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https://www.courtlistener.com/api/rest/v3/opinions/3387106/
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Complainant, Olga Fekany, exhibited her bill of complaint in the Circuit Court of Orange County praying for divorce, the custody and care of the six children of herself and the defendant, Louis Fekany, temporary and permanent alimony, attorney's fees, injunction restraining the defendant from interfering with her or her property, confirmation of her right and title in and to certain property, and for general relief.
A general and a special demurrer to the bill of complaint were overruled and defendant filed his answer in which he admitted the marriage and birth of the children but denied all the other material allegations of the bill. In the thirteenth and fourteenth paragraphs of his answer he sets up as affirmative matter of defense grounds for a divorce against complainant and a scheme on her part to defraud him of his property therein described. A demurrer to the ninth, tenth, thirteenth paragraphs of the answer was sustained but it was overruled as to the fourteenth paragraph. A special master was appointed, testimony was taken, and on final hearing the master found the evidence insufficient to grant the divorce, alimony, or attorney's fees as prayed for by complainant, and that it was insufficient to grant the affirmative relief prayed for by defendant.
The complainant filed exceptions to the report of the master but the Chancellor overruled said exceptions and confirmed the master's report. The Chancellor then entered his final decree in which he denied a divorce to both parties, and denied alimony to complainant, but awarded her attorney's fees and costs and confirmed her title in and to certain lands more specifically described in the bill of complaint. *Page 701
From this final decree defendant appealed and complainant filed cross assignments of error.
On the main appeal nine questions are argued but they all turn on the sufficiency of the bill to state a cause of action for divorce, whether or not the bill is duplicitous or multifarious, and whether or not on the grounds stated the complainant should have been awarded costs and attorney's fees. On the cross appeal three questions are argued but they turn on the question of whether or not the Chancellor erred in refusing to award the appellee a divorce and support for her children.
The challenge to the sufficiency of the bill of complaint is grounded on the charge that it sets up only isolated acts of cruelty, temperamental outbursts, and mistreatment on the part of the defendant to the complainant, none of which were habitual nor had they been so frequent as to cause mental anguish, pain or suffering to the complainant, nor were they of such degree as to make the marital state an intolerable burden to her.
The divorce of complainant is sought on the ground of cruel and inhuman treatment and frequent indulgence in a violent and ungovernable temper. Adultery and later impotency are thrown in as aggravating ground. It is in substance alleged that at various and sundry times throughout their married life complainant has been compelled to live in the house with defendant's father and mother and other relatives, that she was compelled by defendant to obey them and wait on them, that his mother cursed and abused her, that defendant abused her, struck her frequently, and called her and her mother opprobious and vile names, denied her privileges and comforts that she was entitled to, cursed and slapped her at various and sundry times, and conspired with one named Homes to intimidate and compel her into *Page 702
giving up certain real estate belonging to her and described in the bill of complaint.
It is alleged that this course of conduct was indulged in for practically all their married life of nineteen years. True, no specific act is alleged to have been committed from start to finish, but like the fox in the fable he had a bag full of tricks, exploiting first one and then the other to humiliate his wife. On the whole the allegations and the proof show that the defendant was not only cruel and inhuman in the treatment of his wife, but had little or no appreciation for his marital duty and responsibility. His conduct toward her was reprehensible and barely rises above that which is said to have prevailed among his remote forebears when they swung by their tails from limb to limb in the far reaches of the jungle enforcing a crude discipline by tooth and claw. He was just turned forty. It may be that his alleged impotency was an instance of condign punishment imposed to intercept the spread of his progeny. We are told that Ananias was struck dead for a lesser offense. It would be difficult to form a feminine concept clothed in the habiliments of civilization who would not be enraged at such course of treatment or whose marital state would not be rendered opprossive, humiliating, and an intolerable burden thereby. The bill of complaint met all the requirements of good pleading.
But it is contended by defendant that his conduct to complainant was condoned by her, consequently this suit can avail nothing. Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. Williams v. Williams, 23 Fla. 324, 2 So. 768; Wagner v. Wagner,130 Md. 346, 100 A. 364; Austin *Page 703
v. Austin, 172 Mich. 620, 138 N.W. 215; Ellithorpe v. Ellithorpe (Iowa) 100 N.W. 328.
In the last cited case it was held that there could be no condonement of abuse of a wife by her husband when the past was not discussed, and there was no promise of conjugal kindness in the future. There is no showing in this case on the part of defendant of penitence for past conduct or a promise by him of more human conduct in the future. In fact, there is no showing of a reconciliation between them at any time. The cruelty complained of consisted of a series of wrongs running over many years. Cohabitation under such circumstances in the hope of better treatment or a better understanding does not constitute condonation, neither will the fact that the wife has made repeated efforts to get on with the husband amount to condonation. 19 C. J. 85.
It is next contended that the bill of complaint is multifarious in that it prays for divorce, injunction, and the confirmation of complainant's title to certain lands more particularly described herein, all in one suit.
This Court has approved the doctrine that multifariousness goes to convenience more than it does to the merits and that when there is a general demurrer for want of equity a ground of demurrer for multifariousness may not avail if there is equity in the bill. Mountain v. King, 75 Fla. 12, 77 So. 630; Warren v. Warren, 66 Fla. 138, 63 So. 726; Prest, et al., v. Hammock,et al., 92 Fla. 941, 111 So. 112. In the case at bar the bill contains equity. The assault on it was by general demurrer. It was therefore unavailing.
In Milton v. City of Marianna, 107 Fla. 251, 144 So. 400, we held that where two or more controversies between the same parties can be determined in one suit as well as *Page 704
in several, and such procedure does not interfere with the proper administration of justice, an objection for multifariousness may be properly overruled. Taylor v. Taylor,100 Fla. 1009, 130 So. 713; Forcheimer v. Foster, 192 Fla. 218,68 So. 879; Singleton v. Knott, 101 Fla. 1077, 133 So. 71. The challenge in this cause for multifariousness concerned matters affecting only the parties hereto and property rights claimed by both of them. It was well within the class of controversies that can be adjudicated in one suit.
The only other question we deem it necessary to discuss is whether or not the chancellor erred in denying the cross appellant a divorce and support for her children.
On the question for divorce the allegations of the bill of complaint are ample and the evidence in support of them, if believed, is sufficient to warrant the relief prayed for. On the question of support for the children the record discloses that the defendant is able to contribute to their support and that they are in need of such contribution. The law makes it his duty to support them. State, ex rel. Airston v. Bollinger,et al., 88 Fla. 123, 101 So. 282, 7654 Compiled General Laws of 1927, 5496 Revised General Statutes of 1920. The father is not relieved of his duty even in the case of ample showing on the part of the mother to do so and here there is no such showing.
On this ground or cross assignment the judgment below is reversed, otherwise it is affirmed.
Affirmed in part, reversed in part.
ELLIS. P. J., and BUFORD, J., concur.
WHITFIELD, C. J., and DAVIS, J., concur in the opinion and judgment.
BROWN, J., concurs in the conclusion. *Page 705
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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/4523349/
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FILED
NOT FOR PUBLICATION
APR 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANJUM NAWAZ KHAN, No. 18-71530
Petitioner, Agency No. A075-827-533
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 3, 2020**
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Anjum Nawz Khan petitions for review of the decision of the Board of
Immigration Appeals (“BIA”), holding that Khan was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for committing an aggravated felony under 8 U.S.C.
§ 1101(a)(43). We have jurisdiction to determine whether an offense is an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
aggravated felony under the Immigration and Nationality Act. See Lopez-Jacuinde
v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010). We grant the petition for review.
The Department of Homeland Security issued a Notice to Appear, charging
Khan with removability as an aggravated felon based on Khan’s conviction of rape
in the second degree, Revised Code of Washington section 9A.44.050(1). The BIA
concluded that all subsections of RCW § 9A.44.050(1) were a categorical match to
the generic crime of rape. We disagree. Subsections (c), (d), and (e) of RCW
§ 9A.44.050(1) are overbroad, because they can be committed with consent and do
not require that a person be “overcome by force or fear, or under other prohibitive
conditions.” Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000) (defining
common law rape) (quoting Black’s Law Dictionary (6th ed.1990)); see also State
v. Soderquist, 816 P.2d 1264, 1267 (Wash. Ct. App. 1991) (noting that subsection
(c) “involve[s] a vulnerable victim and an abuse of trust”).
Because RCW § 9A.44.050(1) is overbroad, we must next determine
whether the statute is divisible. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867-
68 (9th Cir. 2015). “[I]ndivisible statutes may contain multiple, alternative means
of committing the crime, [whereas] only divisible statutes contain multiple,
alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d
1077, 1084-85 (9th Cir. 2014). Whether the subsections of RCW § 9A.44.050(1)
2
are elements or means turns “on whether a jury must unanimously agree on which
of the [six] statutory alternatives a defendant committed to return a conviction.”
United States v. Robinson, 869 F.3d 933, 938 (9th Cir. 2017). “[A] statute is
indivisible if the jury may disagree on the fact at issue yet still convict.”
Lopez-Valencia, 798 F.3d at 869 (quotation marks and citation omitted). Here, the
Washington Supreme Court has explained that the subsections of RCW
§ 9A.44.050(1) are “alternative means,” and that “jury unanimity as to the means
by which [the defendant] committed the rape is not required.” State v.
Ortega-Martinez, 881 P.2d 231, 233 (Wash. 1994).
In Robinson, we analyzed another Washington statute, RCW § 9A.36.021.
Relying on the Washington Supreme Court’s conclusion that the subsections were
“alternative means,” we held that the statute was indivisible, because jury
unanimity was not required. 869 F.3d at 939-41. The issue presented in the
present case is indistinguishable from Robinson. RCW § 9A.44.050(1) allows
prosecutors to allege more than one “alternative means” of committing rape in the
second degree, and a jury need not agree on the means of committing the rape. See
Ortega-Martinez, 881 P.2d at 234-35. Accordingly, Khan’s conviction under
3
RCW § 9A.44.050(1) does not categorically satisfy the definition of an aggravated
felony.1
PETITION FOR REVIEW GRANTED and REMANDED.
1
Because we grant the petition, we need not reach Khan’s additional
arguments raised on appeal.
4
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01-03-2023
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04-07-2020
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This is a petition for a writ of habeas corpus. The relator is confined in Washington County jail, held there by virtue of an executive warrant dated September 8, 1925, signed by the Hon. Franklin S. Billings, at that time Governor of this State.
The relator was confined in the House of Correction under a sentence of from 6 to 18 months for the offense of neglecting his children. On April 28, 1925, Governor Billings granted him a conditional pardon, to become effective May 17, 1925. The relator accepted the provisions of the pardon and was released. On September 8, 1925, and during the term of the sentence, Governor Billings became convinced that the relator had violated the terms of the conditional pardon, and issued the executive warrant to which we have referred. Efforts were made to find the relator, but without success, and he was finally apprehended on January 3, 1929.
The relator was not, as he claims in his brief, placed on probation. The record shows that he was conditionally pardoned, which is a very different thing. In re Hall, 100 Vt. 197, 202,136 A. 24.
The relator contends that the maximum parole period of a prisoner automatically expires by operation of law at the time of termination of the maximum sentence, unless prior thereto he has been apprehended for violation of the terms of the conditional pardon, or is a fugitive from justice where service cannot be had. But this is not so. The time in which *Page 512
the convict has been at large under such conditional pardon is not to be treated as time served upon his sentence. In reMcKenna, 79 Vt. 34, 35, 64 A. 77; In re Hall, supra, at page 203 of 100 Vt. (136 A. 24).
To the conditional pardon, signed by the Governor, is appended an acceptance signed by the relator. Underneath this, and at the bottom of the page, is the notation "Parol period expires June 12, 1926." This is relied upon as showing that the terms of the pardon were of no effect after this date. But this notation is no part of the conditional pardon. It is to be construed only as a memorandum of the date of termination of the parole on the assumption that the terms thereof had been complied with.
The relator contends, and has introduced evidence tending to show, that at some time during June, 1926, he received a letter from the department of public welfare, signed by the commissioner, which notified him that his term of parole was completed and that he was released from the terms of his pardon. The letter has not been produced, but the relator testified that he gave it to a Miss Muriel Foley, and she said that she put it in her trunk, from which it mysteriously disappeared. Others testified to seeing and reading the letter. On the other hand, the then commissioner of public welfare testified to the absence of any record of the letter, or any copy of it, and that he could not have done such a thing without making a record of it. On the evidence, we fail to find that such a letter was sent or received.
But even if it had been done, it would have been of no effect. The pardoning power is with the Governor. Const. Vt. Ch. II, § 20. It is his constitutional prerogative to issue conditional pardons. In re Conditional Discharge of Convicts, 73 Vt. 414, 420, 51 A. 10, 56 L.R.A. 658. It necessarily follows that he alone has the power to release a convict from the condition imposed in granting such pardon. By No. 203, Acts 1919, it is provided that:
"Until a person to whom such conditional pardon is granted is excused from the performance of the conditions thereof, the Governor shall have all the authority, rights and powers over and in relation to such person which he would have if he were surety in the case upon the recognizance *Page 513
of such persons before conviction, and he shall be the sole and exclusive judge as to whether the conditions of such pardon have been violated."
Thus, in the eye of the law, the conditionally pardoned convict is looked upon as being constantly in the custody of the Governor, who is regarded as his jailer and has "him always as it were upon a string that (he) may pull at pleasure." Worthen v.Prescott, 60 Vt. 68, 72, 11 A. 690, 693. Whether the statute above quoted is more than declaratory of the Governor's constitutional powers in this regard, we have no occasion to consider.
The department of public welfare has no authority to release the convict from the terms of the pardon. There is no evidence that the claimed letter was written at the direction, or even with the knowledge of the Governor. The power and discretion involved herein cannot be delegated. It resides, as we have seen, in the Governor alone.
For this reason the claims of the relator as to the receipt of the letter, and as to the fact that he received no notice from the department of public welfare or otherwise of any violation of the terms of his pardon are entirely without legal significance.
It is claimed that the executive warrant had become invalid by lapse of time between its date and the service of it upon the relator. An analogy is drawn between this situation and the statute of limitations applying to the commencement of criminal action.
The fact that, at the time of service, the term of office of Governor Billings had expired, does not affect the validity of the warrant. There is no statute governing the matter. It appears to be claimed by the relator that unless served within a reasonable time and at the first opportunity offered, the warrant became void. Assuming, but not deciding that this position is sound, the answer is that, on the evidence, we are not able to find that this situation has arisen. It sufficiently appears from the transcript and exhibits that various unsuccessful efforts were made, from time to time, to find and apprehend the relator. He introduced evidence, it is true, to the effect that he was within the jurisdiction during the time; but this is not conclusive. We cannot say, under these circumstances, that a reasonable time *Page 514
had elapsed, or that there had been neglect or laches on the part of the executive department, or the sheriff or other peace officers.
Judgment that the relator is not unlawfully restrained of hisliberty, and he is remanded to his former custody; and hispetition is dismissed with costs; including the costs of thecommissioner appointed to take the testimony.
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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/3387140/
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On appeal prosecuted by the State under Section 286, Florida Criminal Procedure Act, we review order of the Criminal Court of Record in and for Duval County, Florida, quashing an information charging perjury.
The information appears by the record to be in words and figures as follows, to-wit:
"In the Criminal Court of Record, of the County of Duval, and State of Florida, December Term, in the year of our Lord one thousand nine hundred and forty
"State of Florida vs. James A. Rowe
"Information for Perjury.
"In the Name and by Authority of the State of Florida. *Page 495
"Wayne E. Ripley, County Solicitor for the County of Duval, prosecuting for the State of Florida in the said County under oath, information makes that on the twenty first day of November in the year of our Lord one thousand nine hundred and forty in the County and State aforesaid, a certain cause was then and there pending in the Circuit Court, in and for Duval County, Florida, in which one James A. Rowe was complainant and Ruby Rowe, wife of the said James A. Rowe, was defendant. The said cause was a suit for divorce of which the said Circuit Court then and there had jurisdiction. That said cause came on to be heard and was heard on said day in said County before the Honorable DeWitt T. Gray, Judge of said Circuit Court, and thereupon the said James A. Rowe, then and there became and was a witness in his own behalf in said cause and was then and there duly sworn according to law by and before the Honorable DeWitt T. Gray, Judge as aforesaid, to depose and speak the truth in said cause, the said Honorable DeWitt T. Gray having then and there as Judge of said Circuit Court, lawful and competent authority to administer such oath. That upon the hearing aforesaid of said cause it then and there became and was a material matter respecting which said oath was taken the place of residence of the said Ruby Rowe, and thereupon the said James A. Rowe, being sworn as aforesaid to speak the truth as aforesaid, and wickedly contriving and intending to cause and procure a decree granting him a divorce from his said wife, to be made by the Judge of said Circuit Court, he, the said James A. Rowe, did then and there wilfully, falsely, wickedly, knowingly, maliciously, and corruptly and by his own consent upon his oath aforesaid, *Page 496
in the County and State aforesaid, and on the day aforesaid, depose, swear, and say in substance and effect, among other things, that the place of residence of the said Ruby Rowe was then unknown to him, the said James A. Rowe; all of which said testimony of the said James A. Rowe was material matter to the issues in said cause then and there being heard by and before the Honorable DeWitt T. Gray, Judge of the Circuit Court in and for Duval County, Florida, as aforesaid, and all of said testimony of the said James A. Rowe was then and there willfully, designedly, knowingly and corruptly perjured, false and untrue, the truth in fact as the said James A. Rowe then and there well knew, that the said Ruby Rowe on the day aforesaid, was residing in Macclenny, Baker County, in the State of Florida; and thereupon the said testimony of the said James A. Rowe, that he, the said James A. Rowe, did not then know where the said Ruby Rowe resided was false, and the said James A. Rowe well knew it was false. Wherefore, the said James A. Rowe in the manner and form and by the means aforesaid, did then and there wilfully commit the crime of perjury, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida."
The appellee has not favored us with a brief, though the same is long past due.
It will be observed that the information alleges, "That upon the hearing aforesaid of said cause it then and there became and was a material matter respecting which said oath was taken the place of residence of the said Ruby Rowe."
This phraseology is confusing but it is followed by other language, viz: *Page 497
"All of which said testimony of the said James A. Rowe was material matter to the issues in said cause then and there being heard by and before the Honorable DeWitt T. Gray, Judge of the Circuit Court in and for Duval County, Florida" and, therefore, the confusion that might arise by reason of the use of the language first quoted is cleared away by the language used in the second quotation.
We find no infirmity in the Information which warrants the order quashing the same.
Whether or not the alleged false and perjured testimony was material to the issues is a matter to be determined from evidence produced. If it should be shown that the accused was attempting to procure a decree of divorce based upon constructive service pursuant to allegations that the place of residence of the defendant was unknown to him, then the question as to whether or not the place of residence of the defendant was known to the complainant would be most material. On the other hand, if personal service in due course had been had on the defendant, whether or not the accused had knowledge of the place of the then residence of the defendant might not be material.
The order appealed from is reversed and the cause remanded for further proceedings.
So ordered.
BROWN, C. J., WHITFIELD and ADAMS, JJ., concur. *Page 498
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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/3987597/
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This is an action by the Utah State Building Commission for the benefit of the Mountain States Supply Company against Frank Compion, general contractor, and his subcontractor, G.W. Sargent, and Campion's surety, the Great American Indemnity Company. Campion was the general contractor on the Utah State Tuberculosis Sanatorium at Ogden. In connection with this contract, he furnished a bond issued by the Great American Indemnity Company, herein referred to as "the surety," which bond was conditioned to pay for all materials going into the building. The defendant, G.W. Sargent, was a subcontractor to whom the plumbing work on said building was let by Campion. Sargent used certain materials in said building which were purchased from the Mountain States Supply Company, *Page 15
for which the latter company has not been paid, and it is for such payment that this suit is brought on behalf of the Supply Company. From a judgment for the plaintiffs, all of the defendants appeal.
The first matter to be disposed of in this case is the motion of the respondents to strike the bill of exceptions. It is conceded that the Bill was not settled nor filed within the time allowed by law; the appellants made no showing as to any justification or excuse for not filing it in time, and no order was made extending the time. It is only properly before this court if upon stipulation; the stipulation on file makes the usual recitals concerning the bill being a full, true, and correct record of the proceedings, and contains the following proviso:
"Provided, however, that the plaintiff reserves and does not waive any right it may have to move to strike the Bill of Exceptions or to take such other steps as may be deemed proper if the time for settling said Bill of Exceptions has not been kept alive or is not timely applied for."
It is stated in the brief of the appellant Sargent that appellants believe that the respondents waived the question of the time of settling the bill by signing that stipulation. Are we to understand that this stipulation was binding on the respondents and not on the appellants, or that the appellants take the benefit of the favorable portions of the stipulation and ignore the unfavorable ones?
It plainly and unequivocally appears, and both parties agreed that the respondents did not waive any rights with respect to striking the bill by the stipulation. All that can be said for the stipulation is that apparently the plaintiff was willing to stipulate that the Bill as presented was 1 full, true, and correct, in order to avoid any controversy as to what it should contain, but it certainly was made clear that the plaintiff reserved its rights to have it stricken because of it being presented too late. For the appellants to request this court to go so far as to suppose that there was some legitimate reason for *Page 16
not having the bill settled nor filed in time and on that basis to deny the motion to strike is asking the court to indulge in a great deal of conjecture for the beneift of the appellants. The bill accordingly is stricken.
The review is limited to the judgment roll, which contains comprehensive findings of fact covering all matters discussed herein.
The surety company claims that the bond it executed is void and unenforceable because of its failure to name the State of Utah as the obligee. The statute requiring such bond,17-1-1, Revised Statutes of Utah 1933 (now known as the 2 same Section, U.C.A. 1943), provides:
"When such contract is made with the state, or with a state institution, board or commisison which is not a body politic or corporate, the state shall be named as the obligee in such bond."
This statute was no doubt intended to provide a means for any such institution to receive the benefit of such a bond when it had not the legal capacity to do so on its own behalf. But the defendants assert that the Utah State Building Commission is not a "body politic or corporate" and that therefore the bond should have run to the State of Utah, and this suit should have been brought in its name.
This contention leads us first to inquire as to what is a "body politic or corporate." Reference to 5 Words and Phrases, Perm. Ed., p. 602, reveals that the term "body politic" is an old term for a corporation or an association of individuals, and usually applied to the state or other public associations. For one having a further interest in the term, that work traces it back to the institutions of the Romans and Greeks.
The term "body corporate" is a term of more common usage. 1 Bouv. Law Dict., Rawles Third Revision, p. 374, says: *Page 17
"Body corporate: An early and undoubtedly correct term to apply to a corporation."
At 8 Corpus Juris, p. 1136, the term "body corporate" is defined as a corporation; 11 C.J.S., Body, p. 379 states:
"Body corporate is a term applied to corporations, public and private."
Black, Law Dictionary, gives a similar definition and adds:
"Body corporate and politic: A term particularly applied to a public corporation having powers and duties of government."
Neither the name an entity is given, nor the failure to properly characterize it by name, determines its status in the law. We must look to the nature of the entity, its powers and duties, to determine whether or not it is a 3 corporation. Rees v. Olmsted, 6 Cir., 135 F. 296,297, 68 Corpus Juris 67. In Volume 1, Fletcher Cyc. of Corporations, Perm. Ed., 210, it is stated:
"A board or commission serving the whole state, in control of such matters as highways may be a public corporation, although it is not so called by the legislature; and if it has the attributes of a corporation, it will be so regarded," citing the case ofState Highway Commission of Missouri v. Bates, 317 Mo. 696,296 S.W. 418."
In that case the question was presented as to whether or not the Missouri Highway Commission was a corporate entity separate from the sovereign. The court refers to various authorities touching on this problem, and basing its decision on the fact that the statute permits the commission to contract, to sue and be sued, held that it was a corporate entity.
A leading case cited by most later ones discussing this subject is that of Gross v. Kentucky Board of Managers ofWorld's Columbian Exposition, 105 Ky. 840, 49 S.W. 458, 43 L.R.A. 703. The court held that the said Board of Managers, appointed by the Governor as an agency of *Page 18
the State, although not expressly called such, was a corporate entity which could be sued for breach of contract because it had the power to contract.
A case closely resembling the instant one is that of Whipple
v. Tuxworth, 81 Ark. 391, 99 S.W. 86; in that case, the question was whether or not improvement districts created by statute were corporations. The court stated at page 90 of 99 S.W.:
"Improvement districts in this state are organized by the city councils of cities and towns under a valid law. They are given a particular name, and endowed with perpetual succession until their object is accomplished, with power to make contracts, incur debts, issue bonds, collect assessments, to sue, and to compel the city council by mandamus to make assessments. * * * The effect of the statute is to make them corporations, though they are not denominated as such." Citing other case.
In the case of Hancock v. Louisville Nashville Railroad,145 U.S. 409, 415, 12 S. Ct. 969, 36 L. Ed. 755, the Supreme Court of the United States also referred to this problem and stated at page 416 of 145 U.S., at page 971 of 12 S.Ct.:
"This prescribed portion of Shelby county was authorized to issue bonds and subscribe stock * * * if this entity has power to create a debt, it becomes subject to suit * * * it was, though not named, a corporate entity."
This was so, even though no express power to sue or be sued was given to it by statute.
Is the Utah State Building Commission then a corporation? Reference to Volume IX, Words and Phrases, Perm. Ed., page 685, indicates that the distinguishing characteristics of a corporation are that it is an artificial person, a legal entity, capable of acting through its corporate 4 officers and agents, of suing, being sued, of taking and holding property, and of contracting in its own name, and of continuing to exist independent of the individuals who compose it. *Page 19
The Utah State Building Commission possesses all of these attributes. Title 10, Revised Statutes of Utah, 1933, creates the Utah State Building Commission, whose members are to be appointed by the Governor, provides for their terms of office and succession.
Section 10-0-7 of said title sets out its powers and duties, among which are the following:
"* * * shall carry out the building and expansion program of the state provided by law. * * *
"(3) To make contracts. * * *
"(8) To sue in the name of the Utah state building commission.
"(9) To be sued in the name of the Utah state building commission * * *.
"(10) To buy, lease and acquire * * * whatever property of any kind, real or personal * * *.
"(11) To sell, exchange or lease * * * any and all property * * *."
The section further provides that:
"The foregoing particular enumeration of powers * * * shall not be construed as limiting the powers and authority hereby granted to the commission to those powers particularly enumerated, nor even to the general classes thereof; but it is expressly declared that the Utah state building commission is vested with full power and authority to do any and all things which in its judgment may be necessary or proper for carrying out any of the purposes of this title."
From the foregoing enumeration of powers, it is obvious that the Utah State Building Commission is a body corporate 5 in contemplation of law.
It is interesting to find that the converse of our problems was presented to the Supreme Court of Arkansas in the case ofState v. Southwestern Land Timber Company, 93 Ark. 621,126 S.W. 73. There a suit was brought by the state for the benefit of the Board of Directors of the St. Francis Levee District. The defense contended that the Levee District was, even though not called a corporation, a corporate entity, and should have brought the suit. The court said at page 75 of 126 S.W.: *Page 20
"If the lands belonged to such board, it had the right to [bring] suit to recover them in its own name, as it is a body politic and corporate with power to sue."
It was held that the suit was improperly brought in the name of the state, and no recovery could be had.
This is the exact situation the respondents would have been in if the State of Utah had been the obligee on the bond and the plaintiff in the instant case. The Utah State Building Commission was the only proper obligee on the bond, and the only entity that could have properly brought this action.
Even if the Building Commission had not been a body corporate, there is no doubt that the bonding company, by dealing with it as a legal entity and issuing a bond to it, would have been estopped to deny liability on the bond. The bond expressly provides that the surety waives any defense it may have 6, 7 by reason of any provision therein being in exces of the laws of this state. It is a rule of general application that a bondmaker is estopped to deny liability on the ground that the obligee was without corporate capacity. See 21 Corpus Juris, page 1211; 31 C.J.S., Estoppel, § 110, and Ingle System Co. v.Norris, 132 Tenn. 472, 178 S.W. 1113, 5 A.L.R. 1580, for this rule and numerous cases supporting it. In the case of Board ofCommissioners v. John Shields et al., 62 Mo. 247, a board had been established for the purpose of filling up certain sloughs and making public improvements. In a suit upon a bond naming the board as obligee, the defense was interposed that the board was not a corporation. The court said that by making and signing the bond, the company had admitted and could not deny the corporate capacity of the obligee and that this was so even if the formation of the commission was unconstitutional; citing cases, and Cooley's Const. Lim. 254. In another Missouri case, that ofFather Mathews' Young Men's Total Abstinence BenevolentSociety v. Fitzwilliam et al., 12 Mo. App. 445, affirmed by the Missouri Supreme Court in 84 Mo. 406, a *Page 21
similar defense was asserted. The court stated that the obligors on the bond of the treasurer who had absconded were estopped to deny the corporate existence of the body to whom the bond was given. See also 31 C.J.S., Estoppel, § 110, p. 353, and American Digest System, Estoppel, 22(3), for similar cases.
It is conceded that Campion has paid his subcontractor, Sargent, in full on his contract. Campion and his surety take the position that certain money paid by Sargent to the Supply Company was applicable to pay the account for materials which went into the sanatorium. The following facts, as found by the court, are pertinent to this contention: At the time the materials were sold, Sargent had a general account with the Supply Company, and purchased materials for other jobs on said account. The trial court stated in its Finding No. 12:
"That as payments were made by Sargent to this particular job (sanatorium), he directed the same to be so applied, and the plaintiff Mountain States Supply Company, did so apply the same."
And also stated in its Finding No. 15:
"That all of the items which the plaintiff Supply Company sold to the defendant Sargent were carried in one general account, and there was no segregation of the items which were supplied by the plaintiff for use in the construction of the sanatorium building from other items which the plaintiff Supply Company furnished to the defendant, and there was no segregation of the payment made by the defendant Sargent in his account, but such payments were credited generally to the defendant Sargent's account."
Thus it appears that wherever Sargent did designate his payment to be applied to the sanatorium account, it was so applied, but that if no designation was made, it was credited to his general account. The trial court also found that shortly before the commencement of this action, the Supply Company segregated from its general account with Sargent, the materials furnished for the Sanatorium, and the money paid for said materials by making notations on such account. In making this segregation, two payments, *Page 22
one of $500 made by Sargent to the Supply Company on November 17, 1938, and one of $455.71 paid by Sargent to the Supply Company February 15, 1939, which had been credited to the general account, were segregated from, and not applied to the sanatorium account.
First to consider the $500 payment above referred to: By reference to the payment by Campion to Sargent, and the credits and debits to Sargent's bank account, the court found that $396.60 of said $500 came from moneys paid by Campion to Sargent, who, in turn, paid it to the Supply Company, so the latter company actually received that amount of money which came from Campion. This item of $396.60 is the only amount of money which the court found came from Campion or the sanatorium contract through Sargent to the Supply Company. As to the remaining $103.40 of the $500 item, and as to the $455.71 above referred to, the court found that there was no evidence as to its source; the court also found that with respect to both payments, there was no evidence that Sargent or anyone else directed that that be applied on the sanatorium account; and as to both of said payments that if they had been applied to the Sanatorium account, in each instance, it would have amounted to an overpayment of the amount due, making allowance for the fact that payments for materials delivered was not due until thirty days after delivery. The court made numerous other findings of fact with respect to moneys received and paid by Sargent which amount to mere inferences that some of Campion's money may have reached the Supply Company, but due to the fact that Sargent had other jobs, there is an equal inference that proceeds of some other jobs paid for some of the sanatorium materials.
It is the position of the appellants, Campion and his surety, that both of the above referred to payments, $500 and $455.71, and especially the $396.60, which was shown to have come directly from Campion, should have been applied against the sanatorium account. *Page 23
As to this latter amount, the question is placed thus: Can the surety or Campion, the general contractor, require that the money which he paid to his subcontractor and which was in turn paid to the materialman, insist that the materialman apply it to pay for the materials used on Campion's job when there was no direction as to how the money should be applied, and when the materialman did not know the source of the money?
This question is dealt with in the case of Salt Lake City v.O'Connor et al., 68 Utah 233, 249 P. 810. We are aware of the several distinctions of fact between the O'Connor case and the instant one as pointed out in appellant's brief, but the underlying principles of law are the same. The 8 O'Connor case is also reported at 49 A.L.R. 941, and the syllabus of the case is correctly stated as follows:
"The surety on the bond of a contractor for public work is not entitled to credit, as against persons furnishing material for the work, for payments made to them out of the contract price by the contractor upon pre-existing debts."
In that case, the contractor had several contracts with Salt Lake City. He paid the proceeds of one contract upon a debt for materials used in a previous contract. An important distinction between that case and the instant one is that the court found that the contractor did direct that said moneys be applied to the pre-existing debts. It also found that the materialmen had no knowledge of the source of the money paid them. The surety contended that such payments should be applied to pay for the materials on the job from which the proceeds came, and thus exonerate the surety on the contract, rather than to permit the payments to be applied on materials used on a prior similar contract with Salt Lake City. Mr. Justice Cherry, speaking for the court, said at page 237 of the Utah report, at page 812 of 249 P.:
"The question is thus reduced to whether, in such circumstances, the application of payments so made by the parties is valid as against *Page 24
the surety on the bond, or whether the surety * * * may require that such payments be applied on the particular indebtedness for which it is liable. There is a conflict of law upon the subject."
He then proceeded to discuss both lines of authority with respect to this proposition. Appellants state in their brief that the cases upon which they rely are listed in the O'Connor case. This is true, and it is also true that Mr. Justice Cherry concluded by rejecting the authorities cited and relied upon by the appellants herein, and by adopting and approving the contrary authorities which support the contention of the respondents. At page 242 of 68 Utah, at page 814 of 249 P., he stated:
"We are convinced that the better reasons as well as the preponderance of judicial opinion support the conclusions reached by the trial court."
That is, that the materialman was at liberty to apply the money to the old debt.
In view of the able and extensive review of the authorities on this matter by Mr. Justice Cherry in the O'Connor case, it would seem unnecessary to do other than make brief reference to them in this opinion. The distinction between this case and the O'Connor case, supra, as to the direction by the contractor to which debt the money should be applied is not the controlling factor, but knowledge or lack of it on the part of the materialman as to the source of the money paid him is by most courts regarded as extremely important.
The opinion in the O'Connor case, supra, cites with approval the case of Sturtevant Co. v. Fidelity and D. Company,92 Wash. 52, 158 P. 740, L.R.A. 1917 E, 630, which makes a good statement of law on the subject, saying at page 742 of the Pacific Report:
"It is elementary law that: `A creditor may apply a payment voluntarily made by a debtor without any specific appropriation, where there are two or more debts, to whichever debt he pleases.' * * * Another exception to the rule * * * obtains when the money *Page 25
* * * is known to the creditor to have been derived from a particular source or fund, in which case he cannot, without the consent of the debtor, apply it otherwise than to the exoneration of the source or fund from which it was derived."
The Washington court in upholding the creditor's right to apply the money as it saw fit, based its determination upon the fact that the creditor had no knowledge of the source of the money.
In Volume 41, A.L.R., at page 1291, the case of Standard OilCompany v. Day et al., 161 Minn. 281, 201 N.W. 410, is reported. It is a suit wherein the surety sought to compel the application of funds realized from the contract to exonerate the debt for which the surety was liable. It is one of the leading cases and is cited by most other cases dealing with this subject. The case takes a much stronger position than the respondents herein contend for. The court held that even though the materialman knew that the money it received came from the original contractor, it could, pursuant to an understanding between the materialman and the subcontractor, apply the money to the extinguishment of a prior unsecured debt on the ground that the moneys so unconditionally paid to the subcontractor became its money to use as its own, and that the surety had no equity in the money and no right to direct the applications of payments. See also People v. Powers, 108 Mich. 339, 66 N.W. 215; CraneCompany v. Johnson, et al., 67 F.2d 121, for cases adhering to the same rule. At the conclusion of the Day case at 41 A.L.R. page 1297 are listed numerous cases from various jurisdictions of the United States pro and contra this proposition. This annotation is supplemented in Volume 130 A.L.R., at page 198, et sequi, by many later cases.
In the latter annotation it is said at page 201: 9
"As stated in the earlier annotation, the fact of notice to, or knowledge on the part of the secondary creditor of, the source of the funds with which the secondary payment was made, is, in some of the cases previously cited, the crux of the decision," *Page 26
and continues, referring to the case of Bay Lumber Company v.Pickering, 120 Cal. App. 163, 7 P.2d 371, 372, and quoting from that case, a good summary of the law as follows:
"The general rule [is] that in the absence of anything appearing as to the source of the fund from which the contractor makes the payments, a payment by [him] to a subcontractor or materialman to whom he is indebted on account of several buildings without any direction as to application, may be applied by the subcontractor or materialman as he desires * * *,"
and goes on to state that if the source of the money is known to the materialman, there is a conflict of authority as to how it must be applied. This latter question is not presented in this case.
In most of the cases where the court compelled the materialman to apply the proceeds of a contract to pay for the materials used therein, it will be found that there was some circumstance of fraud or collusion between the materialman and contractor to obtain an advantage over the property owner or the surety. These cases reason that not to so apply the payments to the job from which they proceed has the net effect of making the surety liable for a debt for which he is not a guarantor, and they allow him an equity in the proceeds. In the cases which hold to the contrary, it is pointed out that the foregoing doctrine had its origin in the days when sureties were gratuitous and were objects of special consideration by courts of equity. Sureties in modern business are quite able to take care of themselves. They select their own risks and can, by contract, maintain surveillance over the disposition of the funds received on the contract upon which they are surety. The misapplication of funds is one of the hazards of suretyship.
Most contractors and subcontractors must necessarily use some of the proceeds of current contracts in paying other obligations. It would improperly fetter business transactions unless they had the right to receive and deal with *Page 27
their earnings as they saw fit, and for third parties to accept their money free from hidden equities. It would be extremely impractical for a materialman dealing with a contractor to be under the necessity of inquiring into the source of the money paid him, and equally impractical to require the materialman to apply the money to any particular job, unless he knew the source of it.
In this case, Campion was, by his contract, responsible for payment of the materials purchased by Sargent, and he could, with propriety, have required Sargent to furnish a bond to guarantee payment. It is also true that when Campion paid Sargent, the latter could have spent the money for food or clothing for his family, or for an automobile for his private use, or for any other purpose, and no complaint could have been made. When Sargent paid it to the materialman, he likewise accepted it without condition or restraint, and was at liberty to apply it to Sargent's general account, unless otherwise directed, and this was especially so because he did not know the source of the money.
In view of the definite findings of the trial court that there was no direction as to how the payment in question should be applied, and that the Supply Company did not know the source of the money, Campion and his surety have no 10 right to compel its application to the sanatorium account.
The foregoing discussion should answer the question with respect to the remaining items of $103.40 and $455.71.
If the appellants are not entitled to have the $396.60 applied to the sanatorium account, they are certainly not entitled to have these items applied which were not even shown to have come from Campion's money. This is conclusively determined by the holding of our court in the case of Board of 11Education v. Southern Surety Company, 76 Utah 63,287 P. 332, which was another case wherein the surety sought to compel the creditor to apply the proceeds of a contract to pay for the materials used on such contract. Our court held that the surety had no *Page 28
such right, particularly in view of the fact that the surety in that case was not able to prove that the proceeds from the contract was actually paid to the materialman. The court states at page 72 of 76 Utah, at page 335 of 287 P.:
"The appellant claims that Mr. Adamson [the contractor] paid to the Frank M. Allen Company some of the money which he received from his contract for the construction of the Woodrow Wilson School building which was not credited to the payment of materials which went into the construction of that building. Upon this record appellant's claim in such respect may or may not be true. The evidence would not justify a conclusion either way. One who relies upon payment to defeat a cause of action must, to succeed, establish such fact by a preponderance of the evidence. The appellant has no lien upon the money which the board of education paid to Mr. Adamson. So far as appears, Mr. Adamson was at liberty to use the money which he received from the construction of the Woodrow Wilson School building as he saw fit. Appellant cannot escape liability because the money received from the contract was used by Mr. Adamson to pay obligations other than those growing out of his contract to construct the * * * School building."
On behalf of the applellant Sargent, it is asserted that the plaintiffs are barred and estopped from maintaining this action under the provisions of 104-9-2 and 104-9-3, Revised Statutes of Utah 1933, relating to counter-claims. The court found that on March 8, 1940, the defendant Sargent brought an action against the Supply Company, in which he sought to 12 recover damages because the Supply Company had furnished him certain defective materials; he alleged that he had suffered damage to his business because thereof in the sum of $10,000. Sargent maintains that this suit for the purchase price of materials was one
"arising out of the transaction set forth in the complaint * * * or connected with the subject of the action"
of the former case. This contention is answered by the finding of the trial court. After finding that neither the Great American Indemnity Company nor Frank Campion *Page 29
were parties to the former action, the court further found as follows:
"The transaction set out in the Complaint of G.W. Sargent in his action against the Mountain States Supply Company, a corporation, was one which took place from April 1, 1937 to May 5 of the same year. The transactions involved in the present case did not occur until about 18 months later. The two transactions are thus separate and distinct. * * *"
From an examination of the judgment, this finding appears to be correct. That being the case, this cause of action could not have been pleaded as a counterclaim in the former suit brought by Sargent, and the plaintiffs are not barred from now suing upon it; Workman Motor Company v. Pacific Finance Corporation,83 Utah 19, 26 P.2d 961.
Campion and the Indemnity Company also contend that the plaintiff is estopped from collecting at least $345. The court found that Campion withheld that sum after the completion of Sargent's contract, from May 1939 until November 1939, before paying the same to Sargent, and that when 13 Campion paid this sum, he believed that the Supply Company had been paid in full. It is contended that the Supply Company should have notified Campion during this period that it had not been paid, so that Campion could have saved himself at least this $345. Appellants cite no authority in support of their position.
It is true as stated by our court in the case ofHilton v. Sloan et al., 37 Utah 359 at page 373, 14108 P. 689, at page 694,
"It is almost unnecessary to add that mere inaction or silence may, under peculiar circumstances, amount to both misrepresentation and concealment,"
which may amount to an estoppel. This doctrine is referred to and approved in the later case of Tanner v. Provo ReservoirCompany et al., 76 Utah 335, 289 P. 151.
It is generally held that in order for silence to work an estoppel, there must be a legal duty to speak, or there *Page 30
must be something willful or culpable in the silence which allows another to place himself in an unfavorable position by reason thereof. See Eltinge v. Santos, 171 Cal. 15
278, 152 P. 915, Ann. Cas. 1917 A. 1143. The facts in the instant case would not justify any such conclusion. It was the duty of Campion and the surety to see that the materialman was paid and it would seem logical that they, having this duty, should see that the duty was discharged before the funds were disposed of. It seems more in accord with good business practice that the contractor and his surety see that their own obligations are discharged than to require the materialman to inform the contractor that the subcontractor was not paying his bills.
The respondents make some assignments of error assailing certain findings made by the court as immaterial. Whether such findings are immaterial or not is now immaterial.
The judgment is affirmed with costs to respondents.
WOLFE, C.J., and LARSON and McDONOUGH, JJ., concur.
MOFFAT, J., concurs in the result.
WADE, J., having disqualified himself, did not participate herein. *Page 31
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Affirmed.
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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-APR-2020
07:50 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR HARBORVIEW
MORTGAGE LOAN TRUST 2005-16, MORTGAGE LOAN PASS-THROUGH
CERTIFICATES, SERIES 2005-16, Plaintiff-Appellee,
v.
DYLAN THEDE, Defendant-Appellant,
and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
SOLELY AS NOMINEE FOR COUNTRYWIDE HOME LOANS, INC.,
Defendant-Appellee,
and
JOHN DOES 1-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE
GOVERNMENTAL UNITS 1-50, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 12-1-0125)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Leonard and Wadsworth, JJ.)
This appeal arises out of a foreclosure decree entered
by the Circuit Court of the Fifth Circuit (Circuit Court) against
Defendant-Appellant Dylan Thede (Thede). On April 3, 2018, the
Circuit Court entered its Findings of Fact, Conclusions of Law
and Order Granting Plaintiff's Motion for Summary Judgment
Against All Defendants and for Interlocutory Decree of
Foreclosure (Foreclosure Decree), and the related Judgment
(Foreclosure Judgment), both in favor of Plaintiff-Appellee U.S.
Bank National Association, as Trustee for Harbor View Mortgage
Loan Trust 2005-16, Mortgage Loan Pass-Through Certificates,
Series 2005-16 (U.S. Bank), and against Thede and Defendant-
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Appellee Mortgage Electronic Registration Systems, Inc., Solely
as Nominee for Countrywide Home Loans, Inc.1/
Thede appeals from the Foreclosure Decree and the
Foreclosure Judgment.2/ He contends that the Circuit Court erred
in granting U.S. Bank's motion for summary judgment and
interlocutory decree of foreclosure (MSJ) by relying on "the
hearsay testimony of U.S. Bank's declaring witnesses" to
establish U.S. Bank's standing to foreclose on Thede's mortgaged
property.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Thede's contention as follows and vacate and remand.
I. RELEVANT BACKGROUND
On April 19, 2012, U.S. Bank filed a Complaint for
Foreclosure (Complaint) in the Circuit Court.3/ U.S. Bank
alleged, among other things, that: (1) on August 10, 2005, Thede
obtained a $1,500,000 loan (Loan) from Countrywide Home Loans,
Inc. (Countrywide), by executing a promissory note (Note),
secured by a mortgage (Mortgage) recorded with respect to real
property located at 3657 Anini Rd., Princeville, Hawai#i 96722
(Property); (2) the Mortgage was assigned to U.S. Bank by an
Assignment of Mortgage recorded on December 8, 2009; (3) Thede
defaulted under the payment terms of the Note and Mortgage; (4)
following written notice to Thede and his failure to cure the
default, U.S. Bank exercised its option to accelerate the loan
and to declare the entire principal due under the Note and
secured by the Mortgage, plus interest, advances, and other
1/
The Honorable Randal G.B. Valenciano presided.
2/
Mortgage Electronic Registration Systems, Inc. did not appeal from
the Foreclosure Judgment and, as presumably a nominal appellee, did not file
an answering brief. See Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(c).
3/
U.S. Bank initially referred to itself as U.S. Bank National
Association, as Trustee for the Benefit of Harborview 2005-16 Trust Fund, but
on December 15, 2016, obtained the Circuit Court's permission to change its
name in the caption as currently stated.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
charges, immediately due and payable; and (5) U.S. Bank was
entitled to foreclose the Mortgage and to sell the Property.
On October 12, 2017, U.S. Bank filed its MSJ, which
included an attached "Declaration of Indebtedness and on Prior
Business Records." Rebecca C. Wallace (Wallace) signed the
declaration (Wallace Declaration), "as an authorized signer of
Nationstar Mortgage LLC ('Nationstar'), which is Plaintiff's
servicing agent for the subject loan ('the loan')[.]" Wallace
declared, among other things, that "Nationstar's records indicate
that Plaintiff, by and through Nationstar had possession of the
original Note prior to 04/19/2012, the date of the filing of the
complaint in this foreclosure." However, Wallace also stated
that "Nationstar became Plaintiff's loan servicer for the Loan
being foreclosed in this action on 04/01/2014[,]" i.e., nearly
two years after the Complaint was filed, and that "[t]he prior
loan servicer for this mortgage loan was Select Portfolio
Servicing, Inc., N.A. ('Prior Servicer')."
On November 30, 2017, U.S. Bank filed the "Affidavit of
Bank of America, N.A. Re: Possession of Note as Prior Servicer."
Nichole Renee Williams (Williams) signed the affidavit (Williams
Affidavit), which stated, in relevant part:
1. I am authorized to sign this Declaration on
behalf of Bank of America, N.A. ("BANA"), which was the
prior servicer for the subject loan (the "Loan").
2. As prior servicer, BANA maintained records for
the Loan. As part of my job responsibilities for BANA, I am
familiar with the type of records that were maintained by
BANA in connection with the Loan. As such, I am authorized
to make this Declaration.
3. The information in this Declaration is taken
from BANA's business records. I have personal knowledge of
BANA's procedures for creating these records. They are: (a)
made at or near the time of the occurrence of the matters
recorded by persons with personal knowledge of the
information in the business record, or from information
transmitted by persons with personal knowledge; (b) kept in
the course of BANA's regularly conducted business
activities; and (c) created by BANA as a regular practice.
4. On 04/19/2012, the Complaint for Foreclosure;
Summons ("Complaint") was filed herein identifying the
Plaintiff as U.S. Bank National Association, as Trustee, for
the Benefit of Harborview 2005-16 Trust Fund. A true and
correct copy of the Complaint is attached hereto as Exhibit
"A".
5. At the time the Complaint was filed, BANA was
the servicer for the Loan.
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
6. On 04/09/2012, BANA was in possession of the
original Adjustable Rate Note dated 08/10/2005 in the
principal amount of $1,500,000.00 executed by DYLAN THEDE in
favor of Countrywide Home Loans, Inc., endorsed in blank
("Note"). A true and correct copy of the Note is attached
as Exhibit "B".
On December 6, 2017, Thede filed a memorandum in
opposition to U.S. Bank's motion for summary judgment. He argued
that U.S. Bank offered no admissible evidence that it possessed
the Note when the Complaint was filed, and thus failed to
establish its standing to foreclose under Bank of America, N.A.
v. Reyes-Toledo, 139 Hawai#i 361, 390 P.3d 1248 (2017). In
particular, Thede argued that the Wallace Declaration: (1) did
not establish Wallace's personal knowledge of her assertion that
U.S. Bank, through Nationstar, had possession of the Note prior
to the filing of the Complaint; and (2) made contradictory
statements in asserting that Nationstar had possession of the
Note before it became U.S. Bank's servicer.
On February 6, 2018, U.S. Bank filed a supplemental
declaration in support of its MSJ. Christy Vieau (Vieau) signed
the declaration (Vieau Declaration), which stated, in relevant
part:
1. I am authorized to sign this Declaration on
behalf of Plaintiff U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2005-16, MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2005-16 ("Plaintiff")
as an authorized signer of Nationstar Mortgage, LLC
("Nationstar"), which is Plaintiff's servicing agent for the
subject loan ("the Loan").
2. Nationstar maintains records for the loan in its
capacity as Plaintiff's servicer. As part of my job
responsibilities for Nationstar, I am familiar with the type
of records maintained by Nationstar in connection with the
Loan. As such, I am authorized to make this Declaration in
support of Plaintiff's Motion for Summary Judgment Against
All Defendants and for Interlocutory Decree of Foreclosure
filed on 10/12/2017.
3. Nationstar is the Plaintiff and current loan
servicer, and acts as the exclusive representative and agent
of Plaintiff in the servicing and administering of mortgage
loans referred to Nationstar, including the Loan being
foreclosed in this action.
4. The information in this Declaration is taken
from Nationstar's business records, I have personal
knowledge of Nationstar's procedures for creating these
records. They are: (a) made at or near the time of the
occurrence of the matters recorded by persons with personal
knowledge of the information in the business record, or from
information transmitted by persons with personal knowledge;
(b) kept in the course of Nationstar's regularly conducted
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
business activities; and (c) created by Nationstar as
regular practice.
5. On 04/19/2012, the Complaint for Foreclosure
("Complaint") was filed herein identifying the Plaintiffs as
U.S. Bank National Association, as Trustee, for the benfit
[sic] of Harborview 2005-16 Trust Fund.
6. At the time the Complaint for Foreclosure was
filed, Bank of America, N.A. ("BANA") was the servicer for
the Loan.
7. Based on the affidavit executed by Nichole Renee
Williams on 11/09/2017 as an authorized representative of
BANA ("Affidavit"), BANA was in possession of the original
Adjustable Rate Note dated 08/10/2015 in the principal
amount of $1,500,000.00 executed by Defendant DYLAN THEDE in
favor of Countrywide Home Loans, Inc., endorsed in blank
("Original Note"), when the Complaint was filed. Attached
hereto as Exhibit "9" is a true and correct filed copy of
BANA's Affidvit.
8. On 12/01/2012, servicing of the Loan was
transferred from BANA to Select Portfolio Servicing Inc.
("SPS"). On 04/01/2014, the subject Loan was further
transferred to Nationstar. As a result of the service
transfer, Plaintiff was substituted as the real party in
interest on 12/15/2016.
Vieau further stated:
12. In reviewing the records from BANA and SPS which
were incorporated into Nationstar's own business records,
Nationstar clarifies that Plaintiff at the time of the
Complaint for Foreclosure was filed on 04/19/2012 had
possession of the Original Note, by and through BANA.
On February 14, 2018, Thede filed a supplemental
memorandum opposing U.S. Bank's MSJ and addressing the Williams
Affidavit. Thede argued, among other things, that Williams's
testimony: (1) contradicted the Wallace Declaration, creating a
genuine issue of material fact as to who U.S. Bank's servicer was
and who was in possession of the Note when the Complaint was
filed; and (2) was not based on Williams's personal knowledge
that BANA possessed the Note when the Complaint was filed, and
constituted inadmissible hearsay.
On February 16, 2018, U.S. Bank filed a reply
memorandum in support of its motion for summary judgment.
Following a February 22, 2018 hearing on U.S. Bank's
motion for summary judgment, on April 3, 2018, the Circuit Court
entered the Foreclosure Decree and the Foreclosure Judgment.
Thede filed a timely notice of appeal.
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II. DISCUSSION
In Reyes-Toledo, the Hawai#i Supreme Court held that to
establish the right to foreclose, the foreclosing plaintiff must
establish standing, or entitlement to enforce the subject
promissory note, at the time the action was commenced. 139
Hawai#i at 367-70, 390 P.3d at 1254-57. The "foreclosing
plaintiff's burden to prove entitlement to enforce the note
overlaps with the requirements of standing in foreclosure actions
as '[s]tanding is concerned with whether the parties have the
right to bring suit.'" Id. at 367, 390 P.3d at 1254 (quoting
Mottl v. Miyahira, 95 Hawai#i 381, 388, 23 P.3d 716, 723 (2001)).
The supreme court further noted that "a foreclosing plaintiff
does not have standing to foreclose on mortgaged property unless
the plaintiff was entitled to enforce the note that has been
defaulted on." Id. at 368, 390 P.3d at 1255 (citing Hanalei, BRC
Inc. v. Porter, 7 Haw. App. 304, 310, 760 P.2d 676, 680 (1988)).
Here, it appears that the Circuit Court granted U.S.
Bank's MSJ based in part on the copy of the "Adjustable Rate
Note" that was attached to the Williams Affidavit and the Vieau
and Wallace Declarations (Attached Note). At the February 22,
2018 hearing, the court stated:
So in this particular case regarding the Reyes-Toledo
issue, the Court believes that given the Court's review of
the documents, there's sufficient evidence to show that at
the time of the complaint, the parties –- the plaintiffs or
the plaintiff's predecessor in interest had possession of
the documents, and so that would satisfy Reyes-Toledo.
As far as other qualified witness, the Court believes
that the declarants or affiants had sufficient information
and were in a sufficient position to make the allegations
that they made and I'm not -– I'm not ruling that in making
their declarations, that you need to attach –- like, you
know, when they say I reviewed the business records, they
don't have to attach all of the business records they
reviewed. That would be an onerous obligation, from this
Court's perspective.
So what the court will do is the Court will grant the
motion for summary judgment.
Thede contends that the Circuit Court erred in granting
U.S. Bank's MSJ by relying on "the hearsay testimony of U.S.
Bank's declaring witnesses" to establish U.S. Bank's standing to
foreclose. Thede also argues that U.S. Bank offered "no
admissible evidence" that it possessed the Note when the
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Complaint was filed.
"Under Hawai#i Rules of Civil Procedure Rule 56(e)
(2000) and Rules of the Circuit Courts of the State of Hawai#i
Rule 7(g) (1997), 'a declaration [or affidavit] in support of a
summary judgment motion must be based on personal knowledge,
contain facts that would be admissible in evidence, and show that
the declarant [or affiant] is competent to testify as to the
matters contained within the declaration.'" Wells Fargo Bank,
N.A. v. Behrendt, 142 Hawai#i 37, 44, 414 P.3d 89, 96 (2018)
(quoting U.S. Bank N.A. v. Mattos, 140 Hawai#i 26, 30, 398 P.3d
615, 619 (2017)). "Inadmissible evidence 'cannot serve as a
basis for awarding or denying summary judgment.'" Id. (quoting
Haw. Cmty. Fed. Credit Union v. Keka, 94 Hawai#i 213, 221, 11
P.3d 1, 9 (2000)).
U.S. Bank contends that the Attached Note was
admissible under the hearsay exception for records of regularly
conducted activity pursuant to Hawai#i Rules of Evidence (HRE)
Rule 803(b)(6).4/ U.S. Bank further argues that Williams, Vieau,
and Wallace were each a "qualified witness" with respect to the
Attached Note, and each satisfied the standards set out in Mattos
for admitting that document into evidence and establishing U.S.
Bank's standing to foreclose.
In Mattos and Behrendt, the supreme court reviewed the
sufficiency of declarations similar in certain key respects to
those at issue here, each of which attested to a promissory note
and other documents relating to a foreclosure under the HRE Rule
803(b)(6) business records exception. See Mattos, 140 Hawai#i at
31, 398 P.3d at 620; Behrendt, 142 Hawai#i at 44-45, 414 P.3d at
4/
HRE Rule 803(b)(6) (Supp. 2011) provides that the following are
not excluded by the rule against hearsay:
A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made in the course of a regularly conducted
activity, at or near the time of the acts, events,
conditions, opinions, or diagnoses, as shown by the
testimony of the custodian or other qualified witness,
or by certification that complies with rule 902(11) or
a statute permitting certification, unless the sources
of information or other circumstances indicate lack of
trustworthiness.
(Emphasis added.)
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96-97. The court's decisions in Mattos and Behrendt are
therefore dispositive as to whether HRE Rule 803(b)(6) may serve
as a basis to admit the Attached Note into evidence.
With respect to the Williams Affidavit, Williams did
not aver that she was the custodian of records for BANA,
Countrywide,5/ or any other holder of the Note (e.g., U.S.
Bank6/). Thus, the Attached Note is admissible under HRE Rule
803(b)(6) only if the Williams Affidavit demonstrates that
Williams is a "qualified witness" with respect to that document.
See Mattos, 140 Hawai#i at 32, 398 P.3d at 621; Behrendt, 142
Hawai#i at 45, 414 P.3d at 97.
The supreme court has held that a witness may be
qualified to provide the testimony required by HRE Rule 803(b)(6)
even if the witness is not employed by the business that created
the document or lacks direct, personal knowledge of how the
document was created. See Mattos, 140 Hawai#i at 32, 398 P.3d at
621; Behrendt, 142 Hawai#i at 45, 414 P.3d at 97. While there is
"no requirement that the records have been prepared by the entity
that has custody of them," the testifying witness "must have
enough familiarity with the record-keeping system of the business
that created the record to explain how the record was generated
in the ordinary course of business." Behrendt, 142 Hawai#i at
45, 414 P.3d at 97 (quoting and citing Mattos, 140 Hawai#i at 32,
398 P.3d at 621).
The court in Behrendt further explained:
Records received from another business and incorporated into
the receiving business' records may in some circumstances be
regarded as 'created' by the receiving business.
Incorporated records are admissible under HRE Rule 803(b)(6)
5/
In its Complaint, U.S. Bank alleged that "[o]n or about August 10,
2005, [Thede], for value received, duly made, executed and delivered to
Countrywide" the Note. (Emphasis added.) In addition, the Note identifies
Countrywide as the "Lender" and, in turn, defines the "Note Holder" as the
"Lender or anyone who takes this Note by transfer and who is entitled to
receive payments under this Note." It therefore appears that Countrywide was
the original holder of the Note.
6/
The Complaint states: "By Assignment of Mortgage recorded December
8, 2009 . . . the mortgagee's interest in the Mortgage was assigned to [U.S.
Bank]." Because the debt does not automatically follow the security (Reyes-
Toledo, 139 Hawai#i at 371 n.17, 390 P.3d at 1258 n.17), it is not clear when
U.S. Bank became the holder of the Note. The Williams Affidavit states that
BANA was in possession of the Note on April 9, 2012, but does not indicate
when BANA's possession commenced.
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when a custodian or qualified witness testifies that the
documents were incorporated and kept in the normal course of
business, that the incorporating business typically relies
upon the accuracy of the contents of the documents, and the
circumstances otherwise indicate the trustworthiness of the
document.
Id. at 45, 414 P.3d at 97 (citation omitted) (citing Mattos, 140
Hawai#i at 32, 398 P.3d at 621).
Here, as in Mattos and Behrendt, the Williams Affidavit
does not establish that the Attached Note was received by BANA
and then incorporated into BANA's records. In addition, like the
declaration in Behrendt, the Williams Affidavit does not
establish that Williams was familiar with the record-keeping
system of Countrywide or any other prior holder of the Note. See
142 Hawai#i at 46, 414 P.3d at 98 (declaration of loan servicer
employee "ma[de] no assertions as to [the declarant's]
familiarity with the record-keeping systems of Funding Group or
Option One, which first created the Note and allonges"). Thus,
the Williams Declaration does not satisfy the foundational
requirements to make Williams a qualified witness with respect to
the Attached Note, and she could not authenticate it as a record
of a regularly conducted activity under HRE Rule 803(b)(6).
The Vieau and Wallace Declarations were similarly
deficient in providing the foundation necessary to admit the
Attached Note under HRE Rule 803(b)(6). Neither declarant stated
that she was the custodian of records for Nationstar or any prior
holder of the Note, so each had to demonstrate that she was a
"qualified witness" with respect to the Attached Note. Yet
neither declarant claimed to be familiar with the record-keeping
system of Countrywide or any other holder of the Note before
BANA. Indeed, the Wallace Declaration asserts, apparently
erroneously, that Nationstar possessed the Attached Note prior to
April 19, 2012, and does not assert that Wallace was even
familiar with BANA's record-keeping system. The Vieau
Declaration relies on the Williams Affidavit, which, for the
reasons previously stated, is insufficient to admit the Attached
Note under the business records exception.
Absent the declaration of a "qualified witness" with
respect to the Attached Note, U.S. Bank failed to establish its
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standing to foreclose. Because the Attached Note was not
admissible as asserted, U.S. Bank did not meet its burden of
establishing facts necessary for a grant of summary judgment.
See Behrendt, 142 Hawai#i at 46, 414 P.3d at 98. Absent
admission of the Note into evidence, U.S. Bank did not meet its
burden on summary judgment.
We therefore vacate the (1) Findings of Fact,
Conclusions of Law and Order Granting Plaintiff's Motion for
Summary Judgment Against All Defendants and for Interlocutory
Decree of Foreclosure, and (2) Judgment, both entered on April 3,
2018, by the Circuit Court of the Fifth Circuit. The case is
remanded to the circuit court for further proceedings consistent
with this Summary Disposition Order.
DATED: Honolulu, Hawai#i, April 7, 2020.
On the briefs:
Gary Victor Dubin and /s/ Lisa M. Ginoza
Frederick J. Arensmeyer Chief Judge
for Defendant-Appellant.
Andrew J. Lautenbach and /s/ Katherine G. Leonard
Sianha M. Gualano Associate Judge
(Starn O'Toole Marcus &
Fisher)
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge
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In an action upon life and accident insurance policies the amended declaration in the first count contained allegations that the defendant company insured the plaintiff's intestate "against certain accidental injuries," stating them, "and in consideration of the sum of Fifteen ($15.00) Dollars premiums paid by said insured the said defendant did thereby insure the said Richard B. Gray for the period therein specified, to-wit, for the period of twelve months beginning at noon, standard time, on the 21st day of October, A.D. 1919, and in consideration of said premium insured said Richard B. Grayannually thereafter, and in and by said policy did promise and agree that in the event of loss of life of said Richard B. Gray during the term of said policy said loss resulting independently of any and all other causes, and directly from bodily injury effected solely through external violent and accidental means subject to the provisions and limitations in said policy set forth to pay the sum of Five Thousand ($5,000.00) Dollars to Ethel Y. Gray, wife of the said Richard B. Gray, if surviving; that at the time of the making of said policy, to-wit, on the 21st day of October, A.D. 1919, said plaintiff was the wife of the said Richard B. Gray and continued to be his wife up to the time of his decease as hereinafter set forth, and that she now survives him and is the person to whom the defendant undertook and promised to pay said sum of money in the event of injuries resulting *Page 22
in the death of said Richard B. Gray as above set forth; that thereafter so long as he lived the said Richard B. Gray complied with all of the conditions and requirements on his part to be complied with in and by virtue of said policy, including the payment of premium. That on or about the first day of September, A.D. 1921, the said Richard B. Gray fell and was injured; that said injury was effected solely through external, violent and accidental means under the terms of the policy; that as a direct result of the said fall and the injury resulting therefrom, said injury being caused solely by external, violent and accidental means as aforesaid, the said Richard B. Gray on or about the 9th day of September, A.D. 1921, died; that the said death of the said Richard B. Gray as aforesaid was caused by blood poisoning which said blood poisoning resulted directly from the accidental bodily injury heretofore set forth, to-wit, an accidental fall which was by the provisions of said policy expressly insured against; that at the time of the injury sustained by the said Richard B. Gray and at the time of his death the policy hereinabove mentioned was in full force and effect; and that the said Richard B. Gray had done and performed all things requisite and necessary to be done and performed by him to keep said policy in force and effect, including payment of premium."
The second count of the declaration contains allegations that the defendant for a stated premium paid, insured "Richard B. Gray against loss of life and promised to pay to Ethel Y. Gray, this plaintiff, who at the time of the issuance of said policy and up to the death of said Richard B. Gray, was the wife of said Richard B. Gray, the sum of One Thousand ($1,000.00) Dollars, if death of the insured occurred while the said contract was in force; that the said Richard B. Gray departed this life on or about the 9th day of September, A.D. 1921; that on the date of the death of said Richard B. Gray the said policy of *Page 23
insurance was in full force and effect, and that all of the terms and conditions of said policy and all of the requirements as therein set forth had been complied with so as to maintain said policy in full force, including payment of premium; that all and singular the conditions necessary to be complied with have been complied with, including payment of premium, and this plaintiff is entitled to have and recover of and from said defendant the sum of One Thousand ($1,000.00) Dollars, as mentioned in said policy together with interest thereon."
A demurrer to the declaration was overruled. Demurrers to pleas were sustained and amended pleas were stricken. Judgment was rendered for the plaintiff and defendant took writ of error.
The allegation that the defendant insured the decedent against specified accidents for a stated twelve months and "annually thereafter," taken with pertinent provisions of the policy made a part of the declaration, is, as against the demurrer, a sufficient allegation of the continuance of the policy in force after the first twelve months, where it is alleged that the decedent "complied with all of the conditions and requirements on his part to be complied with in and by virtue of said policy, including the payment of premium."
If the declaration alleges without sufficient fullness of detail "how or in what manner the accidental injuries were sustained by the insured," there was no motion for compulsory amendment, and defects, if any, in the allegations did not render the declaration insufficient to state a cause of action.
The court sustained a demurrer to three pleas to the first count of the declaration, three pleas to the second count and two pleas to both counts.
A single assignment of error that the court erred in sustaining the demurrer to defendant's pleas is unavailing *Page 24
since at least some of the pleas are defective. Charlotte H.
N. R. Co. v. Truette, 81 Fla. 152, 87 South. Rep. 427.
Several pleas aver that the policies lapsed at the expiration of one year, because the subsequent premium was not paid on or before October 21, 1920, with no averment that the premium was not subsequently paid and accepted or the time extended, which was peculiarly within the knowledge of the defendant.
One plea avers that $20.07 in cash was paid and a note for $67.00 given for the remainder of the second annual premiums on which note were credits totaling $60.00 with extensions to August 21, 1921, while another plea avers a payment of $10.00, which apparently was in addition to other payments making a total of $90.07 paid on annual premiums aggregating $88.07, to carry the policy to October 21, 1921. The accident and death occurred early in September, 1921. The insured having died, the defendant, knowing whether deferred payments and extensions had been made, should have clearly shown that the policies had lapsed by reason of nonpayments by the insured upon extensions made by the insurer notwithstanding conflicting provisions if any in the policies or in the formal statements in the note.
As at least some of the pleas were insufficient in law the assignment en masse fails.
The amended pleas are subject to the same criticism and being little more than repetitions of the original pleas, no harm to the defendant results from sustaining the motion to strike the pleas rather than sustaining the demurrer that was interposed to the amended pleas. Forbes v. Fort Lauderdale Mercantile Co.,83 Fla. 66, 90 South. Rep. 821; Southern Home Ins. Co. v. Faulkner, 57 Fla. 194, text 198, 49 South. Rep. 542; Daniel
Finley v. Siegel-Cooper Co., 54 Fla. 265, 44 South. Rep. 949. *Page 25
Upon striking the amended pleas, the court ordered "that the plaintiff Ethel Y. Gray do have and take judgment by default against the defendant Reliance Life Insurance Company, a corporation, and that said plaintiff be, and she is hereby authorized to proceed in accordance with law to prove her damages in this case."
The insurance policies were adduced in evidence and testimony was taken as to an attorney fee for the plaintiff under the statute. A verdict for the plaintiff was directed and judgment was rendered thereon.
The recital in the order striking the amended pleas that the plaintiff "take judgment by default" could not possibly have harmed the defendant, even though a correct order may have been that the plaintiff recover the amount to be duly ascertained. See Wright v. Nesmith, 86 Fla. 544, 98 South. Rep. 584.
The motions to vacate the default judgment and for new trial contained nothing to indicate reversible error in denying the motions.
Affirmed.
WEST AND TERRELL, J. J., concur.
TAYLOR, C. J., AND ELLIS AND BROWNE, J. J., concur in the opinion. *Page 26
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In this case the defendant in error sued the plaintiffs in error as owners and holders of the capital stock of The Franklin Bank on a stock assessment made *Page 1086
by the Comptroller in process of liquidation of the affairs of The Franklin Bank, which had become insolvent.
The defense interposed was that the assessment could not be enforced against Citizens Bank Trust Company or the liquidator thereof, because the acquisition of the capital stock of The Franklin Bank by Citizens Bank Trust Company was ultra vires and the obligation created by the statute and the assessment therefor non-enforceable.
The plaintiffs contended that inasmuch as Citizens Bank
Trust Company was created by a special act of the Legislature, to-wit Chapter 4460, Acts of 1895, section 11 of which Act provided:
"That said corporation shall have right to acquire shares of the capital stock of any duly incorporated company, and manage the affairs of any such company upon obtaining a majority of shares of said company",
this Bank was not precluded from acquiring the capital stock of The Franklin Bank under the provisions of chapter 7269 Acts of 1917, and contended furthermore that if the provisions of the Act of 1917 prohibiting the acquisition of capital stock of other corporations by any banking corporation organized under the laws of the State of Florida applied to Citizens Bank
Trust Co., that such inhibition was overcome by the provisions of chapter 8874, Special Acts of 1921.
That Citizens Bank Trust Company, the institution here involved, did not possess immunity from the provisions contained in chapter 7269 Acts of 1917, is definitely settled by the opinion and judgment of this Court in the case of State ex rel. Davis, Attorney General vs. Knight, 98 Fla. 891,124 So. 461, in which this Court speaking through Mr. Justice Ellis said:
"There is no merit in the point that the Citizens Bank Trust Company possessed any immunity from State regulation and that it may conduct its business free from any supervisory regulation by legislative authority *Page 1087
because its charter consists of a special act of the Legislature.
'Banks are indispensable agencies through which the industry, trade and commerce of all civilized countries are carried on. The business which they transact, though for private profit, is of a pre-eminently public nature and is therefore universally recognized as a proper subject of legislative regulation under the police power of the State'. A banking corporation is quasi-public in character and as such is subject to statutory regulation for the protection of the public. See McLaren vs. State, 141 Wis. 577, 124 N.W. R. 667, 135 A. S. R. 55, and note, 18 Ann. Cas. 826; Noble State Bank v. Haskell, 219 U.S. 104, 55 L.Ed. 112, 31 Sup. Ct. R. 186, Ann. Cas. 1912 A. 487; 32 L. R. A. (N. S.) 1062; Bryan v. Bullock, supra.
No principle is better settled than that a special charter to any corporation to engage in a business of a public or quasi-public nature cannot be set up as exempting the institution from that regulation by the State in the exercise of its police power which the public necessity demands. See State ex rel. Triay vs. Burr, 79 Fla. 290, text 352, 84 So. R. 61."
Section 25 of Article III of our constitution as amended by Joint Resolution No. 2, Acts of 1899, adopted at the general election of 1900, provides as follows:
"The Legislature shall provide by general law for incorporating such educational, agricultural, mechanical, mining, transportation, mercantile, and other useful companies or associations as may be deemed necessary; but it shall not pass any special law on any such subject, and any such special law shall be of no effect; Provided however, that nothing herein shall preclude special legislation as to a university or the public schools, or as to a ship canal across the State."
Therefore, the provisions of chapter 8874, Special Acts of 1921, cannot confer any special charter rights or privileges on Citizens Bank Trust Company and that part of such Act which attempted to re-enact by confirmation of the rights, powers and privileges granted to that corporation by Chapter 4460, Laws of 1895, was void and of no *Page 1088
effect, being in conflict with the organic law in that regard.
In the City of Tampa vs. Tampa Waterworks Company, 45 Fla. 600, 34 So. 631, this Court, speaking through Mr. Justice Carter, discussing the provisions of section 30, article XVI of the Constitution, said:
"This provision was considered and partially construed in State ex rel Lamar v Jacksonville Terminal Company, 41 Fla. 377, 27 South. Rep. 225. It was there said that 'it does not purport to confer a power or to point out the manner in which a power shall be exercised. The section was inserted in response to a popular demand for some provision upon the subject. It does not grant the legislature a power. It expressly recognizes a power and declares that it does exist. The provision is a specified declaration that the power exists in the legislature to be exercised at any time, and because of its importance and possibly to guard against the misinterpretations of other provisions to impair or deny the power, it was specifically mentioned and declared in the constitution'. The power mentioned in this section is full power; a continuing, ever present power. Being irrevocably vested by this section the legislature cannot divest itself of it. Neither can it bind itself by contract, nor authorize a municipality — one of its creatures — to bind it by contract, so as to preclude the exercise of this power whenever in its judgment the public exigencies demand its exercise. Full power cannot exist, if by contract that power can be curtailed or impaired. Without this section the power to regulate rates would exist under the general grant of legislative power, in section 1, article III, but such power could be surrendered by a contract made by the State or by a municipal by its authority. With this section in force the power to surrender by contract the right to regulate rates is taken away, for the authority to surrender cannot co-exist with the ever-present continuing power to regulate, which is declared by this section to exist in the legislature. The section in question does not operate to prevent the legislature from making contracts itself nor from authorizing municipalities to make them and in and by such contracts stipulating for certain rates which will be valid and binding obligations so long as the legislature does *Page 1089
not exercise or authorize municipalities to exercise the power to prevent excessive charges which is declared by the section to be vested in the legislature. But every charter granted and every contract made by the legislature, or by a municipality under its authority are accepted and made subject to and in contemplation of the possibility of the subsequent exercise of the power to prevent excessive charges which by this section is unalterably and irrevocably vested in the legislature. The section not only becomes a part of every such contract, as much so as if written therein, but by implication it denies the authority of the legislature to bind itself either by a contract of its own making, or one made by a municipality under its authorization, not to exercise the power thereby recognized whenever in its wisdom it should think necessary so to do."
We must, therefore hold that Citizens Bank Trust Company not only had no authority to acquire the capital stock of another bank, but its act in doing so was in direct violation of law, all of such stock having been acquired subsequent to the Act of 1917. Not only was the act in violation of law, but it was condemned by statute as a crime and of this The Franklin Bank is charged with full and complete knowledge.
The next question to be determined is whether or not when the act of Citizens Bank Trust Company in acquiring the stock was ultra vires, the bank can now be held to pay the amount of the assessment based on the ownership of that stock.
In Lassiter Co. vs. Taylor, 99 Fla. 819, 128 So. 14, in an opinion written by Mr. Commissioner Davis, this Court said, quoting with approval from Berka vs. Woodward, 125 Cal. 199, 57 P. 777:
"This then, is the undoubted rule, that, when a contract is expressly prohibited by law, no court of justice will entertain an action upon it, or upon any asserted rights growing out of it. And the reason is apparent; for to permit this would be for the law to aid in its own undoing. Says the Supreme Court of the United States in President, etc. vs. Owens, 2 Pet. 527: 'No court of *Page 1090
justice can in its nature be made the handmaid of iniquity. Courts are instituted to carry into effect the laws of the country. How can they become auxiliary to the consummation of violations of law? There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal.' And again the same august tribunal, in Coppell v Hall, 7 Wall. 542, says: Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract and void for the same reasons.
'Where the contamination reaches it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its own violation' ".
In Escambia Land Mfg. Co. vs. Ferry Pass Inspectors, etc., Association, 59 Fla. 239, 52 So. 715, it was said: "Courts will take notice of their own motion, of illegal contracts which come before them for adjudication, and will leave the parties where they placed themselves." To like effect is Stewart vs. Stearns and Culver Lbr. Co., 56 Fla. 750, 48 So. 19.
There appears to be no statutes prohibiting National banks from holding stock in other corporations, yet because National banks are not specifically authorized to hold stock in other corporations the Supreme Court of the United States has repeatedly held that a National Bank can not lawfully purchase and hold the stock of another corporation as an investment and in case of such an actual purchase by a National bank it is not estopped to deny its liability as an apparent stockholder on assessment of such stock ordered by the Comptroller of the Currency. See First National Bank of Concord vs Hawkins,174 U.S. 364, 43 Law. Ed. 1007; Cal. National Bank vs Kenedy,167 U.S. 362, 42 Law Ed. 198; Shaw vs. National German American Bank of St. Paul, 199 U.S. 603, 50 Law Ed. 328; Scott *Page 1091
vs. DeWeese, 181 U.S. 202, 45 Law Ed. 822; First National Bank of Ottawa vs. Converse, 200 U.S. 425, 50 L.Ed. 537.
Section 2 of Chapter 7269, Acts of 1917, brought forward as section 4152 R. G. S., 6084 C. G. L., provides in part as follows:
"It shall be unlawful for any bank or trust company organized under the laws of this State and doing business in this State, to directly or indirectly invest any of the funds of said bank or trust company in stock of any incorporated company in this State or elsewhere, except the stock of the Federal Reserve Bank of this district;"
As under the provisions of this statute a bank or trust company is prohibited from either directly or indirectly investing its funds in the capital stock of any other corporation except in the Federal Reserve Bank of this district, it is immaterial whether Citizens Bank Trust Company acquired the stock by direct purchase or acquired it by reason of having accepted it as security for a loan and the act of the Bank was ultra vires and void and the liquidator of The Franklin Bank can not enforce the payment of the stock assessment made by the Comptroller on the capital stock so held by Citizens Bank
Trust Company.
For the reasons stated, the judgment should be reversed and it is so ordered.
Reversed.
WHITFIELD, ELLIS AND TERRELL, J.J., concur.
BROWN, J., concurs specially.
DAVIS, J., disqualified.
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341 S.C. 63 (2000)
533 S.E.2d 329
The STATE of South Carolina, Respondent,
v.
Marcus Antonio GRIM, Appellant.
No. 25144.
Supreme Court of South Carolina.
Heard April 5, 2000.
Decided June 12, 2000.
*65 Chief Attorney Daniel T. Stacey and Assistant Appellate Defender Melissa J. Reed Kimbrough, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland; and Solicitor Donald V. Myers, of Lexington, for respondent.
BURNETT, Justice:
We are asked to determine whether the trial court had subject matter jurisdiction to accept appellant's guilty plea when the indictment was not stamped "true bill." We remand for a hearing to determine whether the indictment was true billed.
FACTS
Appellant Marcus Antonio Grim pled guilty to charges of murder, armed robbery, criminal conspiracy, possession of a firearm during the commission of a violent crime, and pointing a firearm. He was sentenced to thirty years for the murder, with all the other sentences to run concurrently. The day after his plea, defense counsel discovered the armed robbery indictment, while signed and dated by the foreman of the grand jury, did not indicate the action taken by the grand jury.[1] At a subsequent hearing, the trial judge stated he had taken the grand jury's report and every indictment submitted to it that day was true billed; however, there is no actual evidence of this in the record. The trial judge stated to appellant:
There are two ways that I can go about correcting this, one would be to have the foreman of the grand jury come back *66 up here and I would have him testify as to the action they took. The other would be if you would be willing to waive presentment to the grand jury of this indictment so that the plea that I took yesterday would then be in proper order and proper form.
Appellant agreed to waive presentment.
ISSUE
Did the trial court have subject matter jurisdiction to accept appellant's plea?
DISCUSSION
Appellant argues the trial court did not have subject matter jurisdiction to accept his guilty plea to the armed robbery indictment because the indictment did not indicate whether it had been true billed by the grand jury. We remand to the trial court for a hearing to determine whether the indictment was true billed.
With a few exceptions not relevant here, a circuit court does not have subject matter jurisdiction to hear a guilty plea unless the defendant has been indicted by a grand jury or has waived presentment. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998). As a threshold matter, appellant's waiver of presentment the day after his plea did not act to confer subject matter jurisdiction on the court. See State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986). Furthermore, parties cannot confer subject matter jurisdiction by consent. Plante v. State, 315 S.C. 562, 446 S.E.2d 437 (1994). Subject matter jurisdiction can be raised at any time. Carter, 329 S.C. at 355, 495 S.E.2d at 777.
Proceedings in a court of general jurisdiction will be presumed regular absent evidence to the contrary. Pringle v. State, 287 S.C. 409, 339 S.E.2d 127 (1986). In Pringle, we held an indictment which the grand jury foreman failed to sign was proper and the lower court had jurisdiction where there was evidence the regular indictment procedure had been followed. However, the jury foreman's signature is not essential to the validity of the indictment. Id.
*67 Relying on Pringle, the Court of Appeals has held an indictment proper even though it was not stamped "true bill," where there was evidence in the form of sworn testimony from the grand jury's docket coordinator, a court reporter, and a legal secretary that the indictment was in fact true billed. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995) cert. denied (Dec. 8, 1995). The Court of Appeals treated the failure to stamp "true bill" on the indictment as a scrivener's error.
In contrast, the Court of Appeals recently remanded a case for a hearing to determine whether the grand jury true billed an indictment where the indictment was signed and dated by the foreman, but there was no evidence to show the action taken by the grand jury. Anderson v. State, 338 S.C. 629, 527 S.E.2d 398 (2000). Anderson is virtually identical to the present case.
We find the Court of Appeals' reasoning in Bultron and Anderson persuasive and remand for a hearing to determine whether the indictment at issue was true billed. When confronted with issues as presented here, a trial court has several alternatives. The court may conduct an evidentiary hearing to determine whether the indictment was true billed; or resubmit the indictment for grand jury consideration; or effect a waiver of presentment of the indictment to the grand jury and, again, entertain the defendant's plea; or simply allow withdrawal of the plea and proceed anew. The trial court record must establish subject matter jurisdiction. The procedure for publication of bills of indictment varies from county to county and no one procedure is more or less effective than another. However, caution must be exercised to ensure the presence of subject matter jurisdiction.
REMANDED.
TOAL, C.J., MOORE, WALLER, and PLEICONES, JJ., concur.
NOTES
[1] The indictments for the other crimes are not challenged.
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10-30-2013
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IN BANC.
Action by Sam Logan against the Equitable Trust Company, a corporation, and others, wherein the Equitable Trust Company and George B. Guthrie, receiver for Equitable Trust Company, prayed for a decree permanently enjoining plaintiff from prosecuting any action at law on account of matters complained of in his amended complaint and for other relief. From a decree, named defendants appeal.
REVERSED. *Page 685
Plaintiff commenced an action at law for a personal judgment against defendant Equitable Trust Company and its receiver and Coe A. McKenna Company, a corporation, and Coe A. McKenna, and Harry Beckwith. The case was dismissed as to Harry Beckwith.
Plaintiff claims damages suffered by him as a result of the negligent disregard of its duties by defendant trust company, as trustee of a bond issue. Plaintiff owns $10,900 of bonds issued by defendant Coe A. McKenna Company and certified by defendant Equitable Trust Company. The entire issue of bonds amounted to $53,300, all of which are outstanding and in default. Defendant Equitable Trust Company became trustee of the issue by virtue of a collateral trust agreement dated March 24, 1924, which sets forth its duties, as trustee, and made it necessary for the trustee to hold as security for the issue a certain grade of collateral, including mortgages on improved and insured real property, to be appraised by the trustee, but the amount of the liens or mortgages on any property should not be more than 80 per cent of the value of the realty. The trustee further agreed not to release any security unless the real estate company handed over other collateral that met the requirements of the collateral trust agreement. The certificate of the trustee was conclusive evidence of the issuance of the bonds. The certificate indorsed upon the bonds is in the form of the following:
"This is to certify that this bond is issued under and pursuant to the collateral Trust Agreement mentioned *Page 686
in said bond, and the Trustee has now in its possession and will maintain at all times in its possession and under its control securities of the kind described in the said Trust Agreement in the face value of the principal of this bond, as provided in said Trust Agreement."
Plaintiff claims that the Equitable Trust Company negligently disregarded its duties to plaintiff as a bondholder, and, as a result, there is not now and never was any security at all for the issue; that if the appellant trustee had regarded its duties, the bonds would have been secured or the trustee would have refused to certify them; that in consequence the plaintiff will not be paid anything.
To this complaint defendant trust company filed its answer, asserting the right of the defendant to relief arising out of facts requiring the interposition of a court of equity and material to its defense, and, by stipulation thereafter made, its receiver George B. Guthrie was joined as a codefendant. From such answer it appears that the trust deed was entered into on March 24, 1924, under which the bonds were issued by Coe A. McKenna
Company and securities were thereunder pledged with the trustee for the equal and pro rata benefit of all the bondholders; that bonds were issued thereunder and are now held by sundry persons (said to number thirty-one) including plaintiff; that all bondholders are entitled to pro rata benefits of the securities pledged therefor; that the trustee, on default in the payment of the bonds, acted promptly for the protection and benefit of all bondholders and undertook to collect payments and impound funds thereunder; that on December 18, 1931, under appropriate orders of the United States District Court for the District of Oregon, in a cause therein pending, *Page 687
George B. Guthrie was appointed and thereafter qualified as receiver of the Equitable Trust Company and has by said court been instructed to liquidate the affairs of said corporation; that plaintiff's claims cannot be satisfied or equitably adjusted without considering the rights or claims of all the other bondholders under the Coe A. McKenna Company trust to assets of said trust and the rights of any and all other claimants in the receivership of the trust company affecting the corporate assets and general obligations of the trust company; that the receiver has in his possession substantial assets belonging to the Coe A. McKenna Company trust, which he holds for all bondholders and claimants thereunder, including plaintiff; that plaintiff has not surrendered and still claims his rights as a bondholder, but also claims a right as a defrauded bondholder, which claim is inequitable and inconsistent with the rights of the sundry other bondholders who are similarly situated; that plaintiff has no right to an individual judgment as a bondholder for damages under the existing facts until the trust res is determined and then only as to ratable distribution thereof; that in order to do justice to all parties concerned and to avoid a multiplicity of suits, equity has jurisdiction to determine all of the rights accruing or arising out of the deed or trust and any liability growing out of the performance and any representations connected therewith; and that defendants have no plain, speedy or adequate remedy at law.
The answer further alleged the pendency of a similar suit in the circuit court of the state of Oregon for Multnomah county brought by one C.E. Barber, as a bondholder claiming to act in a representative capacity for the benefit of himself and all other bondholders under said deed of trust, and joining a number of other *Page 688
bondholders, including plaintiff herein, with Equitable Trust Company, as parties defendant, and asking in equity an accounting and general relief against the trustee and its receiver under allegations practically identical with those in the amended complaint herein, and seeking relief which is identical with the remedy sought in the case at bar.
Defendants pray for a decree of the court permanently enjoining plaintiff from prosecuting any action at law on account of the matters and things complained of in his amended complaint, and further, that the decree shall in equity adjudicate the rights of plaintiff and defendants, Equitable Trust Company and its receiver, as the court shall determine in the disposition or liquidation of the trust res and the giving of any directions to the trustee and its receiver pertinent thereto; that the action at law be abated, pending the adjudication and final determination of the cause brought by C.E. Barber above referred to, or that this action be transferred to the equity side of the court and consolidated with the Barber suit, and for equitable relief.
To these answers plaintiff filed a reply, admitting the corporate character of the Equitable Trust Company and that the trust company certified various and sundry bonds of said issue, including the bonds of plaintiff; that some interest was paid on the bonds and that they are now in default; the appointment of the receiver. The reply denies the other allegations of the separate answers.
For a reply to one of the further and separate answers of the Equitable Trust Company, plaintiff admits the suit has been instituted in the circuit court for Multnomah county by C.E. Barber, and others, against Equitable Trust Company, and others, in which *Page 689
the alleged bondholders of the issue involved are made defendants and others made plaintiffs, and is a suit in equity for an accounting in behalf of the plaintiffs therein and for losses plaintiffs therein have suffered because of the disregard of the defendant Equitable Trust Company therein of its duties and responsibilities as trustee of the bond issue, and that in said cause the plaintiff Sam Logan is a party defendant.
After the taking of testimony on behalf of the Equitable Trust Company and the receiver, which supports the material allegations of the equitable answer, in so far as necessary for the determination of the questions now pending, testimony also being produced by plaintiff which supported some of the allegations of the complaint, the court decreed, in effect, that defendants were not entitled to equitable relief therein sought and that the equities here involved do not call for the exercise by the court of its equity powers, and that the application of the Equitable Trust Company and its receiver to enjoin the further prosecution of the action at law be denied and the plaintiff's case allowed to proceed at law, and the pleadings containing equitable matter should be considered withdrawn from the case, and awarding plaintiff costs against the trust company and the receiver. The Equitable Trust Company and George B. Guthrie, receiver for it, appealed.
Plaintiff claims the trustee is liable personally for damages and that he is not looking to any security in this proceeding; that the trustee did not, in fairness, have the property back of the second and third mortgages appraised, but conspired with Coe A. McKenna Company and Coe A. McKenna himself, in the appraisement, and made it too high; that there was never any equity in the real property forming the basis *Page 690
of the security over and above prior mortgages and liens; that the appraised value at the date of the issuance of the bonds and as of the date of default in payments was $152,200 for all the realty back of the inferior mortgages taken by the trustee as purported security; that the mortgages issued were not to amount to more than 80 per cent of the value, or $122,160; that all the mortgages except one were second and inferior; that the prior mortgages and liens on the realty as of the dates the bonds were certified and sold were $122,645, so that the prior liens amount to more than 80 per cent of the value of the property. Besides this plaintiff claims the trustee gave up some security and turned it back to Coe A. McKenna and took in its stead property of less value and worthless security, and the trustee continued to certify bonds after it knew Coe A. McKenna was in default; that the trustee cooperated with Coe A. McKenna and knew there was no security back of his issue; that this amounts in law to a fraud upon plaintiff as an investor in the bonds in the amount of $10,900. The plaintiff is asking that the trustee personally pay his loss.
It is not intended that the description of the transactions involved herein should be considered as a finding but merely as a description, as the case has not been finally tried upon its merits.
It is shown by the testimony that the receiver has about $5,000 in cash and three pieces of real estate of the value of about $2,500 and other real estate contracts and mortgages which are of little value.
Defendant Equitable Trust Company contends that equity's jurisdiction to prevent a multiplicity of suits or actions is applicable to the case at bar, it appearing that numerous bondholders are similarly situated and entitled to participate pro rata in any damage growing *Page 691
out of the negligent or other maladministration of the trust involved, and further, that equity has concurrent jurisdiction to discipline an unfaithful trustee and can properly superintend and administer the trust and impose a penalty in a proper case.
Section 6-102, Oregon Code 1930, provides, in part, that in an action at law where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense, he may set up such matter by answer, without the necessity of filing a complaint on the equity side of the court, and the plaintiff may, by reply, set up equitable matter, not inconsistent with the complaint, and constituting a defense to new matter in the answer. Said reply may be filed to an answer containing either legal or equitable defenses. The parties shall have the same rights in such case as if an original bill embodying the defense or seeking the relief prayed for in such answer or reply had been filed. Equitable relief respecting the subject matter of the suit may thus be obtained by answer, and equitable defenses to new matter contained in the answer may thus be asserted by reply. When such an equitable matter is interposed, the proceedings at law shall be stayed and the case shall thereafter proceed until the determination of the issues thus raised as a suit in equity by which the proceedings at law may be perpetually enjoined or allowed to proceed in accordance with the final decree, or such equitable relief as is proper may be given to either party.
The question for determination here is whether all of the matters to which reference has been made should be determined in a suit in equity or whether the action at law for damages should be allowed to proceed. *Page 692
The trend of authorities is to the effect that there must be at least some well-recognized ground of equitable interference, or some community of interest in the subject-matter of the controversy, or a common right or title on which all the separate claims and questions at issue depend, or there must be some common purpose in pursuit of a common adversary where each may resort to equity in order to invoke its aid to adjudicate in one suit the right of numerous different parties whose claims are separate and distinct; and the mere fact that their separate rights will require the application of the same principle of law, and that their rights originally sprang from the same source is not sufficient. 10 R.C.L. 284, § 29. To constitute a community of interest in the subject-matter there must be a right enjoyed in common by several persons, and in such a manner that the invasion of the right of one will constitute an invasion of the right of all. 10 R.C.L. 287, § 30.
The possible conditions in which the doctrine of the prevention of a multiplicity of suits may apply are grouped in 1 Pomeroy on Equity Jurisprudence (4th Ed.) § 245, in four classes, the third of which is as follows:
"Where a number of persons have separate and individual claims and rights of action against the same party, A, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others, or even by one person suing for himself alone."
The fourth class treats of the right of a claimee to compel by injunction or other appropriate order the joinder of numerous claims in a single suit in equity. *Page 693
In the present case, in addition to the community of interest of all of the bondholders in the trust res, we have a trust and the management thereof, and it is alleged that the management of the trust was fraudulent. It is stated in 10 R.C.L. 288, § 32, in effect, that with cases of fraud or trust, when properly before it, a court of equity can ordinarily deal more completely than can a court of law. Accordingly, where such questions are involved, a court of equity is never closed to a person unless the remedy at law is complete and will secure to him the whole right involved in a manner as just and perfect as would be attained in a suit in equity.
In this case the plaintiff and the other bondholders may have a remedy at law, but it is not as adequate and the rights cannot be determined as completely as they can be adjusted in a suit in equity.
It is stated in 10 R.C.L. 349, § 99, as follows:
"Courts of equity have always claimed and exercised exclusive jurisdiction in cases of trusts and over the conduct of those appointed to execute them. This has never been disputed ground. No other tribunal can so properly direct the manner of executing them, or inquire into and correct abuses where there has been, or is likely to be, a mismanagement by the trustees. An element of trust then may be said always to confer jurisdiction in equity. * * *." See Perry on Trusts (7th Ed.) §§ 843-848.
In Van Auken v. Dammeier, 27 Or. 150, 155 (40 P. 89), equitable jurisdiction was declined for the reason, as stated: "There is no community of interest among them (plaintiffs) either in the subject-matter of the suit, or in the relief sought."
In Warren Bros. Co. v. Kibbe, 43 F.2d 582, where there was a number of separate paving contracts *Page 694
involving Warren Brothers patented pavement, and royalties based thereon, Judge Bean, as shown at page 584, said:
"It is next claimed that the plaintiff's remedy is by separate actions at law against the several contractors, but the general rule is that in order to prevent multiplicity of suits a court of equity may exercise jurisdiction on behalf of a single party against a numerous body of separate claimants, although there is no common title or interest in the subject-matter among those individuals, but where there is merely a community of interest among them on questions of law and facts involved in a general controversy, or in the kind and form of relief demanded and obtained by or against it. Nor is it necessary that all the parties should have an interest in all the matters involved in the suit. It will be sufficient if each party has an interest in some material matter, and they are connected with the others."
Each case must be decided upon its own merits, the factors to be considered being the real and substantial convenience of all parties, the adequacy of the legal remedy, the situation of the different parties, the points to be contested, and the result which would follow if equitable jurisdiction should be assumed or denied, and particularly the constitutional right of a party to trial by jury. The fact that a multiplicity of suits may be prevented is a persuasive argument in favor of equitable jurisdiction. In order to justify the interference of equity it must appear that such action will promote justice and that all the rights involved can be as well protected in the equity suit as in the separate action. 21 C.J. 72, § 48.
It is declared in 21 C.J. 81, § 51:
"It is impossible to reconcile and harmonize all the decisions even where they proceed upon the same assumption of fundamental principles. The rule which most nearly approaches that result is that the bill must relate to matters of the same nature and having a connection *Page 695
with each other, and in which all the parties are more or less concerned, although their rights in respect to the general subject of the case may be distinct. The matter is one within the sound discretion of the chancellor, to be exercised with a view to the substantial convenience and rights of all parties, which, it may be remarked, is the rule governing the question of multifariousness."
See also Paulson v. City of Portland, 16 Or. 450 (19 P. 450, 1 L.R.A. 673); Warren Bros. v. Kibbe, supra; Smith v. Bank ofNew England, 69 N.H. 254 (45 A. 1082); Kellogg v. ChenangoValley Sav. Bank, 11 A.D. 458 (42 N.Y.S. 379); NationalPark Bank v. Goddard, 131 N.Y. 494 (30 N.E. 566); Osborne v.Wis. Cent. R. Co., 43 Fed. 824.
In Tribette v. Ill. Cent. R.R., 70 Miss. 182, 12 So. 32, 196 L.R.A. 660, 35 Am. St. Rep. 642), in which the opinion sounds a note not in harmony with all of the rules enunciated in Pomeroy's Equity Jurisprudence and which is the leading case for the restricted doctrine, the court said:
"Where each of several may proceed or be proceeded against in equity, their joinder as plaintiffs or defendants in one suit is not objectionable; * * * Where each of several parties may proceed in equity separately, they are permitted to unite, and make common cause against a common adversary, and one may implead in one suit in equity many who are his adversaries, in a matter common to all in many cases, * * *."
The more restricted doctrine is that equitable jurisdiction extends only to prevent numerous suits where already an independent right in equity exists; that is, equity may have concurrent jurisdiction of the case with the law courts, either of which might be chosen by the claimant. If there is a number of such claimants similarly situated, whose claims grow out *Page 696
of the identical transaction, then either the claimants or the claimee may have the matter brought into one suit in equity, invoking injunction, consolidation or any appropriate or available rule to bring it about and thereupon proceed to hear and determine the entire matter.
In Smith v. Bank of New England, supra, which we think is a case particularly in point, the court said:
"The bill is not multifarious, nor would it be if all the holders of certificates were in fact made parties to it either as plaintiffs or defendants. They are all equally and directly interested in the disposition of any trust funds now held by the defendants, and in any damages that may be awarded against them for a breach of the trust. All the matters in controversy relate exclusively to the alleged conduct and misconduct of the defendants as trustees. It not only appears that by the joinder of all others of like interest with the plaintiff the defendants will not be embarrassed or subjected to any expense or inconvenience in making their defense, nor that any injustice will be done them, but that the matters in dispute can be more conveniently, economically, and expeditiously adjusted in one suit."
In the present case the receiver of the insolvent trust company, who is endeavoring to marshal assets and liquidate the affairs of the Equitable Trust Company in accordance with the deed of trust under the direction and supervision of the District Court of the United States for the District of Oregon, ought not to be subjected to more than one suit, when the interests and rights of all the bondholders of the Coe A. McKenna Company bonds can be determined and settled equitably in one suit and the conduct of the trustee may be considered and damages awarded for a breach, if any, of the trust in accord with the circumstances of the case and the rights of all parties concerned. *Page 697
The answer of the defendant company and its receiver, which stands in lieu of an original bill in equity, relates to matters of the same nature which are connected, namely, the bonds issued under the provisions of the deed of trust in which all of the bondholders are concerned. All of them have a community of interest in the trust funds and assets pledged as security for the bonds.
In addition, there is involved the administration of a trust, which it is alleged has been fraudulently managed. We think that a court of equity has ample jurisdiction to determine and adjust all of the matters between all of the interested bondholders and the trustee acting by its receiver.
The plaintiff alleges and contends that his action is for damages as the result of the negligent disregard of the defendant trust company of its duties as trustee of the bond issue, and that no trust property is sought, but plaintiff demands that the trust company pay plaintiff from its own funds the damages sustained. However, it is not shown or suggested that the trust company has any other funds available to satisfy plaintiff's demand other than the trust fund in which all of the other bondholders are interested. Plaintiff has sued the receiver, who is liquidating the affairs of this trust.
We will not undertake to reconcile or discuss all of the authorities cited by the learned counsel for plaintiff.
The decree of the circuit court should be reversed and the cause remanded with directions to determine the rights of all the parties interested in the suit in equity, either in the present suit or by joining all of the parties who may desire to be joined in the case of Barber v. Equitable Trust Company. It is so ordered. *Page 698
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MEMORANDUM AND PER CURIAM OPINION *Page 700
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330 S.W.2d 899 (1959)
L. P. McCARTY, Appellant,
v.
Grace DUNCAN, Administratrix of Estate of Lizzie McCarty, Deceased, Appellee.
No. 3700.
Court of Civil Appeals of Texas, Waco.
December 17, 1959.
Rehearing Denied January 14, 1960.
*900 H. W. Allen, Hamilton, for appellant.
Andrew Campbell, Hamilton, for appellee.
WILSON, Justice.
This case presents questions as to jurisdiction of the probate court to declare a forfeiture of appellant's interest in the estate of his mother, testatrix.
In 1929, J. F. McCarty and Lizzie McCarty, appellant's parents, executed a joint will providing "on the death of either of us all of his or her estate we give, devise and bequeath in equal shares to our eight children." It provided that appellant should not receive any part of the estate unless and until he repaid an advancement. It provided that "if any of our children shall *901 fail to show proper respect for us or either of us, or ask for a division of our property before our death, then and in that event we annual any bequest herein made to such beneficiary, and it is our will that such beneficiary or beneficiaries be absolutely barred and cut off from any interest or share in our estate. And we reserve for ourselves, or the survivor of us the absolute right to determine when this provision has been violated and a notation at the bottom of this will stating the name or names of the beneficiary or beneficiaries we wish to cut off shall be sufficient to bar him or them, and such decision shall be final and binding on such beneficiary."
Upon death of J. F. McCarty in 1931 the will was probated. Lizzie McCarty filed a sworn declaration in that probate proceeding reciting that appellant had continued to demand a division of the estate of J. F. McCarty; that appellant shot and killed his father and the fatal shooting followed refusal of such division. The affidavit declared "that by reason of the conduct and crime of said L. P. McCarty that she elected that he have no share or part whatever in the estate of said J. F. McCarty, deceased." The 1931 order probating the will of J. F. McCarty recited that "by reason of such conduct the said L. P. McCarty was declared by Lizzie McCarty to have forfeited all rights under the provisions of the joint will of herself and her deceased husband, J. F. McCarty"; that the inflicting of gunshot wounds by appellant "constituted lack of respect", and that appellant "by reason of such conduct is not entitled to take anything under the will of J. F. McCarty, deceased."
In 1955 Lizzie McCarty died and order was entered in the Probate Court admitting the joint instrument to probate as her will, appointing an administratrix with the will annexed. Over two years later the administratrix filed application for approval of final account, in connection with which she applied to the Probate Court for a declaration of forfeiture of appellant's interest in the estate of Lizzie McCarty. The application recites land is included in the estate. This application alleged that appellant had forfeited his rights under the will by demanding a division of the estate and "by showing disrespect for his parents and bringing about the death of his father" in violation of the terms of the will. The prayer was that "all interest of L. P. McCarty in the estate of Lizzie McCarty be declared forfeited and annulled." Appellant, having been personally served on this application, filed an opposition to the application for declaration of forfeiture asserting that since the will provided that "we reserve to ourselves, or the survivor of us, the absolute right to determine" when the will had been violated; and since Lizzie McCarty lived 23 years after her husband's will was probated without forfeiting appellant's interest in her estate by notation on the will or otherwise; and since forfeiture as to J. F. McCarty's estate did not affect his interest in the survivor's estate, no forfeiture could be adjudged. He further alleged mutual love and affection existed between him and his mother and that he never demanded division of her estate or showed lack of respect for her. He prayed that the court "construe the terms of the will with reference to the manner in which the forfeiture therein provided shall be exercised, and to find that the same was the exclusive right reserved unto the deceased, Mrs. Lizzie McCarty"; that there was no exercise thereof as to her estate, and that the said L. P. McCarty is a devisee under the terms of said will and entitled to receive his portion as therein provided.
The Probate Court, assuming the jurisdiction thus invoked, determined that Lizzie McCarty did not declare a forfeiture as to her estate as provided by the will and that appellant was entitled to take under the instrument. On appeal from this order the District Court, without a jury, concluded the will was a joint and mutual will by which Lizzie McCarty was bound contractually, legally and equitably; that she had judicially declared a forfeiture of appellant's *902 interest; that he had forfeited any interest in his mother's estate by violating the terms of the will in "failing to show proper respect for one of the co-testators and by demanding his share of the estate." It was further found that repayment of the advancement by appellant was a condition precedent to recovery of his interest, which repayment it was stipulated he had not made. The District Court judgment declared appellant's interest in the estate of Lizzie McCarty forfeited, and that he take no part thereof.
Although neither court below had opportunity to pass upon the question, appellant asserts in this Court for the first time that the Probate Court was without jurisdiction of the entire probate proceedings in the estate of Lizzie McCarty because the citation stated only that there was an "application for letters of administration upon the estate of Mrs. Lizzie McCarty, deceased" and failed to indicate that application for probate of the will had been filed. It is here contended this citation did not comply with Art. 3310, Vernon's Annotated Civil Statutes[1] which requires that the citation "state substantially the nature of the proceeding", (or with Art. 3333[2]) then in effect; hence, it is said, the order appealed from is void.
We do not regard it as necessary to pass upon this broader jurisdictional question or the other points presented because, assuming that jurisdiction of the original application and administration of the estate exists, it appears that the Probate Court had no jurisdiction of the application to declare a forfeiture. The District Court, of course, had no greater jurisdiction on appeal. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404; Olds v. Traylor, Tex.Civ. App., 180 S.W.2d 511, 518, writ ref.
The jurisdiction and power of the probate courts to construe wills in the proceeding for probate is restricted. The general power to construe wills is vested in the district courts in a separate and independent action after the will has been probated. Purvis v. Sherrod, 12 Tex. 140, 160; Smith v. Smith, 11 Tex. 102; Howze v. Howze, 14 Tex. 232; Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404; Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630, writ ref.; Olds v. Traylor, Tex.Civ.App., 180 S.W.2d 511, 517, writ ref.; McNaley v. Sealy, Tex. Civ.App., 122 S.W.2d 330, 332, writ dis.; Hayden v. Middleton, Tex.Civ.App., 135 S.W.2d 281, 283; Laney v. Cline, Tex.Civ. App., 150 S.W.2d 176, writ dis., c. j.; Harris v. Harris' Estate, Tex.Civ.App., 276 S.W. 964; Benson v. Greenville Nat. Exchange Bank, Tex.Civ.App., 253 S.W.2d 918, 925, writ ref.; Kelley v. Harsch, Tex. Civ.App., 161 S.W.2d 563, 567.
Arts. 3433-3435 Vernon's Ann.Civ. Stats.[3] have extended this jurisdiction by authorizing the probate courts to annul any provision of a duly probated will. "As incident thereto such court would also have the authority to construe such provisions of the will as may be necessary in the proper determination of the question of annulment." Ragland v. Wagener, 142 Tex. 651, 180 S.W.2d 435, 437, 152 A.L.R. 1232, and as in Mason & Mason v. Brown, Tex.Civ. App., 182 S.W.2d 729, writ ref.
In the instant case there is no attempt to annual any provision of the will, but only that appellant's interest in his mother's estate be declared "annulled" and forfeited. It is true that appellant's opposition to the application for forfeiture asked the Probate Court to construe the terms of the will with reference to the manner in which forfeiture might be declared, but the relief so sought was incidental to a prayer for a declaratory judgment over which the Probate Court had no jurisdiction. The real relief prayed for was a declaration of forfeiture, predicated on extrinsic evidence *903 requiring determination of facts and legal consequences of conduct extending over many years prior to the application, as well as the requested construction of the will, and its effect on title to land.
It is now beyond question that in proceedings to probate wills "questions as to property rights which might arise out of a construction of the terms of a will are not to be determined," Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630, 633, writ ref.; and that the Probate Court "has no jurisdiction to construe the will or to pass judgment on alleged prior contracts to make devises." Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, 406. In Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, 405, Judge Smedley for the Supreme Court stated.
"The general rule is that it is not the province of the court to construe a will in a proceeding for its probate. If the proof required * * * is made, the will should be admitted to probate, leaving for determination in a separate and independent action questions as to what property is affected by the will and what disposition shall be made of the property."
Where is this "separate and independent action" to be brought? In such matters as determining whether certain realty is charged with payment of money legacies by the terms of the will, it was held in Maibaum v. Union Trust Co., Tex.Civ.App., 1927, 291 S.W. 924, writ ref., that it is properly brought in the probate court, even though construction of the will is incidentally required; and it has been frequently held that the mere fact that construction is incidentally involved will not deprive that court of jurisdiction.
Sec. 405, Probate Code provides that the final account of the representative shall show the "persons entitled to receive such estate, their relationship to the decedent, and their residence, if known." Sec. 408 (b) provides that upon final settlement, if there be any estate remaining, the court shall order that "a partition and distribution be made among the persons entitled to receive such estate."
This does not, we believe, vest the probate court with the further jurisdiction of the application in this case requiring it to (a) determine title to the property, which includes realty; (b) to construe the terms of the will; (c) to determine the effect of the acts or omissions of the testatrix with respect to asserted forfeiture; (d) to declare the legal results of the conduct of a beneficiary and (e) whether, or what, conduct transpired. The sweeping and comprehensive power required to exercise these collective inquiries, we think is vested exclusively in the District Court under Art. 5, Sec. 8 of the Texas Constitution Vernon's Ann.St. and the applicable statutes. Wadsworth v. Chick, 55 Tex. 241; Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, 985; Slavin v. Greever, Tex.Civ. App., 209 S.W. 479; Clements v. Maury, 50 Tex. Civ. App. 158, 110 S.W. 185, writ ref.; Ellsworth v. Aldrich, Tex.Civ.App., 295 S.W. 206; 44 Tex.Jur. Secs. 194, 195, pp. 763, 764; Page, Wills, (3rd Ed.) Sec. 1605. This jurisdiction may not be conferred on the probate court by consent and presents fundamental error. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404, 405.
The judgment of the trial court is reversed and judgment is here rendered that the application and proceedings to declare forfeiture be dismissed for want of jurisdiction. Upon return of the mandate the Clerk of the District Court is directed to certify the judgment here rendered to the County Court for observance. Berry v. Barnes, Tex.Civ.App., 26 S.W.2d 657; Persky v. Greever, Tex.Civ.App., 202 S.W.2d 303, writ ref. n. r. e.; Brewer v. Brewer, Tex.Civ.App., 237 S.W.2d 369.
NOTES
[1] Now V.A.T.S. Probate Code, § 33.
[2] Now V.A.T.S. Probate Code, § 128.
[3] Now V.A.T.S. Probate Code, §§ 11, 15, 33.
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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/3840097/
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This is an appeal from a decree of the circuit court which awarded judgment in the sum of $5,000 to the plaintiff, who is trustee in bankruptcy of Herman's, Inc., a corporation, upon an alleged balance due the latter upon subscriptions to its corporate stock made by the defendant Leon Bernstein and one D. Solis Cohen, now deceased, whose estate is represented by the defendant Charles Kahn. According to the complaint, the subscriptions of these two individuals were made on behalf of the defendants, Samuel Swirsky, Abe Weinstein, Moe Weinstein, and J. Weinstein.
The following facts are free from dispute and reveal the issues awaiting our attention: In August, 1926, the defendants, Samuel Swirsky, Abe, Moe, and J. Weinstein, decided to form a corporation to be known as Herman's, Inc., with a capitalization of *Page 597
$30,000, represented by 300 shares of stock. They agreed that Swirsky should supply one-half of the needed funds and that the three Weinsteins, who are brothers, engaged in business under the firm name of Weinstein Bros., should supply the other half. For reasons which were proper the four desired to conceal their ownership of the corporate stock, and hence concluded that William Herman, son-in-law of Swirsky, should subscribe for 75 shares; that his wife, Stella, should subscribe for 75 shares more; that D. Solis Cohen, the attorney who was employed to form the corporation, should also subscribe for 75 shares; and that his office associate, Leon Bernstein, should subscribe for the balance. At the time of the formation of the corporation the subscriptions were made in the above contemplated manner. Prior to that time Swirsky had effected an agreement, in the name of William Herman, with one Phil Harris, a merchant who was rapidly approaching insolvency, to purchase Harris's fixtures for the sum of $10,000 and his lease for $5,000. Swirsky was prompted to acquire an interest in the venture because he desired to establish Herman in business. The Weinsteins' interest was due to two circumstances: (a) Harris was indebted to them, and the cash he would derive from a sale to the new corporation would enable him to discharge his debt to them; and (b) the Weinsteins, being part owners of the building where this business was located, were desirous of keeping a tenant in that storeroom. The fixtures, as part of an established going business, were worth more than $10,000. Harris's lease was accompanied with a deposit of $5,000, to assure his compliance with its provisions, and was worth the amount of the deposit. At the time of the formation of the corporation the fixtures and lease were transferred *Page 598
to it by appropriate instruments of conveyance and assignment. The stockholders at their first meeting, September 3, 1926, elected as directors, William and Stella Herman, D. Solis Cohen, and Leon Bernstein. Upon the same day the directors met and an instrument in the form of minutes, which purports to record the transactions that then took place, was prepared by Cohen and signed by Stella Herman as secretary, she having been previously elected to that office. When the meeting adjourned Cohen retained in his possession a volume entitled "Corporation Record" in which was included the certificate of incorporation and in which was recorded the stock subscriptions, the acceptance thereof, etc., together with the corporate bylaws. He also retained the instrument in the form of minutes to which we have just referred. When the plaintiff took office he discovered that instrument fastened in an appropriate place in the above described volume. We quote from it the following:
"Mr. Herman then stated that he had obtained a lease to the premises occupied by the corporation in the Royal Building on the southwest corner of Broadway and Morrison streets in the city of Portland, and the fixtures therein contained, and that he had obtained same for the purposes of the corporation. On motion duly seconded, the following resolution was adopted:
"RESOLVED: that the corporation accept from William Herman, an assignment of the lease now held by him on the premises occupied by the corporation in the Royal Building on the southwest corner of Broadway and Morrison streets, Portland, Oregon, and assume all the obligations resting in said lease upon the said William Herman, and that it receive also from William Herman the fixtures purchased by him from the former occupant of said premises, Mr. Phil Harris, to be applied upon the payment as cash for the stock *Page 599
of the corporation subscribed for by William Herman and Stella Herman, and that said stock be so issued as fully paid."
After Herman had transferred to the corporation the above mentioned lease and fixtures Swirsky paid to it $2,500, and in November of 1926 paid $2,500 more. The Weinstein brothers made similar payments at those same times. Four certificates of stock, each in the amount of 75 shares, were delivered to the above directors. Cohen and Bernstein handed their certificates, properly endorsed, to the Weinsteins. Immediately following its formation, the corporation commenced to do business, but was adjudged a bankrupt December 27, 1927. Later the plaintiff brought this suit, charging that the above facts indicate that a balance of $5,000 remains unpaid upon the stock subscriptions. The defendants contend that the corporation stock has been fully paid for in the manner that follows: After insisting that the preliminary proof failed to indicate that the above quoted minutes were a part of the corporate records, they submit that those recitals indicate that the fixtures only were conveyed to the corporation for $15,000 of its capital stock, and urge that the lease, which the parties stipulated was worth $5,000, entitles them to a credit of $5,000 more. By the addition of these two sums to the two $5,000 cash contributions they account for $30,000, the capitalization of the corporation.
Specifically, the defendants argue: (1) That the proof failed to show the alleged minutes were ever adopted as such by the directors; (2) that the alleged minutes are ambiguous in their references to the lease, and that the parol evidence submitted by the defendants shows that they are entitled to a credit of $5,000 *Page 600
on account of the assignment of the lease; (3) that corporate minutes establish only prima facie the truth of their recitals, and that their contents may always be impeached by parol evidence collaterally. Defendants submit that their parol evidence shows that the parties agreed the fixtures were worth $15,000, and the lease $5,000, and that such credits should be allowed upon the conveyance of those items to the corporation.
In addition to the foregoing contentions, the appellant Swirsky argues: (1) That the liability upon the stock subscriptions was not joint, and that since the minutes indicate full payment of the Herman stock no liability can be attached to Swirsky; (2) that the above facts show that the corporation received full value for all of its stock; and (3) that in the absence of any allegations and proof of fraud the above facts entitle the defendants to an order of dismissal.
We shall consider these contentions in the above order. The defendants concede that the aforementioned minutes (1) bear the signature of Stella Herman; (2) that the directors had elected her to the office of secretary; (3) that the minutes were written by Mr. Cohen; (4) that the directors held a meeting September 3, 1926, at the conclusion of which Cohen requested Mrs. Herman's signature to the alleged minutes; (5) that all other recitals in the alleged minutes correctly state the events which transpired; (6) that at the aforementioned directors' meetings the fixtures and lease, together with their values, were discussed by those present; (7) that the purpose of the meeting was to effect the organization of the corporation, the acquirement of these items of property, and the issuance of stock in payment of them; (8) that following the meeting the corporation treated the lease and fixtures as its own; and (9) that no other meeting of the *Page 601
directors or stockholders was ever held. The defendants in support of their contention that the alleged minutes have not been shown to constitute any part of the corporate records, point out (a) that the proof did not show that the minutes were ever read for approval before a meeting of the board of directors; (b) that the alleged minutes remained in the possession of Cohen and not in the possession of the secretary, nor upon the corporation's premises; and (c) that the proof shows that on September 3, 1926, no formal action by the submission of a resolution and a vote thereon was taken.
It is the duty of the secretary of a corporation "to keep a fair and correct record of all the official business of the corporation": Section 25-213, Oregon Code 1930. Annual meetings of the board of directors are contemplated by our laws: Section 25-215, Oregon Code 1930. It is agreed that no other record was kept of the meeting of September 3, 1926, than the above. The testimony of Mr. Cohen who prepared the above writing shows "the minutes were dictated at the time of the meeting." He added, when his attention was directed to the resolution as set forth in the challenged minutes, "I guess that is just as it was." There can be no serious doubt that Cohen was employed by all members of the group to do all things necessary to create the corporation. Herman testified that Cohen was "my attorney." Swirsky testified that all negotiations and conferences preceding the purchase of the lease and fixtures, and preliminary to the formation of the corporation were held in Mr. Cohen's office. He also testified that the parties fully informed Cohen upon all details so as to enable him to draft the necessary documents. In fact, it seems from Swirsky's testimony that Cohen was intrusted by him with the *Page 602
responsibility of paying the purchase money to Harris. The answer, in which Swirsky joined, admits without any qualification whatever, the following averment of the complaint:
"That D. Solis Cohen and Leon Bernstein had no actual financial interest in said corporation, but subscribed for 75 shares of stock, respectively, at the request of and pursuant to instructions received from the defendant Samuel Swirsky and the defendants Abe Weinstein, Moe Weinstein and J. Weinstein;"
Thus it appears from the testimony and admission of Swirsky that in the formation of the corporation Cohen followed his directions. However, Swirsky directs our attention to the following allegation, contained in the new matter appearing in the answer:
"In fact the said Cohen and Bernstein subscribed to said stock as an accommodation to the defendants Weinstein for the purpose of concealing the stock interest of the said Weinsteins, and that in reality said stock subscriptions of said Cohen and Bernstein were made in behalf of said defendants, Abe Weinstein, Moe Weinstein and J. Weinstein."
It will be observed, however, that this averment does not negative the admission that Cohen acted "pursuant to instructions received from defendant Samuel Swirsky * * *." But, even if the two were inconsistent, the admission would prevail: 49 C.J., Pleading, p. 119, § 112. But if Swirsky after having made the above admission in his pleading intended to deny that Cohen was his agent in the formation of the corporation, one would expect to find in his testimony some express declaration upon that subject. No such denial appears anywhere in his testimony. In fact, a careful reading of the evidence readily induces the belief that Swirsky, like the other interested parties, *Page 603
regarded Cohen as an attorney who was acting for all. We come now to the relationship between the Weinsteins and Cohen. The above quoted portion of the complaint was also admitted by them because all defendants united in the one answer. Hence, the above averment of the answer is also chargeable to them. Alex Weinstein testified that the relationship between himself and Mr. Cohen was so cordial that "I considered him almost like a father to me."
Familiar rules of agency and of evidence, which we need not review herein, when applied to the above facts, demand the conclusion that the challenged minutes were properly identified. See, for instance, Lowry National Bank v. Fickett, 122 Ga. 489
(50 S.E. 396). They constituted the declarations or voice of the corporation. It was not necessary that Mrs. Herman, the secretary of the corporation, should have penned the minutes with her own hand. It was entirely proper for her to adopt the record as written by Mr. Cohen. The fact that the minutes were not read by the group before Mrs. Herman attached her signature likewise is an ineffective objection. Both Cohen, their author, and Mrs. Herman, who signed them, were directors. The by-laws of the corporation provide: "The officers herein named shall perform the regular and ordinary duties which are usually those of a corporation, to wit: * * * the secretary as taking care of the minutes and general business." All interested had an opportunity to read the minutes if they so wished, and all knew that Mrs. Herman had signed them. One year hence another meeting should have been held, in compliance with our statutes, at which these minutes would ordinarily have been read. Not only those twelve months but three months more passed before any criticism of the minutes was voiced. *Page 604
Apparently no effort was ever made to alter them, even after the alleged error was discovered. The fact that Mr. Cohen in the bankruptcy proceedings, who was then still a director of the corporation, used those minutes and referred to them in the manner which we have already indicated, removes all remaining objection. We are satisfied that the minutes constitute a part of the corporate records.
The defendants, however, argue that the minutes' reference to the lease is ambiguous and claim that this specific part mentions no quid pro quo which the corporation was to give in consideration of the assignment of the lease. They contend that a proper construction of the minutes indicates that 150 shares of corporate stock was to be issued in satisfaction of the Hermans' subscription upon conveyance of the fixtures only. In the construction of an instrument the court must endeavor to place itself in the situation occupied by the parties when they employed the challenged language. The surrounding circumstances are always employed and the document must be read in the light of them: 6 R.C.L., Contracts, p. 849, § 239. This being true, it seems to us that this court, like any individual intrusted with the duty of carrying into effect the provisions of the resolution and knowing that the Hermans had subscribed for only $15,000 worth of stock and had paid only $15,000 for the lease and fixtures, should not find any difficulty with that instrument. Its language construed in the light of those circumstances indicates that $15,000 of stock should be delivered upon delivery of both the lease and the fixtures.
Next, it is contended that the minutes establish only prima facie the truth of their recitals and that the evidence which they supply may be impeached collaterally. *Page 605
We deem it unnecessary to express an opinion upon the troublesome problem whether such minutes are protected by the Best Evidence Rule because it seems to us that the impeaching testimony upon which the defendants rely fails to accomplish the result desired by them. We depend much upon the findings of the circuit court judge whose careful consideration of this case is revealed not only by the transcript of the trial but also by his memorandum decision. We have, however, read and considered with much deliberation the testimony, exhibits, and the very able briefs of counsel, but find ourselves in accord with the conclusions of the circuit court. Beyond referring to the two following items, we shall not set forth a further review of the evidence. Mr. D. Solis Cohen, the attorney for the aforementioned group, was a lawyer of unusual ability, of wide experience, and a man of sterling character. The group made him fully acquainted with their plans after which he prepared the instruments transferring the lease and fixtures from Harris to Herman, and from the latter to the corporation. Thus he had opportunity to acquaint himself with the details of the pending transaction. He also prepared the articles of incorporation, the minutes reciting the election of directors, etc. Next, he took office as one of the directors and then prepared the challenged minutes. Finally, he testified before the referee affirming the truth of the recitals in the minutes. According to the testimony of one of the Weinsteins and one of their present attorneys, the two of them spoke to Mr. Cohen immediately following his quitting of the witness stand and inquired whether he did not feel that the minutes were in error. What followed is significant — he did not return to the witness chair to make any alterations in his testimony. *Page 606
Another significant fact is the circumstance that in the corporation ledger and journal the entries concerning the fixtures and lease are undated, and the entry in the ledger of a value of $15,000 for the fixtures plainly shows that $10,000 was first written as the value of that item. No explanation was made by any one of this alteration.
It thus appears that an able, experienced attorney, well acquainted with his clients' plans, and who sustained to some of them at least an unusually friendly relationship, drafted these minutes. Later, when his attention was directed to them, affirmed their accuracy. It is our opinion that the parol evidence submitted by the defendants fails to overcome the effect of the corporation minutes.
Since Swirsky, Alex Weinstein (as the representative of his firm), Cohen and Bernstein were present at the time the minutes were presented by Cohen and received the signature of the secretary, those minutes were admissible as evidence against these defendants: Thompson on Corporations (3d Ed.), § 1966, and note 66 A.L.R. 1328.
We come now to the contention of the appellant Swirsky that the liability is not joint. He predicates this argument upon a contention that the evidence failed to disclose any authority in Cohen to subscribe for stock in his behalf. We have already referred to admissions made by the answer which conceded the truth of that portion of the complaint which averred "That D. Solis Cohen and Leon M. Bernstein * * * subscribed for 75 shares of stock respectively at the request of and pursuant to instructions received from defendant Samuel Swirsky * * *." We have also referred to the testimony of Swirsky. We add the following excerpt taken from the testimony of Alex *Page 607
Weinstein (the reference is to Cohen): "A. He was not only acting for me but for Mr. Herman and Mr. Swirsky." We conclude that this contention is without merit.
We have also examined with care the two remaining propositions presented by Swirsky. We believe, however, that they present no reason for overturning the result reached in the circuit court. Our conclusions as to the facts, stated above, sufficiently indicate our reasons.
The decree of the circuit court will be affirmed. Costs will be allowed to neither party.
BEAN, C.J., BROWN and RAND, JJ., concur.
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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/3152710/
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An unpublishe order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
SUPREME COURT
or
NEVADA
(0) 1947A
IN THE SUPREME COURT OF THE STATE OF NEVADA
l
l DERRICK ANTHONY ARMSTRONG, No. 68984
i A ellant,
p" m
l THE STATE OF NEVADA,
l Respondent. NOV 0 5 2015
[ CLETRiglF‘EPEEEE/EMSSJURT
ORDER DISMISSING APPEAL
This is a pro se appeal from a purported order denying a post-
oonviction petition for a writ of habeas corpus. Eighth Judicial District
.; Court, Clark County; Kathleen E. Delaney, Judge.
No decision, oral or written, had been made on the petition
failed to designate an appealable order, we lack jurisdiction over this
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l
a when appellant filed his appeal on October 9, 2015. Because appellant
appeal, and we
ORDER this appeal DISMISSED.
)3
Page J.
_ Pickering
l
cc: Hon. Kathleen E. Delaney, District Judge
l
!
Jean J. Schwartzer
Derrick Anthony Armstrong
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
J 15-33800 “
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01-03-2023
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11-06-2015
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https://www.courtlistener.com/api/rest/v3/opinions/3431045/
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This action was commenced to recover on three promissory notes, but at the time of the trial, one was withdrawn by the plaintiff, and the other two were submitted to the jury, the jury finding for the plaintiff on one of the notes, and for the defendant on the other. From judgment entered on the verdict of the jury, the defendant appeals. We are concerned on this appeal with only one of these notes:
The petition of the plaintiff is the ordinary form in a suit *Page 711
by an innocent holder of a promissory note. The defendant answers with a general denial, and alleges that he at no time had any interest in these notes, and that there was no consideration for his indorsement thereon, and that the notes were at all times the property of the First National Bank of Shenandoah, Iowa, of which he was vice president, and that the notes and real estate mortgages securing the same were taken in his name for the purpose of keeping the name of the bank off the mortgage records in the offices of the recorders of various counties, and were so taken for the convenience and accommodation of the bank; that they were indorsed by Read for the purpose of passing the naked, legal title to said bank; that said bank understood and knew at all times that this defendant never, at any time, had any interest in said notes and mortgages, and knew that the purpose of the indorsement was purely to vest in the bank the legal title to said instruments, the equitable title to which it at all times owned.
We glean the following facts from the record:
In July, 1920, Lingo Brothers (Otis A., Walter M., and Earnest S.) were indebted to the First National Bank of Shenandoah in a sum totaling $52,000. Being called upon by the bank to refinance their loans, they executed a mortgage on certain real estate in the sum of $12,000, the proceeds of which were turned over to the bank, and notes in the amount of $40,000 were executed by them on July 20, 1920, to take care of the balance of their indebtedness, these notes being also secured by real estate mortgages. Among these latter notes was the note now involved in this appeal. It was for $5,000, dated July 20, 1920, due March 1, 1921, payable to Elbert A. Read or order, and signed by Walter M. and Earnest S. Lingo.
When this financing scheme had been completed, various notes, constituting the original indebtedness of $52,000, were charged off the books of the First National Bank of Shenandoah, and on that date there were placed on the books of the bank the notes of the Lingo Brothers, representing $40,000, which, together with the $12,000 cash received from the real estate loan, replaced the original notes of $52,000.
On May 13, 1926, the First National Bank of Shenandoah was closed by the comptroller of currency, and H.J. Spurway was appointed receiver thereof; and as such, he brings this action, to recover on the note now before us. *Page 712
It was stipulated that the note was genuine; that it was duly executed and signed by Walter M. and Earnest S. Lingo; that, on the back of the note appeared the genuine signature of Elbert A. Read; that, at the time of the closing of the bank, on May 13, 1926, the note was carried and owned by the first National Bank of Shenandoah; that it is now held by Spurway, as receiver of said bank, and is unpaid. It is further stipulated:
"It is not the intention, however, of the defendant to admit that said notes were executed to or delivered to Elbert A. Read, nor to admit that he at any time had any interest therein; neither do we admit that he appeared there as indorser."
Under the general denial of the defendant herein, the burden of proof is upon the plaintiff to establish the allegations of his petition. Defendant's propositions are:
First, that he had no interest at any time in said note, that it was simply taken in his name as an accommodation to the bank, and his indorsement thereon was simply for the purpose of transferring to the bank the naked legal title, because the bank was the owner of the paper; and second, and cognate to the first, that no consideration whatever passed to Elbert A. Read for putting his name on the back of this note.
Section 9484, Code, 1927, provides:
"Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value."
It is a well settled rule under the Negotiable Instrument Law that, where want of consideration is pleaded, and the defendant gives evidence tending to show such want of consideration, the burden is on the plaintiff to show by a fair preponderance of the evidence upon the whole case, that there was consideration. Brannan's Negotiable Instruments Law (4th Ed.) 218, and cases there cited, showing this doctrine to be quite uniform in the various states under this law.
We have had before us a somewhat similar proposition in the case of Pomeroy v. Farmers Sav. Bank of Shelby, 207 Iowa 1310. In that case, among other things, we settled one proposition that is urged on our attention in the instant case: that is, *Page 713
that an indorsement must be supported by a consideration, and want of consideration is always a good defense when the suit is brought on the instrument or on any indorsement thereon.
Section 9488, Code, 1924, reads as follows: "Absence or failure of consideration is matter of defense as against any person not a holder in due course."
Turning to the record in this case, in addition to the facts already set out, we find that the evidence conclusively shows that it was the general practice of this bank to make all of its real estate loans in the name of T.H. or Elbert A. Read. The evidence shows beyond dispute that this transaction was carried out by the bank in its usual course of business and its usual method of doing such business. The Lingos were pressed for adjustment of their indebtedness to the bank, and the matter was handled by T.L. Brown, an officer of the bank. The loan was made on certain land of the Lingo Brothers', and $12,000 in cash realized therefrom. The bank received this cash and applied it on the indebtedness then owed to it by the Lingo Brothers. The commission for making this loan was received by the bank, and not by Elbert A. Read. New notes and mortgages were to be made to secure the $40.000 still owed to the bank by the Lingos, and as usual, they were taken in the name of Elbert A. Read, and in due time were transferred by him to the bank. He testifies that he at no time had any personal interest in these notes or the mortgages securing the same, and the books of the bank corroborate his statement in every detail. This being true, it is quite apparent that there was no consideration whatever for the indorsement on these notes to the bank by Elbert A. Read, because they were at all times the property of the bank, and his indorsement thereon was simply for the purpose of transferring to the bank what it already owned, and for the purpose of transferring the naked, legal title to the bank.
We settled this to be the rule of law in the case of Pomeroy v.Farmers Sav. Bank of Shelby, 207 Iowa 1310, where, under an exactly similar set of circumstances, we said:
"The whole record shows that there was no consideration whatever for the purported indorsement of the defendant bank on either of these notes. Plaintiff therefore must fail, not only for want of proof supporting the allegations of his petition, but *Page 714
also because of a lack of any consideration supporting the alleged indorsement on these notes on which he bases his action."
In addition to the Pomeroy case, the general trend of our cases has been that, where the evidence is clear that there is no consideration, the defendant is entitled to a directed verdict, regardless of the presumption provided in the aforesaid section of the statute. See First Nat. Bank of Montour v. Brown, 197 Iowa 1376; First Nat. Bank of Fairfield v. Dutton, 199 Iowa 468; Kernv. Kiefer, 204 Iowa 490. That the Negotiable Instrument Law does not affect defendant's right to introduce parol testimony showing no consideration for his indorsement, see State Sav. Bank ofLogan v. Osborn, 188 Iowa 168.
Under these rules of law, it is obvious that the plaintiff did not make out a case to go to the jury.
Other questions are discussed, such as presentment and notice of dishonor, extension of time, etc.; but, as we view the case, what has been heretofore said is controlling, and we give no further consideration to the other questions in the case. The defendant's motion to direct a verdict at the close of all of the testimony should have been sustained. — Reversed.
MORLING, C.J., and EVANS, FAVILLE, De GRAFF, and WAGNER, JJ., concur.
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Improvement bonds were issued by the City of Sebring pursuant to Chapter 9298, Acts of 1923, which constituted a general authority to all the cities and towns of this State to issue special assessment bonds for municipal improvements of the character therein specified. The Act has been held to be constitutional. Klemm v. Davenport, 100 Fla. 627, 129 Sou. Rep. 904, text 910. *Page 302
The bonds as issued recited that all acts, conditions and things required to be done, precedent to and in the issuance of said bonds by the laws and constitution of the State and by the ordinances of said town had been done and had happened in due time, form and manner; that special assessments against the property specially benefitted by the improvement equal in value to the bond, had been set aside as a trust fund for the payment of the principal and interest of the bond, and that in addition thereto, provision had been made for the levy and collection of a direct tax upon all the taxable property within said town sufficient to pay the principal and interest of this bond as the same should become due and payable, should any of said special assessments for any reason prove insufficient for the payment of the principal and interest; that the total indebtedness of said town, including said bond, did not exceed any constitutional or statutory limitation.
Chapter 14371, Acts of 1929, the present charter of Sebring has been held constitutional by this Court in State ex rel.
Landis v. Crawford, 104 Fla. 440, 140 Sou. Rep. 333.
A lack of power on the part of a municipal corporation to issue bonds cannot, of course, be secured or supplied by any recital in the bonds and hence no recital can estop the municipality to deny its power to issue the bonds, if the laws were such that there could have been no state of facts or of conditions under which the municipality would have had the authority to emit the bonds here sued on, but where the power to issue municipal bonds exists, as it did in this case by virtue of Chapter 9298, Acts of 1923, a bona fide purchaser of such bonds in the open market, or a bona fide holder who acquired them from such purchaser, is entitled to rely on the recitals set forth in the bonds to the effect that all antecedent steps necesary to validate the securities had been taken, and that all requirements of law necessary *Page 303
to authorize the issuance of bonds had been fully complied with, and such recitals in the affirmative now preclude all inquiry, as against relators, who are shown to be innocent purchasers for value, as to whether or not all conditions precedent had actually been performed that were necessary and essential to exist, or be performed, by the municipal authorities in order to warrant the issuance of such bonds.
A short summarization of the rule as to recitals in public securities is that if the bonds could have been legally issued by the municipality obligor under any circumstances, the recitals thereof are binding and must be given effect. This rule has been held to apply to a case where bonds in aid of the construction of a canal for irrigation and water power were authorized to be lawfully issued and it was held that a purchaser of such bonds in the open market for value without notice was entitled to assume that the bonds he acquired had been so issued, and was under no obligation to institute any inquiries with a view to finding out whether or not the municipality had not in fact abused its powers, or whether, under the guise of aiding in the lawfully authorized construction of a canal for irrigation and incidental water power purposes, it had not in reality unlawfully loaned its credit in aid of an enterprise of purely private character. City of Kearney v. Woodruff, 53 C. C. A. 117, 115 Fed. Rep. 90. See also Municipal Trust Co. v. Johnson City, 53 C. C. A. 178, 116 Fed. Rep. 458; City of Evansville v. Dennett, 161 U.S. 434, 16 Sup. Ct. Rep. 613; 40 L.Ed. 760; Waite v. City of Santa Cruz, 184 U.S. 302, 22 Sup. Ct. Rep. 327; 46 L.Ed. 552; Hamilton County v. Montpelier Savings Bank Trust Co., 84 C. C. A. 523, 157 Fed. Rep. 19. Compare: Marcy v. Oswego Township,92 U.S. 637, 23 L.Ed. 784; Dixon County v. Field, 111 U.S. 83, 4 Sup. Ct. Rep. 315, 28 L.Ed. 360.
Laying aside some other considerations which appear to *Page 304
negative the claim of plaintiffs in error as to the invalidity of the bonds sought to be enforced by mandamus in this case, the recitals in the bonds themselves are sufficient to preclude a defense by the city officials to the effect that the annexation ordinance referred to in the pleadings was invalid and therefore the bonds are also invalid on the ground that part of the streets to be improved would, because of the alleged invalidity of the annexation ordinance, have been and were outside the city limits when the bonds were issued.
The invalidity of an annexation ordinance if it has not been validated, may affect the liability for city taxes of inhabitants of the affected area, but has no material bearing on the authority of the admittedly validly created municipal corporation of Sebring to issue its bonds in compliance with Chapter 9298, Acts of 1923.
There is no error. The judgment is affirmed.
DAVIS, C. J. and WHITFIELD, TERRELL and BUFORD, J. J., concur.
ELLIS and BROWN, J. J., dissent.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-2577
____________
FABRICIO NUNEZ MANJARREZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A 201-112-559)
Immigration Judge: Steven A. Morley
____________________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
On January 23, 2018
Before: GREENAWAY, JR., KRAUSE, Circuit Judges,
and JONES, District Judge.*
(Opinion filed: February 15, 2018)
___________
OPINION†
*
The Honorable John E. Jones, III, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
†
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
___________
JONES, District Judge.
Fabricio Nunez-Manjarrez appeals the Board of Immigration Appeals’ (“BIA”)
affirmance of Immigration’s decision denying him withholding of removal, and relief
under the Convention Against Torture (“CAT”). On appeal, Mr. Nunez-Manjarrez did not
specifically challenge the Immigration Judge’s finding that he had not timely filed his
application for asylum. The BIA affirmed the remainder of the Immigration Judge’s
order, finding that Mr. Nunez-Manjarrez had not sufficiently shown past persecution or
that he would suffer any future persecution because of certain statutorily protected
grounds, and that Mr. Nunez-Manjarrez did not meet his burden of showing that torture
would be more likely than not to occur if he were removed. We will affirm.
I. Background
Mr. Nunez-Manjarrez is a Mexican native and citizen who entered the United
States without inspection on August 22, 2005. His entire family lives in La Barca, a town
in Jalisco, Mexico. His father and grandfather own land in La Barca and, according to
Mr. Nunez-Manjarrez, had been extorted by local gangs because of their success in
growing crops and raising livestock. Two other members of Mr. Nunez-Manjarrez’s
family suffered ill fates while Mr. Nunez-Manjarrez was in the United States. The first
family member, a cousin on his father’s side, mysteriously disappeared after leaving a job
interview, and the second family member, on his mother’s side, was killed. Although
Mr. Nunez-Manjarrez does not know who committed these acts, he believes a criminal
gang known as the “Zetas” was responsible. Id. Mr. Nunez-Manjarrez himself, however,
2
was never harmed while in Mexico. He also did not point to any other instances of harm
coming to his immediate or extended family, which features up to twenty cousins, twenty
uncles, and grandparents.
Removal proceedings commenced against Mr. Nunez-Manjarrez on August 12,
2011. On August 31, 2011, Mr. Nunez-Manjarrez appeared before the York Immigration
Court and requested time to submit an application of asylum, which he did on October
19, 2011, along with an application for withholding of removal and relief under CAT.
Proceedings continued in the Philadelphia Immigration Court on July 1, 2013, where Mr.
Nunez-Manjarrez conceded that his asylum application was untimely. Mr. Nunez-
Manjarrez also stated at that time that he would be requesting voluntary departure as
alternative relief. After an individual hearing on November 14, 2016, the Immigration
Judge found that Mr. Nunez-Manjarrez’s application for asylum was time barred and that
he had not met his burden with respect to withholding from removal and relief under
CAT. On timely appeal, the BIA affirmed the Immigration Judge’s ruling on June 21,
2017.
II. Jurisdiction and Standard of Review
The BIA had jurisdiction over Mr. Nunez-Manjarrez’s appeal pursuant to 8 C.F.R.
§ 1003.1(b)(3). We have jurisdiction to review final orders of the BIA pursuant to 8
U.S.C. § 1252(a)(1).
Although Mr. Nunez-Manjarrez has appealed the BIA’s decision, “we also review
the decision of the Immigration Judge, to the extent that the BIA adopted or deferred to
the IJ’s analysis.” Ying Chen v. Att’y Gen., 676 F.3d 112, 114 (3d Cir. 2011) (citing
3
Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005)). To factual findings, we apply a
deferential standard, accepting findings unless “‘a reasonable adjudicator would be
compelled to arrive at a contrary conclusion.’” Camara v. Att’y Gen., 580 F.3d 196, 201
(3d Cir. 2009) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005)). We
review legal conclusions de novo, “‘but will afford Chevron deference to the BIA’s
reasonable interpretations of statutes which it is charged with administering.’” Toussaint
v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006) (quoting Kamara v. Att’y Gen., 420 F.3d
202, 211 (3d Cir. 2005)).
III. Discussion
Mr. Nunez-Manjarrez sought withholding from removal pursuant to the
Immigration and Nationality Act, which permits such withholding where “the alien’s life
or freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §
1231(b)(3)(A). Mr. Nunez-Manjarrez bore the burden of showing either past persecution
on one of these grounds or, in the absence of past persecution, that he was more likely
than not to suffer future persecution on one of these protected grounds. See 8 C.F.R. §
1208.16(b). Mr. Nunez-Manjarrez conceded that he has not experienced past persecution.
With respect to future persecution, the Immigration Judge found that Mr. Nunez-
Manjarrez’s family constituted a “particular social group” of which he was a part.
However, as aforestated, the Immigration Judge found, and the BIA affirmed, that Mr.
Nunez-Manjarrez failed to show that he was more likely than not to suffer future
persecution on account of his membership in that particular social group.
4
To this end, the Immigration Judge found that Mr. Nunez-Manjarrez could offer
no evidence that the two members of his family who had been harmed were victims of
targeted gang violence. The Immigration Judge also noted that all of Mr. Nunez-
Manjarrez’s family continues to live in the same town without incident. Although they
have occasionally been extorted by local gangs, they were able to stop paying those
gangs without violent repercussions. Both the Immigration Judge and the BIA imply that
Mr. Nunez-Manjarrez is motivated more by the general violence in Mexico than by fear
of being specifically targeted. We have held, however, that “‘generally harsh conditions
shared by many other persons do not amount to persecution.’” Al-Fara v. Gonzales, 404
F.3d 733, 740 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)).
Thus, on the issue of withholding from removal, we find no error in the rulings of the
BIA and Immigration Judge.
Mr. Nunez-Manjarrez also sought relief under CAT. To merit relief under CAT,
Mr. Nunez-Manjarrez needed to show he was more likely than not to be tortured if
removed to Mexico. 8 C.F.R. § 208.16(c)(2). We have stated that:
For an act to constitute torture under the [CAT] and the implementing
regulations, it must be: (1) an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for an illicit or proscribed purpose;
(4) by or at the instigation of or with the consent or acquiescence of a
public official who has custody or physical control of the victim; and (5)
not arising from lawful sanctions.
Kamara, 420 F.3d at 213 (alteration in the original) (quoting Auguste v. Ridge, 395 F.3d
123, 151 (3d Cir. 2005)). The fourth element can also be satisfied where public officials
show “willful blindness” to torture committed by other, third parties. Silva-Rengifo v.
5
Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007). The Immigration Judge found that Mr. Nunez-
Manjarrez offered no evidence to support this fourth element, thus failing to show he was
more likely than not to be tortured upon his return to Mexico. The BIA largely adopted
the Immigration Judge’s decision in affirming, and we agree, as well. Mr. Nunez-
Manjarrez argued generally about the rival drug gangs that controlled the area but could
not show that the Mexican government was willfully blind to the danger or that he was
more likely than not to be tortured by one or more of the gangs. As a result, Mr. Nunez-
Manjarrez simply did not meet his burden with respect to the fourth element.
IV. Conclusion
For the foregoing reasons, we will affirm the determination of the Board of
Immigration Appeals.
6
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Dudley W. McKay, Jr., was convicted of the crime of perjury and he appeals.
Affirmed.
The appellant, Dudley W. McKay, Jr., was convicted in the Criminal Court of Record of Duval County, Florida, for the crime of perjury, as defined by Section 837.02, F.S.A., and by the court sentenced to serve a period of seven years at hard labor in the State Prison. He has perfected an appeal here and contends: (1) that the evidence is legally insufficient to sustain the verdict of the jury and judgment based thereon; (2) that the admission into evidence, over objections of counsel, of the testimony and record, with exhibits, offered by the State when the appellant was on trial in the same court for the crime of grand larceny was erroneous; (3) that the cross examination by the County Solicitor of the defendant below on the proceedings of criminal prosecution for the crime of grand larceny was harmful error; (4) that alleged prejudicial remarks by the County Solicitor to the jury during the progress of the trial were error.
It appears from the testimony that the appellant had been tried in the Criminal Court of Record of Duval County, Florida, and acquitted of the larceny of $1286.63, property of a co-partnership trading as Southern Truck Lines. The State contended in the case at bar that Dudley W. McKay, Jr., committed perjury when testifying in his own behalf during the progress of the grand larceny trial in which he was by the jury found not guilty.
It was the State's contention in the court below and is here that the following testimony was false and willfully given by the appellant when testifying in his own behalf when being tried under the grand larceny charge viz:
"I have examined check number 2132 in the sum of $470.00 (meaning State's Exhibit No. 2, in the trial of the cause aforesaid). It was for a balance due Younce Service Station (meaning a balance due one Fred H. Younce, of Charlotte, North Carolina, by Charles I. Myers, John Marshall and Dorothy C. Green, co-partners, trading as Southern Truck Lines). That check was drawn to me specifically for the purpose of settling that account. I made the check payable to myself instead of to Mr. Younce under the direction of Mr. Marshall and Mr. Myers. Mr. Younce came to Jacksonville (meaning Jacksonville, Florida) for it and went to the Florida National Bank with me and got the money. The entire amount of that check was paid to Mr. Younce. I took a receipt from Mr. Younce. It is in the file (meaning the file of the said Southern Truck Lines). I told Mr. Marshall (meaning John Marshall) that Younce was down there (meaning that Fred H. Younce was in Jacksonville, Florida). * * *"
In the perjury case now before us the County Solicitor introduced into evidence a transcript of the record and testimony, inclusive of exhibits, among which was a check for $470.00 issued by the Southern Truck Lines and prepared for the signatures of the company's officials by the appellant employed as a bookkeeper. Fred H. Younce and Leonard McLauren were called as witnesses for the State and testified that the $470.00 was not delivered by the appellant on the 7th or 8th of January, 1946, in Jacksonville, Florida, and did not on said date go with the appellant to the Florida National Bank and cash the check; neither was a receipt for the money signed and delivered to the appellant in Jacksonville, *Page 700
Florida, because at the time the witness Younce was in Charlotte, North Carolina.
We have given careful consideration to the several questions and assignments argued here for a reversal; the cited authorities in support thereof have been examined and it is our conclusion that the appellant has failed to show reversible error.
Affirmed.
THOMAS, C.J. and TERRELL and HOBSON, JJ., concur.
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330 S.W.2d 140 (1959)
STATE of Missourl ex rel. Bernard W. MURPHY, Relator,
v.
Hon. Robert L. ARONSON, Circuit Judge, Respondent.
No. 30312.
St. Louis Court of Appeals, Missouri.
December 15, 1959.
*141 Richard M. Stout, Philip M. Sestric, St. Louis, for relator.
Everett Hullverson, Orville Richardson, James E. Hullverson, William Mason, Jr., St. Louis, for respondent.
RUDDY, Judge.
This is an original proceeding in prohibition. Relator prays for a permanent writ prohibiting respondent, Hon. Robert L. Aronson, a Judge of the Circuit Court of the City of St. Louis, from proceeding to hear and determine a motion for alimony pendente lite filed in a divorce action, wherein relator was plaintiff, and to prohibit respondent from proceeding further in said cause. It is the contention of the relator that an order of the respondent setting aside a divorce decree previously entered is null and void.
On August 29, 1958, relator instituted a suit for divorce against his wife, Rosa Lee Murphy. Morris B. Kessler was the attorney for the relator in the divorce proceeding. On September 19, 1958, the defendant, Rosa Lee Murphy, entered her appearance in said divorce action and waived the issuance and service of summons upon her. She filed no answer. On October 21, 1958, an order of default and inquiry was entered and the case was set down for hearing on November 5, 1958. On the last mentioned date the divorce suit was heard before the respondent sitting as Judge of one of the Domestic Relations Divisions of the Circuit Court of the City of St. Louis. The relator appeared with his witnesses but defendant failed to appear. After hearing the relator and his witnesses, the respondent entered a judgment and decree of divorce in favor of relator. No motion for new trial was filed. Up to this point there is no dispute as to the facts. After the decree of divorce was entered the record presents only one fact issue. This involved what was said in a telephone conversation between the respondent and Morris B. Kessler, attorney for the plaintiff at the divorce hearing. At the time of the oral argument in this court it was stipulated by the attorneys for relator and respondent that the fact issue be submitted on the affidavits of respondent and Morris B. Kessler, which had been executed by them and filed in this proceeding.
We will state verbatim the portions of the affidavits covering the respective versions of the conversation that took place between respondent and Morris B. Kessler and will state verbatim other portions of the affidavits where deemed necessary. The balance of the respective affidavits will be summarized.
In the affidavit executed and filed by respondent, Hon. Robert L. Aronson, after reciting the steps leading to the entry of the decree of divorce, he stated that after recessing court during the late morning of December 2, 1958, he found a note on his desk asking him to call a certain man at the telephone number indicated on the message, which proved to be the number of the Streckfus Steamers. The respondent further stated that the man told him relator, Bernard W. Murphy, plaintiff in the divorce action, worked for the Streckfus Steamers; that Mr. Murphy had not told them of the divorce suit; that Mrs. Murphy had visited their office and had asked them questions about the divorce suit "that she heard he had instituted against her"; that they (the people at the Streckfus Steamers) "were fearful that Mrs. Murphy did not understand whatever was happening and that they feared perhaps she was being imposed upon." Respondent *142 further stated that he told the person he did not recall the case and would send for the file and call him again. Respondent then stated that after examining the file he called the man again and told him the date of the entry of the decree and asked the man if Mrs. Murphy had an attorney and was told that so far as the man knew Mrs. Murphy had no attorney. Respondent then stated in his affidavit:
"that after speaking to this man at Streckfus Steamers Company, I called Mr. Morris B. Kessler, the attorney for plaintiff, on the telephone at his office, this being done during the same afternoon of Tuesday, December 2; * * * I told Mr. Kessler that I had received this call from a man at Streckfus Steamers, but without mention of the name of the man; and that the heads of that company were concerned that Mr. Murphy might be imposing on his wife because she seemed to them not to be capable of understanding what had happened in the case and that I felt it my duty before the expiration of thirty days from the time of the entry of a decree, to set aside the decree and resume the matter under submission; then if Mrs. Murphy obtained an attorney, Mr. Kessler could talk to such an attorney and perhaps the decree would be reentered without additional evidence after the two attorneys had conferred; I further told him that I was planning to leave the City to attend a meeting in New York City scheduled for December 4 and would depart by plane after court on December 3, the next day, so that I was calling him then while I still had a full day before my departure to explain that I thought the proper administration of justice required me to set aside the decree until there could be further investigation or time for an attorney to be engaged for Mrs. Murphy; that Mr. Kessler told me that if I felt I wanted to set aside the submission, it was perfectly all right with him, because no suggestion of advantage being taken of the defendant should be disregarded; he further said that he was certain Mrs. Murphy had been fairly dealt with, because a piece of property was to be transferred to her by the agreement of the parties; that he had told Mr. Murphy not to deliver the deed to Mrs. Murphy until thirty days had passed, and that he was certain that the deed had not yet been delivered and that as a result no harm could come from the setting aside of the decree; again he assured me that if I believed such action as I suggested was the right thing to do, I should proceed to take such action; that after thus speaking with Mr. Kessler, I entered an order on the same Second of December, 1958, reading as follows: `On Court's own motion, decree of November 5, 1958 is set aside and vacated, and cause is taken as re-submitted.' Signed, `Robert L. Aronson, J.';
"That, thereafter as appears from the court file, on December 5, the firm of Hullverson, Richardson, Hullverson & Jeans entered appearance as attorneys for defendant (this action having been taken while I was out of the city); that on my return I noted the minute of this entry by counsel, and this was the first time the name of said attorneys or any of them had been mentioned in the course of this litigation; and no representative of said firm had ever contacted me concerning this case; that I next saw Mr. Kessler in the court room on his appearance in another case and asked if he and the Hullverson firm were having any discussions so that I might know what to do with the Murphy case; I understood from his answers that they were in contact with each other;
"That on January 16, 1959, at the request of the attorneys for the defendant, *143 a `Motion for Allowance Pendente Lite' was listed on the motion docket of the Court; that Mr. Kessler then asked leave to withdraw as attorney for plaintiff * * *."
In the affidavit executed by Morris B. Kessler, adopted by relator and incorporated by relator as a part of his reply to respondent's return, he stated he was retained by Bernard W. Murphy to prosecute the divorce action. His version of the telephone conversation with Judge Aronson was stated as follows:
"At approximately the hour of 4:00 P.M. on the 2nd day of December, 1958, I received a telephone call at my office. The caller identified himself as Judge Robert L. Aronson and I have no reason to disbelieve that the caller was Judge Aronson. He stated in this call that he understood from information furnished to him by someone at Streckfus Steamers that Mrs. Murphy had been imposed upon in the divorce suit, that there was some question concerning her mental condition, and that he was setting aside the divorce decree. I stated to the Court that it was within his power to set aside decrees within 30 days of the date of their rendition, that being the law as I understood it, but stated that the fact was that Mrs. Murphy was taking advantage of Mr. Murphy, if anyone was being taken advantage of. The Judge stated that he was not asking me, that he was telling me that he was setting aside the divorce decree. I did not at any time consent to the setting aside of said divorce decree, nor was I authorized by Bernard W. Murphy at any time to consent to the setting aside or vacating of said divorce decree."
It is admitted by relator that Morris B. Kessler withdrew as attorney for him in the divorce action.
As shown by affidavit of respondent, an order setting aside the judgment and decree entered November 5, 1958, was entered on December 2, 1958, and respondent ordered the cause resubmitted. On December 5, 1958, the firm of Hullverson, Richardson, Hullverson and Jeans entered their appearance as attorneys for the defendant in the divorce action, and on December 17, 1958, said attorneys filed a Motion for Alimony Pendente Lite and Attorneys' Fees in said action.
In view of our ruling, other matters and events which occurred subsequent to December 2, 1958, need not be related.
Relator contends that respondent had no jurisdiction to vacate the divorce decree entered in his favor on November 5, 1958, without first giving relator reasonable notice and an opportunity to be heard.
Relator does not challenge the power and jurisdiction of respondent to set aside the divorce decree on his own initiative. He concedes that under the provisions of Supreme Court Rule 3.25, 42 V.A.M.S., the trial court retains control over judgments during the 30 day period after entry of judgment and may reopen its judgment for good cause within that time.
As pointed out above, relator contends that this power and jurisdiction conferred on the court under the aforementioned Supreme Court Rule is subject to the qualifications that the trial court give to the parties reasonable notice and an opportunity to be heard on the new matter or issue inducing the court's intended action. There can be no question about the duty of the trial court to give the parties reasonable notice and an opportunity to be heard. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347 and Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711.
Relator in his first point takes the position that under the circumstances present when the respondent undertook to *144 set aside the divorce decree, the reasonable notice called for should have been in writing and served on the relator. He holds a written notice is necessary when notice has not been formally waived in open court. He admits that he has been unable to find any statutory direction for written notice. However, relator points to the provisions of Section 1.190 R.S.Mo.1949 (1957 Supp. Laws of 1957, p. 587, Sec. 1) 3 V.A.M.S. This section of the statutes deals with the methods of service whenever any of the statutes of this state require or imply that a notice shall be given. It has no application to the instant situation. Relator admits there is no statutory direction for service of notice under the instant circumstances.
Relator endeavors to find some support for his contention in the cases of State ex rel. Davidson v. Caldwell, 310 Mo. 397, 276 S.W. 631 and Miller v. Prough, 203 Mo. App. 413, 221 S.W. 159. Both cases involved statutes that had affirmative requirements of notice. Both hold that when notice is required under the statute, personal notice is intended, holding however that personal notice does not mean that notice must be in writing. The case of Miller v. Prough, supra, does not hold that written notice is required when the notice must be given pursuant to a statute. It does hold that when the statute requires a notice to be filed or served, without stating it should be in writing, that the requirements would imply that the notice must be in writing.
The case of Miller v. Prough, supra, was an action to recover a statutory penalty of $1 for every day the defendant refused to kill his dog "after notice." The action charged that defendant's dog was guilty of killing sheep owned by plaintiff. The court said: "There is no statute applicable to the matter now under consideration which says notice must be in writing. The word `notice' is not a technical word, and, while it can have various meanings, yet `the meaning to be given it by the courts is to be controlled largely by the context and by the purpose of the enactment.'" 221 S.W. loc. cit. 162. The court refused to interpolate the word "written" into the statute. Plaintiff had orally demanded of defendant that he kill the dog. Plaintiff recovered a judgment in the trial court which was affirmed on appeal. We see nothing in the two cases relied on by relator that in any way supports his contention.
The case of Jackson County ex rel. Farley v. Schmid, 141 Mo.App. 229, 124 S.W. 1074, was an action by a wife against a dram shop keeper for selling intoxicating liquors to her husband after she had orally notified the dram shop keeper not to sell her husband any more intoxicating liquors. The statute, Rev.St.1899, § 3017, authorized recovery if the dram shop keeper "shall have been notified by the wife" not to sell intoxicating liquors to her husband, an habitual drunkard. The court held that oral notice was a sufficient compliance with the statutory requirement of notice.
Notice in a legal sense includes a situation where information concerning a fact is actually communicated to a person. Such information is regarded as equivalent in its legal effects to full knowledge of the fact. The term "notice" without a further qualifying phrase, does not involve the idea of great formality. 66 C.J.S. Notice § 2, p. 635.
There is and can be no contention by relator that his attorney did not receive notice of the court's intended action. The gist of relator's contention is that the notice given did not meet the requirements of "reasonable notice." Reasonable notice is defined to be such notice or information of a fact as may fairly and properly be expected or required in the particular circumstances. Black's Law Dictionary, 4th Ed., p. 1211; 66 C.J.S. Notice § 8, p. 642.
Did the notice given convey the necessary information and was it given *145 timely under the particular circumstances facing the respondent? The first part of the question must be answered in the affirmative. The affidavit of Morris B. Kessler indicates clearly he was informed of the intended action of the respondent. As to the timeliness of the notice, respondent's affidavit shows that he called the attorney for the relator immediately after learning the information that caused respondent's action. There was no delay and we think respondent notified the attorney for relator as promptly as the circumstances permitted.
The purpose of the law in requiring notice is that the party notified has an opportunity to be heard, therefore, the notice required should be given in such time as to permit an opportunity to be heard. Respondent in his affidavit stated that he told the attorney for relator that he "was calling him then while I still had a full day before my departure to explain that I thought the proper administration of justice required me to set aside the decree * * *." This was the equivalent of a full day's notice, which we think was a reasonable notice. Reasonable notice is one that provides an "Opportunity for a litigant to present his views as to the matters instantly before the court which may affect his rights * * *." Hoppe, Inc. v. St. Louis Public Service Co., 235 S.W.2d loc. cit. 350. In the case of Sterling Manufacturing Co. v. Hough, 49 Neb. 618, 68 N.W. 1019, loc. cit. 1020, it was said: "A reasonable time is such that the party notified will have ample time to prepare himself, and be able to be present at the time and place of hearing."
In the case of Baker v. Baker, Mo.App., 274 S.W.2d 322, the court examined the purpose of reasonable notice and in a fine opinion that indicates an exhaustive examination of cases and other authorities, found a one hour oral notice sufficient under the circumstances. The hearing involved in the Baker case was for the purpose of modifying a decree of divorce. In the divorce action before the respondent in the instant proceeding the intended action was to vacate a decree so that further investigation could be made. The Supreme Court in the case of Kleinschmidt v. Hoctor, 361 Mo. 29, 233 S.W.2d 649, a habeas corpus proceeding, held that two hours' notice given to petitioner of insanity hearing was reasonable under the circumstances. We rule that the notice given by respondent to relator's attorney in the instant proceeding satisfied the requirement of reasonable notice.
In the next point urged by relator he contends respondent exceeded his jurisdiction by vacating and setting aside the decree of divorce without giving him an opportunity to be heard. A determination of this point seems to depend on which of the two affidavits we adopt. Judge Aronson, respondent herein, is known to this court and is considered by us as one possessed of impeccable character. The same must be said by us about Morris B. Kessler, the attorney involved. The only explanation we can give about the apparent conflict in the two affidavits, as to what was said on the occasion in question, is that it was the result of a misunderstanding by the attorney for the relator of the court's intention and position in the matter. Our determination to adopt the affidavit of the respondent is not based on the credibility of the respective affiants. The statements in the affidavits present little conflict when closely analyzed. However, we treat the affidavit of the respondent in the same manner as if he had formally attached it to his order of December 2, 1958, setting aside the divorce decree. We consider the affidavit of the respondent as an explanation or narration of what occurred in the course of performing his judicial duties. If he had attached a similar statement to his order when made December 2, 1958, we would have it before us now as a part of the proceedings in the divorce action and would accord it *146 full consideration. Adopting the affidavit of respondent, as we do, we find that relator was given an opportunity to be heard.
The Hoppe case, supra, relied on by relator, merely provides that an "opportunity" to be heard be accorded the party notified. Obviously, if the party notified consents to the entry of the intended order of the court, no further action is required of the trial judge. He has sufficiently complied with the requirement if he accords an opportunity to be heard. There is nothing in the Hoppe case or the other cases cited herein that makes it mandatory to hold a hearing when consent is given to the court's intended action. An examination of the affidavit of the respondent shows that the attorney was told by respondent that he was calling while respondent "still had a full day" before his departure for New York City. This language indicates respondent was giving relator an opportunity to be heard within the 24 hours if such a hearing was desired. The parts of respondent's affidavit that indicate relator consented to the court's order and waived an opportunity to be heard are contained in the following statements: "Mr. Kessler told me that if I felt I wanted to set aside the submission, it was perfectly all right with him, because no suggestion of advantage being taken of the defendant should be disregarded"; "again he assured me that if I believed such action as I suggested was the right thing to do, I should proceed to take such action; * * *." There is nothing in these statements that indicates a desire for an opportunity to be heard, rather they show full consent to the court's intended action and, therefore, a waiver of the right to be heard.
In the case of Baker v. Baker, supra, a complaint similar to the one made by relator in the instant proceeding was made by the defendant. In the Baker case defendant charged that he "was not afforded an opportunity of appearing before the court, presenting testimony, (and) refuting and impeaching the statements made by plaintiff's attorneys." [274 S.W.2d 327.] It was conceded by defendant that his counsel did appear before the court but made no effort to present testimony or to indicate that he wanted to be heard. The court in answering this contention said: "There being no suggestion that counsel then indicated any such desire, certainly we should not and cannot indulge an assumption that the court would have refused any reasonable request by counsel. For, in the absence of proof to the contrary, there is always a presumption of jurisdiction and right action by a court of general jurisdiction." 274 S.W.2d loc. cit. 327.
While the attorney for relator states in his affidavit that he did not consent to the setting aside of the divorce decree, we think it significant that the affidavit fails to show he asked for an opportunity to be heard or indicated any such desire. We feel certain that had he requested such a hearing the court would have granted same. What other purpose did the court intend to serve when he told the attorney for relator that he was leaving for New York the next day after court and was calling while he still had a full day before his departure? We think it is manifest that respondent gave the relator an opportunity to be heard. Therefore, we conclude that this point relied on by relator must fail.
In the remaining point relied on by relator he contends the authority of Morris B. Kessler as his attorney terminated when the decree of divorce was entered and, therefore, the attorney could not waive any of relator's rights. Relator relies on two cases in support of his contention. Neither case presents facts analogous to those in the present proceeding. The cases relied on by relator are Burgess v. Burgess, 239 Mo.App. 390, 190 S.W.2d 282, and Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 1006, 173 S.W.2d 646. Both cases involved attempted service on an attorney of motions to modify decrees of divorce. The motions to modify were filed *147 long after the divorce decrees were entered. The court held in each case that a motion to modify the divorce decree was in the nature of an independent proceeding and that notice to the attorney of record in the respective divorce actions did not confer jurisdiction of the court over the party to be notified of the modification proceeding. The court in each case based its ruling on the finding that the relationship of attorney and client had ceased with the termination of the litigation. The courts did say in both cases that the notice to the attorney was not binding on his client "except notice of appeal, or of a similar proceeding, in that particular suit." The notice of the respondent given to the attorney for relator in the instant proceeding was in connection with a proceeding in the divorce case wherein Morris B. Kessler was attorney of record for the relator.
Another factor present in the instant proceeding shows that the relationship of attorney and client between Morris B. Kessler and relator had not terminated when respondent notified the attorney of his intention to set aside the decree of divorce. As shown by the affidavit of respondent, the attorney for relator told respondent that a deed transferring a piece of property to Mrs. Murphy was to be delivered after the termination of the 30 day period following the entry of the decree of divorce. The relationship of attorney and client would not be terminated until all the matters relating to the divorce suit were closed. In the case of Bybee v. S'Renco, 316 Mo. 517, 291 S.W. 459, loc. cit. 462, the Supreme Court said: "It is our further opinion that, when the relation of attorney and client is once established, it continues until the matters connected with the lawsuit have been completely closed." All of the matters connected with the divorce action of relator against his wife had not been closed, therefore, the relationship of attorney and client continued.
In accordance with the views herein expressed, our preliminary rule of prohibition, heretofore issued, should be quashed. It is so ordered.
WOLFE, P. J., and ANDERSON, J., concur.
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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/3851571/
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Defendant was convicted by a jury of the murder of his wife, Antonette Pasco, with the penalty fixed at life imprisonment. He appeals from the judgment and sentence entered upon the verdict.
He lived with his wife and four children in three rooms at No. 1724 Railroad Street, in Coal Township, Northumberland County. Residing in the same house were his father-in-law and his wife's sister. Other relatives of his wife lived on the third floor of the house. Defendant quarreled frequently with his wife and her relatives.
From our review of the testimony it appears that on the evening of October 14, 1937, the defendant returned to his home from work and engaged in an altercation with his wife concerning some money received from the relief authorities. Defendant demanded the money and his wife refused to give it to him, whereupon he took her pocketbook and said that he was going out to spend the money. His wife insisted upon accompanying him. As they were leaving the house the defendant was heard to utter threats against his wife. She bade good-bye to her children and she said to them that she might not *Page 442
come back again. The defendant remarked that he would not kiss his children good-bye because he knew that he was coming back.
As they left the house he said to his wife "this is the last ride you are going to get." About ten o'clock p. m. defendant, with his wife seated in the front seat of the automobile, drove away from the house. There is evidence that he was under the influence of liquor at the time.
About midnight defendant returned home with his wife, and said to members of the family that she was intoxicated. He secured a blanket which he placed over her while she remained outside in the automobile, apparently asleep. After conversing briefly with his eleven-year-old son, he went to the car and again drove away with his wife, proceeding in the direction of Shamokin, and thence to an isolated mountain section of the county where he stopped the car and drank bottles of beer which he had purchased. Again he drove the automobile to his home, arriving there about three o'clock in the morning. He entered the house, while his wife remained in the front seat of the automobile. Defendant's sister-in-law and his son went to the car in an endeavor to persuade her to come into the house and go to bed. They were unsuccessful in their efforts to awaken her. The son reported that she was breathing hard and would not talk. Thereupon defendant went to bed and slept until about six o'clock in the morning, at which time he aroused his son and directed him to awaken his mother. When the son reached the automobile he observed that his mother's lips were blue, and he suggested to his father to drive her to the home of a doctor in Shamokin. They did so, and when the doctor examined the wife he pronounced her to be dead. While the automobile was parked before the doctor's residence the defendant was observed by his son to take something from his pocket and place it behind the cushion of the front seat of the car. After defendant's arrest the police found a blackjack, *Page 443
admitted to be the property of defendant, back of the cushion where he was seen to have placed it.
The medical testimony revealed that the wife died as a result of a fractured skull and a brain hemorrhage produced by the application of external force. There was a wound about the size of a half dollar at the base of her skull behind the right ear, which appeared to have been inflicted by a blunt instrument. There were no other marks of violence upon her body.
The defendant asserts that his wife received the injury that caused her death as the result of striking her head on the concrete highway when she jumped or fell from the automobile shortly before midnight during their first automobile ride that evening. The defendant states that while he was driving his car at a speed about twenty-five miles an hour, between Shamokin and Mount Carmel, looking into the mirror he saw his wife fall out of the car and land on her back in the center of the concrete highway, immediately behind the automobile. Three witnesses testified that they assisted defendant to lift his wife, who weighed over two hundred pounds, into his automobile. One of the witnesses testified that she was unconscious at the time. The defendant insists that his wife spoke to him and said that she was all right and did not wish to go to a doctor.
It is argued on behalf of defendant that there was not sufficient evidence of his commission of the crime to sustain a conviction. It is fundamental that when a charge of crime is based upon circumstantial evidence, the facts and circumstances must not only be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence. SeeCom. v. Bardolph, 314 Pa. 579; Com. v. Benz, 318 Pa. 465, 472;Com. v. Bone, 64 Pa. Super. 44. The application of this established principle of law does not stand in the way of conviction in the present case. While the Commonwealth's evidence is largely circumstantial, it is, in our opinion, sufficient to sustain the guilt of the defendant. *Page 444
The defendant many times threatened the life of his wife, and it is not disputed that they quarreled on the evening in question, as well as on numerous prior occasions. It is conceded that he owned a blackjack, capable of inflicting the wound that caused her death. That it was in his possession during the night in question is established by the testimony of a witness to whom he exhibited it in a saloon, as well as by the testimony of the police officers who found it in the automobile, and by his son who saw him place it there shortly before the doctor pronounced his mother dead. Moreover, it appears that the wound inflicted upon her was caused by a weapon of this character. That defendant had the disposition to commit the crime is evidenced by the numerous threats directed against his wife. These facts point to a wilful, deliberate and premeditated killing. They harmonize with the conclusion of the defendant's guilt, and are at variance with his contention that her death was accidental: Com. v. Coontz, 288 Pa. 74; Com. v.Lockhard, 325 Pa. 56. In our opinion the testimony was sufficient to sustain the jury's verdict, and it is well settled that in such cases the judgment of this Court will not be substituted for that of the jury: Com. v. Wendt, 258 Pa. 325; Com. v. Thompson, 321 Pa. 327.
The defendant complains of the manner in which the trial judge (1) supervised the selection of the jurors, (2) his rulings on the admission of evidence, and (3) portions of his charge to the jury. All of his contentions are without merit, and some of them are trivial in nature.
It is asserted that the court below abused its discretion in excusing ten jurors of the original panel from jury service because of illness, before the case was called for trial, and in failing to state in open court that such excuses had been made. This objection of defendant cannot be sustained. It is not the right of the defendant to require that the whole jury panel be in court at the *Page 445
time his case is called for trial. The right to a trial by an impartial jury does not entitle the defendants to the service of particular jurors. Whether prospective jurors be excused before or at the trial is within the discretion of the trial judge. If the jurors be excused prior to trial it is sufficient if such action and the reason therefor "be stated in open court, so that the fact that the excuse was judicially passed upon and found to be sufficient should appear on the record":Com. v. Payne, 205 Pa. 101, 103. Such was the method followed by the trial judge in the present case.*
Defendant claims that the trial judge erred in sustaining certain of the Commonwealth's challenges for cause. We have reviewed the answers of the proposed jurors whose exclusion is assigned as error. With respect to one of them, the juror in response to questioning stated in substance that he had formed an opinion of the guilt or innocence of the defendant, and that it would interfere with his verdict. Other jurors were challenged for cause upon the ground that they possessed conscientious scruples against capital punishment. It is essential in the trial of cases, particularly where there is a possibility of a death penalty, to secure jurors who are free from prejudices or fixed opinions with respect to the matters at issue, in order that an impartial verdict may be reached. Moreover, it is well settled that the challenge of a proposed juror for cause is addressed to the discretion of the trial judge, and his exercise thereof will not be reversed unless a palpable abuse appears: Com. v. Curcio, 218 Pa. 327; Com. v.Sushinskie, 242 Pa. 406; Com. v. Gelfi, 282 Pa. 434; Com. v.Peronace, 328 Pa. 86. *Page 446
The contention of the defendant in this regard cannot be upheld.
Defendant claims that it was error to admit in evidence the blackjack found in defendant's automobile, because the Commonwealth failed to connect it with the defendant and the crime. It seems to us that the record fully sustains the action of the court below. The ownership of the weapon is admitted. That the fatal blow could have been struck by it is manifest. The Commonwealth linked the defendant with the particular weapon in that it was in his possession at about the time the crime was committed as well as immediately thereafter. In addition to which there was the evidence of defendant's threats to his wife that "I might use it on you yet": Com. v. James,294 Pa. 156; Com. v. Lockhard, supra; Com. v. Peronace, supra.
The assignments of error relating to the qualification by the trial judge of two of the defendant's points for charge must also be dismissed. While the points presented by the defendant may have stated correctly applicable principles of law, the amplification of the questions of reasonable doubt and intoxication as a defense, which were embraced therein, were free from error on the part of the trial judge. His explanation of them tended to clarify the points in the minds of the jury rather than to prejudice the defendant. A party is not entitled to a categorical affirmance of requested points for charge, even though the applicable law be correctly stated, if the trial judge, in the exercise of a sound discretion, believes an explanation is required, so that the jury may better comprehend their meaning: Pistorius v. Com., 84 Pa. 158; Com. v. Loesch,153 Pa. 502.
A review of the charge of the trial court does not disclose any error that would justify a reversal. It is manifest that the trial judge fully performed his duty clearly to instruct the jury upon the law, with adequate and sufficient reference to the facts of the case under consideration. It was not error to refer in the charge to the *Page 447
defendant's blackjack as a "deadly weapon," or to charge that malice could be implied from the use of a deadly weapon against a vital part of the body, and that an intention to kill could be inferred from such use of a deadly weapon. Such a direction follows our well settled principles: Com. v. Drum, 58 Pa. 9;Com. v. Pezzi, 284 Pa. 85; Com. v. Lockhard, supra.
The remaining assignments are without merit. The evidence discloses the essential elements of murder in the first degree. The penalty is warranted by the record, and the sentence must stand. Accordingly all assignments of error are overruled.
The judgment is affirmed.
* It appears from the record as follows: "The Sheriff has made return that the ten jurors on the regular panel who have not been called are reported as ill. Doctors' certificates have been presented to the court and the court is satisfied that the jurors not in attendance who are jurors on the regular panel are ill and therefore not able to be in attendance in court."
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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/3387549/
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The writ of error brings for review a judgment on demurrer sustained to amended declaration in five counts.
Counts 1 and 2 showed on the face thereof that they were based on an alleged cause of action which had been pleaded by the plaintiff against the identical defendants in a former suit between the same parties as plaintiff and defendants, respectively. That the issues presented had been determined in the former suit against the plaintiff; that the judgment against the plaintiff in the former suit had become absolute and that the issues sought to be presented by these counts of the declaration have become by judgment res adjudicata. See Gray v. Gray, 91 Fla. 103,107 So.2d 261; Jones v. Morgan, 59 Fla. 542, 52 So.2d 140; Prall v. Prall, 58 Fla. 496, 50 So.2d 867.
Paragraph 3 of Section 2928 R.G.S., 4648 C.G.L., has no application here.
The defense of res adjudicata may be raised by demurrer *Page 746
where facts supporting it appear on the face of the pleadings. 34 C.J. 1058; Keen v. Brown, 46 Fla. 487, 33 So.2d 401.
The third, fourth and fifth counts of the declaration are based on an alleged conspiracy to commit perjury and the alleged commission of perjury by the defendants, husband and wife, in the trial of the former suit to defeat the action of plaintiff.
Plaintiff in error conceded that such an action is condemned as untenable by the great weight of authority. In 26 R.C.L 770, it is said:
"It is well settled that the defeated party to an action cannot maintain an action against one whose perjured testimony brought about the adverse verdict. This is usually placed upon the ground that public policy and convenience require the establishment of this rule, or that to permit the action would involve a collateral attack on the judgment, which cannot be permitted even as to one not a party. Lord Holt gave as a further reason for denying a recovery that perjury was a crime of so high a nature that it concerns all mankind to have it punished, which could not be done in an action on the case."
In Catlett v. Chestnut, et al., 108 Fla. 475, 146 So.2d 547, we recognized this principle, saying:
"Public policy and the safe administration of justice, require that Circuit Judges, witnesses and parties to pending legal controversies, be privileged against any restraint sought to be imposed upon them by suits for damages brought against them for alleged conspiracies charged against them concerning the subject matter of pending litigation, the effect of the trial of which actions for conspiracy, will simply amount to a collateral retrial of the plaintiff's pretended rights which it is alleged were intended, by means of the asserted conspiracy, to be defeated. *Page 747
"The foregoing rule is a necessary corollary to be deduced from the adjudicated cases in which it has been uniformly held, by both the English and American Courts, that an action at law for damages against an adversary party or his witnesses, for allegedly procuring a verdict and judgment by fraud or perjury, cannot be maintained while such verdict and judgment remain in force. Dunlap v. Glidden, 31 Maine 435, 52 Am. Dec. 625; Stevens v. Rowe, 59 N.H. 578; Lyford v. Demerritt, 32 N.H. 234; Nicholson v. Nicholson, 113 Ind. 131, 15 N.E. 223."
So, the judgment should be, and is, affirmed.
So ordered.
WHITFIELD, TERRELL, BROWN and CHAPMAN, J.J., concur.
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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/1713270/
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330 S.W.2d 522 (1959)
Stella R. LOPEZ et vir, Appellants,
v.
ASSOCIATED EMPLOYERS INSURANCE COMPANY, Appellee.
No. 13537.
Court of Civil Appeals of Texas, San Antonio.
December 2, 1959.
Rehearing Denied January 6, 1960.
*523 G. Woodson Morris, San Antonio, for appellants.
Carl Wright Johnson, Alfred W. Offer, William R. Simcock, San Antonio, for appellee.
MURRAY, Chief Justice.
This is a workmen's compensation proceeding. Mrs. Stella Lopez, wife of Margarito Lopez, is the alleged injured employee, Jacob E. Decker & Sons, Inc., the employer, and Associated Employers Insurance Company, the insurance carrier.
A jury found in answer to question No. 1, that Stella Lopez did not sustain an accidental injury on November 19, 1956, and in answer to question No. 15, that Stella Lopez' incapacity was solely caused by preexisting ailments, diseases and infirmities.
The court rendered judgment that Stella R. Lopez and her husband take nothing, and they have appealed.
Appellants' first point is as follows:
"It was prejudicial error to overrule plaintiffs' motion made after both sides had rested, to submit to the jury issues only inquiring of the duration of plaintiff's injury, and also in pursuance of its action, to submit issue No. 1 inquiring as to whether plaintiff had sustained an accidental injury, and, following that, issue No. 2 as to whether, if so, such was sustained in the course of her employment with her employer."
We overrule this point. It is based upon the contention that appellee had admitted that Stella Lopez had sustained an accidental injury on November 19, 1956, by thereafter paying her fifteen weekly payments of $25 each, and was therefore estopped to deny such fact. It is well settled in this State that an insurance carrier is not estopped to deny liability by the making of weekly workmen's compensation payments to a claimant pending further investigation. Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991; Superior Insurance Co. v. Griffin, Tex.Civ. App., 323 S.W.2d 607; Brooks v. Lucky Steel Co., Tex.Civ.App., 308 S.W.2d 273; Davis v. Texas Employers Ins. Ass'n, Tex. Civ.App., 257 S.W.2d 755; Texas Employers Ins. Ass'n v. Bowen, Tex.Civ.App., 227 S.W.2d 846.
In Southern Underwriters v. Schoolcraft, supra, Judge Hickman, speaking for the Texas Commission of Appeals, while discussing this very question, made the following pertinent remarks:
"Courts should encourage and not discourage the prompt payment of compensation when an injury is sustained by an employee, and a holding that payments made pending the final investigation of the claim would be binding upon the insurer both as to liability and rate of compensation regardless of what that investigation should disclose would manifestly discourage prompt payments following injuries." [138 Tex. 323, 158 S.W.2d 994.]
The evidence was conflicting as to whether Stella Lopez had received an accidental injury on November 19, 1956, and it became the duty of the jury to weigh this evidence and pass upon its credibility, and the jury having done this and found that she did not receive such accidental injury, this Court is bound by such answer. It is true that Stella Lopez testified that she slipped and fell and injured herself, but she is an interested witness and the jury was *524 not compelled to accept her testimony as true. There is no other testimony that she fell and injured herself.
There was evidence to support the jury's finding in answer to Question No. 15, to the effect that Stella Lopez' incapacity was "solely caused by ailments, diseases and infirmities existing before November 19, 1956."
The jury's answer to either Question No. 1 or No. 15 would require a judgment that appellants take nothing.
The judgment is affirmed.
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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/3851871/
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William L. Delaney and Mary Delaney, his wife, executed and delivered to the Nanticoke National Bank of Nanticoke their joint and several promissory notes in the amounts of $4,500 and $14,500, under dates of July 28, 1930, and August 10, 1930, respectively. Upon default in payment of the notes, the bank sold various shares of stock, including fifty shares of the First National Bank of Nanticoke, owned by the wife as her separate property, which had been deposited as collateral security for the obligations, and it also took over the amount of a savings account standing in the wife's name, in both instances applying the proceeds to part payment of the indebtedness. The wife, who is the present appellant, brought an action of assumpsit to recover the value of her stock plus the amount of her savings account, together with interest from the date of the alleged conversion. Defendant filed an affidavit of defense raising questions of law, upon which, after argument, the court below entered judgment for defendant. Plaintiff appealed.
The pleadings disclose that the wife signed the notes in question as accommodation maker, receiving no part of the consideration, all of which was obtained by the husband and used by him in his separate business. The question for our consideration is, whether the bank was authorized to take the property of the wife to satisfy the obligation of the husband. We are of opinion the court below correctly resolved the issue in defendant's favor, and we accordingly affirm the judgment on the following excerpts from its opinion:
"The debts referred to in the statement of claim were the debts of plaintiff's husband. She was under legal disability to become accommodation maker, endorser or guarantor. The obligations given by her jointly with her husband were given to pay not her debts but his. They represented a liability which she was incapacitated from assuming and the form used in an effort to fix her liability is of no materiality: Real Estate Investment Co. v. *Page 137
Roop, 132 Pa. 496; Patrick Co. v. Smith, 165 Pa. 526; Wiltbank v. Tobler, 181 Pa. 103; Sibley v. Robertson, 212 Pa. 24. However, that a married woman may pledge her personal property to secure her husband's debts is undoubted: Kulp v. Brandt, 162 Pa. 222; Herr v. Reinoehl, 209 Pa. 483; Bartholomew v. Allentown National Bank, 260 Pa. 509, and we cannot conclude that plaintiff's power in this respect was affected by the fact that, at the time of pledging her securities, she also became accommodation maker on her husband's notes. She was incapable of assuming such obligation but the doing of what she had authority to do, to wit, pledge her securities, was not affected by the fact that she also attempted to assume an obligation (by signing her name to the notes) which she was incapacitated from assuming.
"As was said in Bartholomew v. Allentown National Bank, supra, at page 512: 'In pledging her securities for her husband's indebtedness, the appellant did what any married woman could have done for the last seventy years. She incurred no liability as accommodation endorser, maker, guarantor or surety and it is only such liability that she is still incapable of incurring. Her pledge of securities to the bank was an executed contract which she was undoubtedly authorized to make.' . . .
"By virtue of the language contained in the $4,500 note, the plaintiff pledged to the bank as security for the payment of any demands against her husband, the securities designated in said note and also any balance of her deposit account. This she was fully authorized to do, and we cannot avoid the conclusion that the pledging of the stock and of the bank balance, as security for payment of the two notes was as full and complete as though each note recited that the stock and bank balance had been pledged as security for its payment.
"Nor is the defendant liable to plaintiff because the bank stock was sold without notice to her, as her pledge to the bank specifically authorized this to be done. The statement contains no averment that in selling the stock *Page 138
the bank acted fraudulently or in bad faith, and in the absence of bad faith or fraud, no liability would attach because the full value of the stock was not realized. This was a risk which plaintiff assumed."
Judgment 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/4523359/
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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: S.L., A MINOR : No. 62 EAL 2020
:
:
PETITION OF: J.L., FATHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 7th day of April, 2020, the Petition for Allowance of Appeal is
DENIED.
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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/7640635/
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Affirmed.
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01-03-2023
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07-29-2022
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https://www.courtlistener.com/api/rest/v3/opinions/3843006/
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DECISION OF DISMISSAL
This matter is before the court on its own motion to consider whether Plaintiff may pursue the above-referenced appeal on an issue not raised in the original Complaint filed September 28, 2005. The court instructed the parties to address that issue by written memorandum. Both parties have filed briefs and the court, after due consideration, has concluded that Plaintiff may not raise the issue and that the case should be dismissed.
I. OVERVIEW AND BACKGROUND
Plaintiff filed a Complaint on September 28, 2005, appealing from an omitted property "assessment" for tax years 2000-01 through 2004-05. The Complaint asserts that the "notice is in error because [s]ubject property is not subject to tax under ORS 307.190(1) and OAR 150-307.190 (2), as the use of the property is `for personal use, benefit or enjoyment.'" (Ptf's Compl at 1.) The relief requested in the Complaint was a reduction in "the real market value" to $0. (Id. at 2.) That was one of many WorldMark appeals filed in this court involving properties in various counties and raising the issue of whether certain of Plaintiff's personal property was exempt from taxation.
Attached to that Complaint was a notice from Defendant dated August 3, 2005, advising Plaintiff "that taxes for the following tax years will be assessed: 2000, 2001, 2002, 2003, and 2004." (Id. at 4.) Defendant's notice further advised Plaintiff that Plaintiff should "contact our *Page 2
office by 5 p.m. on or before September 6, 2005 if there is any reason these corrections should not be made." (Id.)
Defendant responded to Plaintiff's Complaint by filing an Answer October 17, 2005. In its Answer, Defendant indicated that "the club is a business entity that is subject to personal property assessment and taxation." (Def's Answer at 1.) Defendant requested in its Answer that the court issue an order "confirming the assessment as established by the Klamath County Assessor." (Id.)
The case moved forward on the issue of whether the property qualified for exemption as personal property held and used for personal use and not for the production of income. Plaintiff was not successful in the prosecution of that issue. See e.g.,Worldmark, The Club, and Residence Club At Seaside OwnersAssociation, v. Department of Revenue, __ OTR __
(Opinion July 2010).1
Plaintiff notified the court by letter dated October 7, 2010, that it anticipated filing motions for dismissal involving many of the WorldMark appeals, but that there was an additional issue in the present case. Plaintiff requested that the court "reactivate" the appeal, which had been placed in abeyance pending the outcome of the appeal to the Regular Division of the Tax Court discussed above.
Plaintiff's representative Carol Lavine (Lavine), an attorney, advised the court during a November 23, 2010, proceeding that she was looking for the court to set dates for the occurrence of specific actions so that the case could move forward to resolution. Specifically, Lavine stated that the issue at this point was whether Defendant followed proper notice requirements under the omitted property assessment statutes, and that Defendant's representative had not responded to a *Page 3
request for information regarding the omitted property assessment notices. It is Lavine's contention that notice was improper because Defendant issued a notice of intent as required by ORS 311.219, but never issued the notice required by ORS 311.223 advising Plaintiff that the rolls had been corrected.
The court advised Lavine that that issue did not appear to be raised in the Complaint and she would have to file a motion to amend the pleading to raise that issue, or otherwise address the question of whether the issue has been properly raised. Lavine commented that the original Complaint was filed by a "taxpayer representative" who is not an attorney, and that that representative brought the appeal before she, Lavine, was retained to represent Plaintiff. Lavine stated she was retained after the Oregon Department of Revenue became involved in the WorldMark appeals and raised "all the procedural issues." However, the "procedural issues" raised in the Regular Division had to do with the question of whether the appeal was properly and timely filed, because those appeals were filed following orders of the county board of property tax appeals based on requests for reductions in value. The issue in the Magistrate Division of the Tax Court was whether the property was exempt from taxation, a matter not directly pertaining to value.
Lavine responded to this court's November 30, 2010, verbal directive by filing a Memorandum Re: Necessity For Amended Complaint (Memo). In that Memo, Lavine indicates that the Oregon Department of Revenue intervened in several of the Worldmark appeals and that those cases were ultimately specially designated to the Regular Division of the Tax Court.2 It was after the special designation that Lavine was hired to represent Plaintiff. Those cases were specially designated in 2009. See e.g., Worldmark The Club v.Lincoln County Assessor and *Page 4 Oregon Department of Revenue, TC 4910 (Sept 21, 2009). Lavine further states in her Memo that it was only after she was retained by Plaintiff "to represent Plaintiff in its opposition to Department's dismissal motions, [that] it came to Plaintiff's attention that Assessor may not have followed proper procedure in making the omitted property assessments at issue in the instant case." (Ptf's Memo at 2 (emphasis in original).) Plaintiff now seeks to challenge, or at least explore, the validity of Defendant's omitted property assessments made by Defendant in 2005.
II. ANALYSIS
Tax Court Rule-Magistrate Division (TCR-MD) 1 B requires that a Complaint contain "facts showing how the plaintiff is aggrieved by the order, act, omission, or determination; and the grounds upon which the plaintiff contends it should be reversed or modified." Plaintiff's Complaint in the instant matter, filed September 28, 2005, indicates that the appeal involves "Omitted" property, and asserts that the order or notice "is in error because [the] [s]ubject property is not subject to tax under ORS 307.190 (1) and OAR 150-307.190 (2), as the use of the property is `for personal use, benefit or enjoyment.'" (Ptf's Compl at 1.) A copy of the notice is attached to the Complaint.
The Preface to the Magistrate Division Rules state "[i]f circumstances arise that are not covered by a Magistrate Division Rule, rules of the Regular Division of the Tax Court may be used as a guide to the extent relevant. TCR 18A(1) requires that a pleading "shall contain * * *[a] plain and concise statement of the ultimate facts constituting a claim for relief * * *." That rule further requires that the claim include "[a] demand of the relief which the party claims." TCR 18 A(2). More importantly, recognizing that a party may have more than one claim or defense, TCR 16 B requires that "[e]ach separate claim or defense shall be separately stated. Within each claim alternative theories of recovery shallbe identified as separate counts." (Emphasis added.) *Page 5
TCR 16 C provides in relevant part: "[a] party may also state as many separate claims or defenses as the party has regardless of consistency and whether based upon legal grounds, equitable grounds, or upon both legal and equitable grounds."
In its Motion, Plaintiff notes that this appeal was initially filed by Greg Damico, who is a Certified Public Accountant (CPA), and not an attorney, and that the assessor was likewise represented by a non-lawyer. (Ptf's Mot at 1, 3.) Plaintiff argues that "the magistrate division is designed to make it easy for non-lawyers to resolve disputes," and that "it wasn't until Plaintiff required the services of counsel in a related case that the additional issue, that of proper statutory notice required by ORS 311.219 and 311.223, was discovered." (Id. at 3.)
The court does not believe that the interests of justice would be served by allowing parties not represented by attorneys to file pleadings requesting a specific form a relief (exemption from taxation), and then come back to the court some five years later, with legal representation, and challenge the sufficiency of the underlying notice that prompted the appeal, notwithstanding the fact that the case has been in abeyance pending the outcome of the same issue, argued by essentially the same parties in related cases, following unsuccessful rulings in both the Magistrate Division and the Regular Division of the Tax Court. The time to challenge the sufficiency of the notice was when Plaintiff filed its appeal in September 2005, rather than waiting until November 2010, after the related appeals were denied.
The court acknowledges that the rules of both the Magistrate Division and the Regular Division of the Tax Court provide for liberal construction of pleadings. However, to allow a party to file an appeal raising a single issue, one involving substance rather than procedure, and then assert a procedural challenge to the sufficiency of notice five years later is well outside the bounds of any view of liberal construction of a pleading. In this case, the effect of allowing Plaintiff to come along after-the-fact and challenge the notice could be a windfall for the *Page 6
Plaintiff, if the court were to strike the notice as invalid under the statute. That is so because adding property to the rolls based either on a clerical error or omitted property is limited to five years from the last certified roll and, in this case, would achieve for Plaintiff the result that Plaintiff sought unsuccessfully to attain by arguing that the property was exempt from taxation. The assessments at issue covered tax years 2000-01 through 2004-05, and those years are now beyond the reach of the statute. Seegenerally ORS 311.205(2)(a) and ORS 311.216(1) (2005).
The only mechanism available to Plaintiff at this juncture would be for the court to allow Plaintiff to amend the pleading to include the newly-raised issue challenging the sufficiency of the 2005 assessment notice. TCR 23 A only allows for the amendment of a pleading "by leave of court or by written consent of the adverse party." The court declines to grant Plaintiff leave to amend, and Defendant has filed a written objection, stating in part that "[t]he County objects to the filing of an amended complaint that is now five years old. The only claim brought by the Plaintiff in the 2005 complaint was exemption." (Def's Response at 1.)
Now, therefore,
IT IS THE DECISION OF THIS COURT that this matter be dismissed.
Dated this ___ day of March 2011.
If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to:1163 State Street, Salem, OR 97301-2563; or by hand delivery to:Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the dateof the Decision or this Decision becomes final and cannot bechanged.
This document was signed by Magistrate Dan Robinsonon March 1, 2011. The Court filed and entered this documenton March 1, 2011.
1 The case number assigned by the court to that matter was TC 4801. The instant appeal, Worldmark, The Club v. Klamath CountyAssessor, TC-MD No 050856B, was placed in abeyance on November 30, 2005, at the request of the parties and by Order of the Court, pending the outcome of that appeal (TC 4801), which had been assigned Magistrate Division case number TC-MD No 050521C (Control).
2 While several Worldmark cases were specially designated, the Magistrate Division did issue a decision in at least one case denying Plaintiff's claim that the personal property was exempt under ORS 307.190. Worldmark, The Club v. Lincoln County Assessorand Department of Revenue, TC-MD No 050521C (Control). *Page 1
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01-03-2023
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07-06-2016
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316 Md. 418 (1989)
559 A.2d 371
ALICE JOYCE FOY
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ET AL.
No. 106, September Term, 1988.
Court of Appeals of Maryland.
June 19, 1989.
Samuel M. Grant (David J. Preller, Sr., Preller and Preller, all on brief), Baltimore, for appellant.
Thomas M. Wood, IV (Peter F. Axelrad, William L. Reynolds, Brian L. Wallace, Frank, Bernstein, Conaway & Goldman, all on brief), Benson Everett Legg (Venable, Baetjer and Howard, both on brief), Baltimore, for appellees.
Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.
MARVIN H. SMITH, Judge, Specially Assigned.
We shall here hold that a trial judge erred when he entered summary judgment in favor of all defendants as to all counts of a complaint based on the fact that the subject matter was preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff had included a well-pleaded count in her complaint based specifically on ERISA. In the view we take of this case in the light of the way it reaches us procedurally we do not reach the interesting question of how the ERISA plan in question should be construed.
David Brian Fox, son of Mrs. Alice Joyce Foy, the appellant, died in a motorcycle accident on June 23, 1985. At the time of his death Fox was an employee of appellee Locke Insulators, Inc. Included in Locke's program of employee benefits was the opportunity to purchase various forms of insurance under the Insurance Plan for Hourly Employees. The insurance was underwritten by another appellee, The Prudential Insurance Company of America. It provided a group policy for Locke.
On January 15, 1985, Fox signed a form entitled "Locke Insulators, Inc. Personal Accident Insurance." The amount of insurance he chose was $150,000. Mrs. Foy was named as the beneficiary of the policy. Locke and Prudential accepted insurance premiums on the policy from January, 1985, to June, 1985, when Fox died. Fox never received notice from Locke or Prudential of any irregularity in his insurance policy.
Upon Mrs. Foy's application for death benefits after her son's death, Prudential paid $100,000 to her, but refused to pay the remaining $50,000. It tendered a check for $15.18 which represented the amount of premiums for the additional $50,000 in insurance coverage. Mrs. Foy has never cashed the check which is now held by her attorney.
Prudential and Locke assert that Fox was eligible for a maximum of $100,000 in personal accident insurance, and thus that the $150,000 policy was improperly issued. The maximum amount clause in question states in relevant part:
"Maximum amount ... shall not exceed either
"(a) The greater of (i) $100,000 and (ii) five times his annual earnings, or
"(b) $250,000."
The salary of Fox was between $18,000 and $19,000 per year at the time of his death. From this it is the contention of Mrs. Foy that the maximum amount of insurance was $100,000 plus five times the annual earnings, an amount in excess of $150,000. On the other hand, appellees contend that the maximum was $100,000 because the maximum was whichever was the greater, $100,000 or five times his annual earnings, with no more than $250,000 to be obtained in any event.
Mrs. Foy sued Locke and Prudential in the Circuit Court for Baltimore City. The complaint sought damages for common law breach of contract. Prudential asserted, among other defenses, that Mrs. Foy's claim was preempted by ERISA.[1] After Mrs. Foy completed her discovery she filed a motion for summary judgment as well as a second amended complaint adding an ERISA count. In due season a third amended complaint was filed which added Locke Insurance Plan for Hourly Employees, another appellee here, as a defendant and asserted an ERISA claim against it.
A hearing on the motion for summary judgment was held. Unfortunately, there appears to have been no court reporter present. The ruling of the trial judge, made in writing, reads in its entirety:
"Plaintiff's Motion for Summary Judgment DENIED as to all counts. Subject matter preempted under federal ERISA statute.
"Judgment entered in favor of all defendants as to all counts. Maryland Rule 2-501(e)."
This appeal followed. We issued a writ of certiorari on our own motion prior to a hearing in the Court of Special Appeals. Mrs. Foy concedes that ERISA preempts the original common law contract count.
It is asserted that the presence of an ERISA count was brought to the attention of the trial judge who heard the motion. It appears not to have occurred to counsel that a motion might have been filed specifically noting this fact and asking the trial judge to clarify his ruling.
Summary judgment procedure is not a substitute for a trial, but is merely a preview to determine whether there exists a factual controversy requiring a trial. Metropolitan Mtg. Fd. v. Basiliko, 288 Md. 25, 28, 415 A.2d 582, 584 (1980) (citing Impala Platinum v. Impala Sales, 283 Md. 296, 326, 389 A.2d 887 (1978), and White v. Friel, 210 Md. 274, 285-86, 123 A.2d 303 (1956)).
Where the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. Liscombe v. Potomac Edison Co., 303 Md. 619, 633, 495 A.2d 838, 845 (1985) (citing Brown v. Suburban Cadillac, Inc., 260 Md. 251, 255, 272 A.2d 42, 44 (1971)). If there is any genuine dispute as to any material fact, summary judgment would not properly be granted. Washington Homes v. Inter. Land Dev., 281 Md. 712, 716, 382 A.2d 555, 557 (1978). In Fenwick Motor Co. v. Fenwick, 258 Md. 134, 265 A.2d 256 (1970), Judge J. Dudley Digges said for the Court:
"In a summary judgment proceeding even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. McDonald v. Burgess, 254 Md. 452, 454, 255 A.2d 299 (1969); Liebergott v. Investment Bldg., 249 Md. 584, 241 A.2d 138 (1968); Reeves v. Howar, 244 Md. 83, 90, 222 A.2d 697 (1966); M. & C.C. v. Allied Contractors, 236 Md. 534, 544, 204 A.2d 546 (1964); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691 (1959); White v. Friel, 210 Md. 274, 285-86, 123 A.2d 303 (1956)." 258 Md. at 138, 265 A.2d at 258.
Although a trial court is allowed discretion to deny a motion for summary judgment in favor of a full hearing on the merits, a court cannot draw upon any discretionary power to grant summary judgment. Basiliko, 288 Md. at 28, 415 A.2d at 583. In that case, Judge Digges again wrote for the Court and said:
"[W]hile Md.Rule 610 d 1 states that when a movant is entitled to judgment as a matter of law, the court should render judgment forthwith, this does not mean that entry of judgment may not be delayed until after a trial on the merits, should, in the court's mind, the promotion of justice require it. See Dev. Sales Co. v. McWilliams, 254 Md. 673, 677, 255 A.2d 1, 3-4 (1969); Jacobson v. Julian, 246 Md. 549, 553-54, 229 A.2d 108, 112 (1967).... [W]e are not unaware that there exists a few decisions of this Court which have, without discussing the precise issue we address here, reversed the denial of a summary judgment motion and, in effect, directed the entry of such a judgment following a contrary factual finding when the action was tried on its merits. See, e.g., Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971); Nardo v. Favazza, 206 Md. 122, 110 A.2d 676 (1955). To the extent that these and similar cases indicate a holding contrary to that announced here, we decline to follow them.
"Consequently, we now hold that a denial (as distinguished from a grant) of a summary judgment motion, as well as foregoing the ruling on such a motion either temporarily until later in the proceedings or for resolution by trial of the general issue, involves not only pure legal questions but also an exercise of discretion as to whether the decision should be postponed until it can be supported by a complete factual record...." 288 Md. at 28-29, 415 A.2d at 584.
The motions judge in this case erred in granting a motion for summary judgment for the defendants based upon preemption by ERISA when there was an ERISA count. Appellant would now have us decide this case in her favor on the merits but that would amount to a determination on our part that summary judgment should have been granted in her favor. It follows from our holdings in Fenwick and Basiliko that ordinarily no party is entitled to a summary judgment as a matter of law. It is within the discretion of the judge hearing the motion, if he finds no uncontroverted material facts, to grant summary judgment or to require a trial on the merits. It is not reversible error for him to deny the motion and require a trial. Since the motions judge did not grant summary judgment in favor of Mrs. Foy and ordinarily no party is ever entitled to summary judgment as a matter of law, it would be improper for us to determine how the motions judge might have exercised his discretion and now determine that summary judgment should have been granted in favor of the plaintiff. Accordingly, in this case we shall reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.
Upon the remand the trial court will be governed by Firestone Tire & Rubber Co. v. Bruch, 489 U.S. ___, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989), which has recently laid down the standard of review for ERISA plans.
JUDGMENT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO ABIDE THE FINAL RESULT.
NOTES
[1] 29 U.S.C. § 1144(a) (1982) states in pertinent part:
"[T]he provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in Section 1003(a)...."
This was such a plan.
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01-03-2023
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10-30-2013
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From an order denying a mandatory injunction entered by the Circuit Court of Leon County, Florida, commanding the Board of County Commissioners of Leon County, Florida, to abate and remove a certain ditch and water culvert situated at the intersection of Betton Hill and Centerville Roads, a short distance from the City of Tallahassee, so as to prevent surface water from flooding the land and damaging crops of the plaintiff, an appeal has been perfected to this Court. The ditch was cut and the culvert placed under the Centerville road by the commissioners in the discharge of their official duties in the construction and maintenance of the public roads of Leon County, Florida, as prescribed by the statutes of Florida. The surface water only is here involved coupled with the natural flow thereof from the point of intersection of the two roads on the property of plaintiff below.
The able chancellor below in deciding the case made definite and positive findings of fact and placed the same in his order, and the same are helpful in reviewing the case at bar. The chancellor found, viz.:
"There appears from the testimony and are found by the Court to be the facts that:
"1. That the water which now drains through the culvert under the Centerville Road at the intersection *Page 370
with the new Betton Hill Road follows the course of natural drainage.
"2. That the water which flows through the culvert aforesaid is directed into an established and existing water course, which water course originates on the land of Mrs. W.C. Hodges, which land is adjacent to the Centerville Road.
"3. That the watercourse on the land of Mrs. W.C. Hodges runs in a North-Northeasterly direction approximately parallel to the Centerville Road, and that said watercourse crosses the land of plaintiff and terminates in a pond Northeast of plaintiff's property.
"4. That the area of the land drained through said culvert and into said watercourse is approximately thirty-five (35) acres.
"5. That in addition to the area of thirty-five (35) acres draining through the culvert, that an area of approximately one hundred fifty (150) acres drains into the watercourse aforesaid and crosses the land of plaintiff.
"6. That the damages shown by the plaintiff are in the amount of approximately Three Hundred Dollars ($300.00).
"7. That the cost of preventing the damage by the means suggested by plaintiff in the bill of complaint, would cost the county approximately Seven Thousand to Ten Thousand Dollars ($7,000.00 to $10,000.00).
"8. That any flooding of plaintiff's land is the result of plaintiff's obstructing the natural watercourse across his property as aforesaid.
"9. That the plaintiff purchased the property which he complains is flooded after the construction of the New Betton Hill Road and the enlarging of the culvert at the point of intersection of the new Betton Hill Road with the Centerville Road. *Page 371
"10. That the construction of a ditch along the Centerville Road to drain the water from Betton Hill Subdivision would divert water from its natural course, which is across plaintiff's land, and cause water from Betton Hill Subdivision to be directed over and onto lands where such water would not flow in the natural course of drainage.
"The foregoing facts appearing from the testimony and the Court finding the same as facts established in this cause, and the Court being of the opinion that under applicable rules of law that the plaintiff has not shown any grounds for relief;
"IT IS THEREUPON ORDERED, ADJUDGED AND DECREED That the mandatory injunction prayed for be and the same is hereby denied and the bill of complaint dismissed at the cost of plaintiff."
The natural flow of water complained of originated in the Betton Hill area and by natural drainage flowed into the ditch paralleling the Betton Hill Road, thence through the culvert at the intersection thereof with the Centerville Road, thence on the Hodges property onto the lands of the plaintiff. It is contended that ditches should parallel the Centerville Road and the culvert dispensed with so the water would not reach plaintiff's property. Defendants contend that a ditch across the plaintiff's land and the removal of obstructions would prevent the overflow on plaintiff's property. The natural course of the flow of the water from the intersection of the two roads is over the Hodges property onto the plaintiff's and thence into a pond in the vicinity thereof.
The law of the case at bar is well settled. See Edason v. Denison, 142 Fla. 101, 194 So. 342; Dade County v. South Dade Farms, Inc., 133 Fla. 288, 182 So. 858; Seaboard All-Florida Ry. Co. v. Underhill, 105 Fla. 409, *Page 372 141 So. 306; Brown v. Solary, 37 Fla. 102, 19 So. 161; Schofield v. Cooper, 126 Iowa 261, 102 N.W. 110; Melin v. Richman, 96 Conn. 686, 115 A. 426; 27 R. C., pages 1139-1154, par. 71-80; 67 Corpus Juris, 862-871, par. 286-295.
Some three or four questions propounded by counsel for the appellant are to the general legal effect that when surface water for a period of several years flows along the ditches parallel to a public road, there is created thereby a prescriptive right for a continued flow thereof and an interference therewith affects vested rights. The following cases are cited to sustain this view; Freeman v. Weeks,45 Mich. 335, 7 N.W. 904; Reading v. Althouse, 93 Pa. 400; Weatherby v. Micklejohn, 56 Ia. 73, 13 N.W. 697; Meir v. Kroft, (Ia.) 80 N.W. 521. These cases have been examined and, like our Florida cases, hold or recognize the well established principle of law applicable to the nautral flow of surface water, with but a single exception which is not in point.
It is further contended that there is nothing in the record to sustain the view that the surface water here involved followed its natural course when passing through the culvert at the intersection of the Centerville and Betton Hill Roads near the Hodges land thence to the property of the appellant and thence into a pond. The law sustains the natural flow of surface water. The chancellor below no doubt was influenced in his findings of fact by the testimony of Mr. Moore, a witness for the appellant, viz.:
"Q. Mr. Moore, you have testified that you know where the Betton Hill Road intersects. Isn't there a slope from Betton Hill Subdivision down toward the *Page 373
south side of the Betton Hill Road? In other words it slopes north does it not?
"A. There appears to be a slight draw in the area in there that slopes in a general direction of that south culvert. In other words those waters in Betton Hill Subdivision come around that curve there, then forms that terrace around there, and the water runs from Betton Hill Road and from the South end of the Betton Hill Subdivision down in that culvert and concentrates to that south culvert.
"Q. In other words the natural contours of Betton Hill are directed into that south culvert?
"A. The natural contour would be of that area south of the Betton Hill Road would be practically east, that is the natural drain.
"Q. In other words, it would drain east, and that is towards the Hodges property?
"A. It would eventually.
"Q. Mr. Moore, this natural depression on the Hodges property runs roughly parallel to the Centerville Road does it not?
"A. Being somewhat of a curve there in the Centerville Road, I could not say whether it would or not. It heads out from that intersection in practically an easterly direction, but I think it diverts to the north.
"Q. Mr. Moore, summarizing, if the Centerville Road was not there, the probabilities are the water from Betton Hill Subdivision would find its way into that watercourse on the Hodges property, and would find its way into this depression south of Mr. Willis' land, would it not?
"A. It would find its way eventually if there were no road, if there never had been a road constructed it would eventually find its way down to that lower part *Page 374
of Mr. Willis' property, as far as the depression on Mrs. Hodges property, I couldn't say about it, because I don't know.
"Q. Not being as familiar with the Hodges property as you are with Mr. Willis' property, it is your testimony that if the road was not there that this water from the Betton Hill Subdivision would by percolation and running over the surface eventually run into the low point on Mr. Willis' property, and from there drain on down to the pond?
"A. That part that was not absorbed. . . .
"Q. Mr. Moore, would it not be possible to construct a ditch across Mr. Willis' land, which would begin at the point where the ditch on the Hodges property runs under the fence, and run it across Mr. Willis' land into the ditch on the Martin land, would it be possible to build a ditch there that would completely relieve the flooded condition of the land?
"A. That all depends on what fall you could get in the ditch below his land. The conditions as I see them are that land in there is absorbing water, too, and it's just kind of a continuous drainage. If you could lower that water in that sandy soil in that low bottom you might relieve that condition, but I didn't go far enough down that natural draw down below his place there to know whether or not you could get the proper fall to maintain water level sufficiently low to drain it.
"Q. Mr. Moore, I believe testimony will be offered here to the effect that a sufficient fall could be gotten, so assuming for the purpose of this next question sufficient fall can be gotten, I will ask you whether or not such a ditch constructed across Mr. Willis' land would alleviate any flood condition? *Page 375
"A. Assuming you have sufficient fall, and you have a ditch of sufficient cross-section to take that water away as it comes down the roadside it would relieve the condition in his low land, no question about that."
We are unable to understand the materiality of State ex rel.
Harris v. City of Lakeland, 141 Fla. 795, 193 So. 826. The burden of showing error in the record rests on the appellant and a failure on his part to carry this burden impels the conclusion that there is no error in the record and accordingly the decree appealed from is hereby affirmed.
BROWN, C. J., WHITFIELD and BUFORD, J. J., concur.
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215 So. 2d 305 (1968)
Eusebio M. MARTINEZ, Father of Jacqueline M. Martinez, a Minor, Deceased, Appellant,
v.
Jose RODRIQUEZ and Antonio Rodriguez, D/B/a Ingram Court Apartments, Appellees.
No. 37377.
Supreme Court of Florida.
October 30, 1968.
*306 Robert Orseck of Podhurst & Orseck, Miami, for appellant.
Dean, Adams, George & Wood and Jeanne Heyward, Miami, for appellees.
DREW, Justice.
This case is presented on certificate[1] from the United States Court of Appeals, 5th Circuit, 394 F.2d 156, in an appeal from a decision of the trial court denying recovery in an action by a father, appellant, for wrongful death of his two-year-old daughter by drowning in a swimming pool maintained at the defendants' apartment house premises where the child lived with her mother, the appellant husband and father being in Cuba.
The court states that:
"The case was tried before a jury, and the jury by special verdict, F.R.Civ.P. 49(a), found that defendants were negligent in their operation of the swimming pool and that Mrs. Martinez was negligent in her duty to supervise Jacqueline. Both of these findings are supported by the evidence and are binding under the Seventh Amendment. But plaintiff maintains that he is not completely barred by his wife's negligence since he neither (a) knew nor (b) should have known of his wife's conduct since he was out of the country at the time of the drowning. The Federal District Judge, citing Klepper v. Breslin, Fla., 1955, 83 So. 2d 587, as the controlling authority held, however, that the recovery under Florida Statute 768.03, F.S.A. was `indivisible' and that the negligence of the mother-wife would be imputed to plaintiff-father-husband, so the father was denied recovery. Plaintiff argues that the Klepper decision is not controlling as it held only that when the father knew or should have known of a mother's negligence in supervising a child would the recovery for his loss of services and his mental pain and suffering be barred completely.
Defendants do not contend, nor is there any such jury finding, that the father was negligent in any way. As stated above we sustain the findings of negligence on the part of the mother and defendants. The only problem remaining is whether the father is barred by the mother's negligence. If so, the case ends. If not, it must be remanded for a determination of plaintiff's damages.
*307 (3) Question of Law to be Answered
Whether a father who sues under the Florida Statute 768.03, F.S.A. to recover damages for the death of his minor daughter is completely barred from recovery by the contributory negligence of the child's mother when the father neither knew nor should have known of the mother's negligent conduct in supervising the child."
Although numerous opinions bearing indirectly on the problem have been cited and reviewed in our consideration of this question,[2] we conclude that the point presented on this record must be controlled by the decision in Klepper v. Breslin, supra. This Court in that case affirmed a judgment for defendants in a father's action for wrongful death of a minor child based on instruction to the jury "that it appeared from the testimony that the child was in the custody of its mother with the knowledge and consent of the father who was the plaintiff and that the failure of the mother to observe reasonable care or to exercise reasonable care, control and supervision of the child would be applicable to both parents and would bar recovery by the father."[3]
The Klepper decision, that a father's action may be barred by the mother's negligence, was expressly predicated on the peculiarities of the statute, under which there is no apportionment of damages between the parents.[4] The opinion in conclusion limits the principle to the situation where "the facts so justify." It does not, however, by language or rationale, hold that a father must have actual knowledge or notice of the mother's negligent conduct in order to permit the defense in an action by him under the statute. The critical fact noted in the trial court's instruction in that case was, as above stated, the plaintiff father's consent to or knowledge of the mother's custody and control of the child at the time in question in a suit involving the normal family situation contemplated by the statute. Certainly, then, neither a father's physical absence, near or far, nor his lack of knowledge of the negligent conduct, could serve to distinguish the cases.
Examination of the majority and dissenting opinions in Klepper and subsequent cases verifies the continuing vitality of the principle upon which appellant, the plaintiff father, relies in this cause: "* * * in this state we do not impute the negligence of a husband or wife to the other spouse merely because of the existence of the marital relationship," and without other evidence the negligence of a wife, contributing to the death of her child, would not necessarily bar recovery by the father.[5]
Under our cases as well as other authorities, however, the general rule applied in this state against imputing negligence on the basis of marital relationship is expressly qualified to permit or require imputing negligence between spouses when one is in fact an "agent in the matter in hand, or they are jointly engaged in the *308 prosecution of a common enterprise."[6] The present case does not in our opinion require or permit consideration of the extent to which one parent may as a matter of fact or law[7] become the agent of the other in the care of their child, discussion of the rule against imputed negligence being pertinent only to indicate its qualified character.
Availability of the defense of contributory negligence here is, as first above stated, predicated on the controlling effect of the indivisible nature of the claim under the statute in the particular situation at bar. The question presented should accordingly be answered in the affirmative.
CALDWELL, C.J., and ROBERTS and THORNAL, JJ., concur.
ERVIN, J., dissents with Opinion.
ERVIN, Justice (dissenting):
There is no language in Section 768.03 which logically operates to defeat a father's recovery of his damages for the wrongful death of his child from the defendant charged with the death because of the contributory negligence of the child's mother (plaintiff's wife), who had the child in her custody at the time of its alleged wrongful death. This statute only purports to open up the common law prohibition, prescribe who can prosecute the cause of action, and the nature of the damages recoverable, but deals not at all with any substantive question relating to the indivisibility of the cause of action or the imputation of contributory negligence between spouses which might defeat recovery of both. Furthermore, Section 768.03 should be read in light of Section 4, Declaration of Rights, Florida Constitution, which opens all courts so that every person shall have remedy for any injury done him. Denial of remedy to plaintiff herein for the reasons set forth in the majority opinion appears to amount to unequal protection and treatment under the Constitution. For a better and more comprehensive statement of this conclusion see the dissenting opinion in Klepper v. Breslin (Fla.), 83 So. 2d 587.
NOTES
[1] F.S. Sec. 25.031, F.S.A.; Rule 4.61, Fla.App. Rules, 32 F.S.A.
[2] Haddock, for Use and Benefit of Wiggins v. Florida Motor Lines Corp., 150 Fla. 848, 9 So. 2d 98; Covey v. Eppes, Fla. 1963, 153 So. 2d 3; Burch v. Gilbert, Fla.App. 1963, 148 So. 2d 289. See also cases collected 25A C.J.S. Death § 46 p. 713; 65A C.J.S. Negligence § 163, p. 209.
[3] 83 So. 2d 587, 590.
[4] Parties in actions for death of minor child; damages.
(1) * * * the father of such minor child, or if the father be not living, the mother may maintain an action against such individual, private association of persons, or corporation, and may recover, not only for the loss of services of such minor child, but in addition thereto, such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess."
[5] Ward v. Baskin, Fla. 1957, 94 So. 2d 859, 66 A.L.R. 2d 1320.
[6] Seaboard Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716; Bessett v. Hackett, Fla. 1953, 66 So. 2d 694. Anno. 2 A.L.R. 2d 805.
[7] Cf. Ward v. Baskin, note 5 supra, dissenting opinion 94 So.2d p. 860.
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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/4523361/
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: PETITION TO SET ASIDE UPSET : No. 641 MAL 2019
TAX SALE :
:
: Petition for Allowance of Appeal from
PETITION OF: LEHIGH COUNTY TAX : the Order of the Commonwealth
CLAIM BUREAU : Court
ORDER
PER CURIAM
AND NOW, this 7th day of April, 2020, the Petition for Allowance of Appeal is
DENIED. Respondent Craig Hansford’s Motion to File Answer to Petition for Allowance
of Appeal Out of Time is DENIED as moot.
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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/3387937/
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The information herein contained two counts. As originally filed the first count charged that Roy Tootle "being then and there intoxicated from the voluntary use of intoxicating liquors, did then and there while so intoxicated, unlawfully and feloniously drive, propel and operate a bus, the same being a gasoline motor propelled vehicle, on, over and upon a public highway in Hillsborough County, Florida, to-wit, that certain public highway commonly known as Seventh Avenue, and by the operation of said gasoline motor propelled vehicle, did then and there operate, propel and drive the same so as to collide with a certain other automobile on and near said highway near where said highway is intersected by Fortieth Street, at and near the vicinity of the said City of Tampa, Florida, and by colliding with said other automobile, did strike, wound and injure one Vernard Todd, and by thus striking the said Vernard Todd, did inflict in, on and upon his head, body and limbs a mortal wound, from which mortal wound the said Vernard Todd did then and there die; wherefore the said Roy Tootle is deemed and held to have committed the crime of manslaughter."
While the court had under consideration a motion to quash the information the prosecuting officer amended the information by striking therefrom the name of "Vernard Todd" wherever the said name appeared in said information, and substituting therefor, wherever said name had been stricken, the name of "Verner Potts," which said alteration was done without consent and without notice to, or knowledge of, the defendant or his attorney.
The information as amended was signed and sworn to by the county solicitor and the information was then refiled. *Page 1250
The defendant thereupon filed additional grounds to the motion to quash the amended information, challenging the amendment, which motion was overruled. The defendant pleaded not guilty to the amended information. After a verdict of guilty as charged in the first count and judgment of conviction and sentence to the State penitentiary, the defendant took writ of error.
There was a motion "that a continuance shall be granted," not a motion to postpone the trial for a short time, one of the grounds of the motion being that the information had been amended. It does not appear that the court abused its discretion or committed harmful error in denying the motion for a continuance. Jones v. State, 44 Fla. 74, 32 So. R. 792.
The information having been sworn to and presented by the prosecuting attorney under Section 28, Article V. Constitution, and not by a grand jury, it could be amended by the prosecuting attorney with the acquiescence of the court, when the defendant would not be thereby prejudiced in any legal right.
In Section 1, Chapter 11808, Acts of 1927, Section 7749, Comp. Gen. Laws, 1927, it is provided that "if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and, on conviction, be punished as provided by existing law relating to manslaughter." The statutory offense is the causing of the death of a human being by the operation of a motor vehicle while intoxicated. The information does not merely state the offense in the language of the statute, but alleges the intoxication of the defendant and states facts which constitute the operation by the defendant of the motor vehicle by driving it while intoxicated so as to collide with another automobile, and thereby did strike and mortally *Page 1251
wound, c. It was not necessary to allege culpable negligence of the defendant in the operation of the motor vehicle as that is not a specific element of the offense defined by the particular statute. The quoted allegations of the information sufficiently state an offense under the statute.
The charges given were reasonably accurate and fair to the accused. The charges refused were not accurate statements of the law applicable to the evidence or else were sufficiently covered by correct charges that were given. There is ample evidence from which the jury could reasonably have inferred that the defendant was intoxicated when he so operated the motor vehicle as to cause the fatal injury alleged. No material errors are made to appear and the judgment is affirmed.
STRUM and BUFORD, J. J., concur.
TERRELL, C. J., and ELLIS, J., concur in the opinion and judgment.
BROWN, J., dissents.
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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/4523366/
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 739 MAL 2019
:
Respondent :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
OMAR MORRISON, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 7th day of April, 2020, the Petition for Allowance of Appeal is
DENIED.
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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/3987877/
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I concur in the order reversing the judgment against the Mountain Fuel Supply Company; I dissent from the order remanding the cause for a new trial as against the Utah Motor Parks, Inc. *Page 507
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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/3987876/
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This is an appeal from a judgment based on a verdict in which respondent, plaintiff below, was awarded damages in the amount of $12,716, against appellants, defendants below. Respondent's injuries and claimed damages arose out of an explosion which occurred beneath a certain cabin of the Utah Motor Park which cabin was at that time rented and occupied by respondent and her husband. Respondent alleged that the explosion was caused by the ignition of gas with which the cabin was equipped for heating and cooking
In her complaint respondent alleged that appellants were negligent in that they excavated the hole in which the gas furnace was installed in such a manner that the walls of the cabin later settled and rested on the gas pipes leading to the gas furnace causing them to break and leak. We find no evidence in the record to support such allegation. Respondent alleged but failed to prove that appellants neglected properly to ventilate the area beneath the cabin floor. Respondent also alleged that appellants negligently failed to inspect the premises to discover gas leaks and negligently continued to furnish gas after they knew or should have known that leaks existed. No evidence was introduced to show negligence in this regard. Certain witnesses testified that on other days they smelled gas near respondent's cabin and there is a conflict as to whether or not the Motor Park was notified of said gas odors. But respondent testified that she smelled no gas in her cabin and an employee of the Motor Park testified that she was in the cabin shortly before the explosion but smelled no gas. From the evidence it does not appear that the Motor Park Company or the Gas Company had actual notice of any gas leaks under or near respondent's cabin. *Page 500
The lower court erred in failing to direct a verdict in favor of appellant Gas Company. The Gas Company sold gas to the Motor Park. It had no dealings with, and was a stranger to, respondent and other tenants of the Motor Park. Its agreement was to deliver gas to the Motor Park at its two meters. 1-3 (One for all furnaces and one for all ranges). It did not deliver gas to individual tenants. The Gas Company looked to the Motor Park for payment — not to the tenants. Employees of the Gas Company went on the Motor Park's premises only upon invitation. They had no control over the gas pipes and appliances within the Motor Park beyond the gas meters. Although the Gas Company made certain repairs without charge it did so only when requested by the Motor Park. The fact that it made said repairs does not prove that it exercised control over the gas appliances, but rather it emphasizes the fact that the Motor Park and not the Gas Company exercised control because the Gas Company did no more than render courtesy service to the Motor Park when requested. It is true that as a supplier of a dangerous substance a gas company is bound to high degree of care and if after notice of a leak or possible danger, it continues to supply gas under pressure it may be held liable for damage caused by such leak. See cases cited infra. But unless the Gas Company, through its employees, knew of some leak or danger and failed to take steps to prevent an explosion it cannot be charged with negligence. No such knowledge on the part of the Gas Company has been shown. Although certain witnesses testified that a gas odor was noticeable in the Motor Park prior to the explosion there was no showing that employees of the Gas Company detected or should have detected such odor, or even that said employees ever were near the places, where witnesses smelled gas. A supplier of gas which does not install gas pipes or appliances on another's premises, does not own or control them, has no duty to inspect them, and has no actual knowledge of leaks or defects, is not liable for damages resulting from a gas *Page 501
explosion on said premises. Okmulgee Gas Co. v. Kelly,105 Okla. 189, 232 P. 428; Price v. MacThwaite Oil Gas Co.,177 Okla. 495, 61 P.2d 177; Clare v. Bond County Gas Co., 356 Ill. 241,190 N.E. 278; Wilson Gas Utilities Corp. v. Baker,276 Ky. 368, 124 S.W.2d 489; Metz v. Georgia Public UtilitiesCorp., 52 Ga. App. 771, 184 S.E. 629; H.B. Agsten Sons, Inc.
v. United Fuel Gas Co., 117 W. Va. 515, 186 S.E. 126; Lewis
v. Southern California Gas Co., 92 Cal. App. 670, 672,268 P. 930; Moran Junior College v. Standard Oil Co. of California,184 Wash. 543, 52 P.2d 342; Kelley v. Public Service Co. ofNorthern Ill., 300 Ill. App. 354, 21 N.E.2d 43; Holsclaw'sAdm'r v. Louisville Gas Electric Co., 267 Ky. 56,100 S.W.2d 805; 24 Am. Jur. 686, § 32. See Annotations in 25 A.L.R. 272; 47 A.L.R. 490; 90 A.L.R. 1088.
From what has been said, it would also appear that the trial court should not have submitted to the jury the issue of whether the Motor Park Company had committed the specific acts of negligence alleged in the complaint for the reason that there was no evidence of such negligence. However, at the time the motion for a directed verdict was made respondent urged that the doctrine of res ipsa loquitur applied in this case and that the evidence was such that the court should instruct the jury on that theory.
The doctrine of res ipsa loquitur cannot be invoked against the Gas Company because it did not have any control over the gas facilities where the explosion occurred. Gerdes v.Pacific Gas Electric Co., Cal.App., 13 P.2d 393; 4Ingledue v. Davidson, 102 Cal. App. 703, 283 P. 840. It had taken no part in the installation of said appliances and had assumed no liability to keep them in repair. All it did was make minor adjustments when so requested.
Respondent and her husband had occupied a cabin in the Motor Park for one week and had paid in advance their rent for another week. The motor Park as part of the *Page 502
consideration for the weekly rental payment furnished linen for the cabins and gas to operate the cooking 5-6 stove and furnace. Respondent and other tenants could turn off and on these gas appliances, and to that extent exercised control over them. But the gas furnace itself and certain gas pipes were beneath the floor of the cabin and beyond the reach of tenants. There was testimony that gas leaks beneath other cabins were repaired by workmen summoned by, and at the expense of, the Motor Park — in no instance by a tenant. It appears, therefore, that the gas furnace and the pipes beneath the cabin were under the exclusive control of appellant Motor Park. Although evidence as to the exact location of the explosion or the exact spot of the gas leak was not available, it was testified that the floor of the cabin was burst upward by the explosion and that the circular sheet metal guard which surrounded the furnace was bent inward. Clearly, the logical inference from such testimony would be that the explosion occurred beneath the cabin and outside the furnace sheath. A further inference is that the explosion was caused by the ignition of gas beneath the cabin which exploding gas was not within and did not come from the furnace or the range, the appliances over which respondent exercised some control, but was in an area and leaked from pipes controlled exclusively by the Motor Park. Appellant Motor Park has protested that no proof has been given that the explosion was caused by gas or that gas leaked from the pipes. But in the absence of any other probable cause for the explosion and with knowledge of the properties and explosive force of gas and the course of the gas pipe lines, the jury, under a pleading alleging facts which would bring the case within the doctrine of res ipsa loquitur, would be justified in concluding that the explosion was caused by gas which had escaped from the gas mains. One who pleads and establishes that an explosion which caused him injury occurred in an area controlled exclusively by another and that he had a right *Page 503
to be in said area may invoke the doctrine of res ipsa loquitur.Paul V.S.L.R. Co., 34 Utah 1, 95 P. 363; Dearden v. S.P.,L.A. S.L.R. Co., 33 Utah 147, 93 P. 271; Angerman Co. vEdgemon, 76 Utah 394, 290 P. 169, 79 A.L.R. 40; Wright v.Southern Counties Gas Co., 102 Cal. App. 656, 283 P. 823; VanHorn v. Pacific Refining Roofing Co., 27 Cal. App. 105,148 P. 951.
Appellant Motor Park cites Jenson v. S.H. Kress Co.,87 Utah 434, 49 P.2d 958, and Quinn v. Utah Gas Coke Co.,42 Utah 113, 129 P. 362, 43 L.R.A., N.S., 328, in contending that res ipsa loquitur does not apply here. But those cases held that res ipsa loquitur was not available to 7, 9 plaintiff because the things which caused the damage (broken glass, ink) were not under the exclusive control of defendant and it was speculative as to whether or not defendant or someone else set the stage onto which the injured party walked, or whether defendant knew in advance of the dangerous condition. In the instant case, the area below the floor which was the site of the explosion was open to no one but the Motor Park or its agents. No speculative element, as to whether or not some stranger might have tampered with the pipes and set the stage for the explosion, presents itself. Under the doctrine of res ipsa loquitur it is a jury question whether in view of the evidence the Motor Park was negligent. When a party without fault of his own is injured by an instrumentality under the exclusive control of another and such injury ordinarily would not occur if proper care were exercised, an inference may arise under the doctrine of res ipsa loquitur that the party controlling said instrumentality was negligent regardless of any proof of specific acts of negligence. But it is the province of the fact finder (the jury or the court where no jury is sitting) to draw or to reject such inference. See Zoccolillo v. O.S.L. Ry. Co.,53 Utah 39, 177 P. 201.
Since the evidence in this case is sufficient to invoke the doctrine of res ipsa loquitur (even though as to the *Page 504
specific acts of negligence alleged there was not enough to go to the jury) respondent urges that the 10, 11 verdict and judgment should be upheld. We cannot do this, however, for the reason that the trial court failed to present that theory to the jury when requested to do so but instead instructed as follows:
"Instruction No. 4. If you find from the evidence that the defendant Mountain Fuel Supply Company knew that the system of pipes within the premises of the defendant Park Company was defective, if you find they were, and that said pipes wereleaking and gas was escaping therefrom. * * * If, therefore, you further find from the evidence that after said defendant Mountain Fuel Supply Company had knowledge of such defective pipes. * * *" (Italics added.)
We are thus confronted with this situation: The complaint set out certain alleged acts of negligence which the evidence fails to support. However, the evidence does reveal facts and circumstances which invoke the doctrine of res ipsa loquitur. The jury was instructed only on the theory of definite acts or omissions as constituting the negligence complained of. On appeal respondent seeks to have the judgment affirmed because the jury would have been justified in reaching the same verdict on a theory which was not presented to them to consider, to-wit: the doctrine of res ipsa loquitur. But as stated above, we cannot do so. Where the trial court has proceeded on one theory and put the case to the jury on that theory, it must be assumed that the jury considered the case on such theory. And on appeal this court must ask itself whether, on the record, the parties have had a fair trial. It can hardly be said that a party has had a fair trial where he is required to meet issues on one theory and the jury considers the case on that theory, and the same cannot be sustained on the record, yet the appellate court nevertheless affirms the judgment because, under another theory rejected by the lower court, the jury might have reached the same verdict. Furthermore we do not think that the pleadings were in shape for the trial *Page 505
court to instruct on res ipsa loquitur as requested by plaintiff.
In some cases where specific acts of negligence are alleged in the complaint the specific allegations of violation of duty can be ignored and the pleadings still show a cause of action based on res ipsa loquitur. Angerman Co. v. Edgemon,76 Utah 394, 290 P. 169, 79 A.L.R. 40; Dearden v. San 12, 13Pedro, L.A. S.L.R. Co., 33 Utah 147, 93 P. 271. Nevertheless we think one who wishes to rely on that doctrine, as well as specifically assigned acts of negligence, must so plead, either by a separate court or by proper allegation to the effect that the negligence to be inferred from the general situation caused the injury, thereby notifying the other party that he intends to rely on the doctrine of res ipsa loquitur. To set out by way of inducement a situation which itself may bespeak a prima facie case of negligence and then follow with allegations of specific negligence and allege that by "reason of such negligent acts and omissions on the part of the defendant [referring to those specifically alleged] the plaintiff was injured", etc., does not sufficiently put the defendant on notice that the plaintiff is going to rely on the situation itself to furnish any inference of negligence.
The case must, therefore, be reversed; but whether with instructions to grant a new trial or to dismiss the action must also be determined.
As to the Mountain Fuel Supply Company the action should be dismissed. The evidence against it is insufficient as heretofore set out both as to the doctrine of res ipsa loquitur and the specific acts of negligence alleged, and it does not appear with reasonable probability that on a retrial a case could be made out against the Gas Company.
The situation is different with respect to the Utah Motor Park Company. We have already heretofore determined that the evidence was sufficient to invoke the doctrine of *Page 506
res ipsa loquitur. But the question of appellant's alleged negligence by reason of the facts and 14 circumstances invoking the doctrine was for the jury. It is within the discretion of the reviewing court on reversal either to order that the case be dismissed or to grant a new trial. Schroeder v. S.L.T.V.G., 60 Cal. 467, 44 Am. Rep. 61;Woodson v. Metropolitan Street R.R. Co., 224 Mo. 685,123 S.W. 820, 30 L.R.A., N.S., 931, 20 Ann. Cas. 1039; Traders'Securities Co. v. Kalil, 107 Pa. Super. 215, 162 A. 499;Worsham-Buick Co. v. Isaacs, Tex. Civ. App. 56 S.W.2d 288.
Can we say there is no reasonable probability that plaintiff can make out a case against the Utah Motor Park Company? It does not appear that arising from the evidence are legal propositions which would stand as a hurdle over plaintiff's path. Therefore in the exercise of a sound discretion we 15, 16 should direct that the cause be retried. When the record is returned to the District Court the parties may, of course, amend their pleadings to clarify, make definite, or raise any issues of fact or law they may deem pertinent to their cause and which they desire to make an issue on the trial.
The cause is reversed and remanded with instructions to proceed in accordance with the views expressed in this opinion. Costs to appellants.
LARSON, McDONOUGH, and PRATT, JJ., concur.
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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/3388138/
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On July 8, 1936, F.L. Revell (hereinafter referred to as relator) filed two petitions for alternative writs of mandamus praying that respondents be required to pay relator any money in the City treasury applicable to the payment of certain interest coupons attached to refunding bonds of the City. On July 13, 1936, relator filed his third petition for alternative writ of mandamus based on other interest coupons.
On July 9, 1936, C.T. Ratliff filed a mandamus action *Page 185
to compel the City of Wauchula to pay him certain funds then on hand to satisfy certain bonds which he owned. A similar action was also filed by Ratliff on July 14, 1936.
On September 4, 1936, relator Revell and respondents filed a stipulation for consolidation of the three suits filed by Revell, and an order of consolidation based on said stipulation was entered on the same day. A peremptory writ was issued in the consolidated cases on September 4, 1936, commanding the City of Wauchula to deliver a warrant for $5,441.34 then in the City treasury to relator. On September 28, 1936, the City Clerk's return to the peremptory writ was filed, alleging that on September 4, 1936, he paid the required sum to relator.
After the rendition of the judgment and the satisfaction of the peremptory writ C.T. Ratliff filed a petition for leave to intervene. Intervention was allowed by the court and Ratliff filed motions to vacate the order consolidating the suits of Revell and to vacate the peremptory writ therein, because the court was misled in entering said peremptory writ for it was not aware of the fact that, Ratliff had filed a suit in the same court impounding the funds which the peremptory writ attempted to adjudicate. An order was then entered by the court granting the motions to Ratliff. Thereafter Ratliff filed a motion to require Revell to return to the City all of the funds that had been paid to him by virtue of the peremptory writ previously issued. The court ordered Revell to pay back to the City $2,000.16 of the $5,441.34 on the ground that this sum had been impounded by Ratliff in his mandamus suits.
When Revell refused to pay, the court entered an order declaring him in contempt of court and directing that he be arrested and imprisoned for a period of ninety days or until he had paid the City $2,000.16 in compliance with the previous order. Habeas corpus proceeding was then instituted *Page 186
in this Court by Revell. A return to the writ was held sufficient and Revell was remanded to the custody of the sheriff. Revell v. Dishong, 129 Fla. 9, 175 So. 905. The $2,000.16 was then returned to respondents and respondents filed a separate answer in each of the three cases. Replications were filed by relator and, after hearing the evidence, the court adjudged that the sums theretofore paid to relator by respondents should be retained by relator save and except the sum of $2,000.16 which relator had returned to respondents under the order for restitution previously issued, and that the relator was not entitled to any further sum or sums by his writs of mandamus. Relator has appealed from this judgment and has proposed three questions for our consideration:
"Did the court commit reversible error by allowing a party to intervene in mandamus after the judgment and peremptory writ and after the satisfaction of said judgment and compliance with writ, who had not been a party to the proceedings prior to said judgment?"
"Did the court commit reversible error, having required the respondents in a mandamus case to pay to plaintiff in error certain sums under and by virtue of his writs of mandamus, by requiring plaintiff in error to repay to said respondents the sums so paid without the request and over protest of respondents?"
"Did the court commit reversible error in denying peremptory writs upon said alternative writs after said cause was reopened?"
The first two questions are without merit for we have previously decided (Revell v. Dishong, supra) that the "Petition to Intervene" interposed by Ratliff was a mere affidavit of information filed by a friend of the court to advise the court of the true condition of the record, and that the court could require a restitution after execution of *Page 187
the judgment, which was legally vacated and set aside by the court issuing the judgment.
Relator is now attempting to obtain the $2,000.16 which he was forced to return to respondent. The record shows that this money had been impounded by Ratliff, and that respondents have no further sums in their hands applicable to the payment of relator's obligations. Furthermore, in Revell v. Dishong,supra, it was held that the lower court could not have properly entered the original peremptory writ (directing the City to pay Revell the $2,000.16 in controversy) had it been cognizant of the real facts as they existed.
We find no errors harmful to plaintiff in error. It follows that the judgment of the lower court should be affirmed.
TERRELL, C. J., and WHITFIELD, BROWN, BUFORD, CHAPMAN and THOMAS, J.J., concur.
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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/3388145/
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At the fall term of the Circuit Court in and for Hendry County, 1930, the plaintiff in error, Bertie Wiggins, was tried and convicted on an indictment charging her with having unlawfully sold intoxicating liquors to an Indian. She was sentenced to pay a fine of five hundred dollars or be confined in the county jail for six months. Before going to trial the defendant, Bertie Wiggins, filed a motion "to quash the venire of jurymen now present in court, and from which the jury to try this cause is to be drawn." It is not necessary to quote the motion to quash in full. The substance of the motion is "That the list of jurymen as prepared by the county commissioners, from which list this jury was drawn, did not contain the amount of names of jurors as is by law required, or have or contain thereon a proper certificate that additional jurors could not be obtained."
Attached to this motion to quash the venire is a certified copy of the record of the list of jurors as appears in *Page 406
the minutes of the Board of County Commissioners at their meeting January 7th, 1930. The list contains one hundred and eighty-four names.
Attached to the list of jurors there is an affidavit, which it appears was signed and sworn to by each member of the Board of County Commissioners. Leaving off the formal parts the affidavit recites: "that as members of the Board of County Commissioners in and for said county, they personally selected and made out the foregoing list of names of persons qualified to serve as jurors in said county, and that affiants know, or have good reason to believe, that each of the persons whose names appear in the said list is a law abiding citizen of approved integrity, good character, sound judgment and intelligence, not physically or mentally infirm, and is otherwise qualified under the law to serve as a juror, and that said list contains all the names so qualified as far as affiants know and are able to ascertain." Other than this certified copy of the record of the list of jurors, and the affidavit of the county commissioners thereto, there is no evidence or showing in support of said motion to quash. The trial court overruled this motion to quash the venire, which ruling of the court is made the basis of the only assignment of error presented to this court.
This Court, in the case of ENGLISH v. STATE, 31 Fla. 340, in dealing with a similar question, said: "We must presume that the County Commissioners performed their duty in selecting the number of 248 names as a jury list, in the absence of any showing that they abused the discretionary powers conferred upon them by the statute." The statute provides that if the County Commissioners shall not be able to select the number required by the statute, they shall be authorized to select a less number. Section 4444 (2772) C.G.L. *Page 407
This Court, in the case of REEVES V. STATE, 29 Fla. 527, in dealing with a similar question, held:
"The statute has delegated to this board the authority to pass upon such qualifications of persons to be selected as jurors, and in the absence of an illegal purpose, fraud or corruption in the selection of the jury list, we think the discretionary powers of the Commissioners in such matters cannot be set aside. . . . . . It is the judgment of the County Commissioners, in the absence of fraud or corruption, that controls in such matters and their determination shall not be set aside by the opinion of others, that a large number of persons could have been selected who are possessed of the requisite qualifications."
Judgment of the lower court is affirmed.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND BROWN, J.J., concur.
DAVIS, J., disqualified.
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01-03-2023
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https://www.courtlistener.com/api/rest/v3/opinions/3388154/
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Appeal dismissed on Motion of Counsel for Appellants.
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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/3388165/
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The sole question presented by this appeal, which is from a final decree in a suit for the foreclosure of a real estate mortgage lien, is whether the chancellor below erred in decreeing that the complainant (appellee) should recover from the defendant (appellant) the sum of $500 as solicitors' fees for the services of the complainant's solicitors in the suit, the chancellor having determine such sum to be reasonable.
The involved mortgage deed contained a stipulation under which reasonable solicitors' fees were recoverable.
In view of the conclusion we have reached, we are not called upon to decide whether the sum allowed as solicitors' fees by the chancellor was reasonable or excessive. Had the complainant, by proper allegations and proof, shown itself to be entitled to the recovery of reasonable solicitors' fees the question of whether the allowed sum is reasonable or excessive *Page 286
would be the subject of our consideration. The complainant has not, in our opinion, established a right to the recovery of solicitors' fees.
In foreclosure proceedings in our State the fees allowed the mortgagee for the services of his solicitor in the proceedings is intended as an indemnity to the mortgagee for expenditures necessarily made or incurred to protect his interest. United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. R. 567.
The proper inquiry in cases of such character is, therefore, what has the mortgagee paid, or become liable to pay, to his solicitor for the services of the latter, and is it the usual and customary fee paid for such services? Jevne v. Osgood,57 Ill. 340.
The object and intent of the contractal stipulation for solicitor's fees is that the mortgagee should be at no expense in procuring the services of his solicitor; but it is not designed that the mortgagee should recover from the mortgagor for solicitor's fees a sum in excess of the amount which the former has paid, or obligated himself to pay, to his solicitor. White v. Lucas, 46 Iowa 319.
It is incumbent upon the mortgagee, who seeks in foreclosure proceedings to recover solicitor's fees from the mortgagor, to allege and prove that he has paid, or obligated himself to pay, his solicitor reasonable fees for the latter's services in the proceedings. This requirement was not met by the complainant herein. There was, it is true, an allegation in its bill that "the said note and mortgage were placed in the hands of" its solicitors "for collection and foreclosure; and there was adduced the testimony of two disinterested practicing solicitors who testified that in their opinion a reasonable fee to be allowed the complainant for the services of its solicitors would be "$15 plus ten per cent of the amount due upon foreclosure" (an amount in *Page 287
excess of the sum allowed by the chancellor.) Such allegation and proof, however, in cases where the sufficiency of the allegation is raised by demurrer or other proper pleading; or the proof is objected to on the hearing, are not proper and sufficient upon which to base the decree for solicitors' fees. There was no allegation and no proof that the complainant had paid, or obligated itself to pay, to its solicitors for their services, any fixed or determinable sum.
An illustration may serve to demonstrate the soundness of the adopted rule. Let us suppose that a mortgagee, desiring to foreclose his lien, engages a solicitor to prosecute the foreclosure proceedings, agreeing to pay the solicitor for his services a fee of $100. In his bill the mortgagee merely alleges that he has "placed the mortgage in the hands of his solicitor for foreclosure"; and on the trial of the cause he produces as witnesses solicitors who testify that in their opinion $500 is a reasonable sum to allow the mortgagee for solicitor's fees. Should the court allow the mortgagee the sum of $500 for solicitor's fees, it would enable him to recover from a solvent mortgagor over whom the court has jurisdiction the sum of $400.00 in excess of the amount to which the mortgagee is justly entitled. Equity cannot tolerate such a result.
It cannot be logically argued that the defendant herein should have the burden of proving that the complainant has not paid, or obligated itself to pay, to its solicitors as fees for their services the sum allowed by the chancellor below. The burden is upon him who seeks to recover damages to prove that he is entitled to such recovery and to establish the basis for the computation or determination of the amount.
For the reasons we have stated, the decree appealed from is reversed insofar as it decrees the recovery by the complainant *Page 288
(appellee) from the defendant (appellant) of solicitors' fees.
The decree is otherwise affirmed.
The cause is remanded for appropriate proceedings.
WHITFIELD, P. J., AND BUFORD, J., concur.
TERRELL, C. J., AND ELLIS AND BROWN, J. J., concur in the opinion and judgment.
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On appeal we review final decree dismissing amended bill of complaint.
The decree was entered on amended bill of complaint, answer thereto, and testimony taken on the issues.
The amended bill of complaint alleged in effect that during his lifetime Vincent H. Waggoner, who will hereafter be referred to as the donor, was seized and possessed of certain real estate described as, "Southwest Quarter (SW I/4) of Sec. 10, Twp. 43 S., R. 36 E."
Paragraph 2 of the amended bill of complaint alleges: "Your orators further represent that on or about the 21st day of February, A.D. 1934, less than eighteen months before his death, Vincent H. Waggoner sometimes known as Vincent Howard Waggoner, purported to execute a warranty deed to the defendant Florida Conference Association of Seventh Day Adventists, conveying the aforesaid parcel of land to it as grantee therein, but that such warranty deed was not executed in the presence of two witnesses as it purports to have been attested; that said deed was without consideration and said deed was not delivered to the grantee during the lifetime of Vincent K. Waggoner, but on the contrary, was delivered to the grantee subsequent to his death, and thereafter, on the 29th day of August, A.D. 1935, said warranty deed was filed for record in the office of the Clerk of the Circuit Court in and for Palm Beach County, State of Florida, and was recorded in Deed Book 516, at page 385. Copy of said warranty deed being attached and marked Exhibit 'A,' to the original bill herein."
Paragraph 4 of the bill alleges:
"Your orators further aver that Vincent H. Waggoner *Page 650
died on or about the 5th day of August, A.D. 1935; that up until about ten years before that he was not a man of any religious inclinations whatsoever; that along about the year A. D. 1925 he was persuaded to become a member of the Seventh Day Adventist Church, embrace its faith and to adhere to its dogma and precepts; that during the period of a few years preceding his death he began to deteriorate in health, became senile, and he became obsessed with religious ideas more and more, finally becoming a religious fanatic, suffering from religious delusions to such an extent that he was under the domination and influence of the Seventh Day Adventist Church, its clergy, representatives and agents and particularly under the domination of the grantee in the warranty deed aforesaid; that the grantee is, as its name implies, an association of the Seventh Day ADventist churches in the State of Florida; that notwithstanding the fact that said parcel of land comprised almost the sole wealth of Vincent H. Waggoner; that it comprised his home; that his children were all poor and had a claim upon his bounty; that his relations with them in the past had been cordial and that they had assisted in the acquisition of the said land, yet, nevertheless, being under the domination of the Seventh Day Adventist Church, as aforesaid, he was persuaded by such grantee to give the same to it without consideration and, to effectuate the gift, he purported to execute the said warranty deed on the 21st day of February, A. D. 1934, but, nevertheless, retained possession of said land and collected the income, rents and profits therefrom until the time of his death; that along about the time of this pretended gift he had been suffering from ill health; that he was, and had been, undergoing observation and treatment at the Seventh Day Adventist Hospital in Orlando, Florida; that he was an inmate of said institution *Page 651
and continued to be for several weeks thereafter; that at the time of the purported execution of said deed a major surgical operation on Vincent H. Waggoner was imminent, which was thereafter performed during said period of his treatment at said hospital; and that the relationship of the deceased Waggoner and the church, his religious fanaticism and delusions, together with the domination and undue influence of the church over him, continued until the time of his death."
Paragraph 5 alleges:
"Your orators further aver that after the death of Vincent H. Waggoner, the grantee in said deed entered into possession of said land and that the defendants, Roy F. Hudson and Andrew F. Trivett are each tenants of the Florida Conference Association of Seventh Day Adventists, having possession of the same or some portion or parcel thereof, said tenants having paid and obligated themselves to pay rent to their landlord."
The bill then alleges facts showing that the complainant is the duly qualified and acting administratrix of the estate of the donor.
Paragraph 8 of the bill alleges:
"Your orators further aver that on or about the 29th day of July, A.D. 1935, and while the defendant grantee continued to exert its undue influence over the deceased Waggoner, and while he continued under its domination and knowing that death was imminent, he, the said Vincent H. Waggoner, executed a purported will in which the Florida Conference Association of Seventh Day Adventists was made the principal devisee of the remaining property of Vincent H. Waggoner, and again on the 31st day of July, A.D. 1935, Vincent H. Waggoner purported to execute a codicil thereto in which said will and codicil W.E. *Page 652
Abernathy, an officer or agent of the Florida Conference of Seventh Day Adventists, was named as sole executor to serve without bond. A copy of said purported will and codicil being attached to the original bill of complaint herein and marked Exhibit 'B'; that at the time of the execution of the said purported will, Vincent H. Waggoner was ill and confined to a Seventh Day Adventist hospital in Takoma Park, Maryland; that the same was drafted by the Secretary for the General Legal Counsel of Seventh Day Adventist Churches in the United States; that all of the witnesses to said will and codicil were nurses, or other employees of said hospital; that he never recovered from said illness and died within a few days after the purported execution of said will and codicil in said hospital on, to-wit, the 5th day of August, A.D. 1935; that said purported will and codicil have never been offered for probate and the executor, as well as the other parties interested therein, have failed and declined so to do."
Paragraph 10 alleges:
"Your orators further aver that Vincent H. Waggoner, during his lifetime, owned or was vested with some substantial right, title or interest in and to approximately 119 acres of land which lies adacent to and partly surrounds the parcel of land described in paragraph 1 hereof, which land was acquired from the Trustees of the Internal Improvement Fund of the State of Florida and is located in Section 9, 10, 15, and 16, in Township 43 South of Range 36 East; that by the fourth paragraph of said purported will he attempted to devise the same to said Florida Conference Association of Seventh Day Adventists, but said devise is invalid under Section 20 of the Probate Act because said purported will was executed less than six months prior to the date of the death of the testator; that even though said *Page 653
will has never been offered nor admitted to probate, as aforesaid, yet, nevertheless, it constitutes a cloud upon the title to the real estate purported to be devised."
Other allegations of the amended Bill of Complaint are immaterial.
The prayer of the bill is:
"WHEREFORE, the plaintiffs pray that the purported warranty deed heretofore described, be cancelled and declared null and void; that the purported will and codicil heretofore described be cancelled and declared null and void and of no effect, or that the fourth provision of said purported will, devising 119 acres of land to the defendant Florida Conference Association of Seventh Day Adventists, be cancelled and declared invalid; that an accounting be had and taken between the parties, requiring the defendants to account for the rents, income and profits derived from real estate heretofore described; and also requiring the defendant Mabel Waggoner to account for the personal property heretofore described, and a decree for the amount so found to be due and for such further and other relief as equity may require and to your Honors shall seem meet."
While the will has not been probated, the record shows that it has been filed in the office of the County Judge of Palm Beach County. The record also shows that the will, insofar as it purports or pretends to devise anything to any benevolent, charitable, literary, scientific, religious, or missionary institution, corporation or association or purpose, is null and void and under the provision of Section 20 of the 1933 Probate Act of Florida. Therefore, the provision of the will, "FOURTH: I give, devise and bequeath to the Florida Conference Association of Seventh-Day Adventists, Inc., one hundred and nineteen (119) acres of land lying *Page 654
adjacent to the one hundred and sixty (160) acres, which 160 acres were covered by deed dated March, 1934, and conveyed to said Florida Conference of Seventh-Day Adventists. It is my will and desire that my wife, Mabel Waggoner, receive during her lifetime one and one-fourth (1 I/4) per cent interest on proceeds derived from the sale of the property already given by me to the Florida Conference of Seventh-Day Adventists covered by contract Agreement held by said Florida Conference of Seventh Day Adventists. Also on proceeds from sale of said 119 acres hereby bequeathed to said Florida Conference of Seventh-day Adventists." — while ineffective to pass title, is sufficient to cast some cloud on the complainant's title and, therefore, the complainant had the legal right to invoke the jurisdiction of the court of chancery to adjudicate such provision of the will null and void.
The record shows that the warranty deed referred to in the Amended Bill of Complaint was executed under the circumstances alleged in the bill. The record also shows that at the time of the execution of the deed the donor was under the influence and domination of the donee and that the deed was made without consideration.
The record shows that the deed was made while the donor was an inmate of the Seventh Day Adventists Hospital in Orlando, Florida, and at the time when a major surgical operation had been advised and which operation was performed a few days after the execution of the deed.
The record shows that the donor partly recovered from this operation, and, thereafter, continued to live on the property conveyed and to collect rents, incomes and profits therefrom.
The record shows that while the donor had not been a religious man prior to 1925, at about that time he became *Page 655
converted to the faith of the Seventh Day Adventists and from then oil became more and more devoted to that faith until he became obsessed with the belief that it was the one and only true Christian religion and that those who held any other religious faith were not Christians. He sought to convert practically all people with whom he came in contact to the faith of his church. He placed full and complete confidence in the Seventh Day Adventist Church and its officers. He consulted the officers of the church and especially the officers and managers of Florida Conference Association of Seventh Day Adventists, which was the chief administrative department of the church in Florida, about all of his affairs and was guided in his affairs of life by their counsel and advice. It would be hard to imagine a condition under which an otherwise sane and normal man could be more completely under the domination and influence of others than was the donor in this case under the influence and domination of the donee.
The deed was made under conditions and surroundings under which the donor would be most likely to be unduly influenced in favor of the donee. The exercise of undue influence does not necessarily mean the exercise of a wrong, a fraudulent, or even an immoral or unrighteous influence. It is that sort of an influence which when exercised even with the best of intentions by one occupying a confidential relation with the person influenced causes such person so influenced to do a thing which inures to the material benefit of the confidant exercising the influence, which thing so inuring the donee the person so influenced would not have otherwise been likely to do. The rule of law applicable to the validity of donations, gifts or devises made under such conditions is a wise and salutory one because any other would work to the advantage of unscrupluous and *Page 656
designing persons who would take advantage of the confidence of trusting and unwary people whose confidence they might be able to inspire and profit by.
The rule is stated in 6 R. C. L. 637 as follows:
"Assent obtained through undue influence may invalidate a contract. What constitutes undue influence is a question depending upon the circumstances of each particular case. It is a species of constructive fraud, which the courts will not undertake to define, by any fixed principles, lest the very definition itself should furnish a fingerboard pointing out the path by which it may be evaded. Whenever the relations between the parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that unfair advantage in a transaction is rendered probable either because of superior knowledge of the matter derived from a fiduciary relation or from overmastering influence on the one side, or from weakness, dependence or trust justifiably reposed on the other side, the presumption is that the transaction is void, and it is incumbent on the stronger party to show affirmatively that no deception was practiced or undue influence used and that everything was fair, open, voluntary and well understood.
In order to render this rule applicable it is not necessary that one of the parties should occupy such a dominant position towards the other as to justify the interference that the latter was without power to assert his will in opposition to the former. Nor is the rule confined to cases in which the relation between the parties is of a strictly fiduciary nature. It applies whenever a confidential relation exists as a fact, or dominion may be exercised by one of the parties over the other. For instance, a relation of peculiar trust and confidence exists between a spiritualistic medium and a believer in his alleged powers, which raises *Page 657
the presumption that an advantage obtained by the former over the latter resulted from undue influence. Therefore, the burden of proof rests upon one claiming to be a spiritualistic medium, to show that a contract made by him with one having implicit belief in the existence of the powers claimed by such medium was free from undue influence. The same rule applies to a contract between a physician and his patient. The fact that such a contract is presumptively invalid is available as a defense in an action at law. But to render such a transaction valid it is necessary to show only that the other party had competent and disinterested advice, or that he performed the act or entered into the transaction voluntarily, deliberately and advisedly, knowing its nature and effect, and that his consent was not obtained by reason of the power and influence to which the relation might be supposed to give rise. The mental weakness of one of the parties is an important element in raising a presumption of undue influence or in determining its existence. It is undoubtedly the law that when by physical or mental superiority, one obtains an advantage in a transaction over another who is enfeebled in mind and body, or by disease or old age, the person obtaining such advantage will be required to show that the transaction was a fair one.
"But such a rule can apply only to one who was present and actively concerned in bringing about the result complained of. Nor will undue influence exercised upon a person in procuring an assignment of property rights be inferred solely from the advanced age of the assignor. Stronger proof is, and manifestly should be, required to raise a presumption of undue influence in the case of a will than of a deed or contract, for the former, unlike the latter, can never take effect until the giver is dead, and therefore *Page 658
in a condition utterly incapacitating his further enjoyment or use of the subject of his testamentary disposition."
See also Newman v. Smith, 77 Fla. 633, 667, 680, 82 So. 236,251; Hamilton v. Morgan, 93 Fla. 311, 112 So. 80; Goodbar v. Lidikey, 136 Ind. 1, 35 N.E. 691, 43 A. S. R. 296; Holmes v. Holmes, 129 Mich. 412, 89 N.W. 47.
In Section 497 Restatement of the Law, Contracts, it is said:
"Where one party is under the domination of another, or byvirtue of the relation between them is justified in assumingthat the other party will not act in a manner inconsistent withhis welfare, a transaction induced by unfair persuasion of thelatter, is induced by undue influence and is voidable.
Comment:
"a. The protection given parties of the class included under the rule stated in this Section is broader than that given where parties bear no such relation to one another. Duress between such parties has the same effect as between other parties, but unfair persuasion without fear is enough to constitute undue influence within the rule stated in the Section. The relationships that ordinarily fall within the rule are those of parent and child, guardian and ward, husband and wife, physician and patient, attorney and client, clergyman and parishioner. In each of these cases, however, it is a question of fact whether the relationship in a particular case is such as to give one party dominance over the other, or put him in a position where words of persuasion have undue weight; and even though none of the relations enumerated above exist, if the relationship in fact was such that there was dominance or justifiable trust and confidence, the result is the same as if it were based on one of the relationships enumerated above.
"b. Inadequacy of consideration or any other disadvantageous *Page 659
feature in an agreement is important as evidence in connection with other circumstances showing unfair persuasion, but is not in itself enough to establish undue influence. Good faith of the persuader does not preclude the possibility of undue influence, but bad faith strongly tends to show it.
"c. The degree of persuasion that is unfair depends on a variety of circumstances. The ultimate question is not merely whether the persuasion induced the transaction, for such persuasion is often permissible, but whether the result was produced on the one hand by influencing a freely exercised and competent judgment or on the other by dominating the mind or emotions. The weakness or dependence of the person persuaded is a strong circumstance tending to show persuasion may have been unfair."
In Section 498 of the same work it is said:
"Where a beneficiary enters into a transaction with his fiduciary relating to matters within the scope of the fiduciary relation, the transaction is voidable, unless
"(a) It is fair and reasonable, and
"(b) is assented to by all parties beneficially interested, with knowledge of their legal rights and of all relevant facts that the fiduciary knows or should know, and
"(c) these parties are of competent age and understanding and are not subject to undue influence."
In Rich v. Hallman, 106 Fla. 348, 143 So. 292, this Court, speaking through Mr. Justice TERRELL, said:
"In view of the age and infirmity of the donor, the confidential relation existing between the donor and the donee the influence shown to have been exerted over the donor by the friends of the donee and by the donee herself and in view of other facts and circumstances peculiar to this case, we feel impelled to hold that the duty was on the donee to *Page 660
show that the assignment of the note and mortgage brought in question was bona fide and that it was not secured by undue influence, deceit or other improper means. Peacock v. DeBois,90 Fla. 172, 105 So. 32; Nelson v. Brown, 164 Ala. 397,51 So. 360; Haslinger v. Gabel, 344 Ill. 354, 176 N.E. 340; Allore v. Jewell, 94 U.S. 506-513, 24 L.Ed. 260, pages 263-264, 12 R. C. L. 972; Black on Rescission and Cancellation, Sections 249 and 253.
"All these authorities support the general rule founded on public policy that where a mutual confidential relation exists and a gift is made to one in whom the confidence is reposed it is prima facie void because of such relation. The law presumes in other words, when such relation exists that the gift was obtained by undue influence or other improper means. When persons occupy positions of trust and confidence as did the parties to this cause, they are held to a strict measure of candor in their dealings and any transactions between them predicated on a grossly inadequate consideration will be viewed as suspicious. Equity raises a presumption against the validity of such dealings and imposes on the vendee or the donee the burden of showing the good faith and voluntary conduct of the donor or the vendor as the case may be. 12 R. C. L. 972 and cases cited."
My conclusion is that the chancellor failed to apply the rule of law herein above set forth to the record in this case in this, that under the conditions shown to exist even though the donor may have been of sound mind as to all things except his religious convictions, the record shows a fiduciary relation existing between the donor and the donee which, when shown to exist, cast the burden upon the donee to show that the deed was not the result of undue influence. *Page 661
For the reasons stated, I think the decree should be reversed and the cause remanded for further proceedings.
ON PETITION FOR REHEARING
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Proceeding by State on relation of City of Miami Beach, against Jerry W. Carter and others, as and constituting the Florida Railroad and Public Utilities Commission, and Coast Cities Coaches, Inc., involving issue as to whether the Railroad and Public Utilities Commission has jurisdiction to grant certificate of public convenience and necessity to Coast Cities Coaches, Inc., to operate motor buses from Haulover Beach Park to Hialeah and Miami Springs. From judgment entered, the City of Miami Beach appeals.
Affirmed.
The question which is presented on this appeal is whether the Florida Railroad and Public Utilities Commission has jurisdiction to grant a certificate of public convenience and necessity to the appellee Coast Cities Coaches, Inc., a Florida corporation, *Page 553
to operate motor buses from Haulover Beach Park to Hialeah and Miami Springs, it being admitted that the proposed route would be through the municipalities of Surfside, Miami Beach, North Bay Village and Miami. The determination of this question revolves around the proper construction to be given to one of the exemptions contained in Sec. 323.29, F.S. 1941, F.S.A.
The exemption to which reference has just been made is as follows: "There shall be further exempted from the provisions of this chapter and from commission jurisdiction and control, persons operating motor vehicles * * * between cities and towns whose boundaries adjoin * * where such business of carriage is regulated by the legislative body of such cities and towns." It is contended by appellant, City of Miami Beach, since the proposed route provides for operation within the City of Miami Beach, between said city and adjoining cities and towns and in adjoining suburban territory that Coast Cities Coaches, Inc., is exempted from the provisions of Chapter 323, F.S. 1941, F.S.A., and from the jurisdiction and control of the Florida Railroad
Public Utilities Commission. We are unable to agree with appellant's position.
The proposed route of operation begins at a point in Haulover Beach Park which is territory outside the corporate limits of any municipality, and then proceeds through Bal Harbour, Surfside, Miami Beach, North Bay Village, Miami, an area which is within Dade County but not within the limits of any incorporated city or town and lies between Northwest Seventh Avenue in Miami and the east border of the city limits of Hialeah, thence through Hialeah and south into Miami Springs. It is patent that this route does not lie wholly within the corporate limits of any city or town or entirely within the city limits of cities and towns whose boundaries adjoin. In construing the above quoted excerpt from Sec. 323.29, F.S. 1941, F.S.A., appropriate significance must be given the language "where such business of carriage is regulated by the legislative body of such cities or towns." It is clear that the exemption was intended to be applicable only in those instances where the operation of such business is regulated by the legislative bodies of the cities and towns within which the business of carriage is conducted. The cities and towns traversed by its route could not exercise jurisdiction over the operation of the business of carriage of Coast Cities Coaches, Inc., for it proposes to operate in areas which do not lie within the corporate limits of any city or town and between fixed termini with one of such termini being in unincorporated area. We do not find the clause "or the adjoining suburban territory" helpful to appellant in connection with the question here under consideration. We held in the case of Brack v. Carter et al., Fla., 37 So.2d 89, these words meant only that the exemption would apply where the primary business of carriage was wholly within the corporate limits of a city or town and the operation in adjoining suburban territory was fortuitous in character. The proposal of Coast Cities Coaches, Inc., although it may be said to encompass operation which is either within incorporated cities or towns, or within adjoining suburban territory, contemplates operating in the adjoining suburban territory as a part of its regular scheduled run between fixed termini and, therefore, such operation is not intended to be casual or merely incidental to the primary business of carriage.
It is suggested that consideration must be given to the words "between cities and towns" and that the word "between" connotes only operation within two cities whose boundaries adjoin. This argument is not without merit but it is unnecessary to turn the case upon such point. It is possible that the exemption contained in Section 323.29, F.S. 1941, F.S.A., might be applicable if the business of carriage conducted by persons operating motor vehicles should be wholly within the corporate limits of several adjoining cities or towns so that there would be no portion or portions of its operations which would not be subject to municipal regulation. This might be so because the entire operation of persons engaged in the business of carriage should be subject to the exclusive regulation of either cities or towns or the Florida Railroad Public Utilities Commission. As *Page 554
aforesaid, it is unnecessary in the instant case to determine this question. Consequently, we will refrain from doing so. We wish to emphasize the fact that we are dealing with and considering only privately owned motor vehicles used in the business of carriage and are not here concerned with municipally owned transportation systems.
It is our conclusion that the proposed operation of business of carriage by Coast Cities Coaches, Inc., should be regulated by the Florida Railroad Public Utilities Commission for it is the only regulatory body which could, under the law, exercise complete and effective jurisdiction.
The final judgment from which this appeal was taken should be and it is hereby affirmed.
Affirmed.
ADAMS, C.J., and THOMAS and BARNS, JJ., concur.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 7, 2005
TENTH CIRCUIT
Clerk of Court
JAY ALLEN FREY,
Plaintiff-Appellant,
No. 05-1061
v. (D.C. No. 04-Z-2439)
(Colorado)
D.D.A. TIM McCORMACK,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Jay Allen Frey, a state prisoner appearing pro se, appeals from the district
court’s dismissal of his civil rights complaint pursuant to 42 U.S.C. § 1983. The
district court dismissed his suit without prejudice because he failed to submit a
certified copy of his trust fund account as ordered by the court. Construing Mr.
*
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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
Frey’s pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we
deny his motion to proceed in forma pauperis (ifp) on appeal and therefore
dismiss the appeal.
Mr. Frey filed an application with the district court to proceed ifp pursuant
to 28 U.S.C. § 1915. He included a trust fund account statement that was
notarized but not certified by a prison official. On November 24, 2004, the
magistrate judge informed Mr. Frey that the ifp application was deficient because
the trust fund account statement he submitted was not certified by a prison
official. The judge ordered Mr. Frey to cure the deficiency within thirty days or
suffer dismissal of his claims without prejudice. On December 7, 2004, Mr. Frey
submitted another account statement that was notarized but not certified. The
district court dismissed the action without prejudice for failure to cure.
The Federal Rules of Civil Procedure permit a district court to dismiss an
action for failure to comply with a court order. See Fed. R. Civ. P. 41(b). We
review the district court’s dismissal of Mr. Frey’s suit for abuse of discretion.
See Mobley v. McCormick, 40 F.3d 337, 340 & n.1 (10th Cir. 1994). Subsection
(a)(2) of 28 U.S.C. § 1915 instructs that
A prisoner seeking to bring a civil action . . . without
prepayment of fees . . . shall submit a certified copy of the trust
fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the
filing of the complaint . . . , obtained from the appropriate
official of each prison at which the prisoner is or was confined.
-2-
The § 1915 form used by Mr. Frey prominently lists this requirement in almost
identical language. Moreover, the magistrate judge explicitly informed Mr. Frey
that the account statement he had submitted “was not certified by a prison
official” and that he must cure this deficiency within thirty days or risk dismissal.
While Mr. Frey did respond in a timely fashion, he failed to address the
magistrate judge’s order by submitting the appropriately certified document.
Because Mr. Frey received adequate notice of the § 1915 requirement, sufficient
time to cure the deficiency, and proper warning of the penalty of dismissal for
failure to abide by the court’s order, the district court did not abuse its discretion
in dismissing the action without prejudice.
On appeal, Mr. Frey states that “[t]he court dismissed on my case because I
didn’t get the remidy of my financial records in time, and I had no control over
this,” Aplt. Br. at 16, and “I have no control of getting the proper paper work,
even when I’ve ask for it.” Id. at 3. He also states that “I have been moved with
out any notice, there-fore my paper work would never follow me. My mail never
was forwarded, nor were any kites I had written to fix any problems I court’s
asked me to fix.” Id. at 17. Even if Mr. Frey was moved without notice and
experienced difficulties in receiving his mail, these difficulties do not explain
why he neglected to tell the magistrate judge when he filed his response why he
could not follow the court’s order. Moreover, the record contradicts Mr. Frey’s
-3-
explanations because prison officials did provide him an account statement
promptly after he requested it, see rec., doc. 4 at 3-4, and there is no indication
that he asked for the document to be certified. Having determined that the
dismissal of his suit is appropriate, we do not consider the merits of Mr. Frey’s
claims that his civil rights were violated.
Mr. Frey has also submitted an application to proceed ifp on appeal. He
has included a properly certified copy of his account statement, which indicates a
positive balance of $42.55. While Mr. Frey has demonstrated that he cannot pay
the filing fee, he has not otherwise met the requirement that he raise a
nonfrivolous issue. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.
1991). We therefore deny his application to proceed on appeal without payment
of the fee.
For the reasons stated above, we DENY Mr. Frey’s application to proceed
ifp, and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ZBIGNIEW LASKOWSKI, No. 53067-8-II
Appellant,
v.
ORDER GRANTING
WASHINGTON STATE DEPARTMENT OF MOTION TO PUBLISH
LABOR AND INDUSTRIES,
Respondent.
Respondent, Washington State Department of Labor and Industries, filed a motion to
publish this court’s opinion filed on September 24, 2019. After consideration, the court grants the
motion. Accordingly, it is
ORDERED that the final paragraph in the opinion which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports, but will
be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further
ORDERED that the opinion will now be published.
FOR THE COURT
PANEL: Jj. Worswick, Lee, Cruser
Lee, C.J.
We concur:
Worswick, J.
Cruser, J.
Filed
Washington State
Court of Appeals
Division Two
September 24, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ZBIGNIEW LASKOWSKI, No. 53067-8-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
LEE, A.C.J. — Zbigniew Laskowski appeals the superior court’s order affirming the Board
of Industrial Insurance Appeals order closing Laskowski’s claim and awarding him partial
permanent disability benefits. Because Laskowski entered into an agreement with the Department
of Labor & Industries for a binding medical examination and the results of the binding medical
examination resolve Laskowski’s claims, we affirm the superior court’s order.
FACTS
In 2006, Laskowski suffered a work-related back injury. The Department allowed
Laskowski’s claim and provided him with benefits. In 2008, the Department closed Laskowski’s
claim with a partial permanent disability award. However, in 2010, the Department reopened
Laskowski’s claim. In February 2015, the Department ended Laskowski’s time loss compensation.
In May 2015, the Department again closed Laskowski’s claim because treatment was no longer
No. 53067-8-II
necessary. The Department did not increase Laskowski’s partial permanent disability award,
which was set at a category III (3). Laskowski appealed the Department’s 2015 orders.
At a conference before the Board of Industrial Appeals judge, the parties agreed that Dr.
Diana Kraemer would perform a binding medical examination to resolve the disputed factual
issues on appeal and that they would be bound by Dr. Kraemer’s opinions in the binding medical
examination. The parties also agreed that they would provide complete records that have been
reviewed by Laskowski to Dr. Kraemer and that Dr. Kraemer’s medical examination would resolve
the following issues:
(1) does Mr. Laskowski’s industrial injury condition(s) need medical treatment; (2)
did his industrial injury prevent him from working between May 12, 2015, and May
15, 2015, on a temporary basis; (3) is Mr. Laskowski permanently precluded by the
industrial injury from working as of May 15, 2015; and alternatively (4) what
degree of permanent partial disability best describe the claimant’s residual
impairment from his industrial injury?
Administrative Record (AR) at 50. The parties further agreed that after completing a review of
medical records and performing a medical examination, Dr. Kraemer would provide a written
report and include in the report answers to the following questions relating to Laskowski’s
industrial injury:
1. State your diagnosis of the conditions found on examination.
2. Of those conditions found, which of them, if any, are related to the
claimant’s January 5, 2006 industrial injury?
3. Do any conditions related to the industrial injury require further medical
treatment as of May 15, 2015? If this is the case, what treatment
recommendations do you have?
4. Did the residual impairment from the January 5, 2006 industrial injury
temporarily prevent M[r]. Laskowski from obtaining and performing work
on a full-time basis during the period between May 12, 2015, and May 15,
2015?
2
No. 53067-8-II
5. Did the residual impairment from the January 5, 2006 industrial injury
permanently prevent M[r]. Laskowski from obtaining and performing work
on a full-time basis as of May 15, 2015, and thereafter?
6. If Mr. Laskowski’s industrial injury conditions do not require further
medical treatment, what degree of permanent partial disability best
described his residual impairment from the industrial injury?
AR at 50-51 (boldface omitted).
After completing the binding medical examination, Dr. Kraemer determined that there was
no additional recommended treatment for conditions related to Laskowski’s industrial injury. Dr.
Kraemer also determined that Laskowski’s partial permanent disability was a Category IV (4).
Based on the parties’ agreement, the Board of Industrial Insurance Appeals issued an order
on agreement of parties. The Board affirmed the Department’s order closing Laskowski’s claim
because no further treatment was necessary. The Board’s order also reversed the Department’s
order declining to increase Laskowski’s permanent partial disability award and remanded for the
Department to award permanent partial disability benefits consistent with Category IV (4).
Laskowski appealed the Board’s order to the superior court. The superior court entered
findings of fact and conclusions of law, concluding that the order on the agreement of parties was
correct. Accordingly, the superior court affirmed the Board’s order.
Laskowski appeals.
ANALYSIS
A. STANDARD OF REVIEW
Our review of the superior court decision is governed by the Industrial Insurance Act (IIA);
specifically, our review is governed by RCW 51.52.140, which states that an “[a]ppeal shall lie
from the judgment of the superior court as in other civil cases.” This results in a different role for
3
No. 53067-8-II
this court than is typical for appeals from other administrative decisions. Rogers v. Dep’t of Labor
& Indus., 151 Wash. App. 174, 180, 210 P.3d 355, review denied, 167 Wash. 2d 1015 (2009). Thus,
under the IIA, we review only “‘whether substantial evidence supports the trial court's factual
findings and then review, de novo, whether the trial court's conclusions of law flow from the
findings.’” Rogers, 151 Wash. App. at 180 (quoting Watson v. Dep't of Labor & Indus., 133 Wn.
App. 903, 909, 138 P.3d 177 (2006)).
B. AGREEMENT TO A BINDING MEDICAL EXAMINATION
Laskowski argues that his agreement to enter into a binding medical examination was an
improper waiver of his right to compensation under the IIA. Laskowski also challenges the
contents of the Board’s order on agreement of parties, which adopted the findings of the binding
medical examination.
Entering into an agreement for a binding medical examination is not an improper evasion
of benefits. Therefore, Laskowski’s agreement for a binding medical examination was proper and
Laskowski has no grounds for challenging the Board’s order based on that binding medical
examination. And because Laskowski agreed to resolve the factual disputes relating to his
industrial injury through a binding medical examination, he cannot now dispute Dr. Kraemer’s
factual findings and conclusions.
WAC 263-12-093(1) provides that “If an agreement concerning final disposition of any
appeal is reached by all the parties present or represented at a conference, an order shall be issued
in conformity with their agreement, providing the board finds the agreement is in accordance with
the law and the facts.” Parties may also agree to a medical examination to resolve their dispute:
4
No. 53067-8-II
The parties present at a conference may agree to a vocational evaluation or a further
medical examination of a worker or crime victim, including further evaluative or
diagnostic tests, except such as require hospitalization, by medical or vocational
experts acceptable to them, or to be selected by the industrial appeals judge. In the
event the parties agree that an order on agreement of parties may be issued based
on the report of vocational evaluation or medical examination, the industrial
appeals judge may arrange for evaluation or examination and the board will pay
reasonable and necessary expenses involved. Upon receipt by the board, copies of
the report of such examination or evaluation will be distributed to all parties
represented at the conference and further appropriate proceedings will be scheduled
or an order on agreement of parties issued. If the worker or crime victim fails to
appear at the evaluation or examination, the party or their representative may be
required to reimburse the board for any fee charged for their failure to attend.
WAC 263-12-093(4).
Here, the Board’s report of proceedings shows that the parties agreed to a binding medical
examination to be performed by Dr. Kraemer. The purpose of the binding examination was to
resolve the underlying factual disputes regarding the appeal; specifically, whether Laskowski was
able to work during the time-loss compensation period, whether further treatment was warranted
(to justify closing the claim), and whether the current category of permanent partial disability was
correct. Because the parties agreed to a binding medical examination with the express purpose of
resolving the factual disputes underlying the appeal, it was proper under WAC 263-12-093(1) and
WAC 263-12-093(4) for the Board to enter an order on agreement of the parties consistent with
the findings in the binding medical examination.
Laskowski argues that the Board’s order was improper because the agreement to a binding
medical examination violates RCW 51.04.060, which provides that “[n]o employer or worker shall
exempt himself or herself from the burden or waive the benefits of this title by any contract,
5
No. 53067-8-II
agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro
tanto void.” Laskowski’s argument fails.
In Solven v. Dep’t of Labor & Industries, the court held that an agreement to resolve an
appeal by agreed examinations is not void under RCW 51.04.060. 101 Wn. App 189, 195, 2 P.3d
492, review denied, 142 Wash. 2d 1012 (2000). The court explained, “[t]he agreement merely
stipulates to a method of finding facts; it does not prevent the employee from demanding all
compensation to which he is entitled.” Id. The court also noted that the plain language of the
statute demonstrates that it was meant to prevent employers from exploiting employees by urging
them to contract away benefits under the IIA. Id.
The same is true here. Laskowski did not enter into an agreement to waive any of the
benefits to which he was entitled under the IIA. Instead, Laskowski entered into an agreement
stipulating to a specific method of determining the facts necessary to resolving his appeal.
Therefore, the agreement to a binding medical examination is not void under RCW 51.04.060.
Solven, 101 Wash. App. at 195.
Because the parties’ agreement to a binding medical examination was not void or improper,
the superior court properly concluded that the agreement was proper and binding. Accordingly,
we affirm the superior court.
6
No. 53067-8-II
B. LASKOWSKI’S OTHER ARGUMENTS
Laskowski makes several other arguments challenging the validity of the report generated
after the binding medical examination and the Board’s order. However, most of these are related
to Laskowski’s disagreement with Dr. Kraemer’s findings and conclusions. We do not consider
these arguments.1
None of Laskowski’s challenges to the Dr. Kraemer’s findings and the Board’s order are
challenges to the findings of fact or conclusions of law that were made by the superior court. In
IIA appeals, we review the superior court’s findings of fact and conclusions of law. RCW
51.52.140; Rogers, 151 Wash. App. at 180. Because Laskowski fails to challenge the superior
court’s findings of fact, they are verities on appeal. Mid Mountain Contractors, Inc. v. Dep't of
Labor & Indus., 136 Wash. App. 1, 4, 146 P.3d 1212 (2006). Those findings of fact, in turn, support
the superior court’s conclusions that the Board’s order is correct.
1
Laskowski also argues that his condition has a much greater negative impact on him and that a
“correctly rated impairment would reflect that” and relies on several medical records created after
the date of the Dr. Kraemer’s report and the Board’s order on agreement of parties. Br. of App. at
23. Because Laskowski’s argument relies on records that were created after the date of Dr.
Kraemer’s report, the Board’s order on agreement of parties, and the superior court’s findings of
fact and conclusions of law, we do not consider his argument.
Laskowski also appears to argue that the Board’s order was incorrect because the Industrial
Appeals Judge stated that he would issue the order. However, the Report of Proceedings
memorializing the parties’ agreement states that after the binding medical examination is
completed, the appeal will be resolved by an order on agreement of the parties issued by the Board,
which is exactly what occurred. Therefore, the Industrial Appeals Judge’s misstatement is not an
irregularity that undermines the parties’ agreement to a binding medical examination. To the
extent that it is actually challenged, we affirm the superior court’s finding on this point.
7
No. 53067-8-II
Moreover, by agreeing to a binding medical examination, Laskowski (and the Department)
agreed to accept the medical findings contained in the examination report. See WAC 263-12-093.
Laskowski cannot now challenge the underlying factual findings contained in the examination
report and conclusions resulting from those findings because he disagrees with them.
We affirm the superior court’s order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, A.C.J.
We concur:
Worswick, J.
Cruser, J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51979-8-II
consolidated with
Respondent,
Nos. 51982-8-II
51989-5-II
v.
ROSS ANTHONY BURKE, PUBLISHED OPINION
Appellant.
MAXA, C.J. – Ross Burke, who now is over 30 years old, appeals three juvenile court orders
denying his petitions to restore his right to possess a firearm that he filed in separate juvenile court
cases. As a result of criminal adjudications in those juvenile court cases, the juvenile court had
prohibited Burke from possessing or owning a firearm. RCW 9.41.040(4)(b)1 provides that a
petition to restore the right to possess a firearm may be filed only at the “court of record” that
ordered the prohibition on possession of a firearm or at the superior court in the county in which
the petitioner resides. The juvenile court dismissed the petitions because they were filed under a
juvenile court cause number, ruling that a juvenile court is not a “court of record.”
1
RCW 9.41.040 has been amended since the appellant submitted his petitions. Because those
amendments do not materially affect the statutory language relied on by this court, we cite to the
current version of the statute.
No. 51979-8-II / 51982-8-II / 51989-5-II
We hold that (1) a juvenile court, as a division of the superior court, is a “court of record”
under RCW 9.41.040(4)(b); (2) RCW 9.41.040(4)(b) authorized Burke to file his petitions under
the juvenile court cause numbers even though he no longer was a juvenile; and (3) the superior
court had jurisdiction to restore Burke’s right to possess a firearm. Accordingly, we reverse the
juvenile court’s orders denying Burke’s petitions to restore his right to possess a firearm and
remand for the superior court to enter the restoration orders in all three cases.2
FACTS
At the age of 17, Burke pleaded guilty in 2004 to a Class C felony in Clark County
juvenile court. The juvenile court’s order of disposition prohibited Burke from owning,
possessing, or controlling a firearm. Burke had two other juvenile adjudications in 2001 and in
2002 that contained the same prohibitions.
In 2018, Burke filed a petition to have his right to possess a firearm restored. He filed the
petition under the same juvenile court cause number as his original 2004 adjudication. The State
acknowledged that Burke had satisfied the statutory requirements for restoration of his right to
possess a firearm. However, the State argued that the juvenile court lacked authority to restore
Burke’s right to possess a firearm because the juvenile court was not a “court of record.” The
juvenile court ruled that a juvenile court was not a “court of record” within the meaning of RCW
9.41.040(4)(b). Therefore, the court denied Burke’s petition.
Burke filed similar petitions in his other two juvenile cases, under the same juvenile court
cause numbers as his original adjudications. The juvenile court in those cases also ruled that a
juvenile court was not a “court of record” and denied Burke’s petitions.
Burke appeals the three orders denying his petitions.
2
The parties have agreed that Burke is eligible for firearm restoration.
2
No. 51979-8-II / 51982-8-II / 51989-5-II
ANALYSIS
A. STANDARD OF REVIEW
This case involves questions of statutory interpretation, which we review de novo. State
v. Evans, 177 Wash. 2d 186, 191, 298 P.3d 724 (2013). When engaging in statutory interpretation,
our objective is to determine the legislature’s intent by looking to the statute’s plain language,
the text of the provision, the context of the statute, related provisions, and the statutory scheme
as a whole. State v. Larson, 184 Wash. 2d 843, 848, 365 P.3d 740 (2015). We attempt to
harmonize statutory provisions whenever possible. State v. Peterson, 174 Wash. App. 828, 856,
301 P.3d 1060 (2013). If a statute is unambiguous, we apply the statute’s plain meaning as an
expression of legislative intent. Larson, 184 Wash. 2d at 848.
B. JUVENILE COURT IS A COURT OF RECORD
Burke argues that the juvenile court had the authority to consider his petitions to restore
his right to possess a firearm because it is a “court of record” as required by RCW
9.41.040(4)(b). The State conceded this point at oral argument. We agree.
1. Legal Background
Under RCW 9.41.040(2)(a)(i), a person cannot legally own, possess, or control any
firearm if the person has been convicted of any felony. RCW 9.41.047(1)(a)3 provides that at the
time a person is convicted of an offense making the person ineligible to possess a firearm, the
court shall notify the person that he or she “may not possess a firearm unless his or her right to
do so is restored by a court of record.”
3
RCW 9.41.047 has been amended since the appellant submitted his petitions. Because those
amendments do not materially affect the statutory language relied on by this court, we cite to the
current version of the statute.
3
No. 51979-8-II / 51982-8-II / 51989-5-II
RCW 9.41.040(4)(a) states that a person who has been prohibited from possessing a
firearm may, subject to certain statutory requirements, petition a “court of record” to have his or
her right to possess a firearm restored. If the petitioner has met the statutory requirements, the
court performs a ministerial function to restore the petitioner’s rights. State v. Swanson, 116 Wn.
App. 67, 78, 65 P.3d 343 (2003). The parties agree that Burke has met the statutory
requirements.
RCW 9.41.040(4)(b) states that a person may file a petition to have his or her right to
possess a firearm restored only at:
(i) The court of record that ordered the petitioner’s prohibition on possession of a
firearm; or
(ii) The superior court in the county in which the petitioner resides.
(Emphasis added.) At issue here is whether a juvenile court is a “court of record.”
2. Juvenile Court Status
Article IV, section 11 of the Washington Constitution states that “[t]he supreme court and
the superior courts shall be courts of record, and the legislature shall have power to provide that
any of the courts of this state, excepting justices of the peace, shall be courts of record.” The
legislature has specified that courts of record include the Supreme Court, RCW 2.04.020, the
Court of Appeals, RCW 2.06.010, and the superior courts, RCW 2.08.030.
Chapter 13.04 RCW establishes juvenile courts. Juvenile courts have exclusive original
jurisdiction over various matters involving juveniles, including matters relating to certain
offenses committed by juveniles. RCW 13.04.030(1)(e).4
4
RCW 13.04.030 has been amended since the appellant submitted his petitions. Because those
amendments do not materially affect the statutory language relied on by this court, we cite to the
current version of the statute.
4
No. 51979-8-II / 51982-8-II / 51989-5-II
But the juvenile court is not an independent court. RCW 13.04.021(1) expressly states
that the juvenile court “shall be a division of the superior court.” The legislature “can
promulgate laws that govern procedures as to which ‘sessions’ of the superior court will hear
certain types of cases.” State v. Posey, 174 Wash. 2d 131, 136, 272 P.3d 840 (2012). The juvenile
court is merely the superior court sitting in juvenile court session. Id. at 141.
The Supreme Court repeatedly has confirmed that the juvenile court and the superior
court are not separate courts. See State v. Maynard, 183 Wash. 2d 253, 263, 351 P.3d 159 (2015)
(“[J]uvenile courts and superior courts are not separate and distinct; juvenile courts exist as a
division of the superior court.”); Posey, 174 Wash. 2d at 141 (“Juvenile courts are not separate and
distinct from superior courts.”); State v. Werner, 129 Wash. 2d 485, 492, 918 P.2d 916 (1996)
(“The juvenile court is only a division of the superior court, not a separate constitutional court.”).
The legislature “simply authorized the characterization of the superior court, or a ‘session’
thereof, as a ‘juvenile court’ ” when processing certain cases. Dillenburg v. Maxwell, 70 Wash. 2d
331, 352, 422 P.2d 783 (1967).
Because the superior court is a court of record and the juvenile court is a division of the
superior court, the juvenile court necessarily must also be a court of record. Any other holding
would treat the superior court and the juvenile court as separate, independent courts rather than
part of the same court. Accordingly, we hold that the juvenile court is a court of record and that
the juvenile court had authority under RCW 9.41.040(4)(b)(i) to consider Burke’s petitions to
restore his right to possess a firearm.
C. FILING PETITIONS IN JUVENILE COURT
Burke argues that RCW 9.41.040(4)(b)(i) authorized him to file his petitions to restore
his right to possess a firearm under the same juvenile court cause numbers as his original
5
No. 51979-8-II / 51982-8-II / 51989-5-II
adjudications even though he no longer was a juvenile. The State conceded this point at oral
argument. We agree.
RCW 9.41.040(4)(b)(i) states that a petition to restore firearm rights can be filed in the
court of record that removed those rights. Here, the juvenile court prohibited Burke from
possessing a firearm. As discussed above, the juvenile court is a court of record. Therefore, the
plain language of RCW 9.41.040(4)(b)(i) authorized Burke to file his petitions in the same
juvenile court as his adjudications. And nothing in RCW 9.41.040(4)(b)(i) suggests that the
petitioner must be a juvenile in order to file the petition in juvenile court.
Accordingly, we conclude that Burke could properly file his petitions under his juvenile
court cause numbers.
D. JURISDICTION TO ADDRESS PETITIONS
Burke argues that the juvenile court had jurisdiction to restore his right to possess a
firearm under RCW 9.41.040(4)(b)(i) even though he was not a juvenile when he filed his
petitions.5 We hold that regardless of the limits of the juvenile court’s statutory jurisdiction, the
superior court had jurisdiction to consider the petitions and to grant Burke’s petitions based on
the general constitutional jurisdiction of superior courts.
1. Legal Background
Subject matter jurisdiction refers to a court’s authority to consider a type of controversy.
State v. Peltier, 181 Wash. 2d 290, 296, 332 P.3d 457 (2014). Article IV, section 6 of the
Washington Constitution grants superior courts original jurisdiction in all criminal felony cases
and “in all cases and of all proceedings in which jurisdiction shall not have been by law vested
5
The parties agree that a juvenile court’s jurisdiction is statutory, not constitutional.
6
No. 51979-8-II / 51982-8-II / 51989-5-II
exclusively in some other court.” Whether a court has subject matter jurisdiction is a question of
law that we review de novo. Peltier, 181 Wash. 2d at 294.
RCW 13.04.030 establishes that the juvenile court has “exclusive original jurisdiction”
over proceedings “[r]elating to juveniles alleged or found to have committed” certain offenses.
RCW 13.04.030(1)(e). The relevant statute defines “juvenile” to mean any individual under age
18. RCW 13.40.020(15).6
Once the juvenile court obtains statutory jurisdiction over a juvenile, that jurisdiction
terminates when the defendant becomes 18 unless the court lawfully extends its jurisdiction
before losing jurisdiction. State v. Dion, 160 Wash. 2d 605, 609, 159 P.3d 404 (2007). “Even if a
juvenile cause were pending and not yet heard on the merits prior to the juvenile’s 18th birthday,
the juvenile court loses jurisdiction.” State v. Bushnell, 38 Wash. App. 809, 811, 690 P.2d 601
(1984).
However, once the juvenile court’s exclusive statutory jurisdiction over a juvenile
offender ends, the superior court continues to have jurisdiction over that offender. Posey, 174
Wash. 2d at 140-41. By creating a juvenile court, “the legislature did not deprive the superior
courts of their original jurisdiction over crimes committed by juveniles.” Id. at 140. “[E]ven if
charges are filed and a plea is entered in juvenile court, the general jurisdiction of the superior
court automatically takes over when the offender turns 18,” absent an extension. State v.
Golden, 112 Wash. App. 68, 74-75, 47 P.3d 587 (2002).
6
RCW 13.40.020 has been amended since the appellant submitted his petitions. Because those
amendments do not materially affect the statutory language relied on by this court, we cite to the
current version of the statute.
7
No. 51979-8-II / 51982-8-II / 51989-5-II
2. Analysis
Here, Burke was 32 years old when he filed his petitions to restore his right to possess a
firearm in the juvenile court. The juvenile court’s statutory jurisdiction ended when Burke
became 18 years old. Dion, 160 Wash. 2d at 609. But after that point, there is no question that
constitutional jurisdiction over Burke’s cases remained with the superior court. Posey, 174
Wash. 2d at 141-42.
Burke’s restoration petitions were considered by judges of the superior court.7 Superior
courts have broad constitutional jurisdiction over matters like petitions to restore the right to
possess a firearm. Therefore, we conclude that the superior court had jurisdiction to consider
Burke’s petitions to restore his firearm rights and the superior court judges had authority to grant
those petitions.
CONCLUSION
We reverse the juvenile court’s orders three orders denying Burke’s petitions to restore
his right to possess a firearm and remand for the superior court to enter the restoration orders.
MAXA, C.J.
We concur:
MELNICK, J.
SUTTON, J.
7
Because superior court judges considered Burke’s petitions, we need not address whether
commissioners appointed pursuant to chapter 2.24 RCW would have the authority to grant
Burke’s petitions.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52278-1-II
Respondent.
vs. PUBLISHED OPINION
LLEWELLYN ANDREW ROY,
Appellant.
MAXA, C.J. – Llewellyn Roy appeals his conviction of second degree animal cruelty.
Under RCW 16.52.207(2)(a)1, a person is guilty of second degree animal cruelty for “fail[ing] to
provide the animal with necessary shelter, rest, sanitation, space, or medical attention” and
causing unnecessary pain as a result.
Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing the
offense. Because the jury was instructed on all five means and was not instructed that jurors had
to be unanimous regarding one of the means, he claims that the State was required to present
sufficient evidence to support each means to sustain the conviction.
We hold that RCW 16.52.207(2)(a) provides only a single means of committing the
crime of second degree animal cruelty, and the five listed terms are merely different ways of
1
RCW 16.52.207 was amended in 2019. Because those amendments do not materially affect the
language relied on by this court, we cite to the current version of the statute.
No. 52278-1-II
committing that single means. And we hold that the State presented sufficient evidence to prove
one of the ways, failing to provide necessary medical treatment and thereby causing unnecessary
or unjustifiable physical pain to his animals. Accordingly, we affirm Roy’s conviction.
FACTS
On the evening of July 15, 2017, Roy was arrested on his way to the store and placed in
jail. At the time, he owned two mastiffs named Fausto and Azura, a bulldog named Mike, and
four parrots.
On July 19, Roy’s neighbor, Lisa Wesen, was concerned because she heard barking day
and night and noticed that Roy’s car had not been home for several days. After knocking on the
front door and finding no one home, she went to the back fence and saw the three dogs in the
backyard. Fausto was in a kennel on the back porch that was compacted with feces, and the dog
had nowhere to stand or lie down. Mike was on the back porch staring at the door and Azura
was by the fence barking. The mastiffs looked skinny, had red and goopy eyes, and did not look
healthy. Wesen and her husband brought food and water to the dogs and a neighbor shoveled out
the kennel. Wesen contacted Jennifer Krueger, an animal control officer for the City of
Centralia.
Krueger went to the jail and spoke with Roy and Roy asked her to contact his mother to
take care of the animals. When Roy’s mother declined to help, Krueger contacted Roy again and
he provided Krueger with a key to his home. Krueger also asked him to release the animals to an
animal shelter so they could get regular care.
Krueger went to Roy’s home with Kyle Stockdale, another animal control officer. Roy’s
home was very warm and smelled of urine and feces. The parrots had shredded newspaper that
2
No. 52278-1-II
was strewn about the living room. One of the parrots had died. The cages were filthy and the
parrots had no food or water.
They found the dogs in the backyard. Krueger described the mastiffs:
They were very, very skinny. You could see every knob on their spine. They had
big sores on their elbows where they lay down. Their eyes were -- their eyelids
were very swollen with a condition called cherry eye. The female couldn’t even
hardly see out of her eyes, because the top and bottom lids were so swollen it was
just a little slit for her to see.
1 Report of Proceedings at 113. She described the mastiffs as being in bad shape and in pain.
Stockdale provided similar testimony. Both mastiffs eventually received medical treatment for
their cherry eye as well as for ear and skin infections.
The State charged Roy with first degree and second degree animal cruelty. At trial, the
State explained that the first degree charge pertained to the deceased parrot and the second
degree charge pertained to the mastiffs.
The to-convict instruction for second degree animal cruelty, tracking the language of
RCW 16.52.207(2)(a), required the State to prove that Roy “knowingly, recklessly, or with
criminal negligence failed to provide an animal with necessary shelter, rest, sanitation, space, or
medical attention.” Clerk’s Papers at 25. The trial court instructed the jury that it had to be
unanimous as to one act of second degree animal cruelty. The court did not instruct the jury that
it had to be unanimous regarding the particular ways of committing the crime listed in the to-
convict instruction.
The jury could not reach a verdict on first degree animal cruelty pertaining to the parrot
and found Roy guilty of second degree animal cruelty pertaining to the mastiffs. Roy appeals his
conviction.
3
No. 52278-1-II
ANALYSIS
A. SECOND DEGREE ANIMAL CRUELTY AND ALTERNATIVE MEANS
Roy argues that RCW 16.52.207(2)(a) provides five alternative means of committing
second degree animal cruelty and that the State did not present sufficient evidence to prove each
means. We disagree.
1. Statutory Language
RCW 16.52.207(2)(a) provides:
An owner of an animal is guilty of animal cruelty in the second degree if, under
circumstances not amounting to first degree animal cruelty, the owner knowingly,
recklessly, or with criminal negligence:
(a) Fails to provide the animal with necessary shelter, rest, sanitation, space, or
medical attention and the animal suffers unnecessary or unjustifiable physical pain
as a result of the failure.
RCW 16.52.207(2)(a). RCW 16.52.207 identifies three other means of committing second degree
animal cruelty: knowingly, recklessly, or with criminal negligence inflicting unnecessary suffering
or pain on an animal, RCW 16.52.207(1)(a); abandoning an animal, RCW 16.52.207(2)(b); and
abandoning an animal when the animal suffers bodily harm or the abandonment creates a risk that
the animal will suffer substantial bodily harm, RCW 16.52.207(2)(c).
Roy claims that RCW 16.52.207(2)(a) identifies five alternative means for committing
the crime under that subsection: knowingly, recklessly, or with criminal negligence failing to
provide (1) shelter, (2) rest, (3) sanitation, (4) space, or (5) medical attention. The State argues
that subsection (2)(a) identifies only one means of committing animal cruelty, and that the
subsection merely provides five ways of committing that single means.
2. Alternative Means Doctrine
An alternative means crime is one where the applicable statute provides that the
proscribed criminal conduct can be proved in multiple ways. State v. Barboza-Cortes, 194
4
No. 52278-1-II
Wn.2d 639, 643, 451 P.3d 707 (2019). As a general rule, the statute identifies a single crime and
states that the crime can be committed by more than one means. State v. Smith, 159 Wash. 2d 778,
784, 154 P.3d 873 (2007). Determining whether a statute provides alternative means of
committing a crime is a matter of judicial interpretation. Barboza-Cortes, 194 Wash. 2d at 643.
The alternative means determination relates to jury unanimity required under article I,
section 21 of the Washington Constitution. State v. Owens, 180 Wash. 2d 90, 95, 323 P.3d 1030
(2014). For an alternative means crime, a defendant is entitled to a unanimous jury
determination as to the particular means by which he or she committed the crime. Id. If there is
no express statement of jury unanimity, the State must present sufficient evidence to support
each of the alternative means. Id. But if the statute identifies a single means of committing a
crime, unanimity is not required even if there are different ways of establishing that means. See
Barboza-Cortes, 194 Wash. 2d at 643.
The alternative means analysis focuses on whether the statute describes the crime in
terms of separate, distinct acts (alternative means) or in terms of closely related acts that are
aspects of one type of conduct (not alternative means). State v. Sandholm, 184 Wash. 2d 726, 734.
364 P.3d 87 (2015).
The more varied the criminal conduct, the more likely the statute describes
alternative means. But when the statute describes minor nuances inhering in the
same act, the more likely the various “alternatives” are merely facets of the same
criminal conduct.
Id.
Two other principles are relevant here. First, the use of a disjunctive “or” in a list of
ways of committing the crime does not necessarily mean that those ways are alternative means.
Owens, 180 Wash. 2d at 96. For example, in Owens the Supreme Court held that seven terms
5
No. 52278-1-II
stated in the disjunctive, read together, constituted a single means rather than seven alternative
means for trafficking in stolen property. Id. at 98.
Second, a statute that provides a means within a means does not identify an alternative
means crime. Smith, 159 Wash. 2d at 783. “[W]here a disputed instruction involves alternatives
that may be characterized as a ‘means within [a] means,’ the constitutional right to a unanimous
jury verdict is not implicated and the alternative means doctrine does not apply.” Id.
3. Analysis
In Barboza-Cortes, the court addressed RCW 9.41.040(2)(a), which states that a person is
guilty of second degree possession of a firearm if the person “owns, has in his or her possession,
or has in his or her control any firearm” after having been previously convicted of certain
felonies. 194 Wash. 2d at 646. The court held that this statute did not establish an alternative
means crime. Id. The court stated, “While there may be subtle distinctions in aspects of
ownership, possession, and control that may be material in other contexts, in the present
circumstances that all describe ways of accessing guns.” Id. Therefore, the terms were merely
“nuances inhering in” accessing guns and “facets of the same criminal conduct.” Id. (quoting
Sandholm, 184 Wn.2d at 734).
In Owens, the court addressed RCW 9A.82.050(1), which prohibits trafficking in stolen
property. 180 Wash. 2d at 92. The statute provided that a person is guilty of trafficking if he or she
“ ‘knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of
property for sale to others.’ ” Id. at 96 (quoting RCW 9A.82.050(1)). The court held that this
group of terms together identified a single category of criminal conduct – facilitating or
participating in the theft of stolen property. Id. at 98-99.
6
No. 52278-1-II
Here, shelter, rest, sanitation, space, and medical attention represent different aspects of
the basic necessities for an animal’s comfortable life. They are not independent, essential
elements of the crime. Instead, they are “minor nuances inhering in the same act” and “facets of
the same criminal conduct.” Sandholm, 184 Wash. 2d at 734. Read together, the listed terms
criminalize failing to provide an animal with basic necessities.
We conclude that RCW 16.52.207(2)(a) identifies a single means of committing second
degree animal cruelty: failing to provide an animal with the basic necessities of life and thereby
causing unnecessary or unjustifiable physical pain. RCW 16.52.207(2)(a) does not describe five
alternative means of committing that crime.
B. SUFFICIENCY OF THE EVIDENCE
Roy argues that his due process rights were violated because the State did not present
sufficient evidence to prove all of the means listed in RCW 16.52.207(2)(a) beyond a reasonable
doubt. But we have held above that RCW 16.52.207(2)(a) provides a single means of
committing second degree animal cruelty, not five alternative means. As noted above, if the
statute identifies a single means of committing a crime, unanimity is not required even if there
are different ways of establishing that means. See Barboza-Cortes, 194 Wash. 2d at 643.
Therefore, the State had to prove only that Roy failed to provide both mastiffs with necessary
shelter, rest, sanitation, space, or medical attention.
Here, the State presented evidence that Roy failed to provide both mastiffs with medical
attention. Both dogs were emaciated, had sores on their elbows, and had cherry eye. Both
also exhibited pain when they moved. Both were later treated for the cherry eye as well as ear
and skin infections. And there was evidence that the mastiffs suffered unnecessary or
unjustifiable physical pain as a result of the failure to provide medical attention.
7
No. 52278-1-II
We hold that the State provided sufficient evidence that Roy’s conduct amounted to second
degree animal cruelty under RCW 16.52.207(2)(a).
CONCLUSION
We affirm Roy’s conviction of second degree animal cruelty.
MAXA, C.J.
We concur:
SUTTON, J.
GLASGOW, J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
NATIONAL PARKS CONSERVATION No. 53041-4-II
ASSOCIATION,
Appellant,
v.
WASHINGTON DEPARTMENT OF PUBLISHED OPINION
ECOLOGY, and BP WEST COAST
PRODUCTS LLC, and WASHINGTON
POLLUTION CONTROL HEARINGS
BOARD,
Respondents.
MELNICK, J. — The National Parks Conservation Association (NPCA) sought to file a
petition for judicial review of a final decision by the Pollution Control Hearings Board (PCHB).
The Thurston County Clerk’s Office rejected NPCA’s petition because it did not have a case
information cover sheet as required by AR 2.1 By the time NPCA received the rejected petition
from the clerk’s office, the 30-day deadline to file a petition had passed. Nonetheless, NPCA
resubmitted the petition with a cover sheet that complied with AR 2.
BP West Coast Products LLC (BP) and the Washington Department of Ecology (DOE)
filed motions to dismiss. The superior court granted the motions, ruling that it lacked appellate
jurisdiction under the Administrative Procedure Act (APA), chapter 34.05 RCW, because the clerk
did not accept the petition until after the deadline to file had passed.
1
Superior Court Administrative Rule.
53041-4-II
NPCA appeals, arguing that it complied with all statutory requirements necessary to invoke
the superior court’s appellate jurisdiction under the APA. It further argues that AR 2 is not
jurisdictional. Although DOE took a contrary position in the trial court, it now agrees with NPCA.
BP continues to argue that NPCA did not timely file its petition.2
We reverse.
FACTS
DOE issued an air permit authorizing BP to take certain actions at its Washington refinery.
NPCA appealed DOE’s issuance of the permit to the PCHB.
On July 17, 2018, the PCHB issued a final decision in favor of DOE and BP, denying
NPCA’s challenge to the permit. The same day, the PCHB served the decision on NPCA. Statutes
and regulations required NPCA to file its petition for judicial review within 30 days, which was
August 16. RCW 34.05.542(2); WAC 371-08-555.
On August 14, NPCA sent its petition via overnight delivery to the Thurston County
Superior Court, the PCHB, BP, the Washington State Attorney General, and DOE, thus
accomplishing service. RCW 34.05.542(2). NPCA’s petition included copies of the PCHB’s final
decision, notice of the appeal, grounds for appeal, and the issue appealed. NPCA also provided
the required filing fee. RCW 34.05.514(1); RCW 36.18.020(2)(c).
The next day, NPCA received confirmation that its petition had been delivered to the
clerk’s office and all of the parties. However, the clerk’s office rejected NPCA’s petition because
2
NPCA also argues that if we disagree with its position, we should reverse on theories of
substantial compliance or constructive filing. Because of our disposition, we do not address these
alternative theories.
2
53041-4-II
it did not have a cover sheet as required under AR 2.3 The clerk’s office then returned the petition
with a note stating that it had rejected the petition because NPCA did not “include a case
information sheet” required by AR 2. Clerk’s Papers (CP) at 196.
At the time the preceding events occurred, the Thurston County Clerk’s Office had a faulty
document policy. The policy allowed the clerk’s office to assess penalties for “documents which
[were] incorrect, incomplete or in non-compliance with court rules or statutes.” CP at 535. The
policy also allowed the clerk’s office to reject and return petitions for judicial review that failed to
include a cover sheet required by AR 2.
On August 20, NPCA received its rejected petition from the clerk’s office. That same day,
NPCA resubmitted its petition to the superior court. Its petition included an AR 2 cover sheet and
a letter stating that its initial petition had met all of the requirements necessary to invoke the
superior court’s jurisdiction. The clerk’s office accepted NPCA’s resubmitted petition on August
21.
NPCA then filed a motion to verify the timely filing of its petition. DOE and BP filed
motions to dismiss, arguing that NPCA filed the petition on August 21. Therefore, DOE and BP
argued that the superior court did not have appellate jurisdiction under the APA because the
petition for judicial review had not been filed in a timely manner.
After a hearing on the motions, the court agreed with DOE and BP, and ruled that it did
not have appellate jurisdiction to hear the case because NPCA did not timely file its petition for
judicial review. The decision rested on the clerk rejecting NPCA’s petition on August 15 because
it did not have an AR 2 cover sheet. NPCA appeals.
3
AR 2 provides, in relevant part: “Each new civil and domestic case filing shall be accompanied
by a Case Information Cover Sheet prepared and submitted by the plaintiff.”
3
53041-4-II
ANALYSIS
NPCA argues that it filed its petition for judicial review within 30 days and that compliance
with AR 2 is not a jurisdictional requirement. DOE agrees with NPCA.
BP argues that NPCA’s petition was not timely filed. BP contends that AR 2 is
“inextricably tied to [RCW 34.05.542].” Br. of Resp’t BP at 8. According to BP, “[a] petition for
review must be accepted for filing within the statutory window,” and if the petition is not accepted,
“jurisdiction is not secured under the APA.” Br. of Resp’t BP at 8. We agree with NPCA and
DOE.
The APA governs appeals from the PCHB. RCW 43.21B.180. The APA grants superior
courts limited appellate jurisdiction. RCW 34.05.514(1); Union Bay Pres. Coal. v. Cosmos Dev.
& Admin. Corp., 127 Wash. 2d 614, 617, 902 P.2d 1247 (1995). Before a superior court can exercise
its appellate jurisdiction, statutory procedural requirements must be satisfied. Diehl v. W. Wash.
Growth Mgmt. Hr’gs Bd., 153 Wash. 2d 207, 217, 103 P.3d 193 (2004). If they are not, the court
must enter an order of dismissal. Stewart v. Dep’t of Emp’t Sec., 191 Wash. 2d 42, 52-53, 419 P.3d
838 (2018); Conom v. Snohomish County, 155 Wash. 2d 154, 157, 118 P.3d 344 (2005). We review
questions of a court’s jurisdiction de novo. Conom, 155 Wash. 2d at 157.
To invoke a superior court’s appellate jurisdiction, the APA requires that a petitioner
comply with certain time limitations set forth in RCW 34.05.542(2). Union Bay Pres. Coal., 127
Wash. 2d at 617. As relevant here, “[a] petition for judicial review of an order shall be filed with the
[superior] court . . . within thirty days after service of the final order.” RCW 34.05.542(2). In
addition, “proceedings for review under [the APA] shall be instituted by paying the fee required
under RCW 36.18.020.” RCW 34.05.514(1).
4
53041-4-II
The issue in this case is whether, for purposes of invoking the superior court’s appellate
jurisdiction, NCPA filed its petition and paid the required filing fee within 30 days of the PCHB’s
final decision. We conclude that it did because it complied with the statutory requirements
necessary to invoke the superior court’s jurisdiction and AR 2 does not impose a jurisdictional
requirement.
In Biomed Comm, Inc. v. Department of Health Board of Pharmacy, 146 Wash. App. 929,
932-33, 193 P.3d 1093 (2008), a corporate petitioner appealed a decision by the Department of
Health Board of Pharmacy (DOH). However, because no lawyer signed the petition on behalf of
the corporation, the petition failed to comply with CR 11(a). Biomed Comm, 146 Wash. App. at 933.
DOH moved to strike the petition because it failed to comply with CR 11(a), and the court granted
the motion. Biomed Comm, 146 Wash. App. at 933.
On appeal, the issue was “whether the superior court lost appellate jurisdiction where a
timely petition for review of the agency lacked the signature of an attorney for the corporate
appellant.” Biomed Comm, 146 Wash. App. at 938. The court determined “that the lack of a
signature of an attorney for [the corporation] on the timely petition for review . . . was not
jurisdictional.” Biomed Comm, 146 Wash. App. at 941.
In support of its decision, the court looked to provisions of the APA, namely RCW
34.05.542(2) and 34.05.546. Biomed Comm, 146 Wash. App. at 941. Those statutes did not contain
a signature requirement. Thus, because the statutory requirements of the APA did not require a
signature, the court ruled that compliance with the civil rule did not affect the superior court’s
jurisdiction under the APA. Biomed Comm, 146 Wash. App. at 941-42. The court refused to “read
into the statute a jurisdictional signature requirement where the legislature ha[d] not stated one.”
Biomed Comm, 146 Wash. App. at 942.
5
53041-4-II
Here, as the court did in Biomed Comm, we review the statutory requirements of the APA.
The APA does not contain a cover sheet requirement. As in Biomed Comm, we do not read into
the APA a jurisdictional requirement of a cover sheet “where the legislature has not stated one.”
146 Wash. App. at 942. NPCA complied with the APA’s statutory requirements. It submitted its
petition to the superior court within 30 days, and its petition included the required filing fee.
BP argues that NPCA did not timely file its petition since the clerk rejected it. BP argues
that the clerk had the authority to reject the petition under CR 5(e) because it did not have an AR
2 cover sheet. As a result, BP contends that the superior court did not have appellate jurisdiction
to hear the case.
If we adopted BP’s reasoning, a jurisdictional requirement could vary from county to
county, or even from case to case, depending on the discretionary actions or inactions of a county
clerk.4 AR 2 requires that a plaintiff include a case information cover sheet for “[e]ach new civil
and domestic case filing.” Under CR 5(e), a “clerk may refuse to accept for filing any paper
presented for that purpose because it is not presented in proper form as required by these rules or
any local rules or practices.”
The use of the word “may,” when used in a court rule, indicates that the referenced course
of action is discretionary rather than mandatory. In re Dependency of M.P., 185 Wash. App. 108,
116 n.3, 340 P.3d 908 (2014). It is axiomatic that a court clerk’s discretionary action cannot strip
a superior court of jurisdiction. A court either has jurisdiction or it does not. Here, jurisdiction is
4
The Thurston County Clerk’s Office had a faulty document policy that allowed the clerk to assess
a penalty or reject and return faulty filings. However, not all counties allow the court clerk to
reject faulty filings.
6
53041-4-II
conferred by complying with the APA. Therefore, we conclude that the filing of a form required
by AR 2 does not impose a jurisdictional requirement.5
In so ruling, we are mindful that we should be careful of relying on form over substance to
deny a litigant his or her day in court. See First Fed. Sav. & Loan Ass’n of Walla Walla v. Ekanger,
93 Wash. 2d 777, 781, 613 P.2d 129 (1980) (“[W]henever possible, the rules of civil procedure should
be applied in such a way that substance will prevail over form.”). We are promoting access to
justice with uniformity throughout the state.
The legislature, through the APA, has conferred appellate jurisdiction on the superior court
for appeals from the PCHB. Because the legislature has stated the jurisdictional requirements to
invoke that jurisdiction, and because NPCA satisfied those requirements, we reverse.
Melnick, J.
We concur:
Worswick, J.
Lee, C.J.
5
Nothing in this opinion should be construed as limiting a court clerk from requiring litigants to
file additional documents with their pleadings if there is a legal basis.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of: No. 51968-2-II
JOSEPH A. BUNDY,
Respondent,
and
PARTIALLY PUBLISHED
PAMELA J. RUSH, OPINION
Appellant.
GLASGOW, J.—Joseph A. Bundy, a police officer, retired at age 56. His former spouse,
Pamela J. Rush, sought modification of Bundy’s child support obligation. The superior court
concluded that Bundy’s full retirement did not make him voluntarily underemployed or
unemployed under RCW 26.19.071(6) for purposes of imputing income to calculate his child
support obligation.
Rush appeals, arguing that the superior court abused its discretion when it calculated
Bundy’s income using his actual income from retirement benefits and rental income rather than
imputing his prior salary. Rush also asserts that the superior court failed to include all applicable
income sources in determining Bundy’s income. Finally, Rush contends that the superior court
improperly failed to order proportionate contributions to their child’s expenses for extracurricular
activities.
In the published portion of this opinion, we hold that a retired person is not voluntarily
underemployed or unemployed under RCW 26.19.071(6) if their retirement was reasonable given
No. 51968-2-II
all the facts and circumstances. We affirm the superior court’s conclusion that Bundy was not
underemployed or unemployed under RCW 26.19.071(6). The superior court did not err when it
used Bundy’s actual income, including his retirement income, to calculate his child support
obligation rather than impute his income.
In the unpublished portion of this opinion, we hold that the superior court did not abuse its
discretion in determining the sources of Bundy’s income. We remand for the superior court to
expressly determine whether the contested extracurricular expenses are reasonable and necessary.
We deny Bundy’s request for attorney fees on appeal.
FACTS
Rush and Bundy married and had a son. When their marriage was dissolved, Rush and
Bundy were both police officers working for the Tacoma Police Department. The superior court’s
child support order required Bundy to pay $619.50 per month in child support.
Bundy retired with full benefits from the Tacoma Police Department when he was 56 years
old. Rush filed a petition for modification of support asking the superior court to modify the
parties’ child support order. A pro tem commissioner modified the order, finding Bundy
voluntarily underemployed under RCW 26.19.071(6) and imputing income to him “based on . . .
past earnings.” Clerk’s Papers (CP) at 307-08. The commissioner imputed income at a historical
pay rate of $8,420.58 per month, and added $311.42 per month to reflect income from a rental
property. Bundy’s monthly child support obligation was changed to $752.00 per month with an
increase to $925.00 per month when the child turned 12.
Bundy moved for superior court revision of the commissioner’s order. The superior court
issued a letter decision granting Bundy’s request for revision, finding Bundy was not voluntarily
2
No. 51968-2-II
underemployed because he had earned the right to full retirement benefits. The superior court
identified the following facts in support of its decision: (1) law enforcement is a high-risk
profession, (2) Bundy was shot three times in the line of duty, (3) Bundy suffered numerous other
injuries, and (4) Bundy suffered a stress related heart attack. The superior court also found that
law enforcement officers often retire as soon as they can receive full retirement benefits due to the
“inherent physical and emotional risks” of law enforcement. CP at 418.
The superior court entered a final child support order setting Bundy’s new support amount
at $424.73 per month based on his actual retirement earnings and rental income. The superior
court’s order provided that when his child turned 12, Bundy’s obligation would increase to $521.41
per month. The superior court further noted that if Bundy obtained “additional work to supplement
his income, [Rush] may bring a motion to adjust child support.” CP at 419.
Rush appeals from the superior court’s order revising the commissioner’s ruling.
ANALYSIS
A. Standard of Review
Appellate courts review child support modifications for abuse of discretion. In re Marriage
of Booth, 114 Wash. 2d 772, 776, 791 P.2d 519 (1990). Abuse of discretion “‘occurs when a decision
is manifestly unreasonable or based on . . . untenable reasons.’” In re Marriage of Chandola, 180
Wash. 2d 632, 642, 327 P.3d 644 (2014) (quoting In Re Marriage of Katare, 175 Wash. 2d 23, 35, 283
P.3d 546 (2012)).
A superior court’s decision is unreasonable or untenable “if its factual findings are
unsupported by the record,” the superior court applied an incorrect legal standard, “the facts do
not meet the requirements of the correct standard,” or the superior court’s decision lies “outside
3
No. 51968-2-II
the range of acceptable choices given the facts and the legal standard.” State v. Rundquist, 79 Wn.
App. 786, 793, 905 P.2d 922 (1995). We treat the superior court’s findings of fact as verities on
appeal so long as those findings are supported by substantial evidence. Chandola, 180 Wash. 2d at
642. “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the truth of
the matter asserted.” Id.
“An appellate court defers to the trier of fact for purposes of resolving conflicting testimony
and evaluating the persuasiveness of the evidence and credibility of the witnesses.” Thompson v.
Hanson, 142 Wash. App. 53, 60, 174 P.3d 120 (2007), aff’d, 168 Wash. 2d 738, 239 P.3d (2010). “We
do not reweigh or rebalance competing testimony and inferences even if we may have resolved the
factual dispute differently.” Bale v. Allison, 173 Wash. App. 435, 458, 294 P.3d 789 (2013). If
evidence is disputed, it will nonetheless be substantial if the evidence is sufficient to persuade a
reasonable person of its truth. See McCleary v. State, 173 Wash. 2d 477, 514, 269 P.3d 227 (2012).
When the superior court revises a commissioner’s child support modification ruling and
makes independent findings of fact and conclusions of law, “the superior court revision order
supersedes the commissioner’s ruling” and our focus is on whether the superior court’s order was
an abuse of discretionary authority. In re Marriage of Dodd, 120 Wash. App. 638, 644, 86 P.3d 801
(2004).
B. Voluntary Underemployment or Unemployment
Rush argues that the superior court abused its discretion when it declined to find that Bundy
was voluntarily underemployed or unemployed. She argues that this court should adopt a bright
line rule establishing that any retirement below the age of 67 is voluntary unemployment for
purposes of determining child support, even though she conceded at oral argument that this
4
No. 51968-2-II
proposal is not supported by legal authority. Wash. Court of Appeals oral argument, Bundy v.
Rush, No. 51968-2-II (Dec. 5, 2019), at 7 min., 41 sec. through 8 min., 53 sec. and 10 min., 0 sec.
through 10 min., 23 sec. (on file with court). She also asserts the superior court’s underlying factual
findings were not supported by substantial evidence. We disagree with both arguments and decline
to adopt Rush’s proposed bright line rule in favor of a test that evaluates the overall reasonableness
of the retirement, given all relevant facts and circumstances.
RCW 26.19.071 governs the determination of a parent’s income in child support cases.
RCW 26.19.071(6) provides, in part, that “[t]he court shall impute income to a parent when the
parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether
the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work
history, education, health, and age, or any other relevant factors.” (Emphasis added.)
1. Retirement and voluntary underemployment or unemployment
RCW 26.19.071(6) instructs the court to consider and assign weight as it sees fit to “any .
. . relevant factors.” Where a parent who is obligated to pay child support has retired, the court
must consider the overall reasonableness of the parent’s retirement to determine whether they are
voluntarily underemployed or unemployed. Factors informing the reasonableness of retirement
may include, but are not limited to, the nature of the parent’s preretirement employment, the
duration of the parent’s career in their profession, the parent’s eligibility for retirement benefit
programs such as the Law Enforcement Officers’ and Fire Fighters’ Retirement System (LEOFF),1
whether the parent is eligible for full retirement benefits, the parent’s health and age, the likelihood
1
LEOFF Plan 2 applies to Bundy because it applies to “persons who first became members of the
[LEOFF] system on and after October 1, 1977.” RCW 41.26.030(23).
5
No. 51968-2-II
of the parent obtaining another job, the effect of the retirement on the child’s wellbeing and any
other facts relevant to the particular case.
An overall reasonableness test for determining whether or not a retired parent is voluntarily
underemployed or unemployed is consistent with RCW 26.19.071(6). We decline to endorse
Rush’s proposed bright line rule that a superior court must find a parent voluntarily underemployed
or unemployed and must impute historical income whenever the parent retires before age 67. This
rule would be inconsistent with the statute, which expressly contemplates consideration of all
relevant factors. RCW 26.19.071(6); Wash. Court of Appeals oral argument, supra, at 10 min., 0
sec. through 10 min., 23 sec.
Consideration of the overall reasonableness of a parent’s retirement is also consistent with
the law in other jurisdictions, which we find persuasive. See Lewis Becker, What Is Versus What
Might Be, FAM. ADVOC., Fall 2000, at 18 (describing a test that considers “the overall
reasonableness of the retirement when it is volitional and not the result of ill health”). In Pimm v.
Pimm, 601 So. 2d 534, 537 (Fla. 1992), for example, the Florida Supreme Court held that “[i]n
determining whether a voluntary retirement is reasonable, the court must consider the payor’s age,
health, and motivation for retirement, as well as the type of work the payor performs and the age
at which others engaged in that line of work normally retire.” See also Deegan v. Deegan, 254 N.J.
Super. Ct. 350, 357-58, 603 A.2d 542 (App. Div. 1992) (noting that the “‘reasonableness’ of the
early retirement should be a factor” and explaining that “whether a spouse may voluntarily retire
will depend on the individual circumstances of a particular case”).
6
No. 51968-2-II
When considering whether voluntary retirement constitutes voluntary underemployment
or unemployment, we reject a bright line test based solely on the parent’s age.2 We instead
conclude that courts should consider the overall reasonableness of the retirement based on all
relevant facts and circumstances. Although we have discussed potentially relevant considerations
above, these considerations are nonexclusive, and the superior courts are in the best position to
determine what factors are relevant in any particular case.
2. Bundy’s retirement
Rush argues that the superior court’s factual findings were not supported by substantial
evidence, and the court therefore abused its discretion in finding that Bundy was not voluntarily
underemployed or unemployed. We disagree.
Although the parties agree that the superior court erred when it found Bundy had been shot
three times in the line of duty, the court otherwise relied on appropriate considerations in finding
that he was not voluntarily underemployed or unemployed. For example, the superior court
considered the amount of time Bundy spent serving the community in law enforcement, his mental
and physical health, and the nature of his occupation.
While the parties dispute some of the evidence that the superior court considered in
assessing these factors, disputed evidence is still substantial so long as it is sufficient to persuade
a reasonable person of its truth. See McCleary, 173 Wash. 2d at 514. We do not reweigh competing
2
We also reject the superior court’s conclusion that retirement is the equivalent of full time gainful
employment. The superior court explained in its letter ruling that, under the circumstances of this
case, “earning the right to full retirement benefits is the equivalent of full-time gainful
employment.” CP at 418. This conclusion is not supported by the definitions of “gainful
employment” set forth in In re Marriage of Peterson, 80 Wash. App. 148, 153-54, 906 P.2d 1009
(1995), nor is it supported by any other legal precedent. The superior court erred in adopting this
conclusion.
7
No. 51968-2-II
testimony or inferences or make credibility determinations. Bale, 173 Wash. App. at 458. Bundy
presented evidence that he had ongoing physical problems, including stress related heart problems
caused by his work. Relying on evidence that Bundy presented, the superior court concluded,
despite conflicting statements from Rush, that Bundy had suffered injuries and heart problems.
The superior court considered relevant and appropriate factors and did not abuse its discretion
when it determined that Bundy was not voluntarily underemployed or unemployed.
CONCLUSION
We affirm the superior court’s decision not to impute income to Bundy. When applying
RCW 26.19.071(6) to determine whether a retired parent is voluntarily underemployed or
unemployed, courts should assess the overall reasonableness of the parent’s decision to retire,
considering all factors relevant to a particular case.
A majority of the panel has determined that the remainder of this opinion lacks precedential
value and will not be printed in the Washington Appellate Reports. The remainder of this opinion
will be filed for public record in accord with RCW 2.06.040, and it is so ordered.
A. Rush’s Other Claims
1. Bundy’s other income
Rush argues that the superior court abused its discretion under RCW 26.09.071(3) when
evaluating other potential sources of income beyond Bundy’s retirement benefits.
RCW 26.19.071(3) provides that a parent’s monthly gross income for purposes of
calculating a child support obligation “shall include income from any source, including: . . . (n)
[p]ension retirement benefits . . . and (u) [i]ncome from self-employment, rent, royalties, contracts,
proprietorship of a business, or joint ownership of a partnership or closely held corporation.” RCW
8
No. 51968-2-II
26.19.075(1)(b) permits the court to deviate “from the standard calculation based on a finding that
a particular source of income included in the calculation of the basic support obligation is not a
recurring source of income. Depending on the circumstances, nonrecurring income may include
overtime, contract-related benefits, bonuses, or income from second jobs.”
Specifically, Rush alleges that the superior court should have included in Bundy’s gross
income calculation (1) proceeds from Bundy’s house flipping activities, (2) a higher amount of
rental income, and (3) Voluntary Employee Beneficiary Association (VEBA) plan benefits. We
disagree.
i. Real estate proceeds
In 2017, Bundy bought, improved, and then sold a home along with his new wife and
brother. The superior court did not abuse its discretion when it found that any income Bundy may
have earned from this real estate transaction was nonrecurring income under RCW 26.19.075(1)(b)
and was not income for purposes of calculating his child support obligation under RCW
26.19.071(3).
Similarly here, there was a tenable basis for the superior court to have accepted Bundy’s
explanation that his real estate transaction was a one-time activity and that Bundy had no
expectation of continuing income from that activity. Bundy explained in a sworn declaration that
“[t]he house took 10 months to complete because of my physical problems . . . and the amount of
time that was put in against the risk of profits is not worth it. I am not able nor willing to do this
again.” CP at 260. Even though Rush has questioned the credibility of these assertions, we do not
reweigh the superior court’s credibility assessments. Bale, 173 Wash. App. at 458.
9
No. 51968-2-II
ii. Rental income
The superior court also did not abuse its discretion by finding that Bundy’s monthly rental
income was $311.42 per month. Although Rush disputes the evidence underlying the superior
court’s finding, abuse of discretion review means that this court will not “reweigh or rebalance
competing testimony.” Id. Bundy’s declaration provides substantial evidence supporting the
superior court’s finding that Bundy’s rental income was $311.42 per month.
iii. VEBA benefits
Finally, the superior court did not abuse its discretion by deciding to exclude Bundy’s
VEBA benefits from his monthly income under RCW 26.09.071(3).
The parties did not cite, and we have not located, any legal authority supporting Rush’s
contention that VEBA benefits fall under definitions of “income” included in RCW 26.19.071(3).
Thus, Rush has not established a basis to reverse the superior court’s decision to exclude VEBA
benefits from Bundy’s income. The record reveals conflicting evidence about the process by which
Bundy’s VEBA benefits were made available to him, which was relevant to whether VEBA
benefits were recurring income. We defer to the superior court’s resolution of conflicting evidence
so long as the evidence is sufficient to persuade a reasonable person of its truth. McCleary, 173
Wash. 2d at 514. Rush has not established error with regard to Bundy’s VEBA benefits, and we
therefore affirm the superior court on this issue.
2. Extracurricular expenses in excess of basic support obligation
Rush argues that the superior court abused its discretion under RCW 26.19.080 when it did
not order both parents to pay proportionate shares of the expenses for their son’s extracurricular
activity expenses in excess of the basic support obligation. The superior court made no finding as
10
No. 51968-2-II
to whether these expenses were in fact reasonable and necessary. We remand to the superior court
for an express determination on reasonableness and necessity.
Under RCW 26.19.080(4), the court “may exercise its discretion to determine the necessity
for and the reasonableness of all amounts ordered in excess of the basic child support obligation.”
RCW 26.19.080(3) provides that “special child rearing expenses . . . shall be shared by the parents
in the same proportion as the basic child support obligation.”
Under Washington cases applying RCW 26.19.080(3), courts first consider whether the
expenses in excess of the basic child support obligation are reasonable and necessary. See In re
Marriage of Yeamans, 117 Wash. App. 593, 600, 72 P.3d 775 (2003). Then, if the court finds these
extraordinary expenses are reasonable and necessary, it must allocate them proportionately. See
id.; see also Murphy v. Miller, 85 Wash. App. 345, 349, 932 P.2d 722 (1997).
Here, the expenses Rush argues should have been divided proportionately include “little
league, club baseball and associated clinics, club and recreational soccer, recreational or club,
football, karate, and numerous other youth camps.” Br. of Appellant at 26. These are similar to the
extracurricular activities courts have deemed to be within the additional support provision of RCW
26.19.080(3). See State ex rel. J.V.G. v. Van Guilder, 137 Wash. App. 417, 427-28, 154 P.3d 243
(2007) (private school and extracurricular activities); In re Marriage of Daubert & Johnson, 124
Wash. App. 483, 497, 99 P.3d 401 (2004) (band trip and SAT prep classes), abrogated on other
grounds by In re Marriage of McCausland, 159 Wash. 2d 607, 152 P.3d 1013 (2007). However, the
superior court here made no finding as to whether these expenses were in fact reasonable and
necessary. Thus, we remand to the superior court for an express determination on reasonableness
and necessity. See RCW 26.19.080(4); Yeamans, 117 Wash. App. at 600.
11
No. 51968-2-II
B. Attorney Fees on Appeal
Bundy requested attorney fees on appeal under RCW 26.09.140, but he failed to file a
financial affidavit with this court. We therefore decline to further entertain his request.
CONCLUSION
We affirm the superior court’s calculation of Bundy’s income, but we remand for an
express determination as to whether the disputed extracurricular activities are necessary and
reasonable.
Glasgow, J.
We concur:
Maxa, P.J.
Melnick, J.
12
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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/4523387/
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51959-3-II
Respondent,
v.
JONATHAN JAYMES WALLIN, UNPUBLISHED OPINION
Appellant.
CRUSER, J. — Jonathan Wallin appeals his convictions of two counts of second degree
assault with firearm enhancements, one count of second degree malicious mischief with a firearm
enhancement, one count of second degree unlawful possession of a firearm, one count of
possession of a controlled substance, and two counts of witness tampering. Wallin asks this court
to reverse his assault convictions, his malicious mischief conviction, his unlawful possession of a
firearm conviction, and his witness tampering convictions and remand for a new trial because the
trial court (1) violated his federal Sixth Amendment right to confrontation when it admitted Ancy
Blackburn’s out-of-court statements and (2) abused its discretion when it excluded evidence of
Jace Blackburn’s and Lloyd Nunez’s gang affiliations. He also asks this court to reverse and
dismiss his possession of a controlled substance conviction because (1) the State failed to present
sufficient evidence to support the conviction and (2) the controlled substance definitional
No. 51959-3-II
instruction was erroneous because it did not accurately identify the substance he was charged with
possessing. Finally, Wallin argues that his two convictions for witness tampering violated the
prohibition on double jeopardy.
We affirm the convictions. We hold that (1) Ancy’s1 statements were admissible under the
doctrine of forfeiture by wrongdoing and thus their admission did not violate the Sixth Amendment
right to confrontation, (2) Wallin waived the error regarding exclusion of evidence of Jace’s and
Nunez’s gang affiliations because he affirmatively said he had no objection to the trial court’s
striking of the evidence, (3) the State presented sufficient evidence that Wallin possessed a
controlled substance, (4) Wallin failed to object to the controlled substances definitional
instruction below and therefore waived his claim, and (5) the two convictions for witness
tampering represent discrete units of prosecution and do not violate double jeopardy.
FACTS
I. BACKGROUND FACTS
On January 6, 2018, Wallin and Ancy, Wallin’s girlfriend at the time, were at Wallin’s
home when Ancy received a Facebook message from her cousin, Jace. Jace asked Ancy if she
wanted to “hang out” with him. 2 Verbatim Report of Proceedings (VRP) at 287. Wallin and Jace
had a strained relationship. When Wallin saw that Ancy was messaging Jace on her cell phone,
he took Ancy’s phone from her and told her he did not want her texting anyone. Wallin then began
to send messages to Jace from Ancy’s phone, pretending that he was Ancy and asking Jace to come
to Wallin’s house to pick Ancy up. Jace initially believed that Ancy was indeed asking to get
1
Because Ancy Blackburn and Jace Blackburn share the same last name, we use their first names
for clarity.
2
No. 51959-3-II
picked up, and he asked his friend Nunez to drive him to Wallin’s residence. However, in
retrospect, Jace had realized while continuing to message “Ancy” that he was actually
communicating with Wallin.
According to Wallin, he was afraid of Jace. Wallin claimed that Jace and Nunez violently
attacked him in the summer of 2017. At that time, Wallin was dating Jace’s older sister, Helena
Lemieux. On that occasion, Wallin was in the driver’s seat of Lemieux’s car when Jace walked
up to it, opened the door, and pulled out a can of mace and a stun gun. Wallin recalled that Jace
sprayed him in the face with mace and stunned him while Nunez stood behind Jace holding a 10-
inch hunting blade. Lemieux’s version of this event differed. Lemieux stated that Nunez was not
present during this incident and confirmed that Jace sprayed Wallin in the face with mace but
recalled that Jace did not have a stun gun.
When Jace and Nunez pulled into Wallin’s driveway on January 6, Wallin peered out
through his curtain and then went outside with a shotgun and proceeded to shoot at Nunez’s car.
When Wallin started shooting, Nunez slammed the gas pedal and drove into a ditch or into bushes.
Wallin continued firing the shotgun at Jace and Nunez. Jace and Nunez fled the vehicle out of the
driver’s side door, and Nunez ran towards the woods while Jace ran toward a nearby mill. At the
mill, Jace was able to ask someone to call police. Before police arrived at Wallin’s residence,
Wallin had fled the scene in Ancy’s car.
Officer Ryan Onasch with the Quinalt Tribal Police arrived at the scene. Park Ranger
Joseph Turgyan, Deputy Brian Rydman, and Lieutenant Brad Johansson also responded.
Rydman spoke with Ancy and he took a written statement from her. Ancy informed
Rydman that she had been staying with Wallin at Wallin’s grandmother’s house for several days.
3
No. 51959-3-II
She informed Rydman that she was lying on the couch when Wallin retrieved his shotgun, walked
toward the front door, opened the door a crack, pointed his shotgun outside the door, and opened
fire at a car parked in the driveway. Wallin then “did something with the gun,” but she was not
certain what he did. 1 VRP at 153. She said Wallin then left in her car. At that time, she told
Rydman that she did not know who was in the car that pulled up to Wallin’s home and that Wallin
had been texting someone prior to the event, but she was not sure who that individual was.
Johansson spoke with Ancy that same day and reviewed the Facebook message
conversation. Johansson suspected that Ancy had not sent the messages to Jace and wanted to
confirm his suspicions, and he also suspected that when Ancy gave her first statement, she was
under the influence of some substance.
Following Johansson’s instructions, Sergeant Robert Wilson contacted Ancy the following
night to obtain a second statement. Ancy explained that she had an on-and-off dating relationship
with Wallin and in the days leading up to the event on January 6, 2018, the two had been in the
process of resuming their relationship. Ancy confirmed that Wallin had taken her phone from her
and pretended to be her in order to get Jace to come to the house. Wallin had specifically informed
Ancy that he wanted Jace to come to the house because he was trying to “beat him up.” 2 VRP at
288. As Wilson was recording Ancy’s statement, he noticed that Ancy was receiving numerous
notifications on her phone as if someone was messaging her. Wilson asked whether the messages
she was receiving were from Wallin, who was at large at the time. She confirmed that the messages
were from Wallin, and she permitted Wilson to scroll through her phone and photograph the
conversation.
4
No. 51959-3-II
On January 13, Rydman went back to Wallin’s home to execute an arrest warrant. Wallin
was found in the attic and arrested. Shotgun shells were discovered in Wallin’s home, along with
a purple container that had what appeared to be psilocybin mushrooms inside.
In the first information, filed on February 6, 2018, the State charged Wallin with two counts
of second degree assault, one count of second degree malicious mischief, and one count of second
degree unlawful possession of a firearm.
While attempting to serve subpoenas to witnesses in the case, Deputy Jordan Stullick
discovered that Wallin had been making calls to witnesses from the jailhouse phone. Wallin made
two separate calls to Ancy, one in January and one on March 22, 2018. In these calls, Wallin
implored Ancy to retract her statements to police officers and asked her not to come to court to
testify because if she did not testify, the charges against him would be dismissed. The State then
amended the information and added two counts of witness tampering to Wallin’s charges.
The State filed a second amended information on April 25, 2018 before trial to include a
count of violation of the uniform controlled substances act – possession of a controlled substance.
The State identified the controlled substance as psilocybin.
Trial commenced on May 8, 2018. After voir dire and outside the presence of the jury, the
trial court held a hearing on the State’s motion to admit Ancy’s out-of-court statements. Ancy was
personally served with a subpoena when trial was originally set to begin on April 3, 2018, but after
the State discovered Wallin made phone calls to Ancy and filed an amended information, trial was
continued. All subsequent attempts to serve Ancy with a subpoena failed. The sheriff’s office had
been attempting to locate Ancy for almost 30 days but to no avail. The State reported that Ancy
5
No. 51959-3-II
did not appear at court on April 3, the date listed on the subpoena that was successfully served,
and no one had seen Ancy that morning for the first day of trial.
The State argued that due to Ancy’s absence, the statements she made to police officers on
January 6, 2018 and January 7, 2018 should be admitted pursuant to the doctrine of forfeiture by
wrongdoing. The court listened to a recording of the March 22, 2018 call that Wallin placed to
Ancy from jail. Wallin did not object to admission of the phone recording, but he objected to the
admission of Ancy’s statements because, he argued, it appeared Ancy had her own reasons for not
wanting to testify that could not be fairly attributed to anything he did.
In this call, Wallin asked Ancy not to testify at his trial, and Ancy initially answered, “I
didn’t really want to go anyways.” Ex. 3 at 0 min., 42 sec. through 1 min., 07 sec. Wallin
continued to implore Ancy not to testify, saying that if she does not testify, he will be “good to
go.” Id. at 3 min., 23sec. through 3 min., 25 sec. After exhibiting some hesitancy, Ancy responded
affirmatively and agreed not to testify in response to Wallin’s request and his promise that he will
“make it alright when [he] get[s] out.” Id. at 4 min., 52 sec. through 4 min., 55 sec. Following the
parties’ argument, the trial court ruled that Ancy’s statements were admissible:
Ms. Blackburn did not show up on April 3rd when this case was previously
scheduled for trial, the fact that she’s not here today, the fact that the sheriff’s office
has been trying to serve her since April 11th and has not been able to locate her,
indicates that she has willfully absented herself. And based on what Mr. Wallin
said to her during the course of this March 22nd, 2018 phone call, it was foreseeable
that the consequences of his actions would be that she would be unavailable at trial
and that he - and therefore, under the doctrine of forfeiture, has forfeited his rights
to confront her as a witness. And so, I do believe that the evidence demonstrates
by clear, cogent, and convincing evidence that Mr. Wallin’s conduct has prevented
Ancy Blackburn from being available today as a witness.
1 VRP at 31-32. Accordingly, the court admitted the statement Ancy made to Rydman shortly
after the incident and the statement Ancy made to Wilson the following day.
6
No. 51959-3-II
II. TRIAL
At trial, the witnesses testified consistently with the facts as stated above. During
questioning by Wallin, Nunez testified that he knew Jace was formerly associated with the Sureños
gang and that he, Nunez, had been associated with Sureños previously as well. Later, when Wallin
began to testify regarding his prior relationship with Jace and the interaction that took place in the
summer of 2017, the State objected based on relevance. The court asked the jury to step out and
requested an offer of proof from the defense. Wallin described the alleged assault by Jace and
Nunez and explained that he knew Jace by reputation as a member of the Sureños. Wallin stated
that he had seen Jace’s profile picture on Facebook in which he wore the Sureños color and was
“throwing up gang signs.” 2 VRP at 304. When asked where he learned of Jace’s gang
membership, Wallin explained that he had heard this from Lemieux and Ancy. The defense theory
was that Jace and Nunez specifically went to Wallin’s home to cause harm to Wallin.
When the trial court reconvened, it ruled that while it initially admitted the evidence
regarding Nunez’s and Jace’s gang affiliation because it believed the evidence was relevant to the
self-defense claim, the offer of proof that Wallin made regarding the admission of additional gang
evidence was insufficient. Additionally, the trial court ruled that the evidence was not relevant.
The trial court then proposed instructing the jury to disregard all evidence relating to gang
membership and offered the parties an opportunity to be heard on the matter. Both parties stated
that they had no objection to the trial court instructing the jury to disregard all evidence of gang
affiliation. The trial court then asked a second time whether either party had an objection to its
instruction to the jury to disregard all evidence of gang membership and again, both parties
affirmatively said that they did not.
7
No. 51959-3-II
A forensic scientist testified regarding the mushrooms found in Wallin’s possession. The
mushrooms “contained psilocyn or psilocybin or both of those materials.” Id. at 259. Psilocyn
may accurately be described as a byproduct or derivative of psilocybin, and psilocybin converts to
psilocyn over time. Both are controlled substances, but the forensic scientist did not determine
which of those or both were in the mushrooms seized from Wallin. Jury instruction 19 provided
that psilocybin and psilocyn are controlled substances. Wallin freely admitted that he had
psilocybin mushrooms in his house.
The jury found Wallin guilty of all the charged offenses. The trial court sentenced Wallin
to 120 months confinement on all the charges. Wallin appeals.
DISCUSSION
I. FORFEITURE BY WRONGDOING
Wallin argues that he did not forfeit his right to confront the witnesses against him when
he made the two calls to Ancy because although he asked Ancy not to testify during these calls, he
did not procure her absence by threat or intimidation. In addition, Wallin claims there were other
compelling reasons that Ancy may not have testified that have nothing to do with his request.
Wallin explains that perhaps Ancy did not appear at court because she did not want to testify in
contradiction of her cousin, Jace. Or perhaps, he suggests, Ancy did not appear because she made
her first statement under the influence of an intoxicant and “she was reticent to testify to the events
contained in those statements under oath.” Br. of Appellant at 18. Accordingly, Wallin claims
that the trial court violated the Sixth Amendment when it admitted Ancy’s out-of-court statements
because Wallin’s wrongdoing was not proven by clear, cogent, and convincing evidence.
8
No. 51959-3-II
We hold that the trial court is not required to find that a criminal defendant procured a
witness’s absence by threat of violence in order to admit out-of-court statements under the doctrine
of forfeiture by wrongdoing. It is enough to show, by clear, cogent, and convincing evidence that
it is highly probable that the defendant intentionally caused the witness’s absence.
Under the Sixth Amendment, criminal defendants have the right to confront the witnesses
against them. State v. Dobbs, 180 Wash. 2d 1, 10, 320 P.3d 705 (2014). But when the criminal
defendant acts to procure the witness’s unavailability, the criminal defendant loses the right of
confrontation. Id. at 10-11. This doctrine is known as forfeiture by wrongdoing and was first
adopted by our Supreme Court in State v. Mason, 160 Wash. 2d 910, 925, 162 P.3d 396 (2007).
The potential violation of the right of confrontation implicates a constitutional issue that
we review de novo. Dobbs, 180 Wash. 2d at 10. We review a challenge to a trial court’s findings of
fact for substantial evidence. Id. A trial court’s decisions on admissibility of evidence are
reviewed for an abuse of discretion. Id.
To determine whether statements made by an unavailable witness are nevertheless
admissible under the forfeiture by wrongdoing doctrine, “the trial court must decide whether the
witness has been made unavailable by the wrongdoing of the accused based upon evidence that is
clear, cogent, and convincing.” Mason, 160 Wash. 2d at 927. Because the standard of proof is clear,
cogent, and convincing evidence, the fact at issue, here whether Wallin intentionally caused
Ancy’s absence from trial, must be shown to be “‘highly probable.’” Dobbs, 180 Wash. 2d at 11
(quoting In re Welfare of Sego, 82 Wash. 2d 736, 739, 513 P.2d 831 (1973)).
The trial court need not establish that the defendant’s conduct caused the witness to be
unavailable beyond a reasonable doubt. Id. at 16. Therefore, “[a] court does not need to rule out
9
No. 51959-3-II
all possibilities for a witness’s absence; it needs to find only that it is highly probable that the
defendant intentionally caused it.” Id.
No prior Washington court has ever held that in order to prove a witness’s absence was
caused by the defendant’s wrongdoing, the evidence must support a finding that the defendant
made a threat or committed some violent act in order to ensure a witness’s unavailability. In State
v. Hernandez, 192 Wash. App. 673, 686, 368 P.3d 500 (2016), this court held that statements were
admissible under the forfeiture by wrongdoing doctrine when the criminal defendant used coded
language to conspire with the witness’s mother to take the witness, a child, out of the country so
the child was unavailable to testify. There was no evidence of a threat of violence employed to
procure the witness’s absence in that case. Id.
Rather, the dispositive inquiry, as identified in Dobbs, is whether substantial evidence
shows that it is highly probable that a defendant intentionally caused a victim’s absence. 180
Wash. 2d at 16. Here, there was clear, cogent, and convincing evidence that Wallin acted
intentionally to cause Ancy’s absence. The trial court need not rule out all possibilities for Ancy’s
absence. Ancy initially told Wallin in the March phone call that she “didn’t really want to go [to
court] anyways,” but Wallin implored Ancy multiple times not to testify throughout this call. Ex.
3 at 1 min., 06 sec. through 1 min., 07 sec. Ancy eventually acquiesced and stated that she would
not testify at his trial. Ancy’s affirmations that she would not testify were made in direct response
to Wallin’s repeated requests. Though Wallin did not use threatening language to convince Ancy
not to testify, he cannot now complain of his inability to confront this witness following his
multiple, ardent attempts to ensure her absence. Consequently, Ancy’s out-of-court statements to
the officers were properly admitted and there was no constitutional violation.
10
No. 51959-3-II
II. EXCLUSION OF EVIDENCE OF NUNEZ’S AND JACE’S GANG AFFILIATION
Wallin challenges the trial court’s decision to exclude all evidence of Nunez’s and Jace’s
gang affiliations because he claims that the evidence was relevant both as substantive evidence to
support his self-defense argument and as impeachment evidence. Wallin further asserts that the
evidence was admissible because the State opened the door to such evidence when it elicited
testimony from Jace regarding his gang membership during direct examination.
A trial court’s evidentiary rulings are reviewed for an abuse of discretion. State v. Otton,
185 Wash. 2d 673, 689, 374 P.3d 1108 (2016). A trial court abuses its discretion if its decision is
unreasonable or is based on untenable grounds. State v. Arredondo, 188 Wash. 2d 244, 256, 394 P.3d
348 (2017).
We decline to reach this issue because Wallin waived the error below. Waiver is “‘an
intentional relinquishment or abandonment of a known right or privilege.’” State v. Harris, 154
Wash. App. 87, 95, 224 P.3d 830 (2010) (internal quotation marks omitted) (quoting State v. Riley,
19 Wash. App. 289, 294, 576 P.2d 1311 (1978)). In State v. Asaeli, we declined to review the
defendants’ claim regarding the trial court’s decision to admit witness testimony because the
defendants waived that claim when they failed to object below. 150 Wash. App. 543, 587, 208 P.3d
1136 (2009). The defendants had initially filed a motion in limine seeking to prevent the trial court
from admitting that testimony. Id. In denying the motion, the trial court indicated that its decision
was preliminary and tentative, and both parties were permitted to raise the issue again during trial.
Id. Because no one raised an objection during trial, we deemed the claim of error waived. Id.
Here, when the trial court told the parties that it would instruct the jury to disregard all
prior evidence regarding Nunez’s and Jace’s gang affiliations, it twice gave both parties an
11
No. 51959-3-II
opportunity to be heard on the matter. On the first occasion, Wallin stated that he had no objection
to the trial court’s instruction to exclude the evidence. On the second occasion, Wallin again
affirmatively stated he had no objection. Therefore, Wallin has waived this claim of error.
III. SUFFICIENCY OF THE EVIDENCE OF POSSESSION OF A CONTROLLED SUBSTANCE
Wallin was charged with possession of a controlled substance, and the controlled substance
was alleged to be psilocybin. Wallin argues that because the State’s expert was unable to specify
whether the substance Wallin possessed was psilocyn or psilocybin, and the State charged him
with possession of only psilocybin, the evidence at trial was insufficient to prove that he possessed
psilocybin beyond a reasonable doubt. We hold that the evidence is sufficient to prove that Wallin
possessed psilocybin.
To determine whether the evidence is sufficient to sustain a conviction, we consider
“‘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.’”
State v. Scanlan, 193 Wash. 2d 753, 770, 445 P.3d 960 (2019) (internal quotation marks omitted)
(quoting State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (plurality opinion)), cert. denied,
2020 WL 129776. A criminal defendant who raises a sufficiency of the evidence challenge admits
the truth of the State’s evidence and “‘all reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.’” Id. (quoting State v.
Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992)).
Here, assuming the truth of the State’s evidence and drawing all reasonable inferences in
favor of the State, the evidence is sufficient to find Wallin guilty of possession of psilocybin
mushrooms. Although the State’s expert could not specify whether the mushrooms were
12
No. 51959-3-II
exclusively psilocybin, he did testify that they were psilocybin or psilocyn or both and that
psilocybin degrades into psilocyn over time. In addition, Wallin was asked, “[Y]ou also had
psilocybin mushrooms in your house, didn’t you?” 2 VRP at 325. He responded, “I did.” Id.
Therefore, Wallin’s claim that the expert’s testimony raised some doubt about the identity of the
controlled substance fails to undermine the sufficiency of the evidence presented by the State.
IV. DEFINITION OF CONTROLLED SUBSTANCES INSTRUCTION
Wallin challenges jury instruction 19, which stated that both psilocybin and psilocyn are
controlled substances, because he was charged with possession of only psilocybin. He claims that
given the expert’s testimony, the jury could have found him guilty of possession of psilocyn only,
but that he was never charged with this crime. We hold that because Wallin failed to object to the
instruction below, he has waived his right to challenge this instruction on appeal.
“CrR 6.15(c) requires that timely and well stated objections be made to instructions given
or refused ‘in order that the trial court may have the opportunity to correct any error.’” State v.
Scott, 110 Wash. 2d 682, 685-86, 757 P.2d 492 (1988) (internal quotation marks omitted) (quoting
Seattle v. Rainwater, 86 Wash. 2d 567, 571, 546 P.2d 450 (1976)). The “‘law of the case’ doctrine”
provides that “‘before error can be claimed on the basis of a jury instruction given by the trial
court, an appellant must first show that an exception was taken to that instruction.’” State v.
Johnson, 188 Wash. 2d 742, 761, 399 P.3d 507 (2017) (emphasis omitted) (internal quotation marks
omitted) (quoting State v. Salas, 127 Wash. 2d 173, 181, 897 P.2d 1246 (1995)). Failure to object to
an instruction before it is published to the jury thereafter waives any objection on appeal. State v.
Hickman, 135 Wash. 2d 97, 105, 954 P.2d 900 (1998) (“the parties must object to jury instructions
. . . on penalty of forfeiture of such objection”).
13
No. 51959-3-II
Here, the trial court asked Wallin whether he had any objection to the proposed
instructions. Wallin responded that he did not. Wallin has therefore waived his objection to jury
instruction 19, and we decline to review this claim.
V. DOUBLE JEOPARDY
Wallin claims that his two separate counts of witness tampering violate double jeopardy
because both of the charges were based on phone calls to Ancy that shared the same criminal
purpose—discouraging her from appearing in court. Wallin claims multiple phone calls to one
individual in the context of witness tampering constitute a single unit of prosecution following the
court’s decision in State v. Hall, 168 Wash. 2d 726, 230 P.3d 1048 (2010).
We hold that Wallin’s two counts of witness tampering do not violate double jeopardy
because every instance of witness tampering gives rise to a separate unit of prosecution under
RCW 9A.72.120(3).
Multiple convictions for the same offense violate double jeopardy. State v. Barbee, 187
Wash. 2d 375, 382, 386 P.3d 729 (2017). When two convictions arise under the same statute, to
determine whether double jeopardy has been violated, the court considers what “‘unit of
prosecution’” the legislature intended as the punishable act under the specific criminal statute. Id.
(internal quotation marks omitted) (quoting State v. Adel, 136 Wash. 2d 629, 632, 965 P.2d 1072
(1998)). A defendant cannot be convicted more than once under a statute if the defendant commits
only a single unit of a given crime. Id.
Here, RCW 9A.72.120(3) provides, “For purposes of this section, each instance of an
attempt to tamper with a witness constitutes a separate offense.” Consequently, the relevant statute
provides that every attempt to tamper with a witness is a single unit of prosecution. See Barbee,
14
No. 51959-3-II
187 Wash. 2d at 382. Wallin attempted to convince Ancy not to testify at his trial in two separate
phone calls. These two phone calls constitute two discrete attempts to tamper with a witness.
Wallin’s two convictions for witness tampering do not violate double jeopardy.
CONCLUSION
We hold that (1) Wallin’s Sixth Amendment right to confront the witnesses against him
was not violated when the trial court admitted Ancy’s out-of-court statements under the doctrine
of forfeiture by wrongdoing, (2) Wallin waived his claim that the trial court abused its discretion
in excluding evidence of Jace’s and Nunez’s gang affiliations, (3) the evidence was sufficient to
prove that Wallin possessed psilocybin, (4) Wallin failed to preserve his challenge to the controlled
substances definitional instruction by failing to object below, and (5) his two convictions for
witness tampering do not violate double jeopardy. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, A.C.J.
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People v Coleman (2018 NY Slip Op 00356)
People v Coleman
2018 NY Slip Op 00356
Decided on January 18, 2018
Appellate Division, Third 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 and Entered: January 18, 2018
107849
[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
vEARL COLEMAN, Appellant.
Calendar Date: December 14, 2017
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
Mulvey, J.
MEMORANDUM AND ORDER
Appeal from an order of the County Court of Sullivan County (LaBuda, J.), entered July 21, 2015, which denied defendant's motion for resentencing pursuant to CPL 440.46.
In 2001, defendant was convicted of criminal sale of a controlled substance in the third degree (two counts) and was sentenced as a persistent felony offender to an aggregate prison term of 15 years to life (4 AD3d 677 [2004], lvs denied 2 NY3d 797 [2004], 3 NY3d 672 [2004]). In 2011, defendant sought resentencing under the Drug Law Reform Act of 2009 (see CPL 440.46). County Court denied the application, finding that defendant was ineligible for resentencing under CPL 440.46. Defendant appealed and this Court reversed, finding that County Court had erroneously failed to assign defendant counsel in the
resentencing proceedings, and the matter was remitted to County Court (83 AD3d 1223, 1223 [2011]). Upon remittal, County Court again denied the application on the ground that defendant was ineligible for resentencing under CPL 440.46. This Court reversed, finding that defendant met the eligibility requirements for resentencing and remitted the matter for further proceedings (110 AD3d 76, 77-79 [2013], affd 24 NY3d 114 [2014]). Following a hearing upon remittal, County Court denied resentencing pursuant to CPL 440.46 on substantial justice grounds, citing defendant's criminal history. Defendant now appeals.
We affirm. The Drug Law Reform Act provides that eligible defendants shall be resentenced unless "substantial justice dictates that the application should be denied" (L 2004, ch 738 § 23; see People v Davis, 128 AD3d 1269, 1269 [2015], lv denied 27 NY3d 996 [2016]). "County Court is vested with discretion to determine whether substantial justice dictates denial of a defendant's application for resentencing" (People v Peterson, 88 AD3d 1026, 1027 [2011] [citation omitted]; see People v Bethea, 145 AD3d 738, 738 [2016], lv denied 29 NY3d 946 [2017]). Here, defendant's criminal history includes several felony convictions, multiple misdemeanor convictions and a parole violation, as well as various prison disciplinary [*2]infractions. Under these circumstances, we cannot say that County Court abused its discretion in denying resentencing (see People v Davis, 128 AD3d at 1269-1270; People v Graham, 97 AD3d 845, 845 [2012]; People v Carpenter, 86 AD3d 721, 721-722 [2011]).
McCarthy, J.P., Egan Jr., Devine and Rumsey, JJ., concur.
ORDERED that the order is affirmed.
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BLD-067 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3461
___________
IN RE: KENNETH WAYNE LEWIS,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 3-17-cv-05475)
District Judge: Honorable Freda L. Wolfson
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 7, 2017
Before: AMBRO, RESTREPO, and NYGAARD, Circuit Judges
(Opinion filed: December 12, 2017)
_________
OPINION*
_________
PER CURIAM
Kenneth Lewis has filed a petition for a writ of mandamus seeking an order
compelling the District Court to enter summary judgment in a civil case, Lewis v.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Sessions, No. 3:17-cv-05475 (D.N.J. filed July 26, 2017).1 He also seeks an order
compelling the District Court to file an addendum in the civil case, send a file-stamped
copy of the addendum to him, and execute particular subpoenas.
A writ of mandamus is a drastic remedy available only in extraordinary cases. See
In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner
seeking mandamus must demonstrate that “(1) no other adequate means exist to attain the
relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and
(3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S.
183, 190 (2010) (per curiam) (internal quotation marks and citation omitted).
Here, there is no basis for granting the petition for a writ of mandamus. The
District Court docket reflects that the District Court entered a November 3, 2017 order
administratively terminating Lewis’s civil case because he did not file a complete
application to proceed in forma pauperis. Although Lewis has since submitted other
documents in the District Court, it does not appear that he has complied with the District
Court’s order, and his case remains administratively terminated. In any event, Lewis has
not shown that he is entitled to mandamus relief, as he has not demonstrated a clear and
indisputable right to the writ or that he has no other adequate means to obtain the relief
desired.
1
Although Lewis has titled his filing “Affidavit Writ of Mandamus,” we construe it as a
petition for a writ of mandamus in light of the relief that he seeks. See United States v.
Fiorelli, 337 F.3d 282, 287-88 (3d Cir. 2003) (stating that the function of a motion, not
2
For these reasons, we will deny Lewis’s petition for a writ of mandamus.
the caption, determines how it is treated).
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Appellants, as complainants below, sought partition of certain premises described in the bill of complaint, claiming to be the owners in fee simple of an undivided one-fourth interest in said lands, deraigning title thereto by regular chain from the United States to their ancestor, William F. A. Kemp, by deed to him dated March 26th, 1896, for one-fourth interest, but which deed was not recorded until November, 1913, after the death, of W. F. A. Kemp in March, 1913. The bill further alleges that the defendant Roy S. Hanna is the owner of the remaining three-fourths interest, and that his title descended to him by deeds from their ancestor's co-tenants. The bill also alleges that the land is wild, unimproved and unoccupied. Defendant by his answer denied any cotenancy, denied that the land was wild, unimproved and unoccupied, denied that the complainants owned any interest whatsoever in the premises. He alleged in his answer, that in 1901, one Barron Phillips was the owner and in possession of all of said lands, that in September, 1901, Phillips conveyed the same to one William R. Brack who went into the immediate actual possession of the land, recording his deed in the public records in November, 1901; that Brack conveyed the same to defendant in 1903, excepting two small portions which he had previously conveyed to Joshua White and J. M. Nash, which two portions were conveyed to defendant by White and Nash in 1904 and 1905; that since going into possession in 1903 defendant has remained continuously in the actual, open and notorious possession claiming the same adversely to all the world. He further sets forth a list of other claims which he afterwards *Page 915
acquired for the purpose of fortifying his title, from which list it appears the defendant as early as 1907 acquired all outstanding recorded claims, the alleged one-fourth interest of Kemp not then appearing of record. Much testimony was taken, and upon final hearing the Circuit Judge found the equities to be with the defendant, and dismissed the bill of complaint. This appeal is from such final decree.
It is contended for appellant that a co-tenant can not hold adversely to his fellow co-tenant, and that the evidence in this case shows that the defendant's title is the title derived from co-tenants of the complainants' ancestor. This contention is denied by the defendant, but on the contrary it is claimed for the defendant that his title is predicated upon a conflicting adverse and hostile title to that of the complainants' ancestor and to that of the said ancestor's co-tenants. Appellees contend that appellants have pursued the wrong remedy, that partition can not be made to serve the purpose of ejectment.
Partition is proper where parties own as co-tenants, and in such a suit the interests of the respective parties must be determined by the court. But if it develops from the pleadings, supported by the evidence, that the title of the defendant is predicated upon an adverse conflicting and hostile claim to that of the complainants in such case partition can not be made to serve the purpose of ejectment. See Mattair v. Payne,15 Fla. 682; Keil v. West, 21 Fla. 508; Street v. Benner, 20 Fla. 700; Rivas v. Summers, 33 Fla. 539, 15 South. Rep. 139; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 South. Rep. 722; Ellis v. Everett, 79 Fla. 493, 84 South. Rep. 617.
The chancellor was justified in finding from the evidence that the defendant claimed under a title hostile to that of *Page 916
the complainants, and that he continued in adverse possession for much longer than seven years before the institution of this suit.
It is not necessary to review the evidence relative to other claims acquired by the defendant, even if such claims were titles of co-tenants of complainants' ancestor. A person in possession of land claiming title thereto by a deed of conveyance may fortify his title by acquiring outstanding claims of title and the acquisition of such conflicting claims will not be taken as any relinquishment of his rights or claims under his prior claim of title.
The judgment of the Circuit Court is affirmed.
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NO. 4-06-0820 Filed 3/3/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
TERRY L. LEWIS, ) No. 05CF53
Defendant-Appellant. )
) Honorable
) William O. Mays,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
Following a June 2006 stipulated bench trial, the trial
court convicted defendant, Terry L. Lewis, of possession of a
controlled substance (less than 15 grams of a substance contain-
ing methamphetamine) (720 ILCS 570/402(c) (West 2004)). In
September 2006, the court sentenced defendant to 24 months'
"nonjudgment probation," subject to various conditions, including
that he pay a $100 street-value fine.
Defendant appeals, arguing only that the trial court
committed plain error by imposing a street-value fine without
considering any evidence regarding the value of the drugs in
question. We disagree and affirm.
I. BACKGROUND
In February 2005, the State charged defendant with
possession of a controlled substance (less than five grams of a
substance containing methamphetamine) with intent to deliver (720
ILCS 570/401(d) (West 2004)) and possession of a controlled
substance (less than 15 grams of a substance containing metham-
phetamine) (720 ILCS 570/402(c) (West 2004)). In July 2005,
defendant filed a motion to suppress evidence, alleging various
violations of his constitutional rights. Following an October
2005 hearing, the trial court later denied defendant's motion.
Following a June 2006 stipulated bench trial, the trial
court found defendant guilty of possession of a controlled
substance.
In September 2006, the trial court sentenced defendant
to 24 months' "nonjudgment probation," subject to various condi-
tions, including that he pay a street-value fine of $100.
This appeal followed.
II. DEFENDANT'S CLAIM THAT IMPOSITION OF THE STREET-VALUE
FINE WAS PLAIN ERROR BECAUSE THE TRIAL COURT HAD NO
EVIDENCE AS TO THE VALUE OF THE DRUGS IN QUESTION
Defendant argues that the trial court erred by imposing
a street-value fine of $100 because the State "failed to provide
any information, much less testimony from law[-]enforcement
officers, that the value of the drugs in question was $100."
Defendant points out that section 5-9-1.1(a) of the Unified Code
of Corrections provides that for purposes of determining a fine,
"street value" shall be determined by the court "on the basis of
testimony of law[-]enforcement personnel and the defendant as to
the amount [of controlled substances] seized." 730 ILCS 5/5-9-
1.1(a) (West 2004).
Defendant concedes that he failed to object to the fine
at sentencing, but he nonetheless argues that this court should
consider his claim under the plain-error exception to the forfei-
- 2 -
ture rule. Defendant asserts that Illinois courts have univer-
sally concluded that the failure to support a street-value fine
with any evidentiary basis constitutes plain error. In support
of this assertion, he cites the following cases: People v.
Spencer, 347 Ill. App. 3d 483, 488, 807 N.E.2d 1228, 1232 (2004),
citing People v. Gonzalez, 316 Ill. App. 3d 354, 364, 736 N.E.2d
157, 165 (2000); People v. Simpson, 272 Ill. App. 3d 63, 66, 650
N.E.2d 265, 267 (1995); People v. Otero, 263 Ill. App. 3d 282,
284, 635 N.E.2d 1073, 1075 (1994). Although we agree with
defendant that the record does not contain a basis for the $100
street-value fine, we disagree with his assertion that this
sentencing error constitutes plain error.
In People v. Montgomery, 373 Ill. App. 3d 1104, 872
N.E.2d 403 (2007), this court recently addressed similar argu-
ments regarding sentencing errors. Because we reaffirm what we
wrote in Montgomery, and because it fully applies to the case
before us, we quote it as follows:
"In People v. Rathbone, 345 Ill. App. 3d
305, 308-10, 802 N.E.2d 333, 336-37 (2003),
this court deemed a defendant's sentencing
argument on appeal forfeited, pointing out
that section 5-8-1(c) of the Unified Code
required a defendant's challenge to any as-
pect of sentencing to be made by a written
motion filed within 30 days of the imposition
of sentence. 730 ILCS 5/5-8-1(c) (West
- 3 -
2004). We also noted that the Supreme Court
of Illinois, in People v. Reed, 177 Ill. 2d
389, 394, 686 N.E.2d 584, 586 (1997), held
that the language of section 5-8-1(c) is
mandatory. Citing section 5-8-1(c) and Reed,
this court concluded in Rathbone that the
defendant had forfeited the sentencing argu-
ment he raised on appeal, and we explained as
follows:
'In so concluding, we note
that defendant's claim is precisely
the type of claim the forfeiture
rule is intended to bar from review
when not first considered by the
trial court. Had defendant raised
this issue in the trial court, that
court could have answered the claim
by either (1) acknowledging its
mistake and correcting the
sentence, or (2) explaining that
the court did not improperly sen-
tence defendant ***. If the court
did not change the sentence, then a
record would have been made on the
matter now before us, avoiding the
need for this court to speculate as
- 4 -
to the basis for the trial court's
sentence.' Rathbone, 345 Ill. App.
3d at 310, 802 N.E.2d at 337.
The rationale and holding of
Rathbone are equally applicable in this case.
Defendant's failure to raise this issue in
the trial court was in violation of section
5-8-1(c) of the Unified Code and denied that
court the opportunity to correct or clarify
its ruling. Accordingly, defendant has for-
feited his truth-in-sentencing argument.
On a final note, we rejected the defen-
dant's request in Rathbone to apply the
plain-error doctrine, and we do likewise
here. In People v. Allen, 222 Ill. 2d 340,
353, 856 N.E.2d 349, 356 (2006), the supreme
court explained as follows: '[t]he plain-
error doctrine is not "'a general saving
clause preserving for review all errors af-
fecting substantial rights whether or not
they have been brought to the attention of
the trial court.'" [Citations.] Instead, it
is a narrow and limited exception to the
general rule of forfeiture.' Further, as we
noted in Rathbone,
'our supreme court has
- 5 -
"consistently emphasized the lim-
ited nature of the plain[-]error
exception." People v. Easley, 148
Ill. 2d 281, 337, 592 N.E.2d 1036,
1061 (1992). Plain error exists
only when the essential fairness of
a trial has been undermined, and
this "occurs only in situations
which 'reveal breakdowns in the
adversary system,' as distinguished
from 'typical trial mistakes.'"
People v. Keene, 169 Ill. 2d 1, 17,
660 N.E.2d 901, 909-10 (1995) [ci-
tation].' Rathbone, 345 Ill. App.
3d at 311, 802 N.E.2d at 338-39."
Montgomery, 373 Ill. App. 3d at
1123-24, 872 N.E.2d at 419-20.
We acknowledge that the cases defendant cites stand for
the propositions he asserts (including this court's decision in
Simpson), but we decline to follow those cases because they do
not comport with section 5-8-1(c) of the Unified Code or with
Reed, in which our supreme court applied that section. Prior to
August 1993, a defendant's failure to object to an alleged error
in sentencing did not result in forfeiture for appeal purposes
because the statute was framed in permissive, rather than manda-
tory, terms. However, effective August 11, 1993, the legislature
- 6 -
amended section 5-8-1(c) to require a defendant's challenge to
the correctness of a sentence "or to any aspect of the sentencing
hearing" to be made by a written motion filed within 30 days
following the imposition of sentence (Pub. Act 88-311, §15, eff.
August 11, 1993 (1993 Ill. Laws 2604, 2615) (amending 730 ILCS
5/5-8-1(c) (West 1994))).
Subsequent to this statutory revision, the supreme
court in Reed held that the language of section 5-8-1(c) is
mandatory, explaining that "the policy considerations supporting
the requirement of a written post[]trial motion to preserve trial
error are equally applicable in the context of sentencing."
Reed, 177 Ill. 2d at 394, 686 N.E.2d at 586. The supreme court
also added the following justification for the new legislative
mandate:
"Requiring a written post[]sentencing motion
will allow the trial court the opportunity to
review a defendant's contention of sentencing
error and save the delay and expense inherent
in appeal if they are meritorious. Such a
motion also focuses the attention of the
trial court upon a defendant's alleged errors
and gives the appellate court the benefit of
the trial court's reasoned judgment on those
issues. We therefore agree with the appel-
late court that the plain language now con-
tained in section 5-8-1(c) shows a clear
- 7 -
legislative intent to make a post[]sentencing
motion the functional equivalent of a
post[]trial motion for purposes of preserving
issues for appeal." Reed 177 Ill. 2d at 394,
686 N.E.2d at 586.
In Rathbone, we rejected the defendant's argument that
the trial court abused its discretion by sentencing him for
violating the terms of his probation rather than for residential
burglary. As in this case, the defendant in Rathbone argued that
we should review his claim as plain error even though he for-
feited the issue by failing to raise it in his postsentencing
motion. We rejected that argument because it was not consistent
with the rule of law set forth in Reed or its underlying princi-
ples. Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d at 338. We
further explained our conclusion in Rathbone as follows:
"If all matters related to a 'misapplication
of law' at sentencing affect a defendant's
fundamental right to liberty and are thus
reviewable as plain error, then the plain[-]
error exception essentially swallows the
forfeiture rule, rendering meaningless the
requirement contained in section 5-8-1(c) of
the Unified Code and enforced by the supreme
court in Reed." (Emphasis in original.)
Rathbone, 345 Ill. App. 3d at 311, 802 N.E.2d
at 338.
- 8 -
In rejecting defendant's argument here, we note that it
is considerably weaker than were the arguments before this court
in Rathbone and Montgomery. In those cases, the defendants
contended that the trial court errors at sentencing perhaps
resulted in an increase in their prison sentences. In contrast,
defendant here complains about the imposition of a $100 fine. If
the plain-error rule applied to a sentencing sanction as minimal
as a $100 fine, then surely nothing would be left of the require-
ment the legislature imposed by its amendment in August 1993 to
section 5-8-1(c) or the decision of the Supreme Court of Illinois
in Reed to give meaning to that amendment.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As a part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
MYERSCOUGH and KNECHT, JJ., concur.
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01-03-2023
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10-22-2015
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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 700
The plaintiff filed his bill for an injunction October 23, 1937, in the Circuit Court in Polk County, Florida. The injunction sought was to restrain the defendant from permitting his cattle to run upon certain described premises in the said county, the said property being that of the plaintiff. This relief was sought under and by virtue of Chapter 9580, Laws of Florida 1923 (page 506, Special Acts of 1923), as amended by Chapter 11024, Laws of Florida (page 3667, Special Acts of 1925), commonly called the "No Fence Law."
On October 27, 1937, a hearing was had and a temporary restraining order was issued against the defendant. At this hearing the plaintiff personally appeared, accompanied by counsel, and the defendant also personally appeared, but was not accompanied by counsel, stating that he would like *Page 701
to conduct his defense in person. Witnesses were sworn and testimony was taken. At the close of the testimony, the plaintiff, upon interrogation by the court, stated that he had adduced all of the testimony he intended to produce, both for the preliminary injunction and the final decree, unless the defendant produced other evidence. Whereupon the court advised the defendant that he would be given opportunity to give additional testimony should he so desire.
This temporary order was not filed until April 22, 1938.
The defendant filed his appearance December 6, 1937, and his answer on January 3, 1938. The answer denied all of the material allegations of the bill. No further action was taken until April 11, 1938, when the defendant called the cause up for a hearing on bill answer, the time for the taking of testimony having expired. No further testimony was ever introduced after that taken on the hearing for the preliminary injunction. The court entered final decree making the injunction permanent September 1, 1938. Defendant took this appeal, assigning as errors certain findings of the court as evidenced by the final decree, the entry of the final decree, and the taxing of costs against the defendant.
The defendant, who is here the appellant, is contending that: "Where all the material allegations in the bill are denied in the answer, and the cause then heard on bill and answer, the bill must be dismissed. Pierce v. Brunswick, 23 Fla. 283, 2 Sou. Rep. 366," and, "On a hearing on bill and answer, after the time for taking testimony has expired, every allegation in the answer responsive to the bill is taken as true. Citizens Bank Trust Co. v. Grey, 100 Fla. 958. 130 Sou. Rep. 274." which is true if there be just the bill and the answer before the court. If there be nothing more *Page 702
before the court, and the answer denies all of the material allegations of the bill, issues are made by such denials and the decision would be against the party who has taken the burden of proof according to the rules of evidence. Daniell's Ch. Pl. Pr., 6th Am Ed., Vol. 1, p. 850; Chatham Investment Co. v. Sunshine Investments, 98 Fla. 783, 124 Sou. Rep. 374; Whittaker v. Eddy, 109 Fla. 535, 147 Sou. Rep. 868.
Where all the equities of the bill are denied by the answer, the temporary injunction granted prior to the answer is not dissolved automatically or as of course. The granting and continuing of injunctions rest in the sound discretion of the court, dependent upon surrounding circumstances. Carter v. Bennett, 6 Fla. 214; Linton v. Denham, 6 Fla. 535. The granting of temporary injunctions is within the sound discretion of the court, "according to the weight of evidence." Campbell v. White, 39 Fla. 745, 23 Sou. Rep. 555; Sullivan v. Moreno,19 Fla. 200; Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 Sou. Rep. 209.
In cases where the sworn bill has been filed, and a hearing had and testimony taken for the issuance of a temporary injunction or restraining order, and the answer does nothing more than deny the allegations of the bill; then the court, upon final hearing on bill and answer where no additional testimony has been adduced, will look to the bill and the testimony given at the preliminary hearing to see if the temporary injunction was properly issued in the first instance. Reversals here are for prejudicial, and not merely formal, errors, in matters of procedure. Section 4499, Compiled General Laws of Florida 1927; Young, et al., v. Curtis, et al.,108 Fla. 348, 146 Sou. Rep. 543.
Where in its final decree the court refers to the testimony *Page 703
taken at the hearing for the temporary injunction, where both parties to the action were present and testified, it is incumbent upon the party complaining of an abuse of the discretion of the court to see to it that such testimony is in the record in order for this Court to question or review the findings of the court below.
In the instant case, however, the judgment is reversable on other grounds. The bill utterly fails to allege sufficient facts to give a court of equity jurisdiction of the cause. The statute relied upon also fails to give a court of equity jurisdiction. Chapter 11024, Section 12, p. 3668, Vol. 2, Laws of Florida, Special Acts of 1925, states:
"Section 12. — Damages. The owner of any livestock running or roaming at large within Polk County, Florida, whether the owner or owners reside in said county or not, shall be liable to the person damaged for any and all damages caused by such owner's livestock when so running or roaming at large, to be recovered by suit in any court having jurisdiction." (Emphasis added.)
There is nothing herein conferring jurisdiction upon a court of equity unless the bill sets out sufficient facts to entitle the complainant to equitable relief.
The complainant's allegations purporting to entitle him to the relief of a court of equity are:
"(5) That the said defendant owns or has in his possession, custody and control approximately fifteen head of cattle which have been permitted to run at large in violation of the statutes above referred to and to roam and graze upon the properties of the plaintiff above described and that by reason of such roaming and grazing the cattle of the defendant have seriously injured and damaged the citrus trees on said lands of the plaintiff. Plaintiff further avers that he has on divers and sundry occasions notified the defendant *Page 704
of such damages and requested the defendant to keep his cattle off said lands but that the defendant has failed and refused to do so.
"(6) That irreparable damage will result to the plaintiff unless the defendant is restrained from permitting his said cattle from straying upon and injuring the properties of the plaintiff.
"FORASMUCH, therefore as the plaintiff is without remedy save in a court of equity and to the end that equity may be done, he prays:"
It is a well settled principle of law that facts constituting the basis of alleged irreparable injury must be alleged. Indian River S. S. Co. v. East Coast Trans. Co., 28 Fla. 387, 10 Sou. Rep. 480; Orange City v. Thayer, 45 Fla. 502, 34 Sou. Rep. 573; Metcalf Co. v. Martin, 54 Fla. 531, 45 Sou. Rep. 463; Drew Lumber Co. v. Union Investment Co., 66 Fla. 382, 63 Sou. Rep. 836; Williams v. Dormany, 99 Fla. 496, 126 Sou. Rep. 117. And, where the alleged trespass or threatened injury is to trees standing on land, in order to grant an injunction, it must appear that the trees are of such a peculiar value and importance to the estate as that the alleged injury to them will so affect the uses and purposes for which the estate was designed as to make the injury to them an irreparable loss to the owner. Carney v. Hadley, 32 Fla. 344, 14 Sou. Rep. 4; Cowan v. Skinner, 52 Fla. 486, 42 Sou. Rep. 730, 11 Am. Cas. 452.
This Court has many times previously laid down the rule relative to the granting of injunctional relief, therein setting out the requirements necessary to call for a resort to a court of equity. Woodford v. Alexander, 35 Fla. 333, 17 Sou. Rep. 658; Wiggins Johnson v. Williams, 36 Fla. 637, 18 Sou. Rep. 859; Brown, et al., v. Solary, 37 Fla. 102. *Page 705
19 Sou. Rep. 161. In the Brown case, supra, the Court said:
"The court grants relief in cases of trespass where the threatened injury can not be adequately compensated in damages, or where, under the circumstances of a case, the injured party has no adequate remedy at law. The foundation for the jurisdiction of equity to enjoin a trespass is, as stated in the recent case of Wiggins Johnson v. Williams, 36 Fla. 637, 18 Sou. Rep. 859, the probability of irreparable injury, the inadequacy of pecuniary compensation, the destruction of the estate in the character in which it was enjoyed, or the prevention of a multiplicity of suits."
It is likewise well settled in this State that an injunction will not be issued to restrain an injurious act already committed (Pensacola Ga. Ry. Co. v. Spratt, 12 Fla. 26; Smith v. Davis, 22 Fla. 405), relief, if any, being in a court of law. Wilkinson v. Woodward, 105 Fla. 326, 141 Sou. Rep. 313; Hernandez v. Board of County Commissioners of Hillsborough County, 114 Fla. 219, 153 Sou. Rep. 790.
To make out a case for an injunction, it must appear that there is at least a reasonable probability, not a bare possibility, that a real injury will occur if the writ is notgranted. Ruge v. Apalachicola Oyster Canning Fish Co.,25 Fla. 656, 6 Sou. Rep. 489.
The allegations in the present bill wholly fail to show cause for equitable relief, it appearing from the bill that the only injury complained of is an act or acts already committed. There are no allegations that this is a continuing trespass, or that the cattle of the defendant will continue to roam upon the plaintiff's land unless they be prevented from so doing by the issuance of this injunction. There is nothing in the bill to show that a real injury is likely to result to this plaintiff if the writ is not issued, nor *Page 706
is there anything in the bill to show that the plaintiff does not have an adequate remedy at law for damages already suffered.
For the above reasons the judgment of the lower court is reversed and the case is remanded with instructions to the court to dissolve the injunction, and dismiss the cause of action, without prejudice.
Reversed.
WHITFIELD, P. J., and BROWN and CHAPMAN, J. J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS 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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07-05-2016
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282 Wis. 2d 216 (2005)
2005 WI 88
700 N.W.2d 757
IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Mark E. ROBINSON, Attorney at Law:
OFFICE OF LAWYER REGULATION, Complainant,
v.
Mark E. ROBINSON, Respondent.
No. 2004AP1238-D.
Supreme Court of Wisconsin.
Decided June 24, 2005.
*218 ¶ 1. PER CURIAM.
We review the stipulation filed by Attorney Mark E. Robinson and the Office of Lawyer Regulation (OLR) concerning Attorney Robinson's professional misconduct in his handling of legal matters for a number of clients. The stipulation was submitted to Referee David R. Friedman. The referee reviewed the stipulation and issued a report recommending the level of discipline to which the parties stipulated, a six-month suspension of Attorney Robinson's license to practice law in Wisconsin. In addition, the referee recommended that Attorney Robinson be ordered to pay the costs of the disciplinary proceeding, which are $4,716.62 as of April 27, 2005.
¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. *219 We also agree with the referee's conclusions of law that Attorney Robinson engaged in professional misconduct and further agree that the seriousness of the misconduct warrants a six-month suspension of Attorney Robinson's license to practice law in Wisconsin.
¶ 3. Attorney Robinson was admitted to practice law in Wisconsin in 1991. He practices law in Janesville with the firm of Roethe, Krohn, Pope, McCarthy & Haas, LLP. The OLR filed a complaint in May 2004, alleging that Attorney Robinson engaged in multiple counts of misconduct with respect to his handling of various client matters. All of the misconduct involved real estate transactions. The complaint alleged that in June of 2000, M.R. signed a real estate listing contract for the sale of property she owned in Janesville which she operated as a day care facility. M.R. added a restriction to the real estate listing contract prohibiting the sale of the property to any teachers who had formerly been associated with the day care center. On July 6, 2000, Attorney Robinson drafted a residential offer to purchase the property on behalf of his client, A.B., a developer. Attorney Robinson informed the real estate broker representing M.R. that his client was trying to find a residence for a carpenter who would assist him with some rental properties.
¶ 4. On July 12, 2000, Attorney Robinson, acting as agent for A.B., drafted a second offer to purchase M.R.'s property. Before accepting the offer, M.R. asked her broker to inquire of Attorney Robinson as to the identity of the buyer and whether the buyer was in any way associated with the day care facility. Attorney Robinson told the broker that his client was purchasing the property for an employee and intended to resell the property to the employee on a land contract. In reliance on those statements, M.R. accepted the offer to purchase.
*220 ¶ 5. Attorney Robinson subsequently became aware that A.B. was no longer interested in buying the property. Attorney Robinson then contacted three teachers who had formerly been associated with the day care center about the possibility of them operating a day care business on the property. In late July 2000, Attorney Robinson agreed with A.B. that Attorney Robinson would acquire the property from A.B. Attorney Robinson and the former day care facility teachers agreed that the teachers would buy the property on or about September 1, 2000. Attorney Robinson began arranging financing for the purchase of the property in his own name and advised his banker that he intended to lease the property for use as a preschool.
¶ 6. A.B. deeded the property to Attorney Robinson and sent the deed to Attorney Robinson by overnight mail. Attorney Robinson's legal assistant, acting on Attorney Robinson's instructions, notarized A.B.'s signature even though A.B. was not personally present. Prior to the closing of the property, M.R.'s real estate broker, on at least one occasion, advised Attorney Robinson that M.R. did not want to sell the property to anyone who had been formerly associated with her day care center. The sale of the property closed in late July 2000. At the closing M.R. questioned Attorney Robinson about the identity of the purchaser. Attorney Robinson failed to disclose that he would be purchasing the property from A.B. and selling it to three teachers formerly employed by M.R. at her day care facility.
¶ 7. Attorney Robinson formed JAC, LLC, a limited liability company, whose members were the three teachers formerly employed by M.R.'s day care facility. Attorney Robinson became the attorney for the LLC and its members. He entered into a land contract with JAC, LLC, conveying the property to the teachers. The *221 teachers sent out solicitations for a new day care center to be operated on the property. If M.R. had known that Attorney Robinson intended to convey the property to three former employees she could have refused to close the sale. Attorney Robinson's concealment of the identity of the ultimate owners of the property was intended to, and in fact did, deceive M.R.
¶ 8. The OLR's complaint alleged, and the referee agreed, that by instructing his legal assistant to notarize a signature indicating that the signer of the deed was present when in fact he was not, Attorney Robinson violated SCR 20:5.3(c)(1),[1] which would also be a violation of SCR 20:8.4(c)[2], if done by Attorney Robinson himself. The complaint further alleged, and the referee agreed, that by intentionally misrepresenting to M.R. and others the identity of the buyer of M.R.'s property, Attorney Robinson violated SCR 20:8.4(c). The complaint also alleged that by failing to obtain written conflict waivers during his representation of multiple parties who were participants in the same real estate transaction, in which Attorney Robinson also had a personal interest, Attorney Robinson violated SCR 20:1.7(b).[3]
*222 ¶ 9. The OLR's complaint also alleged that on November 20, 2001, Attorney Robinson sent a letter to occupants of a building located on Mt. Zion Avenue in Janesville advising the occupants that the previous owner of the building, M.K., no longer owned the building and that the building was owned by Cajun Properties, an enterprise controlled by Attorney Robinson. On November 21, 2001, Attorney Robinson sent a letter to M.K. advising him that M.K. was in default on his agreement regarding the purchase of the property and that the agreement had been assigned to Attorney Robinson's interest. That same day Attorney Larry Barton sent a letter to Attorney Robinson advising that Attorney Barton represented M.K. and that all future communications about M.K.'s real estate should be directed to Attorney Barton. Thereafter, on several occasions while Attorney Barton was still representing M.K., Attorney Robinson attempted to contact M.K. directly and through a third party. The OLR's complaint alleged, and the referee agreed, that by attempting to contact M.K. directly and through a third party, despite M.K.'s counsel directing Attorney Robinson to have no further contact with M.K., Attorney Robinson violated SCR 20:8.4(a)[4] by attempting to violate SCR 20:4.2.[5]
*223 ¶ 10. The OLR's complaint further alleged that Attorney Robinson was introduced to G.W. through A.B., the developer involved in the purchase of the day care facility. After G.W. told A.B. that he wanted to refinance his home, A.B. suggested that G.W. set up a limited liability corporation to be used to refinance G.W.'s home and later to purchase some rental properties. During September 2000, Attorney Robinson drafted documents to establish a legal entity entitled GW Properties, LLC, with G.W. as the sole member and Attorney Robinson as the registered agent. In drafting the documents, Attorney Robinson acted as attorney for G.W. After Attorney Robinson prepared the documents creating GW Properties, LLC, G.W. and the LLC purchased two properties through Attorney Robinson and A.B. via land contracts. At the time of the purchase, Attorney Robinson did not give G.W. any actual written, signed land contracts.
¶ 11. Attorney Robinson had previously created a series of limited liability companies which he used on his own behalf and/or on behalf of others in acquiring various properties. Some of the companies he created were Caveland, LLC, Peregrine Cliff, LLC, Northeast Partners, LLC, and Cajun Properties, LLC. The various LLCs made offers to purchase five parcels of real estate. The offers for all five parcels were signed in ways that may have made them unenforceable by the sellers. All offers to purchase were drafted by Attorney Robinson.
¶ 12. Sometime in November 2000, Attorney Robinson called G.W. and told him the land contracts were ready for the two properties G.W. had purchased earlier and that G.W. should come to Attorney Robinson's office *224 to sign them. In late November 2000, G.W. signed documents at Attorney Robinson's office relating to the two real estate purchases. Although the land contracts were signed by G.W., they were never signed by the seller and they were never recorded.
¶ 13. While in Attorney Robinson's office signing the land contracts, G.W. also signed a warranty deed transferring all five properties on which the various LLCs had made offers from GW Properties, LLC, to Cajun Properties. Attorney Robinson did not reveal to or discuss with G.W. the fact that G.W. was signing the five-parcel deed or that G.W. was involved in any transaction concerning the five parcels. At the time G.W. signed the deed, GW Properties, LLC, did not have title to any of the five properties that the deed purportedly conveyed. On December 1, 2000, the five parcels were conveyed to GW Properties, LLC, at a closing in Janesville. G.W. was unaware of any closing involving GW Properties, LLC, and did not attend the closing. Attorney Robinson never notified G.W. that a closing would take place.
¶ 14. At the closing, Attorney Robinson signed the transfer tax return and buyer's closing statement for the purchase of the five parcels, representing that he was the agent of GW Properties, LLC, for that purpose. Attorney Robinson's status as registered agent did not authorize him to act as the agent of GW Properties, LLC, in closing the transactions, and GW Properties, LLC, did not authorize Attorney Robinson to act as its agent for those purchases.
¶ 15. On the same day Attorney Robinson closed on the five parcels conveyed to GW Properties, LLC, Attorney Robinson had Cajun Properties acquire the five parcels from GW Properties, LLC, using the warranty deed previously executed by G.W. Neither G.W. *225 nor any representative of GW Properties, LLC, Peregrine Cliff, LLC, or Northeast Partners, LLC, was consulted about the multiple representation by Attorney Robinson and none of them consented in writing to the multiple representation.
¶ 16. At the time of the various transactions, G.W. was married to T.D. On the application for a taxpayer identification number for GW Properties, LLC, Attorney Robinson used T.D.'s social security number without her authorization or consent and without having established an attorney-client relationship with T.D. Attorney Robinson also wrote a letter to Toyota Motor Corporation in which he asserted he was T.D.'s attorney. Attorney Robinson never obtained T.D.'s authorization or consent to act on her behalf.
¶ 17. The OLR's complaint alleged, and the referee agreed, that by representing to G.W. that he had legally purchased rental property, when in fact the properties were purchased on incomplete and unrecordable land contracts, and by transferring properties to or through GW Properties, LLC, without G.W.'s knowledge or consent, Attorney Robinson violated SCR 20:8.4(c). The complaint also alleged, and the referee agreed, that by using T.D.'s social security number to obtain a taxpayer identification number for GW Properties, LLC, without T.D.'s permission and without ever establishing an attorney-client relationship with her and by contacting Toyota Motor Corporation purporting to represent T.D. when in fact he did not, Attorney Robinson violated SCR 20:8.4(c).
¶ 18. The complaint also alleged that in November 1999, Attorney Robinson organized Peregrine Cliff, LLC, with the Wisconsin Department of Financial Institutions and designated himself as its registered *226 agent. A.B., the developer, was the sole member of Peregrine. In September 2000, D.V.B. established an attorney-client relationship with Attorney Robinson for assistance in a residential real estate transaction with respect to a piece of property located on Caroline Street in Janesville. Attorney Robinson drafted and delivered to D.V.B. a residential offer to purchase showing Peregrine Cliff, LLC, as the buyer.
¶ 19. The purported signature for Peregrine Cliff, LLC, on the offer to purchase may have created an ambiguity as to the validity of the contract between D.V.B. and any other party. Attorney Robinson intended that D.V.B. rely on the offer to purchase as a binding contract for the sale of real estate. D.V.B. and his wife accepted the offer from Peregrine Cliff, LLC, and took their home off the market. The sale of the property was scheduled to close on October 23, 2000, but was delayed and rescheduled several times. By letter dated March 28, 2001, Attorney Robinson informed D.V.B. that Peregrine no longer wished to purchase the property. D.V.B. believed he had a binding offer to purchase from Peregrine and that he had a cause of action against Peregrine for breach of contract for not proceeding with the closing. At no time did Attorney Robinson disclose to D.V.B. that he was also the attorney for Peregrine.
¶ 20. The OLR's complaint alleged, and the referee agreed, that by simultaneously representing the conflicting interests of Peregrine Cliff, LLC, and D.V.B., without prior consultation and without obtaining a written conflict waiver, Attorney Robinson violated SCR 20:1.7(a).
¶ 21. The parties' stipulation states that Attorney Robinson is entering pleas of "no contest" to the charges against him. As noted above, the referee issued a report *227 incorporating the stipulation and adopting the recommended six-month suspension as well as the recommendation that Attorney Robinson pay the costs of the proceeding.
¶ 22. We adopt the findings of fact and conclusions of law to which the parties have stipulated, as also adopted by the referee. We determine that the seriousness of Attorney Robinson's misconduct warrants the suspension of his license to practice law for six months. We further agree that he should be required to pay the costs of the proceeding.
¶ 23. IT IS ORDERED that the license of Mark E. Robinson to practice law in Wisconsin is suspended for a period of six months, effective August 6, 2005.
¶ 24. IT IS FURTHER ORDERED that Attorney Robinson comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
¶ 25. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Mark E. Robinson shall pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Attorney Mark E. Robinson to practice law in Wisconsin shall remain suspended until further order of the court.
*228
NOTES
[1] SCR 20:5.3(c)(1) provides: Responsibilities regarding nonlawyer assistants. "(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved."
[2] SCR 20:8.4(c) provides: Misconduct. "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
[3] SCR 20:1.7(b) provides: Conflict of interest: general rule. "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."
[4] SCR 20:8.4(a) provides: Misconduct. "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another."
[5] SCR 20:4.2 provides: Communication with person represented by counsel. "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
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10-30-2013
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52459-7-II
Respondent,
v.
JASON LEMAR DILLINGHAM JENKINS, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Jason Lemar Dillingham Jenkins appeals his jury conviction for two counts
of third degree assault and two counts of unlawful possession of a controlled substance. He argues
that the trial court erred by (1) declining his proposed jury instruction on voluntary intoxication
and (2) imposing an interest accrual provision related to the legal financial obligations (LFOs) in
his judgment and sentence. The State argues that the trial court properly denied Dillingham
Jenkins’s request to instruct the jury on voluntary intoxication and concedes that the trial court
erred by imposing the interest accrual provision. In addition, Dillingham Jenkins raises two issues
in a statement of additional grounds (SAG) for review.
We hold that the trial court did not err by denying Dillingham Jenkins’s request to instruct
the jury on voluntary intoxication, and any error in failing to give the instruction was harmless
beyond a reasonable doubt. We also hold that the court did err by imposing an interest accrual
provision regarding LFOs. Finally, we hold that Dillingham Jenkins raises no issues requiring
No. 52459-7-II
reversal in his SAG. Consequently, we affirm Dillingham Jenkins’s conviction, but remand to the
trial court to strike the interest accrual provision from his judgment and sentence.
FACTS
I. ASSAULT
In September 2017, Tacoma Firefighter Daniel O’Leary responded to a report of a “man
down” who was possibly suffering from a seizure. Verbatim Report of Proceedings (VRP) at 329.
When O’Leary arrived, he observed Dillingham Jenkins covered in leaves and dirt and laying in a
large grassy area in front of a building that appeared to be a school. O’Leary approached
Dillingham Jenkins and noticed he appeared “altered.” VRP at 332. O’Leary attributed this to
either drugs, alcohol, a seizure, or diabetes. O’Leary assisted Dillingham Jenkins to his feet and
helped him into a waiting ambulance. Additional medical personnel placed Dillingham Jenkins
on a gurney, secured his arms and legs with safety restraints, and loaded him into the ambulance.
Initially, Dillingham Jenkins was quiet and calm. When emergency medical technician
(EMT) John Correia took Dillingham Jenkins’s arm to start a blood draw, Dillingham Jenkins
quickly “exploded,” and began fighting and kicking all those around him and accusing the medical
personnel of “stealing his jewelry.” VRP at 3360. Dillingham Jenkins freed his legs from the
safety restraints and kicked Correia squarely in the chest, knocking him out of the back door of the
ambulance.
Dillingham Jenkins, appearing “angry and focused,” stepped out of the ambulance once it
was stopped and approached O’Leary and Correia with fists. VRP at 338. Dillingham Jenkins
then “zeroed in” on O’Leary. VRP at 338. Dillingham Jenkins assumed a “boxing position” and
began swinging and jabbing his fists, hitting O’Leary in the ear and arm. VRP at 338.
2
No. 52459-7-II
The first responders called the police and waited in their vehicles until police arrived.
While they were waiting, O’Leary went up to the building and advised the individuals inside to
lock the doors.
Tacoma Police Officer Ryan Hovey responded to the scene for a “Code Blue” emergency
request for assistance from the fire department. VRP at 291. According to Officer Hovey,
Dillingham Jenkins “appeared high.” VRP at 293. He based his conclusion on the facts that
Dillingham Jenkins was not paying attention to the police officers or firefighters when police
arrived, he laid on the ground without being asked to, and he was “kind of sweaty and excited.”
VRP at 293-94. However, Dillingham Jenkins was compliant while police arrested him. He did
not “flail around” or kick or punch the officers. VRP at 300-01.
While searching Dillingham Jenkins, officers found a white substance that appeared to be
methamphetamine; they also discovered two credit cards belonging to people other than
Dillingham Jenkins in his wallet. After the police officers had Dillingham Jenkins in custody, they
restrained him on the gurney and put him back in the ambulance. Correia and his partner
transported Dillingham Jenkins to the hospital.
A hospital security officer was advised that a “combative patient” was arriving at the
hospital, so, per protocol, the security officer searched Dillingham Jenkins for weapons when he
arrived. VRP at 490. During the search, the security officer discovered a plastic bag with a “black
tar substance” inside and three “clear-type stones.” VRP at 492. The security officer informed a
police officer of what he found. Dillingham Jenkins claimed the drugs were “weed seed.” VRP
at 445. Subsequent testing confirmed that the bag contained methamphetamine and heroin.
3
No. 52459-7-II
Registered Nurse Brooke Carpenter observed Dillingham Jenkins as police and medics
escorted him into the hospital. Carpenter described Dillingham Jenkins’s demeanor as “calm.”
VRP at 570. But she explained that he would not answer questions from hospital staff and “kept
saying that he got jumped over and over.” VRP at 574. Carpenter was advised that Dillingham
Jenkins may have been “smoking Spice1 before he arrived” at the hospital. VRP at 574-75.
Carpenter performed a drug screen on Dillingham Jenkins and concluded that he was positive for
marijuana, methamphetamine, and opiates.
II. PROCEDURE
The State charged Dillingham Jenkins with one count of third degree assault, one count of
second degree identity theft, two counts of second degree possession of stolen property, and two
counts of unlawful possession of a controlled substance. The State amended the information and
charged Dillingham Jenkins with an additional count of third degree assault. The case proceeded
to a jury trial.
At trial, Correia testified that Dillingham Jenkins looked at him when he kicked him and
described the kick as “intentional.” VRP at 409. Correia’s partner testified that Dillingham
Jenkins’s kick “appeared to be targeted.” VRP at 510.
O’Leary and Correia testified that the punch to O’Leary’s arm did not appear to be “random
flailing” but rather a “directed punch.” VRP at 339. O’Leary further testified that Dillingham
Jenkins was “purposely coming after” him. VRP (Aug. 15, 2018) at 345. O’Leary contemplated
1
“Spice” refers to “a synthetic marijuana or marijuana with methamphetamine laced in it.” VRP
at 573.
4
No. 52459-7-II
defending himself, but when he noticed someone in a FedEx vehicle filming the incident, he
continued retreating.
Carpenter testified that behaviors associated with use of Spice are the same as those
associated with methamphetamine: “agitated behavior, rapid pressured speech, increased heart
rate, large pupils, involuntary movements, aggressive behavior.” VRP at 573.
After the State rested, defense counsel proposed that the trial court instruct the jury on
voluntary intoxication. Defense counsel cited testimony that Dillingham Jenkins had appeared to
be under the influence of drugs during the incident and that drugs were detected in his system at
the hospital. Defense counsel proposed the following jury instruction on voluntary intoxication:
No act committed by a person while in a state of voluntary intoxication is
less criminal by reason of that condition. However, evidence of intoxication may
be considered in determining whether the defendant acted with intent.
Clerk’s Papers (CP) at 74. The State opposed the instruction. After hearing argument from both
sides, the trial court determined there was insufficient evidence to support the instruction and
declined to give it. The court explained that while there was some evidence that Dillingham
Jenkins was positive for marijuana, methamphetamine, and opiates, it was unknown,
[T]o what extent that any of this would have affected the defendant’s ability to form
intent other than what was testified to by the medics a[t] the scene, which was that
he was initially sort of out of it and then wasn’t out of it anymore.
....
There just isn’t enough evidence to support all of that.
VRP at 597, 599.
5
No. 52459-7-II
The jury found Dillingham Jenkins guilty of two counts of third degree assault and two
counts of unlawful possession of a controlled substance.2
The trial court sentenced Dillingham Jenkins to 60 months in prison, followed by 12
months of community custody. The court found Dillingham Jenkins indigent and waived all
discretionary LFOs. The court imposed the mandatory $500 crime victim penalty assessment fee
and included an interest accrual provision. Dillingham Jenkins appeals. CP at 485.
ANALYSIS
I. VOLUNTARY INTOXICATION INSTRUCTION
A. SUBSTANTIAL EVIDENCE DID NOT SUPPORT THE PROPOSED INSTRUCTION
Dillingham Jenkins argues that the trial court erred by declining his proposed jury
instruction on voluntary intoxication. The State argues that the trial court properly denied
counsel’s request because there was not substantial evidence that the intoxicants affected
Dillingham Jenkins’s ability to form the requisite intent for the crime. We agree with the State.
We review de novo a trial court’s refusal to give an instruction based on an issue of law.
State v. George, 161 Wash. App. 86, 95, 249 P.3d 202 (2011). “‘Jury instructions are sufficient
when they allow counsel to argue their theory of the case, are not misleading, and when read as a
whole properly inform the trier of fact of the applicable law.’” State v. Aguirre, 168 Wash. 2d 350,
363-64, 229 P.3d 669 (2010) (emphasis and internal quotation marks omitted) (quoting Keller v.
City of Spokane, 146 Wash. 2d 237, 249, 44 P.3d 845 (2002)). “To obtain a voluntary intoxication
instruction, the defendant must show “(1) one of the elements of the crime charged is a particular
2
The trial court granted defendant’s motion to dismiss one count of identity theft and two counts
of possession of stolen property.
6
No. 52459-7-II
mental state, (2) there is substantial evidence that the defendant ingested the intoxicant, and (3)
evidence that his ingestion of an intoxicant affected his ability to acquire the required mental state
for the crime.” State v. Classen, 4 Wash. App. 2d 520, 536, 422 P.3d 489 (2018).
The first element is met because the parties agree that the crime of third degree assault
required that Dillingham Jenkins intended to commit a crime. The second element is met because
the parties further agree that there was substantial evidence that Dillingham Jenkins ingested
marijuana, methamphetamine, and opiates. Thus, only the third element is in dispute.
“To satisfy the third element, there must be substantial evidence of the effects of the
intoxicants on the defendant’s mind or body.” Classen, 4 Wash. App. 2d at 536. “Substantial
evidence is ‘evidence sufficient to persuade a fair-minded, rational person of the truth of the
[matter].’” State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez,
137 Wash. 2d 208, 214, 970 P.2d 722 (1999)). “The evidence must reasonably and logically connect
a defendant’s intoxication with his inability to form the requisite mental state.” Classen, 4 Wn.
App. 2d at 536-37. “A person can be intoxicated and still be able to form the requisite mental state
to commit certain crimes.” Classen, 4 Wash. App. 2d at 537.
While it is not necessary to present expert testimony that alcohol intoxication affected a
defendant’s ability to form the required mental state to commit a crime, the same cannot be said
about intoxication by drugs like methamphetamine and heroin. Classen, 4 Wash. App. 2d at 537.
Because it is not common knowledge how methamphetamine and heroin affect a person’s ability
to form the requisite intent, a defendant is required to provide “competent evidence” showing how
his ability to form intent was affected by the drugs. Classen, 4 Wash. App. 2d at 538.
7
No. 52459-7-II
Here, evidence was adduced at trial that would permit a jury to find that Dillingham Jenkins
was intoxicated. O’Leary testified that Dillingham Jenkins appeared “altered,” and he attributed
it to either drugs, alcohol, a seizure, or diabetes. VRP at 332. Officer Hovey testified that
Dillingham Jenkins was not paying attention to firefighters or medical responders when police
arrived, he laid on the ground without being asked to, he was “kind of sweaty and excited,” and he
“appeared high.” VRP at 293-94. A search of Dillingham Jenkins revealed bags of
methamphetamine and heroin. Carpenter testified that at the hospital Dillingham Jenkins “kept
saying that he got jumped over and over” and would not answer questions from hospital staff.
VRP at 574. Moreover, Dillingham Jenkins tested positive for marijuana, methamphetamine, and
opiates.
As the trial court ruled, the testimony did not show “to what extent that any of this would
have affected the [Dillingham Jenkin]’s ability to form intent other than what was testified to by
the medics [at] the scene, which was that he was initially sort of out of it and then wasn’t out of it
anymore.” VRP at 597.
In fact, the evidence established the opposite. Correia testified that Dillingham Jenkins
was looking at him when he kicked him square in the chest, and he described the kick as
“intentional.” VRP at 409. Correia’s partner observed the incident and testified that the kick
“appeared to be targeted.” VRP at 510. Dillingham Jenkins did not damage anything else in the
ambulance. O’Leary testified that once Dillingham Jenkins stepped outside the ambulance, he
“zeroed in” on O’Leary. VRP at 338. Dillingham Jenkins assumed a “boxing position” and began
swinging and jabbing his fists at O’Leary’s ear and arm. VRP at 338-39. Correia also saw the
blows to O’Leary, and both Correia and O’Leary testified that the punch to O’Leary did not appear
8
No. 52459-7-II
to be “random flailing,” but rather a “directed punch.” VRP at 339. O’Leary added that
Dillingham Jenkins was “purposely coming after” him. VRP at 345-46.
Dillingham Jenkins attempts to liken his case to State v. Walters, 162 Wash. App. 74, 255
P.3d 835 (2011); State v. Rice, 102 Wash. 2d 120, 683 P.2d 199 (1984); and State v. Kruger, 116 Wn.
App. 685, 67 P.3d 1147 (2003). While there was evidence that Dillingham Jenkins was under the
influence of marijuana, methamphetamine, and opiates, unlike Walters, Rice, and Kruger, there
was no evidence showing how his level of drug intoxication impacted his ability to form the
requisite intent to assault Correia or O’Leary. Further, Walters, Rice, and Kruger all considered
evidence showing that the defendants were intoxicated. Walters, 162 Wash. App. at 78; Rice, 102
Wash. 2d at 122; Kruger, 116 Wash. App. at 689. As we held in Classen, alcohol intoxication is
different than drug intoxication. 4 Wash. App. 2d at 537. Because the effects of methamphetamine
and heroin are not “common knowledge,” a showing of “competent evidence” is required to
demonstrate how the defendant’s inability to form intent was affected as a result of his drug
intoxication. Classen, 4 Wash. App. 2d at 538. There was no such evidence presented in this case.
The testimony elicited at trial affirmatively showed that Dillingham Jenkins intended to
assault Correia and O’Leary. Substantial evidence did not support the trial court giving a voluntary
intoxication instruction. Because the evidence did not “reasonably and logically connect”
Dillingham Jenkins’s intoxication with his ability to form the requisite intent, we hold that the trial
court did not err by rejecting his proposed jury instruction on voluntary intoxication. Classen, 4
Wash. App. 2d at 536-37.
9
No. 52459-7-II
B. HARMLESS ERROR
Dillingham Jenkins argues that the trial court erred and that the error was not harmless
beyond a reasonable doubt. He claims that the failure to give a voluntary intoxication instruction
deprived him of his constitutional right to present a defense. The State argues that any error was
harmless beyond a reasonable doubt. We agree with the State and hold that any error was harmless
beyond a reasonable doubt.
A defendant has a constitutional right to present a defense. Aguirre, 168 Wash. 2d at 363. A
constitutional error is harmless if we are “convinced beyond a reasonable doubt that any reasonable
jury would have reached the same result without the error.” State v. Smith, 148 Wash. 2d 122, 139,
59 P.3d 74 (2002). “‘Jury instructions are sufficient when they allow counsel to argue their theory
of the case, are not misleading, and when read as a whole properly inform the trier of fact of the
applicable law.’” Aguirre, 168 Wash. 2d at 363-64 (emphasis and internal quotations marks omitted)
(quoting Keller, 146 Wash. 2d at 249).
Here, “assault” was defined in the jury instructions as, “an intentional, touching, striking,
cutting, or shooting of another person . . . .” CP at 89. The jury was further instructed that “[a]
person acts with intent or intentionally when acting with the objective or purpose to accomplish a
result that constitutes a crime.” CP at 90.
Defense counsel argued at length through closing argument that Dillingham Jenkins could
not form the requisite intent to commit assault based on his level of intoxication. Defense counsel
specifically argued that the testimony that indicated that Dillingham Jenkins appeared “altered”
created a reasonable doubt that he intended to assault Correia and O’Leary. VRP at 636-37. The
jury rejected this theory by finding that Dillingham Jenkins intended to commit assault beyond a
10
No. 52459-7-II
reasonable doubt. The record supports the jury’s verdict. Testimony from eye-witnesses to the
assaults established that Dillingham Jenkins’s kick to Correia’s chest was targeted and intentional.
Dillingham Jenkins was purposely coming after O’Leary when he assumed a boxing position and
began hitting O’Leary. The punch to O’Leary did not appear to be random flailing, but rather a
directed punch.
A voluntary intoxication instruction would not have changed the jury’s rejection of defense
counsel’s theory because the jury instructions allowed defense counsel to argue Dillingham
Jenkins’s theory of the case. Therefore, we hold that any error in failing to give the instruction
was harmless beyond a reasonable doubt.
II. INTEREST ACCRUAL PROVISION REGARDING THE LFOS
Dillingham Jenkins argues that the trial court erred by imposing an interest accrual
provision related to the LFOs when this provision is no longer authorized under current LFO
statutes. The State concedes that this provision is no longer statutorily authorized. We accept the
State’s concession and remand to the court to strike the interest accrual provision from Dillingham
Jenkins’s judgment and sentence.
The legislature amended former RCW 10.82.090(1) and as of June 7, 2018, no interest
shall accrue on nonrestitution LFOs. LAWS OF 2018, ch. 269 § 1; State v. Ramirez, 191 Wash. 2d
732, 747, 426 P.3d 714 (2018). In Ramirez, our Supreme Court held that the LFO amendments
apply prospectively and are applicable to cases pending on direct review. 191 Wash. 2d at 748-49.
The crime victim penalty assessment fee is a nonrestitution LFO. See State v. Catling, 193 Wash. 2d
252, 258, 438 P.3d 1174 (2019) (“[N]o restitution was imposed; . . . the trial court imposed only
11
No. 52459-7-II
three LFOS: the criminal filing fee, the DNA collection fee, and the crime victim [penalty]
assessment [fee].”).
Here, the trial court imposed a mandatory $500 crime victim penalty assessment. This is
a nonrestitution LFO. See Catling, 193 Wash. 2d at 258. The court included an interest provision
that states, “The financial obligations imposed in this judgment shall bear interest from the date of
the judgment until paid in full.” CP at 473. The trial court improperly included this provision
because it only imposed a nonrestitution LFO. Accordingly, we remand for the court to strike this
provision from Dillingham Jenkins’s judgment and sentence.
III. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Dillingham Jenkins raises two additional issues to challenge his conviction
and sentence. Dillingham Jenkins argues that he received ineffective assistance of counsel and the
prosecutor engaged in misconduct. We disagree.
A. SAG PRINCIPLES
A SAG must adequately inform the court of the nature and occurrence of alleged errors.
State v. Calvin, 176 Wash. App. 1, 26, 316 P.3d 496 (2013); RAP 10.10. We consider only
arguments not already adequately addressed as raised by the defendant’s appellate counsel. State
v. Thompson, 169 Wash. App. 436, 493, 290 P.3d 996 (2012). We do not review matters outside the
record on direct appeal. State v. McFarland, 127 Wash. 2d 322, 338, 899 P.2d 1251 (1995). Issues
involving facts outside of the record are properly raised in a personal restraint petition, rather than
a SAG. Calvin, 176 Wash. App. at 26. And we are “not obligated to search the record in support of
claims made in a [SAG].” RAP 10.10(c).
12
No. 52459-7-II
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Dillingham Jenkins claims that he received ineffective assistance of counsel because: “[n]o
witnesses were subpoenaed, 911 tapes were not subpoenaed, [he has] prior mental health issues
that were not addressed, [he has] also been acquitted by a jury for diminished capacity in the past
and this was not investigated to be presented at trial by [his] attorney, [and] a professional defense
witness was not solicited.” SAG at 1. These issues all pertain to matters outside the record that
we cannot address in direct appeal. McFarland, 127 Wash. 2d at 338. Thus, we hold that his first
SAG issue fails.
C. PROSECUTORIAL MISCONDUCT
Dillingham Jenkins next claims that the prosecutor engaged in misconduct because:
“vindictive prosecution [and] discovery violations, [the] Paramedics never [e]ntered a report for
[the] incident, [the] Prosecution [k]new of exculpatory evidence and[/]or information and did not
act on it, [the] Prosecution waited nine [and] a half months before . . . recharging [because] they
didn’t have adequate evidence until they coached [the] firemen and paramedics.” SAG at 1.
Although RAP 10.10(c) does not require Dillingham Jenkins to refer to the record or cite authority,
he is required to inform this court of the “nature and occurrence of [the] alleged errors.” These
assertions of error are too vague to allow us to identify the issues and we do not reach them.
CONCLUSION
We hold that the trial court did not err by denying Dillingham Jenkins’s request to instruct
the jury on voluntary intoxication, and any error in failing to give the instruction was harmless
beyond a reasonable doubt. We also hold that the court did err by imposing an interest accrual
provision regarding LFOs. Finally, we hold that Dillingham Jenkins raises no issues requiring
13
No. 52459-7-II
reversal in his SAG. Consequently, we affirm Dillingham Jenkins’s conviction, but remand to the
court to strike the interest accrual provision from his judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, C.J.
GLASGOW, J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52639-5-II
Respondent,
v.
ANTHONY DWAIN DAVIS, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Anthony Dwain Davis appeals the trial court’s denial of his CrR 7.8 motion
to withdraw his guilty plea to his rape in the first degree conviction, arguing that the court did not
comply with CrR 7.8(c)(2)’s procedure for deciding such motions. The State concedes that the
trial court did not comply with CrR 7.8(c)(2). In his pro se statement of additional grounds for
review (SAG), Davis alleges the same issues raised in his CrR 7.8 motion. We accept the State’s
concession, vacate the trial court’s order, and remand to the trial court to enter an order complying
with CrR 7.8(c)(2).
FACTS
On July 12, 1995, Davis pled guilty to rape in the first degree. His criminal history included
a 1978 conviction of burglary in the second degree; 1986 convictions of two counts of robbery in
the second degree, kidnapping in the first degree, and assault in the first degree; and a 1989
conviction of rape in the first degree. Davis disputed his criminal history in his guilty plea
statement, but acknowledged that the State would recommend a sentence of life without the
possibility of release under the Persistent Offender Accountability Act (POAA), chapter 9.94A
52639-5-II
RCW. The trial court accepted Davis’s guilty plea to rape in the first degree, found that Davis was
a persistent offender under former RCW 9.94A.030(25) (1994), and imposed a life sentence
without the possibility of release under former RCW 9.94A.120(4) (1994).
On September 11, 1997, in State v. Davis, 133 Wash. 2d 187, 192, 943 P.2d 283 (1997), the
court granted appellate counsel’s Anders1 motion to withdraw and dismissed Davis’s appeal based
on the absence of any nonfrivolous challenge to his 1995 rape in the first degree conviction.
Davis has filed numerous personal restraint petitions (PRPs) with this court and the
Supreme Court since that time regarding his current conviction and the underlying convictions that
support his POAA sentence. See In re Pers. Restraint of Davis, Court of Appeals Nos. 52514-3-
II, 52157-1-II, 51957-7-II, 50621-1-II, 50501-1-II, 49575-9-II, 49083-8-II, 48956-2-II, 48926-1-
II, 48844-2-II, 48793-4-II, 48482-0-II; Supreme Court Nos. 96728-8, 96595-1, 96131-0, 94795-3,
84699-5, and 80267-0. He also filed a motion for resentencing on April 12, 2016, which the trial
court denied and we affirmed. State v. Davis, No. 50122-8-II, slip op. at 3 (Wash. Ct. App.
September 18, 2018) (unpublished), http://www.courts.wa.gov/opinions.
On October 17, 2018, Davis filed a pro se CrR 7.8 motion to withdraw his guilty plea,
challenging the sentencing court’s retroactive application of the persistent offender statute and the
facial validity of his plea statement. On October 24, the trial court denied Davis’s motion, ordering
“[t]he State shall not be required to respond to the motion” and “[t]he court will not conduct an
evidentiary hearing on this motion.” Clerk’s Papers at 40. The court made no finding regarding
timeliness. Davis appeals.
1
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
52639-5-II
ANALYSIS
I. CRR 7.8 MOTION TO WITHDRAW GUILTY PLEA
Davis argues that the trial court’s order denying his CrR 7.8 motion to withdraw his guilty
plea should be vacated and the case remanded because the trial court failed to comply with CrR
7.8(c)(2)’s requirements. The State concedes that the trial court erred. We accept the State’s
concession.
A motion to withdraw a guilty plea after judgment is a collateral attack governed by CrR
7.8. State v. Buckman, 190 Wash. 2d 51, 60, 409 P.3d 193 (2018). CrR 7.8(c)(2) establishes the
procedure for addressing CrR 7.8 motions:
The court shall transfer a motion filed by a defendant to the Court of Appeals for
consideration as a personal restraint petition unless the court determines that the
motion is not barred by RCW 10.73.090 and either (i) the defendant has made a
substantial showing that he or she is entitled to relief or (ii) resolution of the motion
will require a factual hearing.
Accordingly, the trial court may rule on the merits of a CrR 7.8 motion only when the motion is
timely filed and either (a) the defendant makes a substantial showing that he is entitled to relief,
or (b) the motion cannot be resolved without a factual hearing. State v. Smith, 144 Wash. App. 860,
863, 184 P.3d 666 (2008). If these prerequisites are absent, the trial court must transfer the motion
to the Court of Appeals for consideration as a PRP. Smith, 144 Wash. App. at 863.
Here, the trial court made no finding regarding the timeliness of Davis’s CrR 7.8 motion
and denied the motion without explanation. Under CrR 7.8(c)(2), the trial court did not have the
authority to decide the motion and, instead, was required to follow the procedures under that rule.
Accordingly, the trial court erred. We accept the State’s concession on this issue.
3
52639-5-II
Both parties request that we not convert this appeal to a PRP. In Smith, we held that
“converting the wrongly-decided CrR 7.8 motion to a personal restraint petition could infringe on
[the defendant’s] right to choose whether he wanted to pursue a personal restraint petition because
he would then be subject to the successive petition rule in RCW 10.73.140 as a result of our
conversion of the motion.” 144 Wash. App. at 864. Here, because both parties object to this court
converting Davis’s appeal to a PRP, we decline to do so and instead vacate the trial court’s order
and remand to the trial court to enter an order complying with CrR 7.8(c)(2).
II. SAG
In his SAG, Davis raises the same issues raised in his CrR 7.8 motion; namely that the
sentencing court wrongly applied the persistent offender statute retroactively and that his plea
statement is facially invalid. However, because we vacate the trial court’s order and remand, we
do not reach the merits of the issues raised in Davis’s SAG. See State v. Robinson, 193 Wash. App.
215, 216, 374 P.3d 175 (2016) (court declined to address issues raised in SAG when court vacated
and remanded trial court’s CrR 7.8 order with instructions to trial court to transfer CrR 7.8 motion
to court of appeal for consideration as a PRP).
We vacate the trial court’s order, and remand to the trial court to enter an order complying
with CrR 7.8(c)(2).
4
52639-5-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Worswick, J.
Lee, C.J.
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Argued September 29, 1927.
Plaintiff sued for injuries received while driving his motor truck, which collided with defendant's trolley *Page 192
car. Appellant complains that the charge permitted a duplication of plaintiff's damages and allowed the jury to assess damages, not only for expense incurred by him in employing another man as a truck driver, but also for loss of plaintiff's earning power, as to which there was no proper or sufficient evidence. It is contended plaintiff did not offer any evidence as to the extent of his business before or after the accident; he did not show how much money he had invested in it, nor what his services were worth, nor what the services of another person performing a like or similar duty were worth. Defendant's theory as to the measure of damages cannot be sustained, nor was there any duplication of damages.
Plaintiff had been conducting the motor truck business of hauling, using a number of horses and wagons, three motor trucks, and employed a number of men. He drove one of his trucks every day. Since the time of the accident, a period of over five years, he has not been able to drive the truck and has been compelled to hire an extra man to do that work. This was an additional expense placed on him because of the injury received at appellant's hands. There was no effort to prove the loss of profits or earning power as rated by any portion of the gain which came from the business. Plaintiff, while conducting the business, performed the services of one of his employees in driving the truck, and showed what the services of another performing that duty were worth. He was totally disabled and claimed compensation for the loss of this earning power. While it might be said that the employment necessitated an additional expense, the question submitted to the jury was the loss of earning power. He could not recover for both, nor did the instructions permit such verdict.
The charge of the court below reads: "There are three items of damages for your consideration, if the plaintiff is entitled to recover. First, the expenditures __________ for doctors __________. The next item __________ is whether the earning *Page 193
power of the plaintiff was impaired Coming back to the question of what was his earning power at the time of the accident, you heard his own evidence as to what he did then, and as to what the condition of his health was. You would next determine whether that earning power was impaired by reason of the accident and how far did the injuries he received, if any, affect that earning power. (In that connection you should bear in mind his duty to undergo a surgical operation under the rule which I have given you, providing the facts apply that rule to this case, and providing you so find the facts.) You will also bear in mind the testimony of the plaintiff to the effect that prior to this accident he ran the motor truck himself, and looked after his business of hauling and excavating, and so forth. He claims that after the accident he was not able to run the motor truck, that he tried to do it several times and had to give it up after working for an hour or so. He testified that he has an office at his home, where he receives telephone calls, and that he goes out to places where he is called upon to look after contracts, and does other things of that kind. He also says that he has been paying a man $5 a day to run his truck, doing work which he himself is unable to do. He says this man works five or six days a week." It is evident the court intended to measure the loss of plaintiff's earning power by the value of the services performed before the injury. The instructions did not permit the jury to assess a sum which would compensate him for what he was paying a truck driver to take his place and also give him additional compensation for the loss of earning power measured by the same expense. The rule as to the measure of damages for loss of earning power has been variously stated by this court: "The value of earning power contemplated is that resulting from the intellectual or bodily labor of the injured party in his business or profession. Profits derived from invested capital or the labor of others are clearly excluded __________. Strictly *Page 194
speaking, compensation for the loss of earning power, as far as possible, should be limited to earnings which are the result of personal effort, either physical or mental": Baxter v. P. R. Ry. Co., 264 Pa. 467, 472.
Income or profits derived from a business requiring the investment of substantial capital, or in which the injured person is engaged with others, or where he employs the labor of others, cannot be accepted as the measure of earning capacity. In the latter case the measure of loss is the value of plaintiff's services to the business: Dempsey v. Scranton,264 Pa. 495, 503. See also Gilmore v. Phila. R. T. Co., 253 Pa. 543.
Plaintiff proved the amount he was compelled to pay to another man to do work he himself had done before the accident. His own services may have been worth more to the business, but this evidence was sufficient for the jury to determine this loss of earning power, and, as he asked for no other earning power, the appellant should not complain. Had the court permitted the jury to assess both the amount paid the employee as an additional expense, and also as measuring appellee's earning power, it clearly would have committed error; but that is not this case.
Judgment affirmed at cost of appellant.
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OSCN Found Document:IN THE MATTER OF APPLICATION OF HARLIN FOR ADMISSION BY EXAMINATION
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IN THE MATTER OF APPLICATION OF HARLIN FOR ADMISSION BY EXAMINATION2017 OK 23393 P.3d 202Case Number: SCBD-6352Decided: 03/28/2017THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2017 OK 23, 393 P.3d 202
IN THE MATTER OF THE APPLICATION OF CALEB ALEXANDER HARLIN FOR ADMISSION BY EXAMINATION TO THE OKLAHOMA BAR ASSOCIATION.
BAR ADMISSION PROCEEDING
¶0 Applicant Caleb Alexander Harlin appeals from a decision of the Oklahoma Board of Bar Examiners denying his application for admission to the practice of law in Oklahoma by examination. As an attorney of a non-reciprocal jurisdiction who is not eligible for admission upon motion, the Applicant seeks admission to the practice of law in Oklahoma by examination under Rule 4 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma. Upon review, we conclude Mr. Harlin has satisfied the requirements of Rule 4 and no issues remain outstanding. Mr. Harlin shall be allowed to take the Oklahoma bar exam.
APPLICATION FOR ADMISSION BY EXAMINATION GRANTED
Drew Neville, Charles E. Geister, III, & Emily S. Eleftherakis, Hartzog Conger Cason & Neville, Oklahoma City, Oklahoma, for Petitioner Caleb Harlin.
Patrick H. Kernan, Newton, O'Connor, Turner & Ketchum, P.C., Tulsa, Oklahoma, for Oklahoma Board of Bar Examiners.
GURICH, V.C.J.
¶1 Rule 4 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma (RGAP) allows for admission to the practice of law in Oklahoma by examination.1 The issue in this case is whether an attorney licensed in a non-reciprocal jurisdiction who applies to take the bar exam under § 1 of Rule 4 must meet the same requirements as a law student applying to take the bar exam under § 2 of Rule 4, specifically the undergraduate degree requirement found in § 2(a) of Rule 4.
Facts & Procedural History
¶2 Mr. Harlin graduated from homeschool high school in Muskogee in July of 2003. After working for approximately a year, he applied for admission to the Juris Doctor program at Oak Brook College of Law and Public Policy in California. Oak Brook is a four-year program recognized by the State Bar of California, but is not accredited by the American Bar Association.2 In California, students who attend non-accredited ABA institutions are required, after their first year of study, to sit for and pass a bar exam called the First Year Law Students' Exam. The exam is a seven-hour test that consists of four essay questions and 100 multiple choice questions styled after the Multi-State Bar Examination. Mr. Harlin took California's First Year Law Students' Exam in October of 2006 and passed on his first attempt.
¶3 In December of 2009, he graduated cum laude from Oak Brook with a Juris Doctor degree. In February of 2010, Mr. Harlin sat for the California bar exam and passed on his first attempt. In June of 2010, he was sworn into the State Bar of California where he remains in good standing. Upon admission to the State Bar of California, Mr. Harlin began doing contract work with two different firms in the San Francisco area while living in Muskogee. His practice included assisting with several jury trials, arbitrations, mediations, appeals, and depositions primarily in the areas of personal injury and employment law. Mr. Harlin is also admitted to practice before the Ninth Circuit Court of Appeals, the U.S. District Courts for the Northern and Central Districts of California, and the U.S. District Courts for the Western and Eastern Districts of Oklahoma.
¶4 After practicing for a year in California, Mr. Harlin contacted the Oklahoma Board of Bar Examiners (Board) and inquired about admission to practice law in Oklahoma.3 Mr. Harlin spoke with the Administrative Director of the Board, who informed him that under the RGAP he could not be admitted to practice in Oklahoma unless he obtained a law degree from an ABA accredited law school.4 During this conversation, there was no discussion regarding Mr. Harlin's lack of an undergraduate degree and whether such would be an impediment to seeking admission to the practice of law in Oklahoma. Pursuant to his discussion with the Administrative Director, and his understanding of the RGAP, Mr. Harlin applied to and was accepted to Oklahoma City University School of Law and began attending classes in the fall of 2012.5
¶5 Oklahoma City University School of Law was aware that Mr. Harlin did not have an undergraduate degree. However, Oklahoma City University School of Law admitted Mr. Harlin pursuant to Standard 502(b) of the ABA Standards for Approval of Law Schools, which allows a law school to admit an applicant who does not have a "bachelor's degree, or successful completion of three-fourths of the work acceptable for a bachelor's degree" in "an extraordinary case."6
¶6 During his time at Oklahoma City University School of Law, Mr. Harlin sought to perform licensed legal intern work under the supervision of an Oklahoma attorney. Thus, on October 15, 2013, he registered with the Board as a law student to become a Licensed Legal Intern.7 On November 19, 2013, the Administrative Director contacted Mr. Harlin by e-mail and advised him that "[o]ne of the requirements to register as a law student and for taking a bar exam is that an applicant has a certificate of graduation with a Bachelor's degree from a college whose credit hours are transferable to an Oklahoma law school."8 On November 20, 2013, Mr. Harlin replied to the Administrative Director and confirmed he did not have an undergraduate degree and that his degree was from the Oak Brook College of Law and Public Policy. The Administrative Director replied to Mr. Harlin that same day and notified him that she had not yet processed his application but that he could submit a statement to the Board explaining how he met the admission requirements of Rule 4.
¶7 On March 5, 2014, Mr. Harlin submitted a statement to the Administrative Director via e-mail wherein he set forth why he believed he satisfied the requirements of Rule 4 of the RGAP. On April 9, 2014, Mr. Harlin received a letter from the Board, notifying him that the "Board has determined that you do not meet the necessary filing requirements for a Law Student Registration application."9 The letter also advised Mr. Harlin that if he wished to apply and take the bar exam, he could "submit an Exam Application by Attorney prior to February 1, 2015."10
¶8 On December 2, 2014, Mr. Harlin submitted an Exam Application by Attorney along with the $1,000.00 application fee. Unlike Mr. Harlin's law student registration application, the Board processed the Exam Application by Attorney and accepted the fee. On March 31, 2015, Mr. Harlin received a letter from Patrick Kernan, general counsel for the Board, notifying him of the Board's denial of his Exam Application by Attorney and his right to appeal such decision under Rule 11 of the RGAP.11 On April 15, 2015, Mr. Harlin timely requested a hearing under Rule 11 of the RGAP.
¶9 The Rule 11 hearing was held before the Board on November 4, 2015. At the hearing, Mr. Harlin argued that the Board had erred in denying his Exam Application by Attorney because under Rule 4, § 1 he was not required to satisfy the law student registration requirements of Rule 4, § 2, specifically the requirement that he obtain an undergraduate degree.12 On November 19, 2015, Mr. Harlin received a letter from the Board notifying him that the Board had again denied his application. The letter advised him that the Board had found that even as an attorney applying under § 1 of Rule 4, Mr. Harlin had to comply with all of the requirements of law student registration found in § 2, including obtaining an undergraduate degree.
¶10 Mr. Harlin timely appealed the decision of the Board to this Court on December 18, 2015. Briefing was completed on April 25, 2016, and the cause was assigned to this office on April 26, 2016. We note that during the pendency of the proceedings before the Board, Mr. Harlin graduated summa cum laude from Oklahoma City University School of Law in May of 2015 where he served on the Oklahoma City University Law Review and was voted by the faculty as the Most Outstanding Graduate of the Class of 2015.
Standard of Review
¶11 In a proceeding to review the Board's decision denying an application for admission by examination, this Court reviews de novo the entire record tendered. Application of Sanger, 1993 OK 158, ¶ 12, 865 P.2d 338, 344. The "findings of fact made by the Board are neither binding nor persuasive," and this Court "must pass on the sufficiency and weight of the evidence as a tribunal of first instance." Id., ¶ 13, 865 P.2d at 344-45. "The burden rests upon the applicant to show himself entitled to the relief sought." Id.
Rule 4
¶12 Rule 4 of the RGAP provides for admission to the practice of law in Oklahoma by examination.13 The issue in the case before us is whether an attorney applying to take the bar exam under § 1 of Rule 4 must meet the same requirements as a law student applying to take the bar exam under § 2 of Rule 4, specifically the undergraduate degree requirement found in § 2(a) of Rule 4. Rule 4, § 1 applies to any attorney licensed to practice law in a non-reciprocal jurisdiction who seeks to apply for admission to the Oklahoma Bar by examination. Under § 1, an attorney must meet "the requirements of this Rule, except that such attorney shall not be required to register as a law student."14 By its terms, § 1 specifically exempts attorney applicants from the law student registration requirements of § 2. Nothing in § 1 requires an attorney applicant to have an undergraduate degree. The only other registration requirement under § 1 is that an attorney applicant "provide at his or her own expense a report by the National Conference of Bar Examiners."15
¶13 Section 2, on the other hand, specifically applies to applicants registering as law students: "No person shall be entitled to take an examination for admission to practice law in this state unless such person shall have registered as a law student filing the verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners . . . ."16 Section 2 continues on, requiring an undergraduate degree, two sets of fingerprints, a recent photograph, and an NCBE Student Application Report for Character and Fitness at the applicant's expense. The Board concluded in its Findings of Facts and Conclusions of Law that because all applicants, whether applying as law students or as attorneys from non-reciprocal jurisdictions, had to provide two sets of fingerprints, a recent photograph, and an NCBE character and fitness report as prescribed in § 2 of Rule 4, that the undergraduate degree requirement of § 2 must also necessarily apply to all applicants. We disagree.
¶14 The character and fitness report requirement of § 2 specifically differs from the character and fitness report required in § 1. Section 1 requires that "such attorney shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners" whereas § 2 specifically requires an "NCBE Student Application Report for Character and Fitness at his or her own expense."17 Although the reports may, in substance, be similar, the plain language of Rule 4 again differentiates between an attorney applicant and a law student applicant. And contrary to the Board's interpretation, § 1 does not require an attorney applicant to provide two sets of fingerprints or a recent photograph. The fact that Mr. Harlin complied with all requests of the Board and provided his fingerprints and a recent photograph does not support the Board's position. Any applicant would comply with reasonable requests of this type of information rather than risk having his or her application denied based only on failure to submit such information. The Board also noted in its Findings of Facts and Conclusions of Law that the "official eight page Exam Application by Attorney, approved by the Oklahoma Supreme Court," contains a section requiring an applicant to attach an "[o]fficial (certified) transcript(s) from schools granting undergraduate and law school degrees."18 However, the exam application does not control over the plain language of Rule 4.19
¶ 15 Section 3 of Rule 4 applies to any application to take the bar exam because it does not specify whether it applies to attorney applicants or law student applicants. Section 3 of Rule 4 requires that an application be filed at "least six months prior to the date of examination," "contain proof of law school study . . . from a law school . . . accredited by the American Bar Association," and that the applicant "furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained."20 The record reflects that Mr. Harlin's application was filed at least six months prior to the date of the examination, that he has obtained a law degree from a law school accredited by the ABA, and has obtained a satisfactory score on the MPRE.
Conclusion
¶16 We conclude that Mr. Harlin, as an attorney licensed to practice law in a non-reciprocal jurisdiction, has met the requirements of Rule 4 for admission to the practice of law in Oklahoma by examination and no outstanding requirements remain.21 The decision of the Board is reversed, and Mr. Harlin shall be allowed to take the Oklahoma bar exam.
¶17 ALL JUSTICES CONCUR
FOOTNOTES
1 5 O.S. 2011 ch. 1, app. 5, R. 4.
2 The record indicates that the four-year program at Oak Brook is a distance-based approach consisting mainly of casebook and hornbook study, which Mr. Harlin completed while living in Muskogee. Certain classes, including trial advocacy and appellate advocacy, were conducted face-to-face with professors at a conference center in the Midwest. Mr. Harlin also participated in four separate foreign study programs offered by Oak Brook.
3 California does not have reciprocity with Oklahoma. Mr. Harlin first inquired with the Board about admission to the practice of law in Oklahoma in early 2010.
4 All members of the Board are licensed attorneys and members of the Oklahoma Bar Association. While the Administrative Director is not an attorney, the record in this case makes clear that the Board has authorized the Administrative Director to speak on its behalf as its agent. Because the Board has allowed the Administrative Director to act as its agent, it is reasonable for an applicant inquiring into the admission process to accept and rely on the Administrative Director's statements as the position of the Board. See In re Application of Jackson, SCBD 5985, Order.
5 The record indicates Mr. Harlin began law school while still living in Muskogee, but that at some point during his tenure at Oklahoma City University School of Law, moved to Oklahoma City to complete his studies.
6 OBBE Exhibits, Ex. 6A at 9.
7 Under Rule 2 of the Rules of the Supreme Court on Licensed Legal Internship, a law student, among other requirements, must have "registered and been accepted as a law student with the Board of Bar Examiners" in order to be eligible for a limited license as a licensed legal intern. 5 O.S. 2011 ch. 1, App. 6, R. 2.1. After registering with the Board as a law student, a law student must later submit an Exam Application by Registered Law Student to apply for and sit for a bar exam.
8 OBBE Exhibits, Ex. 6A at 2.
9 OBBE Exhibits, Ex. 6 at 44.
10 Id.
11 Id. at 54.
12 Mr. Harlin also argued that based on his qualifications, the Board should consider waiving the Rule 4, § 2 undergraduate degree requirement. Mr. Harlin also argued that the Board should be estopped from denying his application because of his reliance upon statements made by the Administrative Director in the April 9, 2014 letter. Mr. Harlin specifically relied on this Court's recent decision in In re Application of Jackson, wherein this Court approved an application to practice law in this state under Rule 2 of the RGAP in part because "the applicant received advice [from the Administrative Director] which caused him to make substantial life decisions based on a belief that he would be allowed to practice law in Oklahoma without completing a bar examination . . . ." In re Application of Jackson, SCBD 5985, Order, ¶ 8 (emphasis added).
13 Rule 4 of the RGAP provides in its entirety:
Section 1. When examination of an attorney of another jurisdiction is required of one who is not eligible for admission upon motion as provided in Rule Two hereof, such attorney may be permitted by the Board of Bar Examiners to take an examination prescribed in Rule Five upon meeting the requirements of this Rule, except that such attorney shall not be required to register as a law student. However, such attorney shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners.
Section 2. No person shall be entitled to take an examination for admission to practice law in this state unless such person shall have registered as a law student filing the verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners setting forth such information as the as the Board requires including:
(a) Certificate of graduation with a Bachelor of Arts or Science degree from a college whose credit hours are transferable to the University of Oklahoma, Oklahoma City University or University of Tulsa, with transcript attached of undergraduate college work.
(b) Two (2) sets of fingerprints which may be submitted to both the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation for appropriate record reviews.
(c) Recent photograph.
(d) NCBE Student Application Report for Character and Fitness at his or her own expense.
The Board may, in its discretion, register nunc pro tunc students who have been enrolled in a law school accredited by the American Bar Association upon compliance with all applicable rules herein.
The application provided by this section shall be valid for a period of ten (10) years. In the event the applicant has not activated the application within this ten (10) year period, the application will no longer be valid and the file containing the application and required information will be destroyed.
Section 3. Application to take the bar exam shall be filed at least six months prior to the date of examination on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires. No applicant shall be permitted to take the bar examination until the applicant furnishes to the Board of Bar Examiners proof of law school study with a certified transcript attached and a certificate of the law school dean or associate dean that the applicant has met the requirements for graduation with a Juris Doctor degree from a law school in the United States of America, its territories or possessions, accredited by the American Bar Association.
A person who matriculates at a law school which was accredited when applicant enrolled therein, and who completes the course of study and is graduated therefrom, shall be deemed a graduate of an accredited law school, even though the school's accreditation was withdrawn while the applicant was enrolled therein.
No applicant may be admitted by examination until he or she shall furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained.
Admission must be effected within one year after the date the applicant successfully completes the Bar Examination unless extended by the Board of Bar Examiners.
5 O.S. 2011 ch.1, app. 5, R. 4.
14 Id., R. 4, § 1 (emphasis added).
15 Id.
16 5 O.S. 2011 ch.1, app. 5, R. 4, § 2 (emphasis added).
17 5 O.S. 2011 ch.1, app. 5, R. 4, §§ 1- 2 (emphasis added).
18 Petition in Error, Ex. A. at 4-5.
19 A court form shall be based upon the applicable rules in effect at the time the form was created. Ellington v. Horwitz Enterprises, 2003 OK 37, 68 P.3d 983. This Court approves court rules and forms only as a matter of procedure. Court rules and forms are not approved in substance and are subject to challenge if inconsistent with statutory or constitutional law. See, e.g., Cornett v. Carr, 2013 OK 30, ¶ 13, 302 P.3d 769, 773 (concluding that Rule 9(a) of the Rules of the District Courts directly conflicted with 12 O.S. Supp. 2002 § 2004(I) to the extent it shortened a plaintiff's allocated time for service of summons).
20 5 O.S. 2011 ch.1, app. 5, R. 4, § 3.
21 Mr. Harlin requested and received from the National Conference of Bar Examiners a character and fitness report specifically to be used with his Exam Application by Attorney. Caleb A. Harlin Exhibits, Ex. 4. The record contains the character and fitness report provided by the National Conference of Bar Examiners to Mr. Harlin prepared on or around November 25, 2014. After conducting a de novo review of the entire record, we conclude that no character and fitness issues remain outstanding.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Supreme Court Cases
CiteNameLevel
1993 OK 158, 865 P.2d 338, 64 OBJ 3641, Sanger, Application ofDiscussed
2003 OK 37, 68 P.3d 983, ELLINGTON v. HORWITZ ENTERPRISESDiscussed
2013 OK 30, 302 P.3d 769, CORNETT v. CARRDiscussed
Title 12. Civil Procedure
CiteNameLevel
12 O.S. 2004, 12 O.S. 2004, ProcessCited
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Opinion and Order requiring compliance by taxpayer rendered March 25, 1980. *Page 325
On the motion of the Department of Revenue, supported by the affidavit of Mr. Glenn Coxen, Supervisor, Industrial Section, Assessment and Appraisal Division, Department of Revenue, State of Oregon, Mr. C. W. Knodell, Financial Vice President, Willamette Industries, Inc., was ordered to appear before this court, sitting in the U.S. Court of Appeals Courtroom, Pioneer Courthouse, Portland, Oregon, on June 15, 1979, to show cause, if any, why he had failed to comply with an Order to Produce Records served upon Willamette Industries, Inc., through Mr. Knodell, on April 4, 1979. The order requested opportunity for inspection by the Department of Revenue's agent of records relating to the Duraflake Division of Willamette Industries, located at Millersburg, Oregon, for the fiscal years ending in 1974 to 1978, inclusive (for purposes of completing the appraisal of that plant for the tax year 1979-1980), as follows:
"1 The annual production of particle board and surface square feet upgraded by painting, that is, processing and the remanufacturing section of the plant known as the 'paint line' or 'coating and filling' line;
"2. The particle board production cost of the various work centers normally referred to as 'cost center', that are typically a part of cost records. Examples are: raw material receiving, milling and drying, blending and mat forming, pressing, sanding, cutting, shipping, overhead, depreciation and selling expense;
"3. The cost per ton assigned to various kinds of wood residue used as raw material for particle board, delivered to the Duraflake Division, furnished by plants owned or controlled by Willamette Industries, Inc., and the cost per ton using yearly averages delivered to the plant and purchased in the open plants owned or controlled by Willamette Industries, Inc., and the cost per ton using yearly averages delivered to the plant and purchased in the open market. The costs preferably expressed as a range *Page 326
from the lowest price to the highest price and an approximate average cost for each year specified;
"5. [sic] Copies of profit and loss statements and balance sheets with available supporting schedules: For fiscal years ending 1974, 1975, 1976, 1977 and 1978."
Mr. Knodell duly appeared and testified. After testimony and arguments, the counsel for the two parties stipulated that the decision in this matter could be held in abeyance pending resolution by the Oregon Supreme Court on appeals then before it, taken from the Oregon Tax Court in In re Southern OregonCable TV (TC No. 1210-S, decided March 16, 1978), Frank LumberCo. v. Dept. of Rev., 7 OTR 555 (1978), In re Eola ConcreteTile Prods. Co., 8 OTR 128 (1979), and Eola Concrete Tile Prods. Co. v. Dept. of Rev., 8 OTR 138 (1979). Decisions in these cases have now been rendered by the Oregon Supreme Court in 287 Or. 35, 287 Or. 513 and 288 Or. 241, respectively, all in 1979. This court has provided that, following instruction from the Supreme Court in the above-entitled cases, further argument or additional testimony could be presented upon request of either counsel. Defendant's counsel, in a letter dated February 13, 1980, and plaintiff's counsel, in a letter dated February 25, 1980, indicated that they now deemed the matter to be submitted to the court and that no further testimony or argument was useful or desired.
Mr. Knodell's testimony made clear that all of the records requested by the Department of Revenue could be made available except that, whereas item 3 referred to the "cost per ton assigned to various kinds of wood residue used as raw material for particle board * * *," the corporation's books do not reflect costs per ton but by units of 1,000 board feet, three-quarter inch surface measure. This is a finished product, shown in the financial statement, and reference must be made to individual invoices to determine costs of raw materials. "We work on the sales price and work back on that basis." (Tr 27.) *Page 327
Mr. Russell A. Smith, an appraisal engineer for the Department of Revenue, has worked in the pulp and paper industry for about 13 1/2 years as an industrial engineer and has been with the Department of Revenue for approximately 5 1/2 years as an appraisal engineer, during which time he has made appraisals of 75 to 100 plants. He testified that the books and records of the various plants which he has appraised are not systematized into uniform accounts and, consequently, when he initiated the request for the information desired of Willamette Industries, Inc., he sought only an opportunity for inspection of the records as kept by the company. He expected to make the necessary bookkeeping adjustments for purposes of comparison with other plants, to determine performance in the market.
[1.] As stated by plaintiff's counsel, the principal objection to the production of documents was "for the reason that their disclosure to competitors would be detrimental to the taxpayer." (Tr 5.) Yet, the plaintiff admitted in court that it was cognizant that all property tax returns come under a secrecy clause, set out in ORS 308.290(5). The plaintiff itself produced no evidence of a failure of a taxpayer to be protected by the statutory provision. Mr. Smith testified that in his 5 1/2 years of service with the Department of Revenue, no unauthorized person had ever asked him for information of the type that plaintiff desired to have kept secret and that he knew of no colleague who had been asked for such information; if he were asked for it, he would not produce it without being ordered by some higher authority. (Tr 49.)
The court recognizes the annoyance to the members of the public which is caused by governmental inquiries, required by the administration of various laws, but can only take note of clearly stated, proved, specific abuses.* *Page 328
[2.] Mr. Smith testified as to the basis for his request for additional information from the corporation. ORS 306.126
provides for the department to furnish experienced appraisers from the department's staff to undertake industrial appraisals upon a county's request. Under ORS 308.234, the county assessor has a duty physically to appraise each parcel of property in the county at least once every six years, "to insure that equality of taxation according to law shall be secured." The Department of Revenue's Industrial Section, acting on behalf of the county assessor, seeks to establish a firm foundation for its valuation in an initial year and then to maintain the probity of its work through a "report method" until a physical appraisal is once again required by statute. See AstoriaPlywood Corp. v. Dept. of Rev., 6 OTR 40, 43-46 (1975). In order to get the best result contemplated by the statutes, Mr. Smith wished to consider the income approach to value (in addition to the cost approach); he also wished to explore the possibility of functional obsolescence in one cost center in the Albany plant, which had come to his attention particularly. He properly regarded these requests as essential steps in his effort to establish a solid value as of January 1, 1979, as a foundation for appraisals based upon the plaintiff's written reports over the next five years. (Tr 36.)
[3.] The corporation has argued that (1), since the cost approach to value is normally regarded as giving the upper limits of value, and this approach has been used in the present instance, Mr. Smith should be content with the "upper limits of value" and not require the use of the income approach; but (2), if the income approach were used, the mere statement of the taxpayer of its net income, as approved by a certified public accountant, should be sufficient for the appraiser's *Page 329
purposes; and (3), in effect, that since the discovery of functional obsolescence would diminish the corporation's tax liability, the taxpayer should have the election to waive such advantage in lieu of revealing its records.
Mr. Smith properly replied that the appraiser should be in a position to form his own judgment, that he was under an obligation and requirement to determine the true cash value per ORS 308.205 and OAR 150-308.205-A and (B) (although it is not necessarily a value acceptable to the taxpayer, for one reason or another). Mr. Smith pointed out, in addition, that the term "net income" for accounting purposes, especially with relation to adjustments for depreciation, are rarely equivalent to the "net income" sought for purposes of capitalization under the cost approach.
Plaintiff's counsel also argued that the question before the court was moot, because the department had actually delivered an appraisal report to the county assessor as to the property here involved, in time for its entry upon the assessment roll for the tax year 1979-1980, and the plaintiff had not contested this appraisal. However, the court reminds the parties that all agreed that this matter should be held open until the Supreme Court made determinations in other, similar cases, above cited, and, further, that under the property statute, amendments to the property tax roll could be made for a period of five years upon proper information of omitted property being brought to the attention of the county assessor. ORS 311.207.
Defendant's appraisal report was given to the county assessor because of time requirements, although, in the view of the appraiser, it lacked essential information. However, defendant is not foreclosed from doing what it deems to be necessary to obtain a first-class foundation for future years of the appraisal cycle. The county assessor can amend the 1979-1980 assessment *Page 330
and tax rolls, pursuant to ORS 311.211, only if he finds the department's new data include omitted property, but the department's assessment for the next open year will be improved and its statutory duty will be more nearly fulfilled.
Counsel for the defendant deplored the present situation, under which bona fide requests to a taxpayer for vital information can be long delayed, under the statutes, by taxpayer resistance and appeal to the courts. This is an old problem. The taxpayer is and should be entitled to all the benefits of due process. Over the years, clear communication to taxpayers of the department's needs, together with the exercise of a fair, open, consistent and persistent policy of information gathering, with the continued strict observance of the secrecy provision, may well ameliorate the situation. The department, with a history of over 50 years, appears to have pressed the use of subpoenas only during the last one or two years. Taxpayers and department, alike, are seeking accommodation.
[4.] The material requested by defendant of the plaintiff, in defendant's subpoena as above described, is relevant to carrying out the defendant's duties to the county assessor under ORS 306.126, is not overly broad, and comes within the requirements of Pope Talbot, Inc. v. State Tax Com., 216 Or. 605, 340 P.2d 960 (1959). Now, therefore,
IT IS ORDERED that plaintiff should be and hereby is required to comply with the defendant's Order to Produce Records, duly served on Mr. C. W. Knodell, Financial Vice President, Willamette Industries, Inc., on April 4, 1979, except that costs per ton may be evidenced by original invoices, submitted to defendant's agent for inspection in plaintiff's office in which they are regularly kept; and
IT IS FURTHER ORDERED that plaintiff shall comply fully with defendant's Order to Produce Records, as amended hereby, within 30 days from the date *Page 331
of this order, or in such additional time as the court may specifically approve, on motion or stipulation filed in this court prior to the expiration of the allowed 30 days.
* The court has been unable to find, nor has its attention been called to, a penalty statute, imposed upon a state employee, for breach of the secrecy provision either during or following termination of employment by the state. The enactment of such a statute might aid the department in its requests for records. *Page 332
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61 Cal. 2d 341 (1964)
WILLIAM J. KINNEAR, Plaintiff and Respondent,
v.
CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.
S. F. No. 21218.
Supreme Court of California. In Bank.
May 28, 1964.
Thomas M. O'Connor, City Attorney, and R. J. Reynolds, Deputy City Attorney, for Defendant and Appellant.
James D. Hadfield and Leo Fried for Plaintiff and Respondent.
GIBSON, C. J.
Plaintiff, who held a permanent civil service position as a deputy in the sheriff's department of the City and County of San Francisco, filed on September 16, 1959, a declaration of candidacy for election to the office of Sheriff of San Francisco, and he was notified on the same day by the Civil Service Commission that as a result of his filing for the office of sheriff his position was automatically forfeited under section 5 of the San Francisco Charter. A few days later he withdrew his accumulated contributions to the retirement fund, and this action was filed one year after his dismissal.
Section 5 of the charter provides: "Any appointive officer or employee of the city and county who shall become a candidate for election by the people to any public office shall automatically forfeit such city and county office or position."
The trial court concluded that section 5 is unconstitutional, ordered that plaintiff be restored to his position, and awarded him damages in an amount representing the difference between the compensation he would have received if not dismissed and his earnings from other employment after dismissal.
[1] We find untenable defendant's contention that plaintiff is barred from relief by laches or estoppel. In accordance with defendant's representation to plaintiff that the forfeiture of his position was automatic under section 5 of the charter, the trial court found that plaintiff believed and was entitled to believe that the section was self-executing.plaintiff's belief was shared by the framers of the charter, the people who adopted it, and the officials of defendant who enforced it, and under all the circumstances we cannot properly hold that the trial court erred in finding that the delay of one year in bringing the action was not unreasonable.
[2] A determination as to whether section 5 of the charter is an unconstitutional abridgment of a fundamental right is *343 governed by the principles discussed in Fort v. Civil Service Commission of the County of Alameda, ante, p. 331 [38 Cal. Rptr. 625, 392 P.2d 385]. We there held unconstitutional for over-breadth and uncertainty a charter provision which restricted nonpartisan as well as partisan political activities and applied not only to county elections but to all elections, and which was not narrowly drawn but was framed in general and uncertain terms that excepted only the right to vote and to express opinions privately. Although the San Francisco Charter provision is not uncertain and is directed solely to the activity of seeking public office, it is no less subject to the criticism that it relates alike to all public offices, whether they be partisan or nonpartisan in character and whether they be San Francisco offices or national or state offices. San Francisco has not, as it must in order to prevail, shown a compelling need to restrict the fundamental right involved on such a sweeping scale. [fn. 1]
Here, as in Fort, no language can be severed from the provision to limit its operation, and the only way in which a limitation could be attempted is by rewriting the provision in a manner which courts cannot reasonably be expected to undertake. Section 5 of the charter must fall in its entirety regardless of whether a provision could be constitutionally drawn to deal with the particular factual situation in this case, i.e., one in which a person runs for office against his own superior.
It follows that plaintiff is entitled to reinstatement. [3] Defendant nevertheless contends that the award of differential damages made by the trial court was improper. The correctness of the sum awarded ($6,368.28, plus any differential accruing after the date of judgment) is not disputed, but it is asserted that the evidence is insufficient to support any award of damages because under San Francisco's charter funds must be available before expenditures can be made, absence of a showing that funds were available for the purpose. Defendant relies in this connection on the case of Tevis v. City & County of San Francisco (1954) 43 Cal. 2d 190, 200 [272 P.2d 757], which held that officials could not be compelled by mandamus to make payment of back salaries in the *344 absence of a showing that funds were available for the purpose. However, as that case recognizes, such a showing is not a prerequisite to a judgment which, like the one here, is a money judgment against the city and does not command any particular official to make payment.
The judgment is affirmed.
Traynor, J., Schauer, J., McComb, J., Peters, J., Tobriner, J., and Peek, J., concurred.
NOTES
[fn. 1] 1. In the state legislation enacted in 1963 which regulates political activities by local public employees and is applicable to San Francisco, the right to run for office is not restricted in any way, even as to local or partisan offices. (Stats. 1963, ch. 2000, pp. 4078-4080; Gov. Code, 3201-3205.)
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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/4241689/
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Order Michigan Supreme Court
Lansing, Michigan
January 31, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
156813(120) David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
CHELSEA HEALTH & WELLNESS Elizabeth T. Clement,
FOUNDATION, Justices
Petitioner-Appellee,
SC: 156813
v COA: 332483
Tax Tribunal: 14-001671-TT
SCIO TOWNSHIP,
Respondent-Appellee,
and
CITY OF DEXTER and DEXTER DOWNTOWN
DEVELOPMENT AUTHORITY,
Intervenor Respondents-
Appellants,
and
DEPARTMENT OF TREASURY,
Intervening Respondent-Appellee.
_________________________________________/
On order of the Chief Justice, the joint motion of the Michigan Municipal League,
Michigan Townships Association, Michigan Association of School Boards, and
Government Law Section of the State Bar of Michigan to file a brief amicus curiae is
GRANTED. The amicus brief submitted on January 16, 2018, is accepted for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 31, 2018
Clerk
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01-03-2023
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02-02-2018
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https://www.courtlistener.com/api/rest/v3/opinions/3388768/
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This case is before us on appeal from an order denying plaintiffs' application for appointment of an administratorpendente lite and denying defendants' motion to dismiss the bill of complaint.
The appellants were the complainants in the court below and assigned as error that part of the order denying plaintiffs' application for appointment of Administrator pendente lite.
The defendants filed cross assignments of error challenging the propriety of the order denying defendants' motion to dismiss the bill of complaint.
The appellants state the question involved as follows:
"Where it is admitted that Executors have committed continuous and serious devastavit, and have vastly depreciated the value of the properties in their control, and have never accounted to the beneficiaries, and have been carrying on for about five years the business of the estate without authority from any court or will, or from the Last Will and Testament of the deceased, and where it is admitted that the Executors are insolvent and unable to respond in any damages and are serving without bond, and have expressed themselves as very antagonistic to a court proceeding brought by a certain beneficiary intended to require said Executors to make proper accounting, to respond in *Page 400
damages, to make a proper division of the property; and also intended to obtain a legal construction of the will under which the Executors are acting — ought the Circuit Court to appoint an Administrator pendente lite or Receiver to handle the assets and affairs of said estate, pending the final determination of the suit?"
The record does not sustain the presumption contained in the question. There was no admission of the facts alleged in the bill of complaint except that which the law imposes as the result of the filing of a motion to dismiss which takes the place of demurrer under the old practice. The motion to dismiss only admits the allegations of the bill for the purpose of testing the sufficiency thereof as matters of pleading and does not for any other purpose admit such allegations to be true.
The bill of complaint seeks the construction of the Last Will and Testament of one B. C. Datson, deceased. The complainant, Elizabeth Datson Hornbeck, was one of the children of B. C. Datson, deceased, and was one of the beneficiaries under the will. Alice A. Datson was the widow of B. C. Datson and Clarence Datson was the oldest son of B. C. Datson, deceased. They were appointed Executors and Trustees under the Will. Nellie Mae Dawson, Bernice C. Datson, Theodore Datson, Glenn Datson and Dick Datson were children of the deceased, and were beneficiaries under the Will. Robert Dawson was the husband of Nellie Mae Dawson.
The bill prayed for an accounting, for a proper division and closing up of the estate, the discharge of the Executors and Trustees, and for the appointment of an Administratorpendente lite to take charge of the assets and affairs of the business and property of the estate and to carry on the business until the termination of this litigation. The propriety *Page 401
of the appointment of an Administrator pendente lite was discussed fully in the opinion prepared by Mr. Justice ELLIS for this Court in the case of Story v. First National Bank,103 Fla. 399, 139 So.2d 179. In the first and second headnotes we held:
"Where the legatees under a will which names an Executor to pay the debts of the testator and the same person as trustee to hold the residue of the estate for the benefit of persons named commence a suit after the probate of the will and completion of the duties of the Executor, to obtain a construction of the will, to declare the attempted creation of the trust void, enjoin the trustee from intermeddling in the ownership of the property or controlling any business or personal property belonging to the estate, to account for all moneys received and expenses incurred and be charged with mismanagement and waste and to deliver possession of all property belonging to the estate to the legatees under the will who are the statutory heirs of the testator, the litigation thus commenced presents such a contest of the provisions of the will as that the court may appoint an administrator pendente lite.
"Where a will names an Executor to administer an estate and names the same person trustee of the residue of the property after payment of debts and prescribes the duties of the trustee in respect of such property and the heirs of the testator assert the invalidity of the trust provisions of the will and demand possession of the properties after the duties of Executor have been completed, and the trustee denies such claims of the heirs and proceeds to take possession and control of the properties such trustee becomes necessarily antagonistic to the asserted rights of the heirs and in such case on the cause being duly presented to a *Page 402
court of competent jurisdiction the appointment of an administrator pendente lite is appropriate."
In this case the bill of complaint fails to allege such state of facts or to contain such allegations as may be construed to bring this case within the rule of one which is instituted to contest a will. In this bill of complaint the validity of the will is asserted with the prayer that it be construed and its meaning and effect be decreed. We do not think the showing made is sufficient to require the Chancellor as a matter of right to appoint an administrator pendente lite, nor do we find that the record reflects an abuse of judicial discretion.
The bill of complaint is not entirely without equity. The allegations, unanswered, are sufficient to show that the complainants are entitled to an accounting. There, the cross assignment of errors must fall.
The order appealed from should be affirmed and the cause remanded for further proceedings.
It is so ordered.
ELLIS, P. J., and TERRELL and BUFORD, J. J., concur.
WHITFIELD, C. J., and DAVIS, J., concur in the opinion and judgment.
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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/4227540/
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OSCN Found Document:PAUL v. HUNTER
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PAUL v. HUNTER2017 OK 25393 P.3d 202Case Number: 115322Decided: 03/27/2017THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2017 OK 25, 393 P.3d 202
CHIP PAUL and PHILIP WINTERS, OKLAHOMANS FOR HEALTH, Petitioners,
v.
THE HONORABLE MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, Respondent.
¶0 ORDER
¶1 Petitioners filed a ballot title appeal pursuant to 34 O.S.Supp. 2015 §§ 9, 10, and requested the Court to assume original jurisdiction, review the ballot title substituted by the Attorney General, strike that title, and replace it with the original proposed ballot title for State Question No. 788, Initiative Petition No. 412.
¶2 Original jurisdiction is assumed. Okla. Const. Art. 7 § 4. The ballot title substituted by the Attorney General is hereby stricken. The original proposed ballot title is approved by the Court and shall be the ballot title for State Question No. 788, Initiative Petition No. 412. 34 O.S.Supp. 2015 §§ 9, 10.
¶3 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 27th DAY OF MARCH, 2017.
/S/CHIEF JUSTICE
¶4 CONCUR: COMBS, C.J.; GURICH, V.C.J.; and KAUGER, WATT, EDMONDSON, COLBERT, and REIF, JJ.
¶5 DISSENT: WINCHESTER, J.
¶6 RECUSED: WYRICK, J.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Title 34. Initiative and Referendum
CiteNameLevel
34 O.S. 9, Ballot Title - Filing - Review - AppealDiscussed
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01-03-2023
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12-11-2017
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https://www.courtlistener.com/api/rest/v3/opinions/4249587/
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IN THE SUPREME COURT OF IOWA
No. 12–0228
Filed May 18, 2012
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
KAREN A. TAYLOR,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission reports respondent committed ethical
misconduct and recommends a public reprimand. ATTORNEY
REPRIMANDED.
Charles L. Harrington and N. Tré Critelli, Des Moines, for
complainant.
Karen A. Taylor, Des Moines, pro se.
2
APPEL, Justice.
This matter comes before us on the report of a division of the
Grievance Commission of the Supreme Court of Iowa (commission). See
Iowa Ct. R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board
(Board) alleges the respondent, attorney Karen Taylor, engaged in
multiple instances of misconduct in violation of several rules of
professional conduct. The commission recommends a public reprimand.
Upon our de novo review, we agree with the recommendation of the
commission.
I. Procedural and Factual Background.
A. Introduction. In September 2011, the Board filed a complaint
against Taylor. The Board alleges that Taylor violated several rules of
professional conduct in her representation of Sharilyn Norin and Derrick
Coleman in appeals of family law matters. 1
In Count I, the Board alleges Taylor represented Norin in a child in
need of assistance (CINA) proceeding. In that proceeding, Norin sought
to challenge the placement of Norin’s nephew outside the family. The
Board alleges that Taylor failed to file a timely appeal to an adverse
ruling, causing dismissal of the appeal. The Board further asserts that
Taylor failed to advise her client of the dismissal in a timely fashion and
misled the client regarding the reason for the dismissal. The Board
alleges that Taylor’s conduct violated rule 32:1.3 (neglect), rule
32:1.4(a)(3) (failing to keep a client reasonably informed about the status
of a matter), rule 32:1.4(a)(4) (failing to promptly comply with reasonable
requests for information), rule 32:8.4(c) (engaging in conduct involving
misrepresentation), and rule 32:8.4(d) (engaging in conduct prejudicial to
the administration of justice).
1The Board voluntarily dismissed a third count against Taylor involving another
client.
3
In Count II, the Board alleges that Taylor represented Coleman in a
modification proceeding where Coleman sought to alter a child custody
arrangement. The Board alleges that Taylor failed to properly prosecute
the appeal after an adverse ruling, causing dismissal of the appeal. The
Board further asserts that Taylor failed to inform the client of the true
basis of the dismissal. Based on these allegations, the Board asserts
that Taylor violated rule 32:1.3, rule 32:8.4(c), and rule 32:8.4(d).
The commission held a brief hearing. The Board offered into
evidence exhibits and called Taylor to testify. The facts were largely
undisputed. Following the hearing, the commission concluded that
Taylor had violated rules of professional conduct during her
representation of Norin and Coleman and recommended that Taylor
receive a public reprimand.
B. Facts Established at the Hearing.
1. Norin matter. Norin retained Taylor in August 2008 for the
purpose of filing a motion to intervene in a CINA matter. Norin sought to
contest the placement of her nephew with a nonfamily member. The
district court denied Norin’s request for a change of placement on
November 10. Because the matter related to CINA issues, Taylor had
fifteen days after the entry of the ruling to file a notice of appeal. See
Iowa R. App. P. 6.101.
Taylor filed a notice of appeal on December 10, thirty days after the
entry of the ruling. Taylor stated the belated filing was due to her
mistaken belief that she had thirty days to file the notice of appeal.
Taylor stated that she was aware that the fifteen-day deadline applied to
appeals involving the termination of parental rights. Taylor explained,
however, that she did not realize matters involving child placement were
4
also subject to the fifteen-day deadline, instead of the thirty-day
deadline.
On December 24, the guardian ad litem of Norin’s nephew filed a
motion to dismiss based upon Taylor’s failure to file a timely notice of
appeal. Taylor did not resist the motion, and on January 29, 2009, this
court dismissed the appeal.
The Board further asserts that Taylor engaged in neglect by not
seeking an extension of time to file her brief under Iowa Rule of Appellate
Procedure 6.101(5), which allows a motion for an extension of time to be
filed within sixty days of the original deadline when the clerk of the
district court has failed to notify a prospective appellant of the filing of
the order or judgment. According to the Board’s calculation, Taylor
could have filed such a motion by January 24, 2009. In her answer to
the Board’s charges, Taylor denied that she was aware that such an
extension could be obtained. At the hearing, Taylor testified she “could
have still filed a Notice of Appeal on time” because she received the order
on November 25, within fifteen days of the filing of the order. Taylor
stated she did not file the notice of appeal on the 25th because she
believed she had until December 10 to do so. Thus, according to Taylor,
“the delay for getting a Notice of Appeal filed was irrespective of whether
or not I got the order on time, but because of my mistake.”
Taylor did not immediately inform Norin of the dismissal. On
February 10, 2009, Norin sent an e-mail to Taylor requesting a copy of
the appellate brief. On March 19, Norin sent another e-mail expressing
her dissatisfaction with Taylor’s efforts to communicate the status of the
matter. Taylor responded to the March 19 e-mail on the same day.
Taylor’s reply, however, did not tell Norin of the dismissal or of Taylor’s
error. Instead, Taylor said she would send to Norin the appellate brief,
5
as requested. Norin responded the next day and stated she received the
appellate brief, but wished to know when the brief was filed.
Taylor testified that she first informed Norin of the dismissal in a
letter dated March 23. The letter was offered into evidence at the
hearing. The March 23 letter told Norin the appeal had been dismissed
and that Taylor incorrectly calculated the time for filing the appeal.
Taylor acknowledged the “error,” though she stated that “by the time that
we received a copy of the Order we were already outside of the time frame
for the filing of the appeal.”
Norin sent Taylor another e-mail on March 26, which suggested
Norin had not received Taylor’s March 23 letter. Norin’s e-mail requested
the date Taylor filed the brief and information regarding whether the
other side had submitted its response to Taylor’s brief. Norin again e-
mailed Taylor on June 9, stating, “We have been trying to patiently wait
for news regarding our appeal on behalf of our nephew . . . . The appeal
was filed around Thanksgiving. Has a decision been made? Has any
information come to you?” On June 11, Joan Ryan, a family member of
Norin, sent Taylor another e-mail. The e-mail expressed Ryan’s
disappointment in Taylor’s “lack of professionalism and communication.”
Ryan further noted her family’s frustration over Taylor’s consistent
failure to respond to their phone calls and e-mails. Ryan requested
Taylor provide information relating to the status of the appeal. Taylor did
not respond to the March 26, June 9, or June 11 e-mails.
Taylor testified she did not at first inform Norin of the dismissal
because she “wasn’t quite sure how to handle” the situation. Taylor
acknowledged her failure to inform Norin of the dismissal “compounded
the problem.” When asked whether her failure to disclose was
intentional, Taylor responded:
6
The Motion to Dismiss came after I had already initially
worked on the brief and stuff, so initially I . . . wasn’t
completely forthright . . . about the dismissal, and I believe
there was probably a two-month period of time after I knew
about it where we kind of led her to believe that it hadn’t—I
hadn’t been forthright about the dismissal, and . . . I kind of
led her to believe that it was still pending.
In hindsight, Taylor realizes she should have immediately informed
Norin of her error and that it resulted in dismissal of the appeal. Taylor
reports she has since implemented measures to ensure her clients are
better informed and deadlines are met.
2. Coleman matter. In June 2008, Taylor began representation of
Coleman in a matter involving a modification of a dissolution decree.
The district court denied Coleman’s request to modify the decree on
September 29, 2009. Because the matter involved child custody issues,
the expedited deadlines of rule 6.902(1)(a) applied.
Although Taylor filed a timely notice of appeal, the combined
certificate did not state whether the expedited deadline applied, as
required by rule 6.804(4) of the rules of appellate procedure. Taylor
subsequently filed two applications to extend the filing date of the proof
brief and designation of appendix. Neither application stated whether
the expedited deadlines applied in violation of rule 6.1003(2).
The appellee in the matter filed a motion to dismiss, which noted
the appeal involved child custody issues. The motion to dismiss was not
resisted. The court order granting the motion to dismiss noted that it
was not resisted and further stated that “[t]he motion to dismiss
indicates that this appeal involves child custody issues, though this was
not noted by the appellant in the combined certificate or in his two
extension requests, as is required by the rules.”
Taylor stated she did not indicate in her court filings that the
expedited deadlines controlled the Coleman appeal because she believed
7
they were inapplicable. Taylor explained that she thought the expedited
deadlines did not apply because the Coleman appeal involved child
visitation issues, not matters involving child custody. Thus, based on
her erroneous interpretation of the rules of appellate procedure, Taylor
requested extensions to extend the filing dates. Taylor further testified
she had been experiencing problems in her personal life, which
ultimately culminated in a divorce.
Within ten days of the dismissal, Taylor sent a letter to Coleman
advising of the dismissal. The letter stated that the dismissal was due to
Taylor’s “fail[ure] to file the original proof brief as required as the
docketing date missed my calendar.”
II. Standard of Review.
We review the findings of the commission de novo. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Johnson, 792 N.W.2d 674, 677 (Iowa 2010).
The Board must prove misconduct by a “convincing preponderance of the
evidence.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 774 N.W.2d
301, 304 (Iowa 2009). This burden is less demanding than proof beyond
a reasonable doubt, but requires a greater showing than the
preponderance of the evidence standard. Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). Once
misconduct is proven, we may impose a “lesser or greater sanction than
the discipline recommended by the grievance commission.” Earley, 774
N.W.2d at 304 (citations and internal quotation marks omitted).
III. Ethical Violations.
A. Neglect. Iowa Rule of Professional Conduct 32:1.3 states, “A
lawyer shall act with reasonable diligence and promptness in
representing a client.” Iowa R. Prof’l Conduct 32:1.3. Despite the
linguistic differences of its predecessor, DR 6–101(A)(3), we have cited
8
neglect cases under DR 6–101(A)(3) as precedent in interpreting rule
32:1.3. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809
N.W.2d 96, 102 (Iowa 2012); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Dolezal, 796 N.W.2d 910, 915 (Iowa 2011). In this case, neither party
has argued that rule 32:1.3 should be interpreted or applied differently
than DR 6–101(A)(3).
Generally, a violation of rule 32:1.3 cannot be found if “the acts or
omissions complained of were inadvertent or the result of an error of
judgment made in good faith.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Joy, 728 N.W.2d 806, 812 (Iowa 2007). An attorney does not typically
commit neglect by missing a single deadline. Van Ginkel, 809 N.W.2d at
102. Instead, neglect involves a consistent failure to perform obligations
the lawyer has assumed or a “conscious disregard for the responsibilities
a lawyer owes to a client,” and may arise when an attorney repeatedly
fails to meet deadlines. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lickiss, 786 N.W.2d 860, 867 (Iowa 2010) (citation and internal quotation
marks omitted); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). Further, ordinary
negligence does not constitute neglect. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 817 (Iowa 2007); Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Moorman, 683 N.W.2d 549,
551–52 (Iowa 2004).
We conclude the Board failed to establish by a convincing
preponderance of the evidence that Taylor violated rule 32:1.3 in both
the Norin and Coleman matters. This is not a case in which the
attorney’s repeated failure to comply with appellate deadlines resulted in
administrative dismissal. See Dolezal, 796 N.W.2d at 915; Iowa Supreme
Ct. Bd. of Prof’l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa
9
2002). Nor is this a case in which the attorney used the clerk’s office as
a private tickler system. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Curtis, 749 N.W.2d 694, 699 (Iowa 2008). While Taylor’s actions in each
matter resulted in the dismissal of each appeal, the record indicates
Taylor’s actions were the result of negligence rather than neglect. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Wintroub, 745 N.W.2d 469, 475
(Iowa 2008) (holding attorney’s failure to timely designate expert,
resulting in dismissal of action, did not constitute neglect).
B. Communication. Rule 32:1.4(a)(3) states a lawyer shall “keep
the client reasonably informed about the status of the matter.” Iowa R.
Prof’l Conduct 32:1.4(a)(3). The comments to rule 32:1.4 state that
paragraph (a)(3) requires a lawyer to keep the client reasonably informed
about “significant developments affecting . . . the substance of the
representation.” Id. cmt. 3. The Board alleges Taylor violated this rule
by failing to inform Norin of the dismissal. We agree. The Norin appeal
was dismissed on January 29, 2009. Taylor, however, failed to notify
Norin of the dismissal for nearly two months. We are therefore satisfied
the Board established Taylor failed to keep her client reasonably
informed about the status of the Norin matter.
The Board has also proven Taylor violated rule 32:1.4(a)(4). Rule
32:1.4(a)(4) provides that a lawyer shall “promptly comply with
reasonable requests for information.” Id. r. 32:1.4(a)(4). Following
dismissal of the Norin appeal, Norin wrote Taylor several e-mails
inquiring generally into the status of the matter. Norin also requested a
copy of the appellate brief on multiple occasions. Taylor responded to
these inquiries by sending the March 23 letter informing her clients of
the dismissal. Yet three additional letters were sent to Taylor following
March 23. The letters again requested information regarding the status
10
of the matter, the date on which Taylor filed the appeal, and a copy of the
appellate brief. Taylor did not respond to any of these requests.
Therefore, the Board has proven by a convincing preponderance of the
evidence Taylor failed to promptly comply with reasonable requests for
information.
C. Misrepresentation. Iowa Rule of Professional Conduct
32:8.4(c) states it is professional misconduct for a lawyer to “engage in
conduct involving dishonesty, fraud, deceit, or misrepresentation.” Id. r.
32:8.4(c). Misrepresentation generally requires proof of intent to deceive.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290, 294
(Iowa 2011); see also Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v.
Smith, 569 N.W.2d 499, 501 (Iowa 1997) (interpreting DR 1–102(A)(4)
and stating “[t]he key question is whether the effect of the lawyer’s
conduct is to mislead rather than to inform.” (citation and internal
quotation marks omitted)). The Board must prove the attorney acted
with some level of scienter greater than negligence. Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605 (Iowa 2011).
We conclude Taylor violated rule 32:8.4(c) in the Norin matter but
not the Coleman matter. Norin sent Taylor an e-mail on February 10
and March 19 requesting information relating to the appeal and
expressing dissatisfaction with Taylor’s efforts to keep her informed
about the status of the matter. Taylor’s first response on March 19 did
not inform Norin of the dismissal. Instead, Taylor explained she would
send a copy of the appellate brief as requested even though she knew the
appeal had been dismissed. Taylor testified that she had not been
“forthright about the dismissal,” and that there was a period of time in
which she “kind of led [Norin] to believe that [the appeal] was still
pending.”
11
Taylor then sent a letter dated March 23, 2009, clearly explaining
the reason for the dismissal. We credit Taylor’s testimony that the letter
was sent. Nonetheless, the communication of March 19 amounts to a
misrepresentation, and Taylor does not argue to the contrary.
Under these circumstances, we are satisfied Taylor’s
communication and conduct following the dismissal of the Norin appeal
constitutes conduct involving misrepresentation in violation of rule
32:8.4(c). See Thomas, 794 N.W.2d at 294 (concluding attorney deceived
client in a letter stating he would “get to the bottom of the matter” when
the attorney knew the case had been dismissed).
In the Coleman matter, however, on this record we are unable to
determine whether Taylor acted with a level of scienter greater than
negligence. The Board alleges Taylor’s letter to Coleman stating the
appeal had been dismissed due to her failure to timely file a proof brief
amounts to a misrepresentation because the true reason for the
dismissal was her failure to include a notice of the expedited deadlines in
the court filings. Taylor reasonably testified that she believed the appeal
had been dismissed due to her dilatory conduct and not her failure to
include the notice in the appeal documents. Further, Taylor took
responsibility for the dismissal in the letter to Coleman, stating the court
granted the dismissal due to her “failure” to file the necessary brief. The
letter also indicates Taylor attached the order granting dismissal. On
these facts, the Board has not established by a convincing
preponderance of the evidence Taylor had a level of scienter greater than
negligence in her correspondence with Coleman. We therefore hold the
Board failed to prove Taylor violated rule 32:8.4(c) in the Coleman
matter.
12
D. Conduct Prejudicial to the Administration of Justice. Rule
32:8.4(d) prohibits a lawyer from engaging in “conduct that is prejudicial
to the administration of justice.” Iowa R. Prof’l Conduct 32:8.4(d). Rule
32:8.4(d) is nearly identical to its predecessor, DR 1–102(A)(5). See Iowa
Code of Prof’l Responsibility DR 1–102(A)(5); Van Ginkel, 809 N.W.2d at
102. Conduct is prejudicial to the administration of justice when it
impedes “the efficient and proper operation of the courts or of ancillary
systems upon which the courts rely by violating well-understood norms
and conventions of the practice of law.” Van Ginkel, 809 N.W.2d at 103
(citation and internal quotation marks omitted). Examples of conduct
prejudicial to the administration of justice include “paying an adverse
expert witness for information regarding an opponent’s case preparation,
demanding a release in a civil action as a condition of dismissing
criminal charges, and knowingly making false or reckless charges
against a judicial officer.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Templeton, 784 N.W.2d 761, 768 (Iowa 2010). The Board alleges Taylor
violated this rule in both the Norin and Coleman matters by filing an
appeal that was ultimately dismissed.
This court has held that a neglectful failure to prosecute an appeal,
which results in an administrative dismissal, constitutes conduct
prejudicial to the administration of justice. See, e.g., Dolezal, 796
N.W.2d at 914; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Knopf, 793
N.W.2d 525, 530 (Iowa 2011); Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Wengert, 790 N.W.2d 94, 101 (Iowa 2010); Daggett, 653 N.W.2d at 380.
We have also held an attorney can be in violation of rule 32:8.4(d) when
an appeal is administratively dismissed even though the attorney did not
commit neglect in the handling of the appeal. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Wright, 758 N.W.2d 227, 230–31 (Iowa 2008). Yet, in
13
each of these cases, the administrative dismissal came after the
attorneys abandoned prosecution of the appeal and failed to dismiss the
appeal before administrative dismissal. Also, in those cases the clerk
filed an order accomplishing the dismissal or filed a default notice to
dismiss. The case before us, however, is distinguishable.
In this case, Taylor did not allow the appeals to be administratively
dismissed following the clerk’s default notice. See Knopf, 793 N.W.2d at
530 (stating ignoring deadlines, which results in default notices from
clerk, constitutes conduct prejudicial to the administration of justice).
The record does not indicate whether the clerk filed any default notice
related to either appeal. See Wengert, 790 N.W.2d at 101 (holding
attorney’s failure to timely file proof brief, followed by default notice from
clerk, constituted neglect and conduct prejudicial to the administration
of justice when attorney ignored default notice); Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Tompkins, 733 N.W.2d 661, 669 (Iowa 2007) (holding
disregard of notice of default constitutes neglect and conduct prejudicial
to the administration of justice). Instead, the record shows the
dismissals resulted from motions to dismiss filed by the opponents of
Norin and Coleman in light of Taylor’s negligent failure to appreciate the
applicability of the expedited deadlines. Under these circumstances, the
Board has failed to establish by a convincing preponderance of the
evidence Taylor’s conduct was prejudicial to the administration of justice
under rule 32:8.4(d).
IV. Sanction.
The appropriate sanction is determined by the particular
circumstances of each case. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Ackerman, 786 N.W.2d 491, 497 (Iowa 2010). We do, however, seek a
degree of consistency in our disciplinary cases with respect to sanctions.
14
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Clauss, 711 N.W.2d 1, 4 (Iowa
2006). While we give respectful consideration to recommendations of the
commission, “the matter of sanction is solely within the authority of this
court.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morrison, 727 N.W.2d
115, 119 (Iowa 2007) (citation and internal quotation marks omitted). In
determining the appropriate sanction, the court weighs the aggravating
and mitigating circumstances and considers “ ‘the nature of the
violations, the need for deterrence, protection of the public, maintenance
of the reputation of the bar as a whole, and the [attorney’s] fitness to
continue in the practice of law.’ ” Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Liles, 808 N.W.2d 203, 206 (Iowa 2012) (quoting Comm. on Prof’l Ethics
& Conduct v. Blomker, 379 N.W.2d 19, 21 (Iowa 1985)).
We first consider the mitigating factors. We note Taylor has taken
responsibility for her actions. We have held that such forthrightness is a
mitigating factor to be considered in calibrating the appropriate sanction.
See Thomas, 794 N.W.2d at 295 (noting attorney’s admission of
responsibility is a mitigating factor).
Taylor has also limited her appellate practice following the Norin
and Coleman matters. For what remains of her appellate practice, Taylor
has implemented new policies and procedures in her office to ensure
deadlines are met. See id. (noting implementation of new office
procedures to ensure missed deadlines do not recur is a mitigating
factor).
We also note that Taylor maintains a law practice that allows
persons with modest means to obtain representation in family law
matters. She charges a modest hourly rate which provides her clients
with access to the courts for an affordable fee. Providing legal
representation to an underserved part of the community is a significant
15
mitigating factor. See Comm. on Prof’l Ethics & Conduct v. Borchart, 392
N.W.2d 491, 492 (Iowa 1986) (agreeing with commission’s observation
that attorney’s service on behalf of the disadvantaged was a mitigating
factor).
Finally, Taylor cites stress related to personal issues involving the
dissolution of her marriage and subsequent child custody dispute.
Although such personal issues do not excuse ethical violations, they may
be a mitigating factor in determining sanctions. See Van Ginkel, 809
N.W.2d at 110.
Turning to the aggravating factors, we note Taylor received a public
reprimand in 2005 for neglect of a client matter and failure to provide
upon request an accounting of a client’s retainer. The details of this
matter are not provided in the record of this proceeding. Taylor also
received a temporary suspension in 2010, but the temporary suspension
was lifted a day later and appears to have been the result of a mail or
administrative error, was cured within hours of the suspension, and is of
little consequence for purposes of this proceeding.
The most troublesome feature in this case is the misrepresentation
to Norin regarding the dismissal. As we stated in Hohenadel, “[t]he court
system and the public we serve are damaged when our officers play fast
and loose with the truth.” Iowa Supreme Ct. Bd. of Prof’l Ethics &
Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001) (citation and
internal quotation marks omitted). Yet the conduct in this case is less
egregious than that found in other cases imposing a greater sanction.
See Daggett, 653 N.W.2d at 381–82 (imposing sixty-day suspension for
conduct involving neglect, misrepresentation, and failure to respond to
the Board’s inquiries when client was harmed); Hohenadel, 634 N.W.2d
at 657 (imposing four-month suspension for attorney with history of
16
unethical conduct who engaged in conduct involving misrepresentation
and neglect resulting in harm to the attorney’s clients); Comm. on Prof’l
Ethics & Conduct v. Horn, 379 N.W.2d 6, 8–10 (Iowa 1985) (holding
failure to cooperate with committee, neglect in one matter, and
misrepresentations to decedent’s daughter warranted three-month
suspension). Taylor’s conduct is closer, though not identical, to
misrepresentation cases in which we imposed a public reprimand. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cannon, 789 N.W.2d 756, 760
(Iowa 2010) (holding misrepresentation involving plagiarism warranted
public reprimand); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Newman,
748 N.W.2d 786, 788–89 (Iowa 2008) (holding misrepresentation in form
of forging judge’s signature warranted public reprimand in absence of
prior disciplinary history).
We agree with the commission’s conclusion that, under all the
facts and circumstances of this case, a public reprimand is the
appropriate sanction. We further agree with the commission’s
observation that future violations may well produce a different result.
V. Conclusion.
For the reasons expressed above, Karen Taylor is publically
reprimanded for the ethical violations cited in this opinion.
ATTORNEY REPRIMANDED.
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Argued March 26, 1935.
An examination of the record in this case fails to disclose any reason for appointment of a receiver. The bill was properly dismissed.
Judgment affirmed at costs of appellant. *Page 271
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52855-0-II
Respondent,
v.
NICHOLAS PETER ROSELLO, UNPUBLISHED OPINION
Appellant
MELNICK, J. — A jury convicted Nicholas Rosello of one count of possession of
methamphetamine with intent to deliver. Rosello argues that he received ineffective assistance of
counsel and that the prosecutor committed misconduct. He also argues that the combined effect
of errors at trial violated his right to a fair trial. We affirm.
FACTS
The police executed a search warrant at Rosello’s home. Rosello and at least four other
people were present. The police seized approximately 7.6 grams of methamphetamine from
Rosello’s bedroom, as well as pipes, a digital scale, and plastic packaging items. The police also
found and photographed Rosello’s wallet, which contained an unspecified amount of cash and his
driver’s license.
At trial, Detective Jordan Sanders testified that, at the scene of the warrant execution,
Rosello said he did not sell drugs, but “he had given methamphetamine to people on occasion.”
Report of Proceedings (RP) at 51. After being asked if the cash in his wallet came from selling
drugs, Rosello paused, looked at the ground, and then denied selling drugs.
52855-0-II
Sanders testified as an expert witness and told the jury that generally, 7 grams of
methamphetamine was a quantity the police would “probably” see if someone was “starting to
dabble in selling.” RP at 44. In addition, he would expect to see money, digital scales, packaging
material, and pay-and-owe sheets at a dealer’s home. Police found a scale and some “plastic
packaging items” in Rosello’s bedroom but no pay-and-owe sheets. RP at 87. Sanders testified
that a typical user of methamphetamine would buy around 0.2 grams for a single use at a time
because most addicts could not afford to buy more than that at one time. However, it “would be
fair” to say that a user with more money could get a better “deal” by buying in a larger amount for
personal use. RP at 58.
On cross-examination, the following exchange occurred.
[Defense Attorney]. . . . So you had a confidential informant that you believed
based on your conversations with him that there would be drugs at Mr. Rosello's
residence?
[Sanders]. Correct.
[Defense Attorney]. And were you going in with the belief that Mr. Rosello was
selling drugs or just possessing and using them?
[Sanders]. Selling. The informant had mentioned that they observed a drug sale
inside the house.
RP at 51-52.1
Sanders testified that multiple people had been in the room with the drugs prior to the
execution of the warrant. Rosello’s attorney also asked Sanders if he had checked for fingerprints
on any of the items found in Rosello’s bedroom. Sanders said he had not because the police
typically only tested for fingerprints in a case where no suspect existed. Rosello’s attorney later
1
The only other trial testimony about the confidential informant occurred when the detective stated
on direct examination that “it was my confidential informant that got us the information to serve
this warrant.” RP at 46.
2
52855-0-II
asked Sanders if “any of those people that [he] interviewed [said] that [Rosello] sold them drugs.”
RP at 64. Sanders responded, “Not that day.” RP at 64.
On redirect examination, the following exchange occurred:
[Prosecuting Attorney]. You just stated that none of the other folks at the residence
had told you that the defendant sold them drugs that day?
[Sanders]. Correct.
[Prosecuting Attorney]. Did they say that he sold them drugs on any other day?
[Defense]: Objection; hearsay.
THE COURT: Overruled.
[Prosecuting Attorney]. You may answer.
[Sanders]. Some of the folks that said that they knew him to give away drugs or
sell drugs in the past.
[Prosecuting Attorney]. Were other folks that were in the house that day arrested?
[Sanders]. Yes.
[Prosecuting Attorney]. For drugs?
[Sanders]. Correct.
RP at 64-65.
The court instructed the jury that delivery means “transfer of a controlled substance from
one person to another.” RP at 149; Clerk’s Papers at 17 (Instr. 11).
Rosello argued in closing that the prosecutor would have charged him with intent to deliver
regardless of the evidence because the police went into the search assuming he was a drug dealer.
He argued that officers ignored evidence that the drugs might not all belong to him because they
did not send the drug packaging in for DNA or fingerprint analysis.
The State argued that the evidence indicated an intent to distribute. It referenced the large
quantity of methamphetamine, the multiple baggies of methamphetamine, smoking devices,
scales, and “defendant’s wallet [with] his identification, and over $500 in cash.” RP at 156.
Rosello did not object even though no evidence supported the statement about the amount of cash.
The jury found Rosello guilty of one count of possession of methamphetamine with intent
to deliver. Rosello appeals.
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52855-0-II
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Rosello argues that he received ineffective assistance of counsel because his attorney
elicited testimony that he had sold or given away drugs in the past, which allowed the prosecutor
to use that information and rely on it during closing argument. Rosello contends that the
information would have been otherwise inadmissible under ER 404(b) and the confrontation
clause. Rosello further argues that his counsel had no valid tactical reason to elicit that evidence,
and he was prejudiced because overwhelming evidence did not exist to prove his intent to deliver.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of counsel.
State v. Estes, 188 Wash. 2d 450, 457, 395 P.3d 1045 (2017). We review ineffective assistance of
counsel claims de novo. Estes, 188 Wash. 2d at 457.
To prevail on a claim of ineffective assistance of counsel, the defendant must show both
(1) that defense counsel's representation was deficient and (2) that the deficient representation
prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32-33, 246 P.3d 1260 (2011).
Representation is deficient if, after considering all the circumstances, “it falls ‘below an
objective standard of reasonableness.’” Estes, 188 Wash. 2d at 458 (quoting State v. McFarland, 127
Wash. 2d 322, 334-35, 899 P.2d 1251 (1995)). Generally, a court will not find ineffective assistance
of counsel if “the actions of counsel complained of go to the theory of the case or to trial tactics.”
State v. Garrett, 124 Wash. 2d 504, 520, 881 P.2d 185 (1994). Therefore, “[w]hen counsel’s conduct
can be characterized as legitimate trial strategy or tactics, performance is not deficient.” State v.
4
52855-0-II
Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009). However, not all strategies or tactics are immune
from attack, because “‘[t]he relevant question is not whether counsel’s choices were strategic, but
whether they were reasonable.’” Grier, 171 Wash. 2d at 34 (quoting Roe v. Flores-Ortega, 528 U.S.
470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
Prejudice exists if there is a reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different. Estes, 188 Wash. 2d at 458. It is not enough that
ineffective assistance conceivably impacted the case’s outcome; the defendant must affirmatively
show prejudice. Estes, 188 Wash. 2d at 458.
“‘[T]he introduction of inadmissible evidence is often said to “open the door” both to cross-
examination that would normally be improper and to the introduction of normally inadmissible
evidence to explain or contradict the initial evidence.’” State v. Avendano-Lopez, 79 Wash. App.
706, 714, 904 P.2d 324 (1995) (quoting 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE
LAW AND PRACTICE, at 41 (3rd ed. 1989)).
Rosello’s theory of the case, as put forth in closing argument, was that the police had
decided prior to executing the warrant, that Rosello sold or possessed drugs with an intent to
deliver. He argued that the police had already made up their minds about his guilt, and therefore
did not investigate whether the other people present could have owned the drugs. As a result, the
police did not fingerprint the bags containing methamphetamine or any of the paraphernalia found
in the bedroom.
In support of this defense theory, Rosello’s attorney elicited testimony from Sanders that
the confidential informant “mentioned that they observed a drug sale inside the house.” RP at 52.
The testimony did not specify who had made the drug sale.
5
52855-0-II
Rosello’s attorney also asked Sanders a question that opened the door for the State to elicit
testimony that, “[s]ome of the folks . . . said that they knew [Rosello] to give away drugs or sell
drugs in the past.” RP at 65. The questions by Rosello’s attorney went to the defense theory that
other people in the apartment could have owned some or all of the drugs found in the bedroom.
However, counsel should reasonably have expected the questions would open the door to
inadmissible testimony. Therefore, while the questions went to the defense theory of the case, the
attorney’s actions fell below an objective standard of reasonableness. We conclude that Rosello’s
counsel acted deficiently.
However, Rosello cannot show that absent his attorney’s deficient performance, the result
of the proceeding would have been different. On the day of the search warrant execution, Rosello
admitted to the police that “he had given methamphetamine to people on occasion.” RP at 51.
Other independent evidence supported the verdict. The police found a large quantity of
methamphetamine, consistent with someone selling it. They found a scale, a quantity of cash, and
some packaging material.
Based on the evidence presented, there is not a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. Because Rosello
has not demonstrated prejudice, his ineffective assistance of counsel claim fails.
II. PROSECUTORIAL MISCONDUCT
Rosello argues prosecutorial misconduct occurred because the prosecutor testified that
Rosello had $500 cash in his wallet. He contends that because no evidence supported this
statement, a substantial likelihood existed that the misconduct affected the outcome of the trial.
We disagree.
6
52855-0-II
Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial.
In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012). An appellant
claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was both
improper and prejudicial. State v. Emery, 174 Wash. 2d 741, 760, 278 P.3d 653 (2012).
When the defendant fails to object to the improper statement at trial, the appellant must
show that the comments were “so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice.” Emery, 174 Wash. 2d at 760-61. The appellant must show that (1) no
curative instruction would have eliminated the prejudicial effect, and (2) the misconduct resulted
in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wash. 2d at 761.
The focus of this inquiry is more on whether the resulting prejudice could have been cured, rather
than the flagrant or illintentioned nature of the remarks. Emery, 174 Wash. 2d at 762.
“Although prosecuting attorneys have some latitude to argue facts and inferences from the
evidence, they are not permitted to make prejudicial statements unsupported by the record.” State
v. Jones, 144 Wash. App. 284, 293, 183 P.3d 307 (2008).
In the present case, the prosecutor argued that the evidence supported a finding that Rosello
had intent to distribute. In outlining the evidence, he stated that police found over $500 cash in
Rosello’s wallet. However, the no evidence supported the actual amount of cash in the wallet.
The jury could not determine the amount of cash because the photograph showed that the wallet
contained a single bill of unknown denomination. The statement was prejudicial because the large
value of cash could lead the jury to infer that the money was from drug sales. The prosecutor made
a statement that was unsupported by the record; therefore, it was improper.
7
52855-0-II
However, Rosello did not object to the statement at trial. He has failed to show that the
comment was flagrant or ill intentioned, as opposed to being a misstatement or an inadvertent
statement. In addition, a curative instruction striking the statement would likely have cured any
potential prejudice. Therefore, Rosello’s argument on prosecutorial misconduct fails.
III. CUMULATIVE ERROR
Rosello argues that the combined effect of errors at trial violated his right to a fair trial
because the jury was encouraged to convict him on evidence that was not admitted or should not
have been admitted. We disagree
The cumulative error doctrine applies when a trial is affected by several errors that
“standing alone may not be sufficient to justify reversal but when combined may deny a defendant
a fair trial.” State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). To determine whether
cumulative error requires reversal of a defendant's conviction, we must consider whether the
totality of circumstances substantially prejudiced the defendant. In re Pers. Restraint of Cross,
180 Wash. 2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory, 192
Wash. 2d 1, 427 P.3d 621 (2018).
Because Rosello has failed to establish that he received ineffective assistance of counsel,
and prosecutorial misconduct, we reject Rosello’s cumulative error argument.
8
52855-0-II
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Worswick, J.
Lee, C.J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51688-8-II
Respondent,
v.
MICHAEL LEE NOVCASKI, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Michael L. Novcaski appeals six of the community custody conditions
imposed following his conviction for first degree child molestation. 1 Specifically, Novcaski
argues (1) the condition allowing his community corrections officer (CCO) to direct
plethysmograph examinations violates his constitutional right to be free from bodily intrusions;
(2) the condition prohibiting him from possessing or pursuing any sexually explicit material is not
crime-related or narrowly tailored, and is unconstitutionally vague and overbroad; (3) the condition
prohibiting Novcaski’s access to the internet, e-mail, or any social media sites is not crime-related
or narrowly tailored; (4) the condition prohibiting him from entering sex-related businesses is not
crime-related; (5) the condition prohibiting Novcaski’s possession of drug paraphernalia or
prescriptions except those issued by a “licensed physician” is not crime-related or statutorily
1
We originally stayed this case pending a decision in State v. Wallmuller, 194 Wash. 2d 234, 244-
45, 449 P.3d 619 (2019). Since that opinion has now mandated, we grant Novcaski’s motion to
lift the stay.
No. 51688-8-II
authorized; and (6) the condition prohibiting him from loitering or frequenting places where
children congregate is unconstitutionally vague. The State concedes that the community custody
condition relating to plethysmograph examinations should be for treatment purposes only.
We accept the State’s concession and hold that the sentencing court exceeded its authority
by not limiting the community custody condition relating to plethysmograph examinations to
treatment purposes only. We also hold that the community custody conditions relating to accessing
the internet, e-mail, or any social media sites and prohibiting possession of drug paraphernalia or
drugs not prescribed by a “licensed physician” are not crime-related. Further, we hold that the
community custody condition relating to where children congregate is not unconstitutionally
vague.
Therefore, we reverse the imposition of the community custody condition relating to
plethysmograph examinations and remand for the sentencing court to either remove the condition
from Novcaski’s judgment and sentence or correct it to read that the plethysmograph testing is “for
treatment purposes only.” We also reverse the community custody conditions relating to accessing
the internet, e-mail, or any social media sites; and prohibiting possession of drug paraphernalia or
drugs not prescribed by a “licensed physician” and remand for the trial court to strike those
conditions from Novcaski’s judgment and sentence. Finally, we affirm the remaining community
custody conditions.
FACTS
On December 13, 2017, the State charged Michael Novcaski with one count of first degree
child molestation. The incident involved his niece, S.B. S.B. reported that in 2013, when she was
2
No. 51688-8-II
“6-7 years old,” Novcaski pulled down his pants “and had her touch his penis with her hands and
feet.” Clerk’s Papers (CP) at 36.
Novcaski pled guilty to the offense and stated in the plea agreement, “Between 6/1/13 and
9/30/13, being at least 36 months older than S.B. I had sexual contact with S.B., who was less than
12 years old and not married to me.” CP at 31.
The trial court accepted Novcaski’s guilty plea and sentenced him to a minimum
confinement term of 75 months and a maximum term of life. The trial court also imposed lifetime
community custody with the following conditions:
(18) Submit to polygraph and plethysmograph examinations as directed by the
CCO and show no deception.
(19) Do not possess or pursue any sexually explicit material.
(20) Do not access the internet, email, or any and all social media sites without
permission from CCO and treatment provider.
(21) Do not enter x-rated movies, peep shows, or adult book stores.
(22) Do not purchase, possess, or use any illegal controlled substance, or drug
paraphernalia without the written prescription of a licensed physician.
....
(28) Do not loiter or frequent places where children congregate; including, but no
[sic] limited to shopping malls, schools, playgrounds and video arcades.
CP at 62.
Novcaski appeals these conditions.
ANALYSIS
Novcaski alleges the sentencing court erred in imposing community custody condition 18
relating to plethysmograph examinations because it violates his constitutional right to be free from
bodily intrusions; condition 19 relating to possessing or pursuing sexually explicit materials
because it is not crime-related or narrowly tailored, and is unconstitutionally vague and overbroad;
3
No. 51688-8-II
condition 20 relating to accessing the internet, email, or any and all social media because it is not
crime-related or narrowly tailored; condition 21 relating to x-rated movies, peep shows, or adult
book stores because it is not crime-related; condition 22 relating to purchasing, possessing, or
using any drug paraphernalia or drug not prescribed by a “licensed physician” because it is not
crime-related or statutorily authorized; and condition 28 relating to loitering or frequenting places
where children congregate because it is unconstitutionally vague. The State concedes condition
18 should be reworded to reflect that plethysmograph examinations are for treatment purposes
only.
We agree with Novcaski that the trial court erred in imposing community custody condition
18. We also agree with Novcaski that conditions 20 and 22 are not crime-related, but we disagree
with Novcaski’s other allegations.2
A. STANDARD OF REVIEW
A sentencing court can only impose community custody conditions authorized by statute.
State v. Kolesnik, 146 Wash. App. 790, 806, 192 P.3d 937 (2008), review denied, 165 Wash. 2d 1050
(2009). We review de novo whether the sentencing court had the statutory authority to impose a
sentencing condition. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007). If the
sentencing court had statutory authority, we review the court’s decision to impose the condition
for an abuse of discretion. Id. An abuse of discretion occurs when a trial court’s imposition of a
2
Novcaski also contends that the State did not adequately address his assignments of error and
asks this court to treat the State’s response as a concession on all issues. Although the State
somewhat misconstrues Novcaski’s arguments, its brief is a sufficient response to Novcaski’s brief
under RAP 10.3(b), and we do not construe the State’s response as a concession on any issue.
4
No. 51688-8-II
condition is manifestly unreasonable. State v. Nguyen, 191 Wash. 2d 671, 678, 425 P.3d 847 (2018).
The imposition of an unconstitutional condition is manifestly unreasonable. Id.
B. LEGAL PRINCIPLES
Due process precludes the enforcement of vague laws, including sentencing conditions.
State v. Bahl, 164 Wash. 2d 739, 752-53, 193 P.3d 678 (2008); State v. Irwin, 191 Wash. App. 644,
652, 364 P.3d 830 (2015). A community custody condition is unconstitutionally vague if the
condition does not define the prohibited conduct with sufficient definiteness that ordinary people
can understand what conduct is proscribed or if the condition does not provide ascertainable
standards of guilt to protect against arbitrary enforcement. Bahl, 164 Wash. 2d at 752-53. If the
condition fails either prong of the vagueness analysis, the condition is void for vagueness. Id. at
753. A condition is not vague, however, merely because a person cannot predict with complete
certainty the exact point at which his or her actions would be classified as prohibited conduct.
State v. Valencia, 169 Wash. 2d 782, 793, 239 P.3d 1059 (2010). “[A]ll that is required is that the
proscribed conduct is sufficiently definite in the eyes of an ordinary person.” Nguyen, 191 Wash. 2d
at 682.
RCW 9.94A.703(3) authorizes a sentencing court to impose discretionary conditions. The
sentencing court may order an offender to:
(a) Remain within, or outside of, a specified geographical boundary;
(b) Refrain from direct or indirect contact with the victim of the crime or a
specified class of individuals;
(c) Participate in crime-related treatment or counseling services;
(d) Participate in rehabilitative programs or otherwise perform affirmative
conduct reasonably related to the circumstances of the offense, the offender’s risk
of reoffending, or the safety of the community;
....
5
No. 51688-8-II
(f) Comply with any crime-related prohibitions.
RCW 9.94A.703(3).
A crime-related prohibition is one that is related to the circumstances of the crime for which
the offender is being sentenced. RCW 9.94A.030(10). Crime-related prohibitions must be directly
or reasonably related to the circumstances of the offense. Nguyen, 191 Wash. 2d at 683-84. “The
prohibited conduct need not be identical to the crime of conviction, but there must be ‘some basis
for the connection.’” Id. at 684 (quoting Irwin, 191 Wash. App. at 657). If we determine a sentencing
court imposed an unauthorized condition on community custody, we remedy the error by
remanding to the sentencing court with instruction to strike the unauthorized condition. State v.
Padilla, 190 Wash. 2d 672, 683, 416 P.3d 712 (2018).
C. CONDITION 18 - PLETHYSMOGRAPH TESTING
Novcaski first argues that condition 18 which allows his CCO to direct plethysmograph
examinations violates his constitutional right to be free from bodily intrusions. We agree.
“Plethysmograph testing is extremely intrusive.” State v. Land, 172 Wash. App. 593, 605,
295 P.3d 782, review denied, 177 Wash. 2d 1016 (2013). It cannot be used “as a routine monitoring
tool subject only to the discretion of a community corrections officer.” Id. But the testing can be
ordered if its purpose is “incident to crime-related treatment by a qualified provider.” Id. (citing
State v. Castro, 141 Wash. App. 485, 494, 170 P.3d 78 (2007)).
The State concedes that the language of condition 18 should have specified that
plethysmograph testing is for treatment purposes only. We accept the State’s concession, and
6
No. 51688-8-II
remand for the sentencing court to either remove the condition or correct it to read that the
plethysmograph testing is “for treatment purposes only.”
D. CONDITION 19 - SEXUALLY EXPLICIT MATERIALS
Novcaski next argues that condition 19 prohibiting him from possessing or pursuing any
sexually explicit material is not crime-related or narrowly tailored and is unconstitutionally vague
and overbroad. We disagree.
In State v. Nguyen, the Supreme Court upheld similar conditions for two defendants who
were convicted of similar crimes. 191 Wash. 2d at 684. The court held, “It is both logical and
reasonable to conclude that a convicted person who cannot suppress sexual urges should be
prohibited from accessing ‘sexually explicit materials,’ the only purpose of which is to invoke
sexual stimulation.” Id. at 686. The Supreme Court held that the provision was crime-related and
“not unconstitutionally vague.” Id. at 687.
In his reply brief, Novcaski acknowledges our Supreme Court’s decision in Nguyen, but
continues to argue that condition 19 is not crime-related and is unconstitutionally vague. We,
however, follow the precedent of our Supreme Court and decline to address the issue further. State
v. Winborne, 4 Wash. App. 2d 147, 175, 420 P.3d 707 (2018).
Novcaski also argues that the court in Nguyen did not address whether the prohibition
against sexually explicit materials is overbroad. When considering whether a community custody
condition is overbroad, we focus on whether the condition is crime-related. See State v. McKee,
141 Wash. App. 22, 37, 167 P.3d 575 (2007) (“[A]n offender’s constitutional rights during
community placement are subject to SRA-authorized infringements, including crime-related
prohibitions.”), review denied, 163 Wash. 2d 1049 (2008).
7
No. 51688-8-II
As discussed above, the condition prohibiting possessing or pursuing sexually explicit
materials is related to first degree child molestation because the crime involves a defendant “who
cannot suppress sexual urges [and] should be prohibited from accessing ‘sexually explicit
materials,’ the only purpose of which is to invoke sexual stimulation.” Nguyen, 191 Wash. 2d at 686.
Therefore, Novcaski’s claim fails.
E. CONDITION 20 - INTERNET, EMAIL, OR SOCIAL MEDIA
Novcaski next contends that the condition prohibiting his access to the internet, e-mail, or
any social media sites is not crime-related or narrowly tailored. We agree.
Internet use is crime-related if there is evidence that internet use “contributed in any way
to the crime.” State v. O’Cain, 144 Wash. App. 772, 775, 184 P.3d 1262 (2008). Here, there was
no evidence that internet use, including emails or any social media sites, contributed in any way
to Novcaski’s offense. Therefore, this condition is not crime-related. 3 We remand for the
sentencing court to strike this condition.
F. CONDITION 21 - SEX-RELATED BUSINESSES
Novcaski next contends that the condition prohibiting him from entering sex-related
businesses is not crime-related. We disagree.
Novcaski pled guilty to first degree child molestation. First degree child molestation is a
sex offense. RCW 9.94A.030(48)(a)(i); RCW 9A.44.083. Commission of a sex offense
establishes an inability to control sexual urges. Nguyen, 191 Wash. 2d at 686. A sentencing court
3
Since we conclude that condition 20 was not crime-related, we need not reach the issue of
whether it was narrowly tailored. See State v. Young, 152 Wash. App. 186, 188 n.3, 216 P.3d 449
(2009) (courts need not reach additional issues when holding on other grounds is dispositive).
8
No. 51688-8-II
may impose a condition prohibiting the defendant from entering sex-related businesses when the
crime of conviction was child molestation. Id. at 687. The Nguyen court approved this condition,
clarifying that “this condition has more to do with [the defendant’s] inability to control her urges
and impulsivities than it does with the specific facts of [the] crimes.” Id. Accordingly, Novcaski’s
claim fails.
G. CONDITION 22 - DRUG PARAPHERNALIA OR DRUGS FROM A “LICENSED PHYSICIAN”
Novcaski contends that the condition prohibiting him from possessing drug paraphernalia
or drugs not prescribed by a licensed physician is not crime-related or statutorily authorized. We
agree.
As discussed above, a crime-related prohibition must be related to the circumstances of the
crime for which the offender is being sentenced. RCW 9.94A.030(10). Here, the State presented
no evidence or argument that drug use or possession of drug paraphernalia bore any relation to
Novcaski’s offense. Because “there is no evidence in the record linking the circumstances of the
crime to the condition,” we instruct the sentencing court on remand to strike the challenged
condition. Padilla, 190 Wash. 2d at 683; see also State v. Sage, 1 Wash. App. 2d 685, 706-07, 407
P.3d 359 (2017) (condition prohibiting possession of drug paraphernalia is insufficiently crime-
related to second degree rape of a child and thus should be stricken on remand), review denied,
191 Wash. 2d 1007 (2018), and cert. denied 139 S. Ct. 1267, 284 (2019).
We also note that the language prescribed by a “licensed physician” is also problematic.
CP at 62. As discussed above, a proper community custody condition must be authorized by the
legislature because it is solely the legislature’s province to fix legal punishments. State v. Kolesnik,
146 Wash. App. 790, 806, 192 P.3d 937 (2008), review denied, 165 Wash. 2d 1050 (2009). RCW
9
No. 51688-8-II
9.94A.703(2)(c) establishes a waivable condition that prohibits the consumption or possession of
controlled substances except pursuant to lawfully issued prescriptions. Such prescriptions can be
lawfully issued by registered nurses, advanced registered nurse practitioners, osteopathic physician
assistants, and physician assistants. RCW 69.41.030. There is no statutory authority to limit
medications to those prescribed by licensed physicians only, as the sentencing court imposed here.
Therefore, we remand for the sentencing court to strike this condition.
H. CONDITION 28 - WHERE CHILDREN CONGREGATE
Novcaski lastly takes issue with the condition prohibiting him from loitering or frequenting
places where children congregate, arguing it is unconstitutionally vague. We disagree.
Here, the sentencing court ordered Novcaski to “not loiter or frequent places where
children congregate; including, but no [sic] limited to shopping malls, schools, playgrounds and
video arcades.” CP at 62. In State v. Wallmuller, 194 Wash. 2d 234, 245, 449 P.3d 619 (2019), our
Supreme Court recently held that a similar condition, containing a nonexhaustive illustrative list
of prohibited areas, was constitutional because it illustrated the scope of the restriction in a way
that an ordinary person could understand. Like the condition at issue in Wallmuller, Novcaski’s
condition 28 contains a nonexclusive list that clarifies areas where children’s activities regularly
occur. By providing such a list, an ordinary person can understand the scope of the prohibited
conduct. Thus, we reject Novcaski’s argument that the condition is unconstitutionally vague.
CONCLUSION
We reverse the imposition of the community custody condition relating to plethysmograph
examinations and remand for the sentencing court to either remove the condition from Novcaski’s
judgment and sentence or correct it to read that the plethysmograph testing is “for treatment
10
No. 51688-8-II
purposes only.” We also reverse the community custody conditions relating to accessing the
internet, e-mail, or any social media sites; and prohibiting possession of drug paraphernalia or
drugs not prescribed by a licensed physician and remand to the trial court to strike those conditions
from Novcaski’s judgment and sentence. We affirm the remaining community custody conditions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Worswick, J.
Cruser, J.
11
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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/4523394/
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51817-1-II
Respondent,
v.
MARCUS KEITH MCCLAIN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — A jury convicted Marcus McClain of a felony domestic violence court order
violation. McClain argues that the State violated his substantive due process rights in the months
leading up to his trial when it failed to comply with the court’s order requiring that he be transferred
to the state hospital for a competency evaluation. He contends that this violation warrants reversal
of his conviction. He also argues that the State committed prosecutorial misconduct in its rebuttal
closing argument when it told the jury to disregard relevant evidence. In the event we conclude
that the argument was not prosecutorial misconduct, McClain contends that he received ineffective
assistance of counsel based on his attorney’s failure to object to the State’s argument. Finally,
McClain argues that the court erroneously calculated his offender score.
We affirm McClain’s conviction but remand for the trial court to correct McClain’s
criminal history and offender score in his judgment and sentence.
51817-1-II
FACTS
I. BACKGROUND AND CONVICTION
On July 22, 2016, the police responded to a call that McClain’s mother, Annette,1 was dead
in her apartment. Although the medical examiner later reported that Annette had died from natural
causes, the police initially treated her death as a potential homicide.
During the investigation, Annette’s apartment manager reviewed surveillance footage from
July 20. She saw McClain entering and leaving the apartment complex. At this time, a no-contact
order prohibited McClain from contacting Annette. The no-contact order was entered in 2015,
and McClain’s signature appeared on it.
The police interviewed McClain. After waiving his Miranda2 rights, McClain admitted to
visiting Annette in her apartment on July 20. They had an argument over his current dating
relationship, and a fight ensued in which Annette received injuries.
The State charged McClain with two counts of a felony domestic violence court order
violation. Count I alleged a felony based on McClain’s two previous convictions for violating no-
contact orders. Count II alleged a felony because the conduct that violated the order constituted
an assault. McClain pled not guilty, and the court set a trial date.
However, on May 5, 2017, the court found that McClain was not competent to stand trial.
Four days later, the court ordered that McClain receive competency restoration treatment at
Western State Hospital (WSH). The court’s order required McClain to be transported to WSH
within 7 days.
1
Because McClain and his mother share the same last name, we refer to her by her first name. We
intend no disrespect.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
51817-1-II
On June 13, when he still had not been transported to WSH, McClain filed a motion to
dismiss his criminal charges. The court denied McClain’s motion.
On July 18, McClain was transferred and admitted to WSH for competency restoration
treatment. On August 30, the Department of Social and Health Services opined that McClain had
regained competency. Subsequently, the court found McClain competent to stand trial.
At trial, Annette’s apartment manager testified that McClain sometimes came to the
apartment complex and that Annette would usually go to the main entrance to let him in. The
manager stated that the entrance McClain used on July 20 had cameras on both the inside and
outside of the building, whereas the other entrance only had a camera on the inside of the building.
Thus, she stated that the entrance McClain used would not be the best entrance if he had been
trying to avoid detection.
McClain questioned both the police officer who responded to Annette’s apartment and the
detective assigned to investigate Annette’s death. He asked both whether they were aware if
Annette requested or wanted the no-contact order. Both responded that they did not know whether
she wanted it or not.
McClain testified that he did not know an active no-contact order existed on July 20. He
and Annette had gone to court to have the order recalled, and the judge did so. Additionally,
McClain testified that Annette had told him that the order had been recalled and she showed him
paperwork confirming it had been. After the order had been recalled, he started visiting Annette
and helping her. McClain stated that he would not have gone to Annette’s apartment if he knew a
no-contact order existed. McClain denied both intentionally violating the no-contact order and
intentionally injuring Annette.
McClain did admit to previously violating four court orders that restricted contact.
3
51817-1-II
The court then instructed the jury. Relevant here, the to-convict instruction for count I
required the jury to find, among other elements, that a no-contact order existed on July 20, 2016,
that McClain “knew of the existence of [the no-contact] order,” and that he “knowingly violated a
provision of th[e] order.” Clerk’s Papers (CP) at 117. Another jury instruction provided: “It is not
a defense to a charge of violation of a court order that a person protected by the order invited or
consented to the contact.” CP at 122.
In the State’s closing argument, it recognized that it had to prove that McClain knew of the
existence of the no-contact order and argued that the evidence showed he did. The State also
discussed McClain’s testimony that the no-contact order had been recalled but noted that there was
“no evidence of that.” Report of Proceedings (RP) (Jan. 11, 2018) at 331.
In McClain’s closing argument, he discussed entering Annette’s apartment through the
entrance with surveillance cameras. McClain argued how he and his mother would not have taken
such conspicuous actions if he believed a no-contact order existed. McClain also argued that he
would not have admitted to the detective who interviewed him that he visited Annette’s apartment
if he knew about the no-contact order. He later suggested that it was unclear whether the no-
contact order had in fact been recalled.
McClain further argued that all the evidence showed was that a no-contact order existed in
2015, but “[t]here was no evidence that Annette . . . wanted this no contact order or she had not
taken steps to get this no-contact order recalled.” RP (Jan. 11, 2018) at 345-46.
McClain concluded closing argument by conceding that the State had proven, among other
elements, that a no-contact order existed. However, the State had “not proven beyond a reasonable
doubt that he knew about the existence of the order.” RP (Jan. 11, 2018) at 355.
4
51817-1-II
In its rebuttal closing, the State argued that whether Annette wanted the order or not was
“not relevant to the proceedings.” RP (Jan. 11, 2018) at 367. The State continued:
[W]hether or not [Annette] wanted that order is not an element the State has to
prove. In fact, the jury instructions we talked about indicate that whether or not she
even invites him over, wants the contact, that’s not a defense. You don’t get to
reference that. So you need to disregard counsel’s arguments to that effect, is that
it’s not a defense in this case whether or not she wanted this order or not.
....
[McClain] doesn’t want you to believe that the order was in effect, but
there’s no evidence that it wasn’t.
RP (Jan. 11, 2018) at 367, 369.
The jury convicted McClain only of count I. The jury also returned a special verdict that
McClain and Annette were members of the same family or household.
II. SENTENCING
At sentencing, the State asserted that McClain had an offender score of 10 based on his
prior felony and misdemeanor convictions. The State produced certified copies of McClain’s prior
convictions. Relevant here, the State argued that felony convictions from 2005 and 2012 counted
as two points each and two misdemeanor convictions from 2014 counted as one point each.
Regarding McClain’s 2012 felony conviction, the State presented the following evidence.
McClain pled guilty to a second amended information that included a charge of “Unlawful
Imprisonment DV” as count II. CP at 255.
McClain’s 2012 judgment and sentence stated that the court found him guilty of unlawful
imprisonment domestic violence as charged in the second amended information. However, the
judgment and sentence stated: “The State has pleaded and proved that the crime charged in
Count(s) I involve(s) domestic violence.” CP at 229.
Regarding McClain’s 2014 misdemeanor convictions, the State showed that it charged
McClain with two counts of violation of a court order. In addition, the crimes were against a
5
51817-1-II
family or household member contrary to RCW 10.99.020. McClain pled guilty to the charges.
McClain’s judgment and sentence noted that he was charged with two counts of a no-contact
violation “DV.” CP at 271. For these charges, the court found that “domestic violence was pled
and proved.” CP at 271.
The court found that McClain had an offender score of 10 and a standard range sentence
of 60 months. RCW 9.94A.515, .533(3)(c); RCW 9A.20.021. The State requested a standard
range sentence. McClain requested an exceptional sentence below the standard range of 24 months
of confinement.
The court imposed an exceptional sentence below the standard range of 48 months of
confinement with 12 months of community custody. McClain appeals.
ANALYSIS
I. SUBSTANTIVE DUE PROCESS
McClain argues that the 70-day delay in admitting him for competency restoration
treatment violated his substantive due process rights. McClain contends that the appropriate
remedy is for us to reverse his conviction and dismiss his case with prejudice. We disagree with
McClain’s proposed remedy.
“‘Incompetency’ means a person lacks the capacity to understand the nature of the
proceedings against him or her or to assist in his or her own defense as a result of mental disease
or defect.” RCW 10.77.010(15).3 Under RCW 10.77.050, “[n]o incompetent person shall be tried,
convicted, or sentenced for the commission of an offense so long as such incapacity continues.”
3
The statute was amended in 2016, which became effective in April 2018. LAWS OF 2016, ch. 29,
§ 408. However, where there has been no change in the relevant language, we cite to the current
version of the statute.
6
51817-1-II
When there is reason to doubt a defendant’s competency to stand trial, the trial court must
order an expert to evaluate the defendant’s mental condition. RCW 10.77.060(1)(a). Following
the evaluation, if the court finds the defendant incompetent, the court shall stay the criminal
proceedings and may commit the defendant to restoration treatment. RCW 10.77.084(1)(a)-(b).
If the defendant’s competency is restored following treatment, the court must lift the stay and
continue the proceedings. RCW 10.77.084(1)(c).
The Fourteenth Amendment of the United States Constitution “requires the State to admit
an incompetent defendant to a state hospital for competency restoration treatment within seven
days of the order calling for treatment.” State v. Hand, 192 Wash. 2d 289, 296, 429 P.3d 502 (2018).
The State violates an incompetent criminal defendant’s substantive and procedural due process
rights when it refuses to admit them to restorative treatment in a timely manner. Hand, 192 Wash. 2d
at 296.
Hand has nearly identical facts to what occurred here. In Hand, after finding the defendant
incompetent, the trial court ordered that WSH admit the defendant for restorative treatment within
15 days. 192 Wash. 2d at 292. After WSH failed to comply with the order, the defendant filed
various motions, including motions to dismiss alleging due process violations. Hand, 192 Wash. 2d
at 292, 298. The court denied the motions. Hand, 192 Wash. 2d at 292-93. WSH eventually admitted
the defendant for treatment 76 days after the court’s order. Hand, 192 Wash. 2d at 298. After being
found competent, he was convicted. Hand, 192 Wash. 2d at 293.
Although the court concluded that the delay violated the defendant’s substantive due
process rights, the court also concluded that dismissal with prejudice, the defendant’s proffered
remedy, was “simply not warranted under the[] facts.” Hand, 192 Wash. 2d at 302.
7
51817-1-II
The facts of McClain’s case are very similar to those in Hand. Here, the court found that
McClain was not competent to stand trial and ordered that McClain receive competency restoration
treatment at WSH within 7 days. After the court’s deadline passed, McClain filed a motion to
dismiss. The court denied McClain’s motion.
McClain was eventually transported to WSH 70 days after the trial court issued its order,
while the defendant in Hand was transported 76 days after the court’s order. Subsequently, the
court found McClain competent to stand trial, and he was later convicted. On appeal, McClain
argues that his convictions should be dismissed with prejudice.
We conclude that Hand controls because the facts here are nearly identical to those in Hand
and the relief McClain seeks is identical to the relief sought in Hand. Accordingly, we conclude
“that dismissal with prejudice is not warranted.” Hand, 192 Wash. 2d at 302.4
II. PROSECUTORIAL MISCONDUCT
McClain argues that the State committed prosecutorial misconduct in its rebuttal closing
argument because its argument relieved the State of its burden to prove McClain’s knowledge
beyond a reasonable doubt. McClain contends that the argument was flagrant and ill-intentioned
because it went to the only disputed element and could not have been cured by an instruction. We
disagree.
A. Legal Principles
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012). To prevail
on a claim of prosecutorial misconduct, a defendant must show that “in the context of the record
4
McClain makes an identical argument in his statement of additional grounds for review. We do
not independently consider this argument. State v. Thompson, 169 Wash. App. 436, 493, 290 P.3d
996 (2012).
8
51817-1-II
and all of the circumstances of the trial, the prosecutor’s conduct was both improper and
prejudicial.” Glasmann, 175 Wash. 2d at 704.
We review the prosecutor’s conduct and whether prejudice resulted therefrom “by
examining that conduct in the full trial context, including the evidence presented, ‘the context of
the total argument, the issues in the case, the evidence addressed in the argument, and the
instructions given to the jury.’” State v. Monday, 171 Wash. 2d 667, 675, 257 P.3d 551 (2011)
(internal quotation marks omitted) (quoting State v. McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221
(2006)).
During closing argument, a prosecutor “has wide latitude in drawing and expressing
reasonable inferences from the evidence.” State v. Hoffman, 116 Wash. 2d 51, 95, 804 P.2d 577
(1991). But a prosecutor may not argue facts not in evidence or make arguments appealing to a
jury’s passion that prejudices the defendant. State v. Belgarde, 110 Wash. 2d 504, 507-08, 755 P.2d
174 (1988); State v. Boehning, 127 Wash. App. 511, 519, 111 P.3d 899 (2005).
In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct
may be deemed to have waived the issue on appeal unless the prosecutor’s statements are so
flagrant and ill-intentioned that the resulting prejudice could not be corrected by a jury instruction.
State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012). The defendant must show that no
curative instruction would have eliminated the prejudicial effect and the misconduct resulted in
prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wash. 2d at 761. The
focus of this inquiry is more on whether the resulting prejudice could have been cured, rather than
the flagrant or ill-intentioned nature of the remarks. Emery, 174 Wash. 2d at 762.
Here, the court instructed the jury that, to convict McClain, it had to find beyond a
reasonable doubt that a no-contact order existed on July 20, 2016, that McClain knew of the
9
51817-1-II
existence of the no-contact order, and that he knowingly violated the order. Additionally, the court
instructed the jury that it was not a defense if Annette invited or consented to McClain contacting
her.
At trial, McClain testified that he and Annette went to court and the judge had recalled the
no-contact order. He also testified that Annette had shown him the paperwork recalling the order.
However, no corroborating evidence existed.
In the State’s closing, it told the jury that it had the burden of proving every element of the
crimes beyond a reasonable doubt. It then argued the supporting evidence.
In his closing, McClain argued how the evidence only showed that a no-contact order was
issued in 2015. He claimed that no evidence suggested whether Annette wanted the no-contact
order or whether she had taken steps to recall the order. While McClain’s argument focused on
the fact that he did not believe an order was in place, he also asked the jury: “If there’s a no-contact
order in place, would [he] be so open and blatant about the[] no-contact order violation?” RP (Jan.
11, 2018) at 342. He also suggested that it was unclear whether the no-contact order had in fact
been recalled.
The State’s rebuttal closing argued that, because no evidence suggested that the order was
not in place on July 20, whether Annette did or did not want the no-contact order was irrelevant as
to whether the order had in fact been recalled.
We conclude that the State’s argument was proper. While McClain conceded in closing
argument that the State had proved the existence of the no-contact order, much of his testimony
seemed to dispute that element. Additionally, a reasonable view of McClain’s closing argument
is that he used the evidence that Annette did not want the no-contact order to dispute both whether
the order was in fact in place on July 20 and whether he knew of the order’s existence at that time.
10
51817-1-II
Thus, because McClain’s testimony and closing argument appeared to dispute the existence
of a no-contact order on July 20, 2016, the State properly argued that Annette not wanting the no-
contact order was irrelevant.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
McClain argues that the he received ineffective assistance of counsel when his attorney
failed to object to the above-described argument by the State and that he suffered prejudice. We
disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wash. 2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both that defense counsel’s representation was deficient and that the
deficient representation prejudiced the defendant. Grier, 171 Wash. 2d at 32-33. If either prong is
not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wash. 2d 647, 673, 101
P.3d 1 (2004).
Representation is deficient if, after considering all the circumstances, the performance
“falls ‘below an objective standard of reasonableness.’” Grier, 171 Wash. 2d at 33 (quoting
Strickland, 466 U.S. at 688). “The burden is on a defendant alleging ineffective assistance of
counsel to show deficient representation based on the record established in the proceedings
below.” State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). We do not consider
matters outside the trial record. State v. Linville, 191 Wash. 2d 513, 525, 423 P.3d 842 (2018).
11
51817-1-II
Additionally, where the appellant claims ineffective assistance based on his trial counsel’s failure
to object, the appellant must also show that such an objection, if made, would have been successful
in order to establish deficient performance. State v. Gerdts, 136 Wash. App. 720, 727, 150 P.3d 627
(2007).
As discussed above, we conclude that the State did not make an improper argument.
Therefore, McClain’s counsel was not deficient for failing to object. Gerdts, 136 Wash. App. at 727.
IV. OFFENDER SCORE
McClain argues that the court erroneously calculated his offender score as 10, when it
should have been 6. McClain contends that two of his prior felonies should have only counted as
one point and two prior misdemeanors should have counted as zero points.
The State agrees that McClain’s 2005 felony conviction should only have counted as one
point. However, the State argues that the court properly counted his other prior offenses. We
agree with the State.
A. Legal Principles
Under Washington’s Sentencing Reform Act of 1981, the standard sentencing range for
any given offense is a function of the offense’s seriousness level and the defendant’s offender
score. RCW 9.94A.525. The offender score is calculated by counting the prior and current
convictions in accordance with RCW 9.94A.525. The State has the burden to prove prior criminal
convictions by a preponderance of the evidence. State v. Ramirez, 190 Wash. App. 731, 733, 359
P.3d 929 (2015). Current felony offenses are treated as if they were prior offenses when scoring
the other crimes being sentenced. RCW 9.94A.525(1), .589(1)(a). “We review offender score
calculations de novo.” State v. Hernandez, 185 Wash. App. 680, 684, 342 P.3d 820 (2015).
12
51817-1-II
B. Prior Felonies
Generally, if the current conviction is a nonviolent offense, prior felony convictions count
as one point. RCW 9.94A.525(7). However, where the current offense is a felony domestic
violence offense as defined in RCW 9.94.A.030, each adult prior felony conviction, where
domestic violence was pleaded and proven after August 1, 2011, counts as two points. RCW
9.94A.525(21)(a).
Under RCW 9.94A.030(20), “‘[d]omestic violence’ has the same meaning as defined in
RCW 10.99.020 and 26.50.010.” Under RCW 10.99.020(5), “domestic violence” includes but is
not limited to certain crimes, including unlawful imprisonment and violations of a no-contact
order, when committed by one family or household member against another.
The parties agree that the McClain’s 2005 conviction occurred before August 1, 2011;
therefore, it should have only been counted as one point. We agree.
Regarding McClain’s 2012 conviction, McClain pled guilty to count II, unlawful
imprisonment—domestic violence, and count III, assault in the third degree. In his statement on
plea of guilty, McClain acknowledged that the amended information charged him with “Unlawful
Imprisonment DV” as count II. CP at 255. The court found McClain “guilty as charged.” CP at
264.
McClain’s 2012 judgment and sentence stated: “The State has pleaded and proved that the
crime charged in Count(s) I involve(s) domestic violence.” CP at 229. McClain did not plead
guilty to count I, and nowhere else in the judgment and sentence does it mention count I.
We conclude that the scrivener’s error described above does not mean that the State failed
to plead and prove that McClain’s unlawful imprisonment charge involved domestic violence.
Therefore, the trial court properly counted McClain’s 2012 conviction as two points.
13
51817-1-II
C. Prior Misdemeanors
McClain argues that the court erroneously counted his two 2014 misdemeanor convictions
as one point each. McClain contends that because the judgment and sentence “only list[ed] the
offenses as ‘DV’ without specifying whether domestic violence, under any definition, was pleaded
or proved,” those misdemeanors did not fall within RCW 9.94A.525(21)(d). Br. of Appellant at
28. We disagree.
Generally, prior misdemeanors do not count toward a defendant’s offender score. State v.
Rodriguez, 183 Wash. App. 947, 955 n.4, 335 P.3d 448 (2014). However, under RCW
9.94A.525(21)(d), if the current offense is a felony domestic violence offense as defined in RCW
9.94A.030, a prior misdemeanor counts as one point if it was “a repetitive domestic violence
offense as defined in RCW 9.94A.030, where domestic violence as defined in RCW 9.94A.030,
was pleaded and proven after August 1, 2011.” See Rodriguez, 183 Wash. App. at 957-58.
“Repetitive domestic violence” is defined as:
(ii) Domestic violence violation of a no-contact order under chapter 10.99
RCW that is not a felony offense;
(iii) Domestic violence violation of a protection order under chapter 26.09,
26.10, ***26.26, or 26.50 RCW that is not a felony offense.
Former RCW 9.94A.030(42) (2018).
In 2014, the State charged McClain with two counts of violation of a court order, domestic
violence, contrary to RCW 10.99.020. McClain pled guilty. In his statement on plea of guilty,
McClain acknowledged that the elements of each crime were “set out in the charging document.”
CP at 266. McClain’s judgment and sentence noted that he was charged with two counts of a no-
contact violation “DV.” CP at 271. For these charges, the court found that “domestic violence
was pled and proved.” CP at 271.
14
51817-1-II
Although McClain’s judgment and sentence did not specifically mention the relevant
statutes, based on the above, we conclude that the State nonetheless carried its burden to prove by
a preponderance of evidence that McClain’s 2014 misdemeanor convictions were repetitive
domestic violence offenses as defined in chapter 9.94A RCW. Accordingly, we conclude that the
trial court properly counted each misdemeanor conviction as one point.
Thus, the trial court erroneously calculated McClain’s offender score as 10, when it should
have been 9. But, an offender score of 9 still gave McClain the same standard range. See RCW
9.94A.515, .533(3)(c); RCW 9A.20.021; State v. King, 162 Wash. App. 234, 241, 253 P.3d 120
(2011).
We affirm McClain’s conviction, but we remand for the trial court to correct McClain’s
criminal history and offender score in his judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Worswick, J.
Lee, C.J.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 12, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-4065
(D.C. Nos. 2:00-CV-912-S and
RONALD D. FISHER, 2:96-CR-103-S)
(D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY, and MURPHY Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Ronald Fisher, a federal prisoner appearing pro se, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion. We affirm.
*
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.
Fisher “concocted and executed a scheme to obtain money from various
federally insured financial institutions and private lenders by making false
representations about his past earning history, the amount of assets he currently
held, and his ability to repay loans made to him or his companies.” United States
v. Fisher, No. 99-4001, 1999 WL 622903, at **1 (10th Cir. Aug. 17, 1999). He
pled guilty to four counts, including making a false statement to a financial
institution in violation of 18 U.S.C. § 1344(1) and wire fraud in violation of 18
U.S.C. § 1343. Fisher was sentenced to 137 months imprisonment based in part
on the district court finding that the loss to Fisher’s victims totaled between $2.5
and 5 million. See U.S. Sentencing Guidelines Manual § 2F1.1(b)(1)(N) (1997)
(hereafter USSG). We affirmed. Fisher, 1999 WL 622903, at **5.
Fisher claims in his § 2255 motion that his plea was involuntary because
his trial and appellate counsels were constitutionally ineffective. The district
court denied his motion. We granted COA with respect to counsels’ investigation
of the facts relating to the losses suffered by two financial institutions, Provo
Finance, LLC (Provo), and Universal Campus Credit Union (UCCU).
To determine the loss amount used to calculate a sentence for a fraud
offense, courts use either the actual loss or the intended loss, whichever is
greater. USSG § 2F1.1, cmt. n. 7(b). Courts should, however, consider “the
contemporaneous exchange of security . . . in considering the economic reality of
-2-
the transaction and any intended loss in excess of the actual loss.” United States.
v. Nichols, 229 F.3d 975, 980 (10th Cir. 2000) (emphasis added); see also USSG.
§ 2F1.1, cmt. n. 7(b) (stating that amount of loss should be reduced by “any assets
pledged to secure the loan.” (emphasis added)).
Fisher claims the losses incurred by Provo and UCCU were “backed by
collateral,” Aplt. Br. at 10, and that the loss amounts determined at sentencing
should have been offset by the amounts recovered through the sale of this
collateral. He contends that his trial and appellate attorneys were constitutionally
ineffective for not investigating and informing the trial court of the true nature of
these losses, and that the total loss to his victims would be less than $2.5 million
if both the Provo and UCCU losses were properly determined. We have reviewed
“the district court’s legal rulings de novo and its findings of fact for clear error,”
United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001), and conclude
there is no factual or legal basis for Fisher’s claims.
The UCCU Fraud. Fisher deposited $1,657,722.85 in worthless checks
into his UCCU account to induce UCCU to issue him cashier’s checks totaling at
least $1,500,435.80. Fisher used the cashier’s checks to pay off loans at other
institutions, some of which were backed by collateral pledged as security. After
UCCU discovered Fisher’s fraud, it obtained assignments of this collateral from
the other lenders and recouped some losses by selling these assets. Fisher’s own
-3-
expert admitted at the sentencing hearing that there was never any loan, pledge or
security agreement between Fisher and UCCU, and that all of these collateral
assignments and recoveries occurred after Fisher had already defrauded UCCU
and only because of UCCU’s post-fraud litigation and other efforts. See Aplt.
App. at 256-60; see also Fisher, 1999 WL 622903, at **3 n.5 & n.6.
Fisher argued at sentencing and on direct appeal that the loss to UCCU
should be offset by these asset sales, but both the trial court and this court
rejected this argument because it ignores the clear requirement to use the higher,
intended loss of $1,657,722.85, rather than any lower actual loss. Fisher, 1999
WL 622903, at **3 (explaining that even if UCCU’s actual losses were zero, the
intended loss amount of $1,657,722.85 governs).
Fisher now argues that the UCCU “loan” was “backed by various pieces of
collateral,” Aplt. Br. at 14. Citing Nichols, 229 F.3d at 980, he claims UCCU’s
loss should be offset by this “liquidated collateral.” Aplt. App. at 13. His
evidence, however, is nothing more than the same asset sales that UCCU
recouped through the post-fraud collateral assignments. Compare id. at 200-01,
with id. at 243-44. Fisher presents no evidence that this collateral was
contemporaneously pledged to secure his indebtedness at the time UCCU issued
the cashier’s checks. See USSG 2F1.1, cmt. n. 7(b). Indeed, his § 2255 evidence
simply confirms that all of these collateral assignments and sales occurred after
-4-
UCCU discovered the fraud. Moreover, both his trial and appellate counsel did
argue that these asset sales should be used to offset the loss, and we rejected this
argument. Fisher, 1999 WL 622903, at **3, n.6. We also rejected his renewed
argument that UCCU’s loss should be its actual loss. Id. at **3. “The fact that a
victim has recovered part of its loss after discovery of a fraud does not diminish a
defendant’s culpability for purposes of sentencing.” Nichols, 229 F.3d at 979. In
short, Fisher has presented no new evidence, and his attorneys have already
asserted this same, flawed legal argument.
Provo. Fisher obtained a loan from Provo based on his false representation
that he had paid off the outstanding lien on the property he pledged to Provo as
security. The presentence report noted that Provo was in litigation at the time of
sentencing seeking to obtain rights in the fraudulently-pledged collateral. Fisher
presents evidence that Provo later succeeded in its litigation and recovered
proceeds from the sale of the pledged assets. He argues his attorneys were
ineffective for not seeking to offset Provo’s losses by these amounts. There is no
merit to Fisher’s claim that this impaired collateral should have been deducted
from the amount of loss. Where as here, a defendant provides false information
to a lender about the value of its pledged collateral, the defendant is properly held
liable for the higher intended loss. United States v. Schild, 269 F.3d 1198, 1202
(10th Cir. 2001) (citing United States v. Banta, 127 F.3d 982 (10th Cir. 1997)).
-5-
“[T]he mere presence of collateral securing an item that was fraudulently obtained
does not automatically reduce the loss calculation under § 2F1.1 where it can be
shown that the defendant intended to permanently deprive the creditor of the
collateral through concealment.” Nichols, 229 F.3d at 979. Provo was forced to
recover its impaired collateral through expensive litigation and had not recovered
any of it at the time of sentencing. Fisher’s trial and appellate attorneys were not
ineffective for failing to assert the meritless argument that Provo’s losses should
have been offset by this fraudulently-pledged collateral.
Because Fisher did not present any evidence that any collateral was validly
pledged to secure the indebtedness to Provo or UCCU, the district court did not
err in denying his § 2255 motion without an evidentiary hearing, and Fisher
cannot show that his counsels’ conduct was objectively unreasonable or that he
suffered the prejudice required to establish an ineffective assistance of counsel
claim under Strickland v. Washington, 466 U.S. 668, 687-89 (1984).
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 53890-3-II
Personal Restraint of
JAMES H. ROWE, II,
Petitioner.
UNPUBLISHED OPINION
MAXA, C.J. – James Rowe II seeks relief from personal restraint resulting from the 2018
revocation of his community custody by the Indeterminate Sentence Review Board and the
Board’s setting of new minimum terms of confinement. The Board had charged Rowe with three
violations of the conditions of his community custody: (1) viewing pornographic material, (2)
failing to successfully participate in sex offender treatment by accessing social media sites, and
(3) failing to successfully complete sex offender treatment by being terminated from treatment on
February 8, 2018.1 Rowe pleaded guilty to the violations, and the Board revoked his community
custody. The Board later set his new minimum term at 24 months and, in 2019, extended his
minimum term by 18 months.
Rowe now argues that the Board erred in revoking his community custody because the
following community custody condition is unconstitutionally vague:
(17) The defendant shall not use or possess any pornographic material as defined
by the sexual deviancy treatment provider and the [community corrections officer].
Pet., Ex. 3 at 2.
1
The Board had charged Rowe with a fourth violation, but dismissed it for lack of probable cause.
No. 53890-3-II
Regarding the Board’s revocation of Rowe’s community custody, we review the Board’s
decision for an abuse of discretion. In re Pers. Restraint of Dyer, 175 Wash. 2d 186, 196, 283 P.3d
1103 (2012). Given that Rowe, who was represented by counsel, pleaded guilty to the three
violations, including those not related to pornography, he fails to show that the Board abused its
discretion in revoking his community custody.
Regarding the argument that condition 17 is unconstitutionally vague under State v. Bahl,
164 Wash. 2d 739, 758, 193 P.3d 678 (2008), the State concedes that Rowe is correct and that
condition 17 should be modified to make it constitutionally acceptable.
We grant Rowe’s petition and remand to the trial court to modify community custody
condition 17. We deny the remainder of his petition. We deny Rowe’s request for appointment
of counsel.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
MAXA, C.J.
We concur:
SUTTON, J.
GLASGOW, J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 54245-5-II
Personal Restraint Petition of
ANTHONY DEWAYNE PARKER,
Petitioner.
UNPUBLISHED OPINION
No. 54471-7-II
In the Matter of the
Personal Restraint Petition of
ANTHONY DEWAYNE PARKER,
Petitioner.
MELNICK, J. – Anthony Parker seeks relief from personal restraint imposed as a result of
his 2014 convictions for one count of human trafficking in the first degree (count I), one count of
promoting prostitution in the first degree (count II), four counts of assault in the second degree
(counts III, V, VII, and VIII), one count of burglary in the first degree (count IV), one count of
kidnapping in the first degree (count VI), one count of unlawful possession of a firearm in the first
degree (count X), and one count of witness tampering (count XI).
Linked Nos. 54245-5-II / 54471-7-II
As to count I, the trial court imposed an exceptional sentence of 457 months of confinement
plus 132 months of firearm enhancements for counts I, II, and VIII. As to the remaining counts,
it imposed standard range sentences concurrent with the sentence in count I. Parker filed motions
in the trial court under CrR 7.8(c)(2), which the trial court transferred to this court to be considered
as personal restraint petitions. Parker argues that (1) his judgment and sentence incorrectly states
that the maximum sentence for count I is life imprisonment, (2) his sentences as to counts II, VIII,
and XI exceed the statutory maximum sentence for those crimes, (3) his offender scores were
incorrectly calculated, (4) the firearm enhancements on counts I and II violate double jeopardy,
and (5) the prosecutor engaged in misconduct during closing arguments.
RCW 10.73.090(1) requires that a petition be filed within one year of the date that the
petitioner’s judgment and sentence becomes final. Parker’s judgment and sentence became final
on July 14, 2017, when the mandate following his direct appeal issued. RCW 10.73.090(3)(b).
He did not file his petitions until November 4, 2019 for issues (1) and (2), November 13, 2019 for
issue (3), January 15, 2020 for issue (4), and January 20, 2020 for issue (5)—more than one year
later. Unless he shows that one of the exceptions contained in RCW 10.73.100 applies or that his
judgment and sentence is facially invalid, his petition is time-barred. In re Pers. Restraint of
Hemenway, 147 Wash. 2d 529, 532-33, 55 P.3d 615 (2002).
As to the first issue, the maximum sentence for count I, Parker fails to show that any of the
exceptions contained in RCW 10.73.100 apply to his petition or to identify any invalidity on the
face of his judgment and sentence. The statutory maximum sentence for first degree human
trafficking is life imprisonment. RCW 9A.20.021(1); former RCW 9A.40.100(2) (2012).
2
Linked Nos. 54245-5-II / 54471-7-II
As to the second issue, the State concedes that the sentences for counts II, VIII, and XI
exceed the statutory maximums and we should remand to the trial court for correction. As to count
II, the trial court imposed a base sentence of 120 months, plus a 36-month firearm enhancement,
plus a 12-month term of community custody. This combined sentence exceeds the statutory
maximum sentence of 120 months. As to count VIII, the trial court imposed a base sentence of 84
months, plus a 36-month firearm enhancement, plus an 18-month term of community custody.
This combined sentence exceeds the statutory maximum sentence of 84 months. Finally, as to
count XI, the trial court imposed a sentence of 69 months, which exceeds the statutory maximum
sentence of 60 months.
As to the third issue, Parker fails to show that any of the exceptions contained in RCW
10.73.100 apply to his petition or to identify any invalidity on the face of his judgment and
sentence. He fails to show that his prior juvenile convictions should have washed out of his
offender score or that the trial court should not have counted his other current convictions in his
offender score.
As to the fourth issue, Parker fails to show that his firearm enhancements on counts I and
II constitute double jeopardy under the “unit of prosecution” analysis; therefore, he neither shows
that his petition falls within the exception contained in RCW 10.73.100(4) nor that his judgment
and sentence is facially invalid.
As to the fifth issue, Parker fails to show either that any of the exceptions contained in
RCW 10.73.100 apply to his petition or that any invalidity on the face of his judgment and sentence
exists.
3
Linked Nos. 54245-5-II / 54471-7-II
We grant Parker’s petition as to the second issue and remand to the trial court to correct
the sentences on counts II, VIII, and XI by sentencing him to terms that do not exceed the statutory
maximums for each crime. We deny the remainder of his petitions. We deny Parker’s request for
appointment of counsel.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
MELNICK, J.
We concur:
WORSWICK, P.J.
MAXA, J.
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Filed
Washington State
Court of Appeals
Division Two
April 7, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MANDON FOLEY, a married man, No. 50922-9-II
Appellant,
v.
JIM BAYS HOMES, LLC, a Washington state UNPUBLISHED OPINION
limited liability company,
Respondent,
AUSTIN SUMMERS, LLC, a Washington
state limited liability company; and LEXON
INSURANCE COMPANY, Bond No.
9817383, a Washington state insurer,
Defendants.
CRUSER, J. — Mandon Foley appeals an award of attorney fees and costs to Jim Bays
Homes LLC as the prevailing party on Foley’s claim under the “Registration of Contractors Act”
(registration act), ch. 18.27 RCW. Foley argues that the trial court erred when it awarded attorney
fees and costs to Bays pursuant to RCW 18.27.040(6) because he did not allege a breach of a
residential construction contract. Foley also appeals the trial court’s order granting summary
dismissal of his claim against Bays’ contractor’s bond and the surety that issued the bond because,
No. 50922-9-II
he argues, the registration act provides a mechanism for members of the public to recover against
a contractor’s surety bond.
We affirm the summary dismissal of Foley’s claim pursuant to the registration act against
Bays’ bond and the issuing surety. However, we reverse the trial court’s order on attorney fees
and costs to Bays because Foley did not allege a breach of a residential construction contract.
Thus, we affirm in part and reverse in part.
FACTS
Foley and Austin Summers LLC1 owned neighboring properties in Puyallup, Washington.
In 2015, Summers hired Bays, a licensed contractor, to construct a single-family home on its
property. Bays obtained a bond as required by RCW 18.27.040(1) from Lexon Insurance
Company.
In January 2016, Foley served Summers and Bays with an unfiled complaint seeking
damages by asserting trespass and timber trespass claims. Foley alleged that Bays entered his
property and unlawfully cut and removed his trees in June 2015. Foley’s complaint did not contain
a breach of contract claim or allege that Foley entered into a contract with Summers or Bays. Foley
also brought a cause of action under RCW 18.27.040(3) against Lexon as the surety that issued
Bays’ contractor’s registration bond.2
1
Austin Summers LLC is not a party to this appeal.
2
Bays was contractually obligated to defend Lexon from any claims brought against the bond and
was responsible for attorney fees incurred by Lexon pursuant to an indemnity agreement.
2
No. 50922-9-II
In March 2016, Foley filed his complaint. Foley did not serve the issuing surety or the
Department of Labor and Industries (L&I) with copies of the summons and complaint, as required
by RCW 18.27.040(3), until March 2017.
Bays moved to dismiss Foley’s claim against its bond and the issuing surety pursuant to
CR 12(b)(6). In its motion, Bays argued that Foley was not in the class of persons intended to be
protected by the registration act because Foley did not have a contractual agreement with Bays.
Bays also sought attorney fees and costs under RCW 4.84.1853 and sanctions under CR 11.4
In response to the motion, Foley argued that as a member of the public, he was entitled to
the registration act’s protections even in the absence of a contractual agreement. Alternatively,
Foley’s counsel argued that Foley did, in fact, have a verbal contract with Bays. The relevant
colloquy is as follows:
THE COURT: Who did your client contract with, anyone?
[Foley]: My client did not contract with anyone except for and to the extent
that the client -- or the Court is inclined to require my client to have a contract.
3
RCW 4.84.185 states in relevant part,
In any civil action, the court having jurisdiction may, upon written findings by the
judge that the action was . . . frivolous and advanced without reasonable cause,
require the nonprevailing party to pay the prevailing party the reasonable expenses,
including fees of attorneys, incurred in opposing such action . . . or defense.
4
CR 11(a) states in relevant part,
Every pleading, motion, and legal memorandum of a party represented by an
attorney shall be dated and signed by at least one attorney of record in the attorney’s
individual name. . . . The signature of a party or of an attorney constitutes a
certificate by the party or attorney that the party or attorney has read the pleading,
motion, or legal memorandum, and that to the best of the party’s or attorney’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances: (1) it is well grounded in fact; (2) is warranted by existing law or a
good faith argument for the extension, modification, or reversal of existing law or
the establishment of new law.
3
No. 50922-9-II
THE COURT: No, I’m not asking that. I asked: Did your client contract
with anyone? A straightforward question.
[Foley]: Yeah, I don’t think that my client contracted with Mr. Bays to do
any work, but I will say --
....
[Foley]: that if you look at the verified Complaint -- and it doesn’t specify
this, but I’ll represent to the Court that when it’s referenced to the Court that, “based
upon prior communications,” . . . “with Mr. Bays,” my understanding is that they
specifically had a conversation about these trees and that Mr. Bays asked if he could
clear them. Mr. Foley said, “No.” You know, whether or not that constitutes a
verbal contract to not do something, you know, I think, is something that the Court
-- it’s not to be decided today, but it’s something the Court should take into
consideration in terms of, you know, this contractual requirement.
Clerk’s Papers (CP) at 169-70. Foley also stated,
[Foley]: My reasoning for stating that is even to the extent the Court would
require a contract, obviously, there’s some type of verbal or written contract
between us and Summers and Jim Bays Homes, LLC -- that’s where the work was
being done.
Id. at 170.
The trial court granted Bays’ motion to dismiss. However, the trial court denied Bays’
request for fees and costs under RCW 4.84.185 and its request for sanctions under CR 11. Bays
then moved for fees and costs pursuant to RCW 18.27.040(6) of the registration act. RCW
18.27.040(6) provides in part,
The prevailing party in an action filed under this section against the contractor and
contractor’s bond or deposit, for breach of contract by a party to the construction
contract involving a residential homeowner, is entitled to costs, interest, and
reasonable attorneys’ fees.
Bays argued that it was entitled to fees and costs as the “prevailing party” on Foley’s bond
claim because Foley necessarily brought his bond claim as a residential homeowner. CP at 145-
48. Bays claimed that Foley brought his claim as a residential homeowner because he commenced
his suit against Bays’ surety within the statute of limitations period allotted for residential
4
No. 50922-9-II
homeowners.5 Bays also cited to Foley’s counsel’s claim during argument on Bays’ motion to
dismiss that Foley had an oral contract with Bays that provided the basis for his claim under the
registration act.
In response to Bays’ motion for fees pursuant to RCW 18.27.040(6) of the registration act,
Foley argued that Bays was not entitled to fees under the plain language of the statute because
Foley’s complaint did not allege a breach of contract claim, Foley did not enter into a construction
contract with Bays, and the trial court previously determined that Foley was not a member of the
class of persons intended to be protected under the registration act. The trial court found that Foley
brought an action under RCW 18.27.040(3) and, “as the prevailing party, [Bays] is entitled to
attorney fees” under RCW 18.27.040(6). Verbatim Report of Proceedings at 17 (June 16, 2017).
The trial court entered an order for an award for attorney fees and costs pursuant to RCW
18.27.040(6) on August 11, 2017.
Foley moved for revision of the “Judgment for Attorney’s Fees and Costs so that [it is]
entered as in the form of an order” pursuant to CR 54.6 CP at 296. Bays also moved to amend the
5
An action against a bond brought by a residential homeowner for breach of a construction contract
is subject to a two-year statute of limitations. RCW 18.27.040(3). An action against a bond
brought by any other authorized party is subject to a one-year statute of limitations. RCW
18.27.040(3).
6
CR 54(a)(1) states the following:
A judgment is the final determination of the rights of the parties in the action and
includes any decree and order from which an appeal lies. A judgment shall be in
writing and signed by the judge and filed forthwith as provided in rule 58.
CR 54(b) provides that when an action presents multiple claims or parties, the court may
enter a final judgment as to one or more, but not all, of the claims or parties if directed by a party
and if the court determines “that there is no just reason for delay.” The court must support its
determination by written findings. CR 54(b). A trial court order or decision as to one or more,
but not all, of the claims or parties may also be revised to add written findings “that there is no
just reason for delay” before the entry of a judgment as to all claims and all parties. CR 54(b).
5
No. 50922-9-II
order on fees pursuant to CR 54(b). The trial court denied Foley’s motion for revision, but
amended the order on fees pursuant to CR 54(b).
The trial court entered its amended order for an award of attorney fees and costs pursuant
to RCW 18.27.040(6) of the registration act. The court found that Bays was the prevailing party
on Foley’s bond claim, and that Foley’s claim against Bays’ bond and the issuing surety was a
separate and distinct action and appropriately segregated from Foley’s remaining claims. The
court also found that there was no reason for delaying the entry of the order as a final judgment.
Foley appeals the trial court’s order dismissing his bond claim and the trial court’s amended
order on fees.
DISCUSSION
Ⅰ. RCW 18.27.040(3) “BOND CLAIM”
Foley argues that the trial court erred when it dismissed his claim against Bays’ registration
bond and the issuing surety under RCW 18.27.040(3) of the registration act and, although not
designated in his notice of appeal, the order of dismissal is properly before us pursuant to RAP
2.4(b).
We hold that the order summarily dismissing Foley’s claim against Bays’ bond and the
issuing surety is properly before us, and the trial court properly dismissed Foley’s claim and the
issuing surety under RCW 18.27.040(3).
6
No. 50922-9-II
A. REVIEWABILITY OF THE TRIAL COURT’S ORDER
Relying on RAP 2.4(b), Foley argues that we should review the trial court’s order of
summary dismissal even though it was not designated in his notice of appeal.7 We agree.
RAP 2.4(b) provides that
[t]he appellate court will review a trial court order or ruling not designated in the
notice, including an appealable order, if (1) the order or ruling prejudicially affects
the decision designated in the notice, and (2) the order is entered, or the ruling is
made, before the appellate court accepts review. A timely notice of appeal of a trial
court decision relating to attorney fees and costs does not bring up for review a
decision previously entered in the action that is otherwise appealable under rule
2.2(a) unless a timely notice of appeal has been filed to seek review of the previous
decision.
A previous order prejudicially affects an order designated in a notice of appeal if the order
appealed “‘must stand or fall based on the findings and conclusions the trial court entered in
support of the’” previous order. Right-Price Recreation, LLC v. Connells Prairie Cmty. Council,
146 Wash. 2d 370, 379, 46 P.3d 789 (2002) (quoting Franz v. Lance, 119 Wash. 2d 780, 782, 836 P.2d
832 (1992)). In other words, the order appealed would not have occurred but for the previous
order. Id. at 380.
Here, Foley appealed the trial court’s amended order granting fees and costs to Bays. The
trial court granted fees and costs pursuant to RCW 18.27.040(6) of the registration act based on
the court’s previous dismissal of Foley’s claim against Bays’s bond and the issuing surety from
the action. The trial court found that Bays was the prevailing party on the bond claim, which was
relayed in the previous undesignated order and formed the basis for granting fees. Accordingly,
7
Foley never moved to amend the trial court’s order summarily dismissing his claim into a final,
appealable order under CR 54(b). Thus, Foley never filed a notice of appeal pertaining to the trial
court’s order summarily dismissing his claim.
7
No. 50922-9-II
the order dismissing Foley’s bond claim and the issuing surety prejudicially affected the order
granting fees, and the order granting fees cannot be decided without first considering the merits of
the order dismissing the bond claim.
Bays argues that under RAP 2.4(b), Foley’s timely appeal of the trial court’s amended order
on fees did not bring up the order of dismissal as an “otherwise appealable order.” Bays relies on
Carrara, LLC v. Ron & E Enterprises, Inc., which similarly involved an appeal of an order granting
attorney fees and costs. 137 Wash. App. 822, 824-25, 155 P.3d 161 (2007). However, in Carrara,
the order granting fees and costs was entered after the entry of a final judgment dismissing all
claims against all parties in compliance with CR 54(b). Id. at 824-25.
Here, the trial court’s order dismissing Foley’s claim against Bays’ bond and the issuing
surety was not a final judgment because it did not comply with CR 54(b) and RAP 2.2(d).8 RAP
2.4(b). The order of dismissal did not resolve the remaining trespass and timber trespass claims
against Bays and Summers and was not supported by written findings that there was no just reason
for delay as required by CR 54(b). Because it did not comply with CR 54(b)’s requirements and
did not resolve all claims before the trial court, the order of dismissal was not an otherwise
appealable final order and Carrara does not control. Accordingly, we accept review of the trial
court’s order dismissing Foley’s claim against Bays’ bond and the issuing surety.
8
RAP 2.2(d) provides, in relevant part,
In any case with multiple parties or multiple claims for relief, or in a criminal case
with multiple counts, an appeal may be taken from a final judgment that does not
dispose of all the claims or counts as to all the parties, but only after an express
direction by the trial court for entry of judgment and an express determination in
the judgment, supported by written findings, that there is no just reason for delay.
(Emphasis added.)
8
No. 50922-9-II
B. RCW 18.27.040(3)
Foley argues that the trial court erred when dismissing his claim against Bays’ registration
bond and the issuing surety under RCW 18.27.040(3) because he is within the class of persons
protected by the registration act. Foley argues that due to its remedial nature, the statute should be
“liberally construed” to protect members of the public, like Foley. Appellant’s Opening Br. at 21.
We disagree.
1. LEGAL PRINCIPLES
Here, when considering Bays’ motion to dismiss pursuant to CR 12(b)(6), the trial court
considered materials outside of the pleadings. Under CR 12(b)(6), a defendant may move to
dismiss where a plaintiff’s pleadings do not state a claim for which relief can be granted. However,
if the court considers matters outside of the pleadings when deciding a dispositive motion under
CR 12(6), the motion must be treated as one for summary judgment pursuant to CR 56. CR
12(b)(7); Berst v. Snohomish County, 114 Wash. App. 245, 251, 57 P.3d 273 (2002). Accordingly,
we review the motion under summary judgment standards. Berst, 114 Wash. App. at 251.
We review summary judgments de novo. Specialty Asphalt & Constr., LLC v. Lincoln
County, 191 Wash. 2d 182, 191, 421 P.3d 925 (2018). The moving party is entitled to summary
judgment as a matter of law “when there is no genuine issue as to any material fact.” Id. We
construe all facts and inferences in favor of the nonmoving party to determine whether an issue of
material fact exists. Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886 (2008).
“A genuine issue of material fact exists where reasonable minds could differ on the facts
controlling the outcome of the litigation.” Id.
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No. 50922-9-II
We review questions of law de novo. Blueberry Place Homeowners Ass’n v. Northward
Homes, Inc., 126 Wash. App. 352, 358, 110 P.3d 1145 (2005). Statutory interpretation is a question
of law. Cosmopolitan Eng’g Grp., Inc. v. Ondeo Degremont, Inc., 159 Wash. 2d 292, 298, 149 P.3d
666 (2006). “Our purpose when interpreting a statute is to ‘discern and implement the intent of
the legislature.’” Id. (internal quotation marks omitted) (quoting City of Olympia v. Drebick, 156
Wash. 2d 289, 295, 126 P.3d 802 (2006)). Where the meaning of a statute is plain on its face, the
court “must give effect to that plain meaning as an expression of legislative intent.” Id. In
discerning the plain meaning of a provision, a reviewing court considers “the context of the entire
act as well as any ‘related statutes which disclose legislative intent about the provision in
question.’” Jametsky v. Olsen, 179 Wash. 2d 756, 762, 317 P.3d 1003 (2014) (quoting Dep’t of
Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 11, 43 P.3d 4 (2002)). When a statute is
ambiguous, we resort to aids of construction, including legislative history. Cosmopolitan Eng’g
Grp., 159 Wash. 2d at 299.
Here, the issue on appeal is whether, as a matter of law, the trial court erred when ruling
Foley was statutorily prohibited from bringing a claim against Bays’ bond and the issuing surety
pursuant to RCW 18.27.040(3) of the registration act.
2. PERSONS PROTECTED UNDER THE REGISTRATION ACT
The registration act requires every contractor in the State of Washington to register with
L&I a surety bond issued by a surety insurer. RCW 18.27.010(2), .020(1), .040(1). The purpose
of the act is to “afford protection to the public including all persons, firms, and corporations
furnishing labor, materials, or equipment to a contractor from unreliable, fraudulent, financially
10
No. 50922-9-II
irresponsible, or incompetent contractors.” RCW 18.27.140. The bond must be conditioned so
that the contractor
will pay all persons performing labor, including employee benefits, for the
contractor, will pay all taxes and contributions due to the state of Washington, and
will pay all persons furnishing material or renting or supplying equipment to the
contractor and will pay all amounts that may be adjudged against the contractor by
reason of breach of contract including improper work in the conduct of the
contracting business.
RCW 18.27.040(1) (emphasis added). Clearly, “an action against the bond must also necessarily
claim that a contractor breached a contract or failed to pay.” Cosmopolitan Eng’g Grp., 159 Wash. 2d
at 300.
3. THE TRIAL COURT PROPERLY DISMISSED FOLEY’S BOND CLAIM
Foley argues that the trial court erred when it concluded that he could not bring a claim
against Bays’ bond under the registration act because the act is a remedial consumer protection
statute and should be “liberally construed in favor of those parties, e.g. consumers, they are
intended to protect.” Appellant’s Opening Br. at 20. Foley cites to Jametsky in support of his
position. 179 Wash. 2d at 762. Although Jametsky supports his statement that we construe consumer
protection statutes liberally, the court stated in Jametsky that we must construe the statutes “in
accordance with the legislative purpose behind them” and “in favor of the consumer they aim to
protect.” Id. at 763, 765 (emphasis added). RCW 18.27.350, which specifically addresses the
Consumer Protection Act, ch. 19.86 RCW, states that “consumers of this state have a right to be
protected from unfair or deceptive acts or practices when they enter into contracts with
contractors.” (Emphasis added.) Even if the registration act is construed liberally, the plain
language does not contemplate protecting a plaintiff that has not entered into a contract with the
defendant, a bonded contractor.
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No. 50922-9-II
Foley next argues that he should be protected by the registration act because the
“[l]egislature is clear in that the purpose of requiring contractors to register is to protect the public”
from “‘unreliable, fraudulent, financially irresponsible, or incompetent contractors.’” Appellant’s
Opening Br. at 21 (boldface omitted) (quoting RCW 18.27.140). However, the purpose is fulfilled
by limiting suits against a contractor and a contractor’s bond for breach of contract claims when a
contractor breaches a contract or fails to pay. See Cosmopolitan Eng’g Grp., 159 Wash. 2d at 300-
01 (differentiating between actions against a contractor and actions against the contractor’s bond).
Additionally, regardless of the general purpose of the registration act, RCW 18.27.040(1) states
that the bond must be conditioned to pay “all persons performing labor . . . for the contractor, . . .
furnishing material or renting or supplying equipment to the contractor and will pay all amounts
that may be adjudged against the contractor by reason of breach of contract including improper
work in the conduct of the contracting business.”
Foley also relies on Stewart v. Hammond, 78 Wash. 2d 216, 471 P.2d 90 (1970), in support
of his argument that we should construe the registration act to protect members of the public that
do not contract with a contractor. However, Foley’s reliance is misplaced because Stewart
involves a breach of construction contract claim where the contractor failed to register a bond
pursuant to the registration act. Id. at 218. Therefore, Stewart does not apply to the present case.
“While contractor registration in general, and bond requirements in particular, are
obviously intended to protect the public from irresponsible contractors, this purpose should not
necessarily be used to extend the protections beyond the mechanisms expressly provided for in the
relevant statute.” Cosmopolitan Eng’g Grp., 159 Wash. 2d at 302. The trial court did not err by
giving effect to the plain meaning of RCW 18.27.040(3) and dismissing Foley’s claim. We affirm
12
No. 50922-9-II
the trial court’s summary dismissal and hold that the plain meaning of RCW 18.27.040(3) does
not afford protections to members of the public who do not enter into contracts with contractors
pursuant to the registration act.
Ⅱ. ATTORNEY FEES PURSUANT TO RCW 18.27.040(6)
Foley argues that the trial court erred in awarding attorney fees and costs to Bays under
RCW 18.27.040(6) of the registration act when (1) Foley’s complaint did not allege breach of a
construction contract, (2) the parties agreed that they never had privity of contract, and (3) the trial
court found that Foley was not a member of persons to be protected under the registration act.
Bays counters that the trial court did not err in awarding attorney fees and costs under RCW
18.27.040(6) because Foley (1) brought a claim against a contractor’s bond and (2) alleged that
the parties entered into a contract during oral argument.9
We agree with Foley and hold that the trial court improperly awarded fees and costs under
RCW 18.27.040(6).
The general rule that a party in a civil action will pay its own attorney fees and costs can
be modified by contract, statute, or a recognized ground in equity. Cosmopolitan Eng’g Grp., 159
Wash. 2d at 296-97. The registration act modifies the civil rule by providing an attorney fee and cost
provision:
9
Bays also seems to argue that the trial court abused its discretion when it denied Bays’ motion
for reconsideration, specifically Bays’ request for sanctions under CR 11 and RCW 4.84.185. We
decline to review Bays’ alleged error because Bays is not the appellant and did not seek a timely
review of the trial court’s decision. RAP 2.4(a).
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No. 50922-9-II
The prevailing party in an action filed under this section against the contractor and
contractor’s bond or deposit, for breach of contract by a party to the construction
contract involving a residential homeowner, is entitled to costs, interest, and
reasonable attorneys’ fees.
RCW 18.27.040(6).
Here, Bays prevailed on Foley’s claim filed under RCW 18.27.040(3) against Bays’ bond
and the issuing surety. Therefore, under RCW 18.27.040(6), Bays is the “prevailing party in an
action filed under this section against the contractor and contractor’s bond or deposit.”
However, Foley’s verified complaint did not allege breach of contract. Instead, he alleged
a cause of action under RCW 18.27.040(3) and claimed that he is within the class of persons
intended to be protected by the registration act. Furthermore, even if we consider Foley’s assertion
made during oral argument that the parties had an oral contract, Bays still cannot show that the
oral contract was a construction contract.10
As stated above, we “must give effect to [the] plain meaning as an expression of legislative
intent.” Cosmopolitan Eng’g Grp., 159 Wash. 2d at 298. The scope of the attorney fees provision is
clearly and specifically limited to suits for “breach of contract by a party to the construction
10
Bays also argues that it is entitled to fees under RCW 18.27.040(6) because Foley pleaded his
claim within the statute of limitations period reserved for only residential homeowners as defined
by RCW 18.27.010(10). Under RCW 18.27.040(3), a residential homeowner claiming breach of
a construction contract must commence the action within two years of the alleged wrongdoing.
Any other authorized party must commence an action within one year of the alleged wrongdoing.
RCW 18.27.040(3). Foley pleaded his claim over one year after the claimed wrongdoing.
However, we do not infer actions based on the timing of which a party files a complaint.
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No. 50922-9-II
contract.” RCW 18.27.040(6) (emphasis added). Here, although Bays was the prevailing party in
an action filed under RCW 18.27.040(3), Foley did not allege a breach of a construction contract.
Therefore, we hold that the trial court erred in granting attorney fees and costs under RCW
18.27.040(6).11
V. ATTORNEY FEES ON APPEAL
Foley argues that he is entitled to attorney fees and costs on appeal under RCW
18.27.040(6) despite having argued throughout this appeal that he did not bring a claim that entitled
either party to attorney fees under this section. Under RAP 18.1, a party may recover attorney fees
and expenses on appeal if an applicable law grants that right. We deny Foley’s request because
he was not a party to a construction contract as required by RCW 18.27.040(6).
CONCLUSION
We hold that Foley fails to show that the trial court erred when it summarily dismissed his
claim against Bays’ registration bond and the issuing surety, Lexon. We also hold that the trial
court improperly awarded attorney fees and costs to Bays under RCW 18.27.040(6) and deny
Foley’s request for fees on appeal.
11
Because we hold that the trial court improperly awarded fees, we do not address Foley’s
remaining claims that (1) the trial court abused its discretion in awarding fees because Bays waived
his fee argument pursuant to ch. 18.27 RCW, (2) the trial court awarded an unreasonable amount
of attorney fees, and (3) the trial court erred in certifying the amended order on fees pursuant to
CR 54(b).
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No. 50922-9-II
We affirm in part and reverse in part.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
WORSWICK, P.J.
MELNICK, J.
16
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Thomson-Porcelite Co., appellee, filed this bill in equity to enjoin Benjamin Harad, trading as General Paint Varnish Co., and Porcelene Paint Co., Arthur S. Harad, Mary Harad and Annie Harad, from using the trade-name "Porcelene" in the advertisement and sale of competitive paint products, contending that said name was deceptively similar and constituted trade-mark infringement and unfair competition. The court *Page 123
below dismissed exceptions to the Chancellor's adjudication and perpetually enjoined appellants from using the name "Porcelene." A rule granted to show cause why a new trial should not be granted because of after-discovered evidence was discharged. Mary Harad and Annie Harad took this appeal.
Thomson-Porcelite Co., appellee, is a Pennsylvania corporation engaged in the manufacture and sale of paint and paint products, including enamel, since 1889. The trade-mark and trade-name "Porcelite" has been used to identify a certain enamel paint manufactured and sold by it since 1892. On February 18, 1908, appellee caused the name "Porcelite" to be registered in the United States Patent Office, which registration was renewed as of February 18, 1928. As a result of the advertising and use of the name in connection with the sale of its product throughout the United States, "Porcelite" has become favorably known in the trade and among the general public, and as identifying the product of appellee.
Appellants have been engaged in the manufacture and sale of paint products for approximately 14 years. The name "Porcelene" was adopted and used by them five or six years prior to institution of the present action. It was displayed on various labels attached to, and accompanying containers in which appellants' paint was sold. The Chancellor found that the name "Porcelene" is "Deceptively similar to 'Porcelite' and is likely to deceive persons purchasing [appellants'] product into believing that it is the product of the [appellee]." This was done with full knowledge of the existence and use by appellee of the name "Porcelite" and without appellee's consent. Appellants were requested to refrain from using the name "Porcelene" but have refused to do so. The above facts were found by the Chancellor and approved by the court en banc. They are supported by the evidence and thus have the force and effect of the verdict of a jury. *Page 124
Appellants contend that: (1) appellee has failed to prove that the word "Porcelite" has acquired a "secondary meaning"; (2) the words "Porcelite" and "Porcelene" and the manner in which they are used are so distinct that the latter is neither deceptively similar nor reasonably likely to cause confusion; and (3) appellee is barred by laches.
Where use of a particular trade-mark or trade-name has resulted in recognition of the same by the general public as identifying the product of a certain manufacturer, use thereof by another will be restrained as unfair competition: QuakerState Oil Refining Co. v. Steinberg, 325 Pa. 273, 279,189 A. 473, 476. That the court below did not specifically base its decree upon trade-mark infringement or upon unfair competition, is of no consequence. ". . . the common law of trade-marks is but a part of the broader law of unfair competition": HanoverStar Milling Co. v. Metcalf, 240 U.S. 403, 36 Sup. Ct. 357. "Any name, geographical or otherwise, applied to a product, becomes an asset to the person who advertises and markets that product as soon as the public begins to associate that name with that product": Hartman v. Cohn, 350 Pa. 41, 43,38 A.2d 22, 24. It is immaterial, therefore, whether the name "Porcelite" is incapable of becoming a valid trade-mark. Use of that name throughout the country for more than 40 years and association by the public of that name with appellee's product is sufficient to maintain the present action.
Appellants' contention, that the words "Porcelite" and "Porcelene" and their manner of use are so distinct that the latter cannot be said to be deceptively similar nor reasonably likely to cause confusion, cannot be sustained. "In determining whether the actor's designation is confusingly similar to the other's trade-mark or trade name, the following factors are important: (a) the degree of similarity between the designation and the trade-mark or trade name in (i) appearance; (ii) pronunciation *Page 125
of the words used; (iii) verbal translation of the pictures or designs involved; (iv) suggestion; (b) the intent of the actor in adopting the designation; (c) the relation in use and manner of marketing between the goods or services marketed by the actor and those marketed by the other; (d) the degree of care likely to be exercised by purchasers": Restatement, Torts, section 729. In the instant case, the labels displayed are quite similar in appearance. While close examination of the various exhibits reveals differences in detail, their total effect is one of similarity. That the pronunciation is similar, is self-evident. Whether adoption by appellants of the name "Porcelene" was innocent or for the purpose of deceiving prospective purchasers, and securing unfair benefits from appellee's good will and reputation, may best be determined from the fact that the name "Porcelite" was known to appellants. The objection of appellee, to the use of the name and other surrounding circumstances, e. g., the purpose for which the name was adopted, and its subsequent use, are but a few of the facts which justify the inference of confusing similarity. The intended and actual use of the name "Porcelene" was identical with appellee's use of the word "Porcelite."
Appellants contend that there is no proof of actual deception or confusion among the purchasing public. "It is not necessary that the public should be actually deceived in order to afford a right of action. All that is required is that the infringement should have a tendency to deceive. The gist of the action is the intent to get an unfair benefit from another's trade. Actual deception of the public is only material to the question of damages": Shaw Co. v. Pilling Son, 175 Pa. 78,87, 34 A. 446, 447. Whether the label or mark is reasonably calculated to deceive the public into purchasing an article manufactured by a person other than the one offering it for sale is the criterion: Scranton Stove Works v. Clark, 255 Pa. 23,27, 99 A. 170, 172. It is sufficient that appellants' use of the word in the manner *Page 126
complained of is reasonably likely to produce confusion in the public mind. Cf. Hartman v. Cohn, supra, 38 A.2d at 25. If evidence of the tendency to confuse were needed, the testimony of Martin Address, appellee's former salesman, that, at first glance, he mistook appellants' product for that of appellee's, would constitute strong evidence in that regard. The law of unfair competition is not for the protection of experts but the general public: J. N. Collins Co. v. F. M. Paist Co.,14 F.2d 614. We have considered the cases relied upon by appellants and have concluded they are not controlling.
The contention that appellee is barred by laches is untenable. In Klepser v. Furry, 289 Pa. 152, 159, 137 A. 175, this Court said: "In suits for unfair competition or infringement it is well settled that mere laches in the sense of delay to bring suit does not constitute a defense. Such laches may bar an accounting for past profits, but will not bar an injunction against a further continuance of the wrong."
The decree of the court below is affirmed. Costs to be paid by appellants.
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This appeal is from an order made by the Court of Common Pleas of Dauphin County on the petition of the Insurance Commissioner, as statutory liquidator of Keystone Indemnity Exchange, requiring subscribers, among them, appellant, to pay certain amounts "for the purpose of paying losses of said Keystone Indemnity Exchange unpaid at the date of dissolution, and other legal obligations, expenses of administering said estate, as set forth in the reports of the liquidator, including the computing of the pro rata liability of each subscriber; . . ."
The appellant was a subscriber and here presents only two questions.1 On May 18, 1933, on the Attorney General's suggestion, the court below directed the Insurance Commissioner to take possession of and liquidate the business of Keystone Indemnity Exchange. The Exchange, acting by its attorney-in-fact, Keystone Indemnity Company, on the same day, waived a rule to show cause and admitted the facts suggested by the Attorney General. Dissolution was ordered. December *Page 335
20, 1937, the statutory liquidator filed his report, showing claims allowed and the necessity for an assessment on subscribers at a suggested rate.
The subscribers to the dissolved exchange were engaged in insurance pursuant to sections 1001-1010 of the Act of May 17, 1921, P. L. 682, 40 PS sections 961-970; as amended April 9, 1929, P. L. 464, 40 PS section 964. Their attorney-in-fact for the purposes of reciprocal insurance2 was Keystone Indemnity Company. The amendment of 1929 (supra) provided: "Such subscribers, so contracting among themselves, shall, through their attorney, file with the Insurance Commissioner of this Commonwealth a declaration, verified by the oath of such attorney, setting forth: . . . (d) a copy of the form of power of attorney, or other authority of such attorney, under which such insurance is to be effected or exchanged, and which shall provide that the liability of the subscribers, exchanging contracts of indemnity, shall make provision for contingent liability, equal to not less than one additional annual premium or deposit charged."
The cash assets of the Exchange suffered by the management of the agent, the Indemnity Company, and were insufficient3 to pay the claims allowed by the liquidator, whose duty it then became to convert other assets into cash. The other assets were the subscribers' obligations resulting from the Act of April 9, 1929, to pay a sum, in the words of the Act, "equal to not less *Page 336
than one additional annual premium or deposit charged." It appears that for some time after the approval of the Act, the subscribers' agent, the Indemnity Company, issued policies which not only did not contain the contingent liability provision required by the statute, but even provided no assessment should be made. That default of appellant's agent is now said to constitute a defense to the demand for payment of the assessment by the principal.
The Commonwealth, acting by the Insurance Commissioner, enforcing the insurance law, is a party to this proceeding on the one hand, and the appellant-subscriber, the other party. Either the appellant was engaging in the insurance business as the statute permitted, with such limited liability as was allowed, or appellant was engaged in violation of the law, without the limited liability, and subject to additional penalties. It is no answer to the State's request that appellant pay its share of the contingent liability, that its agent, the Indemnity Company, made a contract which provided that it should not be paid. These obligations were not limited to be performed only during the period in which the insurance was to be in force; the subscriber assumed more than one obligation; one was that the insurance should be effective for the specified period, but another obligation was that the contingent liability must be assumed and would, of course, remain an existing obligation until the subscriber discharged it by payment or was otherwise relieved. These contingent liabilities were assets on which it was the duty of the statutory liquidator to realize.
Order affirmed at appellant's costs.
1 The brief stated them as follows: "1. Can a person, holding expired policy contract issued by an insolvent reciprocal or interinsurance exchange, be subjected to an assessment without proof that insolvency occurred prior to the date of expiration of the policy contract?
"2. Can an assessment be levied against a holder of an expired policy contract issued by a reciprocal or interinsurance exchange, which later became insolvent, where the policy provided that it was nonassessable but, by statute, the attorney-in-fact was required to issue policy contracts providing for an assessment?"
2 The nature of such insurance is considered in Long v.Sakleson, 328 Pa. 261, 195 A. 416.
3 In the brief filed on behalf of the Commonwealth, the following appears: "As shown by the Petition and First Report of the Statutory Liquidator, as of September 1, 1937, 1,676 proofs of claim for a total of $734,552.93 were filed. The Statutory Liquidator allowed 539 claims for a total of $291,455.55. Cash on hand on September 1, 1937, amounted to $8,017.46. During the period from April 9, 1929, to May 18, 1933, there were 62,882 policies in the hands of 26,950 subscribers who paid an average annual premium deposit of $44.50 for a total of $2,843,233.27." *Page 337
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This appeal brings for review a final decree, setting aside and cancelling a previous order of adoption. *Page 681
On May 2, 1939, Minnie Lee Taylor, joined by her husband, C.L. Taylor, both of Tampa, Florida, filed a bill of complaint against B.L. Lambert and his wife, Elizabeth M. Lambert, both of Plant City, Florida, seeking to have revoked, vacated and annulled an order of adoption of a child entered March 31, 1934, by Hon L.L. Parks, Circuit Judge; and to have the name of the child changed to Lonnie David Taylor.
The allegations of the bill show that plaintiff, who was Minnie Lee Johnson at that time, gave birth to the child, Lonnie David, on October 12, 1933, prior to her marriage; that a son of defendants, Kenneth Lambert, was the father of the child; that shortly after the birth of the child, defendants requested plaintiff to come and live with them; that defendant, Elizabeth M. Lambert, claims to have adopted the child; that the order of court permitting adoption was procured through mistake, accident and fraud; that plaintiff did sign a paper, but thought it was a paper to give the child a name, instead of an adoption paper, by which defendants adopted the child; that in February, 1935, defendants gave the child to a family in Island Grove, Alachua County, Florida. The bill also contained allegations as to the unfitness of defendants, and the fitness of plaintiff and her husband to keep the child.
B.L. Lambert and his wife, Elizabeth M. Lambert, each filed separate answers to the bill. The answers denied the material allegations of the bill and set up that the child, Lonnie David Lambert, was adopted by defendants, and was given all the care, love and affection possible; that Mrs. Lambert became seriously ill and her step daughter and husband, Mr. and Mrs. W.P. Howard, of Island Grove, Alachua County, Florida, adopted the child on September 25, 1935, and *Page 682
had the child's name changed to W.P. Howard, Jr.; that the Howards are able to care for the child and have cared for it as their own; that plaintiff, Minnie Lee Taylor, it not a fit person from the standpoint of health and morals to have the custody of the child.
The court decreed that the order of adoption of March 31, 1934, be set aside, cancelled and held for naught.
The evidence shows that a short time after the birth of the child, Lonnie David, the Lamberts, the parents of the accused father of the child (Kenneth Lambert), asked Minnie Lee Johnson, the mother of the child, to come live with them. She did, and stayed there from October, 1933, until March or April, 1934, a period of about four or five months, when she was told to leave. The deed of consent permitting the adoption by Mrs. Lambert of the child was signed by Minnie Lee Johnson in the presence of witnesses, while she was living with the Lamberts. The evidence was conflicting, but there was evidence to show that plaintiff did not know she had consented to the adoption by signing the paper, but thought it was only for the purpose of giving the baby a name. On that point plaintiff, Minnie Lee Taylor, testified as follows:
"Q. It is claimed you signed for Mrs. Lambert, a stipulation or deed of consent permitting Mrs. Lambert to adopt this child. Do you know anything about? A. I signed the paper but I did not know what I was signing. I was told nothing about it.
"Q. Well explain exactly the circumstances under which the papers were signed, and why it was signed? A. I was in the back somewhere and Mrs. Lambert called me in the front room and when she asked me to sign the paper she told me to sign Minnie Lee *Page 683
Johnson, and then she put her hand over the paper so I could not see the words. Judge Wells and Judge Knight were there, and she asked me to go into the back again as soon as I signed the paper, and then she talked to them.
"Q. Was the paper read to you? A. No.
"Q. Were you advised of the contents of the paper? A. No sir I was not.
"Q. Did anybody say anything to you about what the paper was for or supposed to be? A. Mrs. Lambert said the paper was to give the child a name, that was all the information I had.
"Q. At the time when you signed the paper did you know you were waiving your rights to the custody of that child? A. No."
The fraudulent gaining of the consent of the natural parent to the adoption has been held to be sufficient to warrant a court in setting aside the adoption. 2 C.J.S. 435, Sec. 45.
It has also been held that if the mother of a child neglected to read and thoroughly note the contents of the papers she signed when giving up its custody to her mother-in-law, which papers in fact constituted an adoption agreement, if she was prevented from so doing by legitimate inferences drawn from her husband's letters that the change in the custody of the child would be only temporary, and by the close confidential relations between all the parties, she should not be bound by her signature to the agreement. Westendorf v. Westendorf,187 Iowa 659, 174 N.W. 359. See also the case of Williams v. Briley, 137 Wn. 262, 242 P. 370, where the court held that the natural mother in consenting to the adoption was deceived, misled and overreached. *Page 684
Although there was a conflict in the evidence, there was competent evidence to show that fraud had been practiced on Minnie Lee Johnson by Mrs. Elizabeth M. Lambert, in the manner in which her consent to the adoption was procured. The chancellor ordered the adoption order to be vacated. When there is substantial evidence to support the finding of the chancellor, and no error is made to appear in the final decree appealed from, the final decree should be affirmed.
Laches, even it if had been a meritorious defense, cannot be considered here, because it was not made an issue in the pleadings below, and it does not appear upon the face of the bill of complaint. See Torreyson v. Dutton, 145 Fla. 169,198 So. 796.
Nothing said herein is intended to control the rights of appellee, Minnie Lee Taylor, as opposed to those of Mr. and Mrs. W.P. Howard who are now said to have custody of the child. Those rights will have to be settled in another case.
Affirmed.
BROWN, C. J., WHITFIELD, CHAPMAN and THOMAS, JJ., concur.
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01-03-2023
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07-05-2016
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CFA INSTITUTE,
Plaintiff,
v.
AMERICAN SOCIETY OF PENSION Case No. 1:20-mc-00018 (TNM)
PROFESSIONALS & ACTUARIES,
Defendant,
v.
JAMES APISTOLAS,
Movant.
CFA INSTITUTE,
Plaintiff,
v.
AMERICAN SOCIETY OF PENSION Case No. 1:20-mc-00019 (TNM)
PROFESSIONALS & ACTUARIES,
Defendant,
v.
ANA LEIRNER,
Movant.
MEMORANDUM ORDER
CFA Institute and the American Society of Pension Professionals & Actuaries are
engaged in a civil suit in the Western District of Virginia. See No. 3:19-cv-12 (W.D.Va). Near
the scheduled close of discovery, CFA Institute issued subpoenas to take depositions of third
parties James Apistolas and Ana Leirner. Apistolas and Leirner both moved to quash the
subpoenas in this district, “where compliance [with the subpoenas] is required.” Fed. R. Civ. P.
45(d)(3); see Mem. in Supp. of Mot. to Quash (“Apistolas’ Mot.”), No. 20-mc-18, ECF No. 1-1;
Mem. in Supp. of Mot. to Quash (“Leirner’s Mot.”), No. 20-mc-19, ECF No. 1-1. For the
reasons below, the Court finds that exceptional circumstances warrant a transfer of these motions
to the issuing court in the Western District of Virginia.
I.
Apistolas and Leirner—who are represented by the same counsel—invoke nearly
identical arguments to quash their respective subpoenas. Compare Apistolas’ Mot. with
Leirner’s Mot. They argue first that they were given only six days’ notice before their scheduled
depositions, which they claim was not “allow a reasonable time to comply.” Apistolas’ Mot. at 7
(quoting Fed. R. Civ. P. 45(d)(3)); Leirner’s Mot. at 8 (same); 1 see Apistolas’ Mot. at 5–6;
Leirner’s Mot. at 6–7. 2 More, Apistolas and Leirner argue that the subpoenas cannot be
modified because the discovery period closed on the date they were scheduled to be deposed.
Apistolas’ Mot. at 8; Leirner’s Mot. at 9. Second, Apistolas and Leirner argue that CFA Institute
failed to exercise appropriate diligence when it waited until near the close of discovery to issue
their subpoenas. Apistolas’ Mot. at 8; Leirner’s Mot. at 9–10. Finally, Apistolas and Leirner
argue that compliance with their subpoenas will impose an undue burden. Apistolas’ Mot. at 8–
10; Leirner’s Mot. at 10–12.
Likewise, CFA Institute’s responses to the two motions are functionally the same. See
Pl.’s Opp’n to Mot. to Quash (“Opp’n to Apistolas’ Mot.”), No. 20-mc-18, ECF No. 7; Pl.’s
1
All page citations refer to the Court’s CM/ECF pagination.
2
Leirner also argues as a separate basis to quash that CFA Institute failed to offer her reimbursement for mileage.
Leirner’s Mot. at 8–9.
2
Opp’n to Mot. to Quash (“Opp’n to Leirner’s Mot.”), No. 20-mc-19, ECF No. 5. CFA Institute
argues that the Court should deny the motions as untimely and compel Apistolas and Leirner to
testify. See generally Opp’n to Apistolas’ Mot.; Opp’n to Leirner’s Mot. If nothing else, CFA
Institute asks the Court to fashion an appropriate modification “to reschedule the deposition[s] to
a mutually agreeable time and place rather than quash the subpoena[s] outright.” Opp’n to
Apistolas’ Mot. at 20; Opp’n to Leirner’s Mot. at 19.
After receiving Apistolas’ and Leirner’s replies, see Reply (“Apistolas’ Reply”), No. 20-
mc-18, ECF No. 9; Reply (“Leirner’s Reply”), No. 20-mc-19, ECF No. 8, the Court’s initial
impression of the parties’ arguments led the Court to believe that the issuing court in the Western
District of Virginia would be better suited to decide the motions. The Court directed Apistolas,
Leirner, and CFA Institute to file their positions about a transfer to the issuing court in
accordance with Federal Rule of Civil Procedure 45(f). Minute Order (4/2/2020), No. 20-mc-18;
Minute Order (4/2/2020), No. 20-mc-19. CFA Institute supports a transfer. Pl.’s Transfer Br.
(Apistolas), No. 20-mc-18, ECF No. 10; Pl.’s Transfer Br. (Leirner), No. 20-mc-19, ECF No. 9.
Apistolas and Leirner oppose. Apisolas’ Transfer Br., No. 20-mc-18, ECF No. 11; Leirner’s
Transfer Br., No. 20-mc-18, ECF No. 10. But after considering Apistolas’ and Leirner’s
objections, the Court finds that the facts of this case present an exceptional circumstance that
justifies a transfer to the issuing court in the the Western District of Virginia.
II.
Federal Rule of Civil Procedure 45(f) states that “When the court where compliance is
required did not issue the subpoena, it may transfer a motion under this rule to the issuing court
if the person subject to the subpoena consents or if the court finds exceptional circumstances.”
The Advisory Committee Note counsels that the Court’s “prime concern should be avoiding
3
burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing
court is in a superior position to resolve subpoena-related motions.” Fed. R. Civ. P. 45(f)
advisory committee’s note.
But there are also countervailing reasons for ordering a transfer, “in order to avoid
disrupting the issuing court’s management of the underlying litigation . . . if such interests
outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of
the motion.” Id.; see Flynn v. FCA US, 216 F. Supp. 3d 44, 46 (D.D.C. 2016). Courts in this
Circuit “have considered the complexity, procedural posture, duration of pendency, and the
nature of the issues pending before, or already resolved by, the issuing court in the underlying
litigation,” as well as “the goals of judicial economy and the avoidance of inconsistent results.”
Flynn, 216 F. Supp. 3d at 46 (quotations and citations omitted).
III.
Exceptional circumstances exist here. First, Apistolas and Leirner have couched a large
part of their motion on CFA Institute’s untimely subpoenas, which they claim cannot be
modified to fit within the issuing court’s now-expired discovery schedule. Apistolas’ Mot. at 8;
Leirner’s Mot. at 9–10. The fact that the discovery period has now closed makes this is a
question better left to the issuing court, “in order to avoid disrupting [its] management of the
underlying litigation[.]” Fed. R. Civ. P. 45(f) advisory committee’s note. And as CFA Institute
has suggested, the issuing court, “versed as it is in the nuances of the underlying trademark
infringement action and the discovery already produced” in the case, is better positioned to
assess whether the value to be gained from Apistolas and Leirner justifies a discovery
modification. See Pl.s’ Transfer Br. (Apistolas) at 2; Pl.’s Transfer Br. (Leirner) at 2.
4
Second, resolution of this dispute in the Western District of Virginia will impose an
insignificant burden on Apistolas and Leirner, who are represented by the same Washington,
D.C. law firm that has been representing the Defendants in the underlying case. See Docket,
CFA Institute, No. 3:19-cv-12 (W.D.Va). And even if they were not, litigating this issue in
nearby Charlottesville would not unduly burden Apistolas and Leirner. Cf. Flynn, 216 F. Supp.
3d at 48 (“no undue burden would be imposed upon [movant] if its motion were transferred to
the Southern District of Illinois”). Weighed against this small burden, the exceptional
circumstances of this case support a transfer. See Fed. R. Civ. P. 45(f) advisory committee’s
note.
IV.
For the foregoing reasons, it is hereby
ORDERED that the pending Motions to Quash shall be TRANSFERRED to the issuing
court in the Western District of Virginia.
SO ORDERED.
2020.04.07
16:12:52 -04'00'
Dated: April 7, 2020 TREVOR N. McFADDEN
United States District Judge
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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/4523418/
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Filed 4/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
COMMUNITIES FOR A B294732
BETTER ENVIRONMENT,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS169841)
v.
SOUTH COAST AIR QUALITY
MANAGEMENT DISTRICT,
Defendant and Respondent;
TESORO REFINING AND
MARKETING COMPANY, LLC,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
Shana Lazerow, Jennifer Ganata; Law Office of Jonathan
Weissglass and Jonathan Weissglass for Plaintiff and Appellant.
Woodruff, Spradlin & Smart, Bradley R. Hogin, Lucas V.
Grunbaum; Bayron Gilchrist, Barbara Baird and Veera Tyagi for
Defendant and Respondent.
Gibson, Dunn & Crutcher, Daniel M. Kolkey, Peter S.
Modlin, Cynthia Mullen and William F. Cole for Real Party in
Interest and Respondent.
____________________
A group called Communities for a Better Environment
attacks an environmental impact report about an oil refinery
project. The report found the main environmental impact of the
project would be to reduce air pollution. The agency and the trial
court certified the report.
Communities criticizes this environmental impact report in
four respects.
First, it used the wrong “baseline.”
Second, the agency did not obtain information about the
pre-project composition of crude oil the refinery processes, but
instead merely found the post-project input would remain within
the refinery’s “operating envelope.”
Third, the report did not explain how the agency calculated
its so-called “6,000 barrel” figure.
Fourth, the report did not disclose either the existing
volume of crude oil the refinery processes as a whole or the
refinery’s unused capacity.
We resolve these issues as follows.
First, the agency properly used its discretion to adopt a
logical and conventional federal baseline.
Second, the law did not require the report to detail
immaterial information about input crude oil composition.
2
Third, Communities forfeited its right to complain about
the 6,000-barrel figure because it was essential for Communities
to raise this issue before the agency but Communities never did.
Fourth, the law did not require the agency to list either the
refinery’s pre-project volume or its unused capacity because these
data were immaterial.
We therefore affirm the judgment of the trial court, which
rejected Communities’ attacks on this environmental impact
report.
The governing statute is the California Environmental
Quality Act, which begins at section 21000 of the Public
Resources Code. Environmental professionals often call the Act
CEQA, but this acronym is not universally known, so we call it
the Act. All unspecified citations are to that Code.
I
We begin with the essential facts, starting with crude oil.
A
Crude oil is a smelly, yellow-to-black liquid from
underground and from around the world. Its precise chemical
composition varies by its place of origin and is important to oil
refiners, who design and build chemical plants to process crude
oils of various kinds.
A fundamental of the refinery business is the variousness
of crude.
Crude’s chemical composition can vary by sulfur content.
Sweet crude has less sulfur than sour crude, and so sweet crude
is easier to refine than sour, and for that reason is more valuable.
Crude also is light or heavy, depending on the length of its
hydrocarbon chains. Light crude has shorter hydrocarbons and
takes less energy to refine than does heavy crude.
3
The shortest hydrocarbon molecules have only a few atoms
of hydrogen and carbon. Examples are methane, ethane,
propane, and butane, which normally are gases. Longer
hydrocarbon molecules like those in gasoline and diesel are
liquids. Very long hydrocarbon molecules like those constituting
asphalt and tar are solids. (See Rodeo Citizens Assn. v. County of
Contra Costa (2018) 22 Cal. App. 5th 214, 217 (Rodeo).)
A refinery is an industrial plant that distills oil. The
process separates the various hydrocarbons by their boiling or
vaporization temperatures. These temperatures are related to
each hydrocarbon’s molecular weight. Think of distilling a
mixture of water and alcohol: the alcohol boils off more easily
than the water and thus is concentrated in the vapor.
At a refinery, you put crude in one end, the crude goes
through pipes and processing units, and at the other end out
flows gasoline, jet fuel, diesel, and such. The two refinery
operations in this case have more than two dozen different
processing units: the Crude Unit, Delayed Coker Unit, the Fluid
Catalytic Cracking Unit, and so forth.
Refineries are designed to process only particular ranges of
crude. A refinery built to specialize in light sweet, for example,
may not be able to handle heavy sour. That range is the
refinery’s operating envelope.
The processing units in a refinery are in a fixed chain: a
mandatory order. Pipes connect these units. Their diameters
limit the rate of total refinery throughput. Think of your car: gas
tank, then engine, then muffler. Your car is a sequential system
of tubes and pipes connecting these components. If you try to
rearrange the components’ order, your car will suffer. And if you
install a larger gas tank, that enlargement at one point in the
4
system does not increase throughput elsewhere: the bigger tank
by itself can boost neither the gasoline flow into the engine nor
the exhaust flow out the muffler. This principle is important in
this case, as will appear.
Tesoro owns and operates two adjacent oil refining facilities
in Carson and Wilmington. These date from the early 1900s and
originally had different owners and separate operations. Tesoro
bought both and integrated them to a degree.
The project triggering this case is Tesoro’s Los Angeles
Refinery Integration and Compliance Project, which involves both
the Carson and Wilmington facilities.
As its name implies, the Los Angeles Refinery Integration
and Compliance Project aimed to improve the integration of the
Wilmington and Carson facilities and to comply with air quality
regulations.
The improved integration would increase Tesoro’s flexibility
in altering the ratio of outputs like gasoline and jet fuel. If the
price of one goes up and the other goes down, for instance, Tesoro
(like any commercial enterprise) would like to respond to price
signals by shifting its output to maximize profits.
The project’s increased compliance would reduce air
pollution. The main reduction would be of emission of gases from
burners, which are also called heaters. Some refinery units heat
petroleum over a fire the way a gas stove heats water in a pot.
The fire’s combustion can emit air pollutants. Reducing these
pollutants was a major goal of Tesoro’s project and
correspondingly a major focus of the environmental impact report
at the heart of this case.
Tesoro’s Los Angeles Refinery Integration and Compliance
Project has three main components. We describe the first two for
5
the sake of an overview, but it is the third component that has
generated the four issues in this case.
The first component involves shutting down a major
pollution source called the Wilmington Fluid Catalytic Cracking
Unit. A Fluid Catalytic Cracking Unit converts heavy
hydrocarbons into lighter ones. This requires much heat, and so
creates many emissions. Shuttering this unit would reduce air
pollution.
In addition, the first component would install new pipelines
and would physically modify hydrocrackers, hydrotreaters, and
other equipment. This component also would increase usage of
certain equipment.
The second component would involve installing new storage
tanks. Increased storage tank capacity would mean oil tankers
could make fewer trips, which would decrease shipping costs and
air pollution.
The third component is the source of this case’s
controversies. This component would change the thermal
operating limit of a particular heater in the Wilmington facility.
The jargon for this particular heater is “H-100.” We simply
call it the Heater. We describe the Heater and the proposed
change to its level of operation.
The Heater heats petroleum going into the Wilmington
Delayed Coker Unit, which we refer to merely as the Coker. Like
a gas range in a home kitchen, the Heater has burners, and these
burners can operate at different heat rates. On a home gas stove,
for instance, you turn the burner to full power by twisting the
knob all the way open. This maximizes heat output. The
Heater’s industrial burners operate on the same principle,
although they dwarf any home stove.
6
The British thermal unit, or Btu, is the familiar measuring
unit for the heat output of a burner, whether it is on a home stove
or in the Heater. One Btu raises the heat of one pound of water
by one degree Fahrenheit.
The Heater has 36 burners. Each has a maximum output
of 8.4 million Btu per hour. Thus the Heater as a whole has a
maximum heat release of 36 times 8.4 million Btu per hour,
which equals 302.4 million Btu per hour. To simplify, the
Heater’s maximum rate is 302.4.
Beside this “maximum” heat rate, a different heat rate —
the “guaranteed” heat rate — also figures in this case. The
guaranteed heat rate is the rate at which the Heater’s
manufacturer guarantees the Heater will operate. That
guaranteed rate is 7 million Btu per hour. With 36 burners, the
total guaranteed rate is 36 times 7 equals 252 million Btus per
hour. Again to simplify, the Heater’s guaranteed rate is 252.
To recap, the total maximum rate for the Heater is 302.4,
while the guaranteed rate is 252. The maximum rate of 302.4
exceeds the guaranteed rate of 252, as one might suspect.
This difference between 302.4 and 252 is important. In the
past, the Heater had a federal air pollution permit keyed to the
guaranteed rate of 252, even though Tesoro has operated the
Heater above this rate when it had to perform certain tasks.
Nothing in the record suggests Tesoro did wrong by burning over
the guaranteed rate. A car warranty may be good for 36,000
miles, for instance, but still you can drive your car further than
that. The only issue might be who pays if there is a breakdown.
The third component of the project proposed rewriting the
Heater’s permit in terms of the maximum rate of 302.4 instead of
7
the guaranteed rate of 252. This change would align the permit
with standard industry and agency practice.
In other words, the third component of the project change
would be to replace the old figure with a new figure of 302.4 in
the Heater’s federal air pollution permit.
This permit change has three important aspects.
First, this change would be on paper only: there would be
no physical changes to the Heater or to other hardware.
Second, the agency simultaneously would impose a new
permit limitation on air pollution from the Heater to maintain
levels that would be generated if the Heater never operated above
252 million Btus per hour.
Third, by raising the thermal operating limit, the Coker
either could potentially process a heavier blend of crude (heavier
crude requires more heat to break it down), or could increase
throughput through the Coker by 6,000 barrels per day. The
change could do either but not both.
This third aspect is the source of the 6,000-barrel figure,
which in turn has created an issue in this appeal.
B
We summarize the procedural history of this case.
If a governmental agency is considering approving certain
kinds of projects, the Act demands the agency first prepare a
“Draft” Environmental Impact Report. The agency must
circulate it for public comment and respond to all public
comments in a “Final” Environmental Impact Report certified by
the agency. (Guidelines, §§ 15084–15090.)
That relevant agency here is respondent South Coast Air
Quality Management District.
8
After issuing its Initial Study and Notice of Preparation in
September 2014 (which itself resulted in a 100-page report), the
agency circulated a draft report for public comment in March of
2016.
The agency then prepared a draft report of more than 1,700
pages analyzing impacts to air quality, hazards and hazardous
materials, hydrology and water quality, noise, solid and
hazardous waste, transportation and traffic, and greenhouse
gases, with supporting reports.
The Act requires an environmental impact report to be
circulated for 45 days. (Cal. Code Regs., tit. 14, § 15105.) At
Communities’ request, however, the agency extended this period
an additional 49 days, for a total review interval of 94 days.
The agency received 2,102 comments to the report.
Communities actively participated throughout the drafting
of the report. It submitted 1,112 pages of comments, to which the
agency responded.
Most comments (1,798 or 85%) supported the project. In
response to comments questioning portions of the project, the
agency clarified and supplemented parts of the report and
responded individually to each comment in Appendix G1, which
exceeds 5,700 pages.
After the public comment period closed, the agency certified
the Final Environmental Impact Report on May 12, 2017. This is
the operative environmental impact report on appeal, which on
occasion we call the Final Report or simply the Report.
The Final Report contained 6,075 pages of comments
received on the Draft Report and responses.
The agency submitted the Final Report, including the
comments on the Draft Report and the responses, to the federal
9
Environmental Protection Agency (EPA) in May of 2017. In June
of 2017, the EPA completed its review and informed the agency
that the EPA had no objection to issuing the revised Heater
permit.
On June 22, 2017, the agency certified the Final Report and
issued the necessary permits to Tesoro.
This completed a three-year process.
The Final Report is many thousands of pages. The index to
the Report is 180 pages in length.
Communities challenged the agency’s certification of the
Report by filing an action in the superior court in June 2017. The
action alleged the Report was inadequate under the Act. The
trial court carefully assessed each of Communities’ arguments
and ruled they all lacked merit. The court wrote out its ruling in
a 17-page single-spaced analysis. Communities appealed.
II
We review the governing law.
A
The fundamental statute is the California Environmental
Quality Act. Our state enacted this landmark Act in 1970. In
that same year was the first Earth Day, the passage of the
National Environmental Policy Act, and the advent of the federal
Environmental Protection Agency, now widely known as the
EPA.
The state Act aims to inform the public and government
decision makers about the potential environmental effects of
proposed activities. To facilitate this disclosure function, the Act
requires the pertinent public agency to prepare an environmental
impact report. This report must give decision makers what they
need to take appropriate account of environmental consequences.
10
The report is also a document of accountability. It must arm
those outside the approval process with an accessible and
empowering document. If people disagree with the proposed
project, the report is to help them respond accordingly. (Laurel
Heights Improvement Assn. v. Regents of Univ. of California
(1988) 47 Cal. 3d 376, 392.)
B
Many cases have construed the Act since 1970. These
parties point us to four particular decisions. Two are from the
Supreme Court; two are from courts of appeal. These four cases
are ConocoPhillips, Smart, Richmond, and Rodeo. (Communities
for a Better Environment v. South Coast Air Quality Management
Dist. (2010) 48 Cal. 4th 310 (ConocoPhillips); Neighbors for Smart
Rail v. Exposition Metro Line Construction Authority (2013) 57
Cal. 4th 439 (Smart); Communities for a Better Environment v.
City of Richmond (2010) 184 Cal. App. 4th 70 (Richmond); Rodeo,
supra, 22 Cal. App. 5th 214.)
These four precedents support the following general
statement of law.
The agency must select a baseline based on actual
conditions rather than hypothetical possibilities. There is,
however, no single fixed method for measuring actual conditions.
Measuring peak impacts can be appropriate under the right
circumstances. The agency enjoys discretion to decide how best
to measure actual conditions. Courts will review that choice for
support from substantial evidence. An environmental impact
report cannot, without explanation, present inconsistent and
contradictory information on an important issue, or else it will
fail on review.
11
We now describe in more detail these four cases:
ConocoPhillips, Smart, Richmond, and Rodeo.
1
ConocoPhillips is a 2010 Supreme Court decision. We refer
to the decision under the name of the real party in interest,
which was ConocoPhillips, rather than by the official case title,
which is Communities for a Better Environment v. South Coast
Air Quality Management District. The official case title is exactly
the same as the official case title for this case: here we have the
same plaintiff organization and the same defendant agency.
Indeed, the 2010 case even involved the same Wilmington oil
refinery (back when ConocoPhillips rather than Tesoro owned it).
These name similarities invite confusion we aim to avoid, so we
depart from customary usage with the shorthand label of
ConocoPhillips.
ConocoPhillips is the leading case about the concept of a
baseline in California environmental law.
Refinery owner ConocoPhillips planned to add, replace, and
modify equipment at the Wilmington refinery. The plan was to
increase some refinery operations to produce diesel fuel with a
lower sulfur content. (ConocoPhillips, supra, 48 Cal.4th at p.
317.)
Based on an initial analysis flawed by a poor choice of a
baseline, the agency decided no environmental impact report was
necessary for ConocoPhillips’s project. The Supreme Court
condemned the agency’s bad baseline decision.
The agency’s bad decision was to pick an illusory baseline
instead of an actual one. The project planned to increase the use
of boilers, which would add more air pollution: between 201 and
420 more pounds per day, depending on which of four boilers
12
were used. Was that a significant increase? Not compared to a
baseline defined by the total of the refinery’s existing regulatory
permits for operating this equipment, because the equipment
would continue to operate within their total existing permit
limits. (ConocoPhillips, supra, 48 Cal.4th at p. 320.)
The problem was this baseline was entirely unreal and
thus was bad. The permit maximums were strictly theoretical.
The actual reality, however, was a boiler ran at maximum only if
another boiler was down for maintenance, which was atypical.
Simultaneous and maximum operation therefore was not a
realistic description of conditions before the project, so this
baseline definition did not describe the boilers’ actual operation
before the project. (ConocoPhillips, supra, 48 Cal.4th at p. 322.)
By comparing the proposed project’s effects to what could
happen according to merely theoretical limits, rather than to
what was actually happening, the agency had picked a “‘merely
hypothetical’” baseline that was “illusory.” (ConocoPhillips,
supra, 48 Cal.4th at p. 322.)
A freeway example can illustrate this point. The
notoriously congested Interstate 405 has a speed limit of 65 miles
per hour, but, during a typical Los Angeles rush hour, the real
traffic speed is dramatically slower. For this illustration, suppose
the rush hour average is about 10 miles per hour. Suppose also
CalTrans wants to see if adding lanes to the 405 would increase
the rush hour speed. To make this comparison, CalTrans would
need a baseline. If the agency compared the speed after the lane
increase with the 65 mph permitted limit beforehand, this
baseline would be bad. It would yield unreal and illusory results,
because today it is atypical for anyone actually to drive at 65
miles per hour on the 405 during rush hour. A meaningful
13
comparison must be against actual conditions, not against some
illusory hypothetical.
Failure to use a real measure of actual baseline conditions
was the agency error in ConocoPhillips. That error violated the
Act. (ConocoPhillips, supra, 48 Cal.4th at pp. 320–322.)
ConocoPhillips showed one wrong way to set a baseline.
But what baseline is right? The ConocoPhillips opinion declined
to limit the discretion of future decision makers and declined to
rule there is only one correct method. Rather, ConocoPhillips
carefully explained why the right approach would vary in
different circumstances and was up to the agency in the first
instance.
For our case, this portion of ConocoPhillips is crucial. We
pore through it.
The Supreme Court in ConocoPhillips rejected the
suggestion an average emissions baseline was the one proper
refinery baseline. There is no “uniform, inflexible rule for
determination of the existing conditions baseline.”
(ConocoPhillips, supra, 48 Cal.4th at p. 328.) The reason is
environmental conditions can vary. Variability can make one or
another baseline measure appropriate. In some circumstances,
peak impacts may be as important environmentally as average
conditions. The agency enjoys the discretion to decide how the
existing physical conditions can most realistically be measured.
Courts will review the agency’s choice to see whether substantial
evidence supports it. (Id. at pp. 327–328.)
ConocoPhillips also ruled agencies have flexibility to decide
what time interval best captures actual baseline conditions.
There is no one rigid rule. Environmental conditions can vary
over time, so it might be better in some situations to measure
14
pre-project conditions over a time interval rather than on one
single day. (ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
We now continue on to the second of the four key
precedents: the Smart case.
2
Smart is our second Supreme Court baseline case. This
2013 opinion endorsed the baseline rules from ConocoPhillips.
Smart reaffirmed ConocoPhillips (although it did not use
the case label “ConocoPhillips,” which we have adopted for
reasons peculiar to this suit). Smart recited ConocoPhillips’s rule
that the baseline for environmental analysis ordinarily must be
the actual physical conditions rather than hypothetical
conditions. (Smart, supra, 57 Cal.4th at p. 448.)
The facts in Smart differed considerably from the facts
here. The Smart project was not about a refinery, much less this
refinery. Rather it was a proposed rail extension from Culver
City to Santa Monica: the Expo Line.
The Smart case was about using a future baseline instead
of a past one. The Los Angeles County Metropolitan
Transportation Authority was the agency in Smart, and it
analyzed the impact of the proposed extension according to how it
would affect traffic conditions in 2030. The agency projected the
traffic and air quality conditions that would exist in the year
2030, then estimated the effect the transit extension would have
at that future time. So the baseline was in the future rather than
at the time before the project began. (Smart, supra, 57 Cal.4th at
pp. 447–463.) This situation is not pertinent to this case, which
involves no future baseline.
3
15
Richmond is our third case. It held an environmental
impact report cannot speak out of both sides of its mouth.
In this 2010 decision from the Court of Appeal, Chevron
proposed upgrading a Bay Area refinery. The Richmond decision
found the environmental impact report, in describing this
refinery expansion, was internally inconsistent to a fatal degree.
(Richmond, supra, 184 Cal.App.4th at pp. 80–89.)
This inconsistency doomed the report. The inconsistency
concerned the crude oil the refinery would process. Opponents of
Chevron’s project argued heavier, lower-quality crude requires
more intensive processing and is inherently more polluting than
lighter crude, and that the environmental impact report did not
stick to a straight story about whether the project would or would
not allow Chevron to refine heavier crude.
The specific inconsistency was this. On one hand, the
report claimed the project would allow more flexibility in refining
increasingly heavier crude supplies. (Richmond, supra, 184
Cal.App.4th at p. 83.) Yet the report also denied the project
would enable the refinery to process heavier crude. (Ibid.) Given
this stark inconsistency, the Richmond decision disapproved the
report as contradictory. (Id. at pp. 80–89.)
In this case, Communities invokes Richmond in its attack
on this report. We evaluate this attack shortly. But first we
complete our case law tour by turning to our fourth guiding
precedent: Rodeo.
4
Rodeo is a 2018 Court of Appeal decision about a refinery
near another refinery: the one in the Richmond case. The same
legal issue arose in both cases. The legal holdings in Richmond
and Rodeo are consistent, but they point in opposite directions
16
due to a key factual difference: the environmental impact
statement in Richmond was bad, but the report in Rodeo was
good. We explain.
Phillips 66 owned the refinery in Rodeo. Phillips wanted to
alter its refinery to recover butane and propane from refinery fuel
gas. (Rodeo, supra, 22 Cal.App.5th at p. 218.) Objectors claimed
this project description was defective because it failed to disclose
the project would involve more processing of high-contaminant
crudes. (Id. at p. 219.) Phillips disputed this suggestion the
report masked a covert plan to change the refinery’s crude inputs,
arguing the project was designed and permitted based on the
refinery’s existing operations. The project did not require, and
was not required by, a switch in crude. (Id. at p. 220.)
The court resolved this dispute by looking at one of the
“master responses” the agency created while receiving public
comments on the environmental impact report. (Rodeo, supra, 22
Cal.App.5th at p. 220.) The court underlined the project
description had remained “consistent” over time. (Id. at p. 221.)
The court found substantial evidence to support the report’s
treatment of this topic. (Id. at pp. 221–223.)
Rodeo discussed and distinguished Richmond. The opinion
recited that the problem with the environmental impact report in
Richmond was inconsistency. By contrast, the report in Rodeo
was clear and consistent. Hence the Rodeo decision approved the
report and the project. (Rodeo, supra, 22 Cal.App.5th at pp. 223–
225.)
III
We turn to Communities’ four arguments.
A
Communities’ first challenge to the Report targets the
17
baseline the agency selected to measure the project’s impact on
air pollution.
1
What is a baseline?
Logically, a baseline is simply a measure of some situation
before it changes. There is no “true,” “normal,” or “natural”
baseline. You decide what you want to measure, and then you
select a baseline appropriate to your goal. What one wants to
measure is a policy question, as is the choice of a baseline.
To illustrate, suppose you want to determine the impact of
your next engine tune-up on your car’s mileage. Your baseline
would be your car’s gas mileage before the tune-up. You would
compare this baseline mileage to mileage after the tune-up to
determine the tune-up’s effect.
In this example and in this case, there are many possible
baselines. A mileage baseline could be simply an overall average
of all miles you drove, divided by gas consumption. But if you
wanted to calculate freeway mileage, you would divide total
freeway miles by gas consumed while driving on the freeway.
And similarly for city mileage. These illustrations show three
different baselines: a total baseline, a freeway baseline, and a
city baseline. There are many other conceivable baselines as
well, depending on the specific issue you want to investigate.
2
The particular baseline controversy in this case pits a peak
(or near-peak) baseline against an average baseline.
The agency used a peak value of a particular kind: a near-
peak or 98th percentile method. Communities argues for an
average-value baseline. Communities sometimes cloaks this
argument by omitting the word “average” and by saying merely
18
the agency should have analyzed environmental conditions
representing the entire period, but this formulation is an
equivalent proposition. That is because one definition of
“average” is to take data representing the entire period and divide
by the number of days. Another name for this is the arithmetic
mean. In short, Communities contests the agency’s selection of a
peak baseline by saying it was error not to use an average
baseline instead.
Given this dispute about peak versus average, we state four
obvious facts about these competing ways to measure quantities.
First, a “peak” value is synonymous with a “maximum”
value. “Peak” and “maximum” mean the same in this context.
Second, both peak and average data can measure actual
situations that truly exist. For instance, you could describe your
car’s “freeway” baseline as its “peak” baseline. This baseline
measures peak performance: the best mileage your car can
deliver. This peak baseline measures actual mileage, but in a
different way than for instance the city mileage method. To put
this idea in different words, a maximum measure is fully as real
as an average measure, just as measuring in yards is fully as real
as measuring in meters. Averages are not inherently more
“actual” than peaks, and vice versa.
Third, your analytical objective determines your choice of a
baseline method. There is no “true,” natural,” or “normal” way to
measure baselines because baselines did not exist in the pre-
human natural world. Humans invented these concepts and
humans determine which of the various baselines — peak or
average — will better accomplish the specific objective at hand.
Fourth, focusing on peaks rather than averages can be a
superior way to think in many situations.
19
Some examples show why people often want to know the
peak or maximum value — or the worst-case scenario, if you
want to put it another way — rather than some average value.
Hikers hoping to wade across a river want to know its
maximum depth is 10 feet. They are less interested to know its
average depth is two feet.
Planners worry about the 100-year flood — the maximum
— more than the average flood.
When designing high-rises, bridges, or nuclear power
plants, engineers are more interested in the peak earthquake
magnitude than the average.
If you are deciding how large a storm drain to install, you
want to know the maximum likely rainfall, not the average.
So the peak value, not the average, is sometimes the most
important information to get.
3
The agency used a “98th percentile” or “near-peak” baseline
in this case. Its approach was to collect factual information on
the refinery’s worst air pollution emissions during a two-year
interval before the project. The approach then excluded the top
two percent of these data to rid the analysis of extreme and
unrepresentative outliers. The agency used the remaining 98
percent of the worst-day data as its pre-project baseline, which
explains the “98th percentile” or “near-peak” labels. The agency’s
analysis culminated by comparing these actual pre-project near-
peak emissions with projected peak emissions after the project.
The agency focused on measuring peak pollution days
because it sought to measure and control the biggest health
danger. Smog peaks create the most danger to the most
vulnerable populations, such as people with respiratory illnesses
20
like asthma. Smog alerts are alerts about the peak smog days,
which have many causes that include weather, peaking emissions
from polluters like cars and industrial sites like power plants and
oil refineries, and so forth.
Smog alerts are the days of the greatest health concern.
More people suffer more health problems from smog alert days —
from peaks — than from days of average pollution levels. Data
are not necessary to grasp this commonsense notion.
It thus was rational for air pollution regulators to care most
about the worst effects of air pollution, which occur when
emissions hit their highest levels and the weather makes the
perfect storm. Southern Californians are all too familiar with
smog alerts: the air pollution peaks. Regulators quantitatively
monitor our air quality every hour and rate it on a scale of six:
hazardous; very unhealthy; unhealthy; unhealthy for sensitive
groups; moderate; and good. (See, e.g., South Coast Air Quality
Management Dist., Current Hourly Air Quality Index Map
[as of March 24, 2020],
archived at < https://perma.cc/U66U-E2RB>.)
Reducing smog alerts is the same logical goal as reducing
peak or near-peak levels of air pollution. That was what the
agency was trying to do — obviously. It was not sinister or wrong
to focus on reducing smog alerts and protecting public health.
4
The agency’s 98th percentile analysis determined the
project would have the beneficial effect of reducing air pollution.
We recount this analysis from the Report in some detail.
Recall the Report proposed the Heater’s thermal operating
limits would be increased from its pre-project permit description
21
of 252 million Btus per hour to 302.4 million Btus per hour. This
change would allow Tesoro to operate the Heater to generate
more heat.
This heat increase could theoretically allow the refinery
either to increase the throughput of the Coker by 6,000 barrels of
crude oil per day, or allow the Coker to process a slightly heavier
crude blend — but not both. This does not mean the refinery as a
whole could process heavier crude or more crude — just the
Coker.
The change to the Heater’s thermal operating limits is just
one of many combustion sources this overall project would
modify. Table 4.2-7 of the Report lists 11 combustion sources,
only one of which is associated with the Heater. Recall the
project would shut down the Wilmington Fluid Catalytic
Cracking Unit — a major source of emissions. That unit alone is
composed of six associated combustion sources.
Before the project, all combustion sources slated to be
modified released a total of 1310.4 million Btus per hour. The
Wilmington Cracking Unit alone accounted for 687 million Btus
per hour of that total. Compare that increase against the
potential firing rate of the Heater, which is merely 50.4 million
Btus per hour. The firing rate of another process unit at
Wilmington, its Hydrocracking Unit, will be increased from 71.1
million Btus per hour to 96.1 to absorb part of the duties
previously performed by the Fluid Catalytic Cracking Unit.
So this project would reduce air pollution, according to the
environmental impact report. Table 4.2-7 in the Report shows
the pre-project total emissions rate of applicable emissions
sources of 1,310.4 million Btus per hour will be reduced to 831.5,
22
representing a net decrease of over 36 percent from the pre-
project setting.
The agency was deliberately and self-consciously
conservative in its analysis of the Heater’s heat increase. The
agency and the Report assumed that, before the project, the
Heater never operated above 252 million Btus per hour when, in
fact, it had indeed operated above that limit in the past. In sum,
the agency bent over backwards in favor of environmental
protection.
It is important to appreciate what the Heater’s modified
federal air pollution permit actually says. Before the project,
there were no enforced limits on the Heater’s firing rate. After
the project, the Heater will be subject to enforceable emissions
limits. And those limits will assume the Heater will fire at the
lower 252 million Btus per hour rate. This means that,
regardless of the projected increase in throughput or weight of
the crude blend in the Coker, there can be no increase in
emissions from the Heater.
5
We state the standard of review.
The standard of review is deferential. We defer to the
agency’s baseline decision if substantial evidence supports it.
The Act imposes no uniform and inflexible rule for determining
how the agency is to define the baseline an agency must use.
Instead, the law leaves the choice of the exact baseline method to
the agency’s sound discretion. (Smart, supra, 57 Cal.4th at pp.
452–453.)
This deferential approach aligns with the rule that an
agency’s decision to use one particular method and to reject
another is amenable to substantial evidence review. (Sierra Club
23
v. County of Fresno (2018) 6 Cal. 5th 502, 514 (Sierra Club).)
6
Substantial evidence supports the agency’s baseline choice.
The agency selected the 98th percentile baseline to follow the
practice of the federal EPA, which uses the 98th percentile
baseline approach to regulate air pollution at the national level.
(See U.S. EPA, National Ambient Air Quality Standards Table
[as of
March 24, 2020], archived at .)
The agency also selected this baseline because petroleum demand
fluctuates on a daily basis.
Communities agrees federal regulators indeed do use the
98th percentile baseline. But Communities would dismiss this
fact with four erroneous arguments. We take up these four
arguments in turn.
a
First, Communities makes the incorrect argument the
federal regulatory purpose differs from the California state
regulatory purpose. This is mistaken because the federal and
state goals are identical: to protect public health and welfare.
We carefully recite Communities’ argument here to
pinpoint its error.
In the first sentence in the first paragraph of page 28 of its
opening brief, Communities recites that Congress required the
EPA to promulgate air quality standards to protect the public
health and welfare. Communities tells us that, “[g]iven that
purpose, EPA’s air quality standards are based on measurements
of pollutants during peak pollution days, when people will be
exposed to the highest levels of pollution such as the 98th
percentile.” So far, so good.
24
But in the next paragraph on that page the argument goes
awry. There Communities claims the California Environmental
Quality Act has a purpose different than protecting public health
and welfare: “In contrast to the protective purpose of the federal
air quality standards, the [California Environmental Quality Act]
baseline is meant to establish pre-project conditions to compare
with post-project operations.” (Italics added.)
This argument by Communities is incorrect. The statutory
point of comparing pre-project and post-project conditions is to
provide a yardstick to those outside the administrative process to
measure a project’s environmental impact. A key reason we do
that is to protect public health and welfare. Protecting public
health and welfare is an overarching goal of California’s Act.
(E.g., Sierra Club, supra, 6 Cal.5th at pp. 519–520 [faulting an
environmental impact statement for a merely cursory discussion
of pollution’s health effects; citing authorities requiring
environmental reviews to discuss health problems from
pollution].)
Communities’ claim that federal and state pollution
regulations have clashing goals is surprising, unsupported, and
wrong. The same goes for its suggestion that the Act is
unconcerned with public health and welfare.
This attempted attack on the federal precedent for the 98th
percentile baseline founders. Federal and state pollution
regulators share the common goals of protecting public health
and welfare.
b
Second, Communities incorrectly claims the 98th percentile
standard “ignores existing environmental conditions.” Yet
Communities concedes the 98th percentile standard measured
25
the air pollution that actually existed on the 15 worst days in the
730-day review period. Those 15 days were quite actual — all too
actual for people with respiratory diseases like asthma who are
at much greater risk when Los Angeles air pollution hits
dangerous peaks. This is why EPA has focused on 98th
percentile emissions for emissions like particulate matter since
1997. (See U.S. EPA, Region 1: New England, “What are the Air
Quality Standards for PM?”
[as of March 24, 2020], archived at [“The 24-hour standard was set at 65 μg/m3 based on the
3-year average of the annual 98th percentile concentrations.”]
[Italics added].)
Reducing peak pollution means less human suffering:
fewer airway constrictions, less gasping for air, fewer hospital
trips. There is nothing hypothetical or illusory about that.
Comparing pre- and post-project (near) worst days is a
sensible and time-tested way to inform the public about potential
health consequences because those are the days that matter most
to human health. (See U.S. EPA, “Rules and Regulations that
Impact Children’s Health” [as of March 24, 2020],
archived at [as recently as April
6, 2018, EPA reaffirmed it would continue to use the 98th
percentile to regulate nitrogen dioxide air emissions to protect
children’s health].)
In short, Communities’ argument that the near peak
criterion was an inaccurate description of existing pre-project
conditions as a matter of law is mistaken.
c
26
Third, Communities argues that whether the EPA uses a
percentile approach is immaterial to what the agency should
have done under California law.
This is inaccurate. The practice of the federal EPA is
tremendously material because the EPA is a free and helpful
resource on air pollution. It made good sense for California
regulators to piggyback on a federal effort with similar goals, a
bigger budget, a cadre of scientists, and nationwide experience.
Once the federal government develops air pollution science and
information, that information is free for the taking. California
does not have to buy a license to use it. And Californian
taxpayers, of course, help support the federal EPA. So this
federal effort has created a valuable resource available at no
marginal cost that has been highly material to California air
regulators, and to many others as well.
The availability of free informed help is rarely immaterial.
You can ignore it if you want to, but it is not clear why you would
want to. The law does not require ignorance.
California remains at liberty, of course, to go its own way
on air pollution control. California often does, and does so
proudly and with a sense of leadership. But that is different than
saying California regulators, as a mandatory matter, must ignore
everything the federal agency has ever done. That position would
be illogical.
We already have seen the federal EPA has similar goals in
regulating air pollution as does California. A central goal for the
state and the nation is protecting public health and welfare.
The federal agency has more resources than does the state
agency. This point is plain but we supply some points of
reference to lend a sense of magnitude.
27
The EPA’s national budget exceeds California’s
environmental protection budget by billions of dollars. (Compare
U.S. EPA, FY 2021 Budget
[as of March 24, 2020],
archived at < https://perma.cc/728B-A4J3> [“The proposed FY
2021 budget for the EPA provides $6.658 billion to support the
Agency’s FY 2018 – FY 2022 Strategic Plan and mission of
protecting human health and the environment.”] with
California’s 2020-21 Governor’s Budget
[as of
March 24, 2020], archived at < https://perma.cc/BW3T-5SYE>
[$3.944 million for environmental protection].) And the budget
for the South Coast Air Quality Management District is, of
course, but a tiny fraction of the money available to the federal
EPA. (See South Coast Air Quality Management District, 2018
Annual Report, p. 17 [as of
March 24, 2020], archived at [FY
2018-2019 budget was $162.6 million, which is less than 3% of
the EPA’s proposed $6.658 billion FY 2021 budget].)
Because the EPA’s parallel and substantial efforts are of
legitimate interest to California pollution regulators, we turn to
what the EPA has to offer Californians with curiosity about the
topic.
The EPA explains air pollution basics to the public. The
EPA’s extensive website offers a primer.
The website explains the federal Clean Air Act requires the
EPA to set regulatory standards for six of the most significant air
pollutants, including particulate matter and nitrogen dioxide.
“These pollutants are found all over the U.S. They can harm
28
your health . . . .” (U.S. EPA, Criteria Air Pollutants
[as of March
24, 2020], archived at .)
The EPA’s sizable budget and decades of experience have
allowed it to collect and to summarize the vast scientific research
backing up its work on air pollution. The federal agency makes
this storehouse of information available online. (See, e.g., U.S.
EPA, Nitrogen Dioxide (NO2) Primary Air Quality Standards
[as of March 24, 2020], archived at
[listing and linking to planning
documents, integrated science assessments, policy assessments,
and other resources pertaining, for instance, to nitrogen dioxide
pollution].)
The EPA explains the dangers of air pollutants, including
particulates and nitrogen dioxide. Breathing air with a high
concentration of nitrogen dioxide, for instance, can irritate
airways in the human respiratory system. Exposure over a short
period can aggravate respiratory diseases, particularly asthma,
leading to respiratory symptoms like coughing, wheezing, or
difficulty breathing. It can also lead to hospital admissions and
visits to the emergency room. (U.S. EPA, Basic Information
about NO2: Effects of NO2 [as of March 24,
2020], archived at .)
The EPA website explains the agency “has developed
ambient air quality trends for nitrogen dioxide (NO2). Under the
Clean Air Act, EPA sets and reviews national air quality
standards for NO2. Air quality monitors measure concentrations
of NO2 throughout the country. EPA, state, tribal and local
29
agencies use that data to ensure that NO2 in the air is at levels
that protect public health and the environment. Nationally,
average NO2 concentrations have decreased substantially over
the years.” (U.S. EPA, Nitrogen Dioxide Trends
[as of
March 24, 2020], archived at .)
As science has progressed since 1971, the EPA’s standards
for air pollution, including nitrogen dioxide, have evolved. (E.g.,
U.S. EPA, Table of Historical Nitrogen Dioxide National Ambient
Air Quality Standards (NAAQS) [as of March 24, 2020], archived at
[presenting evolution of national
nitrogen dioxide emissions from 1971 through the present].)
The EPA uses the 98th percentile standard, in several
ways.
First, the EPA uses the 98th percentile standard when
reporting nitrogen dioxide air quality. For example, the EPA
charts trends in nitrogen dioxide air quality, nationally and
regionally, over various time intervals, such as from 1980 to
2018. These tables report a single value: the “Annual 98th
Percentile” of daily one-hour average observations. (See, e.g.,
U.S. EPA, Nitrogen Dioxide Trends, supra.)
The EPA also uses the 98th percentile standard when
regulating air pollution. In 2010, the EPA defined one nitrogen
dioxide standard as “The form of the 1-hour standard is the 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum NO2 concentrations.” (U.S. EPA, Table of
Historical Nitrogen Dioxide National Ambient Air Quality
Standards (NAAQS), supra, at fn. 4.)
30
California’s Air Resources Board, which is separate from
respondent South Coast Air Quality Management District,
follows this federal regulatory convention of using the 98th
percentile standard. (California Air Resources Board, Ambient
Air Quality Standards (May 4, 2016) fn. 10
[as of March 24, 2020], archived at [“To attain the 1-hour national standard (for nitrogen
dioxide), the 3-year average of the annual 98th percentile of the 1-
hour daily maximum concentrations at each site must not exceed
100 ppb.”] [Italics added].)
This federal reliance on the 98th percentile standard was
not “immaterial” to California regulators. It was rational for the
South Coast Air Quality Management District to tap this free,
substantial, and conventional resource.
d
Finally, during oral argument, Communities suggested the
“normal” baseline is to use an average statistic and not a peak or
near-peak analysis. The Supreme Court case law is to the
contrary. (ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
The suggestion that “average” is “normal” also ignores the
diversity within the concept of “average” itself. There are three
different definitions of average: mean, median, and mode. Which
is “normal”? None is. “[T]he choice among the three measures
depends on the purpose for which the data are selected as well as
on the nature of the data gathered.” (Zuwaylif, General Applied
Statistics (1970) p. 19.)
7
We uphold the agency’s decision to use the near-peak
baseline. This baseline decision was for the agency in the first
31
instance. The federal use of the same 98th percentile baseline
method is substantial evidence validating the agency’s approach.
(See ConocoPhillips, supra, 48 Cal.4th at pp. 327–328.)
B
We turn to Communities’ second attack on the Report,
which was the agency did not obtain information about the pre-
project composition of the crude oil the refinery processes, but
instead merely found the crude oil input would remain within the
refinery’s “operating envelope.”
This second argument fails because there was no need for
the Report to detail input crude oil composition. That
information was not material to assessing the project’s
environmental impact.
The Report explained that processing heavier crude or
increasing throughput through the Coker can increase air
emissions by causing the refinery’s burners to consume more fuel.
We quote the pertinent disclosure in full:
“The application to revise the permit description of [the
Heater] was submitted in early 2014, independent of the
proposed project. As a result, this component of the proposed
project was not described in the [Notice of Plan / Intent to Study].
“But upon further review, it was concluded that this
description change had the potential to create adverse
environmental impacts, because, for example, it could enable a
slight increase in crude oil throughput to the Refinery of up to
two percent (or up to 6,000 bbl/day). While the Refinery could opt
to process either a small increase in crude oil throughput or
slightly heavier crude oil blend, the processing of additional crude
oil would result in greater environmental impacts downstream of
the [Coker], as described in Section 4.1.2.1. Therefore, for
32
purposes of analyzing the worst-case impacts, this document
assesses an increase in crude oil throughput capacity. The
increased heat release from the H-100 heater and/or increased
crude oil throughput is anticipated to occur once the modified
permit is issued. Including the permit revision as part of the
proposed project ensures that all possible impacts from the
modification of the Refinery are fully analyzed.”
Communities’ complaint derives from this official response
to comments inquiring about whether the crude oil composition
would change:
“Due to the fixed crude oil operating envelope that will
exist before and after the proposed project, baseline data
regarding the particular crude oils combined to meet that blend
with the required properties was not necessary to conduct the
impact analysis in the [Draft Environmental Impact Report].”
As a result, “baseline crude oil data was not relied on or
provided to the [agency], and need not be provided.”
Communities concludes the agency’s failure to obtain and
analyze such baseline crude composition data means “there is no
way for [the agency] to assess whether crude oil properties would
change significantly and therefore cause significant
environmental effects.” The agency’s reliance upon “the crude oil
operating envelope” was inadequate as a matter of law because it
did not explain why crude oil composition could not change after
the project.
We hold reliance upon the “crude oil operating envelope”
was appropriate. We explain why.
Only a specific range of crude blends can be processed by
the refinery. Acceptable crude oil blends must fall within
specified ranges of weight and sulfur content known as
33
“operating envelopes.” The Carson and Wilmington operations
each have their own operating envelopes. Individual process
units, such as the Coker, also have their own distinct operating
envelopes.
A brief explanation of where the Coker sits within the oil
refinery process stream is now necessary.
The refinery processes many types of crude from all over
the world, but it cannot automatically process any individual
tanker-load of crude oil. This is because the refinery must blend
incoming crude into an acceptable mixture of hydrocarbon weight
and sulfur content. For example, if incoming crude has too much
sulfur for the plant to tolerate, it must be blended with other
crude containing less sulfur. The refinery can tolerate a range of
weight plus sulfur content, and this range is the refinery’s
“operating envelope.” The refinery as it has existed in the past
and will exist after the project cannot process crude outside its
operating envelope.
Petroleum refining is a chemical industrial process where
many specialized units cooperate to transform crude oil into
products like gasoline, diesel, and jet fuel. These “process units”
are assigned certain tasks. Each process unit chemically
transforms hydrocarbons in a specific way. Some units use heat,
pressure, and chemical catalysts to break large hydrocarbon
molecules down. This is called “cracking.” Other process units do
the reverse of cracking: they combine smaller hydrocarbon
molecules into larger ones. Still other units can rearrange the
chemical structure of the hydrocarbons by “reforming.” By
sending material through these units, and sometimes turning
that material around to run it through a previous unit, the
34
refinery can produce chemically pure petroleum products with
specific properties.
The next step after blending the crude into a weight and
sulfur content range within the operating envelope is the
distillation process. That takes place in the Crude Units.
The Crude Units are the “front end” of the refining process.
As the Crude Unit heats the crude, the lightest hydrocarbon
molecules boil off first, traveling to the top of the tank. These are
petroleum gases like butane and propane and they are the
lightest “fraction.” Heavier hydrocarbons take more energy to
become gaseous. So the next fraction, comprised of gasoline, boils
off second, but settles below the petroleum gas in the crude unit
tower because it is a liquid at higher temperatures than the
petroleum gas. The third fraction is “distillate” material,
including diesel and jet fuel, which settles below the gasoline
fraction. Finally, the fourth and heaviest fraction is residual oil.
These four layers are called “fractions” because together
they constitute 100 percent of the material in the crude unit
tower.
The process unit at the heart of this appeal, the Coker,
deals with the heaviest fraction that the Crude Unit was not able
to break into precursors for petroleum products the first time.
The Coker heats and breaks apart the heaviest fraction left over
from the distillation process (as well as internally recycled oil
that is also low quality) and then sends those layers
“downstream” into additional process units for further refining.
Cokers ideally recover all valuable hydrocarbon compounds left
in the residue of the crude unit, leaving behind a heavy substance
called coke.
35
We can now understand the agency’s response to
Communities’ complaint during the administrative review
process. The agency explained the complaint rested on a false
premise:
“The claims that the crude oil blend would change do not
take into account the fact that the proposed project does not
include changes to the Refinery Crude Units or the units
immediately downstream of the Crude Units that would need to
be modified in order to process a significantly different crude oil
blend.”
In other words, the Coker is sandwiched between the front
end Crude Unit and downstream process units.
The agency’s briefing extensively explains why this means
crude oil composition cannot change. For instance, in order to
process lighter crude, the refinery would have to increase the
height of the crude unit towers to make room for the greater
proportion of recoverable short hydrocarbons. To process heavier
crude, the refinery would have to build larger coke drums for the
coking units since it would have to break apart a greater
proportion of long hydrocarbons. To process crudes with higher
sulfur content, it would be necessary to modify the sulfur plant.
And so on.
Because the report disclosed the project would make no
such changes, more information about crude oil composition was
immaterial. Physical constraints boxed in the crude operating
envelope. The project would not change that.
Communities nowhere contests these technical points.
Communities merely insists “it was incumbent on [the agency] to
analyze the information that would support the conclusion that
the changed blend would not matter.” We agree the agency had
36
to analyze whether crude oil composition would change. It did —
extensively.
Communities erroneously relies upon Richmond. That case
does not aid Communities. Richmond held a report for a refinery
modification project inadequately explained whether the project
would allow the refinery to process a heavier blend of crude oil.
(Richmond, supra, 184 Cal.App.4th at p. 83.) The project’s stated
purpose was to “‘improve the Refinery’s ability to process a more
varied proportional mix of crude oil types than it currently
processes, including crude oil with higher sulfur content.’” (Id. at
p. 80.) Unlike here, the project also involved major modifications
to process equipment. (Id. at p. 77.) The report did not consider
impacts that could result from processing a heavier blend of
crude oil because, according to the report, “a change to a
substantially heavier crude slate . . . would not be a reasonably
foreseeable consequence of the Proposed Project.” (Id. at pp. 81–
82.)
The major problem in the Richmond case was facial
inconsistency. The environmental impact report there kept
changing its story about the project’s effect on crude quality.
On the one hand, the report explained the project “does not
include any process and equipment changes that would facilitate
the processing of heavy crudes.” (Richmond, supra, 184
Cal.App.4th. at p. 85.)
On the other hand, the report stated:
“‘The supply of crude oil to California refineries has
changed substantially during the last 10 years, with light to
intermediate crudes becoming less available . . . . It is within the
context of these changes in crude oil supply that the Renewal
37
Project is proposed.’” (Richmond, supra, 184 Cal.App.4th. at p.
83.)
The court found the project description provided by the
report was inadequate because it was unclear and inconsistent as
to whether the project was designed to, or even would, allow the
processing of heavier crude oils. (Richmond, supra, 184
Cal.App.4th at pp. 80–89.) This meant that, if the project in fact
allowed the processing of heavier crudes, the project would have
environmental impacts the report did not identify. That was a
big problem.
There is no problem here. The way in which Richmond is
distinguishable from this case is what makes the Report here
commendable: it is thorough and consistent.
This Report gives a stable and logical explanation of why
the Coker will not in fact process a heavier slate of crude
following the project: the Coker is constrained by upstream and
downstream equipment that would require physical modification,
and that physical modification will not occur.
A court has previously distinguished Richmond for this
exact reason. Rodeo, supra, 22 Cal. App. 5th 214, also involved a
refinery modification project. The petitioners in Rodeo argued
the report failed to disclose an “alleged switch to heavier crude oil
feedstocks” and cited Richmond in support. (Id. at p. 220.)
Rodeo distinguished Richmond because the report
unequivocally stated the project would not affect “‘the types
and/or quantities of crude oil feedstocks that can be processed at
the refinery.’” (Rodeo, supra, 22 Cal.App.5th at p. 222.)
Communities asks us to second-guess the agency about how
this refinery works. But the report provides substantial evidence
38
for its analysis. That suffices. Communities’ second critique is
unsuccessful.
C
Communities has forfeited its third argument, which
concerns the “6,000 barrels” sum.
Recall from our factual summary above that the project’s
modifications to the Heater’s air permit could increase the
throughput of just one process unit—the Coker: more heat
implies the possibility of processing more oil.
To put this same point in other words, we quote a portion of
the report called Master Response 6:
“The 6,000 bbl/day additional feed to the [Coker] will not
result in any additional finished fuel production beyond the peak
baseline day because the additional feed will partially ‘make up’
lost production capacity associated with shutdown of the
Wilmington Operations [Fluid Catalytic Cracking Unit].”
We now summarize the thrust of Communities’ 6,000-
barrels complaint.
Communities claims that, without knowing exactly how the
agency calculated this 6,000-barrels figure, the Act’s
informational purpose is undermined because those who did not
engage in the administrative process could not understand and
critique this calculation.
Communities forfeited its 6,000-barrels argument. The law
requires objectors to raise their exact issue before the agency, on
pain of forfeiture. Communities did not meet this requirement.
The exact issue rule springs from the statute. Section
21177 bars litigants from raising factual or legal issues that were
not presented to the agency during the administrative process. (§
21177, subd. (a).) Section 21177 specifically requires “the alleged
39
grounds for noncompliance” be “presented . . . during the public
comment period provided by this division or before the close of
the public hearing on the project.” (§ 21177, subd. (a).)
The rationale for this rule is fairness and efficiency. The
agency is entitled to learn the contentions of interested parties
before litigation is instituted so it can gain the opportunity to act
and to render litigation unnecessary. (Sierra Club v. City of
Orange (2008) 163 Cal. App. 4th 523, 535.) To advance these
purposes, an objector must present the “‘exact issue’” to the
administrative agency. (Mani Brothers Real Estate Group v. City
of Los Angeles (2007) 153 Cal. App. 4th 1385, 1394.)
The agency correctly observes that, among the 1,716 pages
of comments submitted by Communities and another firm,
Adams Broadwell, there is no claim equivalent to this current
one: that the Report was inadequate because it did not detail the
calculation behind the 6,000-barrels number.
Communities points to one comment in the record that
purportedly raises the issue: comment G1-78.208. We quote this
comment:
“The [draft report] also reports a pre-Project capacity of
363,000 bbl/day and indicates the Project would increase the
throughput by 6,000 bbl/day by eliminating feed heater duty at
the Wilmington Crude Unit and Coker, which would increase the
crude capacity to 369,000 bbl/day.
“However, this is inconsistent with information reported by
Tesoro to the U.S. Securities and Exchange Corporation (SEC) in
its most recent Form 10-K, where Tesoro reported that the crude
oil capacity of its Los Angeles Refinery is 380,000 bbl/day and its
2015 throughput was 369,000 bbl/day. Similarly, Tesoro’s
website reports the refining capacity as 380,000 bbl/day.”
40
Nowhere in this comment does Communities complain the
Report should have disclosed how the agency calculated the
6,000-barrels figure.
Communities’ reply brief does not squarely respond to the
respondents’ forfeiture argument. Rather, the reply emphasizes
the following quote from this comment: “the [draft report] does
not contain any of the information required to evaluate
throughput claims.” The reply then appears to concede the
argument by stating: “But Dr. Fox broadly asked for ‘information
required to evaluate throughput claims’ and specifically asked for
‘baseline throughputs’ and ‘modified processing unit
throughputs.’” (Italics added.) Communities makes another
concession in the next sentence: “Those requests encompass
[Communities’] point in this appeal that the starting point for
calculating the 6,000 barrels per day increase was undefined.”
(Italics added.)
Making “broad” requests that “encompass” an issue raised
on appeal is not raising the “exact issue” during the
administrative process.
The point of Communities’ comment G1-78.208 appears to
be to draw attention to a discrepancy between the Report’s pre-
Project capacity figure of 363,000 barrels per day and its Form
10-K in which Tesoro reported a capacity of 380,000 barrels per
day.
Communities never asked the agency to reveal its
calculation of the 6,000-barrels figure. The issue is forfeited on
appeal.
D
Communities’ fourth complaint is that the Report did not
disclose two numbers: (1) the existing volume of crude oil the
41
refinery processes as a whole, and (2) the refinery’s unused
capacity. This complaint is invalid because these two numbers
are not material to the Report’s goal of evaluating the project’s
air pollution impact.
We review an agency’s decision about including information
under an abuse of discretion standard. (Rodeo, supra, 22
Cal.App.5th at p. 231.)
We examine these two arguments — throughput and
unused capacity — in that order.
1
Communities presents its throughput argument as follows.
It claims the agency should have disclosed the total volume of
crude moving through the refinery to “permit a cross-check” on
the Report’s calculations. Communities acknowledges the Report
does state any throughput increase beyond 6,000 barrels per day
is impossible due to physical constraints, but claims the Report
contains too little data to “verify” that conclusion. Communities
also expresses concern the Report does not provide enough
information to assure it that the actual post-project increase in
capacity will not exceed 6,000 barrels per day.
This argument fails because the Report adequately
explains why the project will not increase the refinery’s overall
throughput. As the Report phrases it, at oil refineries “the
limitation on how much crude oil can be processed lies within the
refining equipment itself.” We have reviewed this point above.
As further illustrations, pump and piping capacity limitations
constrain the Carson operation’s crude rate. To increase the
crude oil processing rate would require bigger pipes and stronger
pumps. The Project does not involve and would not make these
changes.
42
The project’s modifications to the Heater’s air permit,
however, could increase the throughput of just one process unit
— the Coker. The project will have no effect on overall refinery
throughput because the project will not physically modify
upstream or downstream process units, as we have already
reviewed.
The assumed 6,000-barrels-per-day increase through the
Coker will be offset by a 10,000-barrels-per-day decrease of
vacuum gas oil that the refinery previously used as feedstock for
the Wilmington Cracking Unit. This is why the Report concluded
that the project will decrease overall refinery throughput.
The Report’s presentation thus demonstrates the first
number that Communities seeks — total pre-project throughput
— is immaterial to its environmental assessment.
No law requires a report to include unnecessary data.
Further cross-checks or verifications are not needed if, as is true
here, substantial evidence supports the agency’s analysis.
2
Now we tackle Communities’ argument about unused
capacity, which is but a variant of Communities’ preceding
argument.
Communities faults the Report for failing to describe what
Communities calls the refinery’s “unused capacity.”
Communities develops this concept by noting the Report gives
peak and average production figures for coker units within the
refinery. Communities subtracts the average from the peak,
notes the sum is positive, and concludes this demonstration
proves the refinery had “unused capacity” in the past.
Communities faults the Report for failing to state the total value
of this unused capacity. But there was no need for the Report to
43
include these data when substantial evidence already supported
the Report’s analysis, as was the case here.
DISPOSITION
The judgment is affirmed. Costs are awarded to Tesoro
and South Coast Air Quality Management District.
WILEY, J.
I concur:
BIGELOW, P. J.
44
STRATTON, J., Dissenting in part.
I do not agree that substantial evidence supports the
agency’s use of the 98 percentile “near peak” data as the baseline
to measure the environmental impact of changes to Heater
H-100’s Title V air permit. The majority holds that federal use of
a 98 percentile baseline is substantial evidence that validates the
agency’s use of the 98 percentile here. Federal custom and
practice appears to be the only substantial evidence found by the
majority to support the use of the 98 percentile near-peak
emission data here.
Applicable factual underpinnings in the record and
applicable California caselaw belie the correctness of using the
98 percentile as the baseline. First, section 15125, subdivision (a)
of the CEQA Guidelines provides: “An EIR must include a
description of the physical environmental conditions in the
vicinity of the project. This environmental setting will normally
constitute the baseline physical conditions by which a lead
agency determines whether an impact is significant.” (Cal. Code
Regs., tit. 14, § 15125, subd (a).) As our Supreme Court has
pointed out, a “long line of Court of Appeal decisions holds, in
similar terms, that the impacts of a proposed project are
ordinarily to be compared to the actual environmental conditions
existing at the time of CEQA analysis, rather than to allowable
conditions defined by a plan or regulatory framework.”
(Communities for a Better Environment v. South Coast Air
Quality Management Dist. (2010) 48 Cal. 4th 310, 321
(Communities).) In Communities, the agency used the maximum
operational levels of the subject boilers as a baseline. The agency
did so, even though it “acknowledged that in ordinary operation
1
any given boiler ran at the maximum allowed capacity only when
one or more of the other boilers was shut down for maintenance;
operation of the boilers simultaneously at their collective
maximum was not the norm.” (Id. at p. 322.) This was error.
Although running all the boilers at the maximum allowed
capacity could occur even if the proposed project did not
commence, running all the boilers at maximum capacity did not
reflect “ ‘established levels of a particular use.’ ” Instead, the
incorrect baseline reflected “ ‘merely hypothetical conditions
allowable’ ” under the permits. (Ibid.)
Similarly, in Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority (2013) 57 Cal. 4th 439 (Neighbors),
our Supreme Court reaffirmed that the fundamental goal of an
EIR is to inform decision makers and the public of any significant
adverse effects a project is likely to have on the physical
environment. To make such an assessment, an EIR must
“delineate environmental conditions prevailing absent the
project, defining a baseline against which predicted effects can be
described and quantified.” (Id. at p. 447.) In Neighbors, the
agency’s baseline consisted solely of conditions projected to exist
absent the project at a date in the distant future, instead of an
analysis of the project’s significant impacts on measured
conditions existing at the time the environmental analysis was
performed. Our Court held that existing conditions is the normal
baseline under CEQA, but factual circumstances can justify an
agency departing from that norm when necessary to prevent
misinforming or misleading the public and decision makers.
(Id. at p. 448.) The Court reiterated its holding in Communities
that an agency’s discretionary decision on “ ‘exactly how the
existing physical conditions without the project can most
2
realistically be measured’ ” is reviewed for substantial evidence
supporting the measurement method. (Id. at p. 449.) It pointed
out that agencies do not enjoy discretion under CEQA and CEQA
guidelines to omit all analysis of the project’s impacts on existing
conditions. However, projected future conditions may be used as
the sole baseline for impacts analysis if their use in place of
measured existing conditions is justified by unusual aspect of the
project or the surrounding conditions. (Id. at p. 451.)
Here, the record reflects (and the majority finds) no
unusual aspects of the project or surrounding conditions to justify
ignoring existing environmental conditions. The evidence is
undisputed that the 98 percentile “near-peak” emissions occurred
on only 15 out of the 730 days in the review period. By using
pollution measured only on the 15 worst days, the agency has not
set a realistic baseline of existing conditions so that the public
and decision makers can project the most accurate picture
practically possible of the project’s likely impacts. Instead, by
using the 15 worst days as the baseline, the project’s potential
future negative environmental impact is, at worst, diluted and
reduced, and is, at best, inaccurate.
I would find this use of the 98 percentile “near-peak” data
violates California law. The agency should have analyzed
environmental conditions representing the entire period, or
explained in the EIR why this was not possible, realistic, or
informative. Whether the EPA uses a percentile approach is
immaterial to what the agency should have done under California
law.
STRATTON, J.
3
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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/3977060/
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Appellant filed statutory pleadings in an action of trespass to try title against Frank E. Clark, C. E. Craig, C. E. Redlund, and the First State Bank of Lyford, to recover 200 acres of land in Willacy county. After setting up the action of trespass to try title appellant alleged that on November 1, 1925, he had entered into a contract of purchase of the land with Frank E. Clark, the consideration being $9,000, of which $3,000 was to be paid in cash and the assumption by appellant of $6,000 due the Royal Life Insurance Company of Des Moines, Iowa, for which a lien was held on the land; that Clark had executed a deed to appellant and placed the same in escrow with the bank to be delivered when the $3,000 was paid; that appellant had paid the $3,000, but said bank refused to deliver said deed and retained the money paid it by appellant. He also alleged that Clark was acting with said bank in its refusal to deliver the deed or money and that Craig and Redlund were setting up claims to an interest in the land.
The petition not only set up a good action of trespass to try title, but for his deed and specific performance of the contract, and the court erred in sustaining the general demurrer. The latter part of the petition did not in any manner conflict with the action of trespass to try title, but was consistent with it, as it merely set out the grounds upon which appellant claimed title to the land. The only penalty attached to specially pleading title is that the proof will be confined to the title pleaded. The petition was not open to attack through a general demurrer, but set up a good cause of action. McCurry v. McCurry (Tex.Civ.App.)95 S.W. 35; Glenn v. Rhine, 53 Tex. Civ. App. 291, 115 S.W. 91; American Cement Co. v. Acm? Cement Co. (Tex.Civ.App.) 181 S.W. 257; Evans v. Hudson (Tex.Civ.App.) 216 S.W. 491.
The judgment is reversed and the cause remanded.
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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/3431070/
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At about 4:30 o'clock in the afternoon on the 13th day of May, 1938, Robert H. Brooks, a lad of about 16 years of age, was riding his bicycle easterly on Third avenue in Cedar Rapids, Iowa. A pickup truck owned by Conrad R. Paulson, who was doing business as the Paulson Electric Construction Company, was parked along this street. It is alleged that as the boy rode his bicycle to the rear of the Paulson truck, without any warning, it was backed into the street in such a manner as to hit Robert H. Brooks. He was seriously injured.
The father of this lad, Homer H. Brooks, commenced an action at law known as No. 50580 against Conrad R. Paulson for the sum of $981.06 for money which he had expended for medical service and hospital care, in the treatment of his son.
There was also commenced at law, a separate action entitled "Robert H. Brooks, by his next friend, Mrs. Nellie M. Brooks v. Conrad R. Paulson" seeking damages in the amount of $6,000 for personal injuries to the boy. This action is known as No. 50581. Nellie M. Brooks is the mother of Robert H. Brooks.
Motions were filed attacking the pleadings, and after they were ruled on, Paulson filed his answer to cause No. 50580, and this case was assigned for trial. In case No. 50581 the answer was apparently not filed at the time the assignment was made, and it was not assigned for trial. The answer was filed later. However, trial notices had been filed in both actions.
On the day cause No. 50580 was reached for trial, attorneys representing both parties were present in court. The attorneys for both the plaintiffs and the defendant in both causes were the same. Plaintiffs' attorneys dictated into the record in open court a motion to consolidate said two causes for trial, setting forth that the attorneys for plaintiffs and defendant in both *Page 1361
causes were the same. That the two causes of action grow out of the same accident. That the only additional evidence that would be introduced in cause No. 50580 would be the evidence as to the expense incurred in the treatment of the injuries claimed to have been suffered by Robert H. Brooks in cause No. 50581. That the allegations in each of the cases, with the exception of the allegation in No. 50580 as to the cost for medical treatment are substantially the same. That it would save time and expense. The defendant in both causes, by his attorney objected to the consolidation of the two causes. First, that no written motion, as required by the Code, had been served upon the defendant. That the defendant was not present in court, that cause No. 50581 was not assigned for trial for this week. That the two causes of action are different, the relief sought is different, that the evidence would be different, and the adjudication in the one case would not be an adjudication in the other case. That the defendant has made no motion to consolidate the two causes, but has resisted the consolidation.
The court sustained the motion to consolidate the two causes, and also on his own motion, ordered that the cases be consolidated and tried in cause No. 50581. There was a trial and judgment in both cases for the plaintiffs. Defendant has appealed.
The first problem that we are confronted with, is whether or not the lower court erred in consolidating cause No. 50580 and cause No. 50581 for trial.
The appellant strenuously objected at the time the motion was made, and again urged it in his motion for a new trial. The appellee cites many cases, where a court of equity has consolidated causes for trial. It is so well recognized that a court of equity has the inherent power, in its discretion, to consolidate causes pending therein for the purpose of avoiding a multiplicity of suits, that citations are hardly necessary. See Cox Shoe Co. v. Adams et al., 105 Iowa 402, 75 N.W. 316.
But the cases at bar are not equity cases, they are law actions brought by different plaintiffs against the same defendant, the evidence in the two cases is not the same.
In Iowa we have a statute covering the consolidation of causes of action. It is as follows:
"Section 11226 of the Code of Iowa provides: *Page 1362
"When two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no sufficient cause is shown it shall be done."
It will be noted that the statute gives to the defendant the right upon motion and notice to the adverse party to ask the court to consolidate causes of the action. The legislature saw fit not to include that right to the plaintiff. The reasons for this may be many, but we are not interested in reasons, rather we must take the statute as written by the legislature, the lawmaking branch of our government. If we follow the appellees' contention, we will in reality be adding to the statute, by inserting in it the word "plaintiff". This we cannot do.
Cases from other states are of little help as many have no statute covering consolidation, and we of course are governed by the statute in this state. The appellees in a late supplemental brief call to our attention an early case, it is exceedingly interesting and we quote from same. In the case of Viele v. Germania Insurance Co., 26 Iowa 9, 47, 96 Am. Dec. 83, it is said:
"I am constrained to regard it, as it is in fact, as one contract, upon which the obligors are severally bound. The fact that each obligor is severally bound to pay a separate sum, to my mind, does not give a character to the instruments, nor remedy thereon, different from such as would exist were the obligors severally bound to pay the same sum. The extent or amount of the liability of the obligors upon the instrument does not, in my opinion, sustain the view that it is, in contemplation of law, four separate instruments. It is in fact one instrument, upon which the obligors are severally liable, and, in my opinion, comes within the purview of the section above referred to. I state these views with diffidence, and would not urge them were they not at the very foundation of my conclusion upon this point.
"Mr. Justice Cole concurs in affirming the ruling of the court below requiring the other causes to abide the verdict and judgment rendered in this one, but arrives at that conclusion upon a different course of reasoning. He thinks, that, under the peculiar facts of the case, the identity of the contract, pleadings, defense, plaintiff, and that, as no cause was shown by the *Page 1363
defendants, in answer to the rule, why the order should not have been made, its allowance was a matter within the discretion of the court, and that, as no abuse of that discretion appears from the record, and no prejudice appears from the record, and no prejudice appears to have resulted to the defendants, we should not interfere with the ruling. He is of opinion, however, that such practice should not be encouraged, as it might lead to abuses and work injustice. As no such results appear in this case, he is willing to sustain the order of the District Court.
"The Chief Justice and Mr. Justice Wright are able to concur in neither the views of Mr. Justice Cole, nor of those of the writer of this opinion, and unite in holding that the ruling of the District Court upon this point is erroneous. That ruling is, therefore, sustained by reason of a division in opinion of this court upon the question."
Thus we find that this court 75 years ago refused to hold that the plaintiff had a right in a law action, to have two causes consolidated for trial on plaintiff's motion.
In a very recent case, this court speaking through Chief Justice Hamilton said in the case of McKee v. National Travelers Casualty Association, 225 Iowa 1200, 1204, 282 N.W. 291, 293:
"No provision of the law has been called to our attention which would require the court on the request of plaintiff over the objections of the defendant to consolidate two separate actions. The statute compels such order on the part of the court only at the instance of the defendant and then only as to pending actions."
Again the court referring to the statute in force, Code section 11226, says:
"That this statute only has application to pending actions and only the defendant may make and file such motion."
Many other errors are urged, but as the case will be remanded for another trial, we do not find it necessary to consider them. It necessarily follows that the case must be and it is reversed. — Reversed.
CHIEF JUSTICE and all JUSTICES concur. *Page 1364
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568 F.3d 482 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Deborah J. SETSER; Gregory Earl Setser, Defendants-Appellants.
No. 07-10199.
United States Court of Appeals, Fifth Circuit.
May 12, 2009.
*485 Mysti Dawn Degani (argued), Nina Swift Goodman, U.S. Dept. of Justice, Crim. Div., Washington, DC, Susan B. Cowger, Dallas, TX, for U.S.
Russell Wilson, II (argued), (Court-Appointed), Law Offices of Russell Wilson, II, Dallas, TX, for Deborah Setser.
Donna Marie Hoffman (argued), (Court-Appointed), Flower Mound, TX, for Gregory Setser.
Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ, District Judge.[*]
LESLIE H. SOUTHWICK, Circuit Judge:
Gregory Setser appeals his convictions, and Deborah Setser her sentence, on multiple counts stemming from a multi-million *486 dollar Ponzi scheme. Finding no reversible error, we AFFIRM.
FACTS
Gregory and Deborah Setser, who are siblings, were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products. As in a classic Ponzi scheme, as new investments came in (eventually totaling $173 million), some of the new money was used to pay earlier investors. The takehome for the personal use of the Setsers and their co-conspirators was shown to be about $58 million.
Gregory Setser was in overall charge. He operated a company called IPIC. He told potential investors that IPIC's business model was to buy a wide variety of products cheaply overseas and resell them to retailers or governments at a profit. Deborah Setser's involvement was focused on an entity called the Home Recovery Network ("HRN"), which purported to deal in real estate. The scheme ground to a halt in November 2003, when IPIC was shut down and the Setsers were arrested. Investors suffered substantial losses.
At trial, the government presented evidence that the company did little legitimate business, buying only enough products to convince curious investors of the enterprise's legitimacy.
The SEC and FBI began parallel civil and criminal investigations of IPIC in August 2003. The SEC initiated a civil action against IPIC, HRN, and the Setsers on November 17, 2003. Alleged were violations of the securities laws. Appointment of a receiver to preserve the defendants' assets was requested. The district court appointed Dennis Roossien as receiver. He was granted the authority to "enter and secure any premises" of the defendants "in order to take possession, custody, or control" of their assets.
On November 6, eleven days before the civil suit was filed, a grand jury returned a sealed indictment against the Setsers and three other defendants. On November 18, the day after the filing of the civil suit, the indictment was unsealed and the defendants arrested. After the arrests, the receiver and his agents entered IPIC's offices and seized various assets. Many records were later turned over to law enforcement agents with the permission of the receiver.
The district court denied a motion to suppress this evidence. The Setsers argued that the receiver was acting as an agent of the FBI and IRS criminal investigators. Though there was no search warrant, the district court found that the receiver had seized only the documents covered by the Receivership Order. Properly having possession, the receiver could give documents to the FBI.
After a four-month jury trial, both defendants were convicted of one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349; securities fraud, in violation of 15 U.S.C. §§ 77q(a) and 77x; conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); and money laundering, in violation of Section 1956(a)(1)(A). Gregory Setser was also convicted of ten counts of substantive wire fraud, in violation of 18 U.S.C. § 1343; one count of substantive mail fraud, in violation of Section 1341; and five additional counts of money laundering. The jury acquitted Deborah Setser on the additional money laundering counts. The court granted both defendants judgments of acquittal with respect to two mail fraud counts.
Deborah Setser received a below-Guidelines range sentence of three 15-year terms and one 5-year term, to be served *487 concurrently. Gregory Setser was sentenced to serve multiple concurrent 20-year terms, a consecutive 5-year term for the securities fraud count, and another consecutive 15-year term for one of the money laundering counts. His total was 40 years' imprisonment.
DISCUSSION
I. Gregory Setser IssueReceivership Order and Search
When we review the denial of a motion to suppress, factual findings are examined for clear error; whether the law enforcement action was constitutional is considered de novo. United States v. Stevens, 487 F.3d 232, 238 (5th Cir.2007). Evidence is viewed in the light most favorable to the prevailing party, which on this issue was the government. Id.
There are three parts to Setser's allegations of improper conduct with regard to the Receivership Order: (1) the Receivership Order failed to comply with the Fourth Amendment's particularity requirement, making it an impermissible general warrant; (2) the receiver nonetheless exceeded his authority by seizing documents "completely unrelated" to the purpose for which he was appointed; and (3) the receiver was late in posting his bond.
A. Particularity Requirement
Some Fourth Amendment protections apply to civil as well as criminal investigations. See Franks v. Smith, 717 F.2d 183, 186 (5th Cir.1983). A search warrant is to describe the place to be searched and the things to be seized with "particularity." United States v. Layne, 43 F.3d 127, 132 (5th Cir.1995). Setser views the Receivership Order as the equivalent of a warrant, to which the particularity requirement must be applied.
While Setser concedes that other cases have found, in his words, that "a receiver may conduct a warrantless search of a premises," he argues that such cases are inapplicable here. He argues that a 1987 Supreme Court decision altered the previous understanding of receiver searches. See New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). In that case, the Supreme Court addressed the validity of a state regulatory scheme permitting warrantless inspections of automobile junkyards. The Court applied what it called an "established exception" to the requirement of warrants, which was for government inspectors to search closely regulated businesses in certain circumstances. Id. at 703, 107 S.Ct. 2636. Required was "a constitutionally adequate substitute for a warrant," including giving the search a "properly defined scope" and "limit[ing] the discretion of the inspecting officers." Id.
Receivers are not like the Burger state inspectors. They, because of the nature of the regulated business, may be permitted on their own and without prior court approval to make broadly intrusive and unannounced inspections in order to assure compliance with the state's rules. A receiver takes over property only after a court has agreed with the arguments and evidence that such a takeover is necessary. The Burger requirement of "a constitutionally adequate substitute for a warrant" in some circumstances therefore does not add anything new to the prior rules for receivers.
Two years before Burger, we held that a receiver, who has properly come into possession of property, may turn the property over to law enforcement officials without a warrant. United States v. Gray, 751 F.2d 733, 737 (5th Cir.1985). We did not discuss in Gray the breadth of authority that may validly be given a receiver to seize *488 property. Setser alleges there are limits, and among them is something akin to the requirement that a search warrant provide specific guidance on what is and what is not within the scope of permissible search and seizure. Setser acknowledges that no court has ever held that the equivalent of a warrant must be issued in order for a receiver to be permitted to seize the property of the subject entity.
One reason that particularity is not translatable to the receiver context is that once appointed, the receiver often takes possession of all property of the distressed or distrusted entity. That seizure of all assets on behalf of the court is a central purpose for the appointment of a receiver. The Setser Receivership Order was an exercise of that broad authority:
This Court hereby takes exclusive jurisdiction and possession of the assets, monies, securities, claims in action, and properties, real and personal, tangible and intangible, of whatever kind and description, wherever situated, of Defendants and Relief Defendants ("Receivership Assets"), and the books and records of the Defendants and Relief Defendants ("Receivership Record").
Setser is challenging the breadth of the Receivership Order itself. We have found no statutory or judicially created limits of the nature Setser argues exist to a receiver's right to seize assets. In fact, the statutory authority of a receiver appointed by the court is as broad as this receiver order:
a trustee, receiver, or manager appointed in any cause pending in any court of the United States, including a debtor in possession, shall manage and operate the property in his possession as such trustee, receiver or manager according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof.
28 U.S.C. § 959(b).
In conclusion, the receiver was authorized to seize all the named categories of assets and records of the identified defendants. Because the receiver was taking possession of everything in those categories that had been the property of the defendants for whom the receivership was authorized, further particularity would have served no purpose. After the seizure, the receiver had possession of the property only because he had been authorized by court order. We find no basis to support the argument that more was needed.
B. Scope of Search Under the Receivership Order
Setser next contends that even if the Receivership Order as written was valid, "the Receiver exceeded even the most expansive interpretation of the authority it granted by conducting a general, exploratory search and seizure of documents unrelated and inconsequential" to the receivership.
He argues that many of the documents and items taken by the receiver, particularly those from various residences, exceeded the scope of the receiver's mandate. Citing the SEC's complaint, Setser alleges the receiver could only "marshal, conserve, protect and hold funds and assets" of the defendants. In his view, the search went beyond the boundaries of a valid warrant and was presumptively unconstitutional. E.g., Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). He quotes the testimony of one agent who assisted in the search to argue that the searchers were *489 "predisposed" towards including, rather than excluding, documents from the search, that some documents taken were "unrelated to the location or preservation of assets," and that documents were turned over to the FBI, in some cases, before anyone representing the receiver had viewed them at all.
As a remedy, Setser suggests the suppression of "all evidence" against him because the search was conducted in "flagrant disregard" of the Receivership Order. See United States v. Shi Yan Liu, 239 F.3d 138, 140 (2d Cir.2000). Recognizing that this circuit has not adopted the "flagrant disregard" standard, he argues in the alternative that the evidence that was actually outside the scope of the Receivership Order must be suppressed.
Setser does not identify the evidence that allegedly was seized outside the scope of the order and later admitted at trial. We do not rule in the abstract on questions of suppression. We must know what evidence was admitted in violation of some specifically identified right. See United States v. Freeman, 434 F.3d 369, 374 (5th Cir.2005) (must "specifically delineate how the introduction of the evidence" affected the claim being made). Setser's response is that the scope of the receiver's seizures and the massive amount of evidence introduced at trial made identification of specific illegal evidence impossible. He seeks a remand for hearings to determine what evidence was illegally seized.
Setser alleges that the search led to "seizing photographs, business brochures, videotapes, [calendars], organizational charts, credit card bills, wedding invoices and letters of recommendation," and that search team members were instructed to retrieve information about "how the IPIC business was operated," putting the search beyond the parameters of simply preserving its assets. There apparently was a massive amount of evidence obtained and later introduced. Yet we find no support that the evidence was anything other than what the Receivership Order allowed to be seized, which in summary were the "properties, real and personal, tangible and intangible," of the defendants and their businesses. That seizure was necessary in order that the businesses could be operated. Because of the manner in which these businesses had been operated, or at least as jurors became convinced they had been, seizure of relevant documents revealed substantial criminal activity.
At least at the level of practicality, we agree with Setser that it would have been difficult to address in a pretrial motion to suppress the significant quantity of evidence that was seized and likely would be introduced. Even in this post-trial appeal, though, we are satisfied that the evidence that convicted Setser was incriminating because it reflected the criminal manner in which the businesses were operated, which also means the evidence was the kind of records and other property that the receiver had the authority to seize. Absent any showing or meaningful suggestion of what evidence was introduced that might have been improperly acquired, we do not further pursue this issue.
C. Delay in Posting the Receiver's Bond
Setser next argues that the receiver lacked authority to enter premises and seize documents because he did not post a required bond until after he had conducted the searches. See 28 U.S.C. § 754. The government does not dispute that a bond was not timely obtained.
Setser cites a district court case as his primary authority for this proposition. Warfield v. Arpe, No. 3:05-cv-1457-R, 2007 WL 549467, at *10-11 (N.D.Tex. Feb. *490 22, 2007). There, a receiver did not timely file his order of appointment in a different state, a filing that became necessary once some of the assets were found to be present there. A statute provides that the "failure to file such copies in any district shall divest the receiver of jurisdiction and control over all such property in that district." 28 U.S.C. § 754. In Warfield, the court upheld a new appointment and timely filing of the necessary papers to correct the defect. 2007 WL 549467, at *11.
The statute in question in Warfield also provides that "upon giving bond as required by the court," the receiver is vested with the control of the property and a right to take possession. 28 U.S.C. § 754. Setser does not dispute the government's claim that he never raised this issue at his criminal trial. Thus, we at most review for plain error. Even when there is error, the defect must "seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). We cannot find that the purely technical defect of the late but eventual obtaining of a bond in any way affects a substantial right, as no evidence was obtained and then introduced that could not later have been obtained and introduced after correcting the defect in the bond.
We therefore reject all of Setser's arguments that the search performed under the Receivership Order was invalid.
II. Gregory Setser IssueConduct of Law Enforcement Officials
A. Fourth Amendment Violation in Search of Property
Setser next argues that law enforcement officials violated his Fourth Amendment rights in their conduct after they took possession of records and assets from the receiver. He suggests that because the receiver lacked the authority to seize all the documents he took, law enforcement agents needed to obtain a warrant in order to review the information obtained from the receiver.
In our previously discussed Gray opinion, we found that a property owner "no longer had a reasonable expectation that those records would remain private" once a court has appointed a receiver, and the receiver has taken custody of records under the authority given him. Gray, 751 F.2d at 737. There is, in other words, no violation of the Fourth Amendment for a receiver who is the "lawful custodian" of the records to turn them over to law enforcement agents, at their request. Id.
Though Gray's analysis is relatively brief, its logic is clear when read in conjunction with the statutes governing the appointment and conduct of receivers. A receiver is "vested with complete jurisdiction and control of all such [received] property with the right to take possession thereof." 28 U.S.C. § 754. A receiver "shall manage and operate the property in his possession ... in the same manner that the owner or possessor thereof would be bound to do if in possession thereof." Id. § 959(b).
Understanding the receiver's authority, we now examine what must be shown to establish a Fourth Amendment violation. A defendant must show that he had a "reasonable expectation of privacy" in the property searched. United States v. Gomez, 276 F.3d 694, 696-97 (5th Cir. 2001). The showing requires the defendant to prove (1) an "actual, subjective expectation of privacy," and (2) that the expectation is "one which society would recognize as reasonable." United States v. Kye Soo Lee, 898 F.2d 1034, 1037-38 (5th *491 Cir.1990). Because the first factor simply examines whether a defendant actually expected privacy, which is not difficult to assert, the dispositive factor is almost always the second one. This second factor, the reasonableness of a privacy expectation, can be viewed from several practical perspectives:
whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.
Gomez, 276 F.3d at 697-98 (quoting United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. Unit A July 1981)).
We consider what occurred in the present case in terms of the list we just quoted from our precedents. Once the receiver took possession of the property, Setser's possessory rights were lost. Setser could neither exclude others from the seized property nor take precautions to maintain the privacy of the property. After appointment, the receiver was "vested with complete jurisdiction and control" of the property and had the "right to take possession" of it. 28 U.S.C. § 754. The receiver was required to "manage and operate the property ... in the same manner" as its original owner. Id. § 959. The receiver became the possessor, and as such could consent to the search of the seized documents. E.g., United States v. Brigham, 382 F.3d 500, 512 (5th Cir.2004) (en banc).
We also find justification for what occurred from the fact that a receiver is to be appointed only after a "prima facie showing of fraud and mismanagement." SEC v. First Fin. Group of Tex., 645 F.2d 429, 438 (5th Cir. Unit A May 1981). It would make little sense to hold that Setser continued to exercise veto power over the receiver's uses of his property when the purpose of the receivership was to preserve assets from fraudulent depletion.
We conclude that after a receiver validly takes possession of records and other property, becoming their "lawful custodian," the original owner has lost any "reasonable expectation that those records would remain private." Gray, 751 F.2d at 737. Accordingly, Setser's Fourth Amendment rights were not violated when the receiver turned over the property he seized from Setser to law enforcement officials.
B. Unlawful Civil/Criminal Collusion
Setser would have us find that the government impermissibly mixed the receiver's civil investigation with the criminal case against him. The purpose, Setser argues, was to deprive him of the rights criminal defendants enjoy, while using more liberal civil discovery techniques to gain evidence for the criminal case. Setser argues that because the governmental "parties intentionally ... orchestrated their actions and manipulated the administration of criminal justice in order to secure documents and papers to be used in the criminal prosecution," the district court erred in refusing to suppress the evidence discovered in the receiver's search and then turned over to the FBI.
Setser asks this court to find that this behavior violated both the Fourth Amendment and his Fifth Amendment right to due process of law. He alleges that the proper remedy is either dismissal of the indictment or remand for a hearing on what evidence should have been suppressed.
*492 Setser argues "that the Government may not bring a parallel civil proceeding and avail itself of civil discovery devices to obtain evidence for subsequent criminal prosecution." United States v. Parrott, 248 F.Supp. 196, 202 (D.D.C.1965). The precedents on which he relies have a Supreme Court ruling as their source. See United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). We examine that original authority, then turn to the more recent authorities.
In Kordel, the Court distinguished its facts from five situations in which a finding of a constitutional due process violation might be made:
We do not deal here with a case where [1] the Government has brought a civil action solely to obtain evidence for its criminal prosecution or [2] has failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution; [3] nor with a case where the defendant is without counsel or [4] reasonably fears prejudice from adverse pretrial publicity or other unfair injury; nor [5] with any other special circumstances that might suggest the unconstitutionality or even the impropriety of the criminal prosecution.
Id. at 11-12, 90 S.Ct. 763 (numbering added).
The precedents cited by Setser involved situations in which one or more of these Kordel situations existed. In one, the government coordinated a civil SEC investigation with a criminal investigation and deceived the defendants into believing there was no criminal investigation. United States v. Stringer, 408 F.Supp.2d 1083, 1087-88 (D.Or.2006), rev'd, 535 F.3d 929 (9th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 658, 172 L.Ed.2d 616, cert. denied, ___ U.S. ___, 129 S.Ct. 662, 172 L.Ed.2d 616, cert. denied, ___ U.S. ___, 129 S.Ct. 663, 172 L.Ed.2d 616 (2008). The district court had dismissed the indictment after finding that the government impermissibly "develop[ed] a criminal investigation under the auspices of a civil investigation." Id. at 1089. After Setser filed his opening brief in this case, the Ninth Circuit disagreed and reversed. The court of appeals relied on the fact that "the SEC made no affirmative misrepresentations" to the defendants, disclosed the possibility of a criminal investigation on a form, and "engaged in no tricks to deceive defendants." Stringer, 535 F.3d at 940.
In the other principal case relied on by Setser, the trial court found that the government coordinated two investigations in a manner intended to mislead the defendants into believing there was no criminal investigation against them, including obtaining the defendants' depositions in the civil investigation with the intent to create evidence against them in the criminal case. United States v. Scrushy, 366 F.Supp.2d 1134, 1138-39 (N.D.Ala.2005). In the court's view, the government's overall coordination of the investigations, and especially its apparent arrangement of a deposition in the civil case to create a "perjury trap" for criminal prosecution purposes, while not informing the defendant that any criminal investigation was under way, was such an impermissible departure. Id. at 1139-40. Although the government did not "outright lie to" the defendant, it "manipulated" the "inescapably intertwined" investigations to an extent the district court found improper. Id.
A recent decision by this circuit refused to find impermissible commingling of civil procedures involved in an interview conducted for possible naturalization of an immigrant and criminal investigations into that immigrant's conduct. United States v. Posada Carriles, 541 F.3d 344, 356 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 *493 S.Ct. 1657, ___ L.Ed.2d ___ (2009). We restated the fundamental point "that the government may conduct simultaneous civil and criminal proceedings without violating the due process clause or otherwise departing from proper standards in administering justice." Id. at 354. Deception as to the purposes of the investigation, or using otherwise meaningless civil proceedings as a pretext for acquiring evidence for a criminal prosecution, taking advantage of a person who does not have counsel, or other special circumstances may invalidate the prosecution. Id.
Setser can point to no "trickery" or cloaking of the criminal investigation as civil. Setser was not lured into any cooperation by the false premise that the investigation was purely civil. There is likewise no self-incrimination issue here, a common theme in the other cases. Ultimately, Setser's argument fails on the facts. He does not present evidence of strategic, intentional cooperation of the sort the district courts in Stringer and Scrushy found damning. For example, Setser claims that the governmental parties "had been cooperatively investigating and communicating... for months prior to the searches." But, as the government points out, his only record support for this assertion is a single phone call from an investigator from the Texas State Securities Board to an FBI agent assigned to the case. Setser does not provide evidence to contradict the government's assertion (and district court's conclusion) that the state investigator was herself "on the criminal side" of the probe.
Setser also points to the coordination inherent in the FBI's execution of arrest warrants at the same time as the receiver's agents were conducting their search of Setser's home and other premises. The government acknowledges that the two groups communicated in advance, but claims their cooperation was limited to logistical concerns such as ensuring the receiver did not interfere with the conduct of the arrests. Some of the search protocols for the receiver's team referred to the FBI as having some role in "terminating modem connections," and the receiver apparently permitted the FBI to review some documents before he himself reviewed them.
Setser made these points to the district court, which found that the FBI did not help formulate the search protocols. Whether or not the receiver read documents before permitting the FBI to access them seems of little relevance, if he validly took possession of them pursuant to the Receivership Order.
Certainly the chain of events leading to the FBI's possession of the documents was helpful for the government. Still, we find no facts in the record to support a finding of clear error when the district court found no invalid cooperation between the civil and criminal investigations.
III. Gregory Setser IssueEvidentiary Rulings
A. Evidence of Co-Conspirators' Guilty Pleas
Evidentiary rulings are reviewed for an abuse of discretion. United States v. King, 541 F.3d 1143, 1146 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 947, 173 L.Ed.2d 144 (2009). When, as here, the defendant did not object to admission of the evidence at trial, this court reviews only for plain error. United States v. Valuck, 286 F.3d 221, 228 (5th Cir.2002).
Setser argues that the district court erred in allowing the prosecution to make various references to the guilty pleas entered by his co-conspirators, because the prosecution sought to use such evidence as "substantive evidence of guilt" and not for *494 legitimate purposes. Setser particularly complains about other guilty pleas being mentioned at these times: during the government's opening statement; during the examination of Setser's daughter, Cassie Setser Schmidt; during the examination of an unindicted IPIC employee, Charmaine Sears; and, at greatest length, during the examination of Joshua Setser, Gregory Setser's son, who pled guilty to securities fraud.
While a guilty plea by a co-conspirator may not be used as evidence of guilt, it "`may be admitted into evidence if it serves a legitimate purpose and a proper limiting instruction is given.'" Id. (quoting United States v. Marroquin, 885 F.2d 1240, 1247 (5th Cir.1989)). In "analyzing an admission of a co-conspirator's guilty plea," this court considers: "(1) presence or absence of a limiting instruction; (2) proper evidentiary purpose in introducing the guilty plea; (3) improper use of the guilty plea as substantive evidence of the defendant's guilt; and (4) whether the introduction was invited by defense counsel." United States v. Samak, 7 F.3d 1196, 1198 (5th Cir.1993). Preemptively introducing a plea to counteract anticipated defense efforts at impeachment is a proper purpose. Valuck, 286 F.3d at 228. A defense strategy that itself heavily relies on the guilty pleas with "frequent, pointed, and direct references," defeats subsequent attempts to claim error in the government's use of the pleas. United States v. Leach, 918 F.2d 464, 467 (5th Cir.1990).
We apply these principles. First, the district court gave thorough limiting instructions that are similar to those approved by this court in Valuck. 286 F.3d at 228. As to the second and third factors, the government asserts that it was using the pleas for the permissible purpose of rebutting anticipated impeachment. The government does acknowledge that it "could be said to have placed undue weight on the guilty pleas" at "a few specific instances." While the lengthy questioning of Joshua Setser is justifiable, since Joshua Setser pled guilty and was testifying against his father, the government's much more limited references in the examinations of the two women are suspect, since those witnesses had not pled guilty. The government may have mentioned the pleas there in an attempt to make the witnesses' denials that they knew about criminal activity seem implausible. Nonetheless, the references were quite limited, so this factor weighs only slightly against the government.
The fourth factor, the defense's own use of the pleas, weighs against finding error. With respect to Joshua Setser, the record confirms that the defense devoted a significant portion of its cross-examination to the plea agreement, Setser called another witness and inquired about the details of his plea agreement, and the defense's closing argument suggested that plea agreements gave Joshua Setser an incentive to lie.
We find no reversible error.
B. Admission of Expert Testimony
Decisions regarding the admission of testimony are reviewed for an abuse of discretion and are subject to harmless error analysis. United States v. Griffin, 324 F.3d 330, 347 (5th Cir.2003). Under such an analysis, this court may not reverse unless "there is a reasonable possibility that the improperly admitted evidence contributed to the conviction." United States v. Hawley, 516 F.3d 264, 268 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 994, 173 L.Ed.2d 291 (2009).
Setser argues that the district court improperly allowed the receiver to function as an "expert witness" by testifying that Setser's operations constituted *495 "security fraud" and a "Ponzi scheme." Setser finds the testimony objectionable because it asserted legal conclusions, a practice barred by Federal Rule of Evidence 704(a).
The government concedes that allowing the "security fraud" statement was erroneous. Given the weight of the evidence against Setser, though, and the cautionary instructions given by the district judge, the government argues the error was harmless. The error was confined to, at most, "two lines" of testimony at the beginning of a four month trial. The judge gave instructions both specifically informing the jury not to draw inferences about Setser's state of mind from the receiver's testimony, and emphasizing that the jury was not bound by the receiver's conclusions and must undertake an independent evaluation of the evidence.
Setser argues that while the references may have been brief, the receiver's stature as a "central character in the collection and review of the evidence" gave him a status, in the eyes of the jury, above an ordinary expert witness. Accordingly, it would be reasonable to conclude that the jury gave inappropriate weight to the testimony. Setser also argues that the jury should have been specifically instructed that it could not use the testimony as evidence Setser committed securities fraud, rather than just not as probative of his state of mind.
We find that any error was harmless. Both cases cited by Setser on the issue conclude that the error was harmless based on the overwhelming weight of the incriminating evidence. United States v. Williams, 343 F.3d 423, 435 (5th Cir.2003); United States v. Rich, 145 Fed.Appx. 486, 488 (5th Cir.2005). The government's evidence against Setser was considerable, with numerous other witnesses whose testimony could independently have allowed the jury to convict. There is no reversible error with respect to this issue.
C. Evidence of Failure to File Income Tax Returns
The standard for reviewing an alleged violation of Federal Rule of Evidence 403, which prohibits unfairly prejudicial testimony, is "especially high" and requires "a clear abuse of discretion" for reversal. United States v. Fields, 483 F.3d 313, 354 (5th Cir.2007).
Setser objects to the admission of evidence regarding the failure of his enterprises to file federal income tax returns or pay taxes. He argues that because he was not charged with tax offenses, and the evidence was that the businesses had not filed tax returns even outside the period of time charged in the indictment, his tax compliance was not probative of whether he was engaged in fraud and served only a prejudicial purpose.
The district court granted Setser's motion to exclude evidence about his personal tax returns, but found that the government's theory that Setser had lied to investors about the existence of the corporate tax returns made that evidence "intrinsic" to the alleged conspiracy, and thus admissible. Intrinsic evidence is usually admissible in order to give a complete explanation of the crime. Freeman, 434 F.3d at 374 & n. 2.
Setser quotes some testimony in which the failure to pay taxes was discussed in a more general way, with reference to both Setser personally and his corporations. On one such occasion, the district court interrupted the line of questioning. The government then returned to the previously approved use of the corporate tax returns to illustrate fraud. Other occasions did not concern the filing of tax returns per se, but statements made by Setser to *496 others bragging about the low amount of taxes he paid.
Setser must show that the probative value of the challenged evidence was "substantially outweighed by the danger of unfair prejudice" before its admission will be error. Fed.R.Evid. 403. Setser offers no meaningful response to the trial court's conclusion that the corporate tax return evidence was intrinsic to the conspiracy. That was because it showed he lied to potential investors to gain their confidence. His main complaint seems directed at the scattered references to his personal taxes. Those references largely were accounts of what Setser had told potential investors or employees about the tax benefits he enjoyed. Thus, that evidence could also be characterized as intrinsic to the conspiracies charged against Setser. In addition, the district court gave instructions that Setser was not charged with any tax crimes and, as noted, the court barred the admission of Setser's personal tax records.
Because the tax evidence was intrinsic to the offenses charged, and not introduced simply to prejudice Setser by implying he committed uncharged offenses, the district court did not err in admitting it.
IV. Deborah Setser's Sentence
The one alleged error by Deborah Setser concerns her sentence. She argues that the district court erred in calculating the amount of loss attributable to her, determining the length of time she was part of the conspiracy,[1] and determining that the losses attributed to her were reasonably foreseeable even for those time periods during which she was part of the conspiracy. See U.S.S.G. § 1B1.3 cmt. 2 (elaborating on "reasonably foreseeable" standard); United States v. Carreon, 11 F.3d 1225 (5th Cir.1994). Calculation of the loss amount and other factual determinations are reviewed for clear error; legal questions about the interpretation of the Guidelines are reviewed de novo. United States v. Tedder, 81 F.3d 549, 550 (5th Cir.1996).
The question at the core of the loss-calculation dispute is whether it was appropriate to consider as new losses the funds from existing investors that were reported or returned to them as profits and then reinvested in the scheme. For those situations in which the original investments occurred before Deborah Setser's involvement, but the reinvestments occurred during her involvement, the effect of including the reinvestments was to increase the loss amount and number of victims attributed to her. Using this methodology, with credit given for money returned to original investors (but not "profits" received by investors), the district court concluded that the loss amount attributable to Setser was $61,601,032.
The principal issue presented concerns the present applicability of one of our precedents. See United States v. Deavours, 219 F.3d 400, 403 (5th Cir.2000). There, this court had addressed the issue of loss calculation in a Ponzi scheme. We concluded that no credit should be given for money returned to investors, because money in a Ponzi scheme is returned "not to compensate the victims for their losses," but "to extend [the defendants'] criminal activities and the profitability thereof" by prolonging the life of the scheme. Id. In fact, repayment of invested funds in a Ponzi *497 scheme serves to "increase the total returns from [the] criminal activity, and endanger yet more victims." Id. at 404.
Though Deavours has the effect of increasing the responsibility for losses on long-term conspirators, Deborah Sester argues that its reasoning prevents a late-arriving conspirator from being made responsible for losses that occurred from money invested before joining the scheme. Just as a defendant cannot receive credit for returning money to an investor, she cannot be subject to "double counting" when an investor chooses to reinvest profits in the scheme.
The government argues that Deavours has been superseded by a 2001 amendment to the sentencing guidelines. See U.S.S.G. § 2B1.1 cmt. 3(E)(i) (explaining that "[l]oss shall be reduced by the ... money returned ... by the defendant, to the victim before the offense was detected"); U.S.S.G., 2002 Supp. to App'x C, amend. 617, at 184-85 (effective Nov. 1, 2001). In its explanation of the change to the application note, the Sentencing Commission contrasted Deavours with cases from other circuits that had permitted offsetting of payments to investors up to the amount they had invested. It stated explicitly that the "amendment adopt[ed] the approach of the Eleventh Circuit" in order to "resolve[] a circuit split." Supp. to App'x C at 184-85.
While no precedent has discussed the effect of the 2001 amendment on Deavours, we hold that Deavours has been superseded. Therefore, the district court's method of loss calculation was correct. Deborah Setser was given credit for money that was returned to investors, but such credits were offset when the money was reinvested into the scheme. Because it treated such reinvested money as new losses, this had the effect of increasing the amount for which she was responsible. Indeed, the scheme had such rapid investment turnaround that Setser was, under this approach, liable for the entirety of the losses attributed to the conspiracy. Net losses were suffered only by those investors who remained in the scheme at the time of its fall in 2003.
Under this loss calculation method, it also was reasonable to conclude that investors became "victims" again when they reinvested, thus explaining the district court's conclusion about the number of victims for whom Deborah Setser was responsible. In one case that Setser cites to us, we held that the defendant could not be held responsible at sentencing for acts of child sexual abuse perpetuated before his involvement in a conspiracy, when he had been convicted only of distributing videotapes recording the sexual abuse. United States v. Reinhart, 357 F.3d 521, 527-28 (5th Cir.2004). The underlying offense had been entirely completed before the defendant became involved in the conspiracy, and thus he could not have reasonably foreseen them in a "prospective only" sense. Id. at 528. But here, the rationale for counting the victims a second time is that a new offense occurred when the investors' money was plowed back into the conspiracy, justifying the different outcome.
Setser's ability to foresee the losses is the critical point. While she quotes the district court's observation that she had less involvement than did her brother Gregory Setser, she makes no meaningful argument of error in the district court's ultimate conclusion that she could have reasonably foreseen the losses caused by the conspiracy during the time of her participation. While Deborah Setser was primarily involved in the HRN real estate fraud, the government introduced evidence that she had involvement in IPIC operations.
*498 Deborah Setser also raises an "as applied" Sixth Amendment challenge to the district court's calculation of loss amount and number of victims at her sentencing, and a Fifth Amendment challenge with regard to acquitted conduct for which she claims she was held responsible at sentencing. It is settled in this circuit that a "sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guidelines sentencing range." United States v. Lewis, 476 F.3d 369, 389 (5th Cir.2007). Setser was sentenced well below both the statutory maximum range (65 years) and the guidelines range (life) for her offenses. The case law does not support a Sixth Amendment challenge in such circumstances. Her Fifth Amendment argument is also foreclosed by circuit precedent. United States v. Pineiro, 470 F.3d 200, 206 (5th Cir.2006).
The convictions and sentences of both defendants are AFFIRMED.
NOTES
[*] District Judge of the Western District of Texas, sitting by designation.
[1] This argument is asserted once, but there is no elaboration. The government argued, and the district court found, that Deborah Setser was part of the conspiracy from September 2002 to November 2003. She apparently argued at sentencing that she was part of the conspiracy only from February 2003 to September 2003. Her brief presents no argument in support of this issue, so we address only the amount of loss.
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01-03-2023
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04-26-2010
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262 F.3d 1128 (10th Cir. 2001)
MARSHALL HUFFMAN; VIRGINIA NEWTON, Plaintiffs-Appellees,v.SAUL HOLDINGS LIMITED PARTNERSHIP, a Maryland limited partnership, Defendant-Appellant.
No. 99-5239
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
August 22, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 97-CV-602-H)[Copyrighted Material Omitted]
Submitted on the briefs: Bill V. Wilkinson and Andrew P. DeCann of Wilkinson Law Firm, Tulsa, Oklahoma, for Plaintiffs-Appellees.
Terry M. Thomas of Crowe & Dunlevy, Tulsa, Oklahoma, for Defendant-Appellant.
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.
SEYMOUR, Circuit Judge.
1
This case involves an award of attorneys' fees following what should have been the conclusion, at least with respect to proceedings in the federal courts, of a case already marred by a lengthy procedural history. We hold that the district court lacked authority to grant plaintiffs Marshall Huffman and Virginia Newton appeal-related fees and, in addition, erroneously failed to conduct an inquiry into the reasonableness of their fee application. Accordingly, we reverse the decision of the district court with directions to vacate its award of appellate fees and to conduct a hearing on the reasonableness of the remaining portions of Huffman and Newton's fee application.1
I. Factual Background
2
The roots of this dispute lie in a leaky roof. Huffman and Newton leased space from defendant Saul Holdings Limited Partnership to operate a retail furniture store in a shopping center near Tulsa, Oklahoma. Saul disclosed the leaks during the lease negotiations and agreed to repair the roof once the lease was signed. Despite Saul's repeated attempts to make the necessary repairs, the leaks persisted. Ultimately Huffman and Newton moved to another location. Seeking damages for what they said were lost sales, they brought suit in state court against Saul, alleging breach of contract, rescission, and fraud.
3
After filing an answer and counterclaim, and after engaging in several rounds of discovery, Saul removed the action to federal court. The district court denied Huffman and Newton's motion for remand, and later granted summary judgment in favor of Saul. This court reversed the district court with respect to both rulings. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072 (10th Cir. 1999). We concluded not only that Saul's notice of removal was untimely, but, in addition, that the existence of disputed, material facts precluded the entry of summary judgment. The panel instructed the district court to return the case to the state court. Id. at 1084.2
4
Having secured a remand to state court, Huffman and Newton asked the federal district court to award them attorneys' fees pursuant to 28 U.S.C. 1447(c), which authorizes costs and fees to a plaintiff who successfully resists a defendant's removal effort, that is, obtains an order remanding the case to state court. Initially, the district court denied Huffman and Newton's fee petition. Their petition, said the court, went beyond the allowable scope of 1447(c), since it sought fees not just for efforts at opposing removal but for other matters as well. In response to the court's ruling, Huffman and Newton filed an amended petition, seeking fees only for services related to remand. The amended petition requested slightly more than $1300 for fees incurred in the district court, approximately $4000 in appellate fees, and just over $1800 for preparing the fee application itself. The total amounted to $7099. The district court granted the petition in full. Saul appeals that ruling.3
II. Standard of Review
5
At the outset, we reject Huffman and Newton's insistence that we review the ruling of the district court under an abuse of discretion standard. Granted, as Huffman and Newton note, we generally review a district court's decision to award fees for abuse of discretion. "[B]ut we review de novo the district court's application of the legal principles underlying that decision." Nat'l Ass'n of Prof'l Baseball Leagues, Inc. v. Very Minor Leagues, Inc., 223 F.3d 1143, 1146 (10th Cir. 2000). In particular, we extend de novo review to any statutory interpretation that provides the basis for the award of attorneys' fees. Hoyt v. Robson Cos., 11 F.3d 983, 984 (10th Cir. 1993).
III. Appellate Fees
6
Saul argues first that the district court lacked jurisdiction to award Huffman and Newton appeal-related fees. We agree that the district court erred, but not for lack of jurisdiction.
7
In the previous appeal, Huffman and Newton filed in this court the same request for attorneys' fees, including appellate fees, that they originally filed in the district court.4 In our decision reversing the district court, we expressly refused to award appellate fees to Huffman and Newton, despite their success on appeal. We could not have been more clear. "Plaintiffs' motion for attorneys' fees and costs," we said, "is DENIED." Huffman, 194 F.3d at 1084 (emphasis in the original). "The parties must bear their own costs and fees," we added. Id.
8
Nevertheless, on remand the district court granted Huffman and Newton the very fee request we earlier had rejected. It did so mindful of our injunction. "[T]he Tenth Circuit's denial of Plaintiffs' motion for attorney fees," said the court, "does not bind the discretion of this court to award fees pursuant to 28 U.S.C. 1447(c)." Aplt.'s App. at 327. Noting that its discretion rested on an interpretation of the controlling statutory language, the district court explained that 1447(c) "specifically contemplates the award of such fees by the district court that remands the case to state court." Id.5
9
The district court, of course, is correct. It does have discretion to award fees and costs under 1447(c), provided this court or some higher court has not limited the exercise of that discretion. Our earlier decision did just that. Indeed, our denial of Huffman and Newton's request for appellate fees was dispositive; it became law of the case and could not be reconsidered by the district court.
10
The law of the case "doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine has particular relevance following a remand order issued by an appellate court. "[W]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). The law of the case doctrine is intended to prevent "continued re-argument of issues already decided," Gage v. Gen. Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986), and to preserve scarce court resourcesto avoid "in short, Dickens's Jarndyce v. Jarndyce syndrome." McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000).
11
An "important corollary" to the law of the case doctrine, "known as the 'mandate rule,' provides that a district court must comply strictly with the mandate rendered by the reviewing court." Ute Indian Tribe v. Utah, 114 F.3d 1513, 1520-21 (10th Cir. 1997) (internal quotation omitted); see also Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991) ("Under the 'law of the case' doctrine, the district court may not deviate from the appellate court's mandate."). Here the mandate rule prohibited the district court from departing from our earlier decision denying appeal-related fees to Huffman and Newton. In general, we repeat, few restraints cabin a district court's ability to award statutory attorneys' fees. This does not hold, however, where an appellate court has issued a mandate that specifically limits the district court's discretion.
12
Thus, the district court lacked authority, not jurisdiction, to award appellate fees. Its jurisdiction flowed from both 1447(c) itself, which allows courts in certain cases to consider an award of attorneys' fees, and our remand order, which returned the mandate in this diversity case to the district court. The district court's authority, however, was circumscribed by the terms of the mandate and the law of the case doctrine, neither of which is jurisdictional. United States v. Gama-Bastidas, 222 F.3d 779, 784 (10th Cir. 2000) ("Neither the law of the case doctrine nor the mandate rule is jurisdictional.").
13
In contrast to a jurisdictional defect, exceptions to both rules exist. For instance, a district court may deviate from the mandate "under exceptional circumstances, including (1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) if blatant error from the prior . . . decision would result in serious injustice if uncorrected." United States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996) (quotation omitted). None of these exceptions is present here. Similarly, three "exceptionally narrow" grounds justify departing from the law of the case doctrine: "(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice." McIlravy, 204 F.3d at 1035. Again, the district court faced none of these exceptions, nor do we.
14
Our conclusion rejecting Huffman and Newton's claims for appellate fees mirrors the Third Circuit's opinion in Yaron v. Township of Northampton, 963 F.2d 33 (3d Cir. 1992). The court held there that once the court of appeals "has entertained an application for appellate attorneys' fees, a district court may not." Id. at 37. Jaron rested its ruling exclusively on the mandate rule. We adopt that reasoning and extend it to include, as well, the complementary doctrine of law of the case. Additionally, our conclusion underscores the rule we announced in Hoyt v. Robson Cos. There we held that an application for appellate fees must first be made to our court. Hoyt, 11 F.3d at 985. "Should we decide that it is appropriate to award such fees, we may then remand to the district court to determine an award of reasonable fees." Id. On occasion, as this case demonstrates, we disagree with the district courts about the appropriateness of a fee award. Adhering to the Hoyt rule will prevent such disagreements from resulting in unnecessary appeals.6
IV. Reasonableness of the Attorneys' Fees
15
In addition to challenging Huffman and Newton's entitlement to appellate fees, Saul objected to numerous time entries on their fee application with respect to fees in the district court. For example, Saul questioned the reasonableness of a four-hour trip to the federal courthouse to retrieve a document and file a motion. Saul also claimed that the $1800 charged to prepare the fee application, representing 25 percent of the total amount sought in the petition, was excessive.
16
From our perspective, these objections are not without merit; at a minimum, it seems to us, they demand a response from Huffman and Newton. Yet the district court refused to consider Saul's objections, stating that "the statute [ 1447(c)] permits recovery of actual fees incurred as a result of the removal rather than allowing a reasonable fee to be determined by the Court." Aplt.'s App. at 327-28 (emphasis added). Consequently, the district court granted the fee petition in full, without conducting an independent inquiry into the reasonableness of the fees demanded. In eschewing such a role, the court erred.
17
No doubt the district court intended to interpret the statute literally. Hence its focus on the statute's use of the word "actual." To be sure, 1447(c) declares that an order remanding a case to state court "may require payment of just costs and any actual expenses, including attorneys' fees." 28 U.S.C. 1447(c). But the district court was selectively literal in its interpretation. The statute immediately qualifies the capacious language quoted above by plainly limiting "actual expenses" to those "incurred as a result of the removal." Id.
18
Pursuant to this limiting language, it is fair to characterize Saul's argument as presenting a question: were certain of Huffman and Newton's time entries incurred "as a result of the removal," or instead, as Saul alleges, were they incurred as a result of unreasonable billing practices? If it is the latter, the billing entries are not compensable under the statute; if it is the former, they are. The district court must make the determination. We see no way for the court to perform this task without conducting an inquiry into the reasonableness of the time entries contained in the fee petition submitted by Huffman and Newton.
19
Our ruling in this regard reflects what district courts have long presumed. That is, they are duty-bound to ensure that an award of attorneys' fees pursuant to 1447(c) is reasonable. See, e.g., Braco v. MCI Worldcom Communications, Inc., 138 F. Supp. 2d 1260, 1271 (C.D. Cal. 2001) ("[T]he Court retains discretion (and presumably a duty) to ensure that the amount of attorneys' fees requested is 'reasonable'"); Mehney-Egan v. Mendoza, 130 F. Supp. 2d 884, 885 (E.D. Mich. 2001) ("The Court's directive to the plaintiff to present evidence of her just costs and expenses was not an invitation to indulge in overreaching. Rather, the statutory prescription to award 'just' costs incorporates the concept of reasonableness in assessing a claim for attorney fees."); Park Nat'l Bank of Houston v. Kaminetzky, 976 F. Supp. 571, 584 (S.D. Tex. 1996) ("Section 1447(c) awards payments of just costs and reasonable attorney's fees incurred as a result of an improper removal."); Summit Mach. Tool Mfg. Corp. v. Great N. Ins. Co., 883 F. Supp. 1532, 1533 (S.D. Tex. 1995) ("In computing an attorney fees award under 1447(c), the Court first multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate.").
20
Two circuit court cases, both in unusual circumstances, have addressed the award of attorney's fees under 1447(c), see Wisconsin v. Hotline Indus. Inc., 236 F.3d 363 (7th Cir. 2000); Gotro v. R & B Realty Group, 69 F.3d 1485 (9th Cir. 1995). In Hotline Industries, Wisconsin sought an injunction in state court to enjoin Hotline from building a marina on Lake Superior. After Hotline removed the case to federal court, Wisconsin successfully obtained an order remanding it to state court. The district court awarded Wisconsin attorneys' fees based on the prevailing rate in the area (Madison, Wisconsin) for lawyers specializing in similar work. The court rested its market rate approach on the general rule for calculating fee awards made pursuant to various fee-shifting statutes calling for a "reasonable" fee, e.g. 42 U.S.C. 1988.
21
In reversing, the Seventh Circuit noted what it said was the "unusual" and "significant" language contained in 1447(c), focusing on "actual" and "incurred." Id. at 366-67. The court concluded that only actual outlays incurred by the government lawyers as a result of removal are recoverable; in other words, market indicated substitutes for actual outlays are not. Id. The court remanded the matter to the district court to determine the actual outlays incurred by the state as a result of Hotline's improper removal. Id. at 368.
22
In Gotro, the issue was whether an attorney's fee could be awarded under 1447(c) in a remanded case where the attorney had taken the case on a contingent fee basis and would recover nothing if the case was lost on the merits. See 69 F.3d at 1487. Ultimately the Ninth Circuit described the issue as whether Congress had intended by using the words "'any actual expenses, including attorney's fees, incurred' . . . to remove the discretion of the district court to award fees in certain cases, such as contingent fee or pro bono cases, where the client had not actually 'incurred' the obligation to pay her attorney's fees." Id. (emphasis added). The court concluded Congress had not so limited the district court's discretion. The reasonableness of the requested fee was not disputed.
23
We think both these decisions bolster our conclusion here. Our holding is that the statute's limit on actual fees to those "incurred as a result of removal" requires the district court to conduct some sort of reasonableness inquiry. Our balanced emphasis on the terms "actual" and "incurred" mirrors the common-sense approaches taken in both Hotline and Gotro. We have concluded that the phrase "incurred as a result of removal" informs and narrows the meaning of "actual expenses, including attorney fees." Nothing in either Hotline or Gotro suggests that courts are compelled to award unreasonable, if actual, fees to plaintiffs who successfully obtain an order of remand. To be compensable, their fees must be actually "incurred," that is, they must reflect efforts expended to resist removal. As we said above, and repeat here, unreasonably high fees are not "incurred" as a result of removal; rather, excessive fee requests flow from, and accumulate by means of, improper billing practices, and will not be recoverable under 1447(c).
24
We REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. We GRANT Saul's request for leave to file a response to Huffman and Newton's motion to dismiss, and we DENY the motion to dismiss. Each party shall bear its own costs and fees on appeal.
NOTES:
1
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.
2
While the untimeliness of the notice of removal by itself would not have been sufficient to justify remand, the additional fact that the entry of summary judgment was improper warranted both reversal and remand to the state court. Id. at 1074-75, 1079-80.
3
Huffman and Newton filed a motion to dismiss Saul's notice of appeal. Their motion charged that the notice was untimely, since it was filed more than thirty days after the district court entered final judgment. Saul sought leave to file a response to the motion out of time, noting that it had recently secured new counsel and that previous counsel inadvertently failed to file such a response. We grant Saul's request. In its response to the motion, Saul pointed out that the thirtieth day after final judgment fell on a Saturday. Citing Fed. R. App. P. 26(a)(3), Saul further noted that when the last day of a time period is a Saturday or a Sunday, those days are not included in any time computation. The record reflects that Saul filed its notice of appeal on the following Monday. Pursuant to Fed. R. App. P. 26(a)(3), we deny Huffman and Newton's motion to dismiss.
4
They did not file their amended fee petition with this court.
5
In full, 28 U.S.C. 1447(c) reads:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case. 28 U.S.C. 1447(c).
6
Hoyt was clear that an application for appellate fees must "first" be made to this court, unless there is an "explicit" statutory or other provision to the contrary. Id. It did not endorse what Huffman and Newton did here: they submitted identical fee applications, seeking both appellate and district court fees, in our court and the district court.
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01-03-2023
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08-14-2010
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On November 12, 1937, a verdict was returned in favor of the plaintiff in an action pending in the municipal court. On the same day there was entered an order granting the defendant thirty days in which to file motion for a new trial, exceptions to instructions, and for judgment non obstante veredicto. On the 16th day of November, 1937, the plaintiff made a motion for judgment on the verdict, which was duly sustained and judgment entered. On the same day another order was entered granting defendant thirty days in which to file motion for a new trial and exceptions to instructions. Later, and before the thirty days had expired, defendant asked for and was granted six additional days in which to file motion for a new trial and exceptions to instructions and judgment non obstante.
Petitioner contends that these orders were beyond the jurisdiction of the municipal court, and hence null and void. Petitioner has filed various motions to strike and expunge these orders.
The question before us is: Did the municipal court have jurisdiction to extend the time as was done herein? The answer is found in the various legislative enactments covering the practice in municipal courts.
The municipal court became a part of our judicial structure by an act of the Thirty-sixth General Assembly, ch. 106, which became effective on July 4, 1915. That enactment, among other things, is as follows: *Page 503
"There shall be no terms of court and the court shall be open for business twelve months of the year, and there shall always be at least one judge present each day to hold court and to issue such writs and orders as are required. Provided, however, that if it shall be necessary to appoint another judge to act during any absence, that such judge so appointed shall receive as compensation for his services so rendered a sum equal to the salary of the regular judge and payable in the same manner. Grounds for, and the practice governing the correction, vacation, or modification of final judgment or order of said court, and the granting of new trial, shall be the same, so far as may be, as in the district court; and the jurisdiction of said court shall be considered as retained by it for correction of errors of the court, or in the record, for a period of ten days following the entry of final judgment, except that execution may issue upon the entry of final judgment unless stayed by order of court for a period not exceeding such ten days, or by appeal perfected by notice and supersedeas." Section 17.
This statute re-appeared in the same language in the 1915 Supplemental Supplement to the Code, as section 694-c17.
Chapter 106 of the Acts of the Thirty-sixth General Assembly was amended by section 1, ch. 75, Acts of the Thirty. seventh General Assembly, effective July 4, 1917. This amendment, so far as material to this controversy, reads:
"That section six hundred ninety-four-c-seventeen (694-c-17), supplemental supplement to the Code, 1915, be and the same is hereby amended by adding thereto the following:
"Default or judgment thereon may be set aside in the same manner and upon the same terms as is now or may hereafter be provided for setting aside defaults in the district court. Application therefor must be made within ten days from the day on which default or judgment was entered, providing, however, that within one year from the rendition of final judgment proceedings may be brought to reverse, vacate or modify the same, as provided in chapter 1, title XX, of the Code, for vacating or modifying final judgment or order of the district court."
The foregoing enactments appear in the Code of 1924 as sections 10663, 10664, and 10681. Section 10681 was, in all its *Page 504
terms, an enactment of the Fortieth Extra General Assembly, H.F. 220, section 39. It is to be observed, also, that Code section 10681 makes very decided changes in the existing law. Theretofore defaults and judgments could be set aside in the municipal court in the same manner as might be done in the district court. And the municipal court had all the powers of that court, including jurisdiction for one year in which to reverse, vacate, or modify judgments, as provided by ch. 1, Title XX, Code 1897, § 4091 et seq. (now ch. 552, Code 1935, § 12787 et seq.).
Inquiry naturally arises as to the reason for the legislative changes shown above. The history of other and related statutes gives the answer.
Section 20 of ch. 106, Acts of the Thirty-sixth General Assembly, provides:
"All statutes governing the district court as to pleading and practice, parties, evidence, commencement of actions, jurisdiction, process, modes of trial, judgment, execution, attachment, garnishment, replevin and limitation of actions, shall apply to and govern the municipal court except when the same are inconsistent with the provisions of this act."
This section appears to the same effect, though in somewhat different language, as section 10664, Code 1935.
During all the time the foregoing legislation was operative there was in effect section 3790 of Code 1897, now section 11589, Code 1935. This reads:
"Default may be set aside on such terms as to the court may seem just, among which must be that of pleading issuably and forthwith, but not unless an affidavit of merits is filed, and a reasonable excuse shown for having made such default, nor unless application therefor is made at the term in which default was entered, or if entered in vacation, then on the first day of the succeeding term."
There were also in effect Code 1897, sections 243 and 244 (now sections 10801 and 10803, Code 1935). These read:
"10801. * * * The record aforesaid is under the control of the court, and may be amended, or any entry therein expunged, at any time during the term at which it is made, or *Page 505
before it is signed by the judge."
"10803. * * * Entries made and signed at a previous term can be altered only to correct an evident mistake."
From a reading of these various enactments it is apparent that Code sections 3790, 243, and 244, Code 1897, were not workable as applied to the municipal court where there were no terms to fix the time various record entries should be made to correct errors, or to vacate, modify, or expunge judgments. It seems to follow that the amendments which have been made to the original municipal court enactment were intended to deal solely with the correction, vacation, or modification of judgments, defaults, and corrections of the record. In the years since the original enactment of the municipal court statute, the provisions with reference to other procedural matters have been left unchanged. Nor have we ever held that the practice, other than with reference to defaults and judgments, was different than in the district court. In fact, the question has never been raised. We do not overlook the cases in petitioner's brief, nor some not cited by the parties. All deal with judgments or defaults.
An analysis of the statutes here involved, the changes appearing in the acts of different legislatures, and the various Codes, impels us to the conclusion that the rulings of the municipal court complained of were within its jurisdiction. Whether they were right or wrong is beside the point. Having the jurisdiction to decide, it had the power to decide wrongly as well as rightly. If wrong, the remedy is by appeal and not certiorari.
The motion to strike, filed by petitioner, is overruled.
Finding that the trial court acted within its jurisdiction, its rulings are sustained. — Writ annulled.
HAMILTON, DONEGAN, KINTZINGER, MITCHELL, ANDERSON, and STIGER, JJ., concur. *Page 506
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07-05-2016
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2005 WI 90
In the Matter of Disciplinary Proceedings Against Nikola P. Kostich, Attorney at Law:
Office of Lawyer Regulation, Complainant,
v.
Nikola P. Kostich, Respondent.
No. 2003AP2950-D.
Supreme Court of Wisconsin.
Opinion Filed: June 24, 2005.
¶1 PER CURIAM.
We review, pursuant to SCR 22.17(2),[1] the findings of fact, conclusions of law, and recommendations of Referee Stanley Hack, concluding that Attorney Nikola Kostich engaged in unprofessional conduct in the course of his practice of law in violation of the Rules of Professional Conduct. The referee recommended a public reprimand, restitution and payment of the costs of this proceeding. Neither party has appealed from the referee's report and recommendation.
¶2 We approve the findings, conclusions and recommendations as to the appropriate discipline for Attorney Kostich's misconduct.
¶3 Nikola Kostich was admitted to practice law in Wisconsin on August 21, 1970. He has previously received a public reprimand for failing to timely file a federal tax return.
¶4 On October 31, 2003, the Office of Lawyer Regulation (OLR) filed a complaint against Kostich alleging he had committed seven disciplinary violations in connection with two separate client matters. The matter proceeded to a hearing before Referee Hack in September 2004.
¶5 Many of the charges against Kostich derive from a single criminal appeal involving Kostich's former client, P.S. In March 1999, P.S. was sentenced to 16 years in prison following entry of a guilty plea to attempted first-degree sexual assault. At P.S.'s request, his parents retained Attorney Kostich to represent him in postconviction proceedings. The client's mother paid Kostich an advance fee of $5000. At the time, Kostich's hourly rate was $200 per hour. There was no fee agreement between the parties and Kostich did not inform the client's mother that the fee was nonrefundable.
¶6 Attorney Kostich did file a timely notice of intent to pursue postconviction relief, obtained a copy of the case file from trial counsel, and had telephone conversations with the previous counsel and with the assistant district attorney. Although he does not keep billing records, the referee found that he also engaged in at least four hours of preliminary research and review of the case file. On May 14, 1999, he sent his client a copy of the notice of intent. However, that was the last correspondence he ever forwarded to this client.
¶7 In June 1999, Kostich met with P.S. at the Dodge County Correctional Institution. He did not inform P.S. at this meeting that he thought there were no grounds for an appeal.
¶8 Thereafter, Kostich failed to file various documents in the appeal. He failed to return P.S.'s numerous calls inquiring about the status of the appeal. Between March 1999 and July 2001, P.S.'s mother made repeated efforts to contact Kostich. Most were unsuccessful. On the few occasions she did see Kostich, he promised to work on the matter.
¶9 In June 2000, because of his inability to contact Kostich, P.S. contacted the Frank J. Remington Center at the University of Wisconsin Law School. In June 2000, he executed a release asking Kostich to send his file to the Frank J. Remington Center. Kostich failed to do so and failed to respond to telephone calls from Kurt Klomberg at the Frank J. Remington Center. In June 2002, the director of the Remington Center forwarded correspondence to Kostich seeking release of the file to which Kostich failed to respond. After ignoring several further requests, Kostich finally released P.S.'s file on August 9, 2002.
¶10 P.S. filed an initial grievance against Kostich and Kostich promised to act in the matter. He cited difficulties contacting previous counsel and difficulties obtaining transcripts as the cause for his delay. However, Kostich took no further action and a second grievance was filed on July 23, 2001.
¶11 Subsequently, Kostich sent several letters to the OLR, stating he was prepared to act on P.S.'s behalf. On November 21, 2001, he sent a letter stating that he found no grounds for appeal. He claimed he had been waiting for decisions on relevant case law, but the referee later found that the issue in question had been decided in 1996. In addition, the referee found that Kostich failed to respond promptly or fully to a number of further inquiries from the OLR, and from the OLR district committee.
¶12 The remaining charges against Attorney Kostich derive from allegations that he committed misconduct in his failure to respond to OLR questions regarding a grievance filed against him by another former client, J.H. Basically, the referee found that Kostich failed to respond to questions regarding the grievance and significantly delayed the investigation. Kostich's participation in the ensuing disciplinary proceeding was minimal.
¶13 Ultimately, the referee found that by failing to determine if P.S. had grounds for an appeal for over 30 months after he was retained to do so, Kostich failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3[2] (Count 1).
¶14 The referee found further that by failing to respond to P.S.'s letters or telephone calls, Kostich failed to keep his client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a)[3] (Count 2).
¶15 In addition, by failing to inform P.S. that he had no legal grounds for an appeal prior to the expiration of statutory deadlines, the referee found that Kostich failed to explain a matter to the extent reasonably necessary to permit P.S. to make an informed decision regarding representation, in violation of SCR 20:1.4(b)[4] (Count 3).
¶16 The referee also concluded that by not performing a sufficient amount of work on P.S.'s appellate issues to earn the full $5000 fee, and by not refunding any part of the fee after determining that P.S. did not have legal grounds for an appeal, Kostich failed, upon termination of representation to take steps reasonably practicable to protect a client's interests, such as refunding any advance payment of fees that have not been earned in violation of SCR 20:1.16(d)[5] (Count 4).
¶17 The referee found further that by failing to timely forward the P.S. file to the Frank J. Remington Center despite numerous requests, Kostich failed, upon termination of representation, to take steps reasonably practicable to protect a client's interests, such as surrendering papers to which the client is entitled, in violation of SCR 20:1.16(d) (Count 5).
¶18 Finally, the referee found that by failing to timely and/or fully respond to OLR's correspondence and questions, as well as those of the district committee investigator, Kostich willfully failed, during the course of an investigation, to provide relevant information, answer questions fully, or furnish documents, regardless of the merits, thus violating two counts of SCR 22.03(6),[6] both in regard to the P.S. matter and the J.H. matter (Counts 6 and 7).
¶19 Turning to the question of the appropriate discipline, the referee observed that the P.S. matter involved "serious neglect." Although the referee acknowledged that Kostich was busy during the time of the grievance investigation, traveling to the former Yugoslavia to participate in the International Criminal Tribunal, and was hindered by the breakup of his law firm, the referee noted that these events did not excuse Kostich's misconduct. The referee noted further that it was "very troubling" that Kostich made various claims to excuse his misconduct that were not substantiated. The referee ultimately concluded that a public reprimand was appropriate, together with an order requiring Kostich to pay restitution to P.S.'s mother in the amount of $3200 in unearned legal fees and recommended that Attorney Kostich pay the costs of the proceeding.
¶20 This court adopts a referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 974, 498 N.W.2d 380 (1993). The referee's conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 122, 310 N.W.2d 789 (1981).
¶21 Here, we adopt the referee's findings of fact and conclusions of law and agree that a public reprimand is appropriate discipline for the misconduct committed by Attorney Kostich in these two client matters. We agree, further, that it is appropriate to direct Attorney Kostich to pay restitution to P.S.'s mother in the amount of $3200, representing unearned legal fees, and that he should be required to pay the costs of this disciplinary proceeding, which are $9,064.70 as of November 24, 2004.
¶22 IT IS ORDERED that Nikola Kostich is publicly reprimanded for professional misconduct.
¶23 IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Nikola Kostich make restitution to his former client's mother in the amount of $3200, plus postjudgment interest, provided that if the restitution is not made within the time specified and absent a showing to this court of his inability to make the restitution within that time, the license of Nikola Kostich to practice law in Wisconsin shall be suspended until further order of the court.
¶24 IT IS FURTHER ORDERED that within 60 days of the date of this order Nikola Kostich pay to the Office of Lawyer Regulation all the costs of this proceeding provided that if such costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Nikola Kostich to practice law in Wisconsin shall be suspended until further order of the court.
¶25 DAVID T. PROSSER and LOUIS B. BUTLER, JR., J.J. did not participate.
NOTES
[1] SCR 22.17(2) provides: Review; appeal.
(2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court on its own motion, may order the parties to file briefs in the matter.
[2] SCR 20:1.3 provides: Diligence. "A lawyer shall act with reasonable diligence and promptness in representing a client."
[3] SCR 20:1.4(a) provides: Communication. "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
[4] SCR 20:1.4(b) provides: Communication. "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
[5] SCR 20:1.16(d) provides: Declining or terminating representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
[6] SCR 22.03(6) provides: Investigation. "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."
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Offense, unlawfully furnishing intoxicating liquor; penalty, one year in the penitentiary.
It is charged in the second count of the indictment in substance that appellant unlawfully furnished to Rufus Beasley spiritous liquors capable of producing intoxication by then and there giving to the said Beasley such liquors. Beasley testified that appellant did hand him a bottle of liquor out of which he drank and which was thrown back of a bakery shop. Two witnesses present saw a part of the transaction but did not know the contents of such bottle. A bottle was found four hours after this transaction back of the bakery shop and over objection of appellant was offered in evidence. It had a little liquor in it and the jurors were permitted to smell it. The witness Beasley when arrested claimed to the officer that he had been drinking extracts. None of the witnesses present, including Beasley, would positively identify the bottle introduced in evidence as that from which witness drank and which formed the basis of the prosecution. The testimony shows that bottles of like kind were frequently behind this shop. An officer testified: "whiskey was in that bottle but only a little bit remained." We regard the record as in such condition as justified the jury in disbelieving Beasley with reference to having been given whiskey by appellant. The introduction of this bottle and its contents might alone have justified the jury in finding appellant guilty, though they did disbelieve Beasley's statement with reference to appellant giving him whiskey. Since this bottle was not identified and may have formed the basis of the verdict of guilty herein, we are of the opinion that its introduction was error of such character as to demand a reversal.
Interesting law questions suggest themselves regarding the validity of the indictment herein as well as the statute under which same was drawn, but since a further disposition of this case may render their decision unnecessary, we pretermit discussion of these.
Reversed and remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 182
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07-06-2016
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[Cite as In re Adoption of H.W., 2018-Ohio-460.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
IN RE: THE PLACEMENT OF:
CASE NO. 16-17-05
H.W.
[MARY WALTON - APPELLANT] OPINION
[MARK WALTON - APPELLANT]
IN RE: THE ADOPTION OF:
CASE NO. 16-17-06
H.W.
[MARY WALTON - APPELLANT] OPINION
[MARK WALTON - APPELLANT]
Appeals from Wyandot County Common Pleas Court
Probate Division
Trial Court Nos. 20175010 and 20175011
Judgments Reversed and Cause Remanded
Date of Decision: February 5, 2018
APPEARANCES:
James W. Fruth for Appellant
Case Nos. 16-17-05, 16-17-06
PRESTON, J.
{¶1} Petitioners-appellants, Mark A. Walton and Mary E. Walton (the
“Waltons”), appeal the September 20, 2017 decision of the Wyandot County Court
of Common Pleas, Probate Division (“Probate Court”), concluding that it did not
have jurisdiction to determine the Waltons’ petition to adopt H.W. For the reasons
that follow, we reverse.
{¶2} This case stems from a petition to adopt H.W. filed by the Waltons on
July 11, 2017 in the Probate Court. (Case No. 20175011, Doc. No. 1). The facts of
this case are intertwined with an abuse, neglect, and dependency case involving
H.W. in the Sandusky County Court of Common Pleas, Juvenile Division (“Juvenile
Court”).
{¶3} H.W., who tested positive for drugs when he was born in June 2015,
was placed in the foster care of the Waltons after the Sandusky County Department
of Job and Family Services (“SCDJFS”) was granted temporary custody of H.W. on
July 15, 2015. (See Case No. 20175011, Doc. Nos. 2, 24). The SCDJFS removed
H.W. from the foster care of the Waltons on October 26, 2016 “due to safety
concerns for [H.W.] if he remained in [the Waltons’] home.” (Case No. 20175011,
Doc. No. 5).
{¶4} The same day that the Waltons filed their petition to adopt H.W.,
H.W.’s biological parents filed in the Probate Court applications of “Consent for
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Case Nos. 16-17-05, 16-17-06
Placement of Child for Private Adoption” consenting to the placement of H.W. with
the Waltons for the purpose of adoption. (Case No. 20175010, Doc. Nos. 1, 2). The
Waltons previously adopted H.W.’s half-sister. (See Case No. 20175010, Doc. No.
7). Two days after the Waltons filed their petition to adopt H.W., a permanent-
custody hearing was held in the Juvenile Court. (See Case No. 20175010, Doc. No.
10); (Case No. 20175011, Doc. No. 6).
{¶5} On July 20, 2017, the SCDJFS objected to the Waltons’s petition to
adopt H.W. (Case No. 20175010, Doc. No. 3); (Case No. 20175011, Doc. No. 2).
The next day, the Waltons filed a “Motion to Strike Pleadings” arguing that the
SCDJFS “lacks standing in this matter and is not a party to this proceeding.” (Case
No. 20175010, Doc. No. 5); (Case No. 20175011, Doc. No. 4). On August 7, 2017,
the SCDJFS filed a motion to intervene in the Probate Court case. (Case No.
20175010, Doc. No. 9); (Case No. 20175011, Doc. No. 5). That same day the
SCDJFS filed its answer to the Waltons’ petition to adopt H.W. (Case No.
20175010, Doc. No. 10); (Case No. 20175011, Doc. No. 6).
{¶6} On August 8, 2017, the Waltons objected to the SCDJFS motion to
intervene in the Probate Case. (Case No. 20175010, Doc. No. 15); (Case No.
20175011, Doc. No. 7).
{¶7} On September 19, 2017, the SCDJFS moved to dismiss the Waltons’
petition to adopt H.W. because the Juvenile Court “filed a Judgment Entry granting
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Case Nos. 16-17-05, 16-17-06
the [SCDJFS] Permanent Custody of [H.W.] on September 13, 2017.” (Case No.
20175010, Doc. No. 39); (Case No. 20175011, Doc. No. 24). (See also Case No.
20175010, Doc. No. 40); (Case No. 20175011, Doc. No. 25).
{¶8} On September 20, 2017, the Probate Court issued an entry concluding
that it lacked jurisdiction to consider the Waltons’ petition. (Case No. 20175010,
Doc. No. 41); (Case No. 20175011, Doc. No. 26). In its entry, the Probate Court
“dismissed” “all pending motions.” (Id.); (Id.).
{¶9} The Waltons filed “Motion to Reconsider and Stay Judgment Entry of
September 20, 2017 and Memorandum in Opposition to Motion to Dismiss” on
September 20, 2017. (Case No. 20175010, Doc. No. 42); (Case No. 20175011, Doc.
No. 27). On September 22, 2017, the SCDJFS filed “Motion to Dismiss Petitioners
[sic] Motion to Reconsider and Stay Judgment Entry.” (Case No. 20175010, Doc.
No. 43); (Case No. 20175011, Doc. No. 28). On October 3, 2017, the Probate Court
denied the Waltons’ motion. (Case No. 20175010, Doc. No. 44); (Case No.
20175011, Doc. No. 29).
{¶10} On October 9, 2017, the Waltons filed their notice of appeal of the
Probate Court’s September 20, 2017 and October 3, 2017 entries. (Doc. No. 194).
They raise one assignment of error for our review.
Assignment of Error
The Wyandot County Probate Court Erred in Finding that it
Lacked Jurisdiction Over the Appellants’ Adoption Petition
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Case Nos. 16-17-05, 16-17-06
{¶11} In their assignment of error, the Waltons argue that the trial court erred
by concluding that it lacked jurisdiction to consider their petition to adopt H.W. In
particular, the Waltons argue that, under State ex rel. Allen Cty. Children Servs. Bd.
v. Mercer Cty. Common Pleas Court, Prob. Div., 150 Ohio St.3d 230, 2016-Ohio-
7382, exclusive, original jurisdiction vested with the Probate Court to determine
their petition to adopt H.W. at the time they filed their petition.
{¶12} As an initial matter, we must address the participation of the SCDJFS
in this case. The SCDJFS is not a party to the adoption proceeding—that is, the
Probate Court dismissed all motions pending in the case when it concluded that it
did not have jurisdiction to determine the adoption petition. Stated another way, the
Probate Court denied the SCDJFS’s motion to intervene in the case.
{¶13} Because the SCDJFS is not a party to the case, it follows that
documents filed by the SCDJFS are not properly part of the record. Indeed, because
the SCDJFS is not a party to the adoption proceeding, we sustained the Waltons’
motion to strike the “appellees” brief filed by the SCDJFS.1 See Short v. Short, 4th
Dist. Pike No. 12CA834, 2014-Ohio-5684, ¶ 14-15, quoting Hokes v. Ford Motor
Co., 9th Dist. Summit No. 22602, 2005-Ohio-5182, ¶ 6. See also Burton Carol
Mgt., LLC v. Ziegler, 11th Dist. Lake No. 2014-L-130, 2015-Ohio-4924, ¶ 2;
1
On January 11, 2018, this court granted the SCDJFS’s motion for leave to file a brief of amicus curiae and
considered its brief filed November 20, 2017 for that purpose.
-5-
Case Nos. 16-17-05, 16-17-06
Ambrosia Coal & Constr. Co. v. C.B.G. Inc., 7th Dist. Mahoning No. 00CA101,
2001 WL 1123901, *2 (Sept. 14, 2001). Moreover, neither this court, nor the trial
court, can consider evidence that is not part of the official record. See Raymond
Builders Supply, Inc. v. Slapnicker, 11th Dist. Ashtabula No. 2003-A-0040, 2004-
Ohio-1437, ¶ 10 (“Neither this court, nor the trial court, can consider evidence that
is not part of the official record.”).
{¶14} Turning to the Waltons’ argument, “[t]he lack of subject matter
jurisdiction is a question of law and addresses whether the plaintiff has alleged any
cause of action over which the court has authority to decide.” Couch v. Ohio Civ.
Serv. Emps. Assn., 3d Dist. Allen No. 1-10-45, 2010-Ohio-6258, ¶ 10, citing
McHenry v. Indus. Comm. of Ohio, 68 Ohio App.3d 56, 62 (4th Dist.1990). An
appellate court reviews de novo a trial court’s dismissal for lack of subject matter
jurisdiction. Id., citing Antram v. Upper Scioto Valley Local School Dist. Bd. of
Edn., 3d Dist. Hardin No. 6-08-04, 2008-Ohio-5824, ¶ 6. “De novo review is
independent and without deference to the trial court’s determination.” ISHA, Inc. v.
Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner
Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th
Dist.).
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{¶15} The Supreme Court of Ohio addressed the jurisdiction of a Juvenile
Court and a Probate Court in cases concerning a child that is part of an abuse,
neglect, and dependency case and a private-adoption case:
A juvenile court has “exclusive original jurisdiction * * *
[c]oncerning any child who on or about the date specified in the
complaint * * * is alleged * * * to be a * * * delinquent, unruly,
abused, neglected, or dependent child.” R.C. 2151.23(A)(1).
***
The juvenile court “shall retain jurisdiction over any child for
whom the court issues an order of disposition” pursuant to R.C.
2151.353(A) until the child reaches the age of 18 or 21 years or until
“the child is adopted and a final decree of adoption is issued.” R.C.
2151.353(F)(1). The retained jurisdiction following a dispositional
order issued pursuant to R.C. 2151.353(A)—including an order of
temporary custody under R.C. 2151.353(A)(2)—is “continuing
jurisdiction,” R.C. 2151.417(B), subject to termination by an adoption
decree.
Thus, a juvenile court’s exclusive jurisdiction terminates upon
the issuance of a dispositional order pursuant to R.C. 2151.353(A).
***
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Case Nos. 16-17-05, 16-17-06
In contrast to the juvenile court’s continuing jurisdiction over an
abused, neglected, or dependent child, “the original and exclusive
jurisdiction over adoption proceedings is vested in the probate court,”
In re Adoption of Pushcar, 110 Ohio St.3d 332, 2006-Ohio-4572, ¶ 9,
and the adoption statutes broadly permit “[a]ny minor” to be adopted
by “[a] husband and wife together, at least one of whom is an adult,”
R.C. 3107.02(A) and 3107.03(A).
State ex rel. Allen Cty. Children Servs. Bd., 150 Ohio St.3d 230, 2016-Ohio-7382,
at ¶ 21-24.
{¶16} “R.C. 5103.16(D)(1) permits the parent or parents of a child to arrange
a private adoption without going through an authorized agency by appearing
personally and applying to the probate court for approval of a proposed adoptive
placement.” Id. at ¶ 26. The Supreme Court of Ohio “recognized that a parent need
not have physical custody of the child to utilize the procedure for private adoptive
placement in R.C. 5103.16(D).” Id. at ¶ 28, citing In re Adoption of J.A.S., 126 Ohio
St.3d 145, 2010-Ohio-3270, ¶ 21 (“Although the statute requires the biological
parents to seek court approval of placement, this does not mean that the children
must physically be with the biological parents in order for them to file.”). “Rather,
the parent’s right to consent to an adoption of a child subject to the juvenile court’s
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Case Nos. 16-17-05, 16-17-06
continuing jurisdiction depends on the dispositional order that the court entered and
whether it grants temporary or permanent legal custody.” Id. at ¶ 29.
{¶17} As the Supreme Court explained, “‘[t]emporary custody’ means ‘legal
custody of a child who is removed from the child’s home, which custody may be
terminated at any time at the discretion of the court.’” (Emphasis added.) Id. at ¶
30, quoting R.C. 2151.011(B)(56).
“‘Legal custody’ is ‘a legal status that vests in the custodian the right
to have physical care and control of the child and to determine where
and with whom the child shall live, and the right and duty to protect,
train, and discipline the child and to provide the child with food,
shelter, education, and medical care, all subject to any residual
parental rights, privileges, and responsibilities.’”
(Emphasis added.) Id. at ¶ 31, quoting R.C. 2151.011(B)(21).
“In turn, ‘residual parental rights, privileges, and
responsibilities’ is defined to mean ‘those rights, privileges, and
responsibilities remaining with the natural parent after the transfer of
legal custody of the child, including, but not necessarily limited to,
the privilege of reasonable visitation, consent to adoption, the
privilege to determine the child’s religious affiliation, and the
responsibility for support.’”
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Case Nos. 16-17-05, 16-17-06
(Emphasis added.) Id., quoting R.C. 2151.011(B)(49).
“‘Permanent custody’ is different from legal custody. It means
‘a legal status that vests in a public children services agency or a
private child placing agency, all parental rights, duties, and
obligations, including the right to consent to adoption, and divests the
natural parents or adoptive parents of all parental rights, privileges,
and obligations, including all residual rights and obligations.”
(Emphasis added.) Id. at ¶ 32, quoting R.C. 2151.011(B)(32).
{¶18} “‘The important distinction is that an award of legal custody of a child
does not divest parents of their residual parental rights, privileges, and
responsibilities.” (Emphasis added.) Id. at ¶ 33, quoting In re C.R., 108 Ohio St.3d
369, 2006-Ohio-1191, ¶ 17.
{¶19} “Accordingly, the authority of the probate court to order preadoption
placement pursuant to R.C. 5103.16(D) is therefore within its exclusive, original
jurisdiction over adoption proceedings, notwithstanding the fact that the child is
subject to the continuing jurisdiction of the juvenile court.” Id. at ¶ 36.
{¶20} In this case, the Juvenile Court’s exclusive, original jurisdiction over
H.W. granted by R.C. 2151.23(A)(1) terminated after it adjudicated him an abused,
neglected, or dependent child and issued a disposition of temporary custody. As
such, at the time the Waltons filed their petition to adopt H.W., the Juvenile Court
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Case Nos. 16-17-05, 16-17-06
was exercising its continuing jurisdiction over H.W. Accord id. at ¶ 23 (“The
Juvenile Court’s exclusive jurisdiction over M.S. granted by R.C. 2151.23(A)(1)
therefore ended after it adjudicated her an abused, neglected, or dependent child and
issued a disposition of temporary custody, and it is now exercising continuing
jurisdiction over the child.”). The Juvenile Court’s continuing jurisdiction did not
divest the Probate Court of its exclusive, original jurisdiction over the adoption
proceedings initiated by the Waltons. See id. at ¶ 40.
{¶21} Nevertheless, the Probate Court concluded that it was without
jurisdiction to consider the adoption petition since the Juvenile Court awarded
permanent custody of H.W. to the SCDJFS on September 13, 2017—evidence that
the Probate Court should not have considered since it is not part of the official
record. However, the Probate Court was vested with exclusive, original jurisdiction
when the Waltons filed their petition to adopt H.W. simultaneously with the consent
of H.W.’s biological parents. Stated another way, because H.W. was in the
temporary custody of the SCDJFS at the time the Waltons filed their petition to
adopt H.W., H.W.’s biological parents retained their residual parental rights,
including the ability to consent to adoption. Moreover, that a permanent-custody
proceeding was initiated in the Juvenile Court did not alter the continuing
jurisdiction of the Juvenile Court. See id. at ¶ 21-23. Thus, the Probate Court had
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Case Nos. 16-17-05, 16-17-06
exclusive, original jurisdiction to determine the Waltons’s petition to adopt H.W.
See id. at ¶ 24.
{¶22} For these reasons, we conclude that the Probate Court has exclusive,
original jurisdiction to consider the Waltons’s petition to adopt H.W. See id. at ¶
41. The Waltons’s assignment of error is sustained.
{¶23} Having found error prejudicial to the appellant herein in the particulars
assigned and argued, we reverse the judgments of the trial court and remand for
further proceedings consistent with this opinion.
Judgments Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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J-S95023-16
2017 PA Super 408
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ERIC TORRES
Appellant No. 2241 EDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011169-2013
CP-51-CR-0011170-2013
CP-51-CR-0011171-2013
CP-51-CR-0011172-2013
CP-51-CR-0011173-2013
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
CONCURRING OPINION BY MOULTON, J.: FILED DECEMBER 22, 2017
I agree with the majority that the Commonwealth’s affidavit of probable
cause failed to establish a sufficient nexus between the crimes under
investigation and the search proposed in the warrant.1 I write separately,
however, to note my concern about the broad application of two of this Court’s
decisions from over 30 years ago -- Commonwealth v. Kline, 335 A.2d 361
(Pa.Super. 1975) (en banc), and Commonwealth v. Way, 492 A.2d 1151
(Pa.Super. 1985).
____________________________________________
I agree with the majority that the trial court properly denied Torres’
1
motion to sever and that we need not reach the sentencing issues because
the judgment of sentence is vacated.
J-S95023-16
Kline and Way both addressed warrants to search the homes of
suspected drug dealers. In each case, we found insufficient evidence of a
connection between the illegal activity – selling drugs outside of the home –
and the home itself to provide probable cause to search the defendant’s home
for drugs. In Kline, this Court affirmed a trial court’s conclusion that the
affidavit did not contain probable cause to search the appellee’s home. 335
A.2d at 364. We noted that the affidavit merely stated the informants’
unsupported conclusion that drugs were in the appellee’s apartment and did
not “set forth how information leading to such a conclusion was obtained.”
Id. Further, “[t]here [wa]s no indication of where the transaction took place,
how long it took, how long [appellee] was gone, or what led the girls to
conclude that he had gone to his apartment.” Id. We concluded that,
although the information tended to establish the appellee was a drug dealer,
it did not support a conclusion that the appellee “kept drugs in his apartment.”
Kline, 335 A.2d at 364.
Similarly, in Way, this Court found the affidavit did not contain sufficient
facts to believe drugs would be found at a particular location when: the
informant arranged the drug transaction by phone; the transaction occurred
in a blue van along a country road; the police followed the blue van to a
driveway of a property at the corner of Douglas Drive and Glendale Road; the
informant identified appellant as the driver of the blue van; and a police source
told the affiant that appellant lived at the intersection of Douglas Drive and
Glendale Road. Way, 492 A.2d at 1154.
-2-
J-S95023-16
Kline and Way offer two important lessons relevant to this matter.
First, “[p]robable cause to believe that a man has committed a crime on the
street does not necessarily give rise to probable cause to search his home.”
Kline, 335 A.2d at 364. In other words, the affidavit must support the finding
of a nexus between the criminal activity and the home. Second, evidence of
drug dealing unconnected to a home does not, without more, give probable
cause to believe that additional contraband will be found in the home. Cf.
Commonwealth v. Gagliardi, 128 A.3d 790, 798 (Pa.Super. 2015)
(distinguishing Kline and Way where affidavit contained information
regarding where the transactions took place and what led police to conclude
defendant left his home prior to, and returned home after, drug sale). The
latter point is based in part on the common sense notion, reinforced by
experience, that drug dealers often take pains to store their drugs away from
their homes. Cf. Wayne R. LaFave, Search and Seizure, § 3.7(d), text
accompanying footnote 210 (October 2016 update) (noting that drugs are
“inherently incriminating” and “readily concealable in other possible hiding
places” and therefore less likely than stolen property to be found in a suspect’s
home). “Indeed, in Way, the totality of the circumstances demonstrated that
the defendant’s base of operations for his drug dealing was his blue van,” not
his home. Gagliardi, 128 A.3d at 798.
In contrast to the drugs sought in Kline and Way, here the affidavit
claimed probable cause to believe that ammunition, gun boxes/containers, or
ballistics evidence consistent with the gun found at the scene would be found
-3-
J-S95023-16
at Torres’ home. Unlike drugs, guns are not inherently incriminating, see,
e.g., Staples v. United States, 511 U.S. 600, 610 (1994) (noting “long
tradition of widespread lawful gun ownership by private individuals in this
country”), and neither experience nor common sense suggests that we should
presume gun owners will take pains to keep evidence of such ownership out
of their homes. Cf. LaFave, Search and Seizure, § 3.7(d), at text
accompanying note 214 (“Where the object of the search is a weapon used in
the crime or clothing worn at the time of the crime, the inference that the
items are at the offender’s residence is especially compelling . . . .”). Indeed,
this Court has stated that guns are the type of evidence “reasonably likely to
be found in the perpetrator’s home.” Commonwealth v. Hutchinson, 434
A.2d 740, 743 (Pa.Super. 1981).
Based in part on this gun / drug distinction, the Commonwealth argues
that the issuing authority properly concluded that, because Torres was found
in possession of a gun just a few blocks from his home, it was reasonable to
infer that some evidence of his connection to the gun, be it ammunition,
containers, or otherwise, would be located at his home.2 I agree with the
____________________________________________
2Several courts have confronted the question whether probable cause
exists under similar facts and said yes. See, e.g., United States v.
Williams, 544 F.3d 683, 688 (6th Cir. 2008) (holding issuing authority could
infer defendant kept handgun at residence where affidavit had evidence that
defendant possessed multiple guns and recently had used them to further
criminal activity); United States v. Jones, 994 F.2d 1051, 1056-57 (3d Cir.
1993) (noting that cash, clothing and firearms are type of evidence likely to
be stored at suspect’s residence); Iowa v. Gathercole, 553 N.W.2d 569, 574
-4-
J-S95023-16
Commonwealth that the logic of Kline and Way3 -- that drug dealers should
not be presumed to store drugs at their homes – does not apply with equal
____________________________________________
(Iowa 1996) (finding probable cause to search home and noting it was
“reasonable to infer that stolen property would be found at a defendant’s
residence” and “reasonable to believe that guns will be kept on the subject’s
person or in his residence”); Maryland v. Ward, 712 A.2d 534, 537 (Md.
1998) (probable cause to find nexus between evidence of murder and noting
prior case “uph[eld a] warrant based on police allegation of a crime,
knowledge of the suspect's address, detailed description of the weapon and
absence of weapon on suspect at time of arrest” (quoting Maryland v. Mills,
363 A.2d 491 (Md. 1976))).
3 I note that Kline and Way were both decided over 30 years ago. While
they have not been overruled and remain good law, I also note that many
more recent cases in other jurisdictions have been less rigid in requiring an
express evidentiary nexus between drug dealing outside the home and the
home itself, particularly when the affiant draws the connection based on
experience. See, e.g., United States v. Cardoza, 713 F.3d 656, 660-61
(D.C. Cir. 2013) (finding that because there was probable cause to believe
defendant was involved in drug trafficking, there was probable cause to search
home, noting affiant stated that in his experience traffickers often keep
additional supplies of drugs, weapons, and cash at their residences, and
concluding that “[w]hen there is probable cause that a defendant is dealing
drugs, there often tends to be probable cause that evidence of that drug
dealing will be found in the defendant’s residence”); United States v.
Biglow, 562 F.3d 1272, 1280, 1283 (10th Cir. 2009) (noting that magistrate
judges “may ‘rely on the opinion’ of law enforcement officers” as to where
evidence linking defendant to criminal activity may be located, may rely on
“additional evidence” linking criminal activity to residence, and may rely on
“normal inferences” about location of evidence, and concluding that affiant’s
statement in affidavit that “drug dealers often keep evidence related to their
illegal activities at their homes” provided “additional evidence necessary to
establish a nexus between” suspected drug trafficking activities and
defendant’s residence); United States v. Keele, 589 F.3d 940, 944 (8th Cir.
2009) (finding probable cause to search home where evidence of drugs found
in car and experienced opinion of agent stated drug manufacturers often keep
contraband and proceeds at home); Minnesota v. Yarbrough, 841 N.W.2d
619, 623-24 (Minn. 2014) (noting “it may be reasonable to infer that drug
wholesalers keep drugs at their residence,” and finding sufficient nexus where
-5-
J-S95023-16
force to the storage of firearms and ammunition related to criminal activity.
Nevertheless, the failure of the affidavit in this case to make any connection
between gun use for criminal purposes and the possession of related evidence
in the gun user’s home is a fatal flaw.4 Accordingly, I agree with the majority
that we must vacate Torres’ judgment of sentence.
____________________________________________
affidavit stated reliable informant informed police that defendant was cocaine
dealer, defendant brandished handgun because someone had stolen large
amount of cocaine from him, and defendant had been previously arrested for
PWID); see also LaFave, Search and Seizure, § 3.7(d).
4The affidavit in this case contains no statement from the affiant about
his (or any other officer’s) experience in investigating gun possession cases
that would draw the issuing authority’s attention to the likelihood of finding
gun evidence in Torres’ home. Had such information been included, as it often
is, see, e.g., Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013)
(finding probable cause to search apartment where affidavit averred deceased
was in contact with defendant prior to murder, that they had been in an
extramarital affair, and defendant “went on the run,” and that in officer’s
experience defendant’s home likely would reveal trace evidence of crime);
LaFave § 3.7(d), at text accompanying note 198, Torres’ argument would have
been much weaker.
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Matter of Maloney v Wende Corr. Facility (2018 NY Slip Op 00374)
Matter of Maloney v Wende Corr. Facility
2018 NY Slip Op 00374
Decided on January 18, 2018
Appellate Division, Third 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 and Entered: January 18, 2018
525127
[*1]In the Matter of the Claim of SHAWN MALONEY, Appellant,
vWENDE CORRECTIONAL FACILITY et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.
Calendar Date: December 14, 2017
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
Losi & Gangi, PC, Buffalo (Thorice M. Jacobs of counsel), for appellant.
William O'Brien, State Insurance Fund, Buffalo (Thomas P. Etzel of counsel), for Wende Correctional Facility and another, respondents.
Egan Jr., J.
MEMORANDUM AND ORDER
Appeal from a decision of the Workers' Compensation Board, filed August 18, 2016, which ruled, among other things, that claimant had a 50% schedule loss of use of his right arm.
Claimant, a correction officer, injured his right shoulder while working at Wende Correctional Facility on July 30, 2013. He filed a claim for workers' compensation benefits that was not controverted, and his case was established for a work-related
injury to his right shoulder. Thereafter, claimant was medically evaluated for purposes of determining the permanency of his injury. Michael Grant, claimant's treating orthopedist, issued a report opining that claimant sustained a 90% schedule loss of use (hereinafter SLU) of his right arm. However, Gregory Shankman, the orthopedist who conducted an independent medical examination of claimant, issued a report opining that he sustained only a 50% SLU. Following the issuance of these conflicting reports, the employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) made a request for further action, and a hearing was conducted before a Workers' Compensation Law Judge (hereinafter WCLJ). At the conclusion of the hearing, the WCLJ credited Shankman's opinion over Grant's and found that claimant sustained a 50% SLU of the right arm. The Workers' Compensation Board [*2]subsequently upheld the WCLJ's decision, and this appeal by claimant ensued.[FN1]
Initially, claimant contends that the employer failed to file a prehearing conference statement as directed by the Board prior to the hearing and, pursuant to 12 NYCRR 300.38 (4), waived any defenses to the 90% SLU award that was assigned to claimant's injury by Grant. We disagree. As is evident from our review of Workers' Compensation Law § 25 (2-a) (a), 12 NYCRR 300.38 and the case law interpreting it, the filing of a prehearing conference statement is contemplated where the claim for workers' compensation benefits is controverted (see Matter of Butler v General Motors Corp., 87 AD3d 1260, 1261 [2011]; Matter of Smith v Albany County Sheriff's Dept., 82 AD3d 1334, 1334-1335 [2011], lv denied 17 NY3d 770 [2011]). Here, the employer did not controvert the claim, and the Board acknowledged that its directive to the employer to file a prehearing conference statement was error. Accordingly, the employer was not precluded during the proceedings before the WCLJ from challenging the 90% SLU award proposed by Grant.
Turning to the merits, section 2.5 of the New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (2012) sets forth the parameters for medical experts to follow in formulating an SLU award for a shoulder injury. In this case, both Grant and Shankman applied the guidelines, but they reached different conclusions as to the SLU percentage applicable to claimant's injury. We note that the Board is vested with the authority to resolve conflicting medical opinions concerning the SLU percentage to be assigned to a specific injury (see Matter of Cullen v City of White Plains, 45 AD3d 1167, 1168 [2007]; Matter of Raffiani v Allied Sys., Ltd., 27 AD3d 983, 984 [2006]). Furthermore, judicial review is limited, and the Board's determination will not be disturbed as long as it is supported by substantial evidence (see Matter of Grugan v Record, 84 AD3d 1648, 1649 [2011]; Matter of Cullen v City of White Plains, 45 AD3d at 1168).
In formulating their respective SLU percentages, both Grant and Shankman assigned a 10% value to claimant's rotator cuff tear under special consideration number eight of the guidelines (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 24 [2012]). Shankman also assigned a 40% loss of use for the decrease in range of motion in anterior flexion and abduction to 90 degrees under table 2.11, resulting in a total SLU of 50% (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 23 [2012]). Like Shankman, Grant also assigned a 40% loss of use for the decrease in range of motion in anterior flexion to 90 degrees under table 2.11. However, in addition to this and the 10% loss of use attributable to the rotator cuff, he assigned another 40% loss of use for the decrease in range of motion in abduction to 90 degrees under section 2.5 (3) of the guidelines, resulting in a total SLU of 90% (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 23 [2012]).
The dispositive issue is whether, in determining the SLU percentage applicable to a shoulder injury, it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage. The guidelines do not specifically address this issue. The Board, however, recently addressed it in Employer: NFTA Metro (2016 WL 1272544 [WCB No. G048 9491, Mar. 23, 2016]) in an effort to bring clarity to its own prior inconsistent decisions. In that case, the Board decided to follow [*3]the precedent established in Employer: USF Holland (2015 WL 9598712 [WCB No. G048 9474, Dec. 31, 2015]) and Matter of Gowanda Correctional Facility (2015 WL 4640727 [WCB No. G060 0721, July 29, 2015]), and concluded that separate values should not be assigned for anterior flexion and abduction deficits in determining an SLU award for a shoulder injury. Significantly, the Board noted that adding together separate values for anterior flexion and abduction deficits could produce an entirely illogical result. Specifically, the combined value could exceed 80%, the SLU percentage that under the guidelines is applicable to a claimant with ankylosis — an impairment of the shoulder restricting the range of motion to zero degrees — and a claimant with a lesser injury and greater range of motion might actually obtain a more favorable SLU award (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 23 [2012]).
Here, due to the duplication of values for deficits in anterior flexion and abduction, the 90% SLU award proposed by Grant would provide claimant with a greater award than a claimant with ankylosis of the shoulder. Moreover, the record reflects that claimant's shoulder impairment is not totally disabling as Grant cleared him to return to work at full duty without restrictions following his shoulder surgery. In view of the foregoing, and given that the Board was free to credit Shankman's medical opinion over Grant's, we find that substantial evidence supports the Board's decision upholding the 50% SLU award.
McCarthy, J.P., Devine, Mulvey and Rumsey, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Footnotes
Footnote 1: Claimant also applied for full Board review of this decision, but it was denied. He has not appealed that decision.
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JEFFREY T. ROWE and )
REBECCA L. ROWE, husband and ) No. 74724-0-1
wife and the marital community )
comprised thereof, )
) DIVISION ONE
Respondents, )
)
v. )
)
JOEL K. KLEIN and KAREN L. KLEIN, )
husband and wife and the marital )
community comprised thereof, )
)
Defendants. )
)
JEFFREY T. ROWE and )
REBECCA L. ROWE, husband and )
wife and the marital community )
comprised thereof, )
)
Respondents, )
)
v. )
)
TRENT R. ADAMS and ) PUBLISHED OPINION
MELISSA J. ADAMS, husband and )
wife and the marital community )
comprised thereof, )
)
Petitioners, )
) FILED: January 29, 2018
SPEARMAN, J. — A statutory warranty deed includes both present and future
covenants. The present covenants guarantee conditions at the time the deed is
executed. These covenants are breached, if at all, at conveyance. The future
No. 74724-0-1/2
covenants protect a buyer's future right to the land. These covenants are generally
breached after conveyance, when a third party asserts a claim to the property.
Jeffrey and Rebecca Rowe(Rowe) bought property from Trent and Melissa
Adams(Adams) via statutory warranty deed in 2008. In 2014, a neighbor, Klein,
sought to quiet title in a portion of the property by adverse possession. Six years and
three months after Rowe bought the land, he sued Adams for breach of warranties
and covenants. Adams moved to dismiss on the theory that Rowe's claims were
barred by the six year statute of limitations. The trial court denied Adams' motion to
dismiss but certified for review, the question of when the statute of limitations began
to run.
The statute of limitations on the covenant of seisin, a present covenant,
began to run at conveyance, because a present covenant, if breached at all, is
breached at the time of conveyance.' The statute of limitations on the warranty to
defend, a future covenant, began to run when Adams refused Rowe's tender of
defense. The statute of limitations on the warranty of quiet possession, the other
future covenant, began to run when Rowe was actually or constructively evicted
from the land claimed by Klein.
The trial court erred in denying Adams' motion to dismiss as to the present
covenants. The trial court did not err in denying Adams' motion to dismiss the claim
1The warranty against encumbrances is also a present covenant which is breached, if at all,
at the time it is made. Ensberc v. Nelson, 178 Wn. App. 879, 886, 320 P.3d 97(2013)(citing Moore v.
Gillingham, 22 Wn.2d 655, 661, 157 P.2d 598 (1945)). This warranty guarantees that no third party
has a right to, or interest in, the real property such as a lien or easement. Id. at 887 (citing Hebb v.
Severson, 32 Wn.2d 159, 167, 201 P.2d 156 (1948)).
Neither party addresses the warranty against encumbrances. Any cause of action for breach
of this warranty accrued at conveyance and was time barred when Rowe filed his complaint.
2
No. 74724-0-1/3
for breach of the warranty to defend. As to the warranty of quiet possession, the trial
court did not err in denying Adams' motion to dismiss except as to that portion of the
land occupied by Klein's greenhouse at the time of conveyance.
FACTS
Rowe bought lot 4 from Adams in August 2008 by statutory warranty deed.
Lot 4 is adjacent to and south of lot 3, the Klein property. The boundary between lots
3 and 4 is about 140 feet long and runs from east to west.
'The 10 foot strip on the northern boundary of lot 4 has patches of grass,
cedar trees, rhododendrons, and blackberry bushes. Part of the area is a leach field
for a septic system. Towards the front of the lots, a crushed rock parking strip on lot
3 abuts the surveyed boundary line. At the back of the lots, a greenhouse on lot 3
extends over the property line. About 10 feet south of the boundary, on lot 4, a chain
link fence runs from east to west for about 30 feet. The fence is attached to Rowe's
back porch. Rowe believed the fence was part of a previous owner's dog run.
Rowe had lot 4 surveyed in 2010. The survey showed that Klein's
greenhouse encroached onto lot 4. Klein's parking strip was on lot 3, but vehicles
parked on the strip encroached a few feet onto Rowe's property.
Rowe intended to terrace the northern boundary of lot 4 and began this work
in 2013. Klein objected. Klein asserted that he had maintained the northern 10 feet
of lot 4 as his own since buying lot 3 in 1974. Klein contended the chain link fence
marked the property line.
In 2014, Rowe filed a complaint to eject Klein and quiet title. Klein
counterclaimed for adverse possession. Klein asserted that he had exclusively
3
No. 74724-0-1/4
possessed and maintained the property from 1974 to 1984 and had thus acquired
the land by adverse possession before either Adams or Rowe bought lot 4. Because
his claim to the property was based on his possession from 1974 to 1984, Klein
argued that he had no burden to show that he continued to hold the property after
1984 and any evidence of how the property was used after 1984 was irrelevant. The
trial court granted Klein's motion for summary judgment and quieted title in him.
In July 2014, while the action with Klein was in progress, Rowe tendered
defense of Klein's adverse possession claim to Adams. Adams did not respond and
in December 2014, Rowe filed a third party complaint asserting breach of the
covenants of seisin, encumbrances, quiet possession, and the covenant to defend.
Adams moved to dismiss under CR 12(c), asserting that Rowe's claims were
time barred. Adams contended the statute of limitations on the covenants in the
warranty deed began to run at conveyance. Rowe opposed the motion and asserted
that the statute of limitations did not begin to run until Klein established paramount
title.
Although Adams' motion to dismiss presented a purely legal issue, the court
recited the underlying facts for context. The court stated that, at the time of
conveyance, neither Adams nor Rowe was aware that Klein had adversely
possessed a portion of lot 4. The court ruled that the statute of limitations did not
begin to run until Klein perfected title in the disputed land and, thus, Rowe's claims
were not time barred. The court denied Adams' motion to dismiss.
4
No. 74724-0-1/5
The trial court denied Adams' motion for reconsideration but granted his
motion to certify the question of when the statute of limitations began to run. This
court granted discretionary review.
DISCUSSION
The question before us is when the statute of limitations for breaches of the
warranties in a statutory deed begins to run. Certified questions are questions of law
that we review de novo. Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487
(2017). We also review the trial court's ruling on a motion to dismiss de novo. Cutler
v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). A motion to
dismiss should only be granted "if it appears beyond a reasonable doubt that no
facts exist that would justify recovery." Id. This is the case when "'there is some
insuperable bar to relief." Id. (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d
781 (1988)).
The statute of limitations begins to run when a cause of action accrues. 1000
Virginia Ltd. Partnership v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423(2006)
(citing RCW 4.16.005). A Cause of action accrues when a party has the right to apply
to a court for relief. Id. Claims for breach of a statutory warranty accrue when the
warranty is breached. Erickson v. Chase, 156 Wn. App. 151, 157, 231 P.3d 1261
(2010)(citing Whatcom Timber Co. v. Wright, 102 Wash. 566, 568, 173 P. 724
(1918)).
A statutory warranty deed provides five guarantees against title defects:
'(1) that the grantor was seised of an estate in fee simple (warranty of
seisin);(2) that he had a good right to convey that estate (warranty of
right to convey);(3) that title was free of encumbrances (warranty
5
No. 74724-0-1/6
against encumbrances);(4)that the grantee, his heirs and assigns, will
have quiet possession (warranty of quiet possession); and (5)that the
grantor will defend the grantee's title (warranty to defend).'
Mastro v. Kumakichi Corp., 90 Wn. App. 157, 162, 951 P.2d 817(1998)(quoting 17
WILLIAM B. STOEBUCK, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 7.2, at
447 (1995)). Rowe's complaint asserted that Adams breached each of these except
the warranty of right to convey.
Rowe first asserts that Adams breached the warranty of seisin. The warranty
of seisin is also known as the covenant of ownership in fee simple. Double L.
Properties, Inc., v. Crandall, 51 Wn. App. 149, 152, 751 P.2d 1208(1988)(citing
Whatcom Timber, 102 Wash. at 567). This covenant guarantees that the grantor is
lawfully seized of an indefeasible estate in fee simple in the described property. Id.
at 152 (citing RCW 64.04.030). The warranty of seisin is a present covenant and is
broken the moment it is made if the grantor does not have the possession, right of
possession, and complete legal title of the property. Id. A grantor has possession if
he claims the right of exclusive occupation and no third party opposing his claim is
occupying the land. Id. at 153 (citing 1 H. Tiffany, Real Property § 20, at 27(3d ed.
1939)). See also Mastro, 90 Wn. App. at 163(discussing the warranty of seisin).
This warranty was at issue in Double L. Properties. In that case, at the time
the seller conveyed acreage to the buyer, a neighbor was occupying about 10 acres
of the property. Double L. Properties, 51 Wn. App. at 150. The buyer successfully
ejected the neighbor and brought an action against the seller for indemnification. Id.
As to the warranty of seisin, the issue was whether a seller breaches the warranty
6
No. 74724-0-1/7
when a third party asserts a claim to the property or only when a third party asserts a
valid claim that actually affects title. Id. at 152-53.
In the circumstances of Double L. Properties, that question was resolved by
possession. Id. at 156. The warranty of seisin guarantees that the seller has
possession of the land, that is, that he claims the right of exclusive occupation and
no third party opposing his claim is occupying the land. Id. at 153. Where, as in
Double L. Properties, a third party is occupying the land at the time of sale "the
covenant of seisin is broken no matter whether the claim is lawful or unlawful." Id. at
156 (citing Lakelands, Inc., v. Chippewa & Flambeau Improvement Co., 237 Wis.
326, 295 N.W. 919, 926 (1941)).
Relying on Double L. Properties, Adams asserts that the warranty of seisin
was breached at conveyance, the statute of limitations began to run at that time, and
Rowe's claim was time barred.
Rowe attempts to distinguish Double L. Properties on the grounds that Klein's
possession at the time of conveyance was not evident. Rowe contends that, when
he bought lot 4, he asserted possession of the entire lot and his possession was not
disturbed until Klein asserted his adverse claim in 2014.
Rowe's argument fails because the warranty of seisin guarantees that, at
conveyance, the seller has possession, right of possession, and complete legal title
to the property. Double L. Properties, 51 Wn. App. at 153. In Double L. Properties,
the warranty was breached because, at conveyance, a third party was occupying a
portion of the property, so that the seller did not have possession. In this case, Klein
established superior title to the disputed land through adverse possession from 1974
7
No. 74724-0-1/8
to 1984. Thus, regardless of occupation at the time Adams conveyed lot 4 to Rowe
in 2008, Adams did not have complete legal title. The warranty of seisin was
breached at conveyance and the statute of limitations began to run at that time.
Unlike the warranty of seisin and the warranty against encumbrances, the
warranty of quiet possession is a future covenant that runs with the land. McDonald
v. Ward, 99 Wash. 354, 358, 169 P. 851 (1918)(citing West Coast Mfp. & Inv. Co. v.
West Coast Improvement Co., 25 Wash. 627, 643,66 P. 97 1901). The warranty of
quiet possession is alternatively known as the warranty of quiet enjoyment, the
covenant of warranty, or the general warranty. 18 WILLIAM B. STOEBUCK & JOHN W.
WEAVER,WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 14.3 (2004). See
West Coast at 25 Wash. at 643(covenant of warranty and covenant of quiet
enjoyment are identical). This covenant "warrants to the grantee, his or her heirs and
assigns, the quiet and peaceable possession" of the property conveyed. RCW
64.04.030. It is an "assurance by the grantor that the grantee and the grantee's heirs
and assigns shall enjoy [the land] without interruption by virtue of paramount title,
and that they shall not, by force of a paramount title and that they shall not, by force
of a paramount title, be evicted from the land or deprived of its possession." Foley v.
Smith, 14 Wn. App. 285, 290-91, 539 P.2d 874 (1975)(citing 20 Am.Jur.2d
Covenants, Conditions, & Restrictions s 50 (1965)).
The warranty of quiet possession is breached when the buyer of land is
actually or constructively evicted by one who holds a paramount title that existed at
the time of the conveyance. Id. at 291. What constitutes evidence of actual or
constructive eviction varies according to the circumstances. Id. (citing West Coast
8
No. 74724-0-1/9
Mfg., 25 Wash. at 643). Where a third party with superior title is in possession at the
time of conveyance so that the buyer cannot take possession, the buyer is
constructively evicted at conveyance. McDonald, 99 Wash. at 358-59 (buyer was
constructively evicted from land occupied by a railroad track at conveyance).
The Washington Supreme Court considered the warranty of quiet possession
in two cases decided in 1918. In McDonald, a buyer bought land that included a
stretch of railroad track. McDonald, 99 Wash. at 354-55. A line of telegraph poles
ran parallel to the track at a distance of about 40 feet. Id. at 359. For several years,
the buyer cultivated all of the land except for a strip about 20 feet wide where the
track was located. Id. at 355. The railroad later asserted superior title to a strip of
land 200 feet wide. Id.
In the buyer's action against the seller for breach of warranty, the statute of
limitations was at issue. Id. To determine when the limitations period began to run,
the McDonald court considered when the buyer was evicted from various portions of
the property. Id. at 358. The buyer conceded that he had been constructively evicted
from the 20 foot strip where the track was located at the time of conveyance. Id. at
358-59. The McDonald court held that the buyer had also been constructively
evicted from the land between the telegraph poles and the track at conveyance. Id.
at 359. Although the buyer had cultivated this land, the telegraph line was incidental
to the railroad track and essential to the track's operation. Id. The railroad possessed
the track, the telegraph poles, and the land between them. Id. As to the remaining
land, the buyer was not evicted until the railroad asserted its title. Id. The buyer's
9
No. 74724-0-1/10
claim against the seller was limited to damages for the loss of this last portion of
land. Id.
A few months after McDonald, the Supreme Court revisited the warranty of
quiet possession in Whatcom Timber. In that case, the seller conveyed two tracts of
land to the buyer by warranty deed. Whatcom Timber, 102 Wash. at 566-67. The
seller did not actually own the land. Id. at 568. At the time of conveyance, the land
was owned by the United States and was in the possession of third parties. .
jçj. at
567. These third parties prevented the buyer, whose deed was null, from taking
possession. Id. at 568. Several years later, the third parties prevailed in actions to
quiet title. Id. at 567.
In the later action against the seller for breach of the warranty of quiet
possession, the issue was when the statute of limitations began to run. Id. at 568. In
the circumstances of that case, where third parties with paramount title prevented
the buyer from taking possession, the Whatcom Timber court held that the warranty
was breached at conveyance. Id. "If, at the time the deed is executed the premises
are in the possession of third persons claiming under a superior title and grantee
cannot be put into possession, the covenant of warranty is broken when made,
without any further acts of the parties." Id.
Adams contends this case is like Whatcom Timber. He asserts that Klein had
paramount title to the disputed land and Klein's possession of the land was beyond
dispute. Rowe contends that he asserted possession of the entire lot at conveyance
and his possession was not disturbed until Klein asserted his adverse claim in 2014.
10
No. 74724-0-1/11
Klein prevailed in his adverse possession claim. It has thus been established
that Klein had paramount title. But the trial court's order quieting title in Klein does
not establish that Klein occupied the disputed land in 2008 and prevented Rowe
from taking possession. Klein's adverse possession claim expressly rested on his
occupation of the land from 1974 to 1984. In support of his motion for summary
judgment, Klein argued that he was not required to continue to hold the property in
an adverse manner after 1984. Thus, Klein argued, any evidence relating to use of
the land after 1984 was irrelevant. By granting Klein's motion for summary judgment,
the trial court accepted Klein's argument. The court did not rule on whether Klein
occupied the land in 2008. Notably, the trial court stated that, at conveyance in 2008,
neither Adams nor Rowe was aware of Klein's adverse possession.
In determining when the statute of limitations on Rowe's claim for breach of
the warranty of quiet possession commenced, the dispositive question is whether,
when Adams conveyed lot 4 to Rowe in 2008, Klein possessed the disputed land so
that Rowe was unable to take possession. Whatcom Timber provides no guidance
because, in that case, possession sufficient to exclude the buyer was undisputed.
McDonald, however, is instructive.
In McDonald, the court considered when the buyer was ejected from the
disputed property for purposes of commencing the statute of limitations. McDonald,
99 Wash. at 358-59. The court appears to have taken into account the extent to
which it was apparent to a reasonable person that the property was occupied by the
railroad company. Id. at 359. The buyer, of course, could not dispute his knowledge
of the railroad's claim to the property occupied by the railroad track and conceded
11
No. 74724-0-1/12
that the statute commenced at the time of conveyance as to that portion of the
property. Id. Accordingly, his claim as to that portion of the property was time barred.
Id.
As to the disputed property, however, the court distinguished the property
between the track and the telegraph poles from the remaining property claimed by
the railroad. Id. It concluded that, as to the former, the buyer should be held, as a
matter of law, to have been evicted from the property from the time of conveyance.
Id. The court reasoned that because the telegraph line was incidental to the track of
the railway company, and was essential to the operation of the railroad, it would
have been readily apparent to a reasonable person that the property between the
track and the telegraph poles was occupied by the railroad. Id. Thus, the statute
commenced to run "at the time he received his deed." Id. But because there was no
similar indication that the railroad occupied the property beyond the telegraph poles,
the statute of limitations did not commence on that property until the railroad
company began legal action to oust the buyer. Id.
In this case, Adams asserts that Klein's possession was evident. He first
relies on Klein's greenhouse, which encroached onto lot 4 at the time Rowe bought
the property. Like the railroad track in McDonald, Klein's greenhouse existed at the
time of conveyance and occupied a portion of the land so that the buyer could not
take possession. Rowe was constructively evicted from the land occupied by the
greenhouse at conveyance and the statute of limitations commenced to run at that
time. Thus, Rowe's claim as to this portion of the land is time barred.
12
No. 74724-0-1/13
Adams asserts, however, that Rowe was also constructively evicted from the
remainder of the land claimed by Klein. He contends Klein's possession of this land
was evident because Klein had the leach field inspected every few years, cars
parked on Klein's parking strip encroached over the property boundary, and Klein
stated that he maintained a lawn.
Unlike the telegraph poles in McDonald, this evidence would not put a
reasonable person on notice of another party's superior claim. Telegraph poles are
permanent structures. The telegraph line was incidental to the railroad track and
essential to the railroad's operation. The occasional inspection of the leach field, the
parked cars, and the patches of lawn in this case are not permanent structures
incidental to some obvious use. The record indicates that, other than the
greenhouse, Klein's possession of the land was not such that Rowe was
constructively evicted at conveyance. Klein's position supports this conclusion. In his
adverse possession claim, Klein expressly declined to argue that he continued to
occupy the land after 1984. Notably, the trial court's finding that in 2008 neither
Adams nor Rowe was aware of Klein's adverse possession is consistent with this
position.
We conclude that, although Klein's adverse possession from 1974 to 1984
established superior title to the land, his occupation of the land in 2008 was not such
that it prevented Rowe from taking occupation. Other than that land occupied by the
greenhouse, Rowe was not constructively evicted until Klein asserted his superior
title in 2014. Thus, as to the remainder of the disputed land, the limitations period did
13
No. 74724-0-1/14
not begin to run until Klein asserted his superior claim in 2014. Rowe's claim is not
time barred.
Rowe's final claim is for breach of the warranty to defend. Like the warranty of
quiet possession, the warranty to defend is a future warranty. Erickson, 156 Wn.
App. at 158 (citing Mastro, 90 Wn. App. at 164). It guarantees that no lawful,
outstanding claim against the property exists. Id. To establish breach of the warranty
and the right to recover, a buyer must show that(1) a third party has asserted a
superior right to the property;(2) the buyer has tendered defense to the seller; and
(3) the seller has refused the tender. Id. at 158-59. The breach occurs when the
seller refuses the tender of defense. Id. at 158; Mastro, 90 Wn. App. at 166 (the
seller breached the warranty by refusing tender of defense).
Adams asserts, however, that the warranty to defend is breached at the same
time as the warranty of quiet enjoyment. At oral argument, he argued that the
warranty to defend is a subtype of the warranty of quiet possession. Adams'
argument rests on the McDonald court's statement that the warranty of quiet
possession, which the court refers to as the "general warranty," guarantees that the
"covenantor ... will defend and protect the covenantee against the rightful claims of
all persons." McDonald, 99 Wash. at 358 (quoting 7 Ruling Case Law, 1144).
Adams takes this sentence out of context. The sentence is part of the
McDonald court's discussion of the warranty of quiet possession. The warranty to
defend was not at issue in that case. Where Washington courts have considered
breach of the warranty to defend, they have consistently held that the warranty is
breached when the seller refuses the buyer's tender of defense. See Edmonson v.
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No. 74724-0-1/15
Popchoi, 172 Wn.2d 272, 279, 256 P.3d 1223 (2011),("the warranty to defend
means that, upon proper tender, a grantor is obligated to defend in good faith and is
liable for breach of that duty."); Erickson, 156 Wn. App. at 158; Mastro, 90 Wn. App.
at 164-66.
In this case, it is undisputed that Rowe tendered defense to Adams in 2014
and Adams refused to defend. The warranty to defend was breached in 2014. This
claim was not barred by the statute of limitations.
To summarize, the statute of limitations began to run on the present
covenants, the covenant of seisin and the covenant against encumbrances, at
conveyance. Rowe's claims for breaches of those covenants were time barred. As to
these two claims, the trial court erred in denying Adams' motion to dismiss.
The warranty Of quiet possession was breached when Rowe was actually or
constructively evicted. Rowe was evicted from that portion of the land occupied by
the greenhouse at conveyance, as Klein's possession prevented Rowe from taking
possession. As to that portion of the land, Rowe's claim was time barred and the trial
court erred in denying Adams' motion to dismiss. As to the remainder of the land,
Klein's possession was not such that it prevented Rowe from taking possession.
Other than the land occupied by the greenhouse, Rowe's claim for breach of the
warranty of quiet possession did not accrue until Klein asserted his superior claim in
2014. The claim was not time barred and the trial court properly denied Adams'
motion to dismiss.
15
No. 74724-0-1/16
The warranty to defend was breached when Adams refused Rowe's tender of
defense in 2014. This claim was not time barred and the trial court did not err in
denying Adams' motion to dismiss the claim.
Reversed in part and affirmed in part.2
Ar\
WE CONCUR:
WR4\49EA
fr
172 Wn. App. 168, 182, 289 P.3d
675(2012)(citing Kaintz v. PLG, Inc., 147 Wn. App. 782, 789, 197, P.3d 710(2008)). Adams
concedes, however, that attorney fees incurred in deed warranty litigation are not recoverable.
Because neither party is entitled to fees, the doctrine of mutuality of remedy is inapplicable.
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Plaintiff in error, hereinafter called defendant, was convicted in the county court of Johnston county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at 30 days in the county jail and a fine of $100. *Page 139
The evidence of the state was that the officers had a search warrant to search the premises of defendant, and in his smokehouse, about 12 feet from his house, found 12 or 13 gallons of brew in jars, 3 1/2 cases of homebrew in bottles, 2 cappers, and a bunch of caps; that defendant was in possession of the premises and was at home when the search was made; that the officers had this beer analyzed and it contained 10 per cent. of alcohol according to quantity.
Defendant contends that this evidence was insufficient to support the verdict of the jury, but such contention is without any merit.
No error appearing upon the record and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.
DAVENPORT, P. J., and EDWARDS, J., concur.
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Case: 19-10822 Date Filed: 04/07/2020 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10822
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cr-00030-HLA-PDB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEAN JUSTIN OWENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 7, 2020)
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Case: 19-10822 Date Filed: 04/07/2020 Page: 2 of 11
Sean Owens appeals his conviction and 180-month sentence for possessing a
firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e). He
raises five issues, all for the first time on appeal. First, he argues that, in light of
the Supreme Court’s decision in Rehaif v. United States, the Government did not
prove an essential element of his crime—that he knew he was a convicted felon
when he possessed the firearm. Second, he argues that § 922(g)(1) is
unconstitutional. Third, he asserts that his prior convictions under Fla. Stat.
§ 893.13 do not qualify as “serious drug offenses” under the Armed Career
Criminal Act (ACCA) or “controlled substance offenses” under the Sentencing
Guidelines. Fourth, he argues that the district court erred in relying on
non-elemental facts in sentencing him pursuant to ACCA. Fifth, he argues that his
sentence violates the Fifth and Sixth Amendments. Because his arguments are
foreclosed by binding precedent in this Circuit, we affirm his conviction and
sentence.
I.
First, we consider Owens’s challenge to his indictment and the sufficiency
of the evidence in light of Rehaif v. United States, 139 S. Ct. 2191 (2019). In this
enumeration of error, Owens argues that an essential element of his crime—
knowledge of his status as a convicted felon—was improperly omitted from his
indictment and from the jury instructions. He also argues that, because the
2
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Government presented no evidence concerning this element, the evidence was
insufficient to sustain his conviction.
Ordinarily, we review de novo whether there is sufficient evidence to
support a conviction, whether the district court misstated the law in its jury
instruction, and whether an indictment is insufficient. United States v. Baston,
818 F.3d 651, 660 (11th Cir. 2016); United States v. Joseph, 709 F.3d 1082, 1093
(11th Cir. 2013); United States v. Steele, 178 F.3d 1230, 1233 (11th Cir. 1999).
Because Owens raises these challenges for the first time on appeal, however—and
because we recently held in a published opinion that the failure to allege
knowledge of felon status is a non-jurisdictional issue—we review for plain error.
United States v. Moore, No. 17-14370, 2020 WL 1527975, at *7 (11th Cir. Mar.
31, 2020); United States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019). 1
To demonstrate plain error—a standard we have described as a “daunting
obstacle”—the appellant must show that an error occurred that was plain and that
affected his substantial rights. Reed, 941 F.3d at 1020–21. For us to conclude that
an error affected his substantial rights, Owens must show a reasonable probability
1
Although Owens did make a sufficiency of the evidence challenge below, he “failed to raise the
specific challenge to the sufficiency of the evidence that he now raises on appeal.” United States
v. Baston, 818 F.3d 651, 663 (11th Cir. 2016). At trial, he challenged the sufficiency of the
evidence as it relates to the possession element of the crime—not to his knowledge of his status
as a convicted felon. “When a defendant raises specific challenges to the sufficiency of the
evidence in the district court, but not the specific challenge he tries to raise on appeal, we review
his argument for plain error.” Id. at 664.
3
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that, but for the error, the outcome of the proceeding would have been different.
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). “If he does so,
we may, in our discretion, correct the plain error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Reed, 941 F.3d at 1021
(alterations adopted and internal quotations marks omitted). We may consult the
whole record when considering the effect of an error on a defendant’s substantial
rights, including undisputed facts in the presentence investigation report (PSI). Id.
at 1021–22. “Facts contained in a PSI are undisputed and deemed to have been
admitted unless a party objects to them before the sentencing court with specificity
and clarity.” United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009)
(quotation marks omitted).
It is unlawful for any person who has been convicted of “a crime punishable
by imprisonment for a term exceeding one year” to possess a firearm or
ammunition. 18 U.S.C. § 922(g)(1). A defendant who “knowingly” violates
§ 922(g) is subject to up to ten years’ imprisonment. Id. § 924(a)(2). A statutory
minimum of 15 years’ imprisonment applies to “a person who violates section
922(g)” and who has three previous convictions for a “violent felony” or a “serious
drug offense.” Id. § 924(e)(1).
In Rehaif, the Supreme Court overturned Circuit precedent and held that a
prosecution under 18 U.S.C. § 922(g) and § 924(a)(2) requires the Government to
4
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prove both that the defendant “knew he possessed a firearm” and that he “knew he
belonged to the relevant category of persons barred from possessing a firearm.”
Rehaif, 139 S. Ct. at 2200. This decision abrogated our precedent in United States
v. Jackson, which held that a § 922(g)(1) conviction did not require the
Government to prove a defendant’s knowledge of his prior felony conviction. 120
F.3d 1226, 1229 (11th Cir. 1997).
Since Rehaif, we have had occasion to consider a § 922(g)(1) conviction in
this Circuit that was obtained before the Supreme Court clarified the law. In
United States v. Reed, we rejected a defendant’s argument that his conviction
should be overturned because his “indictment failed to allege, his jury was not
instructed to find, and the government was not required to prove that he knew he
was a felon when he possessed the firearm.” 941 F.3d at 1020. In that case we
reviewed the challenge for plain error because the defendant failed to object at
trial. Although we recognized that the identified errors were plain after Rehaif, we
declined to overturn Reed’s conviction because he could not “prove that the errors
affected his substantial rights or the fairness, integrity, or public reputation of his
trial.” Id. at 1022. Specifically, we held that Reed could not show that “but for the
errors, the outcome of his trial would have been different” because the record,
considered as a whole, established that Reed knew that he was a felon. Id. at
1021–22 (alterations adopted). We noted the parties’ stipulation at trial that the
5
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defendant had been convicted of a felony offense in the past, his admission on
cross-examination that he knew that he was not permitted to have a gun, and his
failure to object to the PSI’s statement that he had served at least 18 years in prison
prior to his arrest for possessing a firearm. Id. at 1021–22.
Our decision in Reed controls this case and forecloses Owens’s argument.
Like the defendant in Reed, Owens failed to raise this objection at trial and must
meet the plain-error standard on appeal. In conducting this analysis, we recognize
that an error occurred in this case “when the government was not required to prove
that [Owens] knew he was a felon.” Id. at 1021. Nevertheless, under plain error
review, Owens cannot establish that this error affected his substantial rights
because he cannot show any reasonable probability that the outcome of his trial
would have been different if the error had not occurred. The record—which we
consider as a whole for the purpose of plain error review—leaves no doubt that
Owens knew of his status as a convicted felon. Owens stipulated to the fact that he
had been convicted of a crime punishable by a term of imprisonment in excess of
one year. And the undisputed facts in the PSI show that Owens served more than
four years in prison for a number of felony convictions. Because he served several
years in prison for felony crimes, there is no reasonable argument that he was
unaware of his felony status. And because the record establishes that Owens knew
6
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that he was a felon, “he cannot prove that the errors affected his substantial rights
or the fairness, integrity, or public reputation of his trial.” Id. at 1022.
II.
Next, we consider Owens’s challenge to the constitutionality of 18 U.S.C.
§ 922(g)(1)—the statute that prohibits convicted felons from possessing firearms.
In this argument, Owens contends that this law exceeds Congress’s authority under
the Commerce Clause and is unconstitutional both facially and as applied.
Although we would normally review a constitutional challenge such as this de
novo, we review this challenge for plain error because it was raised for the first
time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
As Owens himself acknowledges in his brief, this argument is squarely
foreclosed by our precedent. We have repeatedly upheld § 922(g) as a
constitutional exercise of the Commerce Clause power. See Wright, 607 F.3d at
715. This defeats his facial challenge.
We have also held that § 922(g) is constitutional as applied where the
government proves a “minimal nexus” to interstate commerce. Id. This can be
accomplished by demonstrating that the firearm traveled in interstate commerce.
Id. at 715–16. In Wright, for example, we determined that a firearm manufactured
outside of Florida but later discovered in the defendant’s possession in Florida
necessarily traveled in interstate commerce and satisfied the minimal-nexus
7
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requirement. Id. at 716. Here, the Government presented testimony at trial
establishing that the firearm was manufactured in Connecticut and was shipped to
Florida before it was found in Owens’s possession. Consequently, it traveled in
interstate commerce and satisfied the minimal-nexus requirement. This defeats his
as-applied challenge.
III.
In his third enumeration of error, Owens argues that his sentence was
improperly increased as a result of his previous convictions. Specifically, he
argues that his drug convictions under Florida Statute § 893.13 should not qualify
as “serious drug offense[s]” under ACCA or as “controlled substance offense[s]”
under the Sentencing Guidelines. Although we ordinarily review these questions
of law de novo, we review arguments not raised in the district court for plain error.
See United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013), abrogated on
other grounds by Descamps v. United States, 570 U.S. 254 (2013).
The district court did not plainly err because Owens’s argument is foreclosed
by our precedent as well as a recent decision by the Supreme Court. In United
States v. Smith, we explicitly held that a conviction under Fla. Stat. § 893.13(1)
qualifies as a “serious drug offense” under ACCA and a “controlled substance
offense” under U.S.S.G. § 4B1.2(b). 775 F.3d 1262, 1266–68 (11th Cir. 2014).
The Supreme Court recently affirmed one of our decisions relying on Smith. See
8
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Shular v. United States, 140 S. Ct. 779 (2020). Because Smith controls this case,
we reject Owens’s argument on this point.
IV.
Owens also argues—for the first time on appeal—that the district court
improperly sentenced him under ACCA by concluding that he committed three
prior offenses “on occasions different from one another.” 18 U.S.C. § 924(e)(1).
He argues that because the dates of his prior offenses were not elements of the
crime under Florida law, the district court could not consider them in imposing
sentence under the ACCA. We review for plain error and conclude that this
argument is squarely foreclosed by our precedent.
To qualify for an enhanced sentence under ACCA, a defendant’s prior
convictions must have been for crimes “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). This means that the prior convictions must have
arisen from crimes that are temporally distinct. United States v. Longoria, 874
F.3d 1278, 1281 (11th Cir. 2017). To determine whether crimes were committed
on different occasions, a court “is generally limited to examining the statutory
definition of the offense of the prior conviction, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Longoria, 874 F.3d at 1281 (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)) (alterations adopted).
9
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In United States v. Longoria, we rejected the very argument that Owens
asserts here. 874 F.3d at 1281–83. We held that as long as the district court relies
on Shepard-approved documents, it may determine whether the offenses were
committed on different occasions. Id.
Here, the dates on the charging documents show that Owens’s crimes of
conviction were temporally distinct. He sold cocaine on March 13, 2009; March
17, 2009; and March 20, 2009. Accordingly, the district court did not plainly err in
determining that his crimes were committed on “occasions different from one
another.” 18 U.S.C. § 924(e)(1).
V.
Finally, Owens argues that his Fifth and Sixth Amendment rights were
violated because the fact that his prior offenses were committed on separate
occasions was not charged in the indictment or proven to the jury. Although we
review for plain error because this argument was not raised below, the standard of
review is immaterial; the argument conflicts with our binding precedent.
Facts that increase mandatory minimum sentences must be submitted to a
jury and proven beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99,
114–16 (2013). A “penalty provision,” however, “which simply authorizes a court
to increase the sentence for a recidivist,” need not be alleged in the indictment or
submitted to the jury. Almendarez-Torres, 523 U.S. 224, 226 (1998). We have
10
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repeatedly held that the fact of a prior conviction need not be alleged in an
indictment or proven to a jury for a sentence enhancement to apply. See, e.g.,
United States v. Sparks, 806 F.3d 1323, 1350 (11th Cir. 2015). And we have
“expressly rejected the notion that the ACCA’s different-occasions determination,
unlike the mere fact of a prior conviction, must be submitted to a jury and proven
beyond a reasonable doubt.” Weeks, 711 F.3d at 1259 (citing United States v.
Spears, 443 F.3d 1358, 1361 (11th Cir. 2006)). Accordingly, the district court did
not plainly err by relying on Owens’s prior convictions to sentence him under the
ACCA’s enhanced-penalty provision.
AFFIRMED.
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At the legislative session of 1927, it was enacted by Chap. 12125, Laws of Florida (Senate Bill No. 172):
Section 1. That the name of Eugene Hawkins be, and the same is hereby placed on the pension roll of the State of Florida; and the Comptroller is authorized and directed to pay unto the said Eugene Hawkins a pension in like sum and manner as the Confederate pensioners of the State of Florida are paid.
The Comptroller declined to issue warrants in payment of said pension. The beneficiary of the Act, Eugene Hawkins, brought mandamus to compel compliance. The matter is here upon writ of error to a final judgment below overruling a motion for peremptory writ and dismissing the alternative writ, thereby sustaining respondent's return to the alternative writ.
Sec. 1444, Rev. Gen. Stats. 1920, as modified by subsequent Acts, and now appearing as Sec. 2098, Comp. Gen. Laws of 1927, define generally who shall be entitled to pensions as Confederate veterans. Amongst those so entitled *Page 677
are persons who enlisted and served in the military or naval service of the Confederate States during the war between the States of the United States, and who did not desert the Confederate service, and who performed service in actual line of duty for a period of not less than one year, or who was in actual service at the time of the close of the war, unless incapacitated for such duty by reason of wounds received or disease contracted while in line of duty, or who was otherwise honorably discharged for any cause, and who shall have been abona fide citizen of this State for eight years next preceding the filing of his claim for pension.
By Chap. 9206, Acts of 1923 (Sec. 2121, Comp. Gen. Laws 1927), it is specifically made the continuing duty of the State Pension Board "to investigate the war record of each and every soldier who, or whose widow, has been heretofore or may hereafter be granted a pension under special act of the Legislature, and if it be found to the satisfaction of the said pension board that any soldier who is now receiving or may hereafter receive a pension, or whose widow is now receiving or may hereafter receive a pension, under special act of Legislature deserted the army or navy of the Confederacy or did not render service to the Confederate States, or to the State of Florida, or of any other State as a soldier or sailor of the Confederate States, or of the State of Florida, or of any other State, the State Pension Board is hereby empowered, directed and required to strike the name of such soldier or the widow of such soldier from the pension roll of the State of Florida and to discontinue all payments of pension immediately such action is taken. * * *"
Respondent's return alleges that pursuant to Chap. 12125, Acts of 1927, the name of the relator was duly placed upon the pension roll of the State of Florida to receive a pension under said Act of the Legislature "in like sum and manner as the Confederate pensioners of the State of Florida *Page 678
are paid." That thereafter the Pension Board of the State of Florida, acting pursuant to Chap. 9206, Acts of 1923, did proceed to investigate the war record of relator, whereupon it was found to the satisfaction of the pension board that the relator did not render any service whatever to the Confederate States, or the State of Florida, or any other State as a soldier or sailor of the Confederate States, or the State of Florida, or any other State. Upon this finding the relator's name was stricken from the Confederate pension roll, and no payments were made to him. The allegations of the return last stated are not traversed. Relator makes no contention or representation that he was ever in the service of the Confederate States during the War Between the States.
If Chap. 12125, supra, purports to grant relator a pension as a Confederate veteran, then the action of the pension board striking relator's name from the pension roll, and respondent's refusal to issue warrants, were clearly required and justified by Chap. 9206, Acts of 1923, and Sec. 1444, Rev. Gen. Stats. 1920. Relator not claiming to have served as a Confederate soldier or sailor clearly, under the provisions of the two statutes last cited, cannot receive a pension as a Confederate veteran. There is nothing in the provisions of Chap. 12125,supra, which would operate as either an express or implied repeal of Chap. 9206, supra, so as to take this case out of the operation of the latter chapter.
If it was the purpose of Chap. 12125, supra, to grant relator a pension generally, and for reasons independent of and unconnected with any service rendered to the Confederate States, the provision in said chapter that the said pension shall be "in like sum and manner as Confederate pensioners of the State of Florida are paid" having reference merely to the amount of the pension and the method of issuing warrants in payment thereof, it being the intention of *Page 679
the Legislature that relator should receive a pension independently of any service rendered to the Confederacy, then the Legislature, by Chap. 12125, supra, failed to make any appropriation for the payment of such pension even if it was competent to do so under the provisions of Sec. 3, Art. 13 of the Constitution. For the reasons first given, payment cannot be made from the funds appropriated for the payment of Confederate pensions. For the reason last given, payment cannot be made from any other fund. It follows, therefore, that the judgment below refusing to issue a peremptory writ and discharging the alternative writ must be, and the same is hereby affirmed.
TERRELL, C. J., AND WHITFIELD, ELLIS, STRUM, BROWN AND BUFORD, J. J. concur.
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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/3389219/
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In June of 1935, Iris Snow instituted an action at law in the Circuit Court for Dade County and filed a praecipe for summons adres against five persons, three of whom were duly served by the sheriff and two of whom, the petitioners in this case, were not served. The sheriff's return showed that they could not be found and it is alleged in the suggestion for writ of prohibition that these two persons, Alura Blair Pearson and her husband, were at the time and still are residents of the State of New York.
On July 1, 1935, a practicing attorney of the City of Miami filed his appearance as attorney for all five of the defendants.
On August 3, 1935, upon application made by counsel for plaintiff, an order was made extending the time for filing of declaration until August 20.
On August 17, 1935, the attorney who had filed the appearance for all of said defendants, filed a motion alleging that the appearance in behalf of two of the defendants, petitioners in this case, was entered through inadvertence and mistake; and insisted that defendants had never been served with process, were not residents of this State, as appeared from the affidavit on file in the cause entered by associate counsel for plaintiffs, and that the undersigned attorney had no authority to file such appearance in the absence of service of summons upon said defendants, and was not requested so to do by the defendants. For these reasons, said attorney requested leave of the court to withdraw his appearance on behalf of said two defendants. This motion was signed by the attorney, but was not sworn *Page 546
to. The record does not show that any evidence was offered in support of it.
Declaration was filed in the case against all the defendants on August 19, 1935, which showed that the cause of action arose from an automobile accident in the State of Utah. The three defendants who had been served filed a demurrer to the declaration.
On January 20, 1936, the Circuit Judge entered an order, reciting that the cause had come on to be heard upon the motion of the attorney for leave to withdraw his appearance in behalf of Alura Blair Pearson and her husband and that the matter had been argued by counsel for the respective parties; which order denied the motion and allowed said defendants until February 10th in which to plead as they might be advised.
Suggestion for the writ of prohibition sets up the above facts and alleges that the said Circuit Judge is about to exceed the jurisdiction of the said court and usurp jurisdiction not vested in said court by assuming jurisdiction over said two defendants who had not been served with summons and who had filed no authorized appearance, and prayed that rule nisi be issued commanding the said Circuit Judge to show cause on a day certain why writ of prohibition absolute should not issue prohibiting the respondent from further proceeding in said law action against said two defendants. Rule nisi was issued accordingly.
The respondents, including the Circuit Judge, filed demurrer to the suggestion for the writ, and also an answer in which theydenied that said praecipe for appearance for said two defendants was filed or entered through inadvertence or mistake or without authority on the part of the attorney, and they deny that the transcript of record attached to the suggestion is a true and correct transcript of all the proceedings in the cause. They also deny that the *Page 547
Circuit Judge has exceeded or is about to exceed the jurisdiction of the Circuit Court. Thus the vital questions of fact are in dispute; also the correctness of the transcript.
The demurrer to the suggestion for the writ questioned its sufficiency, because the motion to withdraw appearance was not sworn to or supported by testimony or evidence of any kind; also because it appears that it was a motion, not on behalf of said defendants to withdraw their appearance, but in effect a motion on the part of their attorney of record for leave to withdraw as their attorney. Also that had the motion been granted, the appearance of said two defendants would have remained in said cause. The following authorities on the question of the right to withdraw unauthorized appearances will be found of interest in this connection: St. Lucie Estates, Inc., v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 133 So. 841; Budd v. Gamble, 13 Fla. 265; Tidwell v. Witherspoon, 18 Fla. 282, and 4 C.J. 1371-1373. In Rorick v. Stillwell, 101 Fla. 4, 133 So. 609, it was held that where persons who are named as defendants in a suit where praecipe has been issued and summons returned as served upon them, when in truth and in fact no such service has in legal effect been made, they have the right to call such lack of jurisdiction to the attention of the court by specially appearing in the cause and moving to set aside or vacate the service of process thus falsely appearing of record, and that in doing so they waive none of their rights and confer no jurisdiction upon the court.
So it appears that if the Circuit Judge has committed error in overruling the motion to withdraw the appearance, this error can be reviewed and corrected by some other means than the drastic remedy of prohibition. It is ordinarily within the jurisdiction of the trial court of general jurisdiction to determine whether the court has acquired *Page 548
jurisdiction over the person of a defendant or defendants. This court cannot prohibit the Circuit Court from exercising this power. And if the power is exercised erroneously, the fact remains that the trial court's decision on the question of its own jurisdiction over the person of a defendant is to be deemed as at least prima facie correct and entitled to due credit unless the contrary clearly appears, and it would not be proper in such a case as this, where the facts are in dispute, for this Court to prohibit the trial court from proceeding further in the case merely because this Court might be of the opinion that the trial court might have committed error in its decision on that point. The law affords adequate remedy for the review and correction of errors of this nature, and it would disrupt the orderly administration of justice if defendants in all cases were permitted to secure a writ of prohibition every time they thought the trial court had committed some error in determining its own jurisdiction over the person or persons of the parties before it. Peacock v. Miller, 123 Fla. 97, 166 So. 212, and cases cited. Curtis v. Albritton, 101 Fla. 853, 132 So. 677. It is only where it clearly appears that the trial court is proceeding without jurisdiction that prohibition lies. Speight v. Horne, 101 Fla. 101, 133 So. 577.
In 50 C.J. 678, it is said:
"Where the existence of jurisdiction depends on controverted facts which the inferior court or tribunal is competent to determine, prohibition does not lie, even though the lower tribunal may in such case err in its determination of the question. This rule has been extended in some decisions to an erroneous determination of jurisdiction as a question of law, on the other hand it has been held that the writ properly issues where the court has given itself jurisdiction by an erroneous conclusion on a question of law, or where its erroneous decision operates as an unlawful assumption *Page 549
of jurisdiction, and it is generally held that the granting or refusal of the writ is discretionary where the question of the jurisdiction of the court is doubtful or depends on facts which are not made a matter of record."
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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/4523417/
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Filed 4/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
BONNIE DUCKSWORTH et al., B294872
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. BC676917)
TRI-MODAL DISTRIBUTION
SERVICES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lia Martin, Judge. Affirmed.
Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly, and Julian
Bellenghi for Plaintiffs and Appellants.
Larson & Gaston, Daniel K. Gaston, and Gloria G. Medel for
Defendants and Respondents Scotts Labor Leasing Company, Inc. and Pacific
Leasing, Inc.
Lewis Brisbois Bisgaard & Smith, Jack E. Jimenez, Lann G. McIntyre,
and Tracy D. Forbath for Defendant and Respondent Mike Kelso.
____________________
Bonnie Ducksworth and Pamela Pollock are customer service
representatives at Tri-Modal Distribution Services. Tri-Modal promoted
others but, for decades, never promoted them. Ducksworth and Pollock
believed this was due to discrimination against African-Americans. They
sued.
In addition to her discrimination claim, Pollock also sued about sexual
harassment. Tri-Modal’s executive vice president Mike Kelso began “a dating
relationship” with Pollock. Pollock refused Kelso’s request to make the
relationship more sexual. Pollock ultimately ended the relationship. After
she dumped him, Kelso blocked her promotions at Tri-Modal, Pollock alleged.
These contentions implicated employer Tri-Modal, but it is not involved
in this appeal. Rather three different defendants are our sole concern, as
follows.
Two of these other defendants are two staffing agencies called Scotts
Labor Leasing Company, Inc., and Pacific Leasing, Inc. Scotts and Pacific
supplied employees, including Ducksworth and Pollock, to Tri-Modal. The
trial court granted summary judgment for Scotts and Pacific because they
were uninvolved in Tri-Modal’s decisionmaking about whom to promote. We
affirm this ruling for the staffing agencies.
The third defendant is Kelso. The trial court granted a separate
summary judgment for Kelso because the statute of limitations barred
Pollock’s claim against him. Pollock appeals this ruling on two grounds.
First, she says the court erred at summary judgment in overruling her
hearsay objection to a key part of Kelso’s evidence. Second, she argues the
court miscalculated the statute of limitations by running the clock from the
date the employer offered a competitor the promotion and the competitor
accepted the promotion rather than the later date when the competitor began
working at the new position. We affirm this summary judgment ruling for
Kelso.
I
Five of the key actors are Ducksworth, Pollock, Tri-Modal, Scotts, and
Pacific. (The appellate briefs and record do not spell Pollock’s name
consistently. We use the spelling that is more common in the papers.)
2
In the first cause of action, Ducksworth and Pollock sued Scotts,
Pacific, and Tri-Modal for racial discrimination under subdivision (a) of
Government Code section 12940, which is part of California’s Fair
Employment and Housing Act. Some call this statute FEHA. We refer to it
as the Act.
Ducksworth’s and Pollock’s theory was racial discrimination explained
why they have never been promoted.
What is Tri-Modal? It describes itself as a transportation logistics,
warehousing, and distribution services company, while Ducksworth and
Pollock call it simply a trucking company. Gregory Owen owns Tri-Modal.
Kelso has been its executive vice president since 2009.
Scotts and Pacific are companies engaged in what the parties call
“labor leasing.” These two companies provide Tri-Modal, and only Tri-Modal,
with staffing and administrative services for leased employees, including
Ducksworth and Pollock.
The parties do not use the same terminology to refer to Scotts and
Pacific. These companies describe themselves as “professional employer
organizations i.e. employment leasing/staffing companies.” Ducksworth and
Pollock disputed this description and instead, in their pleading, called them
“staffing agencies.” No party explains to us what difference labeling might
make, so we use the shorter “staffing agencies.” (Cf. Jimenez v. U.S.
Continental Marketing, Inc. (2019) 41 Cal. App. 5th 189, 192, fn. 2
[nomenclature about temporary staffing entities varies in case law].)
Ducksworth applied through Scotts for an open position with Tri-Modal
in 1996. Scotts hired her that year and leased her to Tri-Modal from 1996 to
2006.
Similarly, the following year, in 1997, Pollock applied for a position
with Tri-Modal through Scotts. Scotts hired her and leased her to Tri-Modal
from 1997 to 2006.
Both Ducksworth and Pollock worked continuously at Tri-Modal from
their start dates through the time of summary judgment, which was in late
2018. In 2006, however, after a two-week interlude by a third staffing
company not involved here, Pacific took over the role Scotts formerly
3
performed regarding Ducksworth and Pollock. Pacific provides the same
services to Tri-Modal as did Scotts.
For Ducksworth and Pollock and similar employees leased to Tri-
Modal, Scotts and Pacific tracked and processed payroll, health insurance,
workers compensation, vacation, holiday, sick pay, tax, and social security
payments. The name on these employees’ paychecks was either Scotts or
Pacific.
Tom Scott formed Scotts in 1996 when he closed down another
company called Marine Glass Company, was unemployed, and then spoke
with Greg Owen, whom Scott knew. Scott formed Pacific in 1997.
Scotts and Pacific provide their services only to Tri-Modal and not for
any other company. Tom and Sheri (or Cheri—we thus refer to her as Ms.
Scott) Scott are married and are the sole owners of Scotts and Pacific. Ms.
Scott works at Tri-Modal one and a half to two hours a week. Her work is to
pay truck drivers.
At the time of Tom Scott’s deposition, 44 people worked at Scotts and
nine worked at Pacific. All were leased to Tri-Modal. Up to and ending in
2006, Scotts leased Ducksworth and Pollock to Tri-Modal. At the time of
Scott’s deposition, it was Pacific that leased Pollock and Ducksworth to Tri-
Modal. Tom Scott considered both Pollock and Ducksworth to be employees
of Pacific because “our name is on their paycheck.” In addition to these
people, Tom Scott himself (but not Ms. Scott) is an employee of Scotts.
Tom Scott testified that he is not employed by Tri-Modal, but that
Scotts leases him, Tom Scott, to Tri-Modal, where he has been compliance
safety director continuously since 1998. This compliance safety work involves
running background checks on drivers, orienting and training drivers,
maintaining their qualification files, and such. Tom Scott supervises no one.
Tom Scott’s paycheck comes from Scotts Labor Leasing.
Tom Scott, Scotts, and Pacific were not involved with the day-to-day
supervision of Ducksworth and Pollock at Tri-Modal. Tom Scott knew
Pollock “is a clerk of some type” at Tri-Modal, and he knew Ducksworth is “in
the customer service department” there. But Tri-Modal rather than Scotts or
Pacific set work schedules for Ducksworth and Pollock. Pollock would go to
4
Tri-Modal, not Scotts or Pacific, for work assignments or if she were running
late or asking for a day off.
The decision to give a raise to any employee leased by Scotts or Pacific
to Tri-Modal was made solely by Tri-Modal, with no input from Scotts or
Pacific.
Ducksworth and Pollock rarely interacted with Scotts and Pacific.
Pollock did not interact with Tom Scott on a daily basis and did not see him
on a monthly or weekly basis. Ducksworth would not see Tom Scott during
the course of a week, except perhaps to say “hi” if they did happen to see each
other. If Pollock had any interaction with Tom Scott, it would be about
insurance or benefits.
Pollock never went to Scotts about a work related complaint, but
instead would take it to Tri-Modal. Pollock never discussed raises or
promotions with Tom Scott. Similarly, Ducksworth never went to Scotts to
request a raise or promotion. Scotts had no input about raises or promotions
at Tri-Modal.
Tom Scott never disciplined Pollock or Ducksworth during their
employment. Scotts never supervised or trained Pollock or Ducksworth.
Scotts and Pacific moved for summary judgment.
The following quotation is from Fact 16 in the separate statement for
this summary judgment motion.
“The decision to promote an employee leased to by [sic] Scotts or Pacific
to Tri-Modal is made solely by Tri-Modal. Scotts or Pacific do not provide any
input, have any authority or make any decision regarding the promotion of
any employees leased to Tri-Modal.”
Ducksworth and Pollock told the trial court they did not dispute Fact
16.
On December 6, 2018, the trial court found the undisputed Fact 16
entitled the staffing agencies to summary judgment.
We now recount some facts about Pollock and Kelso in particular.
Kelso began dating Pollock in 2014. The relationship involved
passionate kissing. Kelso wanted sexual intercourse but Pollock did not,
according to Pollock. Pollock ended the relationship in 2016. In the second
cause of action, Pollock and not Ducksworth sued Kelso and Tri-Modal for
5
quid pro quo sexual harassment in violation of subdivisions (j)(1) and (j)(3) of
Government Code section 12940, which is part of the Act.
On November 20, 2018, the trial court granted summary judgment for
Kelso based on the statute of limitations.
Ducksworth and Pollock appealed the summary judgments in favor of
Scotts, Pacific, and Kelso.
II
In this section, we review the summary judgment in favor of the
staffing agencies. The trial court ruled undisputed Fact 16 exonerated the
staffing agencies according to the governing precedent of Bradley v. Dept. of
Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612, 1628–1629
(Bradley). The trial court was right. Scotts and Pacific basically were
innocent bystanders in this case of alleged discrimination by Tri-Modal. We
affirm because Scotts and Pacific were not involved with the promotions
Ducksworth and Pollock attack. A company that has not discriminated
cannot be liable for discrimination.
As the trial court ruled, Bradley is the leading precedent on the
pertinent issue. (See Patterson v. Domino's Pizza, LLC (2014) 60 Cal. 4th 474,
499 [Supreme Court majority cites Bradley]; id. at pp. 504 & 507 [Supreme
Court dissent also cites Bradley]; Martinez v. Combs (2010) 49 Cal. 4th 35, 50,
fn. 16 [citing Bradley]; State ex rel. Dept. of California Highway Patrol v.
Superior Court (2015) 60 Cal. 4th 1002, 1008, fn. 2 [citing Bradley].)
Bradley held an employee can sue its “contracting employer,” like Tri-
Modal in this case, without suing the employee’s “staffing agency.” (Bradley,
supra, 158 Cal.App.4th at p. 1629.) In Bradley, a worker named Sallie Mae
Bradley at a state prison brought sexual harassment and retaliation claims
against the California Department of Corrections and Rehabilitation—the
“department”—under Government Code section 12940. (Id. at p. 1617.)
Bradley proved a prison chaplain sexually harassed her, and then the prison
fired her when she complained. (Id. at pp. 1618–1623.)
Bradley had a contract with a staffing agency, which in turn had a
contract with the department for Bradley to work at the prison. (Bradley,
supra, 58 Cal.App.4th at p. 1618.) We use the term “staffing agency” while
the court in Bradley used the label “temporary service agency” to describe the
6
entity tracking Bradley’s hours and issuing her paychecks. (Id. at p. 1624.)
Bradley sued the department and not the staffing agency. (Id. at pp. 1617–
1618.)
The Bradley decision discussed a California state regulation issued by
the Fair Employment and Housing Commission, which is the agency charged
with interpreting Government Code section 12940. (Bradley, supra, 158
Cal.App.4th at p. 1629.)
This regulation specifies “[a]n individual compensated by a temporary
service agency for work to be performed for an employer contracting with the
temporary service agency is an employee of that employer for such terms,
conditions and privileges of employment under the control of that employer.
Such an individual also is an employee of the temporary service agency with
regard to such terms, conditions and privileges of employment under the
control of the temporary service agency.” (Cal. Code Regs., tit. 2, § 11008,
subd. (c)(5), italics added [definition previously in Cal. Code Regs., tit. 2, §
7286.5, subd. (b)(5)].)
The Bradley decision rejected the department’s argument that, under
this governing regulation, the staffing agency had to be liable for the prison
chaplain’s misconduct. (Bradley, supra, 158 Cal.App.4th at pp. 1628–1629.)
The staffing agency was not an indispensable party to Bradley’s suit because
there were no allegations in the complaint and no evidence to suggest
liability rested on terms, conditions, or privileges of employment under the
control of the staffing agency. To the contrary, all allegations related to
matters under the department’s control. (Id. at p. 1629.)
In short, Bradley held the staffing company was not liable for
harassment with which it was entirely uninvolved. (Cf. Mathieu v. Norrell
Corp. (2004) 115 Cal. App. 4th 1174, 1180, 1182–1184 [a temporary
employment agency can be liable for harassment at a client’s workplace if
employee is required to, and does, report problems at the client’s workplace to
the agency].)
The trial court here properly applied the regulation and reasoning in
Bradley to Scotts and Pacific. Undisputed Fact 16 conclusively established
Scotts and Pacific did “not provide any input, have any authority or make any
decision regarding the promotion of any employees leased to Tri-Modal.”
7
Under Bradley, Scotts and Pacific were not involved and are not liable and
thus are out of the suit.
The Bradley decision makes good sense to us. Ducksworth and Pollock
do not criticize it as wrongly decided.
Rather Ducksworth and Pollock make a passing effort to distinguish
Bradley, but their opening brief confines their effort to a short paragraph.
This paragraph asserts their case differs from Bradley “in two respects.”
Neither proposed distinction has force.
Ducksworth’s and Pollock’s first proposed distinction fails. It consists
of one sentence, which is their complaint “attributes liability” to the staffing
company. Evidence, however, eclipses mere pleading allegations, and here,
according to Fact 16, undisputedly “[t]he decision to promote an employee
leased to by [sic] Scotts or Pacific to Tri-Modal is made solely by Tri-Modal.
Scotts or Pacific do not provide any input, have any authority or make any
decision regarding the promotion of any employees leased to Tri-Modal.”
This undisputed fact overwhelms and refutes the allegations in their
complaint. This first attempt to distinguish Bradley is unsuccessful.
Ducksworth’s and Pollock’s second proposed distinction builds on two
other facts: the fact the staffing agencies’ employee handbook guaranteed
equal opportunity and freedom from harassment, and the fact the staffing
agencies’ president Tom Scott attended a meeting Tri-Modal called to address
Pollock’s allegations. Were it not for Fact 16, these two other facts might
create inferences about whether the staffing agencies had input, authority,
and decisionmaking power over promotions at Tri-Modal. But Fact 16 settled
the issue because Ducksworth and Pollock agreed Fact 16 was undisputed.
That agreement trumped contrary inferences.
Fact 16 is paramount and conclusive in this case. The point of a
separate statement in the summary judgment process is to identify and to
isolate factual issues and thus to facilitate decisionmaking by trial judges.
The summary judgment process itself is highly desirable. The separate
statement is one of its core features. This process, vital to everyday life in
the trial courts, would break down entirely if parties were free to walk away
from or to adjust the separate statement once they discovered the court’s
legal analysis was not going their way.
8
Because Ducksworth and Pollock cannot distinguish Bradley, that
sound case validates the trial court’s decision regarding the staffing agencies.
The court correctly granted summary judgment for Scotts and Pacific because
they were not involved in the Tri-Modal decisions Ducksworth and Pollock
would condemn.
III
We now turn to Kelso, Tri-Modal’s executive vice president. He moved
for summary judgment because the statute of limitations barred Pollock’s
claims. The trial court correctly granted Kelso’s motion.
The claim against Kelso involved Pollock and not Ducksworth because
Kelso had a dating relationship only with Pollock. Ducksworth does not
figure in this aspect of the case.
Pollock’s theory in her second cause of action was Kelso began to date
her, but then wanted their relationship to be more sexual. Pollock did not
want that. Kelso also insulted her with remarks about “collard greens.”
Pollock ended the dating relationship, and then Kelso and thus Tri-Modal
punished Pollock by denying her promotions at Tri-Modal she deserved and
by instead promoting five other employees less qualified than Pollock.
The trial court’s analysis of the statute of limitation issue was as
follows. Pollock filed her sexual harassment complaint with the Department
of Fair Employment and Housing on April 18, 2018. So the one-year clock
began to run for Pollock on April 18, 2017. The court ruled, however, Kelso
established the events about which Pollock complained—the promotion of the
five others over her—either did not occur at all, or else occured before April
18, 2017. These facts, and particularly the precise dates of the various
promotions, were vital in the court’s analysis.
We return to the precision of these dates in just a moment, for they
play a prominent role in a hearsay issue we tackle.
Pollock objected to the source of these facts and dates. This source of
evidence was the “Mullaney declaration.” The court overruled Pollock’s
evidentiary objections to the Mullaney declaration.
On appeal, Pollock makes two arguments about the statute of
limitations: the trial court improperly overruled Pollock’s hearsay objection
to the Mullaney declaration, and the court miscalculated the statute of
9
limitations by selecting the wrong date on which to start the clock. Both
arguments err. We take up each in turn.
A
We start with Pollock’s hearsay argument. Pollock objected to the
Mullaney declaration, which Kelso offered to support his motion for summary
judgment. The trial court overruled the objection. This ruling was not an
abuse of discretion.
1
We add more facts for context.
Pollock’s theory in her second cause of action was, because of sexual
harassment, Kelso and Tri-Modal promoted five specific employees instead of
her. In response, Kelso offered evidence about whether and when Tri-Modal
did promote those five other employees. Kelso claimed, for one of these five
people, there was no promotion at all, and for the other four people, their
promotions were so long ago as to create a time bar blocking Pollock’s claim
against Kelso.
Kelso’s source for his factual assertions about these promotions was a
declaration from Tri-Modal’s vice president of operations, Timothy Mullaney.
The hearsay dispute is entirely about Mullaney’s declaration.
We summarize Mullaney’s declaration. As we do, bear in mind the key
limitations date is April 18, 2017: complaints about actions before that date
would be time-barred and would dictate victory for Kelso.
Mullaney began his declaration by swearing he had personal
knowledge of everything in the declaration. He then declared he had been
Tri-Modal’s vice president of operations since 2009. In that role, Mullaney
supported managers who were the ones making final hiring and promotion
decisions. He sometimes provided recommendations. And he “open[ed]
positions to be filled.” Mullaney did not specify what it meant to “open
positions.” Mullaney also had access to employee personnel files, and he had
reviewed some of those files.
Mullaney next stated specific facts and dates about the five promotions
Pollock challenged. The point of these specific facts and dates was to
establish the basis for Kelso’s two key defenses: (1) that Tri-Modal had not
10
promoted one of the five employees at all, and (2) that the promotions of the
other four triggered clocks barring Pollock’s harassment claim as tardy.
Mullaney declared Tri-Modal never promoted the first of these five
employees at all.
Mullaney then gave specifics about the promotion dates for the other
four employees.
According to Mullaney, Tri-Modal did not promote the second and third
employees into supervisory positions on or after July 19, 2016, and did not
promote the fourth employee on or after April 18, 2017. The company offered
the fifth employee—one Leticia Gonzalez, to whom we shall return—a
promotion in March 2017. Gonzalez’s promotion “t[oo]k effect” May 1, 2017.
(The difference between these two dates for Gonzalez—March 2017
versus May 1, 2017—created an issue we address shortly. Recall the
limitations date of April 18, 2017, which falls in between these dates and
which animates the issue to which we return below.)
In sum, Mullaney’s specific facts were essential for Kelso’s defense
about the statute of limitation. On the basis of these facts, Kelso maintained
Mullaney’s declaration showed Pollock’s suit was misguided and untimely.
In response, Pollock raised a hearsay objection to Mullaney’s
declaration. She said Mullaney’s testimony was hearsay because its source
was not Mullaney’s personal knowledge but rather came from his reading of
personnel files, which were out-of-court documents, were not in evidence, and
were nothing but hearsay.
The trial court overruled Pollock’s hearsay objection. On appeal,
Pollock renews this objection.
2
We must determine the standard of review for this hearsay issue.
There is controversy here.
In Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 535 (Reid), the Supreme
Court approved of independent review when the trial court entirely failed to
rule on evidentiary objections in connection with a summary judgment
motion. But what about when the trial court has made an evidentiary ruling,
as here? Reid declined to decide that question. (Ibid.)
11
The vast majority of courts of appeal since Reid have applied the abuse
of discretion standard in this situation. (See, e.g., Schmidt v. Citibank, N.A.
(2018) 28 Cal. App. 5th 1109, 1118; Pacific Gas and Electric Co. v. Superior
Court (2018) 24 Cal. App. 5th 1150, 1169; Duarte v. Pacific Specialty Ins. Co.
(2017) 13 Cal. App. 5th 45, 52; O'Neal v. Stanislaus County Employees'
Retirement Assn. (2017) 8 Cal. App. 5th 1184, 1198–1199; Ryder v. Lightstorm
Entertainment, Inc. (2016) 246 Cal. App. 4th 1064, 1072; Jones v. Wachovia
Bank (2014) 230 Cal. App. 4th 935, 951; Serri v. Santa Clara Univ. (2014) 226
Cal. App. 4th 830, 852; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal. App. 4th
133, 143–144; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal. App. 4th
173, 181; cf. Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th
1102, 1122–1123 (conc. opn. of Turner, P. J.) (Howard) [listing 13 decisions
and stating the “unanimous” decisions from 2006 to 2012 applied abuse of
discretion standard].)
Apparently two courts have disagreed. (See Pipitone v. Williams (2016)
244 Cal. App. 4th 1437, 1450–1452 [interpreting “Reid’s practical effect” to
mandate independent review]; Alexander v. Scripps Memorial Hospital La
Jolla (2018) 23 Cal. App. 5th 206, 226 [standard of review varies depending on
the type of evidentiary objection].)
We join with the vast majority and its embrace of abuse of discretion as
the proper standard. The weight of this massed authority is impressive.
The logic supporting this mass view also is impressive. Experienced
trial judges tend to agree, first, evidence law is surpassingly intricate and,
second, the need for dispatch is pressing. Moreover, a single summary
judgment motion can bring with it hundreds of written objections. (E.g.,
Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal. App. 5th 13, 20 [197
written objections in one summary judgment motion].) In trial, too, a judge
may have to rule on dozens of objections per hour, hour after hour, day after
day, week after week. Each objection commonly contains within it many
different grounds: foundation, relevance, 352, hearsay, and so forth. Each
ground calls for a different evidentiary analysis. And lawyers can, and do,
make evidentiary objections entirely at will. Few and perhaps none of these
evidentiary objections may be of any ultimate importance. (See id. at pp. 20–
21.)
12
Because of the daunting complexity, volume, and pace of this
decisionmaking task, the latitude implied by the abuse-of-discretion standard
thus does make “great sense.” (Howard, supra, 208 Cal.App.4th at p. 1123
(conc. opn. of Turner, P. J.).)
We thus review the trial court’s hearsay ruling to see if the court
abused its discretion.
3
The court did not abuse its discretion by overruling Pollock’s hearsay
objection.
The hearsay question in this case was a close call. Mullaney recited a
series of promotion dates. He said certain employees were not promoted “on
or after” specific dates and said Gonzalez was promoted in March 2017. One
wonders: was Mullaney just reading and reciting those dates off documents
in personnel files? If so, that would be hearsay, unless the declaration
established some proper way around the hearsay rule, which it did not. (Cf.
Evid. Code § 1271 [reciting four foundational facts to establish the business
records exception].) Or was Mullaney reciting this series of dates from
personal knowledge, thus avoiding the hearsay problem?
Under an abuse of discretion standard, we could affirm whichever
ruling the trial court might make in this factual situation. The facts were in
equipoise. We illustrate.
It would have been reasonable for the court to conclude there was a
fatal hearsay problem, because paragraph nine of Mullaney’s declaration
stated “I have reviewed the personnel files” of the five employees.
Immediately after that, in paragraphs 10 through 18, Mullaney recounted
the crucial dates. This close sequence of assertions could support a
reasonable inference Mullaney merely read the dates from the files: “I looked
at the personnel files. The promotion dates were before X date or were in Y
month.” The immediacy with which sentence two follows sentence one is
context. That context could support the inference Mullaney knew the
promotions were before X date or were in Y month because he just read those
dates from the files. That recitation from documents would be merely
hearsay, unless there were a valid exception, which the declaration did not
establish.
13
But the opposite ruling also would have been reasonable. The trial
court fairly could have ruled as it did: to overrule Pollock’s hearsay objection
to Mullaney’s declaration. Mullaney did establish a plausible basis for his
own personal knowledge of these dates. Mullaney was at Tri-Modal the
whole time and was deeply involved in Tri-Modal’s personnel process. The
first paragraph of Mullaney’s declaration asserted he had “personal
knowledge of each of the facts set forth herein . . . .” The trial judge did not
abuse her discretion by accepting that statement at face value in this context.
Under the abuse of discretion standard, when more than one inference
reasonably can be deduced from the facts, we will not substitute our
deductions for those of the trial court. (In re Marriage of Rothrock (2008) 159
Cal. App. 4th 223, 230.) The trial court’s admission of the Mullaney
declaration thus was not an abuse of discretion.
There is a lesson here for litigators: know your Evidence Code when
working with declarations. It was risky business to omit the foundation for
the business records exception in Mullaney’s declaration. Adding that
foundation probably would have taken little effort. Why walk so near the
cliff’s edge when the view is just as fine at a safer distance?
4
In sum, the trial court properly admitted the Mullaney declaration.
Kelso could use the declaration to support his motion for summary judgment.
B
We now address the second part of Pollock’s argument about the
statute of limitations. This argument requires a legal choice between two
dates. Tri-Modal gave Leticia Gonzalez a promotion in March 2017, but
Gonzalez did not start work in this new role until May 1, 2017. Which date
should trigger the clock: when Tri-Modal offered and Gonzalez accepted the
promotion, or when she started the new job? The interval in between
straddles the limitations start date, so the earlier date means victory for
Kelso, while the later date means victory here for Pollock.
The trial court used the earlier date, which was the date Gonzalez was
offered and accepted the position over Pollock. Pollock maintains the
limitations period began to run only later, when the other employee’s
promotion took effect. The trial court was right. Pollock’s claims were barred.
14
We independently review this question of law. (Sahadi v. Scheaffer
(2007) 155 Cal. App. 4th 704, 713–714.)
By law, Kelso is right. The statute of limitations for a failure to
promote runs from when the employer tells employees they have been given
(or denied) a promotion. That date is key, and not the date when the
promoted worker actually starts the new work.
This result follows as a matter of statutory interpretation, so we turn
our gaze to the precise statutory language.
The governing statutes are sections 12940 and 12960 of the
Government Code. All statutory citations are to this code.
Subdivision (j)(1) of section 12940 makes it illegal for an employer to
“harass” employees on account of sex and gender. And, as pertains to
Pollock’s suit, former subdivision (d), now subdivision (e), of section 12960 set
a one-year clock for complaints about harassment. (The statute changed
effective January 1, 2020, but that change is not pertinent here.)
The governing statutory language used the key word “occurred”: “No
complaint may be filed after the expiration of one year from the date upon
which the alleged unlawful practice or refusal to cooperate occurred.” (Gov.
Code § 12960, former subd. (d), italics added.)
In this case, the alleged quid pro quo sexual harassment “occurred”
when Kelso supposedly punished Pollock at work for refusing his demand to
make their relationship more sexual.
Logically and thus textually, an employer injures the employee by
denying a deserved promotion as an instrument of sexual harassment. That
moment “occurred” when Tri-Modal allegedly did not promote the deserving
Pollock because of sexual harassment. That was in March 2017. So Pollock’s
injury “occurred” in March 2017, according to the plain meaning of the word
“occurred.”
This definition of “occurred” is simple and straightforward and thus
desirable and correct.
We can double-check this analysis with a hypothetical example.
Pollock’s allegation is Kelso offered the promotion to Gonzalez instead of
Pollock in retribution for Pollock’s refusal to submit to Kelso’s demand to
make their relationship more sexual. For purposes of analysis, suppose Kelso
15
had been candid about his allegedly harassing decision. In this hypothetical,
Kelso would tell Pollock, “Today I am giving this promotion to someone else,
even though you deserve it, because you rejected my sexual advances.” Such
a candid admission would describe grossly illegal discrimination that
“occurred” in March 2017, when Kelso denied Pollock a benefit she deserved
because Kelso wanted sex from her and she would not give it. So that date
triggered the one-year clock. That Kelso allegedly was less than candid
would not change anything fundamental about this analysis.
Pollock argues for a contrary conclusion based on her
misunderstanding of the Romano decision. (See Romano v. Rockwell
Internat., Inc. (1996) 14 Cal. 4th 479 (Romano).)
Romano construed a different statutory word: “discharge.” Romano
held, essentially, that discharge occurs when you are off the payroll.
(Romano, supra, 14 Cal.4th at pp. 491–500.) That simple holding seems
obviously correct and is binding law but has nothing to do with this case,
which does not involve a discharge. Romano thus does not govern here.
The trial court correctly concluded that Government Code section
12960, former subdivision (d) bars Pollock’s claims because she did not file
her administrative complaint within one year of March 2017, the time that
those claims accrued. Summary judgment on this ground was proper.
DISPOSITION
We affirm and award costs to Scotts, Pacific, and Kelso.
WILEY, J.
We concur:
BIGELOW, P. J. GRIMES, J.
16
|
01-03-2023
|
04-07-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/4553787/
|
Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00668-CV
———————————
NORTHWEST EMS CONSULTANTS, P.A. D/B/A NORTH CYPRESS EMS,
Appellant
V.
FRANCES GUILLORY, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2018-61162
DISSENTING OPINION
In this healthcare liability suit, Northwest EMS Consultants, P.A. appeals
from the trial court’s ruling denying its challenges to Frances Guillory’s expert
reports. The majority reverses and remands, holding that:
(1) Guillory’s expert reports do not provide a fair summary of the standard of
care or explain how Northwest EMS breached this standard;
(2) Guillory’s experts are not qualified to opine about causation; and
(3) Guillory’s expert reports do not explain the causal relationship between
Northwest EMS’s breach of the standard of care and her injuries.
These holdings misapply the Texas Medical Liability Act’s expert-report
requirement to the facts of this case. I would affirm the trial court, and I therefore
respectfully dissent.
BACKGROUND
Guillory sued Northwest EMS for injuries she suffered when its technicians
dropped her to the ground while removing her from an ambulance on a stretcher. In
support of her healthcare liability claim, Guillory served two expert reports.
The first was from Jeffrey P. Jannarone, a licensed emergency medical
technician, who opined about the standard of care. In his report, Jannarone stated
that the technicians who carried Guillory on a stretcher were required to properly
unload her from the ambulance. According to Jannarone, proper unloading includes
not dropping the patient. But the technicians did drop Guillory.
Guillory’s second report was from Kevin Anuvat, a licensed medical doctor,
who opined about causation. In his report, Dr. Anuvat stated that Guillory developed
pain in her neck and back after being dropped on the ground and that she was later
2
diagnosed with spinal injuries. Anuvat concluded that these injuries resulted from
the drop because:
• she was 41 years old, healthy, and had no history of trauma or
musculoskeletal pain complaints or symptoms before being dropped; and
• based on two studies and Guillory’s age, her injuries were not within
reasonable medical probability attributable to the normal aging process.
Northwest EMS challenged the sufficiency of both reports. The trial court
overruled Northwest EMS’s challenges. Northwest EMS appeals.
DISCUSSION
Expert-Report Requirement
A plaintiff who asserts a healthcare liability claim must serve one or more
supporting expert reports on a healthcare provider defendant that she sues no later
than 120 days after the defendant answers. TEX. CIV. PRAC. & REM. CODE
§ 74.351(a), (i). An expert report must give a fair summary of the expert’s opinions
as to the applicable standard of care, the manner in which the healthcare provider
failed to meet the standard, and the causal relationship between the healthcare
provider’s failure and the plaintiff’s injury, harm, or damages. Id. § 74.351(r)(6).
The purpose of the expert-report requirement is to eliminate frivolous claims
at a suit’s threshold. Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d
357, 363 (Tex. 2019). Congruent with this limited purpose, the statute sets a
3
relatively low bar for the sufficiency of an expert report. New Med. Horizons v.
Milner, 575 S.W.3d 53, 60 (Tex. App.—Houston [1st Dist.] 2019, no pet.).
A healthcare provider defendant must object to a report’s sufficiency within
21 days of the service of the report or the filing of the healthcare provider defendant’s
answer, whichever is later. TEX. CIV. PRAC. & REM. CODE § 74.351(a). Otherwise,
the defendant waives any objections to the report’s sufficiency. Id.
The trial court may sustain an objection to an expert report’s sufficiency “only
if it appears to the court, after hearing, that the report does not represent a good faith
effort to comply with the definition of an expert report in Subsection (r)(6).” Id.
§ 74.351(l). An expert report meets this good-faith standard so long as it informs the
defendant of the specific conduct called into question and gives the trial court a basis
to conclude the claim has merit. Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018) (per curiam). The report need not use particular magic
language. Columbia Valley Healthcare Sys. v. Zamarripa, 526 S.W.3d 453, 460
(Tex. 2017). Nor does the report need to marshal proof in support of the plaintiff’s
claim. Abshire, 563 S.W.3d at 223–24. But it cannot be conclusory. Id.
Standard of Review
We review a trial court’s ruling on a challenge to an expert report’s sufficiency
for abuse of discretion. Id. at 223. The trial court abuses its discretion if it rules
without reference to guiding rules or principles. Miller v. JSC Lake Highlands
4
Operations, 536 S.W.3d 510, 512–13 (Tex. 2017) (per curiam). Under this standard,
we may not substitute our judgment for the trial court’s. Id. at 513. If facts are in
dispute, the trial court does not abuse its discretion if some of the conflicting
evidence supports its ruling. See Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.
2011). When presented with a close call, we must affirm. Milner, 575 S.W.3d at 60.
Analysis
Standard of Care
To fulfill the expert-report requirement as to standard of care, the report must
explain what the healthcare provider defendant should have done under the
circumstances and what it did instead. Am. Transitional Care Ctrs. of Tex. v.
Palacios, 46 S.W.3d 873, 880 (Tex. 2001); Puppala v. Perry, 564 S.W.3d 190, 196
(Tex. App.—Houston [1st Dist.] 2018, no pet.). A fair summary must notify the
defendant of the complained of conduct but need not make a full statement of the
standard of care and how it was breached. Palacios, 46 S.W.3d at 880.
Jannarone’s report satisfies these requirements. He opined that emergency
medical technicians should not drop a patient when carrying her on a stretcher but
that this is exactly what they did when carrying Guillory. His report notifies
Northwest EMS what it should have done under the circumstances (not drop
Guillory) and what it did instead (drop Guillory).
5
The majority faults Jannarone for failing to specify what Northwest EMS’s
technicians did or did not do that caused them to drop Guillory. Without these
details, the majority reasons, Jannarone’s report is conclusory. I cannot agree.
In Baty v. Futrell, the plaintiff sued an anesthetist who inserted a needle in her
optic nerve while anesthetizing her before cataract surgery. 543 S.W.3d 689, 690
(Tex. 2018). In his report, the plaintiff’s expert opined that the anesthetist violated
the standard of care by failing to administer the anesthesia in the proper manner to
avoid injuring the patient’s optic nerve. See id. at 691, 694. The anesthetist objected
that the expert report did not provide a fair summary of the standard of care or
explain how the anesthetist breached it. See id. at 692. In particular, the anesthetist
asserted that faulting him for not administering anesthesia in the proper manner was
impermissibly conclusory. See id. at 694. Instead, the anesthetist argued, the
plaintiff’s expert had to specify the duties of an ordinarily prudent anesthetist
performing this procedure and explain what the anesthetist should have done
differently in this instance. Id. at 696. The trial court agreed with the anesthetist and
dismissed the plaintiff’s suit. Id. at 692. The court of appeals affirmed, holding that
the report did not inform the anesthetist what an ordinarily prudent anesthetist should
have done under the circumstances. Id. at 692, 695.
In the Supreme Court, the plaintiff contended that her expert report was not
conclusory even though it articulated a “fairly basic” standard of care—not inserting
6
a needle into the optic nerve when administering anesthesia. Id. at 694. The Supreme
Court agreed with the plaintiff, holding that her expert report was sufficient. Id. at
695–97. The Court reasoned that the plaintiff’s expert did not conclusorily state that
he knew the standard of care and assert that the anesthetist did not meet it. Id. at 696.
Nor did the expert merely equate negligence with a bad or unsuccessful result. Id.
Rather, the Court explained, insertion of “the needle into the optic nerve is not a
result, good or bad; it is conduct that allegedly caused a bad result in this case.” Id.
It was this very conduct—insertion of the needle into the optic nerve—that the
plaintiff’s expert identified as a breach of the standard of care. Id. The Court held
that the expert’s report therefore was sufficient because it informed the anesthetist
exactly what he was not supposed to have done. Id. at 697.
Jannarone’s report is analogous to the one the Court held was sufficient in
Baty. Like an anesthetist’s insertion of a needle into the optic nerve when
anesthetizing a patient before cataract surgery, the emergency medical technicians’
dropping Guillory on the ground when carrying her on a stretcher is not a result,
good or bad; it is conduct that allegedly injured Guillory, and dropping her is the
specific conduct that her expert asserts violated the technicians’ standard of care.
Jannarone did not opine that Northwest EMS was negligent merely because Guillory
was injured while being carried. Rather, Jannarone’s report informed Northwest
EMS exactly what it was not supposed to have done—drop Guillory. As in Baty, no
7
further detail is required at this stage of the proceedings. See 543 S.W.3d at 697; see
also Cook v. Broussard, No. 01-19-00483-CV, 2020 WL 1917841, at *7 (Tex.
App.—Houston [1st Dist.] Apr. 21, 2020, no pet.) (mem. op.) (report opining that
standard of care required doctor to maintain control of surgical instrumentation and
that failure to do so breached standard held sufficient).
Not all healthcare liability claims involve a complex standard of care. Keepers
v. Blessett, No. 01-18-01020-CV, 2019 WL 1523368, at *5 (Tex. App.—Houston
[1st Dist.] Apr. 9, 2019, no pet.) (mem. op.) (citing Baty, 543 S.W.3d at 694). When
a plaintiff’s claim does not involve a complex standard of care, her expert’s
articulation of the standard and its breach may be fairly basic and still satisfy the
report requirement. See id. at *6 (report opining that epidural injection should not
have penetrated dura, spinal cord, or intradural space held sufficient). Guillory’s
claim that emergency medical technicians dropped her on the ground when carrying
her on a stretcher is as simple as a healthcare liability claim can be. The simplicity
of Jannarone’s expert report reflects the simplicity of the claim.
The majority nonetheless holds that more detail is required. It apparently
envisions a report in which an expert opines on topics like the proper method of
gripping a stretcher, appropriate gait while carrying it, suitable measures to spot and
avoid hazards when in motion, acceptable precautions to minimize the risk of
dropping the patient, and any conventional means of mitigating injury in the event
8
of a drop. But this kind of elaboration is not necessary for an uncomplicated claim
like Guillory’s. See Abshire, 563 S.W.3d at 227 (report opining that hospital would
have detected and treated patient’s spinal fracture sooner if nurses had properly
documented patient’s medical history and symptoms was not conclusory for failure
to designate specific documentary procedure that should have been used).
Nor is the kind of elaboration that the majority requires appropriate. Expert
testimony consists of scientific, technical, or other specialized knowledge beyond
the ken of laymen. See TEX. R. EVID. 702; K-Mart Corp. v. Honeycutt, 24 S.W.3d
357, 360 (Tex. 2000) (per curiam). How to hold an object and guard against dropping
it while walking are matters within the common knowledge of laymen. The trial
court therefore does not need expert assistance on these subjects to assess whether
Guillory’s healthcare liability claim has merit at the threshold of the suit. By insisting
that Jannarone opine on these matters of common knowledge for his report to
represent a good-faith effort to comply with the expert-report requirement, the
majority effectively mandates that he proffer pseudo-science. This stands our
jurisprudence, which aims to exclude “junk science,” on its head. See E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549, 552–57 (Tex. 1995).
Causation
To fulfill the expert-report requirement as to causation, the report must
explain how and why the healthcare provider defendant’s alleged negligence caused
9
the plaintiff’s injury. Abshire, 563 S.W.3d at 224. To do so, the report must explain
the basis for its statements and link its conclusions to specific facts. Id. But the report
need not account for every known fact. Id. It is sufficient so long as it makes a good-
faith effort to explain how the plaintiff will prove proximate cause. Id.
The majority holds that Dr. Anuvat’s causation opinion would be insufficient
even if he was qualified to opine on the subject of causation. I cannot agree.
The majority essentially faults Anuvat for concluding that the emergency
medical technicians caused Guillory’s injuries by dropping her to the ground simply
because her symptoms appeared afterward. But Anuvat did not rely on the sequence
of these events or the temporal proximity of the drop and Guillory’s symptoms alone.
Anuvat used a process of elimination to conclude that the drop caused Guillory’s
injuries. She did not have any symptoms before the technicians dropped her that
might indicate a preexisting medical condition. Nor did she have any prior trauma
that would account for her injuries. Studies indicate it was more likely than not that
a person her age would not have developed these injuries without trauma. Anuvat’s
conclusion rests on these specific facts. His opinion thus informs Northwest EMS
how and why the drop allegedly caused Guillory’s injuries.
The process of elimination Anuvat used is a form of differential diagnosis, the
clinical process by which a doctor determines the cause of a patient’s symptoms by
ruling out other possible causes. See Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211,
10
216–20 (Tex. 2010); Coastal Tankships, U.S.A. v. Anderson, 87 S.W.3d 591, 604–
05 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (en banc). A medical expert
can render a scientifically reliable opinion on causation based on this process of
elimination. See Crump, 330 S.W.3d at 216–19; see also Coastal Tankships, 87
S.W.3d at 604 (differential diagnosis is not “junk science”). To do so, the expert
need not disprove every possible cause other than the one he espouses. Crump, 330
S.W.3d at 217–18; Curnel v. Houston Methodist Hosp.-Willowbrook, 562 S.W.3d
553, 562 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Guillory’s causation expert
ultimately may need to consider any alternative causes raised by the evidence to
render a reliable opinion. See Crump, 330 S.W.3d at 217–18. But at this early stage
of the proceedings, Anuvat’s deductive process provides some basis to conclude that
dropping Guillory to the ground caused her injuries. Some basis is all that is
necessary to satisfy the expert-report requirement. Cornejo v. Hilgers, 446 S.W.3d
113, 123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).
Qualifications
To submit a report on causation, the witness must be a physician who is
qualified to render an expert opinion under the rules of evidence. See TEX. CIV.
PRAC. & REM. CODE §§ 74.351(r)(5)(C), 74.403(a). Thus, a physician may be
qualified on the basis of knowledge, skill, experience, training, or education. TEX.
R. EVID. 702; Puppala, 564 S.W.3d at 202. While not all physicians are qualified to
11
opine on all medical questions, a physician is not required to practice or specialize
in a particular area to opine on causation. Cornejo, 446 S.W.3d at 121–23.
The majority holds that Anuvat, a licensed medical doctor, is not qualified to
opine that emergency medical technicians injured Guillory by dropping her. It
reasons that Anuvat’s report does not show that his particular field of practice—
physiatry—qualifies him to opine on the cause of spinal injuries. I cannot agree.
Anuvat is a licensed medical doctor in Texas. The majority concedes that as a
physiatrist, Anuvat diagnoses and treats medical conditions that may cause
impairment. It fails to recognize, however, that diagnosis may include not only the
identification of an ailment but its underlying causes as well. See, e.g., Costello v.
Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 248 n.3 (Tex. App.—San
Antonio 2004, no pet.) (relying on TABER’S CYCLOPEDIC MED. DICTIONARY (19th
ed. 2001)).
Anuvat used differential diagnosis or its equivalent to conclude that dropping
Guillory injured her. As noted, treating physicians routinely use this diagnostic
methodology. See Crump, 330 S.W.3d at 216; Coastal Tankships, 87 S.W.3d at 604.
Specialized medical expertise is not required to use this methodology to evaluate a
patient because it is common to the practice of internal medicine in general. See
Crump, 330 S.W.3d at 217 (differential diagnosis is basic method of internal
medicine and enjoys widespread acceptance in medical community). To the extent
12
the majority holds that Anuvat must demonstrate expertise in spinal injuries in
particular to qualify as an expert, it therefore errs. Virtually any medical doctor is
qualified to opine that a patient’s musculoskeletal injuries were caused by sudden
trauma like a drop or fall. See, e.g., Clear Lake Rehab. Hosp. v. Karber, No. 01-09-
0883-CV, 2010 WL 987758, at *4–5 (Tex. App.—Houston [1st Dist.] Mar. 18, 2010,
no pet.) (mem. op.) (trial court did not abuse discretion in ruling that physician with
surgical practice was qualified to opine that allowing patient to place weight on leg
caused her fall and fracture); see also Kerr v. Pirf Operations, No. 05-18-00928-CV,
2019 WL 4027075, at *1–2, *7 n.6 (Tex. App.—Dallas Aug. 27, 2019, pet. denied)
(mem. op.) (concluding that patient’s fall in rehabilitation facility’s shower due to
inadequate monitoring and assistance and her resulting spinal injuries, which
included injury to her spine, were not complex and likely would not require expert
testimony on causation at all but for expert-report requirement).
We must be mindful that Anuvat merely has to be qualified to opine that
Northwest EMS’s breach of the standard of care—the dropping of a patient who was
being carried on a stretcher by its emergency medical technicians—caused
Guillory’s injuries. TEX. CIV. PRAC. & REM. CODE §§ 74.351(r)(6), 74.403(a).
Anuvat need not be a specialist in spinal injuries in particular to do so. But the
majority also disregards that Anuvat was an attending physician at Interventional
13
Spine of Texas in 2016–17 and that his professional memberships include the North
American Spine Society and International Spine Intervention Society.
The majority likewise discounts Anuvat’s role as Guillory’s treating
physician. It reasons that he merely signed his report as “treating physician” without
elaboration. But Anuvat’s report was submitted on the letterhead of Interventional
Spine of Texas, where Guillory was treated in 2016–17 and where Anuvat then
worked.
In discounting the evidence of Anuvat’s professional experience in treating
spinal injuries and in treating this patient, the majority usurps the trial court’s role.
When, as here, a trial court rules based on disputed evidence, it does not abuse its
discretion if some of the conflicting evidence supports its ruling. See Samlowski, 332
S.W.3d at 410. On this record, the trial court reasonably could have concluded that
Anuvat was qualified to opine that Guillory’s spinal injuries resulted from being
dropped.
CONCLUSION
The purpose of the Texas Medical Liability Act’s expert-report requirement
is to dispose of frivolous claims early in the litigation. To achieve this purpose, the
Act sets a low bar for the sufficiency of expert reports. The majority erroneously
elevates this low bar to a high hurdle. It does so in three ways; the majority:
(1) overcomplicates the standard of care for an uncomplicated claim;
14
(2) oversimplifies an expert’s application of a well-accepted medical
methodology for identifying the cause of a patient’s injuries; and
(3) oversteps our review for abuse of discretion by discounting evidence the
trial court was entitled to rely on in evaluating expert qualifications.
I therefore respectfully dissent.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Landau, and Countiss.
Justice Goodman, dissenting.
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447 So. 2d 580 (1984)
STATE of Louisiana, Plaintiff-Appellee,
v.
Ronald JAMES a/k/a James Gregg, Defendant-Appellant.
No. CR83-390.
Court of Appeal of Louisiana, Third Circuit.
March 7, 1984.
*582 L. Paul Gianfala, Lafayette, for defendant-appellant.
Glenn B. Foreman and Robert T. Cline, Asst. Dist. Attys., Crowley, for plaintiff-appellee.
Before DOMENGEAUX, GUIDRY and STOKER, JJ.
GUIDRY, Judge.
On April 15, 1983, the defendant, Ronald James, also known as James Gregg, was convicted of armed robbery, a violation of LSA-R.S. 14:64. On August 6, 1982, defendant was sentenced to serve seventy-five years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence on the basis of five assignments of error.
FACTS
On November 9, 1981, the defendant was canvassing West Hutchinson Street, Crowley, Louisiana, attempting to sell magazine subscriptions. For this purpose, he and a fellow worker entered the home of Ella Monroe, at approximately 8:00 p.m. The two remained inside the house close to a half-hour, during which time Ms. Monroe purchased a subscription to T.V. Guide magazine. The defendant later returned to the Monroe home, ostensibly to record an address on her copy of the receipt. After the victim was unable to locate her receipt, the defendant left momentarily. He then re-entered the home, grabbed Ms. Monroe and held a knife to her throat, threatening to cut her throat. The victim testified that defendant took seventy-five dollars from her at that time.
On appeal, the defendant asserts that the trial court erred in:
(1) allowing Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel;
(2) allowing the state to read the oral inculpatory statement made by defendant to the jury;
*583 (3) allowing Captain Gilford Richard to testify in the capacity of a fingerprint expert;
(4) considering past criminal charges and accusations of other crimes set out in the pre-sentence report when the sentence was rendered; and,
(5) imposing an excessive sentence in violation of Article 1, Sec. 20 of the Louisiana Constitution.
ASSIGNMENT OF ERROR NO. 1
By this assignment of error, the defendant alleges that the trial court erred when it allowed Captain Gilford Richard to remain in court after the rule of sequestration was invoked by defense counsel.
LSA-C.Cr.P. Art. 764 provides the rule for sequestration of witnesses:
"Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice."
An order of sequestration is intended to assure that a witness will testify concerning his own knowledge of the case without being influenced by the testimony of prior witnesses and to strengthen the role of cross-examination in developing facts. State v. Kimble, 407 So. 2d 693 (La.1981).
Essentially, the defendant argues that Captain Richard was arbitrarily excluded from the rule of sequestration, thus allowing him to remain in the courtroom to hear the testimony of other witnesses, and to be recalled as needed by the defense. Therefore, the defendant argues, this placed the defendant at a great disadvantage and the trial judge's action in allowing Captain Richard to remain in the courtroom was an abuse of his discretion. We find no merit to this contention.
Before the voir dire examination of the prospective jurors the trial judge, of his own volition, inquired as to whether there were any witnesses in the courtroom. After a bench conference, the judge requested that the witnesses wait in the jury deliberation room during the voir dire examination. At that time, the assistant district attorney instructed Captain Richard to stay. The defense attorney did not offer any objection or protestation to Captain Richard's remaining in the courtroom during voir dire. Therefore, under LSA-C. Cr.P. Art. 841, the defendant has waived his right to assert as error the failure of the trial court to exclude Captain Richard from the courtroom during such procedure.[1]
After the trial commenced, neither the defense nor the state made a formal motion to sequester the witnesses. Captain Richard was the first witness to testify. Subsequently, two other witnesses, Stephanie Berrian and Harold Hebert, were called. Captain Richard was then recalled to testify. It was during his subsequent testimony that the defense counsel moved for the sequestration of the witnesses. Following the sequestration of the witnesses, Captain Richard completed his testimony, and was not recalled to testify thereafter.
The foregoing facts make it clear that there was no violation of the trial court's sequestration order. The witnesses were properly instructed and excluded from the courtroom following the defendant's motion to sequester. The defendant may not assert as error the presence of Captain Richard during the testimony of Berrian and Hebert, as the sequestration of witnesses had neither been ordered nor requested at that time. This assignment of error is therefore without merit.
*584 ASSIGNMENT OF ERROR NO. 2
In this assignment, the defendant asserts that the trial court erred in allowing the state to read the defendant's oral inculpatory statement to the jury. He claims that the statement was highly prejudicial because he was instructed to initial the statement after he expressed his desire to end the statement and to consult an attorney, and that the presence of his initials on the statement may have appeared to the jury to buttress the conclusion that the statement was free, voluntary and knowingly made. He argues that the jury was not informed that the presence of the initials actually signified the defendant's wish to end the statement. The defendant also contends that the introduction of the statement into evidence was reversible error because the statement was written down by Captain Richard and did not reflect the defendant's statement verbatim.
Whenever the state seeks to introduce into evidence an inculpatory statement, it has the burden of proving beyond a reasonable doubt that the statement was made freely and voluntarily, and not under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Jackson, 414 So. 2d 310 (La.1982). More specifically, the state must demonstrate that the accused was advised of his Miranda rights and that he knowingly and intelligently waived these rights. Moreover, if he indicates in any manner and at any stage in the process that he wishes to consult with an attorney, the interrogation must cease. State v. Carter, 412 So. 2d 540 (La.1982). The admissibility of an inculpatory statement is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. Jackson, supra at 312.
To be admissible, a confession need not be a verbatim record of the defendant's oral version. State v. Johnson, 327 So. 2d 384 (La.1976). State v. Simmons, 328 So. 2d 149 (La.1976), appeal after remand 340 So. 2d 1357. In Johnson, the defendant gave an oral statement during which a detective took notes. These notes were then typed by a secretary, and the typed confession was presented to defendant for his signature. Though the defendant signed the confession, the officers were unsure whether he read it. In ruling on the defendant's objection to this procedure, the Court noted that the defendant was given ample opportunity to read it and object to any part he considered inaccurate and that the defendant, who made no allegation that he was illiterate or that coercion was used to obtain his signature, signed it.
In Simmons, the defendant was illiterate and by assignment complained of the manner in which the confession had been reduced to writing. In ruling on this question, the Court stated: "The objection goes merely to the weight to be given the evidence. Nor is the statement, if otherwise admissible, to be excluded because the interrogation of an illiterate accused is reduced to typewritten material by the interrogating officer." See also State v. Lefevre, 419 So. 2d 862, 867 (La.1982).
In the instant case, the testimony of Captain Richard reflects that he read the defendant his Miranda rights twice and that the defendant read the form once, and informed the officers that he understood his rights. Based upon this testimony, the trial judge ruled that the inculpatory statement was voluntary and thus admissible into evidence. Therefore, the defendant's objection as to his statement being written down by Richard goes to the weight of the evidence rather than to its admissibility. Simmons, supra. It is noted that the defense attorney on cross-examination of Captain Richard amply demonstrated to the jury that the statement was written by Captain Richard and not by the defendant. This assertion of error lacks merit.
Similarly defendant's assertion that the statement should be held inadmissible because of the testimony relating to *585 his initials is also without merit. Defendant argues that the testimony reflecting his initials on the statement may have appeared to reflect to the jury that his statement was free, voluntary and knowingly made, rather than the actual fact that it only signified his desire to end the statement. As stated earlier, the admissibility of a confession is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence. Jackson, supra. In this case, the trial judge had already determined the voluntariness of the defendant's statement. While on the stand, Captain Richard read the statement, including the sentence "Stopped at this point and wanted a lawyer. R.J." There was no attempt made to interpret any portion of the defendant's statement, but rather, it was read and allowed to stand on its own merit before the jury. In his closing argument, the prosecuting attorney re-read the statement and illustrated some discrepancies between its contents and the testimonies presented by other witnesses. Despite defendant's allegation in his brief that "the State made quite a point (in his closing argument) that the defendant initialed the statement freely and voluntarily", the transcript does not support this claim. Furthermore, during the cross-examination of Captain Richard, the defendant did not attempt to clarify any confusion which he might have perceived to be within the minds of the jury concerning the defendant's initialling the statement. Inasmuch as the defendant has failed to show that he has suffered any prejudice from this alleged error, this assignment is without merit.
ASSIGNMENT OF ERROR NO. 3
By this assignment of error the defendant contends that the trial court erred in allowing Captain Richard to testify in the capacity of a fingerprint expert. More particularly, he alleges that the prosecuting attorney asked the witness several questions which called for an opinion, that the witness was not testifying as to facts within his personal knowledge, but rather as to his impressions or opinion, and that the testimony was elicited without a proper foundation being laid for such evidence.
The Supreme Court has consistently held that, with rare exception, a witness can testify only as to facts within his knowledge. He may not testify, unless properly qualified as an expert, as to any impression or opinion he may have. Nevertheless, as to subjects about which any person of experience might make an inference, a witness has not been prohibited from testifying as to natural inferences drawn from the facts he has personally observed. State v. Prestridge, 399 So. 2d 564 (La.1981); State v. Haarala, 398 So. 2d 1093 (La.1981).
During cross-examination of Captain Richard, defense counsel questioned him concerning the report by the crime lab which indicated no fingerprints were found on the alleged weapon used by the defendant. On redirect examination, the prosecuting attorney asked the defendant, "Does it surprise you that there are no fingerprints on that knife." The defense counsel objected stating, "I would object to this questioning. He's on direct examination." By this statement, it would appear that the basis for the defendant's objection was that the prosecutor was asking leading questions to his own witness. The basis for the objection was not that the question called for an opinion; thus, the defendant appears to be raising a new basis for this objection in his brief. A new basis for an objection cannot be raised for the first time on appeal. LSA-C.Cr.P. Art. 841; State v. Feeback, 414 So. 2d 1229 (La.1982).
The next allegedly improper questioning arose when the prosecuting attorney asked the witness "What percentage of time do you find prints on a weapon?" The defendant objected to this question stating that it called for an expert opinion. The trial judge overruled the objection, allowing the witness to testify based upon his own knowledge of cases. This ruling appears *586 to be correct. The witness responded that in fourteen years, only three cases had been made with fingerprints. As this answer appears to have been from the witness's personal knowledge, it is not objectionable as opinion evidence.
The remaining two sets of questions which the defendant claims sought answers which were inadmissible opinion testimony are as follows:
"MR. CLINE:
Q. In fact, any piece of paper or any rag or cloth or anything would prevent fingerprints, wouldn't it?
A. Yes, sir.
Q. Any wiping would prevent fingerprints?
A. That's usually the case.
Q. And even without that, you don't have a guaranty if you don't have wiping and you don't have paper, you don't have anything to cover, you still don't have a guaranty that you are going to get a print do you?
A. That's correct, sir.
. . . . .
MR. CLINE:
Q. Why is it so dusty?
A. This is fingerprint dusting latent powder that was put on the telephone.
Q. Okay. Did you find any prints on it?
A. No prints.
Q. Does that surprise you?
A. Doesn't surprise me."
We entertain serious doubt as to whether the foregoing constitutes opinion testimony. It appears to us that the testimony merely contains facts within the knowledge of Captain Richard, gained through his years of experience in police work. In any event, the defendant offered no objection to either of these series of questions as is required by LSA-C.Cr.P. Art. 841. Fulfillment of this requirement allows the trial court the opportunity to rule on the objection and to avoid or cure any errors, and thus the failure of the defendant to object waives any alleged error. State v. Vanderhoff, 415 So. 2d 190 (La.1982).
In light of the foregoing, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 4
In this assignment, the defendant contends that the trial court erred in considering past criminal charges and accusations of other crimes set out in the pre-sentence report when the sentence was rendered. This assignment is not meritorious.
The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So. 2d 1263 (La.1980). Prior criminal activity is one of the factors under LSA-C.Cr.P. Art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So. 2d 1043 (La.1982); State v. Washington, 414 So. 2d 313 (La.1982). In Washington, the trial judge took into consideration the confession of defendant's co-conspirators as evidence of prior criminal activity. In State v. Williams, 412 So. 2d 1327 (La.1982), the Supreme Court held that the trial judge did not err when he took into consideration the defendant's prior record of numerous arrests, even though he had never been prosecuted for those arrests and only had one prior conviction in 1967 for the crime of illegal carrying of weapons. Finding that the trial judge carefully articulated the basis for the sentence after considering appropriate factors, including the defendant's history of criminal activity, the court noted in its footnote:
"Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation. In some cases it may be preferable to ascertain the factual basis for an arrest from such sources as police reports or presentence investigation reports. The sources of information upon which trial judges may draw in determining an appropriate sentence must be wide and varied, *587 and not subject to the normal restrictions imposed in the guilt determination phase of proceedings. See Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949)." footnote 1, p. 1328.
In this case, the defendant was furnished with a copy of the presentence investigation report, reviewed it with his attorney, and was offered an opportunity to speak in his behalf before the trial judge sentenced him. Therefore, it appears that the defendant was given notice of any derogatory information and was offered a chance to speak in mitigation. Williams, supra. In light of this fact, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
By this assignment, the defendant contends that the trial court imposed an excessive sentence in violation of Art. 1, Sec. 20 of the Louisiana Constitution. The defendant was sentenced to serve seventy-five years at hard labor without benefit of probation, parole or suspension of sentence.
A sentence is excessive if the penalty is grossly disproportionate to the crime. State v. Pearson, 425 So. 2d 704 (La.1982); State v. Goode, 380 So. 2d 1361 (La.1980). In determining whether the penalty is grossly disproportionate to the offense, the appellate court must "consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice." State v. Pearson, supra; State v. Bonanno, 384 So. 2d 355 (La.1980); State v. Beavers, 382 So. 2d 943 (La.1980). The trial judge has wide discretion in imposing sentences within statutory limits. Absent a manifest abuse of that discretion, the sentence imposed by the trial court will not be set aside as excessive. State v. Forshee, 395 So. 2d 742 (La.1981); State v. Napoli, 428 So. 2d 957 (La.App. 1st Cir.1983), writ granted on other grounds, 437 So. 2d 868 (La.1983).
The pre-sentence investigation report made a part of the record shows that the defendant has a long history of serious criminal activity. Between 1977 and 1981, the defendant was arrested for and charged with numerous offenses, including two rapes, an armed robbery, two counts of simple burglary, possession of a deadly weapon, aggravated battery, possession of stolen property, attempted escape and possession of marijuana with intent to distribute. The report also reveals that the defendant stands charged with the aggravated rape of Ms. Monroe, which allegedly occurred during the armed robbery here under consideration.
In light of the defendant's history of criminal activity, and in particular his record of serious crimes against the person, we find no abuse of the trial court's discretion in the imposition of a seventy-five year sentence. This assignment lacks merit.
For the above and foregoing reasons, the defendant's conviction and sentence are affirmed.
AFFIRMED.
DOMENGEAUX, J., concurs. See concurring opinions in cases at State v. Goodman, 427 So. 2d 529 (La.App.1983); State v. Vallare, 430 So. 2d 1336 (La.App.1983); and State v. Shelby, 438 So. 2d 1166 (La.App. 1983).
NOTES
[1] It is observed that the judge's request for the witnesses to leave the courtroom does not appear to be an invocation of the rule of sequestration. There is no notation in the minutes to show that the rule of sequestration was invoked. Furthermore, the record does not show that all the witnesses were present at that time, nor does it show that the witnesses were instructed concerning the rule of sequestration.
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The appeal brings for review a final decree in foreclosure proceedings in which the defense interposed by the defendants was that the loan secured by the mortgage was unanimous in that the lender violated Sec. 4851 *Page 306
R.G.S., 6938 C.G.L., and was amenable to the forfeiture prescribed by Sec. 4852 R.G.S., 6939 C.G.L.
Both the Master in Chancery and the Chancellor found against the contentions of the defendants, who are appellants here.
The findings of the Master and of the Chancellor are set out at some length but, in short, they are to the effect that the borrower applied to a broker to find a loan of $8,250.00 and agreed to pay the broker 10% of that amount for finding the loan; that it was made known to the broker that the loan to avail the borrower had to be procured quickly and the borrower wanted the money for a period of five (5) years. With this agreement between the broker and the proposed borrower the broker approached the lender, over whom he is not shown to have had any influence or control, and applied for the loan as agent for the borrower. The lender would not agree to make the loan for a period of five years and the broker, being pressed for time in which to find the loan, finally agreed with the proposed lender that if the lender would loan the money to the borrower at 8% interest per annum for a period of two (2) years the broker would pay the lender one-half of his 10% commission. The broker then advised the borrower that he could only get the money for two years at 8% and that to close the transaction he, the broker, would have to pay the lender one-half of his commission. Thereupon the borrower agreed to take the loan for the two-year period, made the note and mortgage for the $8,250.00 and the lender deposited that amount in bank to be paid over to the borrower when the borrower should have been able to show unincumbered title to the property mortgaged and to have paid certain items which were legitimately chargeable to the borrower in connection with the loan as follows: *Page 307
"$8.20, State Documentary Stamps; $7,551.89 for satisfaction of pre-existing mortgage on the premises; $68.00 to the New York Title Mortgage Company, representing title insurance, abstracting and recording fees; and the further sum of $10.00 for escrow expenses in settlement of the pre-existing mortgage."
It was further found that these expenses were paid and that at the direction of the broker the borrower drew his check payable to the broker in the sum of $412.50 and his other check to Mrs. Ada Welch for the sum of $412.50, which check was endorsed to the lender to pay the obligation of the broker to the lender of one-half of his commission for his services in finding the loan. The findings in this regard are as follows:
"I further find that on April 23, 1932, the defendant, Roy Edward Pushee, at the direction of his agent, C.H.W. Read, drew his check for $412.50 on the Mimai Beach First National Bank, payable to the order of Mrs. Ada Welsh; that said check was shortly thereafter endorsed by Mrs. Ada Welsh and the proceeds thereof paid over to the complainant. I further find that this $412.50 was one-half of the commission which the defendant, Roy Edward Pushee, had theretofore promised and agreed to pay to the agent, C.H.W. Read, for his services in procuring the loan, I further find that the said $412.50 received by complainant was received by her after she had paid, unconditionally, the $8,250.00 to the defendant, Roy Elward Pushee, and that at the time she received the said $412.50 the defendant, Roy Edward Pushee, was not in default under the terms of the note and the mortgage, and that Roy Edward Pushee by drawing the check for $412.50 was acting merely as the paying agent in the discharge of the promise of the agent, C.H.W. Read, to the complainant, to divide his commission *Page 308
with her, and that Roy Edward Pushee was not in any wise injured by the receipt by the complainant of the said $412.50, nor was he in anywise pecuniarily affected by said payment; that neither the complainant nor the defendant, Roy Edward Pushee, intended to take or to give usurious interest. I further find that the complainant, in accepting the said $412.50, believed that she was _______ one-half of the real estate agent's commission, and that she relied upon said real estate agent's advise to her that her acceptance of the said one-half of his agreed commission was entirely legal and proper."
All of these findings, we hold, are justified by the record and the law as applicable to this case. We need not cite authorities at this time to support the statement that where an appeal is based on questions of fact, the findings of fact by the Chancellor will not be disturbed on appeal where not clearly erroneous or where they do not proceed from a consideration of the evidence in light of inapplicable principles of law.
It is also well settled in this jurisdiction that the borrower may legitimately agree with the lender to pay the actual and reasonable expenses of examining and appraising the security offered for the loan, as well as for title insurance, and the costs of closing the transaction even though such payments when added to the interest contracted for exceed the maximum interest allowed by law. Wilson v. Conner, 106 Fla. 6, 142 So. 606; Hopkins v. Otto, et al., 118 Fla. 865, 160 So. 203.
So the only question left for our determination is whether or not in the transaction as above set forth the lender by accepting a part of the commission, which had theretofore been agreed to be paid to the broker without placing any further pecuniary burden on the borrower, constituted a *Page 309
violation of our usury statutes and made the loan such as to cause the lender to be required to submit to the forfeiture provided by Sec. 4852 R.G.S., 6939 C.G.L.
We hold that the facts in this case do not bring the transaction within the condemnation of the usury statutes. The evidence amply supports the findings of the Chancellor that the borrower was obligated to pay the broker 10% of the amount of the loan for finding the loan. Therefore, when the broker agreed to pay the lender a part of the commission which he would earn the borrower was not put to any additional expense by reason of that agreement. The loan was made no more burdensome than it would have been had not the lender and the broker come to that agreement and probably the result of the agreement was for the benefit of the borrower, inasmuch as it enabled the borrower to procure the loan within the time required and without any additional payment by him to the lender than that which the borrower would have been required, at all events, to pay. In support of this enunciation see Dickey v. Brown, 56 Iowa 426, 9 N.W. 374, where in a case of very similar circumstances and conditions that court said:
"The defendant, Brown, applied to John Furguson, of Charles City, Iowa, to negotiate for him a loan of four thousand dollars and agreed to pay him for so doing a commission of seven and one-half per cent. Furguson forwarded Brown's proposition to Holland, Furguson Co., of Rockford, Illinois, who, as agents of the plaintiffs, furnished the money and made the loans. They retained two hundred dollars as their commission, and forwarded thirty-eight hundred dollars to John Furguson, who set aside one hundred dollars for his services, and gave the defendant, Brown, thirty-seven hundred dollars. *Page 310
"The defendants claim at least one of the plaintiffs had knowledge Holland, Dickerson Co. received the two hundred dollars aforesaid at the time the loan was made, and, therefore, that the plaintiffs through their said agents, exacted and received more than ten per cent. interest. We are constrained to say this proposition is not well taken.
"John Furguson had the right to do as he pleased with the three hundred dollars Brown agreed to pay him. He could, if he saw proper, divide with Holland, Furguson Co., and if he could not negotiate the loan otherwise, it possibly was his duty to Brown to do so. John Furguson was the agent of the defendant, Brown, and any contract made between them alone could not have the effect of tainting such contract with usury so far as the plaintiffs are concerned."
Also see McArthur v. Schenk, 31 Wis. 673, 11 Am. Rep. 643, in which the Court said:
"The theory upon which laws against usury have been enacted, and the principle which has governed in their interpretation, have always been, that the borrower was at the mercy of the lender and subject to his utmost exactions and avaricious demands, unless protected by laws. In theory the borrower has been put by such laws in the same category with persons under legal disability to contract, such as infants, femes coverts, and persons non compos mentis. He has been declared legally incompetent to make a bargain about money where more than the lawful rate of interest was demanded. The prohibition of all such laws, and of our law, has been and is against the lender's bargaining for, reserving or taking usury from the borrower. We say, `from the borrower,' not because the statute uses these exact words or in terms so enacts the prohibition, but because such is the evident intent and purpose of the statute. *Page 311
Acts of the kind have always been so interpreted and understood. It is to shield from the grasp of the lender, and save the borrower from the injurious consequences of his own weakness and inability, that such statutes have been passed. They are designed for the protection of the borrower, and the protection so given has been extended to those persons standing in his place or representing him and succeeding to his rights, such as heirs-at-law, executors, devisees, sureties, assignees and the like. They are designed for the borrower's protection and benefit, and the protection and benefit of those thus representing him, when he or they has or have suffered loss orinjury from the unlawful exactions of the lender, or may suffersuch loss or injury from the performance of the usuriouscontract, and when likewise he or they see fit not to waive thesanction or penalty of the statute in his favor." Gleason v. Childs, 52 Vt. 421; Clark v. Shehan, 47 N.Y. 188.
In the case of Benson v. First Trust Savings Bank, 105 Fla. 135, 142 So. 887, in an opinion by Mr. Justice Davis, this Court said:
"But under Section 4855, R.G.S., 6942 C.G.L., the lender must `wilfully and knowingly charge or accept' a sum of money that is greater than the sum of money loaned and an additional sum of money equal to 25 per cent. per annum upon the principal sum loaned before he can be held to have forfeited the entire sum, both the principal and interest, to the party who was charged such usurious interest.
"When this condition prevails the lender not only forfeits the entire sum, both principal and interest, to the borrower, but he likewise commits a violation of the criminal law for which under the terms of the statute he may be fined not more than one hundred dollars or imprisoned in *Page 312
the county jail for not more than ninety days, or both."
It will be observed that this construction of the statute carries the thought and the holding that the lender must wilfully and knowingly charge to or accept from the borrower the excess constituting usurious interest but the statute will not apply where the excess is received from one other than the borrower and creates no additional or more burdensome obligation on the borrower than if the excess had not been received from such third party.
In Chandler v. Kendrick, 108 Fla. 450, 146 So. 551, this Court, speaking through Mr. Justice Terrell, said:
"The very purpose of statutes prohibiting usury is to bind the power of creditors over necessitous debtors and prevent them from extorting harsh and undue terms in the making of loans. Under the law and the decisions, usury is a matter largely of intent. It is not fully determined by the fact of whether the lender actually gets more than the law permits, but whether there was a purposein his mind to get more than legal interest for the use of his money, and whether by the terms of the transaction and the means employed to effect the loan, he may by its enforcement be enabled to get more than the legal rate. Benson v. First Trust and Savings Bank, 105 Fla. 135, 142 So. 887; R.C.L. pp. 223, 224.
"A thing is wilfully done when it proceeds from a conscious motion of the will, intending the result which actually comes to pass. It must be designed or intentional, and may be malicious, though not necessarily so. `Willful' is sometimes used in the sense of intentional, as distinguished from `accidental' and when used in a statute affixing a punishment to acts done willfully, it may be restricted to such acts as are done with an unlawful intent. Clark v. Grey, 101 Fla. 1058, 132 So. 832; United States v. *Page 313
Boyd (C.C.) 45 Fed. 851, text 855; State v. Clark, 29 N.J. Law 96."
This enunciation is not in conflict with what we hold here. The necessitous borrower in the case now before us was required to pay to the lender only 8% on the loan. The borrower, it will be remembered, had already agreed to pay the broker 10% for finding the loan. The case would have been entirely different had the borrower only agreed to pay the broker 5% and had then been required to pay the lender an additional 5% bonus. That would have placed an additional charge upon the borrower to procure the loan from the lender.
The facts in this case differentiated also from those cases where the record has shown that the person purporting to procure the loan was an officer or agent of the lender or stood in such relation to the lender as to control the action of the lender in regard to the loan. In such case the officer, agent or controlling factor of the lender can not be divorced from the identity of the lender and, therefore, the action of such officer, agent or representative is in law the action of the lender and the lender will be held responsible and not be allowed to take advantage of the subterfuge of its officer, agent or representative.
There are cases which appear to hold to the contrary of what we are holding here, but it seems to us that the whole purpose of our statute is to protect the borrower from the grasping devices of the lender and where the transaction is such that the lender receives compensation above the lawful interest charged but by doing so places no greater burden on the borrower than would be upon him otherwise, the statute does not apply. Provided, of course, the facts preclude the conclusion that the agent who purports to act for the borrower and takes compensation from the *Page 314
borrower is not in truth and in fact the officer, agent or representative of the lender and acting in behalf of the lender in placing the loan.
For the reasons stated, the decree should be affirmed.
It is so ordered.
Affirmed.
ELLIS, P.J., and TERRELL, J., concur.
WHITFIELD, C.J., and BROWN, J., concur in the opinion and judgment.
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361 U.S. 477 (1960)
NATIONAL LABOR RELATIONS BOARD
v.
INSURANCE AGENTS' INTERNATIONAL UNION, AFL-CIO.
No. 15.
Supreme Court of United States.
Argued December 7-8, 1959.
Decided February 23, 1960.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
*478 Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Thomas J. McDermott.
Isaac N. Groner argued the cause and filed a brief for respondent. He was also on a brief for Insurance Workers International Union, AFL-CIO.
Nahum A. Bernstein filed a brief for Prudential Insurance Company of America, as amicus curiae, urging reversal. Donald R. Seawell was of counsel.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents an important issue of the scope of the National Labor Relations Board's authority under § 8 (b) (3) of the National Labor Relations Act,[1] which *479 provides that "It shall be an unfair labor practice for a labor organization or its agents . . . to refuse to bargain collectively with an employer, provided it is the representative of his employees . . . ." The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business.
Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his "debit." He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.
In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956.[2] It is *480 not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.
However, in April 1956, Prudential filed a § 8 (b) (3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a "Work Without a Contract" programwhich meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.
A complaint of violation of § 8 (b) (3) issued on the charge and hearings began before the bargaining was concluded.[3] It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's "May Policyholders' Month Campaign"; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in "sit-in-mornings," "doing what comes naturally" and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as *481 directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstration there.
The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N. L. R. B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, 97 U. S. App. D. C. 35, 227 F.2d 409, he did not consider that he was bound to follow it.
However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N. L. R. B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U. S. App. D. C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 358 U.S. 944.
The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint.[4] The hearing examiner's analysis of the congressional *482 design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a § 8 (b) (3) violation. The Board's opinion answers flatly "We do not agree" and proceeds to say ". . . the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith . . . ." 119 N. L. R. B., at 769, 770-771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of § 8 (b) (3).[5] Accordingly, as is said in the Board's brief, *483 "The issue here . . . comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect,[6] support a finding of a failure to bargain in good faith as required by Section 8 (b) (3)."
First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision.[7] However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report:
"But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively *484 through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives . . . and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace." S. Rep. No. 573, 74th Cong., 1st Sess., p. 12.
However, the nature of the duty to bargain in good faith thus imposed upon employers by § 8 (5) of the original Act[8] was not sweepingly conceived. The Chairman of the Senate Committee declared: "When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, `Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it."[9]
The limitation implied by the last sentence has not been in practice maintainedpractically, it could hardly have beenbut the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially *485 a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See Labor Board v. Crompton-Highland Mills, Inc., 337 U.S. 217. And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: "Collective bargaining is something more than the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. . . . The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining."[10] This standard had early judicial approval, e. g., Labor Board v. Griswold Mfg. Co., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. Labor Board, 311 U.S. 514. This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Teamsters Union v. Oliver, 358 U.S. 283, 295.
But at the same time, Congress was generally not concerned with the substantive terms on which the parties *486 contracted. Cf. Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6. Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the "good-faith" test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice.[11] Thus, in 1947 in Congress the fear was expressed that the Board had "gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make." H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into § 8 (d) of the Act. That section defines collective bargaining as follows:
"For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but *487 such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ."[12]
The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See Labor Board v. Truitt Mfg. Co., 351 U.S. 149; Labor Board v. BorgWarner Corp., 356 U.S. 342, 349. But it remains clear that § 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. Labor Board v. American National Ins. Co., 343 U.S. 395, 404.
Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding § 8 (b) (3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same "take it or leave it" attitude that had been condemned in management. 93 Cong. Rec. 4135, 4363, 5005.[13]
*488 Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace. See Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45. Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Teamsters Union v. Oliver, supra, at 295.
We believe that the Board's approach in this case unless it can be defended, in terms of § 8 (b) (3), as resting on some unique character of the union tactics involved heremust be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truthor even with what might be thought to be the ideal of one. The partieseven granting the modification of views that may come from a realization of economic interdependencestill proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among *489 people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms exist side by side. One writer recognizes this by describing economic force as "a prime motive power for agreements in free collective bargaining."[14] Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: "Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, *490 a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1409.
For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining processagain, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of § 8 (b) (3) and the limitations on Board power which were the design of § 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union.
Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of *491 bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case,[15]supra, 108 N. L. R. B. 743, set aside, 97 U. S. App. D. C. 35, 227 F.2d 409;[16] the Boone County case, United Mine Workers, 117 N. L. R. B. 1095, set aside, 103 U. S. App. D. C. 207, 257 F.2d 211;[17] and the present case. The Board freely (and we think correctly) conceded here that a "total" strike called by the union would not have subjected it to sanctions under § 8 (b) (3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this *492 concession (and therefore perhaps more logical).[18] But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under § 8 (b) (3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.[19]
(a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by §§ 7[20] and 8 (a) (1)[21] of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board[22] that this Court's decision in the Briggs-Stratton case, Automobile Workers v. Wisconsin Board, 336 U.S. 245, establishes that *493 the employee conduct here was not a protected concerted activity.[23] On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these "slow-down," *494 "sit-in," and arguably unprotected disloyal tactics. See Labor Board v. Fansteel Metallurgical Corp., 306 U.S. 240; Labor Board v. Electrical Workers, 346 U.S. 464. But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of *495 economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing § 8 (b) (3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter.
(b) The Board contends that because an orthodox "total" strike is "traditional" its use must be taken as being consistent with § 8 (b) (3); but since the tactics here are not "traditional" or "normal," they need not be so viewed.[24] Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we *496 fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it.[25] The same may be said for the Board's contention that these activities, as opposed to a "normal" strike, are inconsistent with § 8 (b) (3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here,[26] but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer[27] weapons that might thus fall under ban would be most extensive.[28]
*497 Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only § 8 (b) (3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly "balanced"[29] bargaining power, or some new distinction of justifiable and unjustifiable, proper and "abusive"[30] economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under § 8 (b) (3) allows it to sit in judgment upon every *498 economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.
It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. Labor Board v. Truck Drivers Union, 353 U.S. 87. And specifically we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See § 8 (b) (4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S. C. § 158 (b) (4); § 8 (b) (7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress.[31] To *499 be sure, the express prohibitions of the Act are not exclusive if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194. But it is clear to us that the Board needs a more specific charter than § 8 (b) (3) before it can add to the Act's prohibitions here.
We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the "ultimate problem is the balancing of the conflicting legitimate interests" it must be remembered that "The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." Labor Board v. Truck Drivers Union, supra, at 96. Certainly a "statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application." Phelps Dodge Corp. v. Labor Board, supra, at 194. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress *500 has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an "ideal" or "balanced" state of collective bargaining.
It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of "pure" negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only § 8 (b) (3) to lean on, we do not see how the Board can do so on its own.[32]
Affirmed.
*501 Separate opinion of MR. JUSTICE FRANKFURTER, which MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER join.
The sweep of the Court's opinion, with its far-reaching implications in a domain of lawmaking of such nationwide importance as that of legal control of collective bargaining, compels a separate statement of my views.
The conduct which underlies this action was the respondent union's "Work Without a Contract" program which it admittedly initiated after the expiration of its contract with the Prudential Insurance Company on March 19, 1956. In brief, the union directed its members at various times to arrive late to work; to decline, by "sitting-in" the company offices, to work according to their regular schedule; to refuse to write new business or, when writing it, not to report it in the ordinary fashion; to decline to attend special business meetings; to demonstrate before company offices; and to solicit petitions in the union's behalf from policyholders with whom they dealt. Prudential was given notice in advance of the details of this program and of the demands which the union sought to achieve by carrying it out.
This action was commenced by a complaint issued on June 5, 1956, alleging respondent's failure to bargain in good faith. After a hearing, the Trial Examiner recommended that the complaint be dismissed, finding that "[f]rom the `circumstantial evidence' [of the union's state of mind] of the bargaining itself . . . but one inference is possible . . . the Union's motive was one of good faith . . ."; and that "whatever inference may be as reasonably drawn from the Union's concurrent `unprotected' activities" is not sufficient to outweigh this evidence of good faith.
The Board sustained exceptions to the Trial Examiner's report, concluding that respondent failed to bargain in good faith. The only facts relied on by the Board were based on the "Work Without a Contract" program. The *502 Board found that such tactics on respondent's part "clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table" and that respondent therefore failed to bargain in good faith. In support of its conclusion of want of bargaining in good faith, the Board stated that "[h]arassing activities are plainly `irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest' . . . ." The Board made no finding that the outward course of the negotiations gave rise to an inference that respondent's state of mind was one of unwillingness to reach agreement. It found from the character of respondent's activities in carrying out the "Work Without a Contract" program that what appeared to be good faith bargaining at the bargaining table was in fact a sham:
"[T]he fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith, as the Respondent argues and the Trial Examiner believes. At most, it demonstrates that the Respondent was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands."
The Board issued a cease-and-desist order[1] and sought its enforcement in the Court of Appeals for the District of Columbia. Respondent cross-petitioned to set it aside. *503 The Court of Appeals, relying exclusively on its prior decision in Textile Workers Union v. Labor Board, 97 U. S. App. D. C. 35, 227 F.2d 409 (1955), denied enforcement and set aside the order. In the Textile Workers case the court had held (one judge dissenting) that the Board could not consider the "harassing" activities of the union there involved as evidence of lack of good faith during the negotiations. "There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants." 97 U. S. App. D. C. 35, 36, 227 F.2d 409, 410.
The record presents two different grounds for the Board's action in this case. The Board's own opinion proceeds in terms of an examination of respondent's conduct as it bears upon the genuineness of its bargaining in the negotiation proceedings. From the respondent's conduct the Board drew the inference that respondent's state of mind was inimical to reaching an agreement, and that inference alone supported its conclusion of a refusal to bargain. The Board's position in this Court proceeded in terms of the relation of conduct such as respondent's to the kind of bargaining required by the statute, without regard to the bearing of such conduct on the proof of good faith revealed by the actual bargaining. The Board maintained that it
"could appropriately determine that the basic statutory purpose of promoting industrial peace through the collective bargaining process would be defeated by sanctioning resort to this form of industrial warfare as a collective bargaining technique."
*504 The opinion of this Court, like that of the Court of Appeals, disposes of both questions by a single broad stroke. It concludes that conduct designed to exert pressure on the bargaining situation with the aim of achieving favorable results is to be deemed entirely consistent with the duty to bargain in good faith. No evidentiary significance, not even an inference of a lack of good faith, is allowed to be drawn from the conduct in question as part of a total context.
I agree that the position taken by the Board here is not tenable. In enforcing the duty to bargain the Board must find the ultimate fact whether, in the case before it and in the context of all its circumstances, the respondent has engaged in bargaining without the sincere desire to reach agreement which the Act commands. I further agree that the Board's action in this case is not sustainable as resting upon a determination that respondent's apparent bargaining was in fact a sham, because the evidence is insufficient to justify that conclusion even giving the Board, as we must, every benefit of its right to draw on its experience in interpreting the industrial significance of the facts of a record. See Universal Camera Corp. v. Labor Board, 340 U.S. 474. What the Board has in fact done is lay down a rule of law that such conduct as was involved in carrying out the "Work Without a Contract" program necessarily betokens bad faith in the negotiations.
The Court's opinion rests its conclusion on the generalization that "the ordinary economic strike is not evidence of a failure to bargain in good faith . . . because . . . there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining." This large statement is justified solely by reference to § 8 (b) (3) and to the proposition that inherent in bargaining is room for the play of forces which reveal the strength of one party, or the weakness of *505 the other, in the economic context in which they seek agreement. But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract "economic pressure." It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as "economic pressure." An exertion of "economic pressure" may at the same time be part of a concerted effort to evade or disrupt a normal course of negotiations. Vital differences in conduct, varying in character and effect from mild persuasion to destructive, albeit "economic," violence[2] are obscured under cover of a single abstract phrase.
While § 8 (b) (3) of course contemplates some play of "economic pressure," it does not follow that the purpose in engaging in tactics designed to exert it is to reach agreement through the bargaining process in the manner which the statute commands, so that the Board is precluded from considering such conduct, in the totality of circumstances, as evidence of the actual state of mind of the actor. Surely to deny this scope for allowable judgment to the Board is to deny it the special function with which it has been entrusted. See Universal Camera Corp. v. Labor Board, supra. This Court has in the past declined to pre-empt by broad proscriptions the Board's competence in the first instance to weigh the significance of the raw facts of conduct and to draw from them an informed judgment as to the ultimate fact. It has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a finding of *506 an unfair labor practice, "may be altered by imponderable subtleties at work, which it is not our function to appraise" but which are, first, for the Board's consideration upon all the evidence. Labor Board v. Virginia Power Co., 314 U.S. 469, 479. Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts "are bound together as the parts of a single plan [to frustrate agreement]. The plan may make the parts unlawful." Swift & Co. v. United States, 196 U.S. 375, 396. See also Aikens v. Wisconsin, 195 U.S. 194, 206.
Moreover, conduct designed to exert and exerting "economic pressure" may not have the shelter of § 8 (b) (3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the "take it or leave it" attitude which the statute clearly condemns.[3] One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8 (b) (3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content.
The main purpose of the Wagner Act was to put the force of law behind the promotion of unionism as the legitimate and necessary instrument "to give laborers opportunity to deal on equality with their employer." *507 Mr. Chief Justice Taft for the Court, in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209. Equality of bargaining power between capital and labor, to use the conventional terminology of our pre-dominant economic system, was the aim of this legislation. The presupposition of collective bargaining was the progressive enlargement of the area of reason in the process of bargaining through the give-and-take of discussion and enforcing machinery within industry, in order to substitute, in the language of Mr. Justice Brandeis, "processes of justice for the more primitive method of trial by combat." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 (dissenting). Promotion of unionism by the Wagner Act, with the resulting progress of rational collective bargaining, has been gathering momentum for a quarter of a century. In view of the economic and political strength which has thereby come to unions, interpretations of the Act ought not to proceed on the assumption that it actively throws its weight on the side of unionism in order to redress an assumed inequality of bargaining power. For the Court to fashion the rules governing collective bargaining on the assumption that the power and position of labor unions and their solidarity are what they were twenty-five years ago, is to fashion law on the basis of unreality. Accretion of power may carry with it increasing responsibility for the manner of its exercise.
Therefore, in the unfolding of law in this field it should not be the inexorable premise that the process of collective bargaining is by its nature a bellicose process. The broadly phrased terms of the Taft-Hartley Act should be applied to carry out the broadly conceived policies of the Act. At the core of the promotion of collective bargaining, which was the chief means by which the great social purposes of the National Labor Relations Act were sought to be furthered, is a purpose to discourage, more *508 and more, industrial combatants from pressing their demands by all available means to the limits of the justification of self-interest. This calls for appropriate judicial construction of existing legislation. The statute lays its emphasis upon reason and a willingness to employ it as the dominant force in bargaining. That emphasis is respected by declining to take as a postulate of the duty to bargain that the legally impermissible exertions of so-called economic pressure must be restricted to the crudities of brute force. Cf. Labor Board v. Fansteel Metallurgical Corp., 306 U.S. 240.
However, it of course does not follow because the Board may find in tactics short of violence evidence that a party means not to bargain in good faith that every such finding must be sustained. Section 8 (b) (3) itself, as previously construed by the Board and this Court and as amplified by § 8 (d), provides a substantial limitation on the Board's becoming, as the Court fears, merely "an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands." The Board's function in the enforcement of the duty to bargain does not end when it has properly drawn an inference unfavorable to the respondent from particular conduct. It must weigh that inference as part of the totality of inferences which may appropriately be drawn from the entire conduct of the respondent, particularly its conduct at the bargaining table. The state of mind with which the party charged with a refusal to bargain entered into and participated in the bargaining process is the ultimate issue upon which alone the Board must act in each case, and on the sufficiency of the whole record to justify its decision the courts must pass. Labor Board v. American National Ins. Co., 343 U.S. 395.
The Board urges that this Court has approved its enforcement of § 8 (b) (3) by the outlawry of conduct per se, and without regard to ascertainment of a state of *509 mind. It relies upon four cases: H. J. Heinz Co. v. Labor Board, 311 U.S. 514; Labor Board v. Crompton-Highland Mills, 337 U.S. 217; Labor Board v. F. W. Woolworth Co., 352 U.S. 938; and Labor Board v. Borg-Warner Corp., 356 U.S. 342. These cases do not sustain its position. While it is plain that the per se proscription of an employer's refusal to reduce a collective agreement to writing was approved in the Heinz case, it is equally plain from its opinion in that case as well as its argument before this Court that the Board itself regarded the act of refusal to agree to the integration of the agreement in a writing as a manifestation that the employer's state of mind was hostile to agreement with the union. This Court so regarded the evidence. 311 U.S., at 525-526. Decision in the Borg-Warner case proceeded from a similar premise. By forcing a deadlock upon a non-statutory subject of bargaining the employer manifested his intention to withdraw the statutory subjects from bargaining. The Crompton-Highland decision rested not on approval of a per se rule that unilateral changes of the conditions of employment by an employer during bargaining constitute a refusal to bargain, but upon the inferences of a lack of good faith which arose from the facts, among others, that the employer instituted a greater increase than it had offered the union and that it did so without consulting the union. Finally, no such conclusion as the Board urges can be drawn from the summary disposition of the Woolworth case here.[4] To the extent that in any of these cases *510 language referred to a per se proscription of conduct it was in relation to facts strongly indicating a lack of a sincere desire to reach agreement.
Moreover, in undertaking to fashion the law of collective bargaining in this case in accordance with the command of § 8 (b) (3), the Board has considered § 8 (b) (3) in isolation, as if it were an independent provision of law, and not a part of a reticulated legislative scheme with interlacing purposes. It is the purposes to be drawn from the statute in its entirety, with due regard to all its interrelated provisions, in relation to which § 8 (b) (3) is to be applied. Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456. A pertinent restraint on the Board's power to consider as inimical to fair bargaining the exercise of the "economic" weapons of labor is expressed in the Act by § 13:[5]
"Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."
Section 501 (2) of the Labor Management Relations Act provides a definition of "strike":[6]
"When used in this Act. . . (2) The term "strike" includes any strike or other concerted stoppage of *511 work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slow-down or other concerted interruption of operations by employees."
As the last clause of § 13 makes plain, the section does not recognize an unqualified right, free of Board interference, to engage in "strikes," as respondent contends. The Senate Report[7] dealing with the addition of the clause to the section confirms that its purpose was to approve the elaboration of limitations on the right to engage in activities nominally within the definition of § 501 (2) which this Court had heretofore developed in such cases as Labor Board v. Fansteel Metallurgical Corp., supra; Labor Board v. Sands Mfg. Co., 306 U.S. 332; and Southern S. S. Co. v. Labor Board, 316 U.S. 31. But "limitations and qualifications" do not extinguish the rule. For the Board to proceed, as it apparently claims *512 power to do, against conduct which, but for the bargaining context in which it occurs, would not be within those limitations,[8] it must rely upon the specific grant of power to enforce the duty to bargain which is contained in § 8 (b) (3). In construing that section the policy of the rule of construction set forth by § 13, see Automobile Workers v. Wisconsin Board, 336 U.S. 245, 259, must be taken into account. In the light of that policy there is no justification for divorcing from the total bargaining situation particular tactics which the Board finds undesirable, without regard to the actual conduct of bargaining in the case before it.
The scope of the permission embodied in § 13 must be considered by the Board in determining, under a proper rule of law, whether the totality of the respondent's conduct justifies the conclusion that it has violated the "specific" command of § 8 (b) (3). When the Board emphasizes tactics outside the negotiations themselves as the basis of the conclusion that the color of illegitimacy is imparted to otherwise apparently bona fide negotiations, § 13 becomes relevant. A total, peaceful strike in compliance with the requirements of § 8 (d) would plainly not suffice to sustain the conclusion; prolonged union-sponsored violence directed at the company to secure compliance *513 as plainly would. Here, as in so many legal situations of different gradations, drawing the line between them is not an abstract, speculative enterprise. Where the line ought to be drawn should await the decision of particular cases by the Board. It involves experienced judgment regarding the justification of the means and the severity of the effect of particular conduct in the specialized context of bargaining.
Section 8 (d), which was added in the amendments of 1947, is also inconsistent with the Board's claim of power to proscribe conduct without regard to the state of mind with which the actor participated in negotiations. The 1935 Act did not define the "practice and procedure of collective bargaining" which it purposed to "encourage." Act of July 5, 1935, § 1, 49 Stat. 449. That definition, until 1947, was evolved by the Board and the courts in the light of experience in the administration of the Act. See, e. g., H. J. Heinz Co. v. Labor Board, supra. In 1947, after considerable controversy over the need to objectify the elements of the duty to bargain, § 8 (d) was enacted. We have held that the history of that enactment demonstrates an intention to restrain the Board's power to regulate, whether directly or indirectly, the substantive terms of collective agreements. Labor Board v. American National Ins. Co., supra, at 404. In the same case we recognized that implicit in that purpose is a restraint upon the Board's proceeding by the proscription of conduct per se and without regard to inferences as to state of mind to be drawn from the totality of the conduct in each case. Id., at 409.
Finally, it is not disputed that the duty to bargain imposed on unions in 1947 was the same as that previously imposed on employers, and it is therefore not without significance for its present assertion of power that for 25 years of administration of the employer's duty *514 to bargain, which was imposed by the Act of 1935 and preserved by the amendments of 1947, the Board has not found it necessary to assert that it may proscribe conduct as undesirable in bargaining without regard to the actual course of the negotiations. See Federal Trade Comm'n v. Bunte Bros., 312 U.S. 349, 351-352.
These considerations govern the disposition of the case before the Court. Viewed as a determination upon all the evidence that the respondent bargained without the sincere desire to compose differences and reach agreement which the statute commands, the Board's conclusion must fall for want of support in the evidence as a whole. See Universal Camera Corp. v. Labor Board, supra. Apart from any restraint upon its conclusion imposed by § 13, a matter which the Board did not consider, no reason is manifest why the respondent's nuisance tactics here should be thought a sufficient basis for the conclusion that all its bargaining was in reality a sham. On this record it does not appear that respondent merely stalled at the bargaining table until its conduct outside the negotiations might force Prudential to capitulate to its demands, nor does any other evidence give the color of pretence to its negotiating procedure. From the conduct of its counsel before the Trial Examiner, and from its opinion, it is apparent that the Board proceeded upon the belief that respondent's tactics were, without more, sufficient evidence of a lack of a sincere desire to reach agreement to make other consideration of its conduct unnecessary. For that reason the case should be remanded to the Board for further opportunity to introduce pertinent evidence, if any there be, of respondent's lack of good faith.
Viewed as a determination by the Board that it could, quite apart from respondent's state of mind, proscribe its tactics because they were not "traditional," or were *515 thought to be subject to public disapproval, or because employees who engaged in them may have been subject to discharge, the Board's conclusion proceeds from the application of an erroneous rule of law.
The decision of the Court of Appeals should be vacated, and the case remanded to the Board for further proceedings consistent with these views.
NOTES
[1] As added by the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 141, 29 U.S. C. § 158 (b) (3).
[2] A stenographic record of the discussions at the bargaining table was kept, and the transcription of it fills 72 volumes.
[3] The hearings on the unfair labor practice charge were recessed in July to allow the parties to concentrate on the effort to negotiate the settlement which was arrived at in the new contract of July 17, 1956.
[4] Examining the matter de novo without the Personal Products decision of the Board as precedent, the examiner called repeatedly upon the Board's General Counsel for some evidence of failure to bargain in good faith, besides the harassing tactics themselves. When such evidence was not forthcoming, he commented, "It may well be that the Board will be able to `objectively evaluate' the `impact' of activities upon `collective-bargaining negotiations' from the mere `nature of the activities,' but the Trial Examiner is reluctant even to attempt this feat of mental pole vaulting with only presumption as a pole." 119 N. L. R. B., at 781-782.
[5] The Board observed that the union's continued participation in negotiations and desire to reach an agreement only indicated that it "was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands." 119 N. L. R. B., at 771. The only apparent basis for the conclusion that the union was only going through the "motions" of bargaining is the Board's own postulate that the tactics in question were inconsistent with the statutorily required norm of collective bargaining, and the Board's opinion, and its context, reveal that this was all that it meant. This per se rule amounted to the "pole vaulting" that the examiner said he was "reluctant even to attempt." See note 4, supra.
[6] We will assume without deciding that the activities in question here were not "protected" under § 7 of the Act. See p. 492 and note 22, infra.
[7] See Hearings before the Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess., p. 43: "Therefore, while the bill does not state specifically the duty of an employer to recognize and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill."
[8] 49 Stat. 453. The corresponding provision in the current form of the Act is § 8 (a) (5), 61 Stat. 141, 29 U.S. C. § 158 (a) (5).
[9] Senator Walsh, at 79 Cong. Rec. 7660.
[10] 1 N. L. R. B. Ann. Rep., pp. 85-86.
[11] This Court related the history in Labor Board v. American National Ins. Co., 343 U.S. 395, 404.
[12] 61 Stat. 142, 29 U.S. C. § 158 (d).
[13] Senator Ellender was most explicit on the matter at 93 Cong. Rec. 4135.
The legislative history seems also to have contemplated that the provision would be applicable to a union which declined to identify its bargaining demands while attempting financially to exhaust the employer. See the remark by Senator Hatch at 93 Cong. Rec. 5005. Cf. note 15, infra. A closely related application is developed in American Newspaper Publishers Assn. v. Labor Board, 193 F.2d 782, 804-805, affirmed as to other issues on limited grant of certiorari, 345 U.S. 100.
[14] G. W. Taylor, Government Regulation of Industrial Relations, p. 18.
[15] The facts in Personal Products did, in the Board's view, present the case of a union which was using economic pressure against an employer in a bargaining situation without identifying what its bargaining demands werea matter which can be viewed quite differently in terms of a § 8 (b) (3) violation from the present case. See note 13, supra. The Board's decision in Personal Products may have turned on this to some extent, see 108 N. L. R. B., at 746; but its decision in the instant case seems to view Personal Products as turning on the same point as does the present case.
[16] This Court granted certiorari, 350 U.S. 1004, on the Board's petition, to review that judgment; but in the light of intervening circumstances which at least indicated that the litigation had become less meaningful to the parties, cf. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, the order granting certiorari was vacated and certiorari was denied. 352 U.S. 864.
[17] The court there displayed a want of sympathy to the Board's theory that a strike in breach of contract violated § 8 (b) (3), see 103 U. S. App. D. C., at 210-211, 257 F.2d, at 214-215. Cf. Feinsinger, The National Labor Relations Act and Collective Bargaining, 57 Mich. L. Rev. 806-807. However, the court turned its decision on its ruling, contra the Board, that there was no breach of the contract involved. On this point, contra is United Mine Workers v. Benedict Coal Corp., 259 F.2d 346, 351, affirmed this day by an equally divided Court, ante, p. 459.
[18] Said the Board: "Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union's conduct is not sanctioned by the Act." 119 N. L. R. B., at 771-772.
[19] Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals' judgment urged by respondent. These we take to include the argument that the Board's order violated the standards of § 8 (c) of the Act, 61 Stat. 142, 29 U.S. C. § 158 (c), and the points touched upon in notes 22 and 23, infra.
[20] "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 157.
[21] "It shall be an unfair labor practice for an employer(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 . . . ." 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S. C. § 158 (a) (1).
[22] Respondent cites a number of specific circumstances in the activities here that might distinguish them from the Briggs-Stratton case as to protection under § 7. We do not pass on the matter.
[23] Briggs-Stratton held, among other things, that employee conduct quite similar to the conduct at bar was neither protected by § 7 of the Act nor prohibited (made an unfair labor practice) by § 8. The respondent urges that the holding there that the conduct was not prohibited by § 8 in and of itself requires an affirmance of the judgment here, since in this case the Board's order found a violation of § 8. In fact the Board's General Counsel on oral argument made the concession that Briggs-Stratton would have to be overruled for the Board to prevail here.
But regardless of the status today of the other substantive rulings in the Briggs-Stratton case, we cannot say that the case's holding as to § 8 requires a judgment for the respondent here. Briggs-Stratton was a direct review on certiorari here of a state board order, as modified and affirmed in the State Supreme Court, against the union conduct in question. The order was assailed by the union here primarily as being beyond the competence of the State to make, by reason of the federal labor relations statutes. This Court held that the activities in question were neither protected by § 7 nor prohibited by § 8, and allowed the state order to stand. The primary focus of attention was whether the activities were protected by § 7; there seems to have been no serious contention made that they were prohibited by § 8. The case arose long before the line of cases beginning with Personal Products in which the Board began to relate such activities to § 8 (b) (3). But of special significance is the fact that the approach to pre-emption taken in Briggs-Stratton was that the state courts and this Court on review were required to decide whether the activities were either protected by § 7 or prohibited by § 8. This approach is "no longer of general application," San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, n. 4, as this Court has since developed the doctrine in pre-emption cases that questions of interpretation of the National Labor Relations Act are generally committed in the first instance to the Board's administrative processes, San Diego Building Trades Council v. Garmon, supra, except in the atypical situation where those processes are not relevant to an answer to the question. See Teamsters Union v. Oliver, supra. Therefore to view Briggs-Stratton as controlling on the § 8 issue here would be to compound the defects of a now discarded approach to pre-emption; it would amount to saying that the Board would be foreclosed in its adjudicative development of interpretation of the Act by a decision rendered long ago, not arising in review of one of its own orders, at a time when its own views had not come to what they now are, and in which the precise issue (as to § 8 (b) (3) was not litigated at all, and the general § 8 issue not litigated seriously. Hence we construe § 8 here uninfluenced by what was said in Briggs-Stratton.
However, we will not here re-examine what was said in Briggs-Stratton as to §§ 13 and 501. The union here contends that the definition of "strike" in § 501 (2) of the Taft-Hartley Act, 61 Stat. 161, 29 U.S. C. § 142 (2), which is broad enough to include the activities here in question, must be applied here under § 13 of the NLRA, which provides that "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." 49 Stat. 457, as amended, 61 Stat. 151, 29 U.S. C. § 163. And if it is so applied, the union argues that § 13 would prevent the Board from considering the conduct in question as an unfair labor practice. The issue was tendered in much the same light in Briggs-Stratton, and the Court quite plainly indicated that the definition in § 501 (2) was only to be considered in connection with § 8 (b) (4) and not with § 13, see 336 U.S., at 258-263, especially the last page; at the very least this was a holding alternative to a holding, 336 U.S., at 263-264, that, however defined, § 13, unlike § 7, was not an inhibition on state power. Perhaps this element of the Briggs-Stratton decision has become open also, but certainly this is not so clear as is the fact that the § 8 point is open. In any event, we shall not consider the matter further since our affirmance of the Court of Appeals' reversal of the Board's order is, we believe, more properly bottomed on a construction of § 8 (b) (3).
[24] The Board quotes, in support of this, general language from a decision of this Court, Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346, dealing with a wholly different matterthe scope of subjects appropriate for collective bargaining.
[25] "To say `there ought to be a law against it' does not demonstrate the propriety of the NLRB's imposing the prohibition." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1437.
[26] Though it is much urged in the Board's brief here as a general proposition, the Board's opinion (following its per se approach) contains no discussion of this point at all insofar as the facts of the case were concerned; it did not discuss the economic effect of the activities on the agents themselves and expressly declined to pass on their effect on the employer. 119 N. L. R. B., at 771. Respondent here urges that the evidence establishes quite the opposite conclusion.
[27] "If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of `bargaining powers' to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?" Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1440-1441.
[28] There is a suggestion in the Board's opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of employment and hence also on this basis violative of § 8 (b) (3), just as an employer's unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. Labor Board v. Crompton-Highland Mills, Inc., 337 U.S. 217. See 119 N. L. R. B., at 772. Prudential, as amicus curiae here, renews this point though the Board does not make it here. It seems baseless to us. There was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing working conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. Cf. Note, 71 Harv. L. Rev. 502, 509. But this situation is not presented here, and we leave the question open.
[29] The Board's opinion interprets the National Labor Relations Act to require, in this particular, "a background of balanced bargaining relations." 119 N. L. R. B., at 772.
[30] The Board in Personal Products condemned the union's tactics as an "abuse of the Union's bargaining powers." 108 N. L. R. B., at 746.
[31] It might be noted that the House bill, when the Taft-Hartley Act was in the legislative process, contained a list of "unlawful concerted activities" one of which would quite likely have reached some of the union conduct here, but the provision never became law. H. R. 3020, 80th Cong., 1st Sess., § 12.
[32] After we granted certiorari, we postponed to the consideration of the case on the merits a motion by the Board to join as a party here Insurance Workers International Union, AFL-CIO, the style of a new union formed by merger of respondent and another union after the decision of this case in the Court of Appeals, and a contingent motion by respondent that it be deleted as a party. 361 U.S. 872. In the light of our ruling on the merits, there is little point in determining here and now what the legal status of the predecessor and successor union is, and if the issue ever becomes important, we think that the matter is best decided then. For what it is worth, we shall treat both as parties before us in this proceeding. The Board's motion is granted and respondent's is denied. See Labor Board v. Lion Oil Co., 352 U.S. 282.
[1] The order in part provided: "[T]he Respondent . . . shall: 1. Cease and desist from refusing to bargain collectively in good faith with The Prudential Insurance Company of America . . . by authorizing, directing, supporting, inducing or encouraging the Company's employees to engage in slowdowns, harassing activities or other unprotected conduct, in the course of their employment and in disregard of their duties and customary routines, for the purpose of forcing the Company to accept its bargaining demands, or from engaging in any like or related conduct in derogation of its statutory duty to bargain . . . ."
[2] "There are plenty of methods of coercion short of actual physical violence." Senator Taft, at 93 Cong. Rec. 4024.
[3] As the Court states, the prevention of union conduct designed to enforce such an attitude was a primary purpose of the enactment of § 8 (b) (3). See, e. g., 93 Cong. Rec. 4135.
[4] The Court held that "The Board acted within its allowable discretion in finding that under the circumstances of this case failure to furnish the wage information constituted an unfair labor practice." It cited Labor Board v. Truitt Mfg. Co., 351 U.S. 149; and in Truitt the entire Court was in agreement both that the withholding of wage information by the employer was weighty evidence of a lack of willingness to bargain sincerely, and that the judgment of the Board had to be predicted on all the facts pertinent to state of mind. 351 U.S., at 153, 155. Moreover, the lower court in the Woolworth case found that the Board had not proceeded by a per se determination, 235 F.2d 319, 322 (C. A. 9th Cir.), but that there was no basis for its conclusion that the information requested was relevant to administration of the agreement.
[5] While the Board does consider these sections in connection with respondent's assertion that they afford protection to its conduct from Board regulation, see n. 8, infra, it does not consider their application as a rule of construction of § 8 (b) (3).
[6] Although I am in sympathy with the Court's conclusion that the construction of § 8 in this case is to be uninfluenced by what was said in Automobile Workers v. Wisconsin Board, 336 U.S. 245, I do not agree that case held that the definitions of § 501 (2) are inapplicable to § 13. The question which the Court there considered was whether § 13, as defined in § 501 (2), independently rendered activities within its terms immune from state regulation. The Court's observation that for § 501 (2) to have so extended the force of § 13 would have been inconsistent with the purpose of the inclusion of the definition, which was to extend the Board's power with reference to the unfair labor practice defined by § 8 (b) (4), 336 U.S., at 263, was made in light of the contention that § 13 itself had the effect of precluding the States. The crux of the decision with regard to § 13 was that it announced no more than a rule of construction of the Federal Act. It was neither argued nor decided that § 501 (2) does not apply to § 13. There appears to be no support for such a conclusion either in the text of the Act or in its legislative history. It is hardly conceivable that such a word as "strike" could have been defined in these statutes without congressional realization of the obvious scope of its application.
[7] S. Rep. No. 105, 80th Cong., 1st Sess. (1947), at p. 28. This provision of the Taft bill was adopted by the Conference. H. R. Cong. Rep. No. 510, 80th Cong., 1st Sess. (1947), at p. 59.
[8] The Board urges that respondent's activities are not within the "dispensation or protection" of § 13, because Automobile Workers v. Wisconsin Board, 336 U.S. 245, held "slowdowns" to be "unprotected" activities subject to state regulation. The argument misreads the significance of that case as regards § 13. See n. 6, supra. Nor is it valid to assume that all conduct loosely described as a "slowdown" has the same legal significance, or that union sponsorship of such conduct falls within the "limitations or qualifications" on the right to strike incorporated in § 13 in every case in which employee participation in it would be "unprotected" by § 7, and therefore subject to economic retaliation by the employer. See the portions of the Board's order quoted in n. 1, supra.
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01-03-2023
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04-28-2010
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https://www.courtlistener.com/api/rest/v3/opinions/1481147/
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164 F.2d 767 (1947)
OSBOURNE
v.
UNITED STATES et al.
No. 58, Docket 20726.
Circuit Court of Appeals, Second Circuit.
December 5, 1947.
William L. Standard, of New York City (Louis R. Harolds and Ruth H. Saslow, both of New York City, of counsel), for libellant.
John F. X. McGohey, of New York City, for the United States.
Dow & Symmers, of New York City (Edwin K. Reid, William G. Symmers and Edward L. Smith, all of New York City, of counsel), for American President Lines, Ltd.
Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.
FRANK, Circuit Judge.
Appellant brought suit to recover for injuries suffered through the negligence of appellees while employed as crew member on their vessel. Appellant's libel avers that he was employed as a crew member from October 15, 1941, to December 8, 1941 on the S. S. President Harrison, which was owned, operated and controlled by *768 respondents, American President Lines, Ltd., and the United States through its agency, the War Shipping Administration; that during that period he was injured through the negligence of respondents; that on December 8, 1941, he (along with the rest of the crew) was interned by the enemy;[1] and that he was returned to this country in October, 1945. Suit was commenced on July 31, 1946. Respondents excepted to the libel on the grounds that it had not been filed within the two-year period of limitations permitted under the Suits in Admiralty Act, 46 U.S.C.A. § 745, or the three-year period under the Jones Act, 46 U.S.C.A. § 688, 45 U.S.C.A. § 56. The District Court held "with reluctance" that the action had been barred, because "failure to start action within the time prescribed extinguishes the right of action." It added, however, that libellant had prosecuted his claim with due diligence after his return to this country. Appellant appeals from the court's order dismissing the libel.
The question of whether the limitation period under the Suits in Admiralty Act or under the Jones Act should apply in this action does not concern us here, for if appellant's action is barred, it is barred under either statute. The question being moot, we do not pass upon it.
Generally, where a statute creates a cause of action which was unknown at common law, a period of limitation set up in the same statute is regarded as a matter of substance, limiting the right as well as the remedy. Filing a complaint within the prescribed period is a condition precedent to recovery, and the cause of action is extinguished after the running of the period.[2] The general rule, developed chiefly with respect to the Federal Employers' Liability Act, §§ 1-10, 45 U.S.C.A. §§ 51-60, has been applied also to the period of limitations in the Jones Act, which incorporates the period in the Employers' Liability Act, and to the Suits in Admiralty Act.[3] The practical results of the application of this rule have been that the period of limitation under any of the three statutes will control the time for bringing suit in a state court regardless of state statutes of limitations;[4] that the period of limitation under any of these Acts will not be extended, as it would be in the case of an ordinary statute of limitations, by a claimant's disability to sue because of infancy or insanity or by a delay occasioned by the fraud of the defendant;[5] and that the defendant cannot waive the defense of the period of limitations.[6]
Appellant does not deny the force of these holdings. But he maintains that they are not applicable to his case because of the extraordinary circumstance that throughout the period when he ought to have brought suit, the courts were unavailable to him as a prisoner in the hands of the enemy. The leading case on which he relies is Hanger v. Abbott, 73 U.S. 532, 18 L. Ed. 939. There a resident of New Hampshire brought suit against a resident of Arkansas in the federal courts in Arkansas shortly after the civil war. The debt sued upon had been contracted before the war; the defendant pleaded the statute of limitations. The Supreme Court held that during the war both plaintiff's rights and remedies had been suspended, as the courts had not then been open to the parties. The Court recognized that the statute of limitations contained no express exception regarding war periods, but stated that exceptions *769 had been made which were not in the statute.[7]
The Hanger case has been consistently followed in the federal courts.[8] Its doctrine has been applied not only where the plaintiff was a citizen of the United States, but also where he was an enemy alien during a war.[9] It has also been applied where the statute of limitations was of the substantive type involved here, not the ordinary type as in the Hanger case, because the considerations for so tolling the ordinary statute apply also to the special type.[10] State courts, facing the same problem in cases involving limitations provisions in wrongful death statutes, have held that the statute should toll for enemy aliens, despite silence on the subject in the statute itself.[11]
We see no reason why the Hanger doctrine should not govern here. The cases cited show there would be no doubt that a Japanese citizen employed as appellant was on the S. S. President Harrison would have been able to sue for similar injuries. It would seem the height of unreasonableness to grant such redress to one of our former enemies at the same time we denied it to a citizen who, through no fault of his own, was held prisoner by that enemy.
Neither do we think that distinction should be made because of the type of statute of limitations involved. All statutes of limitation are based on the assumption that one with a good cause of action will not delay bringing it for an unreasonable period of time; but, when a plaintiff has been denied access to the courts, the basis of the assumption has been destroyed.[12] Whatever the reasons for describing this type of statute of limitations as substantive rather than procedural and we suspect the chief reason was to make the period of limitation named in the statute, rather than that of the forum, control in cases brought in state courts we think we do the distinction no violence by holding that either type of statute will toll for one who is a prisoner in the hands of the enemy in time of war.
To round out the story, we reject appellant's argument that he is entitled to the protection of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A.Appendix, §§ 511, 525. Section 511 of that Act defines "persons in military service" entitled to its protection as including "the following persons and no others:[13] All members of the Army of the United States, the United States Navy, the Marine Corps, the Coast Guard, and all officers of the Public Health Service detailed by proper authority for duty either with the Army or the Navy." The language of the section itself would appear to exclude the appellant. Cases deciding that members of the Merchant Marine were subject to court-martial jurisdiction[14] were decided on the basis of that section of the Articles of War, 10 U.S. *770 C.A. § 1473, which includes among those persons subject to military law, "in time of war all such retainers and persons accompanying or serving with the Armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles." Since the same section specifically makes members of the Armies of the United States subject to military law, conviction of a merchant seaman, as a person "accompanying" the Army, indicates that such a person was not in military service, quite the opposite from the contention of the appellant.
Reversed and remanded.
NOTES
[1] The briefs of the parties agree that the enemy was Japan.
[2] Central Vermont Ry. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas.1916B, 252; Atlantic Coast Line R. v. Burnette, 239 U.S. 199, 36 S. Ct. 75, 60 L. Ed. 226; Phillips Co. v. Grand Trunk Ry., 236 U.S. 662, 35 S. Ct. 444, 59 L. Ed. 774; Carpenter v. Erie Ry., 3 Cir., 132 F.2d 362; Pollen v. Ford Instrument Co., 2 Cir., 108 F.2d 762; Bell v. Wabash R. Co., 8 Cir., 58 F.2d 569.
[3] Engel v. Davenport, 271 U.S. 33, 46 S. Ct. 410, 70 L. Ed. 813; Bogdanovich v. Gasper, D.C.S.D.Cal., 41 F. Supp. 457; Oliver v. Calmar S. S. Co., D.C.E.D.Pa., 33 F. Supp. 356.
[4] Engel v. Davenport, supra; Central Vermont Ry. v. White, supra.
[5] Taylor v. Southern R. Co., D.C.E.D. Ill., 6 F. Supp. 259; Wahlgren v. Standard Oil Co., D.C.S.D.N.Y., 42 F. Supp. 992; Oliver v. Calmar S. S. Co., supra.
[6] Atlantic Coast Line R. v. Burnette, supra.
[7] Cf. Braun v. Sauerwein, 77 U.S. 218, 223, 19 L. Ed. 895.
[8] The Protector, 76 U.S. 687, 19 L. Ed. 812; Braun v. Sauerwein, 77 U.S. 218, 19 L. Ed. 895; Levy v. Stewart, 78 U.S. 244, 20 L. Ed. 86; United States v. Wiley, 78 U.S. 508, 20 L. Ed. 211; Caperton v. Bowyer, 81 U.S. 216, 20 L. Ed. 882; Adger v. Alston, 82 U.S. 555, 21 L. Ed. 234; Ross, Adm'r v. Jones, 89 U.S. 576, 22 L. Ed. 730; Brown v. Hiatts, 82 U.S. 177, 21 L. Ed. 128; First National Bank of Pittsburgh v. Anglo-Oesterreichische Bank, 3 Cir., 37 F.2d 564; Borovitz v. American Hard Rubber Co., D.C.N.D. Ohio, 287 F. 368; cf. Commissioner v. Wilson, 10 Cir., 60 F.2d 501, 504; Ex parte Colonna, 314 U.S. 510, 62 S. Ct. 373, 86 L. Ed. 379.
[9] Brown v. Hiatts, supra; Borovitz v. American Hard Rubber Co., supra; First National Bank of Pittsburgh v. Anglo-Oesterreichische Bank, supra.
[10] Borovitz v. American Hard Rubber Co., supra.
[11] Inland Steel Co. v. Jelenovic, 84 Ind. App. 373, 150 N.E. 391; Industrial Commission of Ohio v. Rotar, 124 Ohio St. 418, 179 N.E. 135; Kolundjija v. Hanna Ore Mining Co., 155 Minn. 176, 193 N.W. 163; Wirtele v. Grand Lodge, 111 Neb. 302, 196 N.W. 510 (plaintiff, U. S. citizen resident in Germany during the last war, was construed to be "enemy alien" for the purposes of the statute of limitations in an insurance action); Colorado Fuel & Iron Co. v. Industrial Commission, 73 Colo. 579, 216 P. 706; Maryland Casualty Co. v. Vidigoj, 207 Ky. 841, 270 S.W. 472; Siplyak v. Davis, 276 Pa. 49, 119 A. 745.
[12] Cf. United States v. Wiley, 78 U.S. 508, 513, 514, 20 L. Ed. 211.
[13] Emphasis ours.
[14] E.g., In re Berue, D.C.Ohio, 54 F. Supp. 252; In re McCune, D.C.Va., 53 F. Supp. 80.
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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/3389443/
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Affirmed.
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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/3430787/
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William H. Tullis was the owner of a farm of 56 1/2 acres on which he and his wife Annie and his daughter, the defendant Viola, had their home. Viola never married. W.H. Tullis and his wife appear to have had trouble between *Page 1361
themselves, the extent and nature of which do not appear, further than that plaintiff's witness Armstrong testifies:
"Every time he would come around she was nagging him. He couldn't stay at home in peace. He wanted her to take care of Viola, and he had to get money. They made it up that they would deed it over to her, to Viola. He took this $1500." (The $1500 loaned by witness to Viola on mortgage later referred to.) The witness says, "He (W.H. Tullis) wanted to get away."
Under date of September 5, 1905, W.H. Tullis and his wife Annie executed to Viola a warranty deed for the 56 1/2 acres for the expressed consideration of $1500. On the same day Viola executed to Armstrong her note secured by mortgage on the farm for $1500. W.H. Tullis went away and later returned. On March 18, 1907, W.H. Tullis obtained in the Mahaska District Court a decree of divorce from Annie Tullis, which recited: "Plaintiff's interest in real estate on which defendant is living, live stock and implements thereon and household goods set off to the defendant as her own." This decree was offered in evidence over defendant's objection. The evidence tends to show that $1100 of the mortgage to Armstrong was paid by W.H. Tullis and $400 by Viola and her mother. Viola on July 26, 1911, executed to William H. Tullis her note for $1100 secured by mortgage on the land. W.H. Tullis died October 13, 1915. Under date of November 18, 1915, three surviving children of William H. Tullis, including plaintiff, and two surviving children of a deceased son "in consideration of full satisfaction" of the $1100 note and mortgage executed an assignment of it to Viola. These instruments were all recorded. The deed and Armstrong mortgage were recorded on the date of their execution. Plaintiff's then husband was then recorder, and plaintiff was fully informed of the deed and mortgages. On November 8, 1923, Viola executed a mortgage for $4,000 on the land, which was released March 2, 1928. Viola and her mother lived on the land until about 1924. On March 29, 1929, Viola, having exchanged the land in 1925, executed a deed to the purchaser. Annie died October 12, 1929. The proceeds of the land, directly or indirectly, in whole or in part, are represented by three city lots which have been acquired by Viola and which are subject to this suit. The conveyances of the lots were *Page 1362
to Viola, one of them subject to a mortgage of $1,000, which Viola assumed. The petition in this suit was filed June 3, 1930. The only defendants are Viola and Harry, a brother. The other heirs of William H. Tullis and wife are not parties. Petition alleges that plaintiff, Viola, and Harry are the children of Annie; that prior to the death of Annie, Annie, Viola, and Harry colluded to secure possession and deed to the farm, "claiming to hold the same in trust for said deceased (Annie), and * * * exchanged said farm for the" town lots referred to, "which property was held in trust under the same condition and in place of said farm"; that "both the deceased and the said defendants herein named expressly stated that the said property was held in trust for Annie Tullis and the plaintiff and the heirs at law of the said Annie Tullis"; that Viola has refused to recognize plaintiff as an heir at law with distributive share in the property; that there are five heirs at law and plaintiff is entitled to one-fifth interest. The prayer is that the "plaintiff's distributive share be established in and to said real estate and that said real estate be sold and the plaintiff receive her distributive share," etc. Harry answered denying any interest. Viola filed general denial and plea of absolute ownership, adverse possession, and laches.
On the day before the trial plaintiff amended, alleging that deed to the farm was obtained by fraud and deceit of defendants, in that the father and mother were having domestic troubles, and in order to preserve the interests of the children, with the consent of the children, placed the title to the farm in the name of the defendants "in a trust, under the oral promise and agreement of said defendants that each of said heirs, including the plaintiff, would receive their one-fifth interest, upon the death of both of said grantors, and did thereupon make the said oral agreement a precedent condition to the delivery of said deed, and said deed thereby never became legally delivered, and that said condition has not been performed * * * that said defendants and each of them orally agreed and orally promised to hold the title to said property and permit the father and mother to have the income therefrom during their lifetime, and, upon the last becoming deceased, * * * the said property should be divided equally among the five heirs. * * * That the plaintiff believed and relied upon the said defendants * * * as to their *Page 1363
promises to hold said property in trust * * *" The prayer of the amendment was "as in her original petition, that the said deed to said properties * * * be set aside * * * in so far as the plaintiff's one-fifth interest is concerned therein * * *" By another count in the amendment plaintiff alleged "that as a part of said scheme to defraud," Viola executed the mortgage and note of July 26, 1911, to William H. Tullis and secured through the aforesaid promises an assignment of the mortgage. The prayer of this count was that the assignment be set aside, and that plaintiff have her one-fifth interest in the real estate and that an accounting be had. On December 16, 1930, plaintiff replied with a general denial, and affirmative allegation that defendant secured possession of the property as alleged in the petition and amendment, "and at all times held the same in trust for said plaintiff, save and except sufficient of the income to aid in the support of said William H. Tullis and Annie Tullis," and the statute of limitations did not commence to run until the death of Annie. The trial commenced December 16, 1930. On December 22, 1930, plaintiff again amended, in order to more particularly conform to the evidence" (which, as will be seen, principally was the testimony of the plaintiff herself), alleging that there was no consideration for the deed of 1905; that the deed was executed as a mortgage for the purpose of securing a loan made to William H. Tullis for $1500, which was later paid off by William H. Tullis and Annie Tullis, "and the said Annie Tullis was in possession of said farm * * * until 1925 and used the rents and profits of said farm for the upkeep of the same and for her support, and did, after said mortgage was paid, orally demand during her lifetime the return and cancellation of said warranty deed, and that in 1907, when said divorce was granted * * * said real property (the farm) * * * was re-established thereby in the said Annie Tullis; and that the said Viola M. Tullis had personal knowledge thereof and made no objection, and said warranty deed was in fact cancelled and thereafter forever a nullity * * *."
No question of defect of parties is raised. Proper and timely objections such as incompetency of the plaintiff as a witness under the dead man's statute, the statute of frauds, hearsay, variation of written contract, conclusion, etc., were made by defendant to the plaintiff's offers of evidence. *Page 1364
Minnie Love testified to a conversation with Viola after the father's death. Witness says: "She (Viola) told me that she intended to give Minnie (plaintiff) her share. We were talking about settling up affairs, and she told me that Minnie would get — that she intended to see that Minnie got her share."
The purchaser of the farm testified that its value at the time he made the exchange was $10,000. Plaintiff testified that her father and mother were "divorced in 1905. * * * My father wasn't satisfied at our place and he made several trips but I can't remember just when * * * After the divorce was granted he went west;" that prior to the execution of the deed by the father to Viola at which "my father, sister, my eldest daughter, and myself were present * * * I took no part in the conversation. I listened and knew what was said. My father wanted me to understand that this deed that was being transferred was only in trust, that he didn't want to wrong any of us. * * * He wanted her to hold that in trust for we children. * * * Q. * * * What did she say to your father and what did your father say to her, as nearly as you can state? * * * A. I don't know how to tell you, it was only that he gave that to her to hold for us so mother wouldn't have it, but we would. He was going to protect we children.* * * She said, `I will see that that is O.K.'" Plaintiff testified that she had a conversation with Viola after that. "She said, `You don't need to worry, it is not mine, it is mother's. You will get your share.'" That Viola at other times made the same statements; that prior to the execution of the assignment of the mortgage Viola "said that it would never be effective. The mortgage was to be of no effect. She said I would receive my share in the property." That in a conversation that the mother had with Viola after the divorce, "Mother said that she wanted — that it was hers and that she wanted — she said if it was deeded at all she would deed it to Harry, she was only holding it so we would all get what she had promised to do for us. * * * Q. Was that what Viola M. Tullis said to your mother? Mr. Devitt: Same objection. A. Viola wasn't there at the time. Mother and I and my daughter was there at that time." That plaintiff afterwards took up the matter with Viola and related what the mother said; that Viola "said that she was holding it for us as she agreed to do, and she was going to do it, and we should have our share as she had *Page 1365
agreed to, after he gave it to us. * * * She said she wouldn't deed it away. She had it and she was going to keep it and see that we got it." That after the father's death plaintiff heard a conversation between Viola and the mother in which the mother said, "She wanted her rights. * * * She said she wanted what was hers, and that farm was hers; it was her home." That Viola "said she was going to hold it."
Relative to the assignment of the mortgage plaintiff testified that Viola "wanted me to sign that, so she would get it in shape to deed back to mother. That was the reason it was signed." That it would not affect in the least plaintiff in receiving her share.
Plaintiff's first husband died. Her present husband testified that at a conversation between him and Viola, Viola said that plaintiff was going to get her share. Viola testified that she paid her father $1500 for the farm, took possession, lived on it, rented part of it, paid taxes, made improvements, occupied and controlled the property from 1905 to 1924; that she had at all times claimed to be the absolute owner down to the time she sold it, and was "in the sole control, management and custody of the property during that time, and have made all the improvements that were made on it. * * * Whatever property I took in exchange I took in my own name, and recorded the deed in my own name. I have exercised control over that property down to the present time, have lived in it, and have asserted during that time my absolute ownership of the property." She denied the conversations which Miss Love, plaintiff, and her husband claimed to have had with her. Viola testified that "up to the time of mother's death she made her home with me, and I took care of her, and I buried her."
The other heirs gave no testimony. Plaintiff's daughter was not a witness. The testimony is lengthy and the foregoing is merely an outline.
It will be seen that plaintiff's contentions in her petition and amendments and in her testimony are inconsistent and self-contradictory. Much of plaintiff's testimony is a manifest attempt to evade, and is inadmissible under, the dead man's statute. In re Estate of Runnells, 203 Iowa 144; In re Estate of Newson, 206 Iowa 514.
The burden of proof is upon the plaintiff. The defendant *Page 1366
was in the possession and enjoyment of the farm under an absolute warranty deed to her, executed by both the father and mother, for substantially twenty years. She mortgaged it, sold and conveyed it as her own. The plaintiff was fully aware of Viola's dealing with the property. Plaintiff herself joined in the assignment to Viola of the mortgage which was given to the father. The recital in the decree of divorce was, as to defendant, who was not a party to it, even if definite, not binding on her.
An express trust in real property cannot be proved by parol. An implied or constructive trust may be established only on clear, convincing, and satisfactory evidence. Kelley v. Kelley, 189 Iowa 311; Willis v. Robertson, 121 Iowa 380; Jacobson v. Nealand,122 Iowa 372; Butler v. Butler, 151 Iowa 583; Wagner v. Wagner,208 Iowa 1004; Irving v. Grimes, 208 Iowa 298; In re Moore's Estate,211 Iowa 804.
Plaintiff contends that defendants' admissions are competent to establish the trust. Neilly v. Hennessey, 208 Iowa 1338; Andrew v. State Bank of Blairsburg, 209 Iowa 1149.
Her evidence is far from establishing the alleged admissions. The allegations of non-delivery of the deed, conditional delivery, execution as security, cancellation, fraud, are without support in the evidence. Within the authorities the District Court was right in dismissing the plaintiff's petition. — Affirmed.
EVANS, De GRAFF, KINDIG, and GRIMM, JJ., concur.
WAGNER, C.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/3389840/
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Dismissed without opinion.
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01-03-2023
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07-05-2016
|
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