given in his separate opinion,
Judge Tatel dissents.
So ordered.
KATSAS, Circuit Judge, concurring: The principal
question in this appeal is what constitutes a “manner” of
execution within the meaning of the Federal Death Penalty Act
(FDPA). The government says that “manner” here means
“method,” such that the FDPA regulates only the top-line
choice among execution methods such as hanging,
electrocution, or lethal injection. The plaintiffs, the district
court, and Judge Tatel say that “manner” encompasses any
state execution procedure, down to the level of how
intravenous catheters are inserted. Judge Rao agrees, at least if
the procedure is set forth in a state statute or regulation.
In my view, the government is correct. The FDPA’s text,
structure, and history show that “manner” refers only to the
method of execution. Moreover, the federal execution protocol
does not violate the FDPA by transferring authority from the
United States Marshals Service to the Federal Bureau of
Prisons. Furthermore, the protocol did not need to be
promulgated through notice-and-comment rulemaking. For
these reasons, I would vacate the preliminary injunction and
remand the case with instructions to enter judgment for the
government on the plaintiffs’ FDPA and notice-and-comment
claims. Finally, apart from the merits, I would vacate the
preliminary injunction because the balance of equities tips
decidedly in favor of the government.
I
A
The FDPA requires federal executions to be implemented
“in the manner prescribed by the law of the State in which the
sentence is imposed.” 18 U.S.C. § 3596(a). This appeal turns
on the level of detail at which that provision operates. Does it
cover the use of lethal injection rather than other execution
methods such as hanging or electrocution? The selection of a
lethal substance or substances? How much of the substance to
2
inject, and how many syringes to use for the injections? How
many intravenous lines to insert, and where to insert them?
Who should insert the lines? In modern execution practice,
governments address such issues systematically and in advance
of any execution. At the federal level, they are addressed by
the FDPA, Department of Justice regulations, the federal
execution protocol, and the protocol addendum. Likewise, at
the state level, they are addressed in comparable detail by state
statutes, regulations, and execution protocols.
The government contends that the “manner” of execution
regulated by the FDPA is simply the method or mode of
execution—the top-line choice among mechanisms of fatality
such as hanging, firing squad, electrocution, lethal gas, or lethal
injection. Under that interpretation, the federal protocol is
clearly consistent with the FDPA: Every state that authorizes
capital punishment uses lethal injection “as the exclusive or
primary means of implementing the death penalty.” Baze v.
Rees, 553 U.S. 35, 42 (2008) (plurality opinion). The federal
regulations likewise designate lethal injection as the means for
implementing capital punishment, 28 C.F.R. § 26.3(a)(4), and
the federal protocol establishes procedures for these injections.
The district court and the plaintiffs read the FDPA much
more broadly. According to the district court, the FDPA covers
not only the method of execution but also “additional
procedural details such as the substance to be injected or the
safeguards taken during the injection.” In re Fed. Bureau of
Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019
WL 6691814, at *4 (D.D.C. Nov. 20, 2019). These “additional
procedural details” include even provisions on “how the
intravenous catheter is to be inserted.” See id. at *6. As an
example, the district court cited state protocol provisions
requiring the catheter to be inserted by “medically trained”
personnel, id. at *6 n.6, whereas the federal protocol requires
3
the method of insertion to be determined based on “a
recommendation from qualified personnel” or “the training and
experience of personnel” on the execution team, App. 75. The
plaintiffs largely embrace the district court’s position, though
they seek to carve out exceptions for de minimis deviations
from state procedures, as well as for procedures insufficiently
related to implementation of the death sentence.
1
In my view, the government is correct. All indicators of the
FDPA’s meaning—statutory text, history, context, and
design—point to the same conclusion. The FDPA requires
federal executions to follow the method of execution provided
by the law of the state in which the sentence is imposed, but it
does not require federal executions to follow the “additional
procedural details” invoked by the district court.
The district court began its analysis quite properly, by
addressing the plain meaning of the critical word “manner.”
The court recognized that the government’s position would be
correct if the FDPA had addressed the “method” rather than the
“manner” of execution, because the word “method” bears
“particular meaning in the death penalty context”—i.e., it
denotes the top-line choice among mechanisms of death such
as hanging, electrocution, or lethal injection. In re Execution
Protocol Cases, 2019 WL 6691814, at *4. But, the district
court reasoned, “manner” is broader than “method” because
one dictionary defines “manner” as “a mode of procedure or
way of acting.” Id. (quotation marks omitted). This analysis
overlooks other definitions, as well as the need to consider
statutory history and context, see, e.g., Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 668–69 (2007);
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132–33 (2000). Other dictionaries indicate that “manner” is
4
synonymous with “method” as well as “mode.” See, e.g.,
Manner, Black’s Law Dictionary (6th ed. 1990) (“A way,
mode, method of doing anything, or mode of proceeding in any
case or situation.”). And history strongly indicates that, in the
specific context of capital punishment, all three terms refer
only to the top-line choice. This is reflected in practices and
usages throughout American history.
First, consider hanging. In 1790, the First Congress
enacted a bill providing that “the manner of inflicting the
punishment of death, shall be by hanging the person convicted
by the neck until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat.
112, 119. Congress thus described “hanging” as “the” unitary
“manner” of imposing capital punishment, without undertaking
to specify subsidiary details such as the length of the rope, how
it would be fastened around the neck, or the training of the
hangman. This approach followed the law of England, where
one common form of capital punishment was to be “hanged by
the neck till dead.” 4 W. Blackstone, Commentaries on the
Laws of England 370 (1769). Blackstone further stated that a
“sheriff cannot alter the manner of the execution by
substituting one death for another,” for “even the king cannot
change the punishment of the law, by altering the hanging or
burning into beheading.” Id. at 397–98 (emphasis added). This
makes clear that hanging itself was considered a “manner” of
execution, as distinct from burning or beheading. But no
evidence suggests that the sheriff (or the king) could not
improvise “procedural details” such as the length of the rope.
In using “manner” to mean “method,” the First Congress
followed common historical usage. See, e.g., 1 J. Ash, The New
and Complete Dictionary of the English Language (2d ed.
1795) (defining “manner” as “[a] form, a method”); 2
S. Johnson, A Dictionary of the English Language (1755)
(“Form; method.”). The use of hanging as “the manner” of
5
carrying out federal executions remained unchanged from 1790
until 1937. During that time, no federal officials undertook to
regulate its “procedural details.” And during much of that time,
hanging “was virtually never questioned,” even though a rope
too long could produce a beheading, while a rope too short
could produce a prolonged death by suffocation. Bucklew v.
Precythe, 139 S. Ct. 1112, 1124 (2019) (quotation marks
omitted).1
Consider also practices and usages with respect to the firing
squad, another common method of execution into the 1800s.
In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court
held that the use of a firing squad for executions does not
violate the Eighth Amendment. The statute at issue provided
for “death by being shot, hung, or beheaded,” and the court
imposed a sentence requiring that the defendant be “shot until
… dead.” Id. at 131–32 (quotation marks omitted). The
legislature did not undertake to regulate subsidiary “procedural
details” such as, in the case of a firing squad, the kind or
number of guns, the type of ammunition, where the shooters
would aim, or how far away they would stand. Nor did the
sentencing court specify any of those details. And although
such details might have affected the likelihood of unnecessary
suffering during the execution, the Court never suggested that
the Eighth Amendment claim turned on any of them. To the
1
Judge Rao seeks to downplay the Crimes Act of 1790 as merely
reflecting usage “on a single occasion.” Post, at 19. But that statute
governed “the manner” of conducting federal executions for 147
years, and it is a direct predecessor of the FDPA provision at issue
here. It is obviously central to the question presented. Judge Rao
notes that section 13 of the Crimes Act of 1790 set forth different,
more detailed “manners” of committing the offense of maiming. Id.
at 14. True enough, but the FDPA traces back to section 33 of the
Act, which, in the specific context of executions, used “manner” to
refer only to the top-line choice of method.
6
contrary, it surveyed various rules and customs on whether
death sentences would be carried out “by shooting or hanging.”
See id. at 132–36. Moreover, it described the governing statute
as addressing “the manner” of execution, id. at 136, and it used
the words “manner,” “method,” and “mode” interchangeably,
see, e.g., id. at 134 (“shooting or hanging is the method”); id.
at 137 (sentence “let him be hanged by the neck” addresses “the
mode of execution” (quotation marks omitted)).
The history of electrocution follows much the same pattern.
Introduced in 1888, it soon became “the predominant mode of
execution for nearly a century,” Baze, 553 U.S. at 42 (plurality
opinion), and the Supreme Court promptly upheld it as
constitutional, In re Kemmler, 136 U.S. 436 (1890). As
Kemmler recounted, electrocution came to replace hanging
because it was thought to be a more humane “manner” or
“method” or “mode” of execution—terms the Court again used
interchangeably. See id. at 442–47. Moreover, the underlying
legal and policy debates were framed as a unitary choice
between hanging and electrocution, and the reformers never
undertook to prescribe subsidiary “procedural details” such as
how strong an electric current would be used, where electrodes
would be attached, how the electric chair would be tested, or
who would train the electrocutioner. See id. at 444.2
2
Judge Rao highlights the Court’s statement that electrocution was
painless when performed “in the manner contemplated by the [New
York] statute.” Post, at 15; see Kemmler, 136 U.S. at 443–44. Here
is the key statutory provision, quoted in its entirety: “The
punishment of death must, in every case, be inflicted by causing to
pass through the body of the convict a current of electricity of
sufficient intensity to cause death, and the application of such current
must be continued until such convict is dead.” Ch. 489, Laws of the
State of New York § 505 (June 4, 1888), quoted in Kemmler, 136
7
In sum, here is what a reasonably informed English speaker
would have known as of 1937: For over 140 years, Congress
had designated hanging as “the manner of inflicting the
punishment of death” for federal capital sentences. English law
likewise had described “hanging” as a permissible “manner” of
executing a death sentence. “Manner” and “method” often
were used interchangeably, including by the Supreme Court in
assessing alternative execution methods such as hanging, firing
squad, or electrocution. And nobody focused on subsidiary
procedural details in the legal or policy debates over these
various execution methods.
The 1937 Act did not disturb this settled understanding
about the “manner” of executing capital punishment. To the
contrary, although Congress changed the governing rule, it
preserved the underlying semantic understanding. Whereas the
Crimes Act of 1790 had identified hanging as “the manner of
inflicting the punishment of death,” 1 Stat. at 119, the 1937 Act
provided a different rule for “[t]he manner of inflicting the
punishment of death”—i.e., use “the manner prescribed by the
laws of the State within which the sentence is imposed.” An
Act To Provide for the Manner of Inflicting the Punishment of
Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress’s
decision to carry forward the legally operative text—regarding
“the manner of inflicting the punishment of death”—also
carried forward the prevailing understanding about what
constituted a “manner” of execution. The reason for this is the
settled canon of construction, framed by Justice Frankfurter
U.S. at 444–45. The statute thus required nothing more than
electrocution. Judge Rao briefly notes other statutory details
governing the timing, location, and witnesses of the execution. Post,
at 16 n.9. They would have had no conceivable bearing on the
painlessness of electrocution, and they were irrelevant to the one
“manner” question that the Court framed, discussed, and decided—
the unitary choice between electrocution and hanging.
8
and routinely applied since, that “if a word is obviously
transplanted from another legal source, whether the common
law or other legislation, it brings the old soil with it.”
Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum. L. Rev. 527, 537 (1947). See, e.g., Taggart v.
Lorenzen, 139 S. Ct. 1795, 1801 (2019); Stokeling v. United
States, 139 S. Ct. 544, 551 (2019); Hall v. Hall, 138 S. Ct.
1118, 1128 (2018).3
3
Judge Rao seeks to downplay this canon in contending that
Congress’s usage in 1790 ought not matter much. She says that to
maintain consistent usage of “manner” in successor statutes is to
confuse the word’s abstract “sense,” which must remain fixed, with
its concrete “reference,” which can evolve. Post, at 19–20. She
bases this view on a law-review article that seeks to link originalism
to the theory of proper names espoused by the philosopher Gottlob
Frege, in pursuit of a “middle ground” between the interpretive
approaches of Justice Scalia and Justice Stevens. Green, Originalism
and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 558
(2006). Put aside the fact that leading philosophers hotly debate
whether proper names even have a “sense” apart from their
“reference.” See, e.g., S. Kripke, Naming and Necessity 22–70
(1980). Put aside the fact that no Supreme Court Justice or opinion
has adopted Professor Green’s account of how legal text is “partially
living and partially dead.” Green, supra, at 559. Put aside the fact
that, in my view, Justice Scalia was right that legal text has “a fixed
meaning, which does not change.” A. Scalia, Scalia Speaks:
Reflections on Law, Faith, and Life Well Lived 188 (E. Whelan &
C. Scalia eds., 2017). Even on Professor Green’s account, the
reference to a top-line execution method in the Crimes Act of 1790
has significant interpretive weight in construing that statute (and its
successors) over time. See Green, supra, at 560 (“While the framers
are fallible regarding the reference of their [legal] language, they are
still extremely useful guides.”). Thus, even accepting Professor
Green’s theory, Judge Rao errs by failing to give substantial weight
to how Congress used “manner” in the Crimes Act of 1790.
9
Likewise, the FDPA carried forward the relevant language
and “old soil” from the 1937 Act. In fact, the statutes are
virtually identical in all relevant respects. Both statutes provide
for implementation of federal death sentences in the “manner”
provided by state law. Compare 18 U.S.C. § 3596(a) (United
States marshal “shall supervise implementation of the sentence
in the manner prescribed by the law of the State in which the
sentence is imposed”), with 50 Stat. at 304 (“The manner of
inflicting the punishment of death shall be the manner
prescribed by the laws of the State within which the sentence
is imposed.”). Both statutes permit, but do not require, the use
of state facilities for federal executions. Compare 18 U.S.C.
§ 3597(a) (“A United States marshal charged with supervising
the implementation of a sentence of death may use appropriate
State or local facilities for the purpose, may use the services of
an appropriate State or local official or of a person such an
official employs for the purpose, and shall pay the costs thereof
in an amount approved by the Attorney General.”), with 50
Stat. at 304 (“The United States marshal charged with
execution of the sentence may use available State or local
facilities and the services of an appropriate State or local
official or employ some other person for such purpose, and pay
the cost thereof in an amount approved by the Attorney
General.”). And for convictions in states with no death penalty,
both statutes require conformity to the “manner” of execution
in some other state designated by the sentencing judge.
Compare 18 U.S.C. § 3596(a) (“If the law of the State does not
provide for implementation of a sentence of death, the court
shall designate another State, the law of which does provide for
the implementation of a sentence of death, and the sentence
shall be implemented in the latter State in the manner
prescribed by such law.”), with 50 Stat. at 304 (“If the laws of
the State within which sentence is imposed make no provision
for the infliction of the penalty of death, then the court shall
designate some other State in which such sentence shall be
10
executed in the manner prescribed by the laws thereof.”). This
wholesale copying surely indicates the preservation—not
abrogation—of previously settled understandings.
Nothing in 1994 usage compels a different understanding.
To the contrary, at that time, many state statutes continued to
describe the “manner” of execution as a top-line choice among
methods such as electrocution, lethal gas, or lethal injection.
See, e.g., Cal. Penal Code § 3604(a), (d) (1994) (“manner of
execution” is either by “lethal gas” or “intravenous injection of
a substance or substances in a lethal quantity sufficient to cause
death”); La. Rev. Stat. Ann. § 15:569 (1994) (“manner of
execution” is either “electrocution,” defined as “causing to pass
through the body of the person convicted a current of electricity
of sufficient intensity to cause death,” or “lethal injection,”
defined as “the intravenous injection of a substance or
substances in a lethal quantity into the body of a person
convicted”); Mo. Rev. Stat. § 546.720 (1994) (“The manner of
inflicting the punishment of death shall be by the
administration of lethal gas or by means of the administration
of lethal injection.”); Vt. Stat. Ann. tit. 13, § 7106 (1994)
(“Manner of execution” is “causing to pass through the body of
the convict a current of electricity of sufficient intensity to
cause death”). A handful of state statutes went one small step
further, by using “manner” to refer to types of lethal
substances. But none of them required the use of any particular
substance, much less even more granular details. See Colo.
Rev. Stat. § 16-11-401 (1994) (“The manner of inflicting the
punishment of death shall be by the administration of a lethal
injection,” defined as “continuous intravenous injection of a
lethal quantity of sodium thiopental or other equally or more
effective substance sufficient to cause death.”); Md. Code
Ann., Crimes and Punishments § 71(a) (1994) (“The manner of
inflicting the punishment of death shall be the continuous
intravenous administration of a lethal quantity of an ultrashort-
11
acting barbiturate or other similar drug in combination with a
chemical paralytic agent.”);4 Miss. Code Ann. § 99-19-51
(1994) (similar to Maryland, but with alternative provision that
“the manner of inflicting the punishment of death shall be by
lethal gas”); Okla. Stat. tit. 22, § 1014 (1994) (“Manner of
inflicting punishment of death” is either “continuous,
intravenous administration of a lethal quantity of an ultrashort-
acting barbiturate in combination with a chemical paralytic
agent,” or “electrocution” or “firing squad”).5
As of 1994, Supreme Court decisions reflected similar
understandings. Between 1937 and 1994, the Court became
much more active in policing capital punishment. But the
Court never retreated from its holdings that the firing squad and
electrocution are constitutional methods of execution.
Likewise, the Court had not yet approved granular, post-habeas
challenges to the specific details of an execution. To the
contrary, in Gomez v. United States District Court, 503 U.S.
653 (1992) (per curiam), the Court summarily rejected a claim
that “execution by lethal gas” violated the Eighth Amendment,
and it did so because the claim had not been properly channeled
through the federal habeas statute. Id. at 653–54. The Court’s
first, tentative approval of claims challenging procedural
details such as the method of “venous access” did not come
until a decade after the FDPA was enacted, Nelson v.
4
Three other states used a similar formulation. See N.H. Rev. Stat.
Ann. § 630:5, XIII (1994); N.M. Stat. § 31-14-11 (1994); S.D.
Codified Laws § 23A-27A-32 (1994).
5
Despite this occasional, slightly broader usage of “manner” in state
statutes, the traditional usage remained common, and no state statute
even remotely addressed items such as the details of catheter
insertion. In any event, the obvious model for the FDPA was the
1937 federal statute, so it is by far the most important data point.
12
Campbell, 541 U.S. 637 (2004), and its wholesale approval of
post-habeas challenges to the details of lethal-injection
protocols did not come until even later, Hill v. McDonough,
547 U.S. 573 (2006).6
In sum, practices and usages in 1994 mirrored those in
1937: Inquiries into the manner or method of execution
focused on the choice between say, lethal gas or lethal
injection—not the choice of specific lethal agents or
procedures for releasing the gas or inserting the catheter. In
common understanding, what mattered was the top-line choice.
Within the FDPA itself, statutory context reinforces this
understanding. The FDPA states that the marshal responsible
for supervising a federal execution “may use appropriate State
or local facilities” and “may use the services of an appropriate
State or local official.” 18 U.S.C. § 3597(a). These grants of
authority would be unnecessary if section 3596(a), the
“manner” provision directly at issue, independently required
the use of all state execution procedures. After all, states
conduct executions in designated state facilities. See, e.g., Ind.
Code § 35-38-6-5 (2019) (“inside the walls of the state
prison”); Mo. Rev. Stat. § 546.720 (2019) (“within the walls of
a correctional facility of the department of corrections”); Tex.
Dep’t of Crim. Justice, Execution Procedure § III.B (2019)
(Huntsville Unit). Thus, if section 3596 required use of state
facilities, section 3597 accomplished nothing by permitting
their use. Of course, interpretations that create surplusage are
disfavored. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31
6
Judge Rao cites a handful of judicial opinions loosely using the
word “manner” to refer to subsidiary execution details. Post, at 4–5
& n.2. Three of them post-date Nelson and Hill—the first Supreme
Court decisions to suggest that such details might have any legal
relevance. Two others are either lower-court decisions or dissents.
None involves a statutory usage of “manner.”
13
(2001). The plaintiffs respond that section 3597 creates a
“limited exception to Section 3596, permitting (but not
requiring) the Government to use its own facilities.”
Appellees’ Br. 30 n.6. But that makes section 3597 even
stranger, for providing that the federal government “may” use
“State” facilities would be a remarkably clumsy way of
permitting the federal government to use federal facilities.
Finally, consider statutory design. In “ascertaining the
plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language
and design of the statute as a whole.” K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988). Here, the plaintiffs’
interpretation of “manner” would frustrate a principal objective
of the Federal Death Penalty Act—to provide for an
administrable scheme of capital punishment. As Justice Alito
explained, the plaintiffs’ interpretation “would require the BOP
to follow procedures that have been attacked as less safe than
the ones the BOP has devised (after extensive study); it would
demand that the BOP pointlessly copy minor details of a State’s
protocol; and it could well make it impossible to carry out
executions of prisoners sentenced in some States.” Barr v.
Roane, 140 S. Ct. 353, 353 (2019) (statement of Alito, J.). The
plaintiffs dismiss these points as mere policy arguments, but
they are more than that.
The FDPA was enacted as Title VI of the Violent Crime
Control and Law Enforcement Act of 1994. See Pub. L. No.
103-322, § 60001, 108 Stat. 1796, 1959. These statutes sought
to ensure a workable and expanded system of capital
punishment. The larger statute created more than two dozen
new capital offenses. See DOJ, Criminal Resource Manual
§ 69 (2020). And the FDPA established procedures to ensure
the fair administration of capital punishment—by specifying
aggravating circumstances that a jury must find in order to
14
render the defendant eligible for the death penalty, 18 U.S.C.
§ 3592(b)–(d); by allowing a jury to consider any mitigating
circumstances, id. § 3592(a); and by requiring separate guilt
and sentencing determinations, id. § 3593. These provisions
cured potential Eighth Amendment problems, see, e.g.,
Maynard v. Cartwright, 486 U.S. 356, 361–63 (1988)
(aggravating factors); Eddings v. Oklahoma, 455 U.S. 104,
110–12 (1982) (mitigating factors); Gregg v. Georgia, 428
U.S. 153, 190–92 (1976) (plurality opinion) (separate
sentencing hearing), to ensure that the scheme would be usable.
Finally, the FDPA contains one provision specifically designed
to prevent the choices of an individual state from effectively
nullifying the federal death penalty. It provides: “If the law of
the State does not provide for implementation of a sentence of
death, the court shall designate another State, the law of which
does provide for the implementation of a sentence of death ….”
18 U.S.C. § 3596(a).
The plaintiffs do not dispute that this scheme would be
upset if individual states could effectively obstruct the federal
death penalty. Yet their interpretation would make such
obstruction likely. For example, states could block federal
death sentences by refusing to disclose their full execution
protocols. Some might do so because of moratoria on the use
of capital punishment, like those ordered by the governors of
California and Pennsylvania.7 Other states simply may wish
not to assist in the enforcement of federal law. See, e.g., Printz
v. United States, 521 U.S. 898, 923 (1997). And state statutes
may prohibit disclosure of state execution protocols. See, e.g.,
Ark. Code Ann. § 5-4-617(i)(1) (2019). The plaintiffs’ only
7
See Calif. Exec. Order No. N-09-19 (Mar. 13, 2019); Governor
Tom Wolf Announces a Moratorium on the Death Penalty in
Pennsylvania, Office of the Pa. Gov. (Feb. 13, 2015), https://www.
governor.pa.gov/newsroom/moratorium-on-the-death-penalty-in-
pennsylvania.
15
response is that the federal government obtained several state
protocols in developing its own 2019 protocol. Yet while about
thirty states authorize capital punishment, the federal
government was able to obtain only five actual state protocols,
plus a “summary” of the others provided by a private advocacy
group. App. 10.
Adherence to the minutiae of state execution protocols is
not only pointless, but practically impossible. State protocols
are as detailed as the federal one—from Arkansas’s color-
coding to ensure that three lethal agents are properly separated
among nine syringes, Arkansas Lethal Injection Procedure,
Attachment C, § III.5.a (Aug. 6, 2015), to Indiana’s seventeen-
step “procedure for venous cut down,” Ind. Dep’t of Corr.,
Facility Directive ISP 06-26: Execution of Death Sentence,
Appendix A (Jan. 22, 2014). Conducting a single execution
under the federal protocol requires extensive preparation by a
trained execution team of over 40 individuals, as well as further
support from 250 more individuals at the federal execution
facility in Terre Haute, Indiana. App. 93–94. Simultaneously
managing the same logistical challenges under a few dozen
state protocols—all different—would be all but impossible.
The plaintiffs offer two limiting principles to mitigate this
problem, but neither would work. First, they suggest a de
minimis exception to the otherwise unyielding requirement to
follow state procedures. But that would invite endless
litigation over which requirements are de minimis. Must the
federal government follow state provisions regarding the
number of backup syringes? Compare App. 75 (two sets under
federal protocol), with Mo. Dep’t of Corr., Preparation and
Administration of Chemicals for Lethal Injection §§ B, E (one
set under Missouri protocol). The type of catheters used? The
selection of execution personnel? The training of those
personnel? The same problem inheres in the plaintiffs’ related
16
suggestion that some protocol details might not relate
sufficiently to “implementation” of the sentence. Would that
exception cover rules for how long the inmate must remain
strapped to the gurney? App. 40 (under federal protocol,
between 30 minutes and three hours). Rules about whom the
inmate may have present? Rules about the inmate’s final meal
or final statement? Rules about opening and closing the
execution chamber’s drapes? All such questions would be
raised at the last minute—likely producing stays, temporary
restraining orders, preliminary injunctions, and interlocutory
appeals like this one, which will delay lawful executions for
months if not years. In sum, the plaintiffs’ interpretation would
make the federal death penalty virtually un-administrable.8
2
The plaintiffs’ further counterarguments are unavailing.
First, the plaintiffs highlight the statutory text immediately
surrounding “manner”—the language stating that a United
States marshal “shall supervise implementation” of a death
sentence in the manner prescribed by state law. 18 U.S.C.
§ 3596(a). The plaintiffs contend that “implementation” of a
death sentence refers to the entire process for carrying it out,
not just the use of a top-line execution method. But the only
8
Judge Rao correctly notes that bargains reflected in statutory text
must be enforced as against generalized appeals to statutory purpose.
Post, at 22–24. But statutory purpose, as reflected in “the language
and design of the statute as a whole,” can help determine textual
meaning or resolve textual ambiguity. See, e.g., K Mart, 486 U.S. at
291. Judge Rao does not dispute that one significant purpose of the
FDPA is to ensure an administrable system of capital punishment,
and her own analysis thus properly considers whether the plaintiffs’
proposed construction would raise “practical, and perhaps
insurmountable, difficulties to the implementation of federal death
sentences.” Post, at 12–13.
17
implementing detail that must follow state law is the “manner”
of carrying out the execution—which begs the question of what
that term does and does not encompass.
The plaintiffs next invoke a different FDPA provision
defining aggravating circumstances to include cases where
“[t]he defendant committed the offense in an especially
heinous, cruel, or depraved manner in that it involved torture
or serious physical abuse to the victim.” 18 U.S.C.
§ 3592(c)(6). They reason that this FDPA provision uses
“manner” broadly, so other FDPA provisions must do likewise.
But the presumption of consistent usage “readily yields to
context, especially when” the term at issue “takes on distinct
characters in distinct statutory provisions.” Return Mail, Inc.
v. USPS, 139 S. Ct. 1853, 1863 (2019) (quotation marks
omitted). That qualification perfectly fits this case, for each
FDPA provision has its own history. As explained above, the
provision regarding the “manner” of executing a death sentence
traces back to the Crimes Act of 1790. In contrast, section
3592(c)(6) was copied nearly verbatim from the Anti-Drug
Abuse Act of 1988, see Pub. L. No. 100-690, § 7001, 102 Stat.
4181, 4392, which in turn responded to a Supreme Court
decision allowing consideration of a “heinous, atrocious, or
cruel” aggravating factor only as narrowed to require “torture
or serious physical abuse,” Cartwright, 486 U.S. at 363–65
(quotation marks omitted). Because section 3592(c)(6) carries
its own “old soil,” the presumption of consistent usage must
yield to context.
Finally, the plaintiffs stress that between 1995 and 2008,
Congress failed to enact some nine bills that would have
allowed federal capital punishment to be implemented in a
manner independent of state law. But “failed legislative
proposals are a particularly dangerous ground on which to rest
an interpretation of a prior statute.” Cent. Bank of Denver, N.A.
18
v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187
(1994) (quotation marks omitted). The plaintiffs highlight DOJ
statements that the FDPA imperiled its 1993 regulation, which
establishes lethal injection as the sole method for federal
executions. But those statements were made when some states
still provided for electrocution “as the sole method of
execution.” See Baze, 553 U.S. at 42–43 n.1 (plurality
opinion). In 2009, Nebraska became the last death-penalty
state to authorize lethal injection as a permissible execution
method. See Act of May 28, 2009, L.B. 36, 2009 Neb. Laws
52. After that, attempts to amend the FDPA ceased, as did
DOJ’s support for them. So, DOJ’s current interpretation of
the FDPA to encompass methods of execution, but not
subsidiary procedural details, has been consistent.
3
Judge Rao takes a different approach advocated by none of
the parties. In her view, the word “manner” is flexible enough,
considered in isolation, to refer either to the top-line method of
execution or to the full panoply of execution procedures. Post,
at 1–6. So far, so good. She then reasons that, by requiring
federal executions to be conducted “in the manner prescribed
by the law of the State in which the sentence is imposed,”
Congress specified “the level of generality” for interpreting the
word “manner.” Id. at 1. She thus concludes that Congress
used “manner” in its broad sense, so as to include all execution
procedures—no matter how picayune—that are “prescribed by
the law of the State.” Id. at 22. For Judge Rao, as it turns out,
the key to this case is not the word “manner,” but the phrase
“prescribed by the law of the State.”
This account runs contrary to established rules of grammar
and statutory interpretation. As a matter of grammar, the
participial phrase “prescribed by the law of the State” functions
19
as an adjective and modifies the noun “manner.” By using the
adjective to construe the noun broadly, Judge Rao overlooks
“the ordinary understanding of how adjectives work.”
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,
368 (2018). “Adjectives modify nouns—they pick out a subset
of a category that possesses a certain quality.” Id. They
ordinarily do not expand the meaning of the noun they modify.
Thus, “critical habitat” must first be “habitat.” See id.
Likewise, “full costs” must first be “costs.” See Rimini Street,
Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 878–79 (2019). And
here, whatever is “prescribed by the law of the State” must first
be a “manner” of execution. In short, the limiting adjective
provides no basis for interpreting the noun broadly.
To be sure, adjectival phrases can clarify the meaning of
ambiguous nouns by ruling out certain possibilities through
context. For example, in the abstract, the noun “check” might
refer to “an inspection, an impeding of someone else’s
progress, a restaurant bill, a commercial instrument, a patterned
square on a fabric, or a distinctive mark-off.” A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts 70
(2012). But when “check” is combined with the adjectival
phrase “made payable to the IRS,” we know that the noun
refers only to a commercial instrument. In this example, the
phrase “made payable to the IRS” clarifies the meaning of
“check” because it is consistent with only one possible
understanding of it.
The FDPA does not work like that. Divorced from its
statutory history, the noun “manner” could mean either the top-
line execution method or all state execution procedures. But
the adjectival phrase “prescribed by the law of the State”
cannot resolve this ambiguity, because it is perfectly consistent
with both meanings. On the one hand, states use their laws to
prescribe the top-line method of execution. On the other hand,
20
they also use their laws to specify additional procedural details.
So the adjectival phrase “prescribed by the law of the State”
tells us nothing about the meaning of the noun “manner”—and
certainly does not undermine a historical understanding of that
term dating back to our country’s founding.9
Judge Rao stresses the assertedly limited scope of her
reading of the FDPA. She interprets the phrase “prescribed by
the law of the State” to mean execution procedures set forth
only in state “statutes and regulations carrying the force of
law,” but not in less formal state execution protocols. Post, at
6. And that interpretation, she concludes, “mitigates many of
the concerns raised by the district court’s broad reading” of the
FDPA. Id. at 26. All of this is a good reason for rejecting an
interpretation of the FDPA that encompasses procedural details
set forth only in state execution protocols. But it is not a good
reason for rejecting the historical understanding of “manner,”
which creates no practical concerns about administrability.
Judge Rao also understates the practical difficulties with
her proposed interpretation. For one thing, state statutes and
regulations do contain many granular details. Consider just the
four state death-penalty statutes before us in this case. The
Arkansas statute requires that catheters be “sterilized and
prepared in a manner that is safe.” Ark. Code Ann. § 5-4-
617(f) (2019). The Indiana statute excludes lawyers from the
persons who “may be present at the execution.” Ind. Code
9
To make the adjectival reference to state law narrow the noun
“manner,” Judge Rao must retreat to the position that “manner,”
construed without reference to the adjectival phrase, “is broad
enough to encompass execution procedures at every level of
generality.” Post, at 9 n.5. As explained above, that position cannot
be reconciled with historical usages and understandings tracing back
to the First Congress.
21
§ 35-38-6-6(a) (2019). The Missouri statute requires the
execution chamber to be “suitable and efficient.” Mo. Rev.
Stat. § 546.720.1 (2019). And the Texas statute prohibits the
infliction of any “unnecessary pain” on the condemned
prisoner. Tex. Code Crim. Proc. Ann. art. 43.24 (2019).
Assimilating the various state statutes and regulations will
present significant logistical challenges. And, of course, these
various provisions will provide ample opportunity for last-
minute stay litigation.
Moreover, the line between “formal” regulations “carrying
the force of law” and “informal policy or protocol,” post, at 6–
8, will be another fertile source of litigation. At the state level,
how “formal” is formal enough? Even at the federal level, the
question of which regulations have the force of law has been
“the source of much scholarly and judicial debate.” Perez v.
Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). Yet now, courts
will be forced to confront every variation of that question
arising out of the administrative law of some thirty states.
What if a state administrative procedure act permits rulemaking
through processes less formal than notice-and-comment?
What if a warden may change protocol procedures unilaterally,
but only under limited circumstances? What if a state court
moves the goalposts with an unexpected interpretation of the
governing rules? Litigation over such matters will foreclose
any realistic possibility for the prompt execution of federal
death sentences.10
10
To be clear, I agree with Judge Rao that the FDPA’s reference to
“law of the State” covers only state statutes and binding regulations.
Post, at 6–8. I also agree with Judge Rao that because the state
protocols in this case “do not appear to have the binding force of law,
they cannot be deemed part of the ‘law of the State.’” Id. at 28 n.15.
Accordingly, those propositions constitute holdings of this Court.
22
* * * *
For all these reasons, I would hold that the FDPA requires
the federal government to follow state law regarding only the
method of execution and does not regulate the various
subsidiary details cited by the plaintiffs and the district court.
On that interpretation, the plaintiffs’ primary FDPA claim is
without merit.
B
In the alternative, the plaintiffs contend that the 2019
protocol violates the FDPA by impermissibly shifting authority
from the United States Marshals Service to the Federal Bureau
of Prisons. The plaintiffs rest this argument on FDPA
provisions requiring a United States marshal to “supervise
implementation” of the death sentence. 18 U.S.C. § 3596(a);
see also id. § 3597(a). The district court did not reach this
argument, but the parties have briefed it and the plaintiffs urge
it as an alternative ground for affirmance.
The execution protocol does not strip the Marshals Service
of the power to supervise executions. To the contrary, it
requires a “United States Marshal designated by the Director
of the USMS” to oversee the execution and to direct which
other personnel may be present at it. App. 30. The “execution
process,” which starts at least thirty minutes before the actual
execution, cannot begin without the marshal’s approval. App.
40. The same is true for the execution itself. App. 44, 68.
Individuals administering the lethal agents are “acting at the
See Marks v. United States, 430 U.S. 188, 193–94 (1977). But I do
not share Judge Rao’s optimism that a “law of the State” limitation,
imposed on an otherwise unbounded interpretation of “manner,” will
avoid “practical, and perhaps insurmountable, difficulties to the
implementation of federal death sentences.” Post, at 12–13.
23
direction of the United States Marshal.” App. 74. And once
the execution is complete, the marshal must notify the court
that its sentence has been carried out. App. 44–45. The
protocol thus tasks the USMS with supervising executions.
In any event, federal law vests all powers of DOJ
components in the Attorney General and permits him to
reassign powers among the components. “All functions of
other officers of the Department of Justice and all functions of
agencies and employees of the Department of Justice are vested
in the Attorney General.” 28 U.S.C. § 509. The Marshals
Service is “a bureau within the Department of Justice under the
authority and direction of the Attorney General.” Id. § 561(a).
Its powers are thus ultimately vested in the Attorney General.
Moreover, the Attorney General may delegate his powers to
“any other officer, employee, or agency of the Department of
Justice.” Id. § 510. Together, these provisions permit the
Attorney General to reassign duties from the Marshals Service
to the Bureau of Prisons.
The plaintiffs invoke United States v. Giordano, 416 U.S.
505 (1974). There, the Supreme Court held that a statute
“expressly” limiting the Attorney General’s power to delegate
wiretap authority to a handful of enumerated officials qualified
his general authority to reassign DOJ functions. Id. at 514. But
the FDPA contains no such language expressly prohibiting the
Attorney General from deciding or delegating matters relating
to executions. For these reasons, the protocol allocates duties
consistent with the FDPA, so the plaintiffs’ alternative FDPA
argument is also without merit.11
11
Judge Rao contends that the plaintiffs forfeited this argument by
not raising it below. Post, at 32. But plaintiff Lee, in support of his
motion for a preliminary injunction, identified eight provisions in the
24
C
The federal protocol is both a procedural rule and a general
policy statement exempted from the notice-and-comment
requirements of the Administrative Procedure Act. See 5
U.S.C. § 553(b)(3)(A).
“The critical feature of a procedural rule is that it covers
agency actions that do not themselves alter the rights or
interests of parties.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d
243, 250 (D.C. Cir. 2014) (quotation marks omitted). The
federal protocol does not alter the plaintiffs’ rights or interests,
which were all but extinguished when juries convicted and
sentenced them to death. Moreover, pre-existing law
establishes lethal injection as the method of execution, 28
C.F.R. § 26.3(a)(4), and the protocol simply sets forth
procedures for carrying out the injections.
The execution protocol is also a general statement of
agency policy. In defining this category, “[o]ne line of analysis
execution protocol that he says impermissibly granted authority to
the Bureau of Prisons. See Lee Mot. for Prelim. Inj., In re Execution
Protocol Cases, No. 1:19-mc-145 (D.D.C.), ECF Doc. 13-1, at 10–
12. Lee argued that each of the provisions is “[c]ontrary to Section
3596 of [the] FDPA, which only refers to the U.S. Marshal
supervising implementation.” Id. Moreover, the government did not
argue for a forfeiture, and thus “forfeited [the] forfeiture argument
here.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014). And for
several reasons, it would make good sense for us to excuse any
forfeiture: The plaintiffs’ alternative FDPA claim turns on purely
legal questions, it was fully briefed on appeal, both parties ask us to
decide it, the Supreme Court has asked us to proceed with
appropriate dispatch, and this claim, even if not pursued in the
preliminary-injunction motions, would remain live on remand.
25
considers the effects of an agency’s action, inquiring whether
the agency has (1) impose[d] any rights and obligations, or (2)
genuinely [left] the agency and its decisionmakers free to
exercise discretion.” Clarian Health West, LLC v. Hargan, 878
F.3d 346, 357 (D.C. Cir. 2017) (quotation marks omitted). A
second line “looks to the agency’s expressed intentions,
including consideration of three factors: (1) the [a]gency’s own
characterization of the action; (2) whether the action was
published in the Federal Register or the Code of Federal
Regulations; and (3) whether the action has binding effects on
private parties or on the agency.” Id. (quotation marks
omitted). Here, the protocol contains no rights-creating
language. Just the opposite, it states that “[t]his manual
explains internal government procedures and does not create
any legally enforceable rights or obligations.” App. 24.
Likewise, the protocol explicitly permits “deviation[s]” and
“adjustment[s]” upon a determination “by the Director of the
BOP or the Warden” that the deviation is “required,” thus
preserving a healthy measure of agency discretion. Id. Finally,
the protocol was published in neither the Code of Federal
Regulations nor the Federal Register.
For these reasons, the federal protocol was not subject to
notice-and-comment requirements, and the plaintiffs’ contrary
claim is without merit.12
12
Given the flexibility built into the federal protocol, I agree with
Judge Rao that it may be adjusted to conform to state law to whatever
extent the FDPA may require. Post, at 29–30. That saves the
protocol itself from attack under Judge Rao’s construction of the
FDPA. But, as explained above, it opens the door to a wide range of
challenges to federal executions under the minutiae of state
execution statutes and regulations.
26
II
Wholly apart from the merits, I would reverse the
preliminary injunction because the balance of harms and the
public interest strongly favor the government. The party
seeking a preliminary injunction “must establish” not only a
likelihood of success on the merits, but also “that the balance
of equities tips in his favor, and that an injunction is in the
public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); see
also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542
(1987). And appellate courts may reverse preliminary
injunctions where, apart from the merits, the district court’s
equitable balancing constituted an abuse of discretion. See
NRDC, 555 U.S. at 24–26, 32.
In this case, the district court failed to recognize the
important governmental and public interest in the timely
implementation of capital punishment. The court concluded
that any “potential harm to the government caused by a delayed
execution is not substantial.” In re Execution Protocol Cases,
2019 WL 6691814, at *7. In contrast, the Supreme Court
frequently has explained that “both the [government] and the
victims of crime have an important interest in the timely
enforcement of a [death] sentence,” which is frustrated by
decades of litigation-driven delay. Bucklew, 139 S. Ct. at 1133
(quotation marks omitted). Indeed, “when lengthy federal
proceedings have run their course”—as is the case here—
“finality acquires an added moral dimension.” Calderon v.
Thompson, 523 U.S. 538, 556 (1998). “Only with an assurance
of real finality can the State execute its moral judgment in a
case.” Id. And “[o]nly with real finality can the victims of
crime move forward knowing the moral judgment will be
carried out.” Id. “To unsettle these expectations is to inflict a
profound injury to the ‘powerful and legitimate interest in
27
punishing the guilty.’” Id. (quoting Herrera v. Collins, 506
U.S. 390, 421 (1993) (O’Connor, J., concurring)).
These interests are magnified by the heinous nature of the
offenses committed by the appellees—all of whom murdered
children—as well as the decades of delay to date.
In 1999, an Arkansas jury convicted Daniel Lee of three
counts of murder in aid of racketeering. The murders were
committed in 1996, during a robbery to fund a white
supremacist organization. United States v. Lee, 374 F.3d 637,
641 (8th Cir. 2004). After overpowering a couple and their
eight-year-old daughter in their home, Lee and a confederate
“shot the three victims with a stun gun, placed plastic bags over
their heads, and sealed the bags with duct tape.” Id. at 641–42.
They then drove the family to a bayou, taped rocks to their
bodies, and threw them into the water to suffocate or drown.
Id. at 642. The Eighth Circuit affirmed Lee’s death sentence
on direct review, id., and thrice denied him collateral relief, Lee
v. United States, No. 19-3576 (8th Cir. Jan. 7, 2020); United
States v. Lee, 792 F.3d 1021 (8th Cir. 2015); United States v.
Lee, 715 F.3d 215 (8th Cir. 2013). Nonetheless, Lee continues
to pursue a fourth round of collateral review. Lee v. United
States, No. 2:19-cv-00468 (S.D. Ind. Dec. 5, 2019),
preliminary injunction vacated by Lee v. Watson, No. 19-3399
(7th Cir. Dec. 6, 2019).
In 2003, a Missouri jury convicted Wesley Purkey of the
kidnapping, rape, and murder of sixteen-year-old Jennifer
Long in 1998. United States v. Purkey, 428 F.3d 738, 744–45
(8th Cir. 2005). After killing the girl, Purkey dismembered her
body with a chainsaw and burned her remains. Id. at 745. The
jury found nine aggravating factors, including that Purkey had
previously bludgeoned a woman to death with a hammer. Id.
at 746. The Eighth Circuit affirmed Purkey’s death sentence
28
on direct review, id. at 744, and later denied him collateral
relief, Purkey v. United States, 729 F.3d 860 (8th Cir. 2013).
In 2004, an Iowa jury convicted Dustin Honken of
murdering five individuals in 1999, including two witnesses to
his drug trafficking and two young children. United States v.
Honken, 541 F.3d 1146, 1148 (8th Cir. 2008). Honken and an
accomplice kidnapped one witness, the witness’s girlfriend,
and her six- and ten-year-old daughters. Honken murdered all
four execution-style, by shooting each in the head. Id. at 1149–
51. Four months later, Honken murdered another prospective
witness against him. Id. at 1148, 1151. Then, while in prison
awaiting trial, he made plans to murder additional witnesses.
Id. at 1150–51. Because Iowa has no death penalty, the district
court ordered Honken to be executed in the manner provided
by Indiana law. The Eighth Circuit affirmed the death sentence
on direct appeal, id. at 1148, and then declined to set it aside on
collateral review, see Honken v. United States, 42 F. Supp. 3d
937, 1196–97 (N.D. Iowa 2013), certificate of appealability
denied, No. 14-1329 (8th Cir. May 2, 2014).
In 2004, a Texas jury convicted Alfred Bourgeois of
murdering his two-year-old daughter in 2002. United States v.
Bourgeois, 423 F.3d 501, 503 (5th Cir. 2005). Before the
murder, Bourgeois “systematically abused and tortured” the
child—he punched her in the face, whipped her with an
electrical cord, hit her head with a plastic bat so many times
that it “was swollen like a football,” and later bragged to a
fellow inmate that the “f––ing baby’s head got as big as a
watermelon.” Id. He bit her, scratched her, and burned the
bottom of her feet with a cigarette lighter. When others tried
to clean the sores, Bourgeois “would stop them and jam his
dirty thumb into the wounds, then force [her] to walk” on them.
Id. After her training potty tipped over, Bourgeois repeatedly
slammed the back of her head into a window. He refused to
29
take the girl’s limp body to the hospital, but a passer-by called
an ambulance. “The doctors sustained [her] on life support
until her mother could get to the hospital, where the baby died
in her mother’s arms the next day.” Id. at 505. In affirming
the death sentence, the Fifth Circuit described this as “not a
close case.” Id. at 512. That court later denied post-conviction
relief. United States v. Bourgeois, 537 F. App’x 604, 605 (5th
Cir. 2013) (per curiam).
These crimes were committed twenty-four, twenty-two,
twenty-one, and eighteen years ago respectively. Each
appellee received the full panoply of procedural protections
afforded under the Constitution and the FDPA. Each received
direct review and one or more rounds of collateral review. Yet
now, supported by fifteen lawyers on just this appeal, they
continue to litigate with a vengeance, ostensibly over the
manner of their executions, but with the obvious and intended
effect of delaying them indefinitely. As the Supreme Court
noted in Bucklew, with apparent exasperation, the people and
the surviving victims “deserve better.” 139 S. Ct. at 1134.
The district court stressed that the government took eight
years to craft its revised execution protocol. True enough, but
things were fine in 2008, with a three-drug execution protocol
in place and approved by the Supreme Court in Baze. Then
began a long and successful campaign of obstruction by
opponents of capital punishment, which removed sodium
thiopental from the market by 2011 and made pentobarbital
unavailable shortly thereafter. See Glossip v. Gross, 135 S. Ct.
2726, 2733 (2015). At that point, the government’s options
were severely limited, and it can hardly be faulted for
proceeding with caution. The government declined to press
ahead with an available three-drug protocol using
midazolam—a milder sedative than either sodium thiopental or
pentobarbital—and two other substances to stop respiration
30
and induce cardiac arrest. Its hesitation in the face of
uncertainty proved reasonable, as four Justices would later
describe this protocol as possibly “the chemical equivalent of
being burned at the stake.” Id. at 2781 (Sotomayor, J.,
dissenting).
Instead of proceeding with an inferior option, the
government waited until pentobarbital again became available.
That barbiturate—which can act as both sedative and lethal
agent—is “widely conceded to be able to render a person fully
insensate,” Zagorski v. Parker, 139 S. Ct. 11, 11–12 (2018)
(Sotomayor, J., dissenting from denial of application for stay
and denial of certiorari), thus ensuring a painless execution.
The government also took time to study the successful track
record of pentobarbital, documenting its use without incident
in more than 100 state executions, A.R. 929–30, as well as the
many cases that have upheld its use, see, e.g., Zink v. Lombardi,
783 F.3d 1089, 1102 (8th Cir. 2015) (en banc) (per curiam);
Ladd v. Livingston, 777 F.3d 286, 289–90 (5th Cir. 2015). The
government’s care in selecting an available and effective
execution substance does not diminish the importance of
carrying out the appellees’ sentences.
On the other side of the balance, a death sentence is of
course serious business. But here, there is no dispute that the
appellees may be executed by lethal injection, nor any
colorable dispute that pentobarbital will cause anything but a
swift and painless death. Instead, the plaintiffs contend only
that their executions cannot occur until the federal government
replicates every jot-and-tittle of the relevant state execution
protocols. And in doing so, they would expose other death-row
inmates to substances less reliably certain to ensure a painless
death than is pentobarbital—including midazolam, which
remains in use in five different states. A.R. 92–93. The claims
before us are designed neither to prevent unnecessary suffering
31
nor to ensure that needles are properly inserted into veins—a
task that nurses routinely perform without difficulty. Instead,
they are designed to delay lawful executions indefinitely. We
should not assist in that undertaking.
* * * *
For these reasons, I would vacate the preliminary
injunction and remand the case to the district court with
instructions to enter judgment for the government on the
plaintiffs’ FDPA claims and their notice-and-comment claims.
RAO, Circuit Judge, concurring: The Department of
Justice specified a range of procedures to govern federal
executions in its 2019 protocol and addendum. Plaintiffs allege
that the Department’s protocol is inconsistent with the Federal
Death Penalty Act (“FDPA”), which requires that federal
executions be implemented “in the manner prescribed by the
law of the State in which the sentence is imposed.” 18 U.S.C.
§ 3596(a). At every stage of this litigation, the debate has
centered on whether “manner” should be read at a particular
level of generality. The word “manner,” however, cannot be
interpreted in isolation. It is a broad, flexible term whose
specificity depends on context. The FDPA explicitly defines
the level of generality of “manner”: It is the “manner prescribed
by the law of the State.” Thus, the FDPA requires the federal
government to apply state law—that is, statutes and formal
regulations—at whatever level of generality state law might be
framed. Where state law is silent, the federal government has
discretion to choose whatever lawful execution procedures it
prefers.
Under this interpretation, the Department of Justice’s 2019
protocol is consistent with the FDPA. The protocol lays out a
non-binding procedural framework that the federal government
may apply in most cases, and it allows the U.S. Marshal Service
to depart from federal procedures when required—a carveout
that naturally would encompass situations in which the 2019
protocol conflicts with state law. I therefore agree to vacate the
preliminary injunction.
I.
Assessing the validity of the 2019 protocol requires us first
to interpret the reach of the FDPA. The Department of Justice
maintains that “manner” as used in the FDPA means only the
method of execution—i.e., hanging, electrocution, or lethal
injection—leaving the government free to set forth a uniform
procedure for executions. The plaintiffs, on the other hand,
2
assert that “manner” means any procedures used by a state
when implementing the death penalty, thereby precluding any
kind of uniform federal protocol. Neither reading comports
with the FDPA when read as a whole. In the FDPA, Congress
left certain choices regarding execution to the States.
Considering the text and structure of the statute, I explain why
the FDPA requires the federal government to apply only those
execution procedures prescribed by a state’s statutes and
formal regulations, but leaves the federal government free to
specify other procedures or protocols not inconsistent with
state law. Moreover, nothing in the statutory history offers a
basis to override the plain meaning of the FDPA.
A.
The FDPA provides that the U.S. Marshal “shall supervise
implementation of the sentence [of death] in the manner
prescribed by the law of the State in which the sentence is
imposed.” 18 U.S.C. § 3596(a). The parties as well as my
colleagues focus on the meaning of the word “manner.” As I
explain, the word “manner” may refer to varying levels of
specificity, both in its ordinary meaning and in the context of
execution procedures. Reading “manner” alongside other
words in Section 3596(a), as well as the statute as a whole,
demonstrates that the FDPA uses “manner” to include the
positive law and binding regulations of a state—those
procedures “prescribed by the law of the State.” State “law,”
however, does not include informal procedures or protocols. In
the absence of binding state law, the FDPA leaves other
procedures to the discretion of the U.S. Marshal who must
“supervise implementation of the sentence” of death.
1.
In ordinary usage, the word “manner” has a broad, flexible
meaning. A “manner” is “a characteristic or customary mode
3
of acting” or “a mode of procedure.” Manner, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2014). Put
differently, a “manner” is “[a] way of doing something or the
way in which a thing is done or happens.” Manner, The
American Heritage Dictionary of the English Language (5th
ed. 2018). “Manner” may therefore refer to a general way of
doing something or the more specific way in which an action
is carried out. The word had a similarly broad meaning when
the first two federal death penalty statutes were passed in 1790
and 1937. See Manner, New International Dictionary of the
English Language (2d ed. 1941) (“[A] way of acting; a mode
of procedure; the mode or method in which something is done
or in which anything happens.”); 2 S. Johnson, A Dictionary of
the English Language (1755) (“Custom; habit; fashion.”).1
The word “manner” has the same flexible meaning in the
execution context, as demonstrated by federal and state statutes
and judicial decisions that use the word with varying levels of
generality. As DOJ notes, the word is sometimes used to refer
to a general execution method, and courts occasionally use the
terms “manner” and “method” interchangeably; yet “manner”
1
Judge Katsas makes much of the fact that eighteenth-century
dictionaries, including Samuel Johnson’s, also defined “manner” as
a “method,” Concurring Op. 4–5 (Katsas, J.), but he overlooks that
those dictionaries defined “method” in broad terms. For instance,
Johnson’s dictionary states: “Method, taken in the largest sense,
implies the placing of several things, or performing several
operations in such an order as is most convenient to attain some end.”
2 S. Johnson, A Dictionary of the English Language (1755). This
“largest sense” is the only definition Johnson provides for “method.”
Judge Katsas notes that “[o]ther dictionaries” also “indicate that
‘manner’ is synonymous with ‘method’ as well as ‘mode.’”
Concurring Op. 4 (Katsas, J.). These dictionaries, however, are not
referring to the narrow sense of “method” employed in the execution
context.
4
is also frequently used to refer to granular details, including in
the FDPA itself. In a provision governing aggravating factors
in homicide cases, the statute reads, “In determining whether a
sentence of death is justified …, the jury … shall consider …
[whether] [t]he defendant committed the offense in an
especially heinous, cruel, or depraved manner in that it
involved torture or serious physical abuse to the victim.” 18
U.S.C. § 3592(c)(6). In this instance, the “manner” of
committing homicide refers not to the general method of
killing, but to the precise way in which the offense was
committed.
State legislatures also use the word “manner” to refer to
the specifics of an execution procedure, including in some
statutes the choice of lethal substance or method of injection.
See, e.g., Miss. Code. Ann. § 99-19-51 (“The manner of
inflicting the punishment of death shall be by the sequential
intravenous administration of a lethal quantity of the following
combination of substances ….”); Md. Code Ann., Correctional
Services, § 3–905 (repealed in 2013) (“The manner of inflicting
the punishment of death shall be the continuous intravenous
administration of a lethal quantity of an ultrashort-acting
barbiturate or other similar drug in combination with a
chemical paralytic agent.”); Colo. Rev. Stat. Ann. § 18-1.3-
1202 (“The manner of inflicting the punishment of death shall
be by the administration of a lethal injection …. For the
purposes of this part 12, ‘lethal injection’ means a continuous
intravenous injection of a lethal quantity of sodium thiopental
or other equally or more effective substance.”).
Similarly, federal courts use the term “manner” variably to
refer both to the method of execution and to the specifics of
execution procedures. See Glossip v. Gross, 135 S. Ct. 2726,
2741 (2015) (“[T]here is no scientific literature addressing the
use of midazolam as a manner to administer lethal injections in
5
humans.” (quoting a party’s expert report)); id. at 2790
(Sotomayor, J., dissenting) (“These assertions were amply
supported by the evidence of the manner in which midazolam
is and can be used.”); Baze v. Rees, 553 U.S. 35, 57 (2008)
(plurality opinion) (“[T]he Commonwealth’s continued use of
the three-drug protocol cannot be viewed as posing an
‘objectively intolerable risk’ when no other State has adopted
the one-drug method and petitioners proffered no study
showing that it is an equally effective manner of imposing a
death sentence.”); Holden v. Minnesota, 137 U.S. 483, 491
(1890) (“[The state statute] prescribes … the manner in which[]
the punishment by hanging shall be inflicted.”); Williams v.
Hobbs, 658 F.3d 842, 849 (8th Cir. 2011) (“The prisoners next
contend that they have demonstrated a facially plausible claim
that the Act [which provides for lethal injection in all cases] …
increases mental anxiety before execution since the prisoners
cannot know the manner in which they will be executed.”).2
These examples demonstrate that the word “manner” is used
2
See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474
(1947) (Burton, J., dissenting) (“The Supreme Court of Louisiana has
held that electrocution, in the manner prescribed in its statute, is more
humane than hanging.”); In re Kemmler, 136 U.S. 436, 443–44
(1890) (“‘[T]he application of electricity to the vital parts of the
human body, under such conditions and in the manner contemplated
by the statute, must result in instantaneous, and consequently in
painless, death.’” (citation omitted)); Harris v. Dretke, No. 04-
70020, 2004 WL 1427042, at *1 (5th Cir. June 23, 2004) (“David
Harris appeals the dismissal of his suit … challenging the manner in
which the State of Texas intends to carry-out his execution by lethal
injection.”).
6
frequently in the execution context as a broad term that may
encompass any level of detail.3
2.
To determine the level of specificity of “manner” as used
in the FDPA, I start with the language of Section 3596. Recall
the statute provides that the U.S. Marshal “shall supervise
implementation of the sentence in the manner prescribed by the
law of the State in which the sentence is imposed.” 18 U.S.C.
§ 3596(a). In this context, “manner” does not operate in
isolation, but is modified by the requirement that the Marshal
adopt the manner “prescribed by the law of the State.” The
district court did not address this qualifying language, and both
parties gloss over it. In defending the 2019 protocol, the
government contends that the Marshal must apply only the
state’s method of execution, without reference to other details
that might be included in state law; the plaintiffs contend that
the Marshal must apply all state procedures, again without
reference to whether those procedures were prescribed by state
law. The government’s distinction is not found anywhere in the
FDPA, while the plaintiffs’ interpretation would read the
phrase “prescribed by … law” out of the statute entirely.
The ordinary meaning of “law of the State” refers to
binding law prescribed through formal lawmaking procedures.
In analogous contexts, the Supreme Court has read similar
statutory language to incorporate only statutes and regulations
carrying the force of law. For instance, the Court held in United
3
As the question before us concerns the meaning of the FDPA and
whether “manner” can include procedural details prescribed by state
law, it is of no consequence that the Supreme Court recognized
constitutional challenges to the procedural details of execution only
relatively recently. See Concurring Op. 11–12 & n.6 (Katsas, J.).
7
States v. Howard that a Florida regulation was part of the “law
of the state” because violations of the regulation were
“punishable as a misdemeanor.” 352 U.S. 212, 216–17, 219
(1957). In Chrysler Corporation v. Brown, the Court held that
the phrase “authorized by law” encompasses “properly
promulgated, substantive agency regulations” that “have the
‘force and effect of law.’” 441 U.S. 281, 295–96 (1979); see
also Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 398 (1893)
(“‘[T]he equal protection of the laws,’ … means equal
protection not merely by the statutory enactments of the state,
but equal protection by all the rules and regulations which,
having the force of law, govern the intercourse of its citizens
with each other and their relations to the public.”); Samuels v.
Dist. of Columbia, 770 F.2d 184, 199 (D.C. Cir. 1985)
(“[T]hose federal regulations adopted pursuant to a clear
congressional mandate that have the full force and effect of
law … have long been recognized as part of the body of federal
law.”). The Supreme Court has emphasized that something is
“prescribed by law” when it includes binding requirements. Cf.
United States v. Rodriquez, 553 U.S. 377, 390–91 (2008)
(holding that the phrase “maximum term of imprisonment …
prescribed by law” refers to the statutory maximum, not the
maximum set by sentencing guidelines, which do not bind a
judge in all circumstances). Consistent with the deep-rooted
conception of law as fixed and binding, I have not found, nor
did the plaintiffs cite, any case in which the Supreme Court or
this court has held that an informal policy or protocol was
prescribed by law.4
4
Judge Tatel argues that the four state execution protocols at issue
in this case are in fact part of the “manner prescribed by the law of
the State” because they were adopted pursuant to state statutes that
“delegate to state prison officials the task of developing specific
execution procedures.” Dissenting Op. 2. In other words, because
8
In light of the FDPA’s requirement that the manner of
execution be prescribed by state “law,” the district court’s
expansive interpretation of Section 3596(a) fails because it
includes state procedures regardless of whether they are part of
state “law.” See Matter of Fed. Bureau of Prisons’ Execution
Protocol Cases, No. 12-CV-0782, 2019 WL 6691814, at *6
(D.D.C. Nov. 20, 2019) (citing informal execution policies
from Texas, Missouri, and Indiana). The FDPA simply does
not require the U.S. Marshal to follow aspects of a state
execution procedure that were not formally enacted or
promulgated. “[P]rescribed by the law of the State” sets an
outer boundary on what the federal government must follow.
On the other hand, the statutory command also means that the
federal government cannot look only to the “method” of
execution prescribed by the state. The interpretation adopted
by Judge Katsas and the government does not account for other
details that might be included in state law and formal
regulations. While, as discussed below, formal state law often
“‘by law,’ each state directed its prison officials to develop execution
procedures, and ‘by law,’ those officials established such procedures
and set them forth in execution protocols,” Judge Tatel contends that
the protocols are subsumed within the phrase “prescribed by … law.”
Id. at 4–5. Yet neither the Supreme Court nor our court has ever
adopted such a capacious understanding of “law.” Instead, the
Supreme Court has directed that we ask whether a protocol has the
“force and effect of law,” Chrysler, 441 U.S. at 295–96, and not
everything an official does pursuant to his statutory authority carries
the force of law. For instance, agencies issue interpretive rules
pursuant to their statutory authority, yet interpretive rules
emphatically do not carry the force of law. See, e.g., Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 97 (2015). Indeed, the Supreme Court
explicitly said in Chrysler that neither “[a]n interpretive regulation
[nor] general statement of agency policy” can be considered an
“authorization by law” because they lack “the binding effect of law.”
441 U.S. at 315–16 (alterations omitted).
9
specifies little more than the method of execution, the federal
government is nonetheless bound by the FDPA to follow the
level of detail prescribed by state law.5
The textual context of Section 3596(a) supports this
interpretation. Section 3596(a) provides that the Marshal “shall
supervise implementation of the sentence in the manner
prescribed by the law of the State.” 18 U.S.C. § 3596(a)
(emphasis added). This broad language encompasses more than
earlier federal death penalty statutes, which incorporated state
law only to define the “manner of inflicting the punishment of
death.” See An Act to Provide for the Manner of Inflicting the
Punishment of Death § 323, 50 Stat. 304, 304 (June 19, 1937);
An Act for the Punishment of Certain Crimes § 33, 1 Stat. 112,
119 (Apr. 30, 1790). The ordinary meaning of “implementation
of the sentence” includes more than “inflicting the punishment
of death.” The latter refers to the immediate action of
execution, whereas “implementation of the sentence” suggests
5
Judge Katsas claims that the “participial phrase ‘prescribed by the
law of the State’ functions as an adjective,” and adjectives usually
“do not expand the meaning of the noun they modify.” Concurring
Op. 19 (Katsas, J.). This argument begs the question: It makes sense
only if we presume that the word “manner” refers exclusively to the
general method. But there is no evidence of such an exclusive
meaning. Rather, as cases and statutes demonstrate, the word
“manner” is broad enough to encompass execution procedures at
every level of generality. The phrase “prescribed by the law of the
State” actually narrows the meaning of the word “manner.” Thus,
my reading is consistent with the most common grammatical
function of a participial phrase.
10
additional procedures involved in carrying out the sentence of
death.6
In the death penalty context, the term “implementation” is
commonly used to refer to a range of procedures and
safeguards surrounding executions, not just the top-line
method of execution. This is true of DOJ’s regulations, which
were promulgated during a period when no statute specified
procedures for the federal death penalty. DOJ’s 1993 execution
regulation bears the title, “Implementation of Death Sentences
in Federal Cases.” See 58 Fed. Reg. 4,898 (Jan. 19, 1993). That
regulation governs very minute aspects of executions,
including the “[d]ate, time, place, and method,” whether and
when the prisoner has access to spiritual advisors, and whether
photographs are allowed during the execution. Id. at 4,901–
902. Likewise, the 2019 addendum to DOJ’s execution
protocol, which governs some of the procedures at issue in this
case, is titled, “Federal Death Sentence Implementation
Procedures.” Department of Justice, Addendum to BOP
Execution Protocol, Federal Death Sentence Implementation
Procedures 1 (July 25, 2019) (“BOP Addendum”). As with the
1993 regulation, the addendum governs minute details, such as
the numbering and labeling of syringes. Id. at 2. According to
DOJ regulations and protocols, all of these details fall under the
umbrella of implementing a death sentence. The breadth of the
term “implementation” further undermines the government’s
narrow interpretation that “manner” means only the “method”
of execution, irrespective of the requirements of state law.
6
Compare Implementation Plan, Black’s Law Dictionary (10th ed.
2014) (“An outline of steps needed to accomplish a particular goal.”),
with Inflict, Merriam-Webster’s Collegiate Dictionary (11th ed.
2014) (“[T]o cause (something unpleasant) to be endured.”).
11
An interpretation requiring the federal government to
follow all procedures prescribed by state statutes and formal
regulations, but no more, similarly coheres with the statute’s
directive that the Marshal “supervise” implementation of the
sentence. 18 U.S.C. § 3596(a). To “supervise” is to
“superintend” or “oversee.” See Supervise, Merriam Webster’s
Collegiate Dictionary (11th ed. 2014). The concept of
supervision does not fit with DOJ’s position that it may
establish a uniform protocol for all procedures short of the
method of execution specified by state law. In the context of
executing the law, supervision must occur within legal
boundaries. While supervision often includes a degree of
discretion, it does not include authority to create new law or to
act in contravention of law. See Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 588 (1952) (emphasizing that “the
President’s power to see that the laws are faithfully executed”
does not include the power to “make laws which the President
is to execute”). Elsewhere, Congress used more active
language. In the 1937 statute, for instance, the Marshal was
“charged with the execution of the sentence,” 50 Stat. at 304,
and other provisions of the FDPA refer to “carr[ying] out” an
execution. See 18 U.S.C. § 3596(b), (c). Congress’s choice in
Section 3596(a) to provide only that the Marshal will
“supervise” implementation hardly suggests that DOJ was
given the authority to dictate nearly every aspect of the
execution procedure regardless of what state law prescribes.
At the same time, the statute’s use of “supervise” suggests
that the Marshal enjoys a certain degree of discretion in the
absence of state law on a particular question. If the FDPA had
provided only that the Marshal “shall implement” the sentence
according to state law, there would be less support for the idea
that the Marshal has discretion to fill gaps in a state’s execution
law. Instead, the statute affords the Marshal a measure of
supervisory discretion within the bounds of state law.
12
The FDPA specifies one exception to the general rule that
the federal government must follow state law—the federal
government may choose state or federal facilities for
executions, irrespective of state law. Section 3597(a) addresses
the question of where executions will take place and which
facilities the Marshal may use. It provides that the Marshal
“may use appropriate State or local facilities,” so long as the
Marshal “pay[s] the costs thereof.” 18 U.S.C. § 3597(a). This
language establishes that the Marshal has discretion to choose
between state and federal facilities, notwithstanding any state
law requiring executions in a particular location. Under
familiar canons of construction, the more specific provision
controls the general. See RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (noting this
canon “is a commonplace of statutory construction” (citation
omitted)). Section 3596(a) directs the government to follow a
state’s death penalty law generally, while Section 3597(a) is
best read as an exception, specifying one aspect of the
execution process by allowing the federal government a choice
of location. See id.7
Finally, this fuller reading of the statutory text coheres
with the FDPA and the apparent balance Congress struck
between providing for a federal death penalty and respecting
provisions of state law. If “prescribed by the law of the State”
includes only a state’s statutes and formal regulations, the
Marshal will be able to identify the requirements of state law.
Nothing in the FDPA suggests that the federal government
must incorporate most or all procedures and practices found in
a state’s informal execution policies, which could raise
practical, and perhaps insurmountable, difficulties to the
7
While it is true that Section 3597 is not written explicitly as an
exception, see Concurring Op. 13 (Katsas, J.), it provides specific
authority that supersedes the general reliance on state law.
13
implementation of federal death sentences. For instance, at
least some state protocols are not publicly available. See Ark.
Code Ann. § 5-4-617(i)(1)(C). Others are “revised as needed”
through informal means. See Indiana State Prison Facility
Directive, ISP 06-26: Execution of Death Sentence 14 (Jan. 22,
2014). When Congress used the term “prescribed by the law of
the State,” it did not mean secret policies and constantly
changing informal protocols.8
In this politically charged area, Congress enacted a
federalist scheme, incorporating state law as to the “manner”
of death penalty implementation, but only for those execution
procedures enacted or promulgated by states as part of their
binding law. The FDPA leaves the federal government free to
specify details regarding execution procedures, as it did in its
protocol and addendum, subject to any contrary requirements
of state law.
8
This interpretation is largely consistent with other courts to have
considered the issue. The Fifth Circuit upheld a death sentence under
an earlier version of DOJ’s protocol because nothing in the protocol
was “inconsistent with Texas law.” United States v. Bourgeois, 423
F.3d 501, 509 (5th Cir. 2005). The only source of law the court
considered was Texas’s criminal code, id., which does not provide
for specific procedures or designate a lethal substance. See Tex. Code
Crim. Proc. Ann. art. 43.14. Similarly, the District of Vermont held
that a U.S. Marshal is “to adopt local state procedures for execution,”
but the court looked only to state statutes in defining the state’s
procedures. See United States v. Fell, No. 5:01-CR-12-01, 2018 WL
7270622, at *4 (D. Vt. Aug. 7, 2018); but see Higgs v. United States,
711 F. Supp. 2d 479, 556 (D. Md. 2010) (declining to reach the
Section 3596(a) question, but briefly suggesting in dicta that
“manner” refers only to lethal injection).
14
B.
DOJ attempts to use previous federal death penalty statutes
to show that “manner” must mean “method.” A review of these
statutes, however, demonstrates that Congress was at best silent
as to whether the word had a specialized meaning. Prior federal
execution statutes support neither the government’s “manner
means method only” interpretation, nor the plaintiffs’ “manner
means everything” interpretation. Rather, the history shows
Congress uses “manner” in its ordinary sense, such that the
scope of the term’s application depends on the context.
There were only two federal statutes regulating execution
procedures prior to the FDPA, and neither suggested that
“manner” refers exclusively to general methods. The first
federal death penalty statute, passed in 1790, read, “the manner
of inflicting the punishment of death, shall be by hanging the
person convicted by the neck until dead.” § 33, 1 Stat. at 119.
That provision is entirely consistent with my interpretation:
Congress, using a broad word that can refer to any level of
generality, chose on that occasion not to mandate further
details. In another section of the same statute Congress used the
word “manner” in a highly granular sense. The 1790 statute
criminalized the maiming of a person in any of six enumerated
“manners”—a list so particularized that “slit[ting] the nose”
and “cut[ting] off the nose” were listed separately. § 13, 1 Stat.
at 115. Reading the 1790 statute as a whole, Congress used the
word “manner” to refer to both general methods and specific
details, reinforcing that the term “manner” in isolation has a
flexible meaning and must be read in context to determine the
appropriate level of specificity.
Judge Katsas argues that the 1790 statute should be read
against the backdrop of English common law. Concurring Op.
4 (Katsas, J.). As he notes, Blackstone wrote that the
15
punishment for many capital crimes was to be “hanged by the
neck till dead.” 4 W. Blackstone, Commentaries on the Laws
of England 370 (1769). Notably, Blackstone does not say that
hanging by the neck was the “manner” of execution. He says
that hanging was the “judgment” pronounced by the court. Id.
Indeed, this passage never uses the word “manner.” Later,
Blackstone wrote that a “sheriff cannot alter the manner of the
execution by substituting one death for another.” Id. at 397.
Nor could the king substitute one death for another—for
instance, by “altering the hanging or burning into beheading.”
Id. at 397–98. Nothing in this passage suggests that the choice
of general method was the only detail encompassed by the term
“manner of the execution.” At most, this passage shows that
changing the general method was one way to change the
manner of execution.
Judge Katsas’s reliance on two Supreme Court cases from
the nineteenth century is similarly unavailing. First, Wilkerson
v. Utah, 99 U.S. 130 (1878), simply paraphrased the language
of the 1790 statute, see id. at 133 (“Congress provides that the
manner of inflicting the punishment of death shall be by
hanging.”), so it adds no support for the narrow reading of
“manner.” Next, Judge Katsas argues that the Supreme Court
used “manner” and “method” interchangeably in Kemmler, 136
U.S. 436. Yet nothing in the Court’s opinion indicates that the
two terms are synonymous. To the contrary, the opinion
strongly suggests that the term “manner” encompasses more
than the general method. In rejecting a petition for habeas
corpus, the Court quoted the New York Court of Appeals at
length, including its conclusion that the general method of
electrocution is painless—not necessarily as a general matter,
but when performed “under such conditions and in the manner
contemplated by the statute.” Id. at 443–44 (“[T]he application
of electricity to the vital parts of the human body, under such
conditions and in the manner contemplated by the statute, must
16
result in instantaneous, and consequently in painless, death.”
(citation omitted)). The term “manner” in that sentence must
refer to details more specific than the general method of
electrocution. Id.9 Even if at points Wilkerson and Kemmler
refer to hanging and electrocution as manners of execution,
they are still consistent with the ordinary meaning of “manner,”
which can refer to the general and the specific. It is not unusual
for courts to refer to hanging or lethal injection as manners of
execution, just as courts commonly use “manner” to refer to
specific details of an execution procedure. See supra at 4–5.
The government also relies on the 1937 statute to argue
that “manner” is used in the FDPA to refer only to the method
of execution. See DOJ Br. 21–22 (“Congress [in 1937]
preserved the meaning of ‘the manner’ as synonymous with
‘the method’ of execution.”). In the 1937 statute, Congress
shifted away from the earlier federal death penalty regime to
one that required the federal government to adopt whatever
“manner” was “prescribed by the laws of the State.” 50 Stat. at
304. The 1790 and 1937 statutes thus had different structures,
one specifying a single method of federal execution and the
other leaving the manner of execution to be determined by state
law. This fundamental change to the statutory scheme
undermines DOJ’s contention that Congress forever settled the
9
I agree with Judge Katsas that the level of detail in the New York
statute is not relevant in itself. Concurring Op. 6 n.2 (Katsas, J.); see
also Chapter 489, Laws of the State of New York §§ 492, 505–07
(June 4, 1888) (regulating execution timing, location, and personnel,
among other things). Indeed, my analysis consistently maintains that
the meaning of the word “manner” does not change whenever a
legislature chooses to specify more or less detail in a given statute,
whether a state statute or the FDPA. Regardless of how detailed the
statute was, the Supreme Court in Kemmler used the word “manner”
to encompass more than the general method of electrocution. See 136
U.S. at 443–44.
17
scope of federal death penalty legislation in 1790 when it chose
hanging as the method of execution. Indeed, the fact that
Congress amended the legally operative text suggests that the
1937 Act did not use “manner” in precisely the same way as
the 1790 statute. See Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)
(stating that a statute “brings the old soil with it” only when
“obviously transplanted”); Merrill Lynch, Pierce, Fenner &
Smith Inc. v. Manning, 136 S. Ct. 1562, 1578 (2016) (Thomas,
J., concurring) (“[W]hen Congress enacts a statute that uses
different language from a prior statute, we normally presume
that Congress did so to convey a different meaning.”).
Statutory predecessors can help us to interpret a modern statute,
but we must respect the changes Congress enacted.
For the same reasons discussed with respect to the FDPA,
the phrase “manner prescribed by the laws of the State” in the
1937 statute is best read as referring to all execution procedures
found in the state’s “law.” In practice, moreover, the federal
government incorporated more than the state’s method of
execution when it carried out executions under the 1937 statute.
The government concedes that nearly all executions conducted
under the 1937 statute took place in state facilities. Oral
Argument at 3:30. Presumably, those executions were carried
out in accordance with state law and possibly with other state
procedures. DOJ notes that three executions under the 1937
statute took place in federal facilities, but DOJ is unable to
identify a single way in which the executions were otherwise
inconsistent with state law. As in the FDPA, the 1937 statute
gave the U.S. Marshal discretion over the choice of facilities.
See 50 Stat. at 304. Thus, the choice of a federal location does
not undermine the requirement that the manner of execution
follow whatever details are prescribed by state law.
Not only did the federal government perform the vast
majority of executions in state prisons, DOJ has suggested on
18
several occasions that it understood the 1937 statute to require
compliance with state procedures. In its 1993 protocol, DOJ
hypothesized that Congress might have repealed the 1937
statute because it “no longer wanted the federal method of
execution dependent on procedures in the states, some of which
were increasingly under constitutional challenge.” 58 Fed. Reg.
at 4,899 (discussing repeal of the 1937 statute in 1984).
Similarly, Attorney General Janet Reno wrote shortly before
the FDPA’s enactment that the bill “contemplate[s] a return to
an earlier system in which the Federal Government does not
directly carry out executions, but makes arrangements with
states to carry out capital sentences in Federal cases.” See H.R.
Rep. No. 104-23, at 22 (1995) (quoting Letter from Attorney
General Janet Reno to Hon. Joseph R. Biden, Jr., at 3–4 (June
13, 1994)). While such sources are not determinative of the
meaning of the FDPA, they demonstrate that the Department’s
narrow interpretation of the statute has hardly been
consistent.10
10
Judge Katsas also argues that between 1790 and 1937, “nobody
[was] focused on subsidiary procedural details in the legal or policy
debates over [] various execution methods.” Concurring Op. 7
(Katsas, J.). Even assuming that assessment is correct, it has no
bearing on the broader sense of “manner” or how it was used in the
FDPA. This observation would be relevant only to the meaning of
“manner” in statutes that do not specify the scope of the term’s
application. For example, if the FDPA said something like “the
manner employed by the state,” then we would have to determine, as
Judge Katsas asks, “the level of detail at which [Section 3596(a)]
operates.” Id. at 1. Yet the FDPA explicitly specifies the level of
detail—it is the level of detail “prescribed by the law of the State.”
That leaves a question of what is included in the “law of the state,”
but it does not leave open the level of generality regarding the
manner of execution.
19
Despite rejecting DOJ’s historical evidence, I start from
the same fundamental principle: that we should not “depart
from the original meaning of the statute at hand.” New Prime
Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). As explained, the
meaning of the word “manner” has always been broad, and its
application has always depended on context. DOJ, however,
asks us to go beyond established canons of interpretation:
Rather than apply the original, broad sense of the word
“manner,” DOJ argues that the word should be deprived of its
ordinary meaning because Congress chose on a single occasion
in 1790 to specify one level of detail. There is no support for
this novel approach.
In statutory interpretation as in ordinary usage, a word can
have a fixed meaning even if, in application, it can refer to a
variety of things. DOJ is confusing the sense of the word
“manner” with the word’s reference. A word’s sense is its
linguistic meaning, while its reference is the “actual thing in
the world that the word picks out.” Christopher R. Green,
Originalism and the Sense-Reference Distinction, 50 St. Louis
U. L.J. 555, 563 (2006). A single word with a fixed meaning
can describe a wide range of references, depending on the
factual context and how the word is used. See id. at 564; cf.
ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 957–
58 (7th Cir. 2006) (explaining that the term “unjust
enrichment” has multiple “referents” because it can refer to
several factually distinct circumstances in which restitution is
appropriate).11 Rather than explore what the word “manner”
11
Judge Katsas’s only linguistic critique of the sense-reference
distinction is that sense and reference arguably converge when
dealing with proper names, Concurring Op. 8 n.3 (Katsas, J.),
something that is completely irrelevant to this case. We both agree
with Justice Scalia (and Professor Green, for that matter) that statutes
have “a fixed meaning, which does not change.” Id. That recognition
20
meant in 1790 (i.e., what sense it carried), DOJ focuses
narrowly on which procedures Congress chose to require on
one occasion (i.e., the reference of “manner”). According to
DOJ, the word “manner” in 1994 cannot be broad enough to
refer to specific procedures unless the 1790 statute also referred
to specific procedures. But Congress’s choice not to specify
details like the length of the rope did not change the underlying
meaning of the word “manner.” The word “manner” was broad
enough in 1790 to encompass more than the general method (as
demonstrated by the statute’s discussion of maiming), and the
word retains that broad sense today. There is simply no reason
to artificially cabin the word in later statutes so that it refers
only to the same kinds of procedures required by Congress in
1790.
DOJ’s ahistorical reading is also flatly inconsistent with
the canons of interpretation governing incorporation. When
Congress incorporates a body of law in general terms, the
incorporating statute “develops in tandem with the” body of
law that was incorporated. Jam v. Int’l Fin. Corp., 139 S. Ct.
759, 769 (2019); see also New Prime Inc., 139 S. Ct. at 539;
2B Sutherland Statutory Construction § 51:8 (7th ed.). For
most of the last 80 years, Congress has chosen to incorporate
state law rather than specify a manner of execution. As Judge
Katsas explains, it was once true that most execution statutes
did not “prescribe subsidiary ‘procedural details.’” Concurring
Op. 6 (Katsas, J.). Today, however, some “state statutes and
regulations do contain many granular details.” Id. at 21. When
a state legislature chooses to define the manner of execution in
more detail than was common in older statutes, the FDPA
directs the federal government to follow suit. See New Prime
does nothing to undermine the commonly accepted distinction
between a word’s meaning and the thing the word refers to on a given
occasion.
21
Inc., 139 S. Ct. at 539 (explaining that statutes incorporating a
general body of law must be read to incorporate “later
amendments and modifications”).12
The historical record is likewise inconsistent with the
plaintiffs’ assertion that the FDPA does not allow DOJ to adopt
nationwide procedures. See Plaintiffs’ Br. 23–24. It is true that
Congress in 1937 replaced a uniform, nationwide approach
with a requirement that the federal government follow the
sentencing state’s manner of execution. Nevertheless, neither
the 1937 statute nor the FDPA requires that the federal
government follow state practices not prescribed by law. The
statutory history thus says nothing about whether the
Department can create uniform procedures to fill gaps in state
law, as the protocol and addendum do in this case.
12
Failing to find support in the FDPA’s text, history, or practice, DOJ
tries to prop up its arguments with the 1937 statute’s legislative
history. This legislative history, however, did not run the Article I,
section 7, gauntlet, and cannot determine a statute’s meaning. Even
for those who find legislative history persuasive, the evidence is thin.
DOJ explains that the House Judiciary Committee twice used the
word “method” to refer to executions by hanging, electrocution, and
gas. H.R. Rep. No. 75-164, at 1 (1937). DOJ argues that because the
Committee changed the word “method” to “manner” in the statute, it
must have understood the two words to be synonymous. Yet the
legislative history is silent about why the Committee made that
choice in the final text of the FDPA. If we are playing the legislative
history guessing game, another inference is perhaps more likely: that
Congress chose to use a different word in order to convey a different
meaning. Cf. Allina Health Servs. v. Price, 863 F.3d 937, 944 (D.C.
Cir. 2017). Ultimately, however, legislative history is not the law,
and the history from 1937 tells us little about what the 1937 statute
meant, much less what the 1994 FDPA means.
22
In sum, the historical evidence does not suggest the term
“manner” has the narrow meaning pressed by DOJ; neither
does it support the plaintiffs’ conclusion that the federal
government may not create national procedures that govern in
the absence of any state law. Rather, for over 200 years,
Congress has used the term “manner” flexibly, with the word’s
scope clarified by additional specifying language—“hang[ing]
by the neck,” slit[ting] the nose, and “prescribed by the law of
the State.” In light of this history, the best interpretation follows
the plain meaning of the FDPA, which specifies that “manner”
is whatever is prescribed by state law. This interpretation
respects Congress’ decision to create a federal death penalty
that relies on federalism. The FDPA requires DOJ to follow the
procedures set forth in state laws and regulations but does not
foreclose federal protocols that apply in areas not addressed by
state law.
C.
The Department raises a parade of horribles if “manner” is
read to include more than the method of execution.
Specifically, DOJ argues that a broader reading will make it
much more difficult to execute prisoners and will leave the
federal government unable to choose the most humane
execution procedures. The government’s purpose-driven
arguments rely on broad policy goals and practical difficulties,
rather than the plain meaning of the text. These policy
arguments, however valid, cannot overcome Congress’s plain
choice in the FDPA to allow the manner of execution to turn
on state law.13
13
Judge Katsas suggests that arguments about consequences are
relevant to “help resolve textual ambiguity.” Concurring Op. 16 n.8
(Katsas, J.). Yet the word “manner” as used in Section 3596 is not
23
DOJ’s concerns are rooted in what the Department deems
to be the purposes of the FDPA. DOJ Br. 15; see also
Concurring Op. 13 (Katsas, J.) (discussing one purpose of the
FDPA “to ensure a workable and expanded system of capital
punishment”). As a court, however, “our function [is] to give
the statute the effect its language suggests,” not to further
whatever “admirable purposes it might be used to achieve.”
Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 270
(2010). DOJ urges us to give the FDPA the interpretation
producing what it believes would be the most effective
execution regime, but to do so would ignore both the limited
nature of our judicial function and the realities of legislative
deliberation:
[N]o legislation pursues its purposes at all costs.
Deciding what competing values will or will not
be sacrificed to the achievement of a particular
objective is the very essence of legislative
choice—and it frustrates rather than effectuates
legislative intent simplistically to assume that
whatever furthers the statute’s primary
objective must be the law.
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 646–47
(1990) (citation and quotation marks omitted).
ambiguous. Rather, as already explained, the ordinary meaning of
the word “manner” is broad and flexible, but as qualified in the
FDPA, the “manner” of execution is unambiguous: It is whatever
“manner” is prescribed by applicable state law. See supra at 6–8; see
also Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (“Broad
general language is not necessarily ambiguous”). Speculations about
congressional intent are rarely illuminating, particularly when, as
here, the text of the statute provides the relevant level of specificity.
24
In the FDPA, Congress incorporated state law instead of
directing DOJ to promulgate a uniform protocol. This suggests
that Congress was balancing at least two competing values: the
need to effectively implement federal death sentences and an
interest in federalism. Perhaps Congress simply decided to
duck controversial specifics by leaving some questions to state
law. Whatever the reason, statutes strike a bargain and must be
enforced in their details, not in their lofty goals. After all, “[i]f
courts felt free to pave over bumpy statutory texts in the name
of more expeditiously advancing a policy goal, we would risk
failing to take account of legislative compromises essential to
a law’s passage and, in that way, thwart rather than honor the
effectuation of congressional intent.” New Prime Inc., 139 S.
Ct. at 543 (quotation marks and alterations omitted). We should
decline DOJ’s invitation to question the bargain Congress
struck here. To the extent more detailed state statutes raise
additional interpretive questions, that is an unavoidable
consequence of the incorporation of state law. Unless and until
Congress amends the FDPA, DOJ is bound to “follow its
commands as written, not to supplant those commands with
others it may prefer.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,
1355 (2018). We have no license to read into the FDPA a
limitation on “manner” that has no basis in the text and to read
out of the statute its incorporation of state law.
In addition, DOJ’s policy concerns about administrability
would have applied with equal force in 1937, when Congress
first incorporated state law to govern the manner of federal
executions. See New Prime Inc., 139 S. Ct. at 539 (“[I]t’s a
fundamental canon of statutory construction that words
generally should be interpreted as taking their ordinary ...
meaning ... at the time Congress enacted the statute.”
(quotation marks omitted)). In 1937, permissible execution
methods varied significantly across the country and included
hanging, electrocution, the gas chamber, and others. State
25
execution methods also differed, albeit to a lesser extent, when
the FDPA was passed in 1994. Thus, even under DOJ’s
interpretation that “manner” means only method, until recently
the federal government would have had to apply varying
execution methods on a state-by-state basis. DOJ claims that
state-by-state administration is unworkable, but state-by-state
administration has indisputably been a feature of this statutory
framework since 1937. A uniform method is possible under
DOJ’s interpretation only because all the death penalty states
have made independent choices since the FDPA’s enactment
to adopt the method of lethal injection.
Similarly, the federal government has never had absolute
license to choose the most humane execution procedures.
When Congress passed the 1937 statute, it chose state practice
over hanging in part because “[m]any States”—but not all—
“use[d] more humane methods of execution, such as
electrocution, or gas.” H.R. Rep. No. 75-164, at 1 (1937).
Congress could have selected one of those more humane
methods instead of hanging, but it chose to leave that decision
to the states—many of which continued to hang criminals. See
Andres v. United States, 333 U.S. 740, 745 (1948) (noting that
the “method of inflicting the death penalty” in Hawaii in 1948
was “death by hanging”). Indeed, some states continued to
provide for hanging even after the passage of the FDPA in
1994. See Baze, 553 U.S. at 43 n.1 (plurality opinion) (noting
that New Hampshire and Washington still allowed for hanging
in 2008). Even under DOJ’s interpretation of the FDPA, the
government may choose what it considers to be the most
humane procedures only when state law does not provide for
another method of execution. Whatever the legitimacy of
26
DOJ’s concerns, they are necessary features of the statute
Congress enacted.14
In any event, as a practical matter, my textual
interpretation of the FDPA mitigates many of the concerns
raised by the district court’s broad reading. The FDPA’s
reliance on state law leaves ample scope for DOJ to follow its
federal execution procedures and protocols. Few of the
procedural details cited by the plaintiffs appear to carry the
force of law, so the federal government need not follow them.
State execution statutes tend to be rather brief, specifying lethal
injection without adding further details. For example, none of
the four states at issue in this case have statutes precluding the
use of pentobarbital. See Tex. Code Crim. Proc. Ann. art. 43.14
(calling for lethal injection without specifying which chemical
to be used); Ark. Code Ann. § 5-4-617 (allowing lethal
injection using either a barbiturate like pentobarbital or a three
drug solution); Ind. Code § 35-38-6-1 (calling for lethal
injection without specifying which chemical must be used);
Mo. Ann. Stat. § 546.720 (calling for lethal injection without
specifying which chemical must be used).
14
Like the DOJ, Judge Tatel invokes the FDPA’s goal of ensuring
more humane executions, but to support the opposite interpretation.
He argues that reading “prescribed by the law of the State” to exclude
non-binding state execution protocols would “defeat section
3596(a)’s purpose—to make federal executions more humane by
ensuring that federal prisoners are executed in the same manner as
states execute their own.” Dissenting Op. 8. Yet that argument
deprives the phrase “prescribed by … law” of all meaning. If
Congress had intended the federal government to incorporate all of
the state’s execution procedures, it would have said so. Instead,
Congress chose to incorporate only the manner prescribed by state
law.
27
Indeed, I have not been able to locate statutes or formal
regulations in any state that would prevent the federal
government from using pentobarbital, the drug currently
specified in DOJ’s protocol addendum. In the rare cases where
state law provides for a particular substance, states generally
either include pentobarbital on the list of permitted substances,
see 501 Ky. Admin. Regs. 16:330 (allowing either
pentobarbital or thiopental sodium), or include a general
provision allowing any equally effective substance, see Utah
Admin. Code r. 251-107-4 (providing for “a continuous
intravenous injection, one of which shall be of a lethal quantity
of sodium thiopental or other equally or more effective
substance to cause death”).
More specific details are generally found in informal state
policies and protocols. Execution protocols are exempted from
many states’ administrative procedure acts, including their
formal rulemaking requirements. See, e.g., Ark. Code Ann. § 5-
4-617(h); Middleton v. Mo. Dep’t of Corr., 278 S.W.3d 193,
195–97 (Mo. 2009); Porter v. Commonwealth, 661 S.E.2d 415,
432–33 (Va. 2008); Abdur’Rahman v. Bredesen, 181 S.W.3d
292, 312 (Tenn. 2005). Even in states that provide for formal
rulemaking, execution protocols tend to be informal and non-
binding. Consider Indiana, the state designated by DOJ
whenever the sentencing state does not provide for the death
penalty. Indiana allows its department of corrections to adopt
rules under the state’s formal rulemaking provisions to
implement its execution statute. See Ind. Code § 35-38-6-1(d).
Yet the state’s current execution procedures were not
promulgated under that statute and do not purport to carry the
force of law. See Indiana State Prison Facility Directive, ISP
06-26: Execution of Death Sentence 14 (Jan. 22, 2014) (noting
that Indiana’s protocol is “revised as needed,” not under the
state’s formal rulemaking procedures, but in accordance with
the department of corrections’ policies). Similarly, both
28
Arkansas’ and Missouri’s protocols permit the director of the
department of corrections to modify certain aspects of the
execution procedures. See Missouri Department of
Corrections, Preparation and Administration of Chemicals for
Lethal Injection 1 (Oct. 18, 2013); Arkansas Lethal Injection
Procedure 3 (Aug. 6, 2015), https://bit.ly/2ExLkTE. A state
execution protocol that explicitly allows the department of
corrections to depart from the protocol’s requirements on a
case-by-case basis cannot be said to be binding. Given that
most details found in state execution protocols are not
prescribed by law, DOJ will be able to make most procedural
choices regarding federal executions.15
II.
Based on this interpretation of Section 3596(a), I would
hold that the 2019 protocol did not exceed the government’s
authority under the FDPA. As an initial matter, the protocol is
unlikely to conflict with state law in most cases, as state laws
15
Judge Tatel does not dispute that the four protocols at issue were
not promulgated through formal rulemaking procedures. Instead, he
attempts to cabin Chrysler’s holding to its facts, ignores the
consistent line of cases requiring “law” to have binding effect, see
supra at 7 (collecting cases), and makes a general appeal to
examining “context” when determining whether a regulation issued
outside a formal rulemaking process constitutes “law.” Dissenting
Op. 7–8. Judge Tatel, however, fails to identify a single case
supporting his theory that non-binding protocols can qualify as “law”
in any context—despite the fact that, as Judge Tatel emphasizes,
“prescribed by law” or similar language appears at least 1,120 times
in the United States Code. Id. at 7. As the Court explained in
Chrysler, the question is simply whether these state protocols are
binding on state officials. Because these protocols do not appear to
have the binding force of law, they cannot be deemed part of the “law
of the State.”
29
usually address execution procedures only in general terms.
See supra at 24–26. Should cases arise in which the protocol
differs from state law—for example, in states with more
detailed regulations governing executions, see, e.g., 501 Ky.
Admin. Regs. 16:330; Or. Admin. R. 291-024-0080—DOJ
remains free to depart from the federal protocol. Indeed, the
protocol provides explicitly that the Director may depart from
its procedures in the face of superseding legal obligations—
namely, when “necessary” to “comply with specific judicial
orders” or when “required by other circumstances.” BOP
Addendum 1; see also Department of Justice, BOP Execution
Protocol 4 (2019) (“Execution Protocol”) (“These procedures
should be observed and followed as written unless deviation or
adjustment is required ….”). In addition, the protocol directs
BOP to “make every effort … to ensure the execution process
… [f]aithfully adheres to the letter and intent of the law.”
Execution Protocol 4–5. These provisions indicate that the
government must depart from the protocol as necessary to
“adhere to the letter and intent of” the FDPA—including the
requirement that the government apply the manner of execution
prescribed by state law. Reading the protocol and addendum as
a whole suggests that DOJ must follow state law, and not that
the BOP Director is merely granted “discretion.” Dissenting
Op. 9. Because the 2019 protocol allows departures as needed
to comply with state law, it is consistent with the FDPA.
Judge Tatel casts this reading of the protocol’s plain text
as an improper effort to “rewrite the protocol” to support an
interpretation that the government has not advanced.
Dissenting Op. 10. As an initial matter, my interpretation
requires no revision—it rests on the words DOJ used in
promulgating its protocol. Moreover, “[o]ur duty in conducting
de novo review on appeal is to resolve the questions of law this
case presents.” Citizens for Responsibility & Ethics in Wash. v.
FEC, 892 F.3d 434, 440 (D.C. Cir. 2018). “When an issue or
30
claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991); see also U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–47 (1993).
Irrespective of the government’s litigation strategy, the issue
before us in this case is whether the 2019 protocol exceeds the
government’s authority under the FDPA, and it is entirely
appropriate to conduct an independent assessment of all
relevant materials—including, in particular, the text of the
protocol—in order to fulfill our duty to say what the law is.
Because the district court’s order was premised
exclusively on the plaintiffs’ claim that the protocol was “in
excess of statutory … authority,” 5 U.S.C. § 706(2)(C), I would
vacate the preliminary injunction. I would further hold that the
2019 protocol is a “rule[ ] of agency organization, procedure,
or practice” exempt from the APA’s notice and comment
requirements. See 5 U.S.C. § 553(b). The plaintiffs maintain
we should not reach this claim before the district court has
considered it. It is true that we ordinarily decline to resolve
claims and arguments not addressed by the district court in
deciding a preliminary injunction motion. See Sherley v.
Sebelius, 644 F.3d 388, 397–98 (D.C. Cir. 2011). But if our
holding on appeal makes a conclusion “inevitable” then “we
have power to dispose [of a claim] as may be just under the
circumstances, and should do so to obviate further and entirely
unnecessary proceedings below.” Wrenn v. Dist. of Columbia,
864 F.3d 650, 667 (D.C. Cir. 2017) (cleaned up); see also 28
U.S.C. § 2106 (granting appellate courts authority to “direct the
entry of … judgment … as may be just under the
circumstances”). The plaintiffs’ notice and comment challenge
rises and falls with the merits of their FDPA claim—that the
protocol is a procedural rule follows inescapably from my
31
conclusion that the protocol does not exceed DOJ’s authority
under the FDPA. Because the issues are intertwined and the
plaintiffs’ notice and comment challenge fails under my
interpretation of the FDPA, it is entirely unnecessary for the
district court to address this claim on remand.
“The critical feature of a procedural rule is that it covers
agency actions that do not themselves alter the rights or
interests of parties.” Nat’l Min. Ass’n, 758 F.3d at 250
(quotation marks omitted). By its terms, the protocol does
nothing to interfere with the Marshal’s ability to comply with
the FDPA or with the plaintiffs’ right to have their sentences
implemented “in the manner prescribed by the law of the
State.” 18 U.S.C. § 3596(a). To the contrary, the protocol
simply lays out procedures for the federal government to
follow in cases where state law does not address some aspect
of the execution process. It directs the federal government in
all cases “to ensure the execution process … [f]aithfully
adheres to the letter and intent of the law,” Execution Protocol
4–5, which necessarily includes following the FDPA’s
directive to implement death sentences in conformity with state
positive law. As such, the protocol cannot be said to “impose
[any] new substantive burdens,” Aulenback, Inc. v. Fed.
Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997), or to
“alter the rights or interests of [affected] parties,” Nat’l Min.
Ass’n, 758 F.3d at 250 (citation omitted)—rather, any
substantive burdens are derived from the FDPA and the state
laws it incorporates.
Moreover, the procedures outlined in the 2019 protocol
bear all the hallmarks of “internal house-keeping measures
organizing [DOJ’s] activities” with respect to preparing for and
conducting executions. Am. Hosp. Ass’n v. Bowen, 834 F.2d
1037, 1045 (D.C. Cir. 1987) (citation omitted). The protocol
and accompanying addendum provide lengthy “checklists for
32
pre-execution, execution and post execution procedures,”
Execution Protocol 4, including matters as specific as
arranging food services for an inmate’s final meal, id. at 17,
“open[ing] the drapes covering the windows of the witness
rooms” during an execution, id. at 24, and announcing the time
of death “prior to the drapes being closed,” id. at 25. DOJ’s
decision to promulgate detailed “written guidelines to aid [its]
exercise of discretion” during the highly sensitive process of
conducting executions should not come “at the peril of having
a court transmogrify those guidelines into binding norms
subject to notice and comment strictures.” Aulenback, 103 F.3d
at 169 (citation and quotation marks omitted). Because the
protocol possesses the essential features of a procedural rule,
the plaintiffs’ notice and comment challenge also fails.
I would not reach the plaintiffs’ argument that only the
U.S. Marshal Service has the authority to promulgate rules
under the FDPA. The plaintiffs did not develop this argument
below, so it is forfeited. See Gov’t of Manitoba v. Bernhardt,
923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional
circumstances, a party forfeits an argument by failing to press
it in district court.”).16 I would also decline to reach the
plaintiffs’ claims under the Food, Drug & Cosmetic Act and
the Controlled Substances Act, which were neither addressed
by the district court nor pressed by the plaintiffs on appeal.
Unlike the notice and comment challenge to the protocol, the
outcome of the FDCA and CSA claims is not plainly dictated
16
The evidence Judge Katsas relies on to conclude that this argument
was not forfeited comes from a chart included in the factual
background section of one plaintiff’s preliminary injunction motion,
summarizing the “Details of 2019 Protocol and Concerns That Are
Implicated.” See Pl.’s Mot. for Prelim. Inj., Roane v. Barr, No. 19-
mc-0145, at 10 (D.D.C. Sept. 27, 2019). Such “fleeting reference[s]”
do not a developed legal argument make. Williams v. Lew, 819 F.3d
466, 471 (D.C. Cir. 2016).
33
by my interpretation of the FDPA. Thus, it will be “for the
district court to determine, in the first instance, whether the
plaintiffs’ showing on [these claims] warrants preliminary
injunctive relief.” Sherley, 644 F.3d at 398.
TATEL, Circuit Judge, dissenting: Plaintiffs Daniel Lee,
Wesley Purkey, Alfred Bourgeois, and Dustin Honken do not
challenge the federal government’s authority to execute them.
Instead, they argue that the Attorney General’s plan for their
executions—that is, the federal protocol—conflicts with
section 3596(a) of the Federal Death Penalty Act of 1994
(FDPA), 18 U.S.C. §§ 3591 et seq. Section 3596(a) instructs
U.S. Marshals to carry out federal death sentences by arranging
for prisoners to be executed “in the manner prescribed by the
law of the State” in which they were sentenced—or, if that state
has no death penalty, the law of “another State” “designate[d]”
by the sentencing judge. Id. § 3596(a). Notwithstanding its
weighty subject matter, then, this case presents a classic
question under the Administrative Procedure Act: whether an
agency has acted “in accordance with law.” 5 U.S.C.
§ 706(2)(A).
In defending the federal protocol, the government argues
that the word “manner” in section 3596(a) refers only to the
general execution method—e.g., lethal injection—not, as
plaintiffs argue, to the procedures and techniques used to
implement that method, e.g., substance administered or dosage.
Because the government seeks no deference to its interpretation
of the statute, see Oral Arg. Rec. 5:57–6:00 (confirming this),
to prevail it must demonstrate not merely that its interpretation
of section 3596(a) is reasonable, but that it “best effectuates the
underlying purposes of the statute.” Vanguard Interstate Tours,
Inc. v. ICC, 735 F.2d 591, 597 (D.C. Cir. 1984).
I agree with Judge Rao that the term “manner” refers to
more than just general execution method. Because her detailed
opinion so thoroughly addresses the government’s arguments
and convincingly responds to Judge Katsas’s survey of the
historical record, I see no need to say anything more on the
issue.
2
Beyond this, Judge Rao and I part company. She would
hold that when carrying out executions under section 3596(a),
the Attorney General must comply with state execution
procedures set forth in “statutes and formal regulations,” but
not those in state execution protocols. Rao Op. at 1. She also
reads the federal protocol to contain a “carveout” “indicat[ing]
that the government must depart from the protocol as necessary
to . . . apply the manner of execution prescribed by state law.”
Id. at 1, 29. The government, however, makes neither
argument, and the protocol contains no such carveout. In my
view, section 3596(a), best understood, requires federal
executions to be carried out using the same procedures that
states use to execute their own prisoners—procedures set forth
not just in statutes and regulations, but also in protocols issued
by state prison officials pursuant to state law. Because the
federal protocol, on its face, takes no account of these
procedures, it is contrary to section 3596(a), and I would vacate
it. See 5 U.S.C. § 706(2)(A), (C) (requiring courts to “hold
unlawful and set aside agency action . . . found to be . . . not in
accordance with law” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right”).
Plaintiffs were sentenced to be executed “in the manner
prescribed by the law,” 18 U.S.C. § 3596(a), of Arkansas,
Missouri, Texas, and Indiana, respectively. All four states have
enacted statutes that establish lethal injection as the method of
execution and delegate to state prison officials the task of
developing specific execution procedures. Pursuant to these
statutes, state officials have adopted execution protocols that
designate, among other things, the chemicals to be
administered, dosages, procedures for vein access, and
qualifications of execution personnel. State officials adopt such
protocols not just to comply with state law, but also to ensure
3
that executions comply with the Constitution. Cf. Baze v. Rees,
553 U.S. 35, 55–56 (2008) (plurality opinion) (rejecting Eighth
Amendment method-of-execution challenge “in light of”
“important safeguards” contained in state execution protocol,
including “that members of the [intravenous] team . . . have at
least one year of professional experience” and specific vein-
access procedures); Raby v. Livingston, 600 F.3d 552, 560 (5th
Cir. 2010) (rejecting Texas inmate’s Eighth Amendment claim
because state execution protocol “mandates . . . that sufficient
safeguards are in place to reduce the risk of pain below the level
of constitutional significance”).
For example, Texas’s governing statute requires
condemned prisoners to be “executed . . . by intravenous
injection . . . , [with] such execution procedure to be
determined and supervised by the director of the correctional
institutions division of the Texas Department of Criminal
Justice.” Tex. Code Crim. Proc. Ann. art. 43.14(a). Pursuant to
that statute, the Director “adopt[ed]” an “Execution
Procedure,” under which “100 milliliters of solution containing
5 grams of Pentobarbital” “shall be mixed . . . by members of
the drug team,” which, in turn, “shall have at least one
medically trained individual,” a term defined in the protocol.
Texas Department of Criminal Justice, Correctional
Institutions Division, Execution Procedure 2, 7–8 (Apr. 2019),
Administrative Record (A.R.) 84, 89–90. The protocol further
requires that intravenous lines be inserted by “a medically
trained individual” who “shall take as much time as is needed”
to do so “properly,” and who is prohibited from employing a
“cut-down” technique, a surgical procedure that exposes the
vein. Id. at 8, A.R. 90.
The governing Missouri statute “authorize[s] and
direct[s]” “the director of the department of corrections . . . to
provide a suitable and efficient room or place . . . and the
4
necessary appliances” for carrying out lethal injections and
requires “[t]he director . . . [to] select an execution team.” Mo.
Rev. Stat. § 546.720.1–2. Pursuant to that statute, the Director
issued a protocol requiring prisoners to be executed using two
five-gram doses of pentobarbital—quantities that “may not be
changed without prior approval of the department director”—
which “shall be injected into the prisoner . . . under the
observation of medical personnel,” namely, “a physician,
nurse, and pharmacist.” Missouri Department of Corrections,
Preparation and Administration of Chemicals for Lethal
Injection 1–2 (Oct. 18, 2013), A.R. 70–71.
The other two states—Arkansas and Indiana—have
similar statutory schemes. See Ark. Code Ann. § 5-4-617 (“The
director [of the Department of Correction] shall develop
logistical procedures necessary to carry out the sentence of
death, including . . . [e]stablishing a protocol for any necessary
mixing or reconstitution of the drugs and substances set forth
in this section in accordance with the instructions.”); Ind. Code
§ 35-38-6-1 (authorizing “[t]he department of correction [to]
adopt rules” to implement lethal-injection statute); see also
Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016)
(discussing Arkansas’s lethal injection protocol); Department
of Correction, Indiana State Prison Facility Directive, ISP 06-
26: Execution of Death Sentence 16–17 (Jan. 22, 2014), Mot.
for Prelim. Inj. Barring the Scheduled Execution of Pl. Dustin
Lee Honken, Ex. 6, In the Matter of the Federal Bureau of
Prisons’ Execution Protocol Cases, No. 19-mc-145 (D.D.C.
Nov. 5, 2019).
The “law” of each state, then, requires executions to be
implemented according to procedures determined by state
corrections officials, who, in turn, have set forth such
procedures in execution protocols. In other words, “by law,”
each state directed its prison officials to develop execution
5
procedures, and “by law,” those officials established such
procedures and set them forth in execution protocols.
Accordingly, the protocols have been “prescribed by . . . law.”
18 U.S.C. § 3596(a). Apparently agreeing, the government
argues that interpreting “manner” to mean more than
“method,” as Judge Rao and I do, would require it to use the
same drugs as the states—drugs “prescribed” in the relevant
states’ protocols, not in their statutes. See Appellants’ Br. 29.
Indeed, at oral argument government counsel rejected the
notion that “the law of the State” excludes execution protocols,
calling it “incongruous to think that Congress thought the
degree of federal control over how to implement . . . a federal
execution was going to depend on the happenstance of exactly
where in its law or regulation or sub-regulatory guidance a state
chose to write out very detailed procedures.” Oral Arg. Rec.
39:12–32.
Were there any doubt about this, “the natural way to draw
the line is in light of the statutory purpose,” Rose v. Lundy, 455
U.S. 509, 517 (1982) (internal quotation marks and citation
omitted), and here, interpreting section 3596(a) to include state
execution protocols “best effectuates the underlying purposes
of the statute,” Vanguard Interstate Tours, 735 F.2d at 597. As
Judge Rao points out, section 3596(a) replicates nearly word-
for-word the statute that governed federal executions from
1937 to 1984. Like the FDPA, that statute required executions
to be carried out in “the manner prescribed by the laws of the
State within which the sentence [wa]s imposed,” or, if that state
had no death penalty, another state designated by the
sentencing court. Act of June 19, 1937, ch. 367, 50 Stat. 304
(repealed 1984) (“1937 Act”). Central to the issue before us,
Congress passed the 1937 Act because the states were
undertaking serious efforts to make executions more humane.
See H.R. Rep. 75-164 at 2 (1937) (letter from Attorney General
Homer Cummings) (advising Congress that states “have
6
adopted more humane methods” of execution than hanging and
recommending that “the Federal Government likewise . . .
change its law in this respect”); see also Stuart Banner, The
Death Penalty: An American History 171 (2002) (explaining
that, as early as the 1830s, states had begun experimenting with
execution procedures, endeavoring to “minimize the
condemned person’s pain”). Accordingly, almost all federal
executions pursuant to the 1937 Act were carried out by state
officials, who, supervised by U.S. Marshals, executed federal
prisoners in the same “manner” as they executed their own. See
Oral Arg. Rec. 15:00–03 (government counsel agreeing that
most executions pursuant to the 1937 Act were carried out in
state facilities); David S. Turk, Forging the Star: The Official
Modern History of the United States Marshals Service 23–24
(2016) (describing how the U.S. Marshal arranged for Ethel
and Julius Rosenberg to be executed at Sing-Sing Correctional
Facility, then home to New York state’s death row and electric
chair).
By using virtually identical language in FDPA section
3596(a), Congress signaled its intent to continue the same
system—for federal executions to be carried out in the same
manner as state executions. See Lorillard v. Pons, 434 U.S.
575, 580 (1978) (“Congress is presumed to be aware of an
administrative . . . interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”).
Given this, reading section 3596(a) to exclude state execution
protocols, which set forth the very procedures states use to
carry out executions humanely, would run contrary not only to
section 3596(a)’s “‘ultimate purpose[]’” of ensuring more
humane executions, but also to “‘the means [Congress] has
deemed appropriate . . . for the pursuit of [that] purpose[]’”—
requiring federal prisoners to be executed in the same manner
as states execute their own. Gresham v. Azar, 950 F.3d 93, 101
(D.C. Cir. 2020) (quoting MCI Telecommunications Corp. v.
7
American Telephone & Telegraph Co., 512 U.S. 218, 231 n.4
(1994)). And at least as recently as 2008, the states have “by all
accounts” “fulfilled” their “role . . . in implementing their
execution procedures . . . with an earnest desire to provide for
a progressively more humane manner of death.” Baze, 553 U.S.
at 51.
Judge Rao argues that state execution protocols are not
“prescribed by . . . law” within the meaning of section 3596(a)
because they are not “formal regulations.” Rao Op. at 1. In
support, she cites Chrysler Corp. v. Brown, 441 U.S. 281
(1979), in which the Supreme Court considered a provision of
the Trade Secrets Act that protected confidential information
by prohibiting its disclosure unless “‘authorized by law,’” id.
at 294 (quoting 18 U.S.C. § 1905). The Court held that a
regulation issued pursuant to an agency’s “housekeeping”
statute and without notice-and-comment procedures did not
qualify as “law” under the Act. Id. at 309–16. From this, Judge
Rao concludes that the word “law” in FDPA section 3596(a) is
limited to regulations issued pursuant to notice-and-comment
procedures. See Rao Op. at 7, 28 n.13.
By my count, the phrase “authorized by law” and its twin
sisters—“prescribed by law” and “prescribed by the law”—
appear 1,120 times in the United States Code, and the Supreme
Court has repeatedly made clear that, even within the same
statute, “the presumption of consistent usage ‘readily yields’ to
context.” Utility Air Regulatory Group v. EPA, 573 U.S. 302,
320 (2014) (quoting Environmental Defense v. Duke Energy
Corp., 549 U.S. 561, 574 (2007)). In Chrysler, moreover, it was
only after closely examining “evidence of legislative intent,”
including statutory text and legislative history, that the Court
limited “law” in the Trade Secrets Act to notice-and-comment
regulations. 441 U.S. at 312. In other words, context matters,
and here context requires a different result. Limiting “the
8
manner prescribed by the law of the State” to execution
procedures contained in statutes and in regulations issued
pursuant to notice and comment, and thereby excluding those
contained in state execution protocols, would defeat section
3596(a)’s purpose—to make federal executions more humane
by ensuring that federal prisoners are executed in the same
manner as states execute their own.
Judge Rao also argues that the Attorney General need not
follow state execution protocols because they “do not appear to
have the binding force of law,” “leav[ing] the federal
government free to specify” its own procedures. Rao Op. at 2,
28 n.15. But whether state execution protocols are binding
under state law has nothing to do with whether the Attorney
General has authority under federal law to issue a uniform
execution protocol. And as explained above, section 3596(a)
shifts authority for determining how to “implement” death
sentences to the states, leaving no comparable authority for the
Attorney General. Indeed, apart from the Attorney General’s
authority to establish procedures unrelated to “effectuat[ing]
the death,” see infra at 12, the statute assigns the Attorney
General just three narrow tasks: keeping custody of persons
sentenced to death until they exhaust their appeals, 18 U.S.C.
§ 3596(a); releasing prisoners into Marshal custody for
implementation of their death sentences, id.; and approving the
amount Marshals may pay for the use of state facilities and
personnel, id. § 3597(a).
Of course, the federal protocol’s failure to incorporate
state execution procedures would pose no problem if, as Judge
Rao believes, it contained a “carveout,” “indicat[ing] that the
government must depart from the protocol as necessary to . . .
9
apply the manner of execution prescribed by state law.” Rao
Op. at 1, 29. But it does not. In relevant part, the protocol states:
The procedures utilized by the [Bureau of
Prisons (BOP)] to implement federal death
sentences shall be as follows unless modified
at the discretion of the Director or his/her
designee, as necessary to (1) comply with
specific judicial orders; (2) based on the
recommendation of on-site medical
personnel utilizing their clinical judgment;
or (3) as may be required by other
circumstances.
Department of Justice, Addendum to BOP Execution Protocol,
Federal Death Sentence Implementation Procedures 1 (July 25,
2019) (emphasis added).
Far from requiring Marshals to follow state law, this
provision mentions neither state law nor section 3596(a), and it
leaves the decision to “modif[y]” protocol procedures to “the
discretion” of the BOP Director, id. Moreover, only the third
justification for departing from the protocol—“other
circumstances,” id.—could possibly encompass inconsistent
state law. But the government—which, after all, wrote the
protocol—does not so argue. At most, the government suggests
that it could exercise its residual discretion in accordance with
state law, noting that “nothing in the federal protocol expressly
precludes” “offer[ing] . . . a sedative” or having a physician
present. Appellants’ Br. 33 (referring to the two differences
between the federal protocol and the relevant state protocols
identified by the district court).
Where, as here, agency action is challenged under the
Administrative Procedure Act, we can uphold the action only
10
on “[t]he grounds . . . upon which the record discloses that [it]
was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
Throughout this litigation, the government has insisted that
requiring it to comply with state law would be “perverse[],”
Appellants’ Br. 19, and would “hamstring” implementation of
the federal death penalty, Reply Br. 13. We have no authority
to rewrite the protocol to ensure it complies with the FDPA.
“[A]gency policy is to be made, in the first instance, by the
agency itself . . . . Courts ordinarily do not attempt . . . to
fashion a valid regulation from the remnants of the old rule.”
Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).
The problem with Judge Rao’s interpretation of the protocol,
then, is not just that it represents an “independent assessment”
of the protocol’s meaning, Rao Op. at 30, but more
fundamentally that “it sustains a rule which the agency has
never adopted at all,” Harmon, 878 F.2d at 495 n.20.
I end with a few observations about the government’s
defense of the protocol.
First, had Congress intended to authorize the Attorney
General to adopt a uniform execution protocol, “it knew
exactly how to do so.” SAS Institute, Inc. v. Iancu, 138 S. Ct.
1348, 1355 (2018). The year before Congress enacted the
FDPA, then-Attorney General William Barr issued a regulation
setting lethal injection as the uniform federal method of
execution and authorizing the BOP Director to determine
which chemicals to use. See Department of Justice,
Implementation of Death Sentences in Federal Cases, 58 Fed.
Reg. 4898, 4901–02 (Jan. 19, 1993) (codified at 28 C.F.R.
§ 26.3) (1993 Regulation). This regulation was a gap-filler:
several years earlier, Congress had repealed the 1937 Act,
leaving unclear how federal executions would be carried out.
11
While Congress was considering the bill that would become the
FDPA, General Barr’s successor, Attorney General Janet Reno,
warned that section 3596(a)’s “proposed procedures
contemplate a return to an earlier system”—i.e., the 1937
Act—“in which the Federal Government does not directly
carry out executions, but makes arrangements with states to
carry out capital sentences in Federal cases.” H.R. Rep. No.
104–23, at 22 (1995) (quoting Letter of Attorney General Janet
Reno to Honorable Joseph R. Biden, Jr., Detailed Comments at
3–4 (June 13, 1994)). She therefore recommended that
Congress amend the bill “to perpetuate the current approach”—
i.e., the 1993 Regulation—“under which the execution of
capital sentences in Federal cases is carried out by Federal
officials pursuant to uniform regulations issued by the Attorney
General.” Id. Despite this recommendation, “Congress didn’t
choose to pursue that known and readily available approach
here. And its choice”—to require executions to be carried out
according to state, not federal, law—“must be given effect
rather than disregarded.” SAS Institute, 138 S. Ct. at 1356.
Second, the government argues that requiring it to comply
with state law would “preclud[e]” it “from selecting more
humane lethal-injection protocols than those used by the
states.” Appellants’ Br. 29. As explained above, however,
section 3596(a), like the 1937 Act, relies on the states, not the
Attorney General, to ensure that federal executions are
humane. Perhaps circumstances have changed and authorizing
the Attorney General to select lethal substances, dosages, and
injection procedures would lead to more humane executions.
That, however, “is a decision for Congress and the President to
make if they wish by enacting new legislation.” Loving v. IRS,
742 F.3d 1013, 1022 (D.C. Cir. 2014); see also Rao Op. at 24.
They have ready templates in the nine bills Congress has
considered and rejected in the years since the FDPA’s
enactment, every one of which would have permitted federal
12
executions to be carried out “pursuant to regulations prescribed
by the Attorney General.” H.R. 2359, 104th Cong. § 1 (1995);
see also H.R. 851, 110th Cong. § 6 (2007); H.R. 3156, 110th
Cong. § 126 (2007); S. 1860, 110th Cong. § 126 (2007); H.R.
5040, 109th Cong. § 6 (2006); S. 899, 106th Cong. § 6504
(1999); H.R. 4651, 105th Cong. § 501 (1998); S. 3, 105th
Cong. § 603 (1997); H.R. 1087, 105th Cong. § 1 (1997).
Finally, the government argues that requiring it to follow
“every nuance” of state protocols “could impose significant
barriers to administering” the federal death penalty.
Appellants’ Br. 27. Plaintiffs, however, do not contend that the
government must follow “every nuance.” Quite to the contrary,
they argue, and I agree, that section 3596(a) requires the federal
government to follow only “implementation” procedures, 18
U.S.C. § 3596(a), which plaintiffs define as those procedures
that “effectuat[e] the death,” Oral Arg. Rec. 1:01:06, including
choice of lethal substances, dosages, vein-access procedures,
and medical-personnel requirements, see id. 1:01:58–1:05:25.
To be sure, plaintiffs’ interpretation could present courts with
line-drawing challenges: is, for example, color-coding syringes
part of effectuating an execution? But here we face no such
challenges given that the federal protocol fails to account for
state procedures that are obviously integral to
“implement[ing]” a death sentence, 18 U.S.C. § 3596(a).
In any event, if crafting a federal protocol consistent with
the FDPA proves too difficult, then the Attorney General may,
pursuant to section 3596(a), arrange for plaintiffs to be
executed by the relevant states—just as most federal prisoners
have been since 1937. See Oral Arg. Rec. 1:38:13–34
(plaintiffs’ counsel acknowledging as much). The government
fears that states could “block implementation of a federal death
sentence,” Appellants’ Br. 28, but at oral argument government
counsel assured us that the government has no evidence of state
13
recalcitrance in this case, see Oral Arg. Rec. 18:50–55
(responding “no” to the question whether there “is any
evidence of” “obstructionism” “in this case”). And if such
problems do come to pass—that is, if section 3596(a)’s
incorporation of state procedures creates obstacles for federal
executions—then Congress will have all the more reason to
revise the statute. Until it does, this court must enforce section
3596(a) as written. “[I]t is never our job to rewrite . . . statutory
text under the banner of speculation about what Congress
might have done had it faced a question that, on everyone’s
account, it never faced.” Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1725 (2017).
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393 N.W.2d 314 (1986)
Harold O. POSTMA, Greta K. Postma, Jonathan M. Postma, Christopher A. Postma and Peter B. Postma, by their Father and Next Friend, Harold O. Postma, Appellants,
v.
The SIOUX CENTER NEWS, Wayne Dominowski, Deb Maatman, the Hawarden Independent, J.F. Maher, Vera ______, Six Unnamed Attorneys and One Unnamed Legal Official, Appellees.
No. 85-197.
Supreme Court of Iowa.
September 17, 1986.
Rehearing Denied October 20, 1986.
*315 Harold O. Postma, Orange City, and Emil Trott, Jr., of Barrett & Trott, Des Moines, for appellants.
James D. Scott of McGill & Scott, Rock Valley, for appellees.
HARRIS, Justice.
A libel suit brought by plaintiff Harold O. Postma and members of his family was dismissed as a sanction for Postma's failure to appear for his deposition. Upon plaintiffs' appeal we affirm in part, reverse in part and remand.
Harold O. Postma (Postma) was serving as Sioux County attorney in 1982 when defendant newspapers printed articles quoting "six unnamed attorneys" and one "unnamed legal official" from the area (also defendants in this action) who claimed Postma was "often late to hearings or trials" and kept his office understaffed as a "political ploy" in order to appear to save the taxpayers money. Postma then brought this suit, claiming the articles libeled him in his chosen profession and subjected him and his family to public hatred, contempt and ridicule. The merits of plaintiff's libel action are not considered in this *316 appeal. But see Hovey v. Iowa State Daily Publication Bd., 372 N.W.2d 253 (Iowa 1985); McCarney v. Des Moines Register & Tribune Co., 239 N.W.2d 152 (Iowa 1976).
One would be hard pressed not to notice the striking similarity between the published remarks Postma complains of and his response, or lack of it, to the attempts to depose him. Postma complains he was libeled because he was accused of always being absent or late. The judge dismissed the suit because he was.
The newspaper article published in 1982 which precipitated the suit stated in part:
Some attorneys complain that the reason the system is inefficient is that Postma is often late for hearings and trials. "Several weeks ago," said one Sioux County lawyer, "Postma was supposed to be at a juvenile hearing, along with a juvenile referee, the parents, the juvenile, two attorneys and the deputy sheriff at 1:30 p.m. Postma did not show until 2:20 ... this pushes all the cases back an hour. In the meantime, the judge is waiting, the people for that case and cases following are waiting."
"If this case was an isolated one, it would be one thing. But it happens all the time, and usually we don't know where Postma is and only rarely does he call to say that he's going to be late."
Another lawyer echoed the same sentiment. "That instance is not isolated people who have business to do in the courthouse see how the system works and it does not look professional. People don't feel they're being treated fairly, having to wait so long, and they get a distaste for government."
Because of the delays, claim lawyers, the court-appointed attorneys have to charge more for their time, thus costing the taxpayers more money. "And why shouldn't they?" says one counselor from the area. "When you're waiting for trials to begin, you could be earning $40 or $50 an hour doing other legal work."
Postma reacted to this publication by filing the libel suiton June 4, 1984, the last day before our statute of limitations would have barred it. Defendants thereafter filed a request for admissions; Postma ignored it. Defendants think Postma's failure to respond to their request for admissions bears on his later failure to appear for his deposition. We disagree. The price of ignoring a request for admissions is to have the matter stand as admitted, not to have the case dismissed. See Iowa R.Civ.P. 127.
Thereafter defendants served Postma with a notice that his deposition would be taken on October 16, 1984. Postma failed to appear. Defendants subsequently moved to compel discovery and for attorney's fees and expenses. The motion was granted on December 17, 1984 in a calendar ruling entered by Judge Phillip S. Dandos. The ruling also ordered Postma to appear for the taking of his deposition on the second floor of the Sioux County courthouse on December 21, 1984.
A difficulty arises because the December 17, 1984 order was flawed in that Postma was directed to appear at 9:30 p.m. rather than 9:30 a.m. Although Postma received actual notice of the correct time and although in district court he made no claim he was misled by this error, he claims on appeal that it vitiates the sanction later imposed.
On December 21, 1984, attorneys for the defendants appeared at the Sioux County courthouse for the deposition. A court reporter had been told by the district court clerk that the deposition would be taken in the basement rather than on the second floor. After searching all floors of the courthouse and calling Postma's law office defendants' attorneys were unable to locate him. Therefore at approximately 10:00 a.m. defendants' attorneys went to Postma's office. While the attorneys were absent from the courthouse from approximately 10:25 to 10:50 the reporter unsuccessfully searched each floor of the courthouse for Postma.
Postma was not in the courthouse. He was in his local law office where he was *317 confronted with the oral demand that he appear for deposition. Postma expressed surprise that the deposition was set for morning rather than afternoon (not evening). But he made no claim that he expected to appear at 9:30 p.m. Rather, he refused to be deposed for a reason wholly unrelated to the notice. Stating he had retained an out-of-town lawyer to represent him,[1] he refused to proceed without his new counsel. No appearance was ever filed by the attorney he named.
In documents filed after the order of dismissal Postma made factual assertions at variance with those of defendants' counsel. He stated he did not refuse to appear, and in fact reached an agreement to appear later with his out-of-town counsel, an agreement he says defendants' counsel made and immediately repudiated. These assertions will be discussed in a later division.
Defendants' counsel left Postma's office and returned to the courthouse to make a record of Postma's refusal to appear and to file for discovery sanctions.
Postma also points to another variance in the notice. Defendants' attorneys and the reporter were not on the second floor but in the magistrate's room in the courthouse basement. Postma, as previously indicated, was in his office, insisting that his out-of-town counsel be present. At 10:53 a.m. the reporter left the building. That afternoon defendants Deb Maatman, The Hawarden Independent and J.F. Maher filed a motion for sanctions.[2]
Postma points to what he believes is a final error. December 21, (when the first motion for sanctions was filed) was a Friday. The clerk's filing stamp showing the December 21 filing date appears in the lower left corner. But also on the face of the motion, though crossed out, is another clerk's filing stamp for the following Monday, December 24, 1984. The December 24 filing stamp was apparently processed in error the following Monday some three days after the motion had actually been filed. The December 24 filing stamp was however crossed out before a copy was furnished to Postma.
The motion for sanctions filed December 21 was considered on December 31, 1984, a regular motion day. Under Iowa rule of civil procedure 117(a) motions on file for ten or more days are for submission on a motion day unless otherwise specifically set.
Upon submission the trial court noted that Postma "is present in the Sioux County Court House but is not present at this hearing and the court is advised by [moving defendants' attorneyJames D. Scott that] Postma was made aware of this hearing but chose not to attend as he was consulting with clients concerning another matter." The court awarded fees and costs against Postma and dismissed the action against Deb Maatman, The Hawarden Independent and J.F. Maher.
The dismissal seems to have at last captured Postma's attention. On January 2, 1985, he filed a tardy resistance to the motion for the sanctions which the court had already imposed. He stated he had "misread" the order for his deposition "as being scheduled for 2:00 p.m." Not once however did Postma complain in district court of the typographical error which set the deposition for 9:30 p.m. rather than 9:30 a.m. His resistance pointed out the reporter had been diverted by the district court clerk from the second floor to the courthouse basement.
On January 14, 1985 Postma (for himself alone) filed a resistance to the December 31 motion of defendants Sioux Center News and Dominowski. In that he stated he "attempted to appear on December 21, 1984, but was prevented because defendants did not appear on the second floor of the courthouse as ordered."
*318 Postma asserted in his resistance he did not refuse to submit to the deposition but had only sought to have out-of-town counsel with him. He stated defendants' counsel first agreed to this but later withdrew his acceptance. He said he then went to the courthouse but found no one on the second floor.
Also on January 14 Postma filed a motion to set aside the dismissal which had been entered January 2. In that motion Postma again asserted he was misled about the site of the deposition being moved from the second floor. He also claimed to have been misled by the crossed out December 24 filing stamp.
All pending motions were set for hearing on January 28, 1985. Upon that hearing the motion to set aside the earlier dismissal was overruled. The December 31, 1984 motion of two defendants, Sioux Center News and Dominowski, was summarily sustained and the case against them was also dismissed. No motion was filed under Iowa rule of civil procedure 179(b) to enlarge the trial court's holding. This appeal followed.
We assume the trial court found the disputed facts in accordance with its ruling. See Hubby v. State, 331 N.W.2d 690, 695 (Iowa 1983). This is a special proceeding in a law action for libel. Our scope of review for the controverted facts we have outlined is on error. Iowa R.App.P. 4. We think there is overwhelming evidence to support the factual basis for the trial court's ruling. We summarize those controlling facts as follows. Postma received both actual and written notice of the deposition. The written notice was flawed, stating the time as 9:30 p.m. rather than 9:30 a.m. Postma was not thereby misled and did not discover the error until after this appeal was perfected. Although the site of the deposition was moved by the clerk from the second floor of the courthouse to the basement, Postma was not misled. He did not even enter the courthouse until the reporter had left.
I. As to plaintiff Harold O. Postma our only question is on the adequacy of notice. Iowa rule of civil procedure 134(b)(2)(C) expressly authorizes a court to dismiss an action as a sanction for failing to comply with the discovery order. See Annot., 32 A.L.R.4th 212 (1984).
We have long recognized that "[i]mposition of discovery sanctions by a trial court is discretionary and will not be reversed unless there has been an abuse of discretion." Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 425 (Iowa 1982); State ex rel. Parcel v. St. John, 308 N.W.2d 8, 10 (Iowa 1981); Eickelberg v. Deere & Co., 276 N.W.2d 442, 446 (Iowa 1979); Haumerson v. Ford Motor Co., 257 N.W.2d 7, 14 (Iowa 1977). Where, however, the trial court selects dismissal of the action as the appropriate discovery sanction, the range of discretion is narrowed. Smiley v. Twin City Beef Co., 236 N.W.2d 356, 360 (Iowa 1975). We have held that "[i]n order to justify dismissal of the action, a party's non-compliance must be due to willfulness, fault or bad faith." Suckow, 314 N.W.2d at 425, citing McQuillen v. City of Sioux City, 306 N.W.2d 789, 791 (Iowa 1981) (plaintiff's willful non-compliance with court order to submit to a medical examination justified sanction of dismissal).
We have divided our decisions involving discovery sanctions into two categories: (1) violation of a trial court discovery order, and (2) violation solely of a rule of civil procedure relating to discovery. See Suckow, 314 N.W.2d at 425-26. A comparison of the two classes of cases "makes it clear that dismissal is a discovery sanction generally used when a party has violated a trial court's order." Id. at 426, citing Zimmerman v. Purex Corp., 256 Iowa 190, 194-95, 125 N.W.2d 822, 825 (1964) (sanction was improper in the absence of a court order setting a specific time limit to answer interrogatories).
Under the foregoing authorities it was easily within the trial court's discretion to order dismissal. The question then becomes whether the trial court had the procedural authority upon which to exercise discretion. Postma challenges the authority *319 on two grounds. He says the order of deposition stated the wrong time and the wrong place.
II. No error was preserved on Postma's claim that the notice was defective because it listed the wrong time. He did not challenge the notice on this basis until after the appeal was taken. A theory not raised in trial court will not be considered on appeal. Shill v. Careage Corp., 353 N.W.2d 416, 421 (Iowa 1984).
III. Postma's complaint that the order for deposition was flawed as to place was raised in district court. As against three defendants it was raised after default and as against two it was raised before default. We can treat all five defendants alike because, under the special circumstances, we do not think the move from the second to the basement floor deprived the court of its authority to impose the sanction.
Like the trial court, we are convinced Postma was in no way misled; he did not act in the belief the deposition was to be taken on the second floor. We can note that Sioux County, a rural county in northwestern Iowa, has a small courthouse in which Postma, the former county attorney, was not apt to get lost. He was not even in the building, but rather was in his law office negotiating with defendants' counsel about taking the deposition later. Understandably these negotiations broke down when Postma would not agree to a set time. Although he contends otherwise, when Postma later did arrive at the courthouse he immediately learned the reporter had left.
We should not be understood as holding that the site of a deposition can be summarily shifted so as to confuse or mislead. Neither is a deponent required to conduct a search to seek out and find whether a site may have been moved. Our holding is limited to these facts in which the site was moved within a small rural courthouse and where the deponent was in no way thereby misled.
We believe and hold the trial court had authority to exercise its discretion.
IV. The dismissal is affirmed only as to Harold O. Postma, the principal plaintiff. We do not think his default should be visited upon the other plaintiffs, even though he was acting as their attorney. Clients do indeed often suffer defaults by reason of the failures of their counsel. Postma however was being deposed as a party, not as plaintiffs' attorney. Dismissal is the extraordinary sanction for the failure here, and because other plaintiffs had no part in it we think it is inappropriate as to them. Under these circumstances the suit should have been dismissed only as to Harold O. Postma.
The dismissal of Harold O. Postma's suit is affirmed; the dismissal of the suit of the other plaintiffs is reversed. Tax costs one-half to appellants; one half to appellees. Defendants' brief does not comply with Iowa rule of appellate procedure 16(a). It is not printed on both sides of the page. We have previously mentioned some of the reasons for rule 16. See Allmon v. Hale Insurance Agency Inc., 390 N.W.2d 120, 122 (Iowa 1986). The requirement for printing on both sides stems from the space problems for storing and shelving bound copies of briefs and appendices in our own and other libraries throughout the state. Defendants' counsel shall refile, at their own expense, their appellate brief in proper form. No costs shall be assessed for such amended briefs.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
NOTES
[1] Postma had theretofore acted as his own counsel and appeared also for the other plaintiffs.
[2] The other two defendants, Sioux Center News and Dominowski, filed a similar motion ten days later.
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The defendant appeals from an order denying its motion to change the place of trial.
The action is one to recover damages for personal injuries claimed to have been sustained through the negligence of the defendant. The alleged cause of action arose in Butte County. The defendant is a foreign corporation doing business *Page 327
in this state. The action was commenced in the county of Sacramento, and the defendant demanded that it be removed for trial to the county of Butte.
The appellant contends that it had a right to the transfer under section 395 of the Code of Civil Procedure, as amended in 1911. (Stats. 1911, p. 847.) The section reads as follows:
"395. In all other cases, the action must be tried in the county in which the defendants, or some of them, reside at the commencement of the action, or if it be an action for injury toperson, or property, or for death from wrongful act, ornegligence, in the county where the injury occurs, or theinjury causing death occurs, or in the county in which thedefendants, or some of them, reside at the commencement of theaction. If none of the defendants reside in the state, or, if residing in the state, and the county in which they reside is unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint, and if the defendant is about to depart from the state, such action may be tried in any county where either of the parties reside, or service is had, subject, however, to the power of the court to change the place of trial, as provided in this code. If any person is improperly joined as a defendant, or has been made a defendant solely for the purpose of having the action tried in the county where he resides, his residence must not be considered in determining which is the proper county for the trial of the action."
The amendment of 1911 consisted in adding to the section as it had stood theretofore the provision which we have, in our quotation, placed in italics. We have already held that the enactment is a valid exercise of legislative power. (Gridley v. Fellows, 166 Cal. 765, [138 P. 355].)
Under this clause the proper place for the trial of an action for injuries to person is either the county where the injury occurred or that in which the defendant resides. (Gridley v. Fellows, supra.) The appellant argues that since a foreign corporation (such as the defendant) does not reside in any county of this state (Thomas v. Placerville G. Q. M. Co.,65 Cal. 600, [4 P. 641]), the only proper place remaining is the county of the injury.
But we do not think the provision added to section 395 by the amendment of 1911 has any application to actions against nonresidents of the state. Before the amendment, *Page 328
the section expressly authorized the trial of actions against nonresidents to be had in any county which the plaintiff might designate in his complaint. This provision, which governed actions against foreign corporations (Thomas v. Placervilleetc. Co., supra), was not changed by the amendment of 1911. It is still a part of the section. The section covers two classes of cases, — one dealing with actions against residents, and the other with actions against nonresidents. The provision added in 1911 follows the first clause, requiring actions to be tried where the defendants reside, and is a qualification of the rule declared in that clause. In the special cases governed by the amendment, the resident defendant is no longer entitled, as of right, to have the action tried in the county of his residence. The county where the injury occurred is equally a "proper" place of trial. But the provision giving the right to have cases against nonresidents tried in any county follows the new matter introduced in 1911, and remains unqualified as it had been prior to the amendment. The change in the law was designed to enlarge the rights of plaintiffs by giving them a choice of two counties, where theretofore the defendant had enjoyed the right of trial in the county of his residence. It was not intended to limit the much broader right which plaintiffs had always had as against nonresidents, and it should not be construed so as to have such effect.
Of course, under any construction that may be given to section 395, the place of trial may still be changed when the "convenience of witnesses and the ends of justice" would be promoted by the change. (Code Civ. Proc., sec. 397.) This consideration answers the suggestion of appellant that the denial of its claim involves hardship.
The order is affirmed.
Shaw, J., and Lawlor, J., concurred. *Page 329
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This appeal is from an order made and entered by the probate court settling and allowing the first account and report of the administrator in the above-entitled proceedings, against the objections of appellant, a creditor, whose claim had been approved and allowed for the sum of $3,376.62 by the judge of said court.
Said account included the allowance of a credit in favor of the administrator covering a loss sustained as the result of the administrator carrying out to completion two building and construction contracts, one of which was entered into by the intestate with the Odd Fellows' Association of Los Banos, and the other was made with the city of Los Banos.
The intestate, a contractor and builder, had commenced to perform both of said contracts, and while so engaged died, and his administrator completed the performance of the covenants of the said intestate's contracts at a loss. While the work commenced by the intestate had not greatly advanced at the time of his death, it had, nevertheless, progressed to a somewhat substantial stage. The foundations were laid and the preliminary work had been completed in both instances and considerable material, steel and timbers, had been cut and placed in preparation for the erection of the superstructure. Contracts for material had been entered into by the intestate. No complaint is made that the administrator, in completing the contracts of his intestate, was guilty of fraud or mismanagement, or that the cost of completing said work of construction was greater than it should have been. Objection is made, however, to his undertaking the completion of said unfinished construction in the circumstances of the situation. There would have remained sufficient assets in the hands of the administrator to have discharged said creditor's claim had not the loss been sustained in the manner above related. No objection appears to have been made by the creditor to the completion of said work at any time during its progress.
The probate court, in its order settling said account, made the following finding:
"The court finds that the administrator carried out and completed two building and construction contracts entered *Page 166
into by deceased in his lifetime, but uncompleted at the time of his death; that said contracts did not require the personal skill of the deceased in their carrying out and completion; that in the carrying out and completion of the same a loss of $6,894.17 was suffered and sustained; that said loss is a charge against the estate, and chargeable against the estate, as part of the cost of administration and should be allowed."
This court is bound by the finding of the trial court on a question of fact, if the finding is supported by any substantial evidence. Appellant has not pointed out wherein the above finding is not sufficiently supported, but we have, nevertheless, examined the record and find there is sufficient evidence to support it.
The law is well settled in this state by numerous authorities that if an administrator or executor, without being authorized to do so, elects or undertakes to carry on the business in which the deceased was engaged, he does so at his peril. (Estate of Knight, 12 Cal. 200 [73 Am. Dec. 531];Estate of Moore, 72 Cal. 335 [13 P. 880]; In re Rose,80 Cal. 166 [22 P. 86]; Estate of Broome, 162 Cal. 258
[122 P. 470]; Estate of De Rome, 175 Cal. 399 [165 P. 919].) The rule announced in the above-cited cases is also applicable in cases wherein an administrator or executor undertakes to make new contracts or to engage in some new enterprise. In all such cases it is held that the administrator or executor, except in rare and special instances, is under no obligation or duty to continue the business of the deceased. Nor is he permitted to enter into contracts or speculate by embarking in business enterprises on behalf of the estate and, if he ventures to do so, he will be held to strict accountability for any losses thus suffered. The reasoning of those cases is not applicable in its strict sense to cases in which the administrator is charged with a duty, or vested with power to act, and the wisdom of the course to be pursued is in doubt, and who, in the performance or exercise of his duty or power, acts to the detriment of the estate, provided he acted in good faith and as a cautious and prudent man would likely act under similar circumstances. In such a case he will not be surcharged although the consequences may be bad. *Page 167
In the instant case, the decedent had entered into a contract binding himself and his personal representative to perform the covenants which were subsequently performed by the administrator. There is no evidence before us to sustain the conclusion, and we are not permitted to assume as a fact proved that the intestate would have performed his contract more profitably to himself than it was performed for his estate by his administrator. The solvency or insolvency of himself or his estate depended upon the wisdom or lack of wisdom evidenced by the execution of his contract as tested by the final result. We cannot say, therefore, that, had he lived, he would have been better able to pay his obligation to appellant than was his administrator. The foregoing obligations were created by his own hand and act and were not new obligations incurred by the contracts of his administrator. The parties with whom the contracts were made were entitled to have them respected, and there is no evidence or suggestion that performance was waived by them. Whether it would have been to the interest of the estate, and the creditor as well, for the administrator to have refused to perform, on the theory that any damages recovered against the estate for a breach would have been smaller than the loss suffered by performance, was at best a question addressed to the judgment of the probate judge.
The general rule is that it is the duty of an administrator to perform the contracts of his intestate unless the acts to be performed are personal, such as an author to compose a particular work, an artist to paint a particular painting, a sculptor to produce a particular piece of statuary or other work of art, or a lawyer or physician to render services. Contracts to perform such personal acts are discharged by death or by the disability of the person who was to perform said acts. This rule, however, does not apply where the services are of such a character that they may be as well performed by others (Janin
v. Browne, 59 Cal. 37; McCann v. Pennie, 100 Cal. 547
[35 P. 158]; Husheon v. Kelley, 162 Cal. 656 [124 P. 231]), nor where the contract by its terms shows that performance by others was contemplated. (6 Cal. Jur. 448.) Ordinarily, a building contract is not to be brought within that class of contracts which are deemed to have been entered into because of *Page 168
the personal skill or taste of the persons who are to perform them. (Janin v. Brown, supra; McCann v. Pennie, supra; In reHincheon, 159 Cal. 755 [36 L.R.A. (N.S.) 303, 116 P. 47];McDonald v. O'Shea, 58 Wn. 169 [Ann. Cas. 1912A, 417, 108 P. 436]; Bambrick v. Webster Groves Presbyterian Church, 53 Mo. App. 225.) It is otherwise, of course, where it is made to appear, as remarked by Lord Denman, that the "character, credit and substance of the party" contracted with was an inducement to the contract. A building contract may, from the character and kind of work to be performed, properly fall within the rule of "personal performance acts." But this is not such a contract.
The rule as stated by 24 Corpus Juris, 53, 54, and which is approved by the weight of judicial authority, and text-writers, is that "executors or administrators are generally bound by all the covenants or contractual obligations of their decedents, except such as are personal in their nature and of which personal performance by the decedent is of the essence, or such as are terminated by decedent's death, even though performance is detrimental to the estate; and where the personal representative neglects or refuses to carry out the contract of his decedent, the other party has the usual remedies, as in electing to treat it as rescinded and claiming damages." The rule has been thus stated by this court: "`Where the contract of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract.' (Parsons on Contracts, sec. 131.) E converso, the personal representative is bound to complete such a contract, and, if he does not, may be made to pay damages out of the assets. (Siboni v. Kirkman, 1 Mees. W. 418.)" (Janin v. Brown, supra; see, also, McCann v.Pennie, supra; Quick v. Ludbarrow, 3 Bulstrade Rep. 30;Hawkins v. Ball's Adm., 18 B. Mon. (Ky.) 816; Halyburton v.Kershaw as Adm., etc., 3 Desau. (S.C.) 105; Billing's Appeal,106 Pa. 558; 2 Woerner's American Law of Administrators, 3d ed., p. 1041, sec. 328; 2 Williams on Executors and Administrators, 10th ed., p. 1348.)
Appellant chiefly relies upon Exchange National Bank v.Estate of Betts, 103 Kan. 807 [3 A.L.R. 1604, 176 P. 660], as a case directly in point. We have examined that case and others cited by appellant but we cannot accept the *Page 169
doctrine as therein announced as a precedent which should control our decision in the instant case in view of the legal principles heretofore announced by this court, and other courts, and which we think are applicable to the facts and binding as to the law of the case. While it may be said that some of the authorities of this state herein cited to sustain the position of respondent, strictly speaking, may be said to be obiter, nevertheless they are at least persuasive and find support in well-recognized principles of the law of contracts. In the cases of this state in which this court has had occasion to consider the question at all the conclusion arrived at by us has been favored either by express language or by implication. There is, however, direct authority to be found in the cited cases sustaining our conclusions.
It is a fact that the administrator herein acted without having first submitted the question of the completion of the contracts to the judgment of the probate court. In some jurisdictions such a failure on his part would be regarded as a sufficient reason for the disallowance of an expenditure of the estate's funds. But this court has not gone to the extent that some jurisdictions have gone and made the procurement of the permission of the court absolutely essential to the allowance of an expenditure made by the administrator. In In re Clos,110 Cal. 494 [42 P. 971], it was said: "It would have been better, perhaps, as it would in any case, had the executrix first procured the permission of the probate court to make the contemplated improvement before proceeding thereto; but this is not an indispensable condition to the allowance of the demand in her account, where it appears that the expenditures were just and reasonable, and have been made in the interests of the estate. (Estate of Moore, 88 Cal. 1 [25 P. 915].)" The probate court having examined into the matter before us, concluded that the administrator had acted reasonably in the premises and approved his action. We emphasize the recommendation made by the court and add that in all cases where there is room for doubt as to the duty of the administrator or as to the policy that should be pursued, the judgment of the probate court should be consulted before any steps are taken that might seriously affect the funds of the estate.
In view of our decision on the main question it becomes unnecessary to pass upon the other questions raised by appellant, *Page 170
for the reason that they are included within and are subsidiary to the main question decided.
The order appealed from is affirmed.
Richards, J., Waste, C.J., Shenk, J., Curtis, J., Lawlor, J., and Lennon, J., concurred.
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Case: 19-2047 Document: 44 Page: 1 Filed: 04/07/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEE A. GREEN,
Claimant-Appellant
v.
ROBERT L. WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2047
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-4845, Judge Joseph L. Toth.
______________________
Decided: April 7, 2020
______________________
VIRGINIA A. GIRARD-BRADY, ABS Legal Advocates, PA,
Lawrence, KS, for claimant-appellant. Also represented by
EVA PERRING.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JOSEPH
H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; MARTIE ADELMAN, Y. KEN LEE, Office of
Case: 19-2047 Document: 44 Page: 2 Filed: 04/07/2020
2 GREEN v. WILKIE
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, DYK and O’MALLEY, Circuit
Judges.
O’MALLEY, Circuit Judge.
Lee A. Green (“Green”) appeals from a decision of the
United States Court of Appeals for Veterans Claims (“Vet-
erans Court”). The Veterans Court affirmed the Board of
Veterans’ Appeals’ (the “Board”) decision denying Green’s
claim for an increased disability evaluation for Green’s ser-
vice-connected dermatophytosis for the period after June
24, 2009. Because the Veterans Court did not commit legal
error in affirming the Board’s denial and because we lack
jurisdiction to review challenges to the Board’s factual de-
terminations or challenges to the application of the facts of
the case to the law, we affirm.
I. BACKGROUND
Green served in the United States Marine Corps from
July 1977 to June 1982. J.A. 12. In September 1998, a
Department of Veterans Affairs (“VA”) regional office
(“RO”) awarded a disability rating of 10 percent, for a ser-
vice-connected skin condition, called dermatophytosis, af-
fecting Green’s feet and groin. The RO denied Green
entitlement to service connection for a cardiovascular dis-
order, gastrointestinal disorder, and genitourinary disor-
der. J.A. 28, 94–97. Shortly thereafter, Green filed a notice
of disagreement with the RO’s decision.
Between 2000 and 2017, the Board remanded the mat-
ter multiple times for further development of the record.
J.A. 12, 40. During this time, Green was afforded numer-
ous examinations by VA examiners regarding the scope
and extent of his skin disorder. Id.; J.A. 36–37 (discussing
the results of Green’s February 2007 and August 2007 VA
Case: 19-2047 Document: 44 Page: 3 Filed: 04/07/2020
GREEN v. WILKIE 3
examinations), J.A. 45–46. Green was also examined for
other conditions, such as his gastritis and left flank pain.
J.A. 47–59. During these examinations, the VA examiner
would record Green’s complaints and conduct a physical
exam. See, e.g., J.A. 47–49 (“[Green’s] knees are hurting .
. . He reports he is having some acid reflux and heart-
burn.”).
A. The Board’s First Decision
On February 2, 2017, the Board: (1) granted an in-
creased rating of 30 percent for service-connected dermato-
phytosis for the period from August 15, 1998 to June 23,
2009; (2) denied entitlement to service connection for a car-
diovascular disability; (3) denied entitlement to service
connection for a gastrointestinal disability; and (4) denied
entitlement to service connection for a genitourinary disa-
bility including prostatitis and epididymitis to include as
secondary to service-connected dermatophytosis of the feet
and groin. J.A. 39.
With respect to the increased rating of 30 percent for
Green’s service connected-dermatophytosis from August
15, 1998 to June 23, 2009, the Board found “that by resolv-
ing all reasonable doubt in favor of the Veteran, prior to
June 24, 2009, the Veteran’s service-connected dermato-
phytosis was shown to have been manifested by constant
itching.” J.A. 38. The Board noted, however that the evi-
dence did not meet the criteria for a higher evaluation. Id.
(“Thus, the criteria for an evaluation of 30 percent, but no
higher, have been met prior to June 24, 2009. As the pre-
ponderance of the evidence is against the claim, [] the ben-
efit-of-the-doubt standard of proof does not apply.”).
The Board remanded the matter to the RO for the pe-
riod following June 23, 2009, however, for Green to un-
dergo a new VA examination and to obtain more recent
treatment records. J.A. 40–42. The Board noted that, on
June 23, 2009, an examiner reviewed the results of Green’s
February 2007 examination with Green for the purpose of
Case: 19-2047 Document: 44 Page: 4 Filed: 04/07/2020
4 GREEN v. WILKIE
determining the current severity of the dermatophytosis,
and the veteran denied any change in his condition. J.A.
40. The Board determined that “the evidence of record
[was] clearly stale,” and ordered Green “to undergo a VA
examination by an appropriate physician to determine the
current severity of his dermatophytosis of the feet and
groin area.” Id. Acknowledging that certain conditions,
“by their inherent nature, wax and wane and accordingly
are sometimes active and other times not,” the Board
stated that Green should be afforded a VA examination
during a period when his condition is most active, if possi-
ble. Id. (“The Board acknowledges the difficulties in at-
tempting to schedule a compensation examination during
a period when the Veteran’s skin condition is most ‘ac-
tive.’”).
B. The Board’s Second Decision
On November 17, 2017, the Board denied Green’s re-
quest for a disability rating in excess of 10 percent for der-
matophytosis for the period beginning June 24, 2009. J.A.
20. After reviewing the evidence, the Board concluded that
Green was not entitled to a higher rating because “he did
not have exudation or itching constant [sic], extensive le-
sions, or marked disfigurement during the pendency of the
appeal.” J.A. 16. In making its determination, the Board
noted that Green had received regular medical care for a
variety of conditions from the G.V. (Sonny) Montgomery
VA Medical Center, and that the treatment records dated
after June 24, 2009 indicated that Green had no current
symptoms of dermatophytosis:
Specifically, treating notes from September 2009,
November 2009, and November 2014 indicate that
the physical exam showed no rash. Treating rec-
ords from July 2014 indicate negative findings for
the skin and no reports of rashes, sores, or other
Case: 19-2047 Document: 44 Page: 5 Filed: 04/07/2020
GREEN v. WILKIE 5
lesions. A skin assessment in February 2015 indi-
cated the Veteran’s skin was normal.
J.A. 16.
The Board acknowledged that, in February 2017,
Green was admitted to the G.V. (Sonny) Montgomery VA
Medical Center’s emergency room for a rash on his legs and
feet. But upon review of the medical report, the Board con-
cluded that, even then, Green’s symptoms did not meet the
criteria for a 30 percent rating. J.A. 16–17. (“A 30 percent
rating is warranted if eczema is accompanied by exudation
or itching constant [sic], extensive lesions, or marked dis-
figurement.”). “At worst, during a flare-up, [Green] had an
external scaly rash and an erythematous vesicular rash.”
J.A. 16.
The Board also stated that, after Green underwent a
VA examination for his dermatophytosis in May 2017, 1 J.A.
17, the examiner reported that “the Veteran did not have
any visible skin conditions and did not have any pertinent
physical findings, complications, conditions, signs or symp-
toms related to his dermatophytosis.” Id. The examiner’s
evaluation pointed out, moreover, that in the past 12
months, Green had been treated with immunosuppressive
medications and topical medications for less than six
weeks. Id.
The Board acknowledged that, in letters dated July
2017 and October 2017, a representative noted that Green
stated that he “suffers from constant pain and itching, as
well as scaling of his feet, due to his service-connected der-
matophytosis,” which required constant treatment and
medication. Id. The Board, however, concluded that
Green’s statement was outweighed by the post-July 2009
1 The Board states that this examination took place
in July 2017, but it appears from the record that it occurred
on May 15, 2017. J.A. 23.
Case: 19-2047 Document: 44 Page: 6 Filed: 04/07/2020
6 GREEN v. WILKIE
treatment records, which did not indicate that Green re-
ported constant pain and itching to his medical providers,
or that he required constant medication. Id.
“For a rating of 30 percent under the pre-August 2002
regulations, the evidence would have to show exudation or
itching constant [sic], extensive legions, or marked disfig-
urement.” Id.; see 38 C.F.R. § 4.118 (2001). But, according
to the Board, the evidence did not demonstrate such symp-
toms. J.A. 17. Accordingly, based upon the totality of the
evidence, the Board concluded that Green’s disability failed
to meet the criteria for a rating in excess of 10 percent for
his dermatophytosis under the pre-2002 regulations. 2
C. The Veterans Court’s Decision
On appeal to the Veterans Court, Green argued that
the Board’s reliance on his “lack of complaint” as substan-
tive negative evidence was erroneous. Green v. Wilkie, No.
17-4845, 2019 U.S. App. Vet. Claims LEXIS 486, at *2 (Vet.
App. Mar. 28, 2019). Green argued that “the majority of
these records involved treatment for things other than
skin-related issues,” and that he therefore had “no occasion
or motivation to discuss his [dermatophytosis] condition or
medications at those times.” Id.
2 The Board considered Green’s dermatophytosis
rating under the pre-2002 version of Diagnostic Code 7813,
which provided more favorable criteria to Green than the
revised criteria. J.A. 15–16 (“Although an award based on
the revised criteria is improper prior to the date that crite-
ria became effective, there is no prohibition against assign-
ing a rating under the older criteria for the entire period on
appeal.”). The Board also considered Green’s dermatophy-
tosis rating under the post-2002 version of Diagnostic Code
7813 and concluded that a higher disability rating is not
warranted, but that line of analysis is not at issue here.
J.A. 18–19.
Case: 19-2047 Document: 44 Page: 7 Filed: 04/07/2020
GREEN v. WILKIE 7
In support of his argument, Green cited to Buczynski v.
Shinseki, 24 Vet. App. 221 (2011), where the Veterans
Court held that the Board erred by “treating the absence of
evidence as negative evidence that Mr. Buczynski’s skin
condition was not exceptionally repugnant.” 24 Vet. App.
at 224. Green argued that, like Buczynski, the Board erred
by using the absence of complaints as substantive negative
evidence that Green did not suffer from constant itching.
Green, 2019 U.S. App. Vet. Claims LEXIS 486, at *2–3.
The Veterans Court rejected Green’s argument. It ex-
plained that, in Buczynski, the Board’s reliance on an ab-
sence of evidence was erroneous because there was no
reason why Buczynski’s doctors would have been expected
to comment on the “repugnance” of the veteran’s condition.
Id. at *2–3 (citing Buczynski, 24 Vet. App. at 223–24). It
was not a case “where silence in the records tends to dis-
prove the fact.” Id. at *3 (citing Buczynski, 24 Vet. App. at
224). The Veterans Court reasoned that Green’s silence
“does tend to disprove the fact that he had constant pain,
itching, and the need for constant medication,” however.
Green, 2019 U.S. App. Vet. Claims LEXIS 486, at *4. Ac-
cording to the court, Green’s medical records documented
numerous occasions where such complaints would have
been appropriate and recorded, and that Green had exam-
inations in 2015 and 2017 which were specifically dedi-
cated to evaluating his skin condition. Id. As a result, the
Veterans Court concluded that the Board did not clearly
err by considering Green’s lack of complaints in his medical
records as substantive negative evidence because “these
were situations where Mr. Green would have been expected
to discuss his condition if he was experiencing the symp-
toms alleged.” Id.
The Veterans Court further noted that the Board also
“used actual evidence—several examination reports show-
ing normal skin—as substantive negative evidence to deny
a higher rating.” Id. at *3. Although other conditions may
have precipitated certain VA treatment visits, each visit
Case: 19-2047 Document: 44 Page: 8 Filed: 04/07/2020
8 GREEN v. WILKIE
also included skin evaluations, which confirmed that Green
“had no present rash or other skin conditions.” Id. at 4.
Because “the evidence predominantly showed that Mr.
Green did not exhibit symptoms of a skin condition during
the relevant time period,” the Veterans Court concluded
that the Board’s decision was adequate for purposes of re-
view and affirmed. Id. at *4–5 (“What’s left of his argu-
ment is, in substance, a disagreement with how the Board
weighed his statements against the medical evidence. As
it is the Board’s distinct duty to weigh and assess the evi-
dence of record, the Court declines to engage in such re-
view.”).
Green timely appealed to this court. We have jurisdic-
tion to review issues of statutory and regulatory interpre-
tation pursuant to 38 U.S.C. § 7292.
II. DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See Githens v. Shinseki, 676
F.3d 1368, 1371 (Fed. Cir. 2012); Bernklau v. Principi, 291
F.3d 795, 800 (Fed. Cir. 2002). We have jurisdiction “to
review and decide any challenge to the validity of any stat-
ute or regulation or any interpretation thereof . . . and to
interpret constitutional and statutory provisions, to the ex-
tent presented and necessary to a decision.” 38 U.S.C.
§ 7292 (2002). We may not, however, review (1) a challenge
to a factual determination, or; (2) a challenge to a law or
regulation as applied to the facts of a particular case, ex-
cept to the extent that such a challenge presents a consti-
tutional issue. 38 U.S.C. § 7292(d)(2). We “review[] legal
determinations of the Veterans Court under a de novo
standard.” Buchanan v. Nicholson, 451 F.3d 1331, 1334
(Fed. Cir. 2006).
Green argues that the Veterans Court’s opinion was er-
roneous because the court (1) misinterpreted 38 C.F.R.
§ 4.118 (2001) by requiring evidence of exudation or
Case: 19-2047 Document: 44 Page: 9 Filed: 04/07/2020
GREEN v. WILKIE 9
constant itching, extensive lesions, and marked disfigure-
ment for purposes of assigning a 30 percent rating; (2) er-
roneously affirmed the Board’s reliance on evidence
resulting from evaluations of Green’s non-dermatophytosis
conditions; and (3) erroneously affirmed the Board’s reli-
ance on Green’s silence as substantive negative evidence of
constant itching. We address each issue in turn.
A. 38 C.F.R. § 4.118 (2001)
Under the pre-2002 regulation, a 30 percent rating of
dermatophytosis is warranted if eczema is accompanied by
“exudation or itching constant [sic], extensive lesions, or
marked disfigurement.” 38 C.F.R. § 4.118 (2001). Green
alleges that the Veterans Court’s decision is legally errone-
ous because it misinterpreted the regulation and required
“evidence of all four symptoms for the purpose of assigning
a 30 percent rating.” Appellant Br. 12. In support, Green
points to his prior statements, alleging that he suffered
from constant itching. Id. Green argues that the Court
could not have affirmed the Board’s decision, “despite evi-
dence that [Green] suffered from constant itching,” unless
it interpreted the regulation to require evidence of all four
symptoms.
Green, however, mischaracterizes the Veterans Court’s
opinion. The issue before the Veterans Court was not
whether 38 C.F.R. § 4.118 required all four symptoms to
warrant a 30 percent rating. Rather, the Veterans Court
considered whether Green’s lack of complaint could be con-
sidered as substantive negative evidence. Green, 2019 U.S.
App. Vet. Claims LEXIS 486, at *2 (“Green’s argument cen-
ters on the effect of his lack of complaint.”). There is no
indication that issues concerning the proper interpretation
of § 4.118 were before the Veterans Court. The court’s
opinion “does not address the validity or elaboration of [the
regulation], or reflect that a different decision would have
resulted had the position urged by appellant been
adopted.” Githens, 676 F.3d at 1372.
Case: 19-2047 Document: 44 Page: 10 Filed: 04/07/2020
10 GREEN v. WILKIE
In fact, the language of the Veterans Court’s decision
reflects the correct interpretation of the regulation. In dis-
cussing the diagnostic criteria for a 30 percent rating, the
opinion states: “a 30% rating is warranted if the skin dis-
order is accompanied by ‘exudation or itching con-
stant [sic], extensive lesions, or marked disfigurement.’”
Green, 2019 U.S. App. Vet. Claims LEXIS 486, at *2 n.1.
The Veterans Court emphasized that the “precise basis” of
the Board’s decision was that “the evidence predominantly
showed that Mr. Green did not exhibit symptoms of a skin
condition during the relevant time period.” Id. at *4. In
other words, the Veterans Court affirmed the Board’s deci-
sion because the evidence reflected that Green exhibited
none of the four symptoms during the period of review.
“We have no jurisdiction over an issue of interpretation
that does not exist.” Githens, 676 F.3d at 1372. In this
case, the Veterans Court affirmed the Board’s decision, not
in spite of evidence demonstrating continuous itching, but
because of evidence that Green did not suffer any of the
four symptoms, including constant itching. Accordingly,
we conclude that the Veterans Court did not misinterpret
38 C.F.R. § 4.118 in its decision. And, to the extent that
Green challenges the Board’s determination that his testi-
mony was outweighed by the evidence in his medical re-
ports, such a finding is a factual determination—one that
we lack jurisdiction to review.
B. Treatment Records Resulting from Examinations of
Green’s Other Conditions
Green alleges that the Veterans Court erred when it
affirmed the Board’s denial because treatment records for
medical conditions unrelated to the disability at issue are
not “pertinent,” even if they contain findings regarding the
claimed disability. Appellant Br. 16. In support of his ar-
gument, Green cites to 38 C.F.R. §§ 4.1, 4.2, and 4.6, which
according to Green, establish that treatment records for
Case: 19-2047 Document: 44 Page: 11 Filed: 04/07/2020
GREEN v. WILKIE 11
medical conditions unrelated to the disability at issue are
not pertinent or relevant.
Green’s interpretation of the regulations is unpersua-
sive. 38 C.F.R. §§ 4.1, 4.2, and 4.6 do not narrow the uni-
verse of “pertinent” evidence to treatment records resulting
from the examination of the particular disability-at-issue.
For example, 38 C.F.R. § 4.1 recites, in relevant part, that,
“in the examination and in the evaluation of disability,” the
disability should be viewed “in relation to its history.” Sec-
tion 4.1, however, does not indicate that the “history” of a
disability can only be obtained from medical treatment rec-
ords reflecting examination for that particular disability.
And as we have previously held, the VA may consider a
veteran’s medical records, even if the underlying examina-
tion was not for the purpose of assessing the veteran’s dis-
ability claim. See Moore v. Shinseki, 555 F.3d 1369, 1373
(Fed. Cir. 2009) (“The Veterans Court erred when it deter-
mined that Moore’s service medical records were not rele-
vant because they pre-dated the period for which he sought
disability compensation.”).
Similarly, as with section 4.1, sections 4.2 and 4.6 do
not limit the type of examination reports that may be con-
sidered by the VA or the Board. See 38 C.F.R. §§ 4.2 (“It is
the responsibility of the rating specialist to interpret re-
ports of examination in the light of the whole recorded his-
tory, reconciling the various reports into a consistent
picture so that the current rating may accurately reflect
the elements of disability present.”), 4.6 (“Every element in
any way affecting the probative value to be assigned to the
evidence in each individual claim must be thoroughly and
conscientiously studied by each member of the rating board
. . . .”). If anything, these regulations, which require the
VA to consider “every element in any way affecting the pro-
bative value to be assigned to the evidence in each individ-
ual claim [for disability],” support the Board’s
consideration of Green’s non-dermatophytosis treatment
notes, which show that the physical exam of Green’s skin—
Case: 19-2047 Document: 44 Page: 12 Filed: 04/07/2020
12 GREEN v. WILKIE
even if only done incident to consideration of a different
condition—showed no rash, sores, or other lesions. J.A. 16.
By statute, the VA must consider “all information and
lay and medical evidence of record in a case before the Sec-
retary.” 38 U.S.C. § 5107. In this case, the Board properly
considered all of Green’s medical records discussing the
condition of his skin, weighed that evidence against
Green’s lay statements, and concluded that the evidence
“predominantly showed that Mr. Green did not exhibit
symptoms of a skin condition during the relevant time pe-
riod.” Green, 2019 U.S. App. Vet. Claims LEXIS 486, at *4.
Accordingly, we conclude that the Veterans Court did not
commit legal error in affirming the Board.
C. Absence of Complaints
Finally, Green argues that the Veterans Court erred
when it affirmed the Board’s denial because the Board re-
lied on Green’s failure to complain as “substantive negative
evidence” that Green did not suffer constant pain, itching,
and medication requirements. Appellant Br. 13. Green ar-
gues that the Board’s reliance on silence as substantive
negative evidence contravenes our precedent. Id. at 18. In
addition, Green argues that his failure to complain is not
“pertinent evidence” because “[s]uch evidence [does] not
tend to prove or disprove the existence of his symptoms at
that time.” Id. at 16. That is, Green asserts that “[t]he
Board cannot presume, as a matter of law, that a veteran
will complain about symptoms of one condition when he or
she is being evaluated for a separate condition.” Id. at 18.
Green misunderstands our precedent and the determi-
nations of the Veterans Court and the Board. Reliance on
silence as substantive negative evidence is not ispo facto
erroneous. We have explained that the absence of an entry
in a record may be admissible if the item or condition ordi-
narily would be recorded. See AZ v. Shinseki, 731, F.3d
1303, 1315 (Fed. Cir. 2013) (citing Chesapeake & Del. Ca-
nal Co. v. U.S., 250 U.S. 123, 129 (1919)). The Board may
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GREEN v. WILKIE 13
“weigh the absence of contemporaneous medical evidence
against the lay evidence of record.” Buchanan, 451 F.3d at
1337.
Nor are the facts in this case similar to cases where we
have concluded that the Board erroneously relied on an ab-
sence of evidence as substantive negative evidence. For ex-
ample, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.
2006), on which Green relies, we determined that the Vet-
erans Court erred by affirming the Board’s finding “that
lay evidence cannot be credible absent confirmatory clini-
cal records to substantiate the facts described in that lay
evidence.” 451 F.3d at 1337. We explained that the rele-
vant regulatory or statutory provisions did not require both
medical and competent lay evidence, and that “competent
lay evidence can be sufficient in and of itself.” Id. at 1335.
The facts in Buchanan are different from those here. Here,
the Board did not rely solely on the absence of complaints
in Green’s medical records from 2009 to 2017 to conclude
that Green did not suffer from constant itching. Rather,
the Board considered several reports showing that Green
had normal skin as substantive negative evidence to deny
a higher rating. We made clear in Buchanan that the
Board may “weigh the absence of contemporaneous medi-
cal evidence against the lay evidence of record.” Id. at
1337. As the fact finder, the Board “is obligated to, and
fully justified in, determining whether lay evidence is cred-
ible in and of itself, i.e., because of possible bias, conflicting
statements, etc.” Id.
Similarly, our holding in AZ v. Shinseki, 731 F.3d 1303
(Fed. Cir. 2013) does not undermine the Veterans Court’s
decision. In AZ, we explained that “basic evidentiary prin-
ciples preclude treating the absence of a record of an unre-
ported sexual assault as evidence of the nonoccurrence of
the assault.” 731 F.3d at 1318. We agreed with the appel-
lants that, in cases where an alleged sexual assault is not
reported, the absence of service records documenting the
alleged assault is not pertinent evidence that the assault
Case: 19-2047 Document: 44 Page: 14 Filed: 04/07/2020
14 GREEN v. WILKIE
did not occur.” Id. But the facts in AZ are also distinct
from those at issue before us. In this case, the Board relied
on the lack of complaints regarding constant pain and itch-
ing in reports that did exist, and which explicitly recorded
the physical condition of Green’s skin. J.A. 17. Accord-
ingly, the absence of such evidence is pertinent because “it
tends to disprove (or prove) a material fact”—that Green’s
skin is “normal.” AZ, 731 F.3d at 1311. As the Veterans
Court explained, complaints about constant pain and itch-
ing would be expected to have been recorded, particularly
because these examinations were conducted with the spe-
cific intention of considering Green’s dermatophytosis
claim. Green, 2019 U.S. App. Vet. Claims LEXIS 486, at
*4; J.A. 2–3.
Accordingly, we find that the Veterans Court properly
determined that the Board did not clearly err by consider-
ing the absence of complaints in Green’s medical records as
substantive negative evidence “because these were situa-
tions where Mr. Green would have been expected to discuss
his condition if he was experiencing the symptoms alleged.”
Green, 2019 U.S. App. Vet. Claims LEXIS 486, at *4.
III. CONCLUSION
As explained above, we lack jurisdiction to review chal-
lenges to the Board’s factual determinations. In addition,
the Veterans Court did not legally err when it affirmed the
Board’s reliance on evidence resulting from examinations
of Green’s other conditions, or when it determined that the
Board may rely Green’s lack of complaint as substantive
negative evidence. For these reasons, we affirm the Veter-
ans Court’s decision.
AFFIRMED
COSTS
No costs.
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235 Md. 169 (1964)
201 A.2d 8
PROGRESSIVE FRIENDSHIP SAVINGS & LOAN ASSOCIATION, INC.
v.
ROSE
[No. 348, September Term, 1963.]
Court of Appeals of Maryland.
Decided June 4, 1964.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY and MARBURY, JJ.
Morton H. Perry for the appellant.
William C. Mitchell, Jr., for the appellee.
HAMMOND, J., delivered the opinion of the Court.
In a suit by a landlord, the appellant, for unpaid rent, the trial court, sitting without a jury, found for the tenant, the appellee, on the ground that he had not agreed to pay as rent the amount on which the landlord based its claim.
The appellee, C. Bowie Rose, is a lawyer who for some time has practiced from an office in Glen Burnie. In 1956 he and a lay associate, John Lane, formed the Anne Arundel County Realty Company and, in its name, leased a building in Glen Burnie for ten years at a rental of $230.00 a month. The lessee made improvements and additions to the building costing about $8,000, mostly on the credit, it would appear, of Rose. At about the same time, Rose, to use his words, was "putting together" the Progressive Friendship Savings and Loan Association, Inc., the appellant, of which he became (and during the times herein pertinent was) a director and counsel. Faced with the imminent prospect of paying for the improvements to the leased building, Rose conceived the idea of having the newly formed building association pay the bills, and become the assignee of the lease of the building in order (a) to have a place of business for itself and (b) to sublet to the existing tenants of the building (the Realty Company, Rose, and one Wagener, a director of the Association) at rentals, based on the amount of space respectively used, sufficient to reimburse it for cost of the improvements, *172 plus six per cent discount interest and a bonus of two per cent. The advantage to the Association was to be an office and, in the words of its president, the receipt of sub-rents in "a sufficient amount to make the proposition attractive to the Association," in a total of $10,506, which would be enough to yield a profit of $3,208.
The advantage to Rose was to be that he would still have the office he wanted and be relieved of the obligation and necessity of paying the improvement bills (except to the extent that some of his share of the sub-rentals, based on the proportion of the total space in the building he used, contributed to the repayment of the money the Association used to pay them). As one director of the Association put it from the stand, "[w]e took Mr. Rose off the hook."
Having conceived the idea (of which Lane, his associate, who was a director and secretary of the Association, was in favor), Rose presented it to most of the other directors individually, or as he said, he "sold [it] to the other directors."
This "sale" having been put across informally, the president of the Association appointed a committee of its directors, headed by Herbert Goldman, the certified public accountant for the Association, to ascertain the amount to be paid for the improvements and the amount to be paid as rent by each of the sub-tenants. The committee measured each of the rooms of the building with a tape measure to ascertain the percentage of the total space used by each tenant (for the purposes of the calculation, and for reasons not here material, the small room used by the director Wagener was not counted as part of the total area), figured a basic rent, including electricity, heat and janitorial services, of $1.41 a square foot, added $1.00 a square foot to amortize the cost of the improvements over a three-year period, and estimated the respective monthly rentals as a flat $70.00 (only slightly in excess of the basic rent) for Wagener, $86.00 for three years, and $60.00 thereafter for the Realty Company (occupancy of 17% of the space), $105.00 for three years and $65.00 thereafter for the Building Association (occupancy of 21% of the space), and $310.00 for three years and $200.00 thereafter for Rose (occupancy of 62% of the space).
*173 A formal meeting was called by the directors of the Association for December 13, 1956, to act on the Rose proposal. At the meeting, at which Rose was present, Goldman read a report of his committee, which was made part of the minutes of the meeting, setting out specifically and in detail the basic rent figure, the additional $1.00 a month a square foot to amortize the cost of improvements in three years, the monthly rentals set for each sub-tenant by the committee, the cost of the improvements, $7,298 (with a detailed analysis of how this total was arrived at), the total rent the Association would pay in ten years (at $230.00 a month), $43,230, the total rent it would collect in ten years under the proposed schedule, $53,736, the difference, $10,506, which after deduction of $7,298 left a profit to the Association of $3,208. According to the minutes, there was "a general discussion on the pro-rata share of rents, costs, benefits to the Association and so forth," and thereafter it was moved, seconded and "unanimously carried by the Board that the present lease held by Anne Arundel County Realty Company, be assigned to the * * * Association and the present occupants, being C. Bowie Rose, Anne Arundel County Realty Company, and August Wagener, sub-lease from the Association at the figures stated in the report." The minutes continue: "The bills to be paid, as part of the assignment of the lease, in the attached report, were again read to the Board and upon motion made by Frank Bready, seconded by Irving Robinson, it was unanimously voted that these bills be paid."
The bills were paid, the lease was assigned, and the sub-tenants paid their stipulated rent, except for Rose. He apparently became disenchanted with the proportion of the total space attributed to his use and the amortization of the improvement costs over a three-year period instead of over ten years. (It may be noted that at the rental rate of $310.00 a month for three years and $200.00 a month for seven years the total rent to have been paid would have been $27,960, and at the rental rate of $235.00 a month sufficient to amortize the improvement costs over a ten-year period which Rose suggested was his idea of what he should have paid his total rent would have been $28,200.)
*174 Rose had been a tenant for thirty-three months when another corporation took over the Association lease, and at the rate of $310.00 a month owed a total rental in the amount of $10,230. He paid in various installments but $6,580. The Association sued Rose for the balance of $3,650. Judge Duckett found for the defendant, after saying that "[m]y mind has gone back and forward in this case * * * but * * * I cannot, in my own mind, reach a conclusion that this lease was definite, or whether there was a meeting of the minds between the Building Association and Mr. Rose."
Md. Rule 886 a provides that in a case tried without a jury this Court will review on both the law and the evidence but will not set aside the judgment on the evidence unless clearly erroneous after regard has been accorded the opportunity of the trial court to judge the credibility of the witnesses. We think the judgment in this case must be reversed under the tests of the rule.
A lease is, in shorthand, a contract for the possession of land or space on the one side, and a recompense of rental income on the other. Tiffany, Landlord and Tenant, Sec. 16, pp. 163-164; Allen v. Lambden, 2 Md. 279, 282. Since a lease is a form of contract its creation and construction are subject to the general rules governing the creation and construction of contracts in general. Saul v. McIntyre, 190 Md. 31, 36; Peoples Drug Stores v. Fenton, 191 Md. 489.
When one in possession of property by grant of the owner pays rent to the owner, a tenancy is "implied by the law from the entry into possession of the premises and the payment and acceptance of the rent." Cook v. Boehl, 188 Md. 581, 591.
Rose concedes that the relationship of landlord and tenant existed between the Association and him after the meeting of December 13, 1956, but contends he never agreed to pay the $310.00 a month rental claimed by his landlord to be what he was obligated to pay.
Five of the directors of the Association, who were at the meeting of December 13, 1956, including the president (who presided), the vice president, the secretary (who took the notes of the meeting and the next day wrote the minutes), and the accountant testified that Rose was at the meeting, made the proposal, *175 took great interest in its presentation by Goldman and voted for its adoption as recommended by the Goldman committee. The president and another director recalled specifically that Rose had sat at the president's right all during the meeting. Rose said on direct examination that he left the meeting from time to time to take telephone calls in his office nearby and was not in the room when Goldman's report was read or when it was discussed, or when it was voted on, although he admits he did at some point in the meeting request that the improvement bills be paid and the lease taken over by the Association and that he learned of the $310.00 rent expected of him either immediately after the meeting (which ended after six in the evening) or the next morning. On cross-examination, Rose testified that after he presented the proposal to the meeting he left the room from, apparently, a sense of delicacy in that he said he did not want to be present when the matter was discussed. Later in the cross-examination he became less sure he had not been present at any critical stage of the proceeding. First he said he was not sure he did not sit next to the president (which he had denied on direct examination) and later, when asked if he voted on his proposal, said: "I don't think so, I don't think I went back [into the meeting room] after that." When asked if it was not possible he had voted on the matter, as the minutes indicated, and whether he was certain he had not, Rose replied each time: "I don't think I did."
If Rose did vote to accept the Goldman details of his proposal, as the testimony and exhibits heretofore referred to strongly indicates that he did, and then occupied the leased space and paid rent to the current owner, it is clear that he became a tenant at a monthly rental of $310.00. Judge Duckett found from his personal knowledge of Rose's temperament and habits he described him as "filled with nervous energy" and as "like a bee on a hot griddle" that the testimony of the five directors that he had not left the room during the meeting was incredible. If we assume that the trial judge's opportunity "to judge the credibility of the witnesses," to which Md. Rule 886 a directs us to give "due regard," permitted Judge Duckett to make this finding without being clearly in error, as to which *176 the record leaves us in very strong doubt, we are persuaded that other elements of the Association's proof require the conclusion that Rose was a tenant bound to pay $310.00 a month rent.
The president of the Association, the vice president, its secretary, and another director testified that at the January 10, 1957 meeting of the directors of the Association, which was the next meeting after that of December 13, Rose was present, that the minutes of the December 13 meeting were read by the secretary, that the president asked if there were any corrections or changes, that none was suggested or asked for, and that all present voted to adopt the minutes of the December 13 meeting as read. Rose did not challenge, refute or contradict this testimony in any way or to any extent. When he voted at the January meeting he was already a tenant, he knew his rent had been set at $310.00 a month, he was unhappy about it and had been advised by Goldman that a rent figure based on a ten-year amortization would be $235.00 a month, yet he, a director of and the lawyer for the Association, voted to adopt as correct minutes of the Association which said that he had, on December 13, 1956, voted to become a tenant at $310.00 a month.
After having done this, he continued in possession of the leased space and paid substantial sums of rent to the landlord. We think that he could not be heard to argue, at the conclusion of the case below, that he had not been a tenant for thirty-three months, who was obligated to pay $310.00 a month rent.
Rose admits that never did he ask the directors of the Association at any meeting to change the terms of his tenancy, although he did complain to individual directors about the amount of his rent (the reply seems always to have been that they could do nothing about it). The impression given by his testimony on the point and that of those to whom he complained is that Rose did not behave like one who was not bound to pay $310.00 a month but like one who desired a change in the terms that bound him to $310.00 a month.
The Association offered in evidence its rent ledger cards, kept in the ordinary course of business, showing rent due by Rose to it on the first of each month from January 1, 1957, to September *177 1, 1959, of $310.00. The first payment marked "on account" was received on April 26, 1957, in the amount of $1,000. At that time $1,240 was due at $310.00 a month and $940.00 would have been due under Rose's theory of $235.00 a month. The next payment was $2,000 on February 4, 1958. A third payment was $2,875 on November 26, 1958, when the Association claimed $4,130 to be due, and on Rose's rent figure of $235.00 a month $2,405 would have been owed. We think it improbable that Rose would have paid more than he thought he was obligated to pay on April 26, 1957, and then on November 11, 1958, pay $470.00 more than he claims now was then due, particularly when two months later, on January 21, 1959, he paid $470.00 more, which he would not have been obligated to do under his rent schedule since he at that date would have been two months ahead as a result of his November 1958 payment.
We find from the record as a whole the judgment below was clearly erroneous.
Rose makes an alternative contention that because the Southfield Corporation, which he claims, without proof or elaboration, was his alter ego, took over the Association's lease in September 1959 at a rent of $320.00 a month or $90.00 more than the Association's rent which it could use to amortize the cost of the improvements this wiped out any obligation he had to the Association. We find nothing in the record to support this theory except Roses' claim that it should be so, and much that refutes it. There is nothing in the minutes of the Association or other writings as to the transfer of the lease to suggest that the Association was in any way or to any extent releasing Rose from any amount he might owe it. The Association has not wavered in its continuous assertion that it is owed rent by Rose, and it made the claim it now presses immediately before and immediately after the transfer of the lease and did not hint at a waiver or an accord and satisfaction in making the transfer.
Judgment reversed, with costs, and judgment entered for appellant against appellee for $3,650, with interest from July 23, 1963.
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393 N.W.2d 286 (1986)
Kay L. OIEN, as Guardian Ad Litem for her Minor Child, Casie Oien, Plaintiff and Appellant,
v.
The CITY OF SIOUX FALLS, Defendant and Appellee.
No. 14763.
Supreme Court of South Dakota.
Considered on Briefs April 10, 1985.
Decided September 10, 1986.
Rehearing Denied October 16, 1986.
*287 Thomas K. Wilka of Hagen & Wilka, Sioux Falls, (Karen E. Schreier of Hagen & Wilka, Sioux Falls, on the brief) for plaintiff and appellant.
Timothy J. Nimick of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.
MORGAN, Justice.
This appeal arises from a personal injury action initiated by plaintiff Kay Oien (Oien), as Guardian Ad Litem for her four-year-old child, Casie Oien (Casie), against the defendant City of Sioux Falls (City). City filed a motion for summary judgment on grounds that SDCL 9-38-55 and SDCL 9-38-105 immunized it from liability under the facts of this case. The trial court found that SDCL 9-38-55[1] and SDCL 9-38-105 *288 [2] afforded City municipal immunity and granted City's motion for summary judgment. Oien appeals and we reverse and remand.
City employees chemically treated the water in a municipal swimming pool and left a quantity of the water treatment chemicals on the pool's edge. Casie came into contact with the chemical solution when she sat down at the pool's edge. The solution caused severe chemical burns on the child's buttocks. Immediate medical treatment was required. The child suffered pain and faces permanent scarring and potential infection. Oien alleged that City's employees negligently left some of the chemical solution on the edge of the pool during swimming hours and thereby violated City's duty of care to protect pool users from contact with such chemicals.
City asserts that SDCL 9-38-55 and 9-38-105 (park immunity statutes) shield it from negligence actions arising from its operation of parks and public recreation facilities. City relies on our holding in Grosz v. City of Sioux Falls, 346 N.W.2d 446 (S.D.1984), wherein we stated we believe that the plain import of SDCL 9-38-55 and 9-38-105 is to immunize municipalities from tort liability arising out of the construction and maintenance of public parks, recreation areas and playgrounds.
Oien alleges that the park immunity statutes are unconstitutional under the provisions of South Dakota Constitution art. VI, § 20, the so-called "open courts" provision which provides:
All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.
The issue thus presented to us is: Is the legislative attempt to extend sovereign immunity to municipal operation of parks, playgrounds and pools unconstitutional? We hold that it is.
In High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980), we discussed sovereign immunity in relation to article VI, § 20, as pertains to state government. In that regard, we said:
To say that sovereign immunity is a constitutional violation is on its face an incongruity. In our republican form of government the people are the sovereign. The rights granted under the constitution are such rights as the sovereign grants. The sovereign can retain rights or qualify the grant. As we have noted... the doctrine of sovereign immunity predates our constitution.
295 N.W.2d at 739. [W]hile ... the doctrine [of sovereign immunity] is `judge made law,' we are reminded that it is a doctrine of long standing; so long in fact, that it antecedes the federal and state constitutions. 295 N.W.2d at 738.
We then noted that our state constitution took cognizance of the doctrine of sovereign immunity when it provided in article III, § 27, that "the legislature shall direct by law in what manner and in what courts suits may be brought against the state."
In State v. Board of Commissioners, 53 S.D. 609, 630, 222 N.W. 583, 592 (1928) (quoting Riddoch v. State, 68 Wash. 329, 333-35, 123 P. 450, 452-53 (1912)), this court held that:
`[T]he state is inherently sovereign at all times and in every capacity. It is the organized embodiment of the sovereign power of the whole people. By reason of *289 this sovereignty, it possesses all powers, but only such powers, as are within the limitations of the state Constitution and without the prohibitions of the Federal Constitution. It can do no act except in the exercise of this sovereign power and within these constitutional limitations.'
And further:
[T]here is not, legally speaking, any distinction in the capacity in which the government of the state acts, or in the essential nature of its operation as a matter of law, in the performance of any one function intrusted to it by the people as compared with the performance of other functions so intrusted. We therefore hold that there cannot be successfully maintained, as a matter of law, in this state, under the circumstances here involved, a distinction between what has been frequently denominated as a [governmental] and [proprietary] capacity of the state....
53 S.D. at 632-33, 222 N.W. at 593.
In discussing the doctrine of sovereign immunity on a municipal level as it relates to article VI, § 20, and in the light of the provisions of article III, § 27, we are first reminded that "[a] court, in construing a constitutional provision, must give regard to the whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions." South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 696 (S.D.1981). In addition, we are of course mindful that Oien bears the burden of proving beyond a reasonable doubt that the statutes violate the state constitutional provisions. There is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65 (S.D.1979). Constitutional review of legislative enactments must be handled without regard for the legislative wisdom behind the enacted law, we must focus on its constitutionality. McDonald v. School Bd. of Yankton, Etc., 90 S.D. 599, 246 N.W.2d 93 (1976). Finally, this court must adopt any reasonable and legitimate construction of the statutes which will permit us to uphold the legislature's enactments. Matter of Certain Territorial Elec. Boundaries, Etc., supra.
In Conway v. Humbert, 82 S.D. 317, 322, 145 N.W.2d 524, 527 (1966), this court held: "The legislature within constitutional limitations unquestionably has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort." (Emphasis added.) The opinion goes on, in an exercise of pure dicta, to state: "A municipality and its governing board are specifically exempted from tort liability where the activity engaged in is the improvement, maintenance or operation of a park which is under the supervision of a park board." Citing SDC 45.2539 (the predecessor of SDCL 9-38-55) and Glirbas v. City of Sioux Falls, 64 S.D. 45, 264 N.W. 196 (1935). The decision in Glirbas, however, did not uphold the cited statute in any manner. The issue in that case was whether the complaint against the city stated a cause of action sufficient to withstand a demurrer. The court acknowledged the existence of the statute but declined to take judicial notice that the necessary election had been ordered and held with successful results to bring the city under the provisions of the statute. Nor were the provisions of article VI, § 20, even remotely discussed.
In Grosz, supra, we acknowledged that shortly after the decision in Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438 (1923), the South Dakota Legislature enacted what is now known as SDCL 9-38-55 and in 1949 enacted what is now SDCL 9-38-105. The Grosz decision reiterated the Conway statement that "[t]he power to define tort liability of a municipality rests with the legislature subject to constitutional limitations." 346 N.W.2d at 447. (Emphasis added.) We further held: (1) the construction and maintenance of bicycle paths falls *290 within the purview of the statute; (2) under the statute it is immaterial whether the city was engaged in proprietary or governmental functions; and (3) the plain import of the park immunity statutes is to immunize municipalites from tort liability from activities within their purview. It is important to note that the constitutionality of the parks immunity statutes was not questioned in the briefs nor mentioned in the opinion. Oien is the first case in which anyone has sought to test the enactment of those statutes under the provisions of article VI, § 20.
An important aspect of our review is the relationship between the provisions of article III, § 27, and article VI, § 20. To begin with, we first are reminded of some basic constitutional law. In State ex rel. Wagner v. Summers, 33 S.D. 40, 49, 144 N.W. 730, 732 (1913), we stated:
It is elementary that the legislative power of the Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.
It is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the state Constitution is not a grant of power, but is a limitation upon the powers of the Legislature.
In In re Heartland Consumers Power District, 85 S.D. 205, 208-9, 180 N.W.2d 398, 400 (1970), we reiterated that holding, stating: "The Constitution of South Dakota is not a grant but a limitation upon the lawmaking powers of the state legislature and it may enact any law not expressly or inferentially prohibited by the state or federal constitutions." And further, "in order to determine that an act is unconstitutional we must find some provision that prohibits the enactment of a statute rather than for grants of such power." Id., 85 S.D. at 209, 180 N.W.2d at 400. In High-Grade Oil, supra, we characterized article III, § 27, as recognition of the doctrine of sovereign immunity; authority for a qualified grant of a right of action against the sovereign. Thus, we do not perceive article III, § 27, as any grant of authority to enact the parks immunity statutes. Instead, we must examine article VI, § 20, to determine whether it is indeed a prohibition against the enactment of the parks immunity statutes.
In Simons v. Kidd, 73 S.D. 41, 46, 38 N.W.2d 883, 886 (1949) (quoting Mattson v. Astoria, 39 Or. 577, 579, 65 P. 1066, 1067 (1901)), we characterized article VI, § 20, the "open courts" provision, as "a guarantee that `for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy.'" That is to say, where a cause of action is implied or exists at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy. Did Oien have a remedy under the common law? We think she did.
Under the common law sovereign immunity only extended to the state and its agencies and subdivisions. Municipal corporations are not considered in all respects to be agencies or subdivisions of the state. In South Dakota, sovereign immunity extends to municipalities only to the extent that they are acting as agents for the state, i.e., in a governmental capacity.
As early as 1893, this court recognized in O'Rourke v. Sioux Falls, 4 S.D. 47, 51, 54 N.W. 1044, 1045-46, that
[t]here are two kinds of duties imposed upon a municipal corporation, in respect to which there is a clear distinction,one is imposed for governmental purposes, and is discharged in the interest of the public, and the other arises from the grant of some special power, in the exercise of which the municipality acts as a legal individual. In the latter case the power is not held or exercised by the municipality as or because it is one of the political subdivisions of the state, and for public governmental purposes, but as and because it is, as an individual might *291 be, the grantee of such power for private purposes. In such case the municipality is on the same footing with a private grantee of the same power, and is, like him, liable for an injury caused by the improper use of such power. But where the power is conferred upon the municipality (sic) as one of the political divisions of the state, and conferred, not for any benefit to result therefrom to such municipality, but as a means in the exercise of the sovereign power for the benefit of the public, the corporation is not answerable for nonfeasance or misfeasance by its public agents.
See also Jensen v. Juul, 66 S.D. 1, 5, 278 N.W. 6, 8 (1938) wherein we held:
Although a corporation may be public, and not private, because established and controlled by the state for public purposes, it does not follow that such corporation is in effect the state and that the same immunity from liability attaches. Generally, in reference to liability for torts a municipal corporation has a dual character. It is vested with powers of a governmental character for the administration of general laws of the state and no liability for tort ordinarily attaches for damages caused by negligence while in the exercise of such powers. In so far, however, as municipal corporations exercise powers not of this character, there is no immunity from liability.
In Board of County Commissioners, 53 S.D. at 630, 222 N.W. at 592, we further held:
Municipal corporations enjoy their immunity from liability for torts only in so far as they partake of the state's immunity, and only in the exercise of those governmental powers and duties imposed upon them as representing the state. In the exercise of those administrative powers conferred upon, or permitted to, them solely for their own benefit in their corporate capacity, whether performed for gain or not, and whether of the nature of a business enterprise or not, they are neither sovereign nor immune. They are only sovereign and only immune in so far as they represent the state. They have no sovereignty of their own, they are in no sense sovereign per se.
In Norberg, supra, we held the City of Watertown liable for negligence in the maintenance of its swimming area and in Jensen, supra, we held the Town of Irene liable for negligence in the maintenance of a baseball field. In both cases we determined that such activities did not constitute the exercise of a governmental function.
Since construction, maintenance, and operation of parks, playgrounds and pools have traditionally been held to be a proprietary function, the park immunity statutes which attempt to expand sovereign immunity to municipalities acting in a proprietary capacity and to thereby defeat a cause of action for negligent acts committed in that capacity clearly violates the constitutional limitations of article VI, § 20 of the South Dakota Constitution.
We reverse the judgment of the trial court and remand for further proceedings.
HENDERSON, J., and McKEEVER, Circuit Judge, concur.
WUEST, C.J., and FOSHEIM, J., dissent.
McKEEVER, Circuit Judge, sitting for SABERS, J., disqualified.
WUEST, Chief Justice (dissenting).
I dissent.
As stated in the majority opinion, the party asserting a statute is unconstitutional bears the burden of proving beyond a reasonable doubt the statute violates the constitution and there is a strong presumption the laws enacted by the legislature are constitutional. The majority cites cases, O'Rourke (1893), supra; Jensen (1938), supra; and Board of County Commissioners (1928), supra, concerning the difference *292 between proprietary and governmental functions.
In my opinion, such cases do not prove beyond a reasonable doubt that the park immunity statutes are unconstitutional. Nor, does appellant cite any competent authority or reasons to overturn those statutes. Governmental and proprietary functions are judge-made law, and in my opinion the legislature may change them and grant immunity as they have done by enacting the park statutes. Further, Article III, § 27 of the South Dakota Constitution, provides: "The legislature shall direct by law in what manner and in what courts suit may be brought against the State." That provision regulates sovereign immunity and any diminishment of it must come from the legislature. High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524 (1966).
I am authorized to state that Justice FOSHEIM joins in this dissent.
NOTES
[1] SDCL 9-38-55 provides:
No action shall lie against the board or against the city or the governing body of the city to recover for injuries sustained by any person through the negligence of the officers or employees of the board while engaged in the improvement, maintenance, or operation of property owned or operated as a park or used for park purposes; provided that nothing herein contained shall operate to prevent any employee of the board or of the city from maintaining an action to recover damages for injuries received in the course of his employment.
[2] SDCL 9-38-105 provides:
No action shall lie against the recreation board or against the city or the governing body of the city to recover for injuries sustained by any person through the negligence of the officers or employees of the recreation board while engaged in the operation of a system of public recreation and playgrounds; provided that nothing herein contained shall operate to prevent any employee of the recreation board or of the city from maintaining an action to recover damages for injuries received in the course of his employment.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3972826/
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E. C. Barton, justice of the peace of precinct No. 2, Denton county, has prosecuted this appeal from a final judgment in favor of Shell Jackson perpetually enjoining appellant, as such justice of the peace, from issuing any process for the enforcement of a judgment rendered by him against Jackson in favor of one J. F. Biggerstaff in cause No. 723 In said justice court, also restraining the justice of the peace from again trying that suit or entering any further order pertaining thereto. No statement of facts is contained in the record before us; but, according to the allegations in Jackson's original petition, the suit in the justice court was for forcible entry and detainer instituted by Biggerstaff against Jackson, and judgment was rendered in plaintiff's favor by default, in defendant's absence, without any answer from him, without proof, at a special term of the court and not on the first day of the regular term to which the service upon defendant was returnable. Jackson alleged that by reason of those facts the judgment against him was void. After service of a temporary writ of injunction upon him restraining him from issuing a writ of restitution on that judgment, the justice of the peace filed an answer admitting that the judgment was void and alleging that he had since set it aside, and had reset the case for trial. By supplemental petition in reply to the answer, Jackson admitted that the judgment had been set aside, but alleged that such order was made in the absence of any motion for a new trial or appeal, some 12 days after the date of judgment when the justice had lost jurisdiction over the case and was without legal authority to vacate the judgment. By reason of those facts, Jackson contended that the judgment by default was final, and he prayed that upon final hearing the justice be perpetually restrained, not only from issuing process upon the judgment, but also from taking any further action or making any further orders in the case.
If the judgment was void, as contended by both parties, then the same was a nullity and could be set aside at any time; and the statutes prescribing the conditions under which a justice may set aside a judgment and grant a new trial have no application. This is a well-settled rule as shown by our decision in G. C. S.E. Ry. v. Wilshire, 178 S.W. 43, and authorities there cited. See, also, Milam County v. Robertson, 47 Tex. 222.
The justice having rightfully set aside the judgment by default, the case is properly before him for further proceedings, and the final judgment of the county court perpetually restraining him from taking any further cognizance of the case was erroneous.
Accordingly, the judgment from which this appeal is prosecuted is vacated, and the suit is dismissed.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/1973700/
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235 Md. 456 (1964)
201 A.2d 842
TOOMEY ET AL.
v.
GOMERINGER ET UX.
[No. 301, September Term, 1963.]
Court of Appeals of Maryland.
Decided July 3, 1964.
The cause was argued before BRUNE, C.J., and HAMMOND, HORNEY, MARBURY and SYBERT, JJ.
Eugene P. Smith, with whom was Robert J. Romadka on the brief, for the appellants.
Eugene G. Ricks, with whom was Michael Paul Smith on the brief, for the appellees.
BRUNE, C.J., delivered the opinion of the Court.
Objecting neighbors (the protestants) appeal from an order of the Circuit Court for Baltimore County (Berry, J.) reversing an order of the County Board of Appeals and granting a petition of the appellees (the applicants) for the reclassification of certain property, which petition the Board had denied. The reclassification had originally been granted by the Zoning Commissioner, and his order had in turn been reversed by the Board. The applicants are the owners and prospective sellers of the property in question. The contract purchaser, owner of a chain of food stores, is not a party to these proceedings, but two of its representatives testified before the Board.
*459 The applicants (appellees) have filed a motion to dismiss the appeal, which was heard immediately prior to the argument on the merits. The motion raises two contentions: (a) that the protestants were too late in intervening and answering the appeal from the Board's order in the Circuit Court, and (b) that they have no sufficient interest to maintain this appeal.
The first of these is based upon Maryland Rule B9, which is one of the Rules relating to appeals from administrative agencies contained in subtitle B of the Rules governing Special Proceedings. This Rule provides in part that a party before the agency who desires to participate in the appeal shall file an answer "within thirty days after the filing of the petition of appeal, or such longer or shorter time as may be fixed by the Court." This contention was raised by a preliminary motion in the trial court, which was heard and denied by Judge Turnbull. We think that his ruling was correct.
Though ordinarily an answer should be filed within the thirty days, we think that Rule B9 is not inflexible and mandatory as to the thirty day period. It is not shown that the applicants were prejudiced by the delay from early June to early August in the filing of the answer, and the delay seems to have been due at least to some extent to delay on the part of the applicants in furnishing the protestants with a copy of the petition of appeal as had been promised. The provisions of Rule B4 a and b with regard to the time for filing an appeal are generally similar to those of Rule B9 for the time of filing an answer. All use the word "shall," as does Rule B2 e, which deals in part with the time for filing a petition which, if not joined with, must follow an order for appeal. We note that Rule B4 c requires an application for extension of time for filing an order of appeal to be made within the time allowed for filing the order of appeal. There is no counterpart to this provision in Rule B9, nor is there any to Rule B5. The latter provides that the appeal shall be dismissed for failure to file an order for appeal within the time prescribed by Rule B4, or to file a petition of appeal under Rule B2 e within the time prescribed by the Rule, "unless cause to the contrary be shown." If the provisions as to time of Rule B4 a and b or of Rule B2 e were mandatory requirements, there would hardly be any necessity *460 for the provisions of Rule B5 for the dismissal of the appeal; and the concluding clause of that Rule shows that some elasticity is allowed if "cause" (meaning "good cause," Merrimack Park Recreation Ass'n, Inc. v. County Board of Appeals, 228 Md. 184, 188, 179 A.2d 345) is shown. We accordingly hold that the time requirement of Rule B9 is not mandatory, and we think that it was within Judge Turnbull's discretion to refuse to strike out the answer of the protestants, and we find nothing to indicate any abuse of discretion on his part in so refusing. We deny the motion to dismiss insofar as it is based upon delay in the filing of the appellant's answer in the Circuit Court.
The second ground upon which dismissal is sought is in substance that the properties of the protestants are so remote from the property for which rezoning is sought that the protestants have no standing to maintain this appeal. Though the trial judge made a comment in his opinion to the effect that the protestants' properties were more than two city blocks away from the property for which rezoning was sought and "could hardly be directly affected by any permitted commercial use," no objection to their standing to participate was made in the trial court. The record shows not only that there was evidence before the Board from the protestants that the value of their residential properties would be depreciated by the proposed reclassification, but that there was testimony by the Deputy Director of Planning of the County that in his opinion the proposed extension of commercial zoning would have an impact on the surrounding residential areas and that the commercial area should not be extended in the direction proposed. There was in addition testimony by an experienced real estate broker and developer that, in his opinion, the reclassification of the property in question, at least if followed by the development and use of the property as planned by the applicants' contract purchaser, would eat into the existing residential community and would depreciate and depress the area.
In view of the above evidence we are not prepared to hold that the protestants are without standing to maintain this appeal, as not being "parties aggrieved" (see Sec. 604 of the *461 Baltimore County Charter[1]), particularly in view of the fact that their standing was not even challenged in the trial court. Costello v. Seiling, 223 Md. 24, at 29, 161 A.2d 824; Pressman v. City of Baltimore, 222 Md. 330, at 334-35, 160 A.2d 379. Cf. Richmark Realty Co., Inc. v. Whittlif, 226 Md. 273, at 281-82, 173 A.2d 196, where the chancellor found on conflicting evidence that the complainants would suffer special damages from the establishment of a filling station within 300 feet of a city park and about 200 feet from the complainants' residence. The chancellor's finding, which was not disturbed by this Court, rested largely on the testimony of a real estate expert that part of the value of the property of the complainants and of other property in the neighborhood was derived from their proximity to the park and that a "chipping away" of the restrictions established to protect the areas in and around the parks would inevitably reduce the value of nearby residential real estate.
All three of the cases cited above were suits in equity, but the same test has been applied in determining who are "aggrieved" persons entitled to appeal from adverse action of a zoning body. Pattison v. Corby, 226 Md. 97, 172 A.2d 490. As was there said (226 Md. at 102): "an adjacent owner in the sense of being near or close by as well as an abutting owner, whose legal rights have been infringed, is an aggrieved person. But the farther a protestant resides from the zoning objected to, the more difficult it is, in the absence of other *462 pertinent circumstances, to decide whether he has standing to appeal." In the Pattison case the appellant's interest was held insufficient, and a similar result was reached in Loughborough v. Rivermass, 213 Md. 239, 131 A.2d 461. In each of them the sufficiency of the objector's interest was challenged in the trial court. In the Pressman case above referred to, where the sufficiency of the complainants' interest was not challenged in the trial court, the nearest property owned by any of them was about two blocks from that being rezoned. That property was in sight of the tract being rezoned. Other complainants-appellants, whose right to sue was upheld against a motion to dismiss filed in this Court, owned properties at considerably greater distances. Our pertinent cases up to the time of the decision of Pattison are reviewed in the opinion in that case. We shall not review them further here. We think that the present case falls under Costello and Pressman, rather than Pattison and Loughborough, and accordingly we deny the motion to dismiss insofar as it is based upon the appellants' asserted lack of standing.
We now come to the merits of the case.
The property sought to be rezoned from R-6 (a rather high density residential classification) to B-L (a commercial use classification) has a frontage on its western side of about 107 feet along the east side of Stemmers Run Road beginning at a point about 419 feet north of the intersection of that road and the northern side of Eastern Boulevard. (Though Stemmers Run Road in this area runs somewhat west of north from this intersection and Eastern Boulevard runs almost northeast from it, we shall speak of Stemmers Run Road as running north and south and Eastern Boulevard as running east and west.) The subject property is roughly rectangular in shape with its long lines, of about 376 to 378 feet, running almost parallel to Eastern Boulevard. The contract purchaser has under lease a somewhat irregular, but generally rectangular tract, recently reclassified as B-L, south of and adjoining the subject property. This tract has a frontage of about 300 feet on Stemmers Run Road and it has access to Eastern Boulevard by two thirty-foot rights of way, one on each side of a hamburger shop fronting on Eastern Boulevard. To the west of the hamburger *463 shop and at the northeast corner of Stemmers Run Road and Eastern Boulevard is a gasoline filling station and to the east of this hamburger shop is a used car lot. To the east, north and west of the subject property the area is residential, zoned R-6, with the exception of three tracts which are used for schools, one of which is across Stemmers Run Road from the subject property.
We now quote from the opinion of the Board:
"The protestants pointed out that Stemmers Run Junior High School is located across Stemmers Run Road from the subject property. They testified that this two lane road is also used by the buses to Kenwood High School and an elementary school, both of which are in the neighborhood. They opposed the reclassification of this property on the grounds of increased traffic hazards and the encroachment of commercial land into a residential area with resultant adverse effect on the community.
"George E. Gavrelis, Deputy Director of Planning and Zoning, testified that `B-L' zoning of the subject tract would result in an inharmonious land use. He further stated it would close the possibility of the land opposite the Junior High School being used for residential purposes. It was his opinion that the area is predominantly residential in nature and that the present boundary of `B-L' is the farthest point north along Stemmers Run Road to which it should be extended. Practically the same opinion was stated by Frederick P. Klaus, an expert realtor witness.
"The principal reason advanced by the petitioner appeared to be that it needed this additional tract of ground in order to properly locate the desired size store building. Such additional land area however, would not alter the poor access lanes to the parking lot of the proposed store.
"It is the unanimous opinion of the Board of Appeals that there have been no changes in the immediate neighborhood which warrant a reclassification, *464 and that the petitioners have failed to show an error in original zoning. Further it is the opinion of the Board that to grant such reclassification would certainly tend to increase the traffic in the area which could result in additional traffic congestion and further, that the reclassification would be further encroachment of commercial land into the predominantly residential area which would have an adverse effect on the value of property in the community."
The record contains evidence to support the Board's findings and conclusions.
No additional testimony was taken before Judge Berry. Almost 90% of the transcript of proceedings before him (based upon lineage, treating incomplete lines as full lines) is taken up with comments, observations and some questions by the trial judge. At the outset he announced his complete familiarity with the area in question, and our review of the transcript of the proceedings before him indicates that he relied very heavily upon his personal familiarity with the neighborhood and his own views based thereon.[2]
In his formal opinion the trial judge said in part:
"All the other three corner properties at Eastern Boulevard and Stemmers Run have long been used commercially and are so zoned.
*465 "It is conceded that since the adoption of the original zoning map numerous changes have occurred in the area both as to zoning and use but, it is argued, these are referrable only to Eastern Boulevard.
"That is the real question in this case. Is the subject property really oriented to Eastern Boulevard or to the existing residential section lying to the north?
"It seems inescapable to this Court that this property is really much more oriented to Eastern Boulevard and its extensive commercial development than to the residential area lying to the north and not only that changes in the area have been sufficient to justify the reclassification but that its original zoning as residential was erroneous.
"In reaching this conclusion the Court has not overlooked the well established principles that `zoning lines must be drawn somewhere' and the Court must not substitute its judgment for that of the Board."
Notwithstanding the trial judge's recognition of these established rules, we are forced to conclude that his decision cannot be reconciled with them. There was evidence before the Board from which it reasonably could and did reach its conclusions which we have quoted above. We therefore think that the questions before the Board were at least fairly debatable and that the trial court actually substituted its judgment for that of the Board and that in so doing it went beyond the proper exercise of its powers. See Renz v. Bonfield Holding Co., 223 Md. 34, 43, 161 A.2d 436, and cases therein cited; Levy v. Seven Slade, Inc., 234 Md. 145, 198 A.2d 267. The judgment will accordingly be reversed, with directions to reinstate the order of the Board; the costs are to be paid by the appellees. Maryland Rule 882 a. (See Reese v. Mandel, 224 Md. 121, 167 A.2d 111).
Order reversed and case remanded for the entry of an order in conformity with this opinion; the costs to be paid by the appellees.
NOTES
[1] We assume, without deciding, that under the Baltimore County Code (1963 Supp.), Sec. 23-27, which allows appeals to the courts to be taken "in the manner provided in Article VI of the Baltimore County Charter," the right of appeal is limited to parties "aggrieved" by the action of the Board of Appeals or of the Circuit Court, since Sec. 604 of the Charter provides for appeals only by such persons, and that the term is less broad in scope than the terms of Sec. 23-26 of the County Code which provide that "[a]ny person or persons, jointly or severally, or any taxpayer or any official, office, department, board or bureau of Baltimore County, feeling aggrieved by any decision of the zoning commissioner shall have the right to appeal therefrom to the county board of appeals." Sec. 604, as the notes of the Reporter for the Charter Revision Commission show, was intended to conform with Code (1957), Art. 25A, Sec. 5U.
[2] Perhaps the key to the trial judge's approach to the case may be found in the passage quoted below which occurs after the judge had spoken of the "strange arrangement" for getting in and out of the supermarket tract and that "you almost can't do anything with it the way it is set up now:
"(The Court). You can't do anything now because you are jammed up badly for space, Mr. Romadka [counsel for the protestants, who were appellees in the Circuit Court], I am addressing this to you, more or less because the burden is on you in this case although it would not appear from the record. I don't think anybody can build a house on this piece of property. It is much too close to all of these schools and heavy commercial development in my opinion. The one hundred and seven feet would not sell for a house and I would not live there, I am putting you on the spot, I don't believe the property can be used for residential."
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/3384839/
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Writ of error dismissed on motion of counsel for Defendant in Error.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3384845/
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This case was decided by an opinion filed August 23, 1932. On November 2, 1932, the judgment here was modified and a rehearing refused. The case is now before us on a motion to recall the mandate, accompanied by an extraordinary petition for a rehearing.
The prayer to recall the mandate should be denied and the extraordinary petition for a rehearing should be refused.
The record shows that a final decree was entered by the Chancellor holding that the bill was without equity and ordering it dismissed without prejudice. The Chancellor in entering that decree expressly stated in it that *Page 507
he regarded it as unnecessary to consider either the master's report or the exceptions thereto. Thus there was eliminated from consideration, by the very decree itself, all of the testimony which had been taken in the case and reported by the master.
The Chancellor also held in his final decree that it appeared that there is paid into the registry of this Court the sum of seventy-five hundred dollars by the complainants herein as an installment of rent due the defendant on the 15th day of February, 1931." Having reached the conclusion that the deposit in the registry of the Court had been paid in as rent, rather than deposited as security for the rent, the Chancellor who signed the final decree, ordered that money paid over to the defendant summarily. We say summarily because the Chancellor himself had just before that expressly recited the fact that he had dismissed the bill without considering either the master's report or the evidence.
This Court disagreed with the Chancellor's holding as to the precise purpose of the deposit, and in the opinion first filed in this case we expressly held:
"It appears from the bill that a tender of the money was not made for the purpose of meeting the installment of rent due on the 15th day of February, 1931, in the event the suit should be dismissed, but that it was deposited with the intention, as we gather it from the allegations of the bill, of having the differences apparently existing between the lessor and lessees adjusted," etc.
The bill having been dismissed because of insufficiency of the complainants' bill to state an equitable cause of action, the money now remains in the registry of the Court, not as a tender for summary disposition, but to be disposed of as a fund in hand "as may seem proper and meet" in accordance with the order under which it was deposited. Such fund being in hand, it is within the jurisdiction *Page 508
of the Court in whose custody it is, to entertain appropriate proceedings for its disposition, not summarily, but according to equitable principles for the purpose of making restitution to the defendant for its loss occasioned by an improvident injunction which had been granted on an insufficient bill.
A court, having, by its own erroneous act, occasioned a wrong, possesses an inherent and summary jurisdiction to afford the redress, without reference to the peculiar nature of the controversy which it had erroneously determined. This is a power which is as much to be exercised where the same court abrogates its own erroneous decision, as where it is done pursuant to a judgment of reversal by an appellate court. The power of a court to repair the injury occasioned by its own wrongful adjudication is not derived from the mandate of an appellate court, but is an inherent power flowing from the judicial function exercised in deciding a judicial controversy under the law. Where restitution is sought at law, the remedy is usually by scire facias, but where it is sought in equity, redress may be ordered by a decretal order, founded upon a rule to show cause, or upon motion after notice to the adverse party. The duty of the court to repair its own wrongs is usually regarded as mandatory. See cases cited with approval by us in Hazen vs. Smith, 101 Fla. 767, 135 Sou. Rep. 813. See also Fleming vs. Reddick, 5 Gratt. (Va.) 272, 50 Am. Dec. 119; Gregory vs. Litsey, 9 B. Monroe (Ky.) 43, 48 Am. Dec. 415; F. E. C. Ry. Co. v. 77 Fla. 577, 82 Sou. Rep. text 182.
The deposit made in the court below was of an amount equal to the then due installment of rent due and was expressly made "subject to the further orders of the court in this cause." As a result of that deposit, the complainant was enabled to obtain from the Chancellor an interlocutory order restraining complainant from enforcing *Page 509
a forfeiture of the lease, and from filing proceedings at law, or otherwise interfering with possession by the complainant of the premises described in the amended bill of complaint. The Court when it entered the order and conditioned it upon deposit of the amount of rent due as security, no doubt anticipated that a setting aside of the injunction would entitle the defendant to an award of restitution in addition to having an action on the injunction bond, especially when it is observed from the record that the same order which granted the injunction and required the deposit, also overruled a demurrer that then challenged the sufficiency of the bill to support the award of any relief at all.
The probability that a further consideration of the case by the Chancellor in the light of the opinions heretofore filed by this court, will result in a decision on his part to allow restitution to the extent of the whole $7500.00 on deposit, presents no excuse for a failure to observe the requirements of the practice in properly arriving at whatever award is made, neither does that likelihood call for any further rehearing by this Court.
Costs incident to an appeal in equity are awarded by the judgment of the appellate court and are usually so apportioned as to do equity, where there are special circumstances which require that such costs do not follow the judgment. Grand Union Tea Co. vs. Dodds, 164 Mich. 50, 128 N.W. 1090, 31 L.R.A. (N.S.) 260.
If the appellees feel themselves aggrieved as to the costs which have been taxed against them by the Clerk in accordance with the usual practice prevailing here where no special order on the subject is made by the Court, a motion to tax or retax such costs is always in order during the term of this Court at which the case was finally disposed of. And a recall of the mandate, or the award of a rehearing, is not necessary for the consideration *Page 510
by us of an appropriate motion for taxing or retaxing the costs incident to, and occasioned by, our own judgment on the appeal. Shepard vs. Rand, 48 Me. 244, 77 Am. Dec. 225.
Motion to recall mandate denied.
BUFORD, C.J., AND WHITFIELD, ELLIS, BROWN AND DAVIS, J.J., concur.
TERRELL, J., not participating.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3826142/
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This action was filed by the plaintiff in error, Frank Loeser, in the district court of Alfalfa county, to cancel a deed, made by Carl Loeser, one of the defendants in error, to Otto Loeser, the other defendant in error, to certain real estate described in the petition. The grounds upon which the deed is asked to be canceled are that the plaintiff in error on February 28, 1912, obtained a judgment for $2,000 against Carl Loeser, and that the transfer of said real estate was fraudulently made in order to defeat the collection of this judgment. Defendant Carl Loeser died January 17, 1913. His death was duly suggested, and this action revived in this court against his personal representatives.
This court will take judicial knowledge of the fact that the above-named judgment for $2,000 has recently *Page 251
been reversed by this court, and that the judgment was obtained in an action for malicious prosecution. See Dunnington v.Loeser, 48 Okla. 636, 149 P. 1161, 150 P. 874.
Since that judgment has been reversed, this cause presents only a moot question. Under the statutes of Oklahoma, an action for malicious prosecution abates on the death of the defendant. Rev. Laws 1910, section 5280. Consequently, the cause of action for malicious prosecution is dead, and cannot be tried again. And since by the judgment and decree of this court the plaintiff in error has lost his judgment, which was the basis of this action, and under the statute he cannot have another recovery on that cause of action, there is nothing to be gained by the appeal in this suit. It now presents only a moot question, and no purpose can be served by further proceedings. And this court holds that hypothetical questions disconnected from the granting of actual relief, further than the awarding of costs on appeal, will not be decided by this court.McCullough et al. v. Gilcrease, 40 Okla. 741, 141 P. 5; Stateex rel. Lozier v. Bogle et al., 40 Okla. 740, 140 P. 1153.
We therefore recommend that the appeal be dismissed.
By the Court: It is so ordered. *Page 252
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3833354/
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The judgment of the trial court from which this appeal was taken was entered in the district court of Osage county on the 27th day of May, 1932. The trial court entered judgment upon the cross-petition of the defendants E.C. Mullendore and Charles Yarbrough against the plaintiff in the original action, M.S. House, and at the conclusion of the trial and entry of the judgment, the plaintiff in error in this cause, plaintiff below, excepted to the judgment and gave notice in open court of his intention to appeal from said decision to the Supreme Court of Oklahoma. No motion for new trial was ever filed. A motion to dismiss was filed herein July 14, 1933, in which it is stated that the only assignments of error are based upon the action of the court in the trial of the cause and that no motion for new trial was filed in the trial court calling the attention of the trial court to the alleged errors complained of.
On the 12th day of September, the court ordered the plaintiff in error to respond to the motion to dismiss in this case. No response has been filed to that motion.
Upon an examination of the authorities cited, it appears that the assignments of error set forth in the petition in error are all based upon alleged errors of the trial court occurring during the trial of the cause. Under the rule laid down in the case of Sac Fox Oil Co. v. Owen, 133 Okla. 96, 271 P. 240, and Malleck v. Thomas, 109 Okla. 95, 234 P. 1107, the appeal is dismissed.
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01-03-2023
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07-06-2016
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